Cook v Flaherty - [2021] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
COOK v FLAHERTY
[2021] SASC 73
Judgment of the Honourable Justice Livesey
17 June 2021

DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
DEFAMATION - DAMAGES - GENERAL DAMAGES - REVIEW OF ASSESSMENT
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE - GENERALLY
DEFAMATION - JUSTIFICATION - TRUTH
DEFAMATION - FAIR COMMENT - IN GENERAL
DEFAMATION - OTHER DEFENCES
The appellant (the defendant) appeals against the finding that he published a number of statements defamatory of the respondent (the plaintiff). Broadly, these statements concerned the plaintiff’s application for a liquor licence for the Two Wells RSL, his military service record and his fitness to serve as a member of the RSL State Board and as the Mayor of a suburban council. At trial, the plaintiff was awarded damages of $50,000, including $15,000 for aggravated damages, in addition to interest and costs on an indemnity basis.
The plaintiff is a veteran of the Australian Army where he served for 13 years, including as a catering Sergeant in Vietnam during 1969 and 1970. After leaving full time service, he continued with the Army Reserve for another 13 years. The plaintiff joined the RSL. He has served as the President of the Two Wells RSL since 2006 and between 2016 and 2019, he served as the Mayor of the Adelaide Plains Council.
The defendant is a veteran of the Australian Army. He was a member of the Two Wells RSL between 2011 and 2015. On 26 October 2017, he lodged a Notice of Objection with the Consumer and Business Service in response to a liquor licence application made by the plaintiff. In answer to a request made by the CBS, the defendant sent an email which the Magistrate found conveyed imputations defamatory of the plaintiff (the CBS Email). On 4 December 2017, he left four comments on a Facebook post which the Magistrate also found conveyed imputations defamatory of the plaintiff (the Facebook posts). Finally, on 26 February 2018, the defendant sent an unsolicited email to councillors of the Adelaide Plains Council which the Magistrate found also conveyed imputations defamatory of the plaintiff (the Council Email).
The defendant appealed, contending that the findings of defamatory imputations made by the Magistrate were not made by reference to the pleaded imputations and were therefore “impermissible imputations” and further, that the Magistrate erred in rejecting the defences of justification, fair comment and qualified privilege. The defendant also contested the Magistrate’s finding of malice where that issue was not pleaded in a reply. The defendant contended that the award of general and aggravated damages was excessive.
Held per Livesey J, dismissing the appeal:
1.The rules of procedural fairness in the conduct of litigation dictate that parties are not only bound by their pleadings, but also by their conduct at the trial. Parties who depart, or permit departure, from the pleadings at trial cannot later argue on appeal that the pleadings remain the exhaustive explication of the matters in issue.
2.It cannot be said that the defamatory imputations found by the Magistrate involved any departure from the case pursued at trial. Even if, strictly, they involved some technical departure from the case pleaded or pressed, they represented shades or nuances of what was pleaded and pressed at trial and cannot be said to have caused any unfairness or prejudice to the defendant.
3.Aside from damages, the issue of express malice is ordinarily pleaded in reply to defences such as fair comment and qualified privilege. However, the placement of an allegation of malice in the statement of claim, whilst technically inappropriate and wrong, does not fail to raise the issue. Whilst particulars of the case on malice were not given, the defendant took no issue with this, whether before or at trial.
4.This was not a case where the defamatory imputations concerned “general character and general tendency”. An imputation of dishonesty, even if in general terms, cannot be justified by reference to conduct which is not temporally and qualitatively proximate. In this case, imputations of dishonesty cannot be justified by evidence of alleged dishonesty occurring years before the publication, where the publication purported to address, and would reasonably have been understood as addressing, conduct at the time of the publication. In any event, dishonesty was not put to the plaintiff in cross-examination.
5.The defendant was not expressing any comment or opinion in the CBS Email and the Facebook posts, but strident assertions of fact. In any event, as those assertions were based on inaccurate facts, they were, on that account, not “fair comment”.
6.The Council Email did not contain comment or opinion on the suitability of the plaintiff to be Mayor. In any event, as it was based on the false statement that the plaintiff had “now” been “sacked” from the State RSL Board, it was not “fair comment”. The Council Email was sent after the defendant knew that the National RSL Tribunal had set aside the State RSL Tribunal’s findings and the plaintiff had received televised public apologies.
7.As for the defence of qualified privilege at common law, even if there was a reciprocal interest or duty in the sending and receipt of the CBS Email, which is doubtful, the content went well beyond any relevant or germane connection with the objection process. There was no proved relevant, reciprocal interest in connection with the Facebook posts and the Council Email.
8.The defendant did not succeed in demonstrating that his conduct in the publication of the CBS Email, the Facebook posts and the Council Email was reasonable for the purposes of qualified privilege under statute. Accordingly, the Magistrate did not err in rejecting the defence of qualified privilege, whether at common law or under statute.
9.In the case of fair comment, it was open to the Magistrate to find that the defendant was at least recklessly indifferent to the falsity of his views and the underlying facts. In the case of qualified privilege, whether at common law or under statute, the defendant was motivated by hostility, hatred and a desire to harm and ridicule the plaintiff, which explains why he made the publications. The Magistrate was correct to find express malice and that the defences of fair comment and qualified privilege were defeated.
10.The amounts awarded for general and aggravated damages do not, absent any specific error, disclose appealable error. The damages award is not manifestly excessive.

Winterbottom v Vardon & Sons [1920] SALR 357, applied.
Advertiser News-Weekend v Manock (2005) 91 SASR 206; Briginshaw v Briginshaw (1938) 60 CLR 336; Chakravrati v Advertiser Newspapers Ltd (1998) 193 CLR 519; Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165; Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; Maisel v Financial Times Ltd [1915] 3 KB 336; Miller v Jennings (1954) 92 CLR 190; Re Vandervell’s Trusts (No 2) [1974] Ch 269; Roberts v Bass (2002) 212 CLR 1; Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118, discussed.
2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279; Battye v Shammall (2005) 91 SASR 315; Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Blackwell v News Group Newspapers [2007] EWHC 3098 (QB); Broome v Cassell & Co [1972] AC 1027; Carson v John Fairfax (1993) 178 CLR 44; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601; Dods v McDonald (No 2) [2016] VSC 201; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Duffy v Google Inc 125 SASR 437; Duffy v Google Inc (No 2) [2015] SASC 206; Eustice v Channel Seven [2020] SASC 4; Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2016] SASCFC 109; Fox v Percy (2003) 214 CLR 118; French v Triple M Melbourne Pty Ltd (Ruling No 5) [2008] VSC 553; Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490; Guise v Kouvelis (1947) 74 CLR 102; Gypsy Jokers Motorcycle Club Inc [2007] SALC 8; Hadzel v De Waldorf (1970) 16 FLR 174; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Howden v “Truth” and “Sportsman” (1937) 58 CLR 416; Huntley v Ward (1859) 6 CB (NS) 514; Jeffrey and Curnow v Giles [2015] VSCA 70; John Fairfax v Kelly (1987) 8 NSWLR 131; Johnson v Aldridge [2018] SADC 68; Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; King v John Fairfax [1983] 1 NSWLR 31; Lang v Australian Consolidated Press Limited [1970] 2 NSWR 408; Lee v Lee (2019) 266 CLR 129; Lesses v Maras (No 2) [2017] SASCFC 137; Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601; Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147; Megna v Marshall [2010] NSWSC 686; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Morgan v John Fairfax (1990) 20 NSWLR 511; NRMA Insurance v Flanagan [1982] 1 NSWLR 585; Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309; Pinksterboer & Ors v Coumi & Ors [2018] SADC 25; Piscioneri v Brisciani [2015] ACTSC 106; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Polly Peck (Holdings) plc v Trelford [1986] QB 1000; Potts v Moran (1976) 16 SASR 284; Prichard v Krantz (1984) 37 SASR 379; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175; Reid v Dukic [2016] ACTSC 344; Reynolds v Times Newspaper Limited [1999] 3 WLR 1010; Roberts v Bass (2002) 212 CLR 1; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Rothe v Scott (No 4) [2016] NSWDC 160; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Shepherd v Cooper [2019] SASC 138; Sim v Stretch Radio Sim v Stretch [1936] 2 All ER 1237; SP Hywood Pty Ltd v Standard Chartered Bank Ltd (unreported, Supreme Court of South Australia, Perry J, 22 December 1992); Stokes v Ragless [2017] SASC 159; Sunlight Nominees Pty Ltd v Zotti [2017] SASC 176; Sunlight Nominees Pty Ltd v Zotti [2019] SASCFC 11; Thorne v Kennedy (2017) 263 CLR 85; Triggell v Pheeney (1951) 82 CLR 497; Turner v MGM Pictures Ltd [1950] 1 All ER 449; Warren v Coombes (1979) 142 CLR 531, considered.

COOK v FLAHERTY
[2021] SASC 73

Magistrates Appeal: Civil
LIVESEY J:
Introduction

The appellant, Mr Dean Cook (the defendant) appeals against the finding that he published a number of statements defamatory of the respondent, Mr Tony Flaherty (the plaintiff). Broadly, these statements concerned the plaintiff’s application to obtain a liquor licence for the Two Wells Returned Services League (Two Wells RSL), his military service record, and his fitness to serve as a member of the RSL State Board and as Mayor of a suburban council.
The plaintiff was awarded damages of $50,000, which included $15,000 for aggravated damages, in addition to interest and costs on an indemnity basis.[1]
[1] Judgment entered on 19 December 2019, together with Reasons. Following argument, interest was allowed in a lump sum amount of $3,000 and costs were ordered to be paid on an indemnity basis.
The Notice of Appeal filed 10 January 2020 runs to nearly 14 pages and contains ten grounds of appeal, underpinned by well over 60 sub-grounds or particulars. However, on the hearing of the appeal, senior counsel for the defendant (who did not appear at the trial) confined the appeal to seven topics.[2] Put broadly, those are:
1.The findings of defamatory meanings made by the Magistrate which were not made by reference to the pleaded imputations, which had been expressed in broad and generic terms. These are described as the “impermissible imputations” (grounds 1 to 4);
2.The defence of justification was rejected even though the defendant showed that the pleaded imputations were substantially true, relying on the common law (s 6) and s 23 of the Defamation Act 2005 (SA) (the Act) (ground 5);
3.The rejection of the common law defence of fair comment (ground 6);
4.The rejection of the defences of qualified privilege at common law and under s 28(3) of the Act (grounds 7 and 8);
5.The defences of fair comment and qualified privilege were defeated by the finding of express malice, even though it was not pleaded in the reply (ground 9); and
6.The award of general and aggravated damages was excessive (ground 10).
[2] Defendant’s Outline of Argument dated 16 March 2020, [1]-[7]. Qualified privilege at common law and under statute were addressed as separate topics.
As will be seen, in significant respects, a number of the criticisms made by the defendant by reference to the pleadings were made without regard to the manner in which the litigation, and eventually the trial, was conducted by the parties. The High Court has warned that, whilst pleadings are important, the parties may choose at trial to litigate a case different to the pleaded case:[3]
The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities …
... Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.
[3] Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 286-287. See also Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715, [72] (Gageler and Edelman JJ), albeit in the context of pleading causation in a misleading conduct case.
For the reasons that follow, I dismiss the appeal.
The parties
Mr Dean Cook
Mr Tony Flaherty
Factual background
The publications
The CBS Email
The Facebook posts
The Council Email
The Magistrates Court proceedings
The Particulars of Claim
The Defence
The Magistrate’s findings
The requirement for a real review
Grounds 1 to 4: Departure from the pleaded case
Two further issues
The pleadings and whether the defendant would have called witnesses
The pleading of malice
Departing from pleaded imputations?
Findings on the “impermissible imputations”
Ground 5: Defence of justification
The defence of justification and s 23 of the Defamation Act
The standard of proof
Application of defence of justification
Trading alcohol without a licence
RSL Disciplinary Tribunal decisions
Impersonating a commissioned officer
Ground 6: Defence of fair comment
Grounds 7 and 8: Defence of qualified privilege
Ground 9: Malice
Ground 10: Damages
Conclusion
The parties
Mr Dean Cook
The defendant served in the Australian Army between 1965 and 1986. He became a member of the Two Wells RSL in 2011 and maintained his membership until 2015.[4]
[4] Reasons delivered 19 December 2019 (Reasons), [8].
The defendant claimed to have met the plaintiff for the first time in Alice Springs approximately 25 years ago. The plaintiff recalled first meeting the defendant at the Two Wells RSL in or around 2012. In an email to an officer working at Consumer and Business Services (CBS) in 2017, the defendant said that he had known the plaintiff for “a period of approximately 7 – 8 years”.[5] The Magistrate concluded that the reference to an Alice Springs meeting was likely the result of “confusion in [the defendant’s] mind” and that it was most likely they had first met at the Two Wells RSL.[6]
[5] Reasons, [9], [12].
[6] Reasons, [9].
Mr Tony Flaherty
The plaintiff was 76 years old at the time of the trial. The plaintiff joined the Australian Army in the 1960s, where he served for 13 years, including as a catering sergeant in Vietnam in 1969 and 1970. After leaving full time service, he continued with the Army Reserve for another 13 years.[7] The plaintiff then worked at the Mary Potter Hospice with the terminally ill for 18 years, as well as with inmates at Yatala Labour Prison. In 2005, he was awarded an Order of Australia medal for his service to the community.
[7] Reasons, [1].
After returning from Vietnam in 1970, the plaintiff joined the RSL. He was not an active member of the RSL until he became president of the Unley RSL in the late 1990s.[8] In or about 2006, the plaintiff obtained permission to reactivate the Two Wells RSL and has since served as its President.[9]
[8] Reasons, [3].
[9] Reasons, [3].
The plaintiff served as the Mayor of the Adelaide Plains Council (formerly known as the Two Wells Council) between 2016 and 2019, following an earlier stint in 2008.[10]
[10] Plaintiff’s Trial Submissions, [1].
Factual background
In 2016, the plaintiff applied to become a director of the State RSL Board. As a part of his application, he was required to provide a summary of his military and community service. The plaintiff entrusted a RSL colleague to prepare this summary.[11] It was the following aspect of the summary that aroused controversy:[12]
Active Service: Malaya 1967-69 8RAR
Vietnam 1969-70: Served with 8RAR in Long Hai Mountains; Operation Hammersley; Platoon Commander role 8 Platoon, C Company: liaison appointment to US forces at Long Dien.
[11] Reasons, [4].
[12] Reasons, [5]. The reference to active service in Malaya was an error, the plaintiff took steps to rectify the error, and no party took issue with this at trial or on appeal.
On 29 September 2016, the State RSL Tribunal convened a hearing which resulted in a finding that the plaintiff had failed to provide “appropriate or convincing evidence” of his role as Platoon Commander of the 8^th Platoon in Vietnam. Consequently, the plaintiff was found guilty of conduct prejudicial to the interests of the RSL and was reprimanded and disqualified from holding his position as a director of the State RSL Board.[13]
[13] Tender Book, p 94-97.
Following this decision, the South Australian RSL Branch issued a media release on 26 October 2016. Relevantly, the release stated:[14]
[14] Tender Book, p 100-101.
1. Did Mr Flaherty undertake Active Service in Malaya?
The tribunal found that Mr Flaherty’s documentation should have read as ‘overseas service in Malaysia’.
2.Did Mr Flaherty serve with the eight Battalion, Royal Australian Regiment (8 RAR) in the Long Hai Mountains on Operation Hammersley?
The tribunal found that Mr Flaherty did serve the 8 RAR in the Long Hai Mountains on Operation Hammersley.
3.Did Mr Flaherty serve at any time in Vietnam as the Platoon Commander of 8th Platoon, Charlie Company, 8RAR?
The tribunal found that this claim could not be proven. Mr Flaherty did undertake a platoon commander role; however, he was unable to prove that it was specifically 8^th Platoon.
The plaintiff appealed to the National RSL Tribunal. In a determination dated 27 February 2017, the National RSL Tribunal set aside these findings and expressed concern about whether the plaintiff had been subjected to a “sustained campaign”:[15]
While in places this material provides clarity and certainty, elsewhere it is wrong, ill‑informed, and wanders far from the complaints under examination. In other places it might be argued that Mr Flaherty was the subject of a sustained campaign.
…
Too much depends on the interpretation of Mr Flaherty’s CV. If the granting of an ICB[16] is accepted as valid (and the panel notes in passing that Mr Flaherty was initially trained as an Infantryman) and the issue of ‘Active Service in Malaya’ as being a lesser matter … then the whole matter revolves around:
Whether Mr Flaherty served with 8 RAR on Operation Hammersley as a platoon commander or in a platoon commander role OR simply served with 8 RAR on Operation Hammersley in an unspecified role for a period not specified, and
Whether Mr Flaherty ever served with C/8RAR in a platoon commander role.
Tentatively the panel agrees with the conclusions of the ST, except that it remains open to the argument that Mr Flaherty, as an infantry trained AACC sergeant with C/8RAR, may have acted in the platoon sergeant role for short periods as claimed: if so, acting as the platoon commander in the absence of the officer would have been quite routine. This avenue relies on the statement by Captain Haines tendered by Mr Flaherty …
[15] Tender Book, p 98-99.
[16] Infantry Combat Badge.

The National RSL Tribunal concluded that because it was without relevant transcript and documents, it was unable to resolve the matter for itself. As it was prohibited from conducting a fresh hearing, the National RSL Tribunal set aside the findings and penalties and recommended that there be a fresh examination at the State Branch level.[17]
[17] Tender Book, p 99.
Following this decision, both the National President of the RSL and the South Australian State President of the RSL publicly apologised to the plaintiff. This apology was televised by Channel Nine.[18]
[18] Channel Nine Report, Exhibit P3.
Nonetheless, the plaintiff was the subject of articles in The Sunday Mail in July and October 2016, The Australian in December 2017 and The Advertiser in June 2018.
During 2017, the plaintiff commenced unrelated defamation proceedings in the District Court against Mr Michael von Berg, the President of the Royal Regiment Association Inc. The Australian newspaper article published on 4 December 2017 referred to the defamation proceedings between the plaintiff and Mr von Berg.[19] It is convenient to set out the entirety of that article so as to provide context for the publications the subject of the plaintiff’s claims in this matter. Beneath a photograph of Mr von Berg in a suit and tie with a large number of medals across his chest, flanked by a number of Australian flags with the caption “Vietnam war hero Michael von Berg”, the article reads:
[19] Tender Book, p 101A and following.
Michael von Berg is tackling his latest challenge with the same steely resolve he showed as a combat soldier in Vietnam.
As a second lieutenant, Mr von Berg was awarded a Military Cross for his leadership in driving back an attack after his platoon was ambushed in the ravine.
With one of his men mortally wounded, and the rest pinned down, Mr von Berg calmly brought down covering fire – before leading his men back into the breach. The fight was won without the loss of another Australian soldier. The citation for his MC says Mr von Berg “showed complete disregard for his own safety even when it became apparent that the enemy were concentrating their fire on leaders”.
Mr von Berg is again under fire … in the courts. And, just like that day in October 1996, when he was a young officer with the 5^th Battalion of the Royal Australian Regiment, he’s hitting back hard. And he’s doing it for his comrades at arms.
Mr von Berg, 74, is being sued for defamation by ex-8RAR cook Tony Flaherty.
Mr Flaherty, 73, Mayor of Adelaide Plains Council, claims Mr von Berg reported him to the Australia & New Zealand Military Imposters website.
In his statement of claim lodged in the SA District Court, Mr Flaherty is seeking $250,000 in damages.
In dispute is Mr Flaherty’s statement, in biographical material for last year’s RSL SA board election, that he had led an infantry platoon in Vietnam.
In his candidate profile, Mr Flaherty wrote that he had served in a “platoon commander role 8 Platoon, C Company”.
Mr von Berg and other Vietnam veterans say that claim is false – Mr Flaherty was the company’s cook, not a platoon commander. “His claims of being a platoon commander … this really irks me because I know what I and every other platoon commander in the RAR had to endure,” Mr von Berg told The Australian.
“For Flaherty to have the temerity to portray himself as an acting platoon commander is an insult to me and every other platoon commander”.
He wrote a letter of complaint to the RSL SA on behalf of aggrieved members of 8RAR in his capacity as president of the SA branch of the RAR Association. The former infantry, SAS and commando officer was motivated to speak out after Mr Flaherty’s side of the story was aired on the ABC’s PM last month.
Vietnam veterans from across Australia have stepped forward to back Mr von Berg’s defence.
At least eight have signed statutory declarations disputing Mr Flaherty’s biography.
His company commander in Vietnam, Major David Rankine MC, wrote that in his time in charge of C Company, “Tony Flaherty never commanded anything other than a stove in the kitchen”.
Chad Sherrin MM, an 8RAR section commander who retired as a major, stated: “At no time did Anthony Flaherty command any element of 8 Platoon”.
Mr Flaherty told the ABC last month: “They said I went over to Vietnam as a catering sergeant and … never went out in the bush, that I never was in combat … basically that everything was a lie.
“To get emails from veterans who said things like ‘I hate you, you’re an honour thief, I wouldn’t spit on you and I hope you die’ …
“I want them to know what they have done has been so hurtful that they have to pay”.
The plaintiff was then the subject of numerous social media postings on a Facebook site hosted by Mr von Berg, which called into question aspects of the plaintiff’s military service record in Vietnam.
The publications
The CBS Email
In September 2017, the plaintiff applied for a limited club liquor licence in relation to the Two Wells RSL premises. It had, at times, been selling wine and beer to its members, and members of the public, without a liquor licence.
In response to the plaintiff’s liquor licence application, the defendant lodged a Notice of Objection on 26 October 2017 on the grounds that “the applicant is not a fit and proper person to hold a licence” and “the premises isn’t suitable to be licensed.” Upon receipt of the Notice of Objection, an officer working at CBS emailed Mr Cook “seeking further details regarding the basis of [his] objection”. Within 24 hours, the defendant responded (the CBS Email):
Mal Lockwood
I find Mr Flaherty is not a person that can be trusted under any circumstances. In my dealings with him before I found that he is untrustworthy and liable to say one thing and do exactly the opposite just to suit himself. He is a person that flouts his OAM JP status for his personal benefit. I have known Mr Flaherty for a period of approximately 7 - 8 years and started believing in him. I soon found out that he is not true to his word and will do what he wants to get what he wants. He has manipulated Council, in that when upgrading the Two Wells War Memorial he would go ahead and do what he wanted without any approval from Council even tho he knew it was a requirement. His words at the time where f the Council once it is done they can not undo it,
It should be noted that the RSL Sub Branch he is President of has been trading in sales of alcohol since it inception. At no time has Mr Flaherty applied for a Licence to do so. As Mr Flaherty is a JP he knows the law on this matter (or at least he should) but has neglected to gain a Licence till now. This alone should show that he is person that will do what he wants no matter what is the legal requirement.
I feel that the premises used by the RSL is not suitable for alcohol consumption as the safety aspects are not would could be classed as adequate. That is especially when there are considerable people seated for meals. There is only a single front door and a sliding rear door for exiting during an emergency. Outside that sliding door to the side is a high metal fence blocking any escape in an emergency. There are no fire sprinklers and minimal fire extinguishers on the premises. No security is on hand when open apart from Committee members. These members are also aging. It should be noted that the Committee is made up of people that agree with Mr Flaherty and objection to any of his ideas is met with fierce opposition.
All in all I feel Mr Flaherty is not in a fit and suitable to hold a liquor licence, nor are the premises suitable for its consumption.
Dean Cook
…
The parties at trial and on appeal concentrated on the content of the CBS Email, rather than the objection.
The Facebook posts
Following the article published in The Australian, on 4 December 2017, Mr von Berg posted a link to the article on his Facebook page with the words “for all those officers and men of 8RAR who did the hard yards on Operation Hammersley in the Long Hai Mountains”. There followed a large number of posts (well over 100) in which Mr von Berg received a great deal of support, and the plaintiff a great deal of criticism and ridicule.[20] Some examples include:
It is not uncommon for someone to live with a lie so long that they not normalise it, this guy probably genuinely believes his own lie that I suspect he has been living since he got back. The truth will win every time Michael B von Berg. I can’t believe he is suing, what a tool.
Your courage has not diminished over the years Michael – well done for speaking out. I would hope the RSL is funding your defence – if not please let us know where we can make a donation.
[20] Tender Book, p 4-49.
In the comment section, the defendant left a number of comments. Of relevance to these proceedings are the following comments by the defendant (the Facebook posts):[21]
Once again flaferty [sic] has been found out. When will that idiot stay out of the public eye.
You might know he is trading in booze without a licence.
His RSL has no licence, and no lease.
He is shitty with me because I lodged a complaint about his application for licence in that I said he was not a fit and proper person to hold one. Since then he has delayed his application for 6 months because he has no lease and will have to have a new vice pres.
[21] Tender Book, p 4-9.
These are respectively referred to as the first, second, third and fourth Facebook posts.
In the comments section, one person said: “I see him prancing around up here mate like he owns the place, might have to hit him up for a few stories”, to which the defendant replied: “Let me know if I can assist in any way. Sick of that things being what he is not”.[22]
[22] Tender Book, p 38.
As might be obvious, these postings appeared to have been made largely by those who had served in the Australian Army or who were affiliated with the RSL in some way.
The Council Email
The following year, on 26 February 2018, the defendant sent an email to various councillors of the Adelaide Plains Council, of which the plaintiff was then Mayor (the Council Email), although not all councillors received the email. The email was as follows:[23]
Subject: Sacked
Counsellor,
It is now official. Flaherty has been sacked from the state RSL board.
That leaves the question if it is not suitable to be a board member of a large State institution, how can he be a Mayor for a Council.
[23] Tender Book, p 3.
The Magistrates Court proceedings
On 25 October 2018, the plaintiff issued the subject proceedings. They were supported by Particulars of Claim (the Claim). Because the pleadings received considerable attention, it is appropriate to consider them closely.
The Particulars of Claim
The Claim commenced with stating that the plaintiff was (at the time) the Mayor of the Adelaide Plains Council (previously the District Council of Mallala), the President of the Two Wells RSL and a member of the Board of Directors of the RSL’s South Australian Branch.[24]
[24] Claim, [1].
It was alleged that the plaintiff made an application for a limited club liquor licence for the Two Wells Community RSL and that, on 26 October 2017, the defendant filed a Notice of Objection to this application on the grounds that the applicant was not a fit and proper person to hold a licence and the premises were not suitable to be licenced.[25]
[25] Claim, [2].
The CBS Email was then pleaded, along with the claim that it contained a number of statements defamatory of the plaintiff.[26] Paragraph 4.2 pleaded what were described as the “natural and ordinary meanings” of the publication, which, on the plaintiff’s case, included that the plaintiff:
[26] Claim, [4], [4.1].
4.2.1 is not a fit and proper person to hold a position to hold a liquor licence;
4.2.2. is dishonest;
4.2.3 is untrustworthy;
4.2.4 is a liar;
4.2.5 is not a fit and proper person to hold public office;
4.2.6 is corrupt;
4.2.7 is incompetent; and
4.2.8 is lacking in judgement.
On the hearing of the appeal, the defendant accepted that all of these imputations were open, at least as a matter of law,[27] save for those in sub‑paragraphs 4.2.4 (liar), 4.2.5 (not a fit and proper person to hold public office) and 4.2.6 (corrupt). These were described as by the defendant as the “impermissible imputations”.
[27] Chakravrati v Advertiser Newspapers Ltd (1998) 193 CLR 519, [16] (Brennan CJ and McHugh J).
The Facebook posts were then pleaded at paragraph 6.5 of the Claim, with the plaintiff alleging that the following imputations could be drawn about the plaintiff:[28]
[28] Claim, [6.5].
The natural and ordinary meanings of the Facebook Post include that the Plaintiff:
6.5.1is incompetent;
6.5.2is in engaging in illegal business;
6.5.3is not a fit and proper person to hold a liquor licence;
6.5.4is dishonest;
6.5.5is untrustworthy;
6.5.6is a liar; and
6.5.7is lacking in judgement.
On appeal, the defendant argued only that the imputations that the plaintiff was incompetent, untrustworthy and a liar were impermissible imputations.
Paragraph 7 of the Claim concentrated on the Council Email, which it was alleged was “highly defamatory of the Plaintiff”, before pleading the following imputations:
The natural and ordinary meanings of the publication include that the Plaintiff:
7.2.1has on around 26 February been ‘sacked’ from the State RSL Board;
7.2.2is not a fit and proper person to hold a position on the State Board of the RSL;
7.2.3 is not a fit and proper person to hold public office or;
7.2.4 is incompetent; and
7.2.5 is dishonest.
The Claim went on to allege that on 21 March 2018, the plaintiff served a Concerns Notice on the defendant pursuant to Part 3, Division 1 of the Act, inviting the defendant to make an offer to make amends pursuant to s 13 of the Act within 28 days of receipt of the Concerns Notice. No offer to make amends was made within 28 days. However, on 12 June 2013, the defendant responded to the plaintiff’s Concerns Notice, denying all liability and disputing that the imputations alleged arose from the defendant’s publications.
At paragraph 11, the plaintiff pleaded as follows:
In the premises of the matters detailed in paragraphs 4, 6 and 7, the plaintiff infers malice on the part of the Defendant which inference has aggravated his damage.
The plaintiff claimed damages in the sum of $40,000, plus interest and costs.
The Defence
On 10 December 2018, the defendant filed his Defence. While the defendant admitted publishing the Notice of Objection, he denied that it conveyed the imputations alleged in paragraph 4.2 of the Claim.[29]
[29] Defence, [6], [8].
As for the CBS Email, the defendant responded that it was only sent to the CBS officer upon a request for further information, and was not published by the defendant to any other person other than the CBS officer.[30] The defendant denied that the CBS Email conveyed any of the defamatory imputations alleged in paragraph 4.2 of the Claim.[31]
[30] Defence, [9]-[11].
[31] Defence, [12].
The defendant admitted to posting the Facebook posts pleaded in paragraphs 6.1 and 6.4 of the Claim,[32] but he did not admit that the Facebook posts conveyed any of the defamatory imputations alleged in paragraph 6.5 of the Claim.[33]
[32] Defence, [13].
[33] Defence, [14].
The defendant also admitted to sending the Council Email,[34] emphasising that it was not published to anyone other than the Council Email recipients.[35] The defendant did not, by his defence, directly dispute that the pleaded imputations could be drawn from that email.
[34] Defence, [15].
[35] Defence, [16].
In the event that any of the publications were found to convey any defamatory imputations concerning the plaintiff, the defendant pleaded the defences of justification,[36] fair comment or honest opinion upon a matter of public interest,[37] substantial truth,[38] qualified privilege,[39] reasonableness and triviality.[40]
[36] Defence, [18]-[32], relying on s 23 of the Defamation Act 2005 (SA).
[37] Defence, [33]-[35].
[38] Defence, [36]-[39].
[39] Defence, [40]-[46].
[40] For the defence of reasonableness, see paragraphs [47]-[49] of the Defence. For the defence of triviality, see paragraphs [50]-[51] of the Defence, relying on s 31 of the Defamation Act 2005 (SA).
The defendant denied that the plaintiff had any entitlement to damages, pleading that the publications “are true in substance and fact and accordingly an inference of malice is not open”.[41]
[41] Defence, [53].
The defendant then pleaded the various media articles earlier mentioned and, because the plaintiff did not “claim or obtain any remedies or relief” in respect of these “widespread media publications”, it was alleged that he was not concerned about the “harm those publications were capable of causing to his reputation”.[42]
[42] Defence, [55]-[57].
The defendant denied that the plaintiff was entitled to “aggravated damages or any damages at all”, but if he was, he was entitled to “no more than nominal, if not contemptuous damages”.[43]
[43] Defence, [54], [58], relying on s 32 of the Defamation Act 2005 (SA): “In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”.
The Magistrate’s findings
It is appropriate to briefly summarise the effect of the findings made.
The Magistrate held that the CBS Email, the Facebook Posts and the Council Email all conveyed imputations defamatory of the plaintiff.[44]
[44] Reasons, [20]-[30], relying on Sim v Stretch RadioSim v Stretch [1936] 2 All ER 1237, 1240 (Lord Atkin): statements might be defamatory if “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally”; which was reviewed in 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, [36]-[53] (French CJ, Gummow, Kiefel and Bell JJ).
After evaluating the evidence of 10 witnesses (including the plaintiff and the defendant), the Magistrate rejected the defendant’s defences of justification, fair comment, qualified privilege and triviality. His Honour went on to find that the defendant acted with malice, with the consequence that, even if he erred in rejecting the defences on their merits, they were defeated by malice.
As to the assessment of damages, the Magistrate held that “[g]iven the limited publication of the CBS Email”, he was “unable to accept that it had great impact on [the plaintiff’s] reputation”.[45] While the Magistrate acknowledged that the plaintiff suffered some reputational damage as a consequence of the Facebook posts, that damage was “largely limited to the visitors to Mr von Berg’s page”, although he made some allowance for word spreading through “the grapevine”.[46]
[45] Reasons, [215].
[46] Reasons, [220].
The Magistrate found that the Council Email undermined confidence in the plaintiff’s role as Mayor amongst Council members and the wider Two Wells community.[47] In light of the defendant’s clear and ongoing failure to moderate his views after the National RSL Tribunal’s findings and subsequent apologies, the Magistrate found that the plaintiff was entitled to aggravated damages.[48]
[47] Reasons, [222]-[223].
[48] Reasons, [224]-[225].
In awarding general damages in the sum of $35,000 and aggravated damages in the sum of $15,000, the Magistrate said:[49]
Mr Cook’s publications were limited, but they reached the sections of the community closest to Mr Flaherty and therefore, I find, caused him significant harm. Mr Flaherty’s well-deserved position of prominence in the community and particularly in the Two Wells district and the RSL communities justified an award of significance.
[49] Reasons, [227].
The requirement for a real review
On the hearing of this appeal, senior counsel for the defendant submitted, and I accept, that the Court must proceed in the manner recently restated in Lee v Lee:[50]
A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law.[51] Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences"[52] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.[53] Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge".[54] Here, the trial judge's findings of primary fact were not disturbed.
[50] Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
[51] Fox v Percy (2003) 214 CLR 118, [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, [43].
[52] Fox v Percy (2003) 214 CLR 118, [29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, [43].
[53] Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392, [144]; Thorne v Kennedy (2017) 263 CLR 85, [42].
[54] Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs A-CJ, Jacobs and Murphy JJ). See also Fox v Percy (2003) 214 CLR 118, [25].

It is appropriate to emphasise that the Magistrate generally accepted the evidence of the plaintiff, but expressed significant reservations about aspects of the defendant’s evidence.[55]
[55] For example, see Reasons, [135]-[155].
The requirement to undertake a real review is of some importance in this case because, in a number of respects, the defendant correctly identified a failure by the Magistrate to approach issues in the manner required by the authorities. An example of this is the tendency to review the defence of justification by reference to the publications, rather than primarily by reference to the defamatory imputations, whether as pleaded or as found. Whilst this suggests an error of law, it does not, without more, show that the plea of justification succeeds. It is necessary to closely consider the conduct of the case, what was found and what the evidence actually revealed before any conclusion can be reached about the defendant’s various grounds of appeal.
Grounds 1 to 4: Departure from the pleaded case
Broadly, Grounds 1 to 4 of the Notice of Appeal concern the defendant’s allegation that the Magistrate departed from the pleaded case in finding that the Facebook posts and the CBS Email conveyed imputations that were not pleaded by the plaintiff.
Specifically, the defendant claimed that the Magistrate erred in finding that the CBS Email and the Facebook posts conveyed the following defamatory imputations, where those meanings were not pleaded by the plaintiff, were substantially different to those pleaded and were not merely “a shade or nuance of any of the pleaded meanings”:[56]
1.“Mr Flaherty is not worthy of his Mayoral/OAM/JP status and is corrupt” (the CBS Email);[57]
2.“Mr Flaherty has been caught out lying about his military service” (the first Facebook post);[58]
3.“Mr Flaherty is illegally selling alcohol and that the RSL he presides over has no liquor licence and no lease for its premises” (the second and third Facebook posts);[59]
4.Mr Flaherty “is cavalier regarding legal requirements and in his oversight of the business of the RSL (the second and third Facebook posts);[60] and
5.“Mr Cook’s assertion that Mr Flaherty is not a fit and proper person to hold a liquor licence has been met with concern by Mr Flaherty and was therefore well made” (the fourth Facebook post).[61]
[56] Advertiser News-Weekend v Manock (2005) 91 SASR 206, [76]-[77]; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, [24]-[25] (Brennan CJ and McHugh J) and [60] (Gaudron and Gummow JJ).
[57] Reasons, [23].
[58] Reasons, [26].
[59] Reasons, [27].
[60] Reasons, [27].
[61] Reasons, [28].
On appeal, though the defendant argued that the pleaded imputations were “too general”, no such objection was raised at trial.[62]
[62] Appeal Transcript, p 47-48.
The plaintiff emphasised that the defendant’s strategy on appeal was to focus on the least significant elements of the defamation claim, such as the liquor licence issue, whilst “glossing” over “the most serious elements”.[63] One may add that there was no challenge made to the Council Email and the findings that it conveyed that the plaintiff had recently been sacked from the State RSL Board, that at the time of that email he was considered by that Board unfit to hold a position on it and that he should not be considered suitable for public office.[64]
[63] Respondent’s Submissions, [1].
[64] Reasons, [29].
Two further issues
On the hearing of the appeal, two further issues were raised concerning the parties’ openings and final addresses at trial, namely:[65]
1.whether the defendant was on notice that the plaintiff was litigating a case that depended upon a finding that the first Facebook post conveyed an imputation that he had been “caught out” lying about his military service; and
2.whether, in the absence of a reply, the defendant was on notice that the plaintiff was relying on malice to defeat the defences of qualified privilege and fair comment.
[65] On 23 March 2020, I requested further submissions from the parties on these issues which I received on 9 April 2020.
It is appropriate to address these two points before addressing the “impermissible imputations” generally.
The pleadings and whether the defendant would have called witnesses
It is necessary to first emphasise that the pleadings exchanged between these parties were far from orthodox. For his part, the plaintiff did not plead each publication and the defamatory imputations conveyed by each publication. The defendant did not address each publication and each alleged imputation when addressing each of his defences. The plaintiff did not then file a reply addressing the extent to which malice defeated particular defences, nor the facts and circumstances from which malice might be inferred.
The ordinary approach to pleading in defamation cases was outlined by Mason P in the Court of Appeal in Greek Herald Pty Ltd v Nikolopoulos:[66]
The pleader’s task is to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily there will be questions of degree and “if a problem arises, the solution will usually be found in considerations of practical justice rather than philology” (per Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137). In this as in other areas, pleadings serve the ends of justice: they must not be permitted to assume an independent self-referential function. The pleaded imputation remains “the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand” (per Mahoney JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 428). It is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury’s capacity to enlarge the issues.
A plaintiff’s pleaded imputations set the scene for the contest which follows. The defendant’s pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory or the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations (Defamation Act, ss15(2), 16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771).
The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-6).
These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455, Minister for Immigration v Eshetu (1999) 197 CLR 611 at 534). Holmes J reminds us that:
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used: Towne v Eisner 254 US 418, 425 (1918).
[66] Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165, [18]-[21] (Mason P, with whom Wood CJ at CL agreed).
Perhaps understandably, neither side took technical points before or at the trial concerning the pleadings.
Whilst this may have been regarded as a convenient way of pleading and litigating the case, this inevitably led to a degree of laxity and fluidity about the way in which this case was prosecuted and defended, making it difficult to assess the matters raised on appeal by reference to the pleadings alone.
For example, it may be accepted that uncertainty was created by the way in which the plaintiff pleaded the various defamatory imputations which were said to be relevant to all of the Facebook posts. The plaintiff did not plead the particular defamatory imputations which it was alleged arose from each Facebook post. Though contrary to the rules of pleading and embarrassing,[67] no issue was taken with this approach before or at the trial. Accordingly:[68]
This pleading may well have been ambiguous and embarrassing. If so it should have been objected to on that basis. Had the objection been taken and upheld, the plaintiffs would have been forced to greater specificity, with possible consequences as regards the defences open to the defendants and the jury’s determination on the matters reserved for them. But these points were not taken at trial and they are not issues before this Court.
[67] Prichard v Krantz (1984) 37 SASR 379, 386 (King CJ, with whom Millhouse and Prior JJ agreed).
[68] Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165, [24] (Mason P, with whom Wood CJ at CL agreed).
In this case, the plaintiff’s pleaded imputations concerning the Facebook posts are immediately preceded by a reference to the posting by Mr von Berg on 4 December 2017 entitled: “For all of those officers and men of 8RAR who did the hard yards on Operation Hammersley in the Long Hai Mountains”. That post included a link to the article in The Australian which was earlier set out in full. The words used by the defendant are then pleaded, including: “Once again flaferty [sic] has been found out. When will that idiot stay out of the public eye”.[69]
[69] Claim, [5]-[6].
In his oral opening at trial, the plaintiff did not make any reference to The Australian article, instead confining his references to the comments made by others on Mr von Berg’s Facebook page. Counsel for the plaintiff repeated that the defendant made “assertions of dishonesty” in the Facebook posts. He summarised the effect of the defendant’s Facebook posts as follows:
… those Facebook pages include an assertion of dishonesty, they also include an assertion that the plaintiff was trading booze without a licence, which at the time it was written was false, because licences were in place, and there is a suggestion that the RSL was trading without a lease …
However, the defendant contends that it was not suggested during the plaintiff’s opening that the reference to “dishonesty” conveyed the meaning found by the Magistrate.[70] This, the defendant suggests, means that the defendant had no indication that the plaintiff’s case would depart from the pleaded imputation of dishonesty.
[70] At [26] of the Reasons; Appellant’s Submissions in response to matters raised by Livesey J, [5].
The defendant submits that if the plaintiff had opened on the basis that the defendant’s Facebook posts conveyed the imputation that the plaintiff “had been caught out lying about his military service”, he would have objected to the departure from the pleaded imputations, obliging the plaintiff to amend his pleadings. If leave had been given, the defendant contends, he would have substantially amended his defence to mirror the Third Defence of Mr Michael von Berg and called eight former Vietnam servicemen.
I reject these contentions. Whilst I start with the pleadings, the conduct of the case at trial is key:[71]
In the present case it would have been better if the content of the lie imputed to the plaintiffs were spelled out. ... There are lies and lies, just as every accusation of theft is not defamatory (cf Broome v Agar (1928) 138 LT 698 at 702). Nevertheless, it remains generally true that accusations of lying or theft are defamatory. The upshot is that judge and jury are entitled to a true joinder of issue in pleadings if a naturally defamatory meaning is in genuine dispute (cf Supreme Court Act 1970, s 63).
[71] Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165, [29] (Mason P, with whom Wood CJ at CL agreed).
When one has proper regard to the pleadings and the conduct of the trial, the defendant was clearly on notice that the imputations concerning the first Facebook post included an alleged imputation that the plaintiff had lied about his military service record. Indeed, it is difficult to understand the first Facebook post in any other way: “Once again flaferty [sic] has been found out. When will that idiot stay out of the public eye”. As will be seen, when considered in its proper context, the imputation is that the plaintiff had been “found out” lying about his military service record: “At the point of general principle, it is well established that the words complained of must be construed as a whole and in context”:[72]
Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true …
[72] Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165, [26], [22] (Mason P, with whom Wood CJ at CL agreed).
The plaintiff clearly pleaded that the first Facebook post carried the meaning that he was “a liar”.[73] The plaintiff did not explicitly plead that the imputation was that he was lying about his military service. However, that was clear from a reading of the pleading and the context in which the first Facebook post was made. The post was left in the comment section of Mr von Berg’s post with a link to the article published by The Australian which in part stated:
In dispute is Mr Flaherty’s statement, in biographical material for last year’s RSL SA board election, that he had led an infantry platoon in Vietnam.
In his candidate profile, Mr Flaherty wrote that he had served in a “platoon commander role 8 Platoon, C Company”.
Mr von Berg and other Vietnam veterans say that claim is false – Mr Flaherty was the company’s cook, not a platoon commander. “His claims of being a platoon commander … this really irks me because I know what I and every other platoon commander in the RAR had to endure,” Mr von Berg told The Australian.
“For Flaherty to have the temerity to portray himself as an acting platoon commander is an insult to me and every other platoon commander”.
[73] Claim, 6.5.4.
The context in which first Facebook post was made was therefore in response to an article alleging that the plaintiff’s claim to be a platoon commander of 8 Platoon, C Company, was false. Further, the defendant’s post was a response to a number of other posts which said:
It is not uncommon for someone to live with a lie so long that they normalise it, this guy probably believes his own lie that I suspect he has been living since he got back. The truth will win every time Michael B von Berg, I can’t believe his is suing. What a tool.
I should putivitley damage him if I were you! In the UK these retards are known as Walts (Walter Mittys) for either exaggerating their military service or worse still making up a non-existence military career. They are being named shamed and taken to Court …
Other posts in the same chain include:
You gotta watch those combat cooks Michael B Von Berg they are deadly with a spoon!
As part of his case on justification, the defendant pleaded into issue the findings of the Disciplinary Tribunal of the RSL SA that the plaintiff had failed to provide “appropriate or convincing evidence to support his claim that he was ‘Platoon Commander, 8 Platoon’”.
The parties could conceivably have confined their forensic contest to the proper meaning and interpretation of the rulings made by the State and National RSL Tribunals. However, that is not what happened at the trial.
Within the Tender Book, the plaintiff included, without objection from the defendant, a large number of records concerning his military service. One of these was a statement from Captain R.C. Haines dated 19 September 1972 describing his view about periods when the plaintiff’s service should not be counted as qualifying service for the purposes of the award of the Infantry Combat Badge. However, that statement also described a period between 15 August and 25 October 1970 when Captain Haines was “Sgt Flaherty’s Company Commander as OC C Coy 8 RAR. During most of this time the member acted as one of my Platoon Sergeants”.[74]
[74] Tender Book, p 102.
The documents included a letter dated 30 October 1972 from Colonel A.V. Preece granting the plaintiff’s application for the award of the Infantry Combat Badge. The letter said in part:[75]
Careful consideration of your service record has been made and special consideration given to your claim for the award. In view of the exceptional circumstances attached to your service with 8RAR and C Coy in particular, in which you filled the appointments of patrol commander, liason officer and platoon commander during operations, for a total period in excess of ninety days, the Committee has determined that you are eligible for this award.
[75] Tender Book, p 103.
The plaintiff gave evidence about his military record, without any objection. The defendant was cross-examined at length about the plaintiff’s military service, and his attitude to those who misstate their military service. It is difficult indeed to see the relevance of this evidence if the plaintiff’s military service record was not in issue. The defendant admitted as much in cross-examination:[76]
Once again Mr Flaferty (sic) had been found out … That’s a reference to Mr Flaherty lying about his military service.
You could say that, yes.
[76] Trial Transcript, p 135.
There was no objection to this question and answer. The plaintiff explicitly put in his final address that, in the “context of the surrounding posts, the imputation is one of dishonesty… [and that] the plaintiff has been caught out lying about his military record”.[77]
[77] Plaintiff’s Trial Submissions, [38].
If the defendant, in these circumstances, did not call witnesses to address the plaintiff’s case, that was a forensic decision he made at trial in circumstances where he was on notice of the allegation made by the plaintiff and the material adduced to support it.
The pleading of malice
In addition, I reject the complaint about the pleading of malice. Here again, the plaintiff’s pleading is open to criticism. Aside from damages,[78] the issue of malice is ordinarily relevant as a pleading made in reply to a defendant’s pleaded reliance on defences such as fair comment and qualified privilege. However, the placement of an allegation of malice in the statement of claim, whilst technically inappropriate and wrong, does not thereby fail to raise the issue.
[78] Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, 497 (Hunt J): “To be taken into account in aggravation, the defendant’s conduct never had to be malicious …”
It is true that particulars of the case on malice which identified the facts and matters from which malice was to be inferred were not properly pleaded,[79] and that general or formulaic assertions of malice are not usually permitted.[80] However, here again, the defendant took no issue that this pleading of malice was contrary to the rules of pleading and embarrassing, whether before or at the trial. No objection was made and no adjournment sought. Indeed, the defendant denied malice and addressed it in closing, complaining that it was not properly pleaded in the reply.[81] Whilst it would have been preferable if a reply had been filed, even at the end of the trial, the conduct of the case determined that express malice was in issue and to be addressed on its merits.
[79] Turner v MGM Pictures Ltd [1950] 1 All ER 449; Blackwell v News GroupNewspapers [2007] EWHC 3098 (QB), [14] (Eady J).
[80] NRMA Insurance v Flanagan [1982] 1 NSWLR 585, 603 (Hunt J); King v John Fairfax [1983] 1 NSWLR 31.
[81] Defendant’s closing, transcript p 32: “not to sound like a wet blanket crying foul, there was no reply filed, no advance notice or proper notice of the elements of malice”.
Departing from pleaded imputations?

For the reasons given, strict reliance on the pleadings cannot be accepted as the only means of identifying the proper boundaries of this litigation: one cannot ignore the conduct of the parties at the trial. As Doyle J explained in Shepherd v Cooper:[82]
While pleadings are an important consideration in setting the boundaries and framework for the determination of litigated disputes, their precise significance in a particular case depends upon the circumstances, including the manner in which the trial was conducted.
[82] Shepherd v Cooper [2019] SASC 138, [37].
The rules of procedural fairness in the conduct of litigation dictate that parties are not only bound by their pleadings, but also by their conduct at the trial. Pleadings are a means to an end, they are not an end in themselves:[83]
But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
[83] Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490, 517 (Isaacs and Rich JJ).
Parties who depart, or permit departure, from the pleadings at trial cannot later argue on appeal that the pleadings remain the exhaustive explication of the matters in issue, for as Doyle J explained in Sunlight Nominees Pty Ltd v Zotti:[84]
There is no doubt that pleadings play an important role. They define the issues in the case, and in so doing provide the other party with notice of the case they have to meet. However, the pleadings are ultimately a means to an end. If the parties, in fighting their legal battles, choose to depart from the pleadings by shifting or expanding the battleground, then the parties will not usually be held to their pleadings. While prudence suggests that the parties should seek to amend their pleadings to reflect movements in their case, that is not always practical and does not always happen. Given the importance of the way in which the trial has been conducted, a failure to amend will not always be fatal to a party obtaining relief justified by the evidence at trial.
[84] Sunlight Nominees Pty Ltd v Zotti [2017] SASC 176, [116] (overturned on appeal in Sunlight Nominees Pty Ltd v Zotti [2019] SASCFC 11, but this finding was not disturbed).
Speaking generally, while the rules of pleadings require that the material facts be pleaded, it is “strictly unnecessary to plead causes of action, although this is often done”.[85] The effect of this is that a trial judge is not limited to a consideration of the particular cause of action identified by the pleadings. The trial judge “is free to give judgment on any available cause of action”, irrespective of those pleaded.[86] As was said in Re Vandervell’s Trusts (No 2):[87]
It is sufficient for the pleader to state material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in any argument, any legal consequences of which the facts permit.
[85] Battye v Shammall (2005) 91 SASR 315, [51] (Gray J).
[86] SP Hywood Pty Ltd v Standard Chartered Bank Ltd (unreported, Supreme Court of South Australia, Perry J, 22 December 1992); Battye v Shammall (2005) 91 SASR 315, [51] (Gray J).
[87] Re Vandervell’s Trusts (No 2) [1974] Ch 269, 321-322 (Lord Denning MR).
In a defamation claim, whether the words in a publication are capable of conveying a defamatory meaning is a matter of law, whereas whether they actually do so – the natural and ordinary meaning – is a question of fact.[88] That must be determined objectively, in context and by reference to the ordinary reasonable reader.[89]
[88] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, [9]-[10] (Gleeson CJ, McHugh, Gummow and Heydon JJ).
[89] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, 301, applied by the Full Court in Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527, 540 and Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202, [95]-[97] (Gray J, with whom Nyland and Vanstone JJ agreed).
A plaintiff is generally required to plead the particulars of the defamatory imputations relied upon.[90] The ordinary principles of pleading, fairness and the need for clarity of issues at trial all require that the plaintiff adequately specify the meanings or imputations relied upon.[91]
[90] Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, [308] (Gillard AJA, with whom Winneke ACJ and Warren AJA agreed)
[91] Prichard v Krantz (1984) 37 SASR 379, 386 (King CJ, with whom Millhouse and Prior JJ agreed); Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.
Formerly, the Court was sometimes said to not be strictly bound by the imputations pleaded by the plaintiff, because it was the Court’s function to determine the meaning of the words, together with the defamatory imputations conveyed.[92] There is, however, a limitation upon the Court. While the Court can now find for a plaintiff on a “shade or nuance of meaning” not put by the plaintiff, the Court cannot do so where this would be prejudicial or unfair to the defendant. As Fox J explained in Hadzel v De Waldorf:[93]
... a judge can find for the plaintiff on a nuance of meaning not put by him, but it would be a strange reversal of ordinary practice, and possibly very unfair to one or both parties, for the judge to find that the plaintiff was defamed in some way not averred by the plaintiff.
[92] Polly Peck (Holdings) plc v Trelford [1986] QB 1000, 1021 (O’Conner LJ); Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147, 152 (Ackner, Mustill and Nourse LJJ); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, [308]-[309] (Gillard AJA with whom Winneke ACJ and Warren AJA agreed).
[93] Hadzel v De Waldorf (1970) 16 FLR 174, 182.
In Chakravarti v Advertiser Newspapers Ltd, Brennan CJ and McHugh J said that, in determining whether a different defamatory meaning to that pleaded can be relied on by the plaintiff, the question is whether the defendant might reasonably be thought to be “prejudiced, embarrassed or unfairly disadvantaged by the departure”:[94]
If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure – whether in the pleading or in preparing for trial, or adducing evidence or in conducting the case before verdict – the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury – as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation – the different defamatory meaning may be found by the jury.
[94] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, [24].
As Gaudron and Gummow JJ explained in the same case, this issue is not answered by reference to the pleadings alone:[95]
… the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, not simply by reference to the pleadings.
[95] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, [60].
In Advertiser-News Weekend Publishing Co Ltd v Manock, Doyle CJ addressed the different, but related issue, as to whether a defendant can plead and justify a meaning different to that which has been pleaded by the plaintiff:[96]
… the extent that a plaintiff may be permitted to depart from the meaning pleaded, fairness requires that the defendant be permitted to anticipate and deal with the alternative meaning. In that context the expression “alternative meaning” is something of a misnomer. An alternative meaning that can be pleaded and justified by the defendant can be no more than a shade or nuance of the meaning pleaded by the plaintiff, and so in substance (as it seems to me) the alternative meaning must be close to or the same as the meaning pleaded by the plaintiff.
[96] Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206, [72] (Doyle CJ, with whom White and Vanstone JJ agreed).
The relevant question is therefore whether the defamatory imputations found by the trial court corresponded with those pleaded or put into issue by the plaintiff, or were merely a “shade or nuance” of them. A similar issue arises on the defamatory imputations for which the defendant contended by way of justification, and whether these too were merely a “shade or nuance” of the imputations pleaded or pressed by the plaintiff.
Findings on the “impermissible imputations”
The first imputation challenged by the defendant was that the ordinary person would interpret the CBS Email to mean “that [the plaintiff] is not worthy of his Mayoral/OAM/JP status and is corrupt”.[97] In my opinion, that meaning is not substantially different from the pleaded case. It is simply an amalgamation of a number of the pleaded imputations. It incorporated allegations that the natural and ordinary meaning of the CBS Email was that the plaintiff is dishonest, untrustworthy, “not a fit and proper person to hold public office” and “corrupt”.[98] The meaning found by the Magistrate blends those pleaded meanings. To the extent that there is a variation on them – “not worthy…” – this is a shade or nuance of what was pleaded and pressed. It cannot be said that any prejudice was caused to the defendant by that finding.
[97] Reasons, [23].
[98] Claim, [4.2.5]-[4.2.6].
The defendant challenged the Magistrate’s finding that the first Facebook post carried the meaning that the plaintiff had been “caught out lying about his military service”.[99] I have already addressed the extent to which the defendant suggested prejudice on this issue. I have rejected the contention that the defendant might have called other witnesses. Focussing now on the finding made by the Magistrate, it accords with what the plaintiff had contended for in opening and closing.
[99] Reasons, [26]. The first Facebook post is: “Once again flaferty [sic] has been found out. When will that idiot stay out of the public eye”.
The finding that the first Facebook post carried the imputation that the plaintiff had been “caught lying about his military service” simply brought together the matters pleaded and pressed by the plaintiff. Rather than find that the first Facebook post carried the meaning that the plaintiff was “a liar” generally, as pleaded, the Magistrate found that it carried the imputation that the plaintiff was lying about his military service.
In all of these circumstances, and whatever the deficiencies in the plaintiff’s pleading, it cannot be said that the defamatory meaning found by the Magistrate involved any departure from the case pursued at the trial. Again, even if this strictly involved some technical departure from the case pleaded or pressed, it was a permissible shade or nuance of what was pleaded and pressed and cannot be said to have prejudiced the defendant or caused any unfairness.
The third imputation found by the Magistrate that was challenged by the defendant was the finding that the second and third Facebook posts conveyed the imputation “that Mr Flaherty is illegally selling alcohol and that the RSL he presides over has no liquor licence and no lease for its premises”.[100]
[100] Reasons, [27].
Again, the defamatory meaning found by the Magistrate is not substantially different from that pleaded at paragraph 6.5.2, namely, that the plaintiff “is engaging in illegal business”. While the pleaded imputation refers to “illegal business” generally, the imputation found by the Magistrate was that the plaintiff was “illegally selling alcohol”. Clearly, this is a form of “illegal business”.
The defendant also complains about the Magistrate’s finding that the third and fourth Facebook posts conveyed the imputation that the plaintiff “is cavalier regarding legal requirements and in his oversight of the business of the RSL”.[101] This finding is not substantially different from, and blends, those pleaded by the plaintiff, namely, that the posts carried the imputation that the plaintiff is “incompetent”, “engaging in illegal business”, “not a fit and proper person to hold a liquor license” and “lacking in judgement”.
[101] Reasons, [27].
This was a permissible shade or nuance of what was pleaded and pressed and cannot be said to have prejudiced the defendant or caused any unfairness.
The final imputation challenged by the defendant was that the fourth Facebook post would be taken to mean that “[the defendant’s] assertion that [the plaintiff] is not a fit and proper person to hold a liquor licence has been met with concern by [the plaintiff] and was therefore well made”. Yet again, the finding does not exactly match the pleaded imputations such as those that the plaintiff is incompetent, engaging in illegal business and is untrustworthy. However, I think that it can be fairly said that the Magistrate has, in drawing them together, made a finding that involves a shade or nuance of what was pleaded in a manner that involves no prejudice or unfairness.
I am not satisfied that the defendant has established any error by the Magistrate, or that the Magistrate’s findings involved any prejudice or unfairness to the defendant.
Grounds 1 to 4 must be dismissed.
Ground 5: Defence of justification
By ground 5 of the Notice of Appeal, the defendant contends that the Magistrate erred in rejecting the defence of justification in relation to all publications.
The defendant particularised this defence at some length, pleading that the imputations pleaded by the plaintiff “are all true in substance and in fact”.[102] As has been seen, these included imputations that the plaintiff is dishonest, a liar and not a fit and proper person to hold public office or a liquor licence.
[102] Defence, [19]‑[32], referring to paragraphs [4.2] (CBS Email), [6.5] (Facebook posts) and [7.2] (Council Email) of the Claim.
As with the plaintiff’s pleading of imputations concerning the Facebook posts, the defendant’s justification plea did not particularise what was substantially true about each defamatory imputation, tending to group the justification particulars under three broad topics, being “Trading alcohol without a licence”, “RSL Disciplinary decision” and “Impersonating a commissioned officer”. Whilst arguably objectionable, no objection was taken.
Under “Trading alcohol without a licence”, particulars were given of the legal requirements for the sale of liquor under the Liquor Licensing Act 1987 (SA) and the ways in which the RSL clubrooms at Two Wells did not meet reasonable safety standards.[103]
[103] Defence, [19]-[25].
Under “RSL Disciplinary decision”, the defendant relied on the October 2016 decision of the RSL SA Disciplinary Tribunal, pleading the finding that the plaintiff had failed to “provide appropriate or convincing evidence to support his claim that he was ‘Platoon Commander, 8 Platoon”, that the effect of the decision was that he “had been sacked”, that the RSL National Disciplinary Tribunal had “granted the plaintiff’s appeal … on procedural grounds” and, though the matter had been remitted, there had been no determination and the “investigation is still pending”.[104]
[104] Defence, [28]-[29].
Under “Impersonating a commissioned officer”, the defendant also pleaded that, contrary to regulation 803 of the Australian Military Regulations 1903 (Cth), whilst a Sergeant in Vietnam, the plaintiff had lied about his rank by assuming the rank of Lieutenant when issuing leave passes to two men.
On appeal, the defendant, focusing on the imputations of dishonesty, lying and that the plaintiff is not a fit and proper person to hold public office or a liquor licence, submitted that he was not required to prove that the actual words used in each publication were substantially true, “only the defamatory imputations themselves”.[105] The defendant also emphasised that slight “inaccuracies of detail which do not affect the substance of the charge made by the defendant” do not defeat the defence.[106]
[105] Lang v Australian Consolidated Press Limited [1970] 2 NSWR 408, 415.
[106] Potts v Moran (1976) 16 SASR 284, 306 (Bray CJ, with whom Wells and Sangster JJ agreed).
The defence of justification and s 23 of the Defamation Act
As s 6 of the Act preserves the common law defence of justification, the defendant was, and is, entitled to rely on both the common law and statutory defences. At trial and on appeal, the defendant relied upon the statutory defence of justification provided by s 23 of the Act, in the following terms:
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
The term “substantially true” is defined in s 4 of the Act as meaning “true in substance or not materially different from the truth”.
In determining whether the defence of justification was made out, the question is whether the whole of the evidence available to the Court substantiates a material part of the defamatory imputation. As Dixon J said in Howden v “Truth” and “Sportsman” Ltd:[107]
Every material part of the imputations … contained in the words complained of must be true; otherwise the justification fails as an answer to the action.
[107] Howden v “Truth” and “Sportsman” (1937) 58 CLR 416, 420-421; Potts v Moran (1976) 16 SASR 284, 305-306.
The defendant on appeal emphasised that, where an imputation is pleaded by the plaintiff in general terms, the imputation can be justified by reference to acts on the part of the plaintiff other than those specifically pleaded.[108] Those acts need not have existed at the time of the publication. As the New South Wales Court of Appeal said in Habib v Nationwide News Pty Ltd:[109]
The general rule is that an imputation must be justified by reference to the facts in existence at the time of publication. However the general rule may be departed from in circumstances where an imputation amounts to a general charge against the character of the plaintiff.
[108] Maisel v Financial Times Ltd [1915] 3 KB 336, 339-340 (Lord Cozens-Hardy MR), 340-342 (Pickford LJ).
[109] Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299, [313] (Hodgson, Tobias and McColl JJA).
The standard of proof
The onus of proof with respect to matters of justification is with the defendant. The standard to be discharged is that typically applied in civil proceedings, being on the balance of probabilities.
However, in the course of oral submissions in this Court, the plaintiff submitted that, given the serious nature of the allegations, the standard expressed by the High Court in Briginshaw v Briginshaw should be applied.[110] As Rich J observed in that case:[111]
[In serious matters] the nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of interference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
[110] Briginshaw v Briginshaw (1938) 60 CLR 336.
[111] Briginshaw v Briginshaw (1938) 60 CLR 336, 350.
This standard was explained by Starke J in the following terms:[112]
If the proof brings no strength of conviction to the mind of the tribunal or, what is much the same thing, does not satisfy the tribunal beyond reasonable doubt of the fact alleged, especially in the case of serious allegations such as adultery or fraud or crime, then the allegation remains unproved.
[112] Briginshaw v Briginshaw (1938) 60 CLR 336, 353.

The defendant’s case is that this evidence establishes that the plaintiff was “dishonest” and “a liar”.[138] As I have explained, given the terms in which the imputations were found, this is not a case where the defendant is permitted to make a general allegation by way of justification of “general character and general tendency”.[139]
[138] In the context of the CBS Email and the first Facebook post.
[139] Maisel v Financial Times Ltd [1915] 3 KB 336, 339–340 (Lord Cozens-Hardy MR).
In any event, the evidence lacks the requisite proximity, as it concerns a topic quite different to the subject matter of the imputations and it occurred many decades ago. Given the plaintiff’s explanation, it may be doubted whether signing leave passes with the wrong rank would be regarded as dishonest in the relevant sense.[140] Be that as it may, the Magistrate made no error in failing to find that the defendant had proved the substantial truth of the imputation that the plaintiff lied about his military service record.[141]
[140] Reasons, [117].
[141] Reasons, [117]-[118].
It must be recalled that the onus on this issue lies with the defendant. In my view, he has not discharged that onus. Though it must be said that the Magistrate did not address whether the particular imputations he found were conveyed were justified as substantially true, on an independent review, it cannot be said that the Magistrate erred in rejecting the defence of justification in this case.
Ground 6: Defence of fair comment
The defendant contended that the Magistrate erred in rejecting the defence of fair comment in relation to all of the publications. The defendant maintained that, in this case, there was no material difference between the common law defence of “fair comment” and the statutory defence of “honest opinion” under s 29 of the Act.[142] In Pryke v Advertiser Newspapers Ltd, King CJ held:[143]
A statement can be regarded as comment as distinct from allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts.
[142] Although the Magistrate found that the statutory defence was not pressed: Reasons, [177].
[143] Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175, 192.
And, as was explained in Channel Seven Adelaide Pty Ltd v Manock:[144]
… The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, "fair" does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word "fair" refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.
In Pervan v North Queensland Newspaper Co Ltd, McHugh J described as "the conventional case of fair comment" one where the basis of the comment appears in the publication and the reader (or viewer, or listener) is able to judge whether the facts justify the comments. He said that was very different from what he called "the Kemsley situation". ... The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else's opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.
…
… The essence of "the Kemsley situation" is that certain forms of conduct are of such a nature as to invite comment. That is the genus of which books, and artistic works, and theatrical performances are species. Where conduct is "submitted to public criticism", then, so long as statements about that conduct are presented as comment and not as facts, it is not necessary that a reader, viewer or hearer of the comment should be in a position to form his or her own opinion. Conduct of that kind stands apart from "the conventional case". It was the conventional case to which Lord Nicholls of Birkenhead was referring in Reynolds v Times Newspapers Ltd and Cheng v Tse Wai Chun, and to which the majority in this Court was referring in Pervan.
…
… Publishers and broadcasters may have their own commercial imperatives. The form in which those imperatives manifest themselves changes from time to time with changes in technology. The matter of present importance is that the law of defamation distinguishes between comment and statements of fact, even if publishers and broadcasters do not. The rationale for that was explained by Bingham LJ in Brent Walker Group Plc v Time Out Ltd. The defence on which the appellant seeks to rely applies to allegations that are recognisable as comment rather than as statements of fact. The allegation against the respondent was not of that kind.
(footnotes omitted)
[144] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, [3]-[4], [8] [12] (Gleeson CJ). See also [44], where Gummow, Hayne and Heydon JJ concluded that the publication in its ordinary meaning was a statement of fact and could not be characterised as comment.
Whilst the facts on which the comment or opinion is based need not necessarily be stated expressly in the publication, it is sufficient if they are referred to or they are otherwise “notorious”, being matters in the public arena, well-known or easily ascertainable.[145] In addition, where the facts are not stated, statements which might conceivably be viewed as comment or opinion will more readily be regarded as facts.
[145] Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175, 192 (King CJ); Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, [4]-[8] (Gleeson CJ), [47]-[49] (Gummow, Hayne and Heydon JJ).
Importantly, the element of “fairness” requires that the comment or opinion be based on facts that are true or published under privilege.
The CBS Email travels well beyond anything that could be regarded as comment or opinion. It purports to state facts. Unsurprisingly, on appeal, the defendant abandoned his claim that one aspect of the CBS Email was defensible as fair comment, that being the comment: “[a]t no time did [the plaintiff] apply for a licence to” sell liquor.[146]
[146] Appeal Transcript, p 85.
In so far as the defence was otherwise pressed regarding the CBS Email, it was confined to the statement about the suggested manipulation of Council in connection with the War Memorial upgrade. This was done, it was said, without Council approval. Whilst the Magistrate rejected the defence in the absence of proof of the underlying facts, and by reason of malice, I doubt whether the charge of manipulation can properly be regarded as anything other than the bare assertion of an historical fact.
As for the Facebook posts, the first is inaccurate and, on that account, not fair. The plaintiff had not been “found out”. Though there was undoubtedly a public controversy, the defendant was not expressing a comment or opinion. The same may be said of the Facebook post assertions regarding trading without a liquor licence or a lease at the time the posts were made. They are not comments, but strident assertions of fact. As well, as the defendant’s assertions are based on inaccurate facts they are, on that account, not fair.
The Council Email cannot be regarded as fair comment on the suitability of the plaintiff to be Mayor where it is based on the false statement that the plaintiff had “now” been sacked from the State RSL Board, a statement made in February 2018, after the National RSL Tribunal decision setting aside the State Tribunal findings and after the public, televised apologies.
Quite apart from malice, it cannot be said that the Magistrate erred in rejecting the defence of fair comment.
Grounds 7 and 8: Defence of qualified privilege
Grounds 7 and 8 challenge the Magistrate’s rejection of the common law and statutory defences of qualified privilege on the basis that the Magistrate applied the wrong legal tests, concentrating on whether there was a reciprocal duty rather than a reciprocal interest in making and receiving the publications. In Roberts v Bass it was held:[147]
The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it.[148] Communications made on such occasions are privileged because their making promotes the welfare of society.[149] But the privilege is qualified — hence the name qualified privilege — by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.
[147] Roberts v Bass (2002) 212 CLR 1, [62] (Gaudron, McHugh and Gummow JJ).
[148] Adam v Ward [1917] AC 309, 334 (Lord Atkinson).
[149] Toogood v Spyring (1834) 1 Cr M & R 181, 193 (Parke B).
If the defendant establishes that the defamatory imputations were published on a privileged occasion, and were sufficiently connected to it,[150] the publications are protected regardless whether they are true or false, harsh or hasty,[151] reasonable or unreasonable,[152] and whether they are expressions of fact or opinion.[153]
[150] Duffy v Google Inc (2015) 125 SASR 437, [389]-[390] (Blue J).
[151] Huntley v Ward (1859) 6 CB (NS) 514.
[152] Roberts v Bass (2002) 212 CLR 1, [14] (Gleeson CJ).
[153] Megna v Marshall [2010] NSWSC 686, [59], [175] (Simpson J).
There is a presumption that the defendant believes the truth of what was published, which it is for the plaintiff to negative by proving express malice.[154]
[154] Morgan v John Fairfax (1990) 20 NSWLR 511, 542 (Hunt J).
The defendant contends that the CBS Email was sent in direct response to a request and it was immaterial whether the defendant had any private duty or interest in the fate of the liquor licence application.[155] However, even if the Magistrate failed to find that there was a relevant public duty or interest, which I doubt existed in circumstances where the defendant was not attending the Two Wells RSL club and was not concerned about any safety issue,[156] the matters the defendant conveyed tend to demonstrate that he went well beyond any relevant connection with the proper scope of an objection to a liquor licence application. As the Magistrate pointed out, in Guise v Kouvelis a club member believed that he saw someone cheating at cards and told others in the room:[157]
… it [could] hardly be contended that the defendant was under a duty to shout out to the whole room that the plaintiff was a crook even if he believed he was.
[155] Reasons, [181]-[188].
[156] Reasons, [181], [187]-[188].
[157] Guise v Kouvelis (1947) 74 CLR 102, 111 (Latham CJ).
Rather, the criticisms made of the plaintiff by the defendant were not truly germane to, or connected with, the objection process.
In my view, there is no proved relevant, reciprocal interest in connection with the Facebook posts and the Council Email, quite apart from the difficulty that the criticisms made of the plaintiff by the defendant were not truly germane to, or connected with, the asserted privileged occasion.
The defendant repeated his submissions regarding the common law defence in support of the statutory defence, but also relied on the proposition that the Act did not require that he have an interest in communicating with the recipient.
The common law defence of qualified privilege is supplemented by s 27 of the Act. Under the Act the defendant must show that:
· The recipient has an interest or apparent interest in having information on some subject, s 27(1)(a).
· The matter is published to the recipient in the course of giving to the recipient information on that subject, s 27(1)(b); and
· the conduct of the defendant in publishing the matter is reasonable in the circumstances, s 27(1)(c).
· It is necessary also for the defendant to show that he believed on reasonable grounds that the recipient had the requisite interest, s 27(2).
The defendant relied on what he described as the discretionary, non‑exhaustive list of considerations set out in s 28(3) of the Act when determining whether his conduct in publishing matter about the plaintiff was reasonable in the circumstances. Sub-section 28(3) provides:
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)     the extent to which the matter published is of public interest; and
(b)     the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)     the seriousness of any defamatory imputation carried by the matter published; and
(d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)     whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)      the nature of the business environment in which the defendant operates; and
(g)     the sources of the information in the matter published and the integrity of those sources; and
(h)     whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)      any other steps taken to verify the information in the matter published; and
(j)      any other circumstances that the court considers relevant.
In my opinion, the defendant has not succeeded in demonstrating that his conduct was reasonable in the case of the CBS Email, the Facebook posts and the Council Email, given the strident criticisms contained in each publication, together with the inaccuracies earlier addressed.
In the event that I am wrong to reject the defendant’s defences of qualified privilege at common law and under the Act, they are in any event defeated by express malice, which I now address.
Ground 9: Malice
The defendant complained about the finding of express malice, in part because it was not pleaded in the reply (ground 9). I have already addressed and rejected the pleading point concerning malice. To the extent that the defendant complains that he was given no notice of the grounds on which a finding of malice was sought, he had available to him the plaintiff’s oral and written closings. As I have explained, this was a trial in which the parties acquiesced in proceeding in a lax and loose way. It is now too late to complain about the conduct of the trial.
The defendant says also that the evidence was incapable of satisfying the test for express malice. The nature of express malice, and how it might be proved, were addressed in Roberts v Bass:[158]
An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term ‘‘express malice’’ is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff. In Browne vDunn,[159] Lord Herschell LC said that malice ‘‘means making use of the occasion for some indirect purpose’’. Early in the history of the law of qualified privilege — which did not come into the common law until the end of the eighteenth century — Lord Campbell CJ said that malice was ‘‘any indirect motive, other than a sense of duty’.[160] Similarly, in an action for slander of title, Parke B[161] said that ‘‘acting maliciously means acting from a bad motive’’. ‘‘If the occasion is privileged’’, said Brett LJ[162], ‘‘it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason.’’ In Horrocks v Lowe[163] — the leading English case on malice — Lord Diplock said:
‘‘So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive.’’
Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive.[164] But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication.[165]
[158] Roberts v Bass (2002) 212 CLR 1, [75]-[76] (Gaudron, McHugh and Gummow JJ).
[159] Browne v Dunne (1893) 6 R 67, 72.
[160] Dickson v Earl of Wilton (1859) 1 F & F 419, 427.
[161] Brook v Rawl (1849) 19 LJ Ex 114, 115.
[162] Clark v Molyneux (1877) 3 QBD 237, 246.
[163] Horrocks v Lowe [1975] AC 135, 149.
[164] Mowlds v Fergusson (1939) 40 SR (NSW) 331, 327 (Jordan CJ, with whom Davidson and Halse Rogers JJ agreed); Horrocks v Lowe [1975] AC 135, 149-150 (Lord Diplock).
[165] Mowlds v Fergusson (1939) 40 SR (NSW) 311, 327 (Jordan CJ, with whom Davidson and Halse Rogers JJ agreed).
It is important to emphasise that proving ill-will or other improper motive is insufficient, the plaintiff must demonstrate that there was a dominant and improper motive on the otherwise privileged occasion, which was the reason for the publication.
In addition, the use of malice differs where fair comment is in issue.[166]
At the outset, it may be observed that the use of the plea in the context of qualified privilege differs from that associated with fair comment as the rationale of the defence of qualified privilege differs to that of fair comment. Underpinning the defence of qualified privilege is a recognition that the public interest requires that a recipient be able to receive frank and uninhibited communications of particular information from another source without being liable for any defamatory imputations that may arise from them.[167] The qualification to the privilege is that it not be used for a motive foreign to the duty that protects the making of the statement.[168]
…
In considering the defence of fair comment, when a court comes to determine the question of malice, it examines the subjective motivation of the speaker in making the comment. It is concerned with finding out what actuated the speaker to make the comment. The short, but nevertheless difficult point, that arises here is whether proof of spite, ill‑will or anger in the context of fair comment of itself constitutes malice or must the plaintiff go further and prove a lack of genuine or honest belief on the part of the publisher.
[166] French v Triple M Melbourne Pty Ltd (Ruling No 5) [2008] VSC 553, [7]-[8] (Forrest J).
[167] Reynolds v Times Newspaper Limited [1999] 3 WLR 1010, 1017.
[168] Roberts v Bass (2002) 212 CLR 1, [62].

On the topic of qualified privilege, at the time of the CBS Email, the Facebook posts and the Council Email demonstrate that the defendant’s attitude towards the plaintiff “did not materially change” between 30 October 2017 and 26 February 2018.[169]
[169] Reasons, [130].
The Magistrate found that the liquor licence objection, and therefore the CBS Email, were sent “for the ulterior purposes of embarrassing Mr Flaherty and of making Mr Flaherty’s position of leadership inconsistent with the members’ interest in obtaining a licence…”. This finding was made in circumstances where the defendant simply could not satisfactorily explain his objection.[170]
[170] Reasons, [136].
The Magistrate found that the purpose of the Facebook posts was to “demean, ridicule and defame” the plaintiff, as well as to insult him, having become unhappy with him. This finding was made after the defendant was reluctant to answer simple questions about why he left the Two Wells RSL Club.[171] The defendant intended to attack the plaintiff.[172] He was hostile toward the plaintiff.[173] The Magistrate also found that the defendant had only a superficial understanding of the facts regarding the plaintiff’s military service, and was unable to answer a question as to what the argument on this topic was about.[174]
[171] Reasons, [137]-[140].
[172] Reasons, [142].
[173] Reasons, [151].
[174] Reasons, [151]-[154].
As for the Facebook posts and the Council Email, the defendant admitted knowing that the National Tribunal had set aside the State Tribunal decision and that the plaintiff had received televised apologies.[175] The Magistrate found that the Council Email was sent after the defendant knew of these matters and with the intention to “damage Mr Flaherty’s reputation and in the hope that it would adversely affect his position as Mayor”.[176] In particular, the Magistrate found that the defendant was either recklessly indifferent to the truth at the time of the Council Email, or knew that the plaintiff had not been sacked and “chose to ignore the fact”.[177] This finding is significant:[178]
If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive…
[175] Reasons, [143]-[144].
[176] Reasons, [147].
[177] Reasons, [150].
[178] Roberts v Bass (2002) 212 CLR 1, [77] (Gaudron, McHugh and Gummow JJ).
Although the defendant contended that these various findings should not have been made and were unsupported by the evidence, or in conflict with other evidence, I disagree. It was open to the Magistrate to make findings about the defendant’s participation in a campaign which was motivated by hostility, hatred,[179] and a desire to harm and ridicule the plaintiff, and which best explained his publication of a number of false and defamatory statements concerning the plaintiff over a four-month period.
[179] Reasons, [116], [151].
In the case of fair comment, the defendant was at least recklessly indifferent to the falsity of his views and the underlying facts. In the case of qualified privilege at common law and under the Act, not only was the defendant hostile to the plaintiff, but it was that ill-will which best explains why he made the publications.
In my opinion, the Magistrate was correct to find express malice and that the defences of fair comment and qualified privilege were defeated by malice.
Ground 10: Damages
The defendant criticised the award of general and aggravated damages (ground 10). The defendant primarily relied on the proposition that the errors made by the Magistrate required that damages be reassessed. The defendant did not focus on any specific error made by the Magistrate in the event that his contentions were rejected. The defendant concluded that the damages were manifestly excessive because the Magistrate failed to ensure that there was an appropriate and rational relationship between the harm sustained and the amount awarded, s 32 of the Act.
General damages are intended to compensate for the plaintiff’s hurt feelings, for harm to the plaintiff’s reputation, and to vindicate his reputation.[180] In Uren v John Fairfax and Sons Pty Ltd, Windeyer J explained: [181]
When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways- as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations.
[180] See generally Carson v John Fairfax (1993) 178 CLR 44, 61 (Mason CJ, Deane, Dawson and Gaudron JJ); John Fairfax v Kelly (1987) 8 NSWLR 131, 141-142 (McHugh JA); Lesses v Maras (No 2) [2017] SASCFC 137, [21] (Blue, Parker and Hinton JJ); Stokes v Ragless [2017] SASC 159, [397]‑[405] (Bampton J).
[181] Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118, 150.
Similarly, in Broome v Cassell & Co, Lord Hailsham said:[182]
In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. ...
[182] Broome v Cassell & Co [1972] AC 1027, 1071.
More generally, ss 32 to 34 of the Act state:
Division 3—Remedies
32—Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
33—Damages for non-economic loss limited
(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).
(4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.
(5) An amount declared for the time being under this section applies to the exclusion of the amount of $250 000 or an amount previously adjusted under this section.
(6) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the regulations.
(7) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500.
(8) A declaration made or published in the Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.
34—State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
Though each publication gives rise to a separate cause of action, s 37 of the Act permits an award in a single sum. In this case the Magistrate recognised that, given the other publicity involving the plaintiff, he was only to compensate for damage caused by the defendant’s defamatory statements.[183]
[183] Reasons, [210].
The Magistrate carefully considered the evidence generally and the plaintiff’s evidence of distress in particular. He recognised that the limited publication of the CBS Email meant that it had no great impact on the plaintiff’s reputation. The audience for the Facebook posts was larger and there was a “grapevine” effect, with gossip repeated. However, the Council Email undermined confidence in the plaintiff’s role as Mayor in a small community.[184]
[184] Reasons, [213]-[223].
The award of aggravated damages is compensatory, not punitive, and reflects the defendant’s conduct which aggravated the plaintiff’s hurt and injury and increased the harm done:[185] aggravated damages are properly awarded in defamation where the defendant’s conduct, including after the publication and at trial, lacks bona fides, is improper or unjustifiable.[186] In particular:[187]
Such conduct may include a failure to apologise[188] or persistence in a plea of justification,[189] but only if the defendant’s conduct in failing to apologise or persisting in the plea of justification is lacking in bona fides, improper or unjustifiable.[190]
[185] See generally: Carson v John Fairfax (1993) 178 CLR 44, 50 (Mason CJ, Deane, Dawson and Gaudron JJ); Duffy v Google Inc (No 2) [2015] SASC 206, [81]-[82] (Blue J).
[186] Triggell v Pheeney (1951) 82 CLR 497, 514 (Dixon, Williams, Webb and Kitto JJ); Coyne v Citizen Finance Limited (1991) 172 CLR 211, 237 (Toohey J, with whom Dawson and McHugh JJ agreed).
[187] Duffy v Google Inc (No 2) [2015] SASC 206, [83] (Blue J).
[188] Triggell v Pheeney (1951) 82 CLR 497, 514 (Dixon, Williams, Webb and Kitto JJ); Clark v Ainsworth (1996) 40 NSWLR 463, 468 (Sheller JA, with whom Simos AJA agreed), 471 (Abadee AJA, with whom Simos AJA agreed); Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [79]-[83] (Tobias and McColl JJA).
[189] Coyne v Citizen Finance Limited (1991) 172 CLR 211, 237 (Toohey J, with whom Dawson and McHugh JJ agreed); Clark v Ainsworth (1996) 40 NSWLR 463, 468 (Sheller JA, with whom Simos AJA agreed), 471-474 (Abadee AJA, with whom Simos AJA agreed).
[190] Triggell v Pheeney (1951) 82 CLR 497, 514 (Dixon, Williams, Webb and Kitto JJ); Coyne v Citizen Finance Limited (1991) 172 CLR 211, 237 (Toohey J, with whom Dawson and McHugh JJ agreed); Clark v Ainsworth (1996) 40 NSWLR 463, 468 (Sheller JA, with whom Simos AJA agreed), 471-474 (Abadee AJA, with whom Simos AJA agreed).
Importantly, in this case:[191]
Mr Cook’s malice must be regarded as significant. His disinterest in pursuing the facts concerning Mr Flaherty and the venom in his attacks lead Mr Flaherty to fairly conclude that Mr Cook was being ‘spiteful’. Mr Flaherty had committed years of his time to supporting returned servicemen. The fact that one of his former members to whom he had shown no ill will could so behave was, I find, deeply hurtful to Mr Flaherty.
After full disclosure and production of the National Tribunal findings and Mr Flaherty’s military records, Mr Cook could have moderated his views. He did not. He maintained his defence with stubborn indifference to the information available to him. I found his attempts to justify his views under cross-examination lacking in substance. His response to the RSL’s apology, broadcast on Channel 9, [which] was ‘words are cheap’ was notably dismissive. Mr Flaherty is entitled to an award of aggravated damages.
[191] Reasons, [224]-[225].
In Miller v Jennings, Dixon CJ and Kitto J held that an appeal court cannot interfere with an award of damages unless first satisfied that the primary judge “has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered”.[192]
[192] Miller v Jennings (1954) 92 CLR 190, 196, relying on Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, 606 (Lord Simon) and Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, 616-617 (Lord Wright).
An “erroneous estimate of the damage”, they explained, is one beyond the limits of what a sound discretionary judgment would reasonably adopt, being either “so inordinately low or so inordinately high” so as to be beyond the party’s entitlement.[193]
[193] Miller v Jennings (1954) 92 CLR 190, 195. See also Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 124-125 (Barwick CJ, Kitto and Menzies JJ).
Essentially, and without impeaching any particular finding made,[194] or suggesting that the award was out of step with the general trend of other awards,[195] the defendant submitted that the award was “too much”.
[194] Though there were a number of complaints in the Notice of Appeal these were not pressed at the three day hearing and were effectively abandoned.
[195] Whilst the defendant did not point to any awards in his trial submissions, the plaintiff at trial cited Jeffrey and Curnow v Giles [2015] VSCA 70 (general damages $75,000 against Jeffrey, general damages $65,000 against Curnow); Piscioneri v Brisciani [2015] ACTSC 106 (general damages $82,000, aggravated damages $10,000); Duffy v Google Inc [2015] SASC 170 and Duffy v Google Inc (No 2) [2015] SASC 206 (general damages $100,000); Dods v McDonald (No 2) [2016] VSC 201 (general damages $150,000 – sum includes aggravated damages); Rothe v Scott (No 4) [2016] NSWDC 160 (general damages $100,000, aggravated damages $50,000); Reid v Dukic [2016] ACTSC 344 (general damages $160,000, aggravated damages $20,000, interest on the aggravated damages $2,700); Stokes v Ragless [2017] SASC 159 (general damages $70,000, aggravated damages $20,000); Pinksterboer & Ors v Coumi & Ors [2018] SADC 25 (general damages $42,500); Johnson v Aldridge [2018] SADC 68 (general damages $100,000 – sum includes a portion of aggravated damages).
I disagree. In my opinion, the award is not manifestly excessive.
Conclusion
The appeal must be dismissed, with costs.