Hallam v O'Connor and Pyne
[2024] QDC 187
•30 October 2024
DISTRICT COURT OF QUEENSLAND
CITATION: Hallam v O’Connor and Pyne [2024] QDC 187 PARTIES: GREGORY JOHN CHARLES HALLAM
(plaintiff)
vLYN ELIZABETH O’CONNOR (first defendant)
and
ROBERT JOHN PYNE
(fourth defendant)FILE NO: 23 of 2018 DIVISION: Civil PROCEEDING: Claim ORIGINATING Cairns COURT: DELIVERED ON: 30 October 2024 DELIVERED AT: Cairns HEARING DATE: 16-20, 23-27, 30-31 August 2021; 1, 2, 6-10 September 2021,
5-8, 22, 30 November 2021, 1, 2, 10 December 2021, 1, 14-
18, 21-25 January 2022, 1, 14-18, 21-25 February 2022, 2-4
March 2022, 31 October 2022, 1-2 November 2022.JUDGE: Morzone KC DCJ ORDER:
1. Judgment for the plaintiff against the first defendant in the amount of $346,131.51 including interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) at the rate of 3% per annum to the date of judgment from 10 June 2017 on general damages of $61,004.79 and special damages from 7 October 2017 of $1771.72. 2. The first defendant is permanently restrained from directly or indirectly publishing or causing to be published any of the matters, or substantially to the same effect as those matters, subject of her publications in this proceeding.
3. Judgment for the plaintiff against the fourth defendant in the amount of $157,261.41 including interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) at the rate of 3% per annum to the date of judgment on general damages from 21 June 2017 of $27,657.53 and on special damages from 7 October 2017 of $805.38.
4. Unless either party applies for a different costs order
within 14 days of this judgment, I will also order that
the first defendant and fourth defendant will pay the
plaintiff’s costs of the proceeding (including reserved
costs) to be assessed on the standard basis of the
proceedings against each of them, respectively.5. I will hear the parties as to costs.
CATCHWORDS: CIVIL PROCEEDING – DEFAMATION – liability first defendant for 36 publications by early determination of proceeding – assessment of damages against the first
defendant – liability of and any damages to be assessed
against the fourth defendant – interest - costs.AS AGAINST THE FIRST DEFENDANT - what damages ought to be awarded to the plaintiff against the first defendant
– whether a permanent injunction be made against the first defendant. AS AGAINST THE FOURTH DEFENDANT – did the fourth defendant publish one or more of five publications - was one or more of the publications of and concerning the plaintiff - did the publications have the capacity to convey any of their pleaded imputations - did the publications convey
any of their pleaded imputations - were the imputations
conveyed in the publications defamatory of the plaintiff -
what damages ought to be awarded to the plaintiff against the
fourth defendant.LEGISLATION: Civil Proceedings Act 2011 (Qld) s 58
Defamation Act 2005 (Qld) ss 6 & 8
District Court of Queensland Act 1967 (Qld) s 69CASES: A v IPEC Australia Ltd and Crew [1973] VR 39
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Allsopp v Incorporated Newsagencies Co. Pty Ltd (1975) 26
FLR 238
Amalgamated Television Services Pty Ltd v Marsden (1998)
43 NSWLR 158
Amalgamated Television Services v Marsden [2002] NSWCA
419
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
Apotex v Servier (No. 2) (2012) 293 ALR 272
Baffsky v John Fairfax & Sons Pty Ltd (1991) 106 FCR 21
Banks v Cadwalladr [2022] EWHC 1417
Bauer Media Pty Ltd v. Wilson (No. 2) [2018] VR 674Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Broome v Cassell & Co [1972] AC 1027
Browne v Dunn (1893) 6 R 67Cantwell v Sinclair [2011] NSWSC 1244 Carson v John Fairfax & Sons Ltd (1993) 113 ALR 577
Cerrutti v Crestside Pty Ltd [2016] 1 QdR 89
Chakravarti v Adelaide Advertiser (1998) 193 CLR 519
Channel Seven Sydney Pty Ltd v. Mahommed [2010] NSWCA
355
Chappel v Hart (1998) 195 CLR 232
Chester v Waverley Corporation (1939) 62 CLR 1
Clark v Ainsworth (1996) 40 NSWLR 463
Commonwealth v McLean (1996) 41 NSWLR 389
Consolidated Trust Co Ltd v Brown (1949) 49 SR (NSW) 86
Costello v Random House Pty Ltd (1999) 137 ACTR 1
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Cross v Denley (1952) 52 SR (NSW) 112
David Syme & Co v Can (1918) 25 CLR 234
Dingle v Associated Newspapers [1961] 2 QB 162
Dow Jones & Co v Gutnick (2002) 210 CLR 575
Dutton v Bazzi [2021] FCA 1474
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR
1716
Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW)
524
Greville v Wiseman (1967) NCLR 795
Hallam v Ross [2012] QSCHarbour Radio Pty Ltd v Wagner Harbour Radio Pty Ltd v Wagner (2019) 2 QdR 468
Higgins v Sinclair [2011] NSWSC 163
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR
33Holland v O’Connell (1984) A def R 40,149 Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504
Humphries v TWT Ltd (1993) 113 FLR 402
Hyams v Peterson (1991) 1 NZLR 711
John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
John Fairfax Publications v Rivkin (2003) 77 ALJR 165
John v MGN Ltd [1997] Q.B. 586 (CA)
Jones v Skelton [1963] 3 All ER 952Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141
CLR 632
Moit v Bristow [2005] NSWCA 322
Morgan v Odhams Press Ltd (1971) 2 All ER 1156
Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383
Nationwide News Pty Ltd v. Rush [2020] FCAFC 115
Neall v Watson (1960) 34 ALJR 364
Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388
Phillips v Robab Pty Ltd [2014] NSWSC 1520Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd (2018) 97 NSWLR 739 Polias v Ryall [2014] NSWSC 1692 Praet v Graham [1889] 24 QBD 53 Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729
Rogers v. Nationwide News Pty Ltd (2003) 216 CLR 327Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rubber Improvement Ltd v Daily Telegraph Ltd (1964) AC
239
Sierocki & Anor v. Klerck & Ors (No. 2) [2015] QSC 92
Singleton v Ffrench (1986) 5 NSWLR 425
Slayter v Daily Telegraph Co Ltd (1908) 6 CLR 1
Slim v Daily Telegraph (1968) 2 QB 157
Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 848
Stocker v Stocker (2020) AC 593
Tame v New South Wales (2002) 211 CLR 317
Television New Zealand Ltd v Ah Koy (2002) 2 NZLR 616
Ten Group v Cornes. (2012) 114 SASR 46
Triggell v Pheeney (1951) 82 CLR 497
Trkulja v Google LLC (2018) 92 ALJR 619.Uren v John Fairfax & Sons Pty Ltd (1966)
Wagner & Ors v Nine Network Australia & Ors [2019] QSC
284
Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Wagner v Nine Network [2019] QSC 284
Wagner v Nine Network [2020] QCA 221
Wilson v Bauer Media Pty Ltd [2017] VSC 521COUNSEL: M Amerena for the Plaintiff SOLICITORS: King & Company, Solicitors, for the Plaintiff/Applicant
First Defendant Self Represented
Second Defendant Self RepresentedSUMMARY
The plaintiff, who was then the Chief Executive Officer of the Local Government Association of Queensland Ltd, was the subject of public reputational damage, hurt and humiliation by multiple publications and being likened to the Star Wars movie character, Jabba the Hutt, on the Facebook social media platform. The plaintiff now sues for damages for defamation by the first defendant in respect of 36 publications, and the fourth defendant in respect of 5 publications.
The first defendant’s liability was the subject of default judgments on 18 September
2020 and 30 November 2020. Accordingly, the case against the first defendant involved assessing damages for the adjudged pleaded imputations from the 36
publications made by the first defendant under “Elizabeth Kennedy” for 13 and “Lyn O’Connor” for another 23. The plaintiff also seeks a permanent injunction against
the first defendant.
The case against the fourth defendant involved both liability and the assessment of any damages regarding five alleged defamatory publications. I have found the fourth defendant liable in respect of four of the five disputed publications. I further found the fourth defendant published all five publications of and concerning the plaintiff, and all publications had the capacity to convey, and did in fact, convey, all but four of the pleaded imputations.[1] I am satisfied that the imputations I found in the 1st, 2nd, 4th and 5th Rob Pyne Publications are defamatory of the plaintiff, but I was not so satisfied with respect to the imputations I found in the 3rd Rob Pyne Publication.
The first and fourth defendants are properly to be classified as several concurrent tortfeasors, each causing indivisible harm through their respective and overlapping publications. While avoiding double recovery, the case warrants separate awards of damages against each defendant, and disparate consideration of aggravated damages.
I assess damages against the first defendant for $283,355.00, comprising non- economic loss damages of $275,000.00 (including $55,000.00 for aggravated damages) and special damages of $8,355. I will award judgment accordingly, together with interest at the rate of 3% per annum from the first publication on 10 June 2017 on general damages of $61,004.79 and special damages from 7 October 2017 of $1771.72. The circumstances also warrant a permanent injunction prohibiting future defamatory publication of and concerning the plaintiff.
I assess damages against the fourth defendant for $128,798.50, comprising non- economic loss of $125,000.00 (including $25,000.00 for aggravated damages) and special damages of $3,798. I will award judgment accordingly, together with interest at the rate of 3% per annum on general damages from the first publication of 21 June 2017 of $27,657.53 and on special damages from 7 October 2017 of $805.38.
I will hear the parties on disposition of costs, which ought to follow the event unless either party seeks a different order within 14 days of this judgment.
ISSUES
The determinative issues in respect of the First Defendant are:
1. What damages ought to be awarded to the plaintiff against the defendant? 2. Should a permanent injunction be made against the first defendant? And in respect of the Fourth Defendant, they are:
3. Did the fourth defendant publish one or more of five publications? 4. Was one or more of the publications of and concerning the plaintiff? 5.
Did the publications have the capacity to convey any of their pleaded imputations? If so, did the publications convey any of their pleaded imputations?
6. Were the imputations conveyed in the publications defamatory of the plaintiff? 7. What damages ought to be awarded to the plaintiff against the fourth defendant? LIABILITY
The plaintiff obtained default judgments pursuant to r 374 of the Uniform Civil Procedure Rules 1999 (Qld) against the first defendant on 18 September 2020 and 30 November 2020, which determined the liability of the first defendant in respect of the following defamatory imputations of and concerning the plaintiff in the 36
publications using “Elizabeth Kennedy” for 13 and “Lyn O’Connor” for another 23
publications:
Publication Period Defamatory imputations
1st Elizabeth 10.6.17 to (a) the plaintiff deserved to be raucously Kennedy mocked for his efforts in advancing LGAQ 23.4.18 Publication policies intended to achieve, responsibly
and fairly, accountability and transparency
in local government matters; and(b)
in so advancing LGAQ policy the plaintiff was, in fact, motivated by his own personal self-interest; and
(c)
the plaintiff caused the LGAQ not to care at all about the people of Queensland and the staff of the local government.
2nd Elizabeth 18.6.17 to (a) the plaintiff was a powerful crime boss; and Kennedy 23.4.18 (b) the plaintiff operated through the LGAQ as Publication a cartel, a profitable criminal empire; and (c) the plaintiff was corrupt; and (d) the plaintiff sought to corruptly influence of the Queensland Parliament; and
(e)
the plaintiff had overborne the ethical standards which the LGAQ should have provided to local government; and
(f)
that the above imputations about Mr Hallam had been revealed in evidence before the Crime and Corruption Commission.
3rd Elizabeth 18.6.17 to (a) the plaintiff was a powerful crime boss; and Kennedy 23.4.18 (b) the plaintiff was corrupt; and Publication (c)
the plaintiff had been responsible for turning the LGAQ to what appeared to be a cult-like body; and
Publication Period Defamatory imputations
(d) the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire; and (e) Government which control neither
the plaintiff exercised a control over different opinion; and
(f) the plaintiff improperly caused or permitted taxpayers and ratepayers’ funds to be spent
on an LGAQ annual conference; and
(g)
the plaintiff was an authoritarian leader of a cult-like body abusing funds provided by taxpayers and ratepayers.
4th Elizabeth 18.6.17 to (a) the plaintiff was a powerful crime boss; and Kennedy 23.4.18 (b) the plaintiff was corrupt; and Publication (c)
the plaintiff attempting to exercise totalitarian control, as the CEO of the LGAQ, over the elected government of Queensland; and
(d)
the plaintiff was attempting to have the Premier of Queensland, Ms Annastacia Palaszczuk, influence a member of the Parliamentary Crime and Misconduct Committee, Mr Peter Wellington MP, to
cause the Crime and Corruption not adequately or at all investigate the conduct of Mr Paul Pisasale, the former Mayor of the Ipswich City Council.
5th Elizabeth 19.6.17 to (a) the plaintiff as the CEO of the LGAQ Kennedy 23.4.18 caused the LGAQ to deny values of ethical, Publication transparent and accountable local
government; and(b)
the plaintiff was blinded by lust of power, greed and self-importance.
6th Elizabeth 19.6.17 to (a) the plaintiff was a grub; and Kennedy 23.5.18 (b) the plaintiff was a criminal who deserved to Publication be in prison; and
Publication Period Defamatory imputations
(c)
the plaintiff caused all local councils in Queensland to be without morals, principles or accountability; and
(d)
the plaintiff controlled the Queensland Government by providing them with a nice cushy little retirement package at the expense of the ratepayers.
7th Elizabeth 20.6.17 to (a) the plaintiff was an idiot; and Kennedy present (b) the plaintiff deserved to be the subject of an Publication ICAC investigation; and (c)
the plaintiff had gravely damaged the interests of Queensland; and
(d) the plaintiff was a powerful crime boss; and (e)
the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire; and
(f) the plaintiff was corrupt. 8th Elizabeth 20.6.17 to (a) the plaintiff was a criminal deserving Kennedy present imprisonment; and Publication (b)
the plaintiff was involved in the wrongdoing that former Mayor Pisasale was arrested for and thereby deserved to be imprisoned with former Mayor Pisasale for his criminal
activities. 9th Elizabeth 20.6.17 to (a) the plaintiff was a criminal deserving of Kennedy present imprisonment; and Publication (b)
the plaintiff was an associate of criminals deserving of imprisonment.
10th Elizabeth 19.9.17 to (a) the plaintiff was central to the persistent Kennedy 23.4.18 covering up of systemic corruption in Publication Queensland; and (b)
the plaintiff had arguably compromised the integrity of both the ALP and the LNP political parties.
Publication Period Defamatory imputations
11th Elizabeth 2.12.17 to (a) the plaintiff was willing to cover up Kennedy 25.4.18 systemic corruption in local government; Publication and (b)
the plaintiff was part of the reason corruption was alive and well in local government in Queensland; and
(c)
the plaintiff contributed to improperly cultivating the Crime and Corruption Commission to cover up systemic
corruption in local government in
Queensland.12th Elizabeth 2.12.17 to (a) the plaintiff was gutless; and Kennedy 25.4.18 (b) that the LGAQ’s influence through Mr Publication Hallam as the LGAQ’s CEO caused corruption to be rife in local government in
Queensland; and(c)
that the Australian Federal Police were needed to properly investigate Mr Hallam and the organisation, the LGAQ, of which he was the Chief Executive Officer.
13th Elizabeth 5.12.17 to (a) the plaintiff was not prepared to expose Kennedy 25.4.18 systemic corruption in Queensland local Publication government and State Government; and (b)
the plaintiff was not willing to tell the truth; and
(c)
the plaintiff contributed to crime and corruption being rife in Queensland politics at all levels; and
(d) the plaintiff was a person who persecuted “truth Sayers” like Mr Pyne; and (e) the plaintiff had his snout in the “Trough”; and (f)
the plaintiff was receiving government funds he was not entitled to.
Publication Period Defamatory imputations
1st Lyn O’Connor 29.5.17 to (a) that as the CEO of LGAQ, Mr Hallam Publication 23.4.18 knowingly drove the metaphorical getaway
car for crooks involved in Local
Government matters; and(b)
that as the CEO of LGAQ, Mr Hallam dishonestly controlled a complaint system which was a complete stitch-up; and
(c)
that as the CEO of the LGAQ, Mr Hallam hung good people out to dry.
2nd Lyn O’Connor 16.6.17 to (a) the plaintiff was a bully; and Publication 23.4.18 (b)
the plaintiff was, by demanding to know who had provided documents tabled under parliamentary privilege, active in a way typical of persons who had abused whistle-
blowers by having “their chickens ... slaughtered and smeared throughout their home ... “; and (c)
the plaintiff by demanding to know who had provided documents tabled under parliamentary privilege was acting in a way
typical of persons who had liaised “hits” upon whistle-blowers; and (d)
the plaintiff was naive or involved directly, indirectly or in the many, many layers of cover-ups.
3rd Lyn O’Connor 20.6.17 to (a) the plaintiff as CEO of the LGAQ presided Publication
25.5.18
over a system in local government which improperly financially favoured persons connected with the LGAQ; and
(b)
the plaintiff as CEO of the LGAQ acted thereby to the detriment of Queensland ratepayers who were financially
disadvantaged by that system. 4th Lyn O’Connor 27.6.17 to (a) the plaintiff with the resignation of Publication 26.4.18 Mr Pisasale as Mayor of the Ipswich City
Council had usurped control of the IpswichCity Council’s affairs; and (b) the plaintiff had ordered the assault by thugs
Publication Period Defamatory imputations
upon Mr Dodrill which had left him
bloodied, injured and hospitalised; and
(c) the plaintiff had ordered such assault on Mr Dodrill because he had exposed Mayor Pisasale as being corrupt; and (d) the plaintiff ought be investigated for ordering such assault on Mr Dodrill; and (e) the plaintiff was a powerful crime boss; and (f) the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire; and (g) the plaintiff was corrupt; and (h) the plaintiff sought to corruptly influence of the Queensland Parliament; and
(i) the plaintiff had overborne the ethical standards which the LGAQ should have provided to local government.
5th Lyn O’Connor 04.7.17 to (a) the plaintiff was possibly the possessor of a Publication
25.5.18
suitcase and $1.6m in cash found therein which had been found by the Australian Federal Police in a drug bust which monies
were suspected to be the proceeds of crime;
and(b)
the plaintiff was possibly involved in serious drug-related crime; and
(c)
the plaintiff took advantage of investigatory authorities which failed to investigate him properly.
6th Lyn O’Connor 29.8.17 to (a) the plaintiff was a person for whom the Publication 26.4.18 concept of telling the truth seemed to be
very foreign; and(b)
the plaintiff was a person who on account of not telling the truth, did not act in the public interest.
Publication Period Defamatory imputations
7th Lyn O’Connor 12.9.17 to (a) the plaintiff was as the CEO of the LGAQ Publication 26.4.18 supervising the design of another money-
laundering business at LGAQ; and(b)
the plaintiff as CEO of the LGAQ, was supervising the crafting of another metaphorical getaway car for the metaphorical bank robbers; and
(c)
the plaintiff was as the Chief Executive Officer of the LGAQ, supervising the preparation of policy advice and research to be used by local government mayors, councillors and other council officials to escape investigation and prosecution for wrongdoing.
8th Lyn O’Connor 20.9.17 to (a) the plaintiff sought to endorse the Publication 26.4.18 appointment of a person, Mr Kellar, who Mr
Hallam knew was involved in crime,
corruptions and cover-ups; and(b)
the plaintiff supported crime, corruption and cover-ups in local government.
9th Lyn O’Connor 20.9.17 to (a) the plaintiff was dishonest in endorsing the Publication 26.4.18 Ipswich City Council’s choice of Mr Kellar as its acting CEO; and (b)
the plaintiff along with Mr Kellar, in fact did not have a long and distinguished career; and
(c)
the plaintiff along with Mr Kellar, had not obtained his position on the merits but, rather, through inappropriate associations within the LGAQ.
10th Lyn O’Connor 20.9.17 to (a) the plaintiff as CEO of the LGAQ knowing Publication
26.4.18
or reasonably suspecting the serious criminal and corrupt conduct of local
government CEO’s and executives, enabled
such local government CEO’s andexecutives to continue their careers in
different local governments in Queensland;
and
Publication Period Defamatory imputations
(b) the plaintiff engaged in covering up the wrongdoing of local government CEO’s and
executives; and
(c) the plaintiff assisted immoral local government CEO’s and executives; and
(d) the plaintiff as CEO of the LGAQ, caused the LGAQ to adopt a “Boys’ Club” culture
which disdained true worth and merit in
favour of whom the local government CEO
or executive knew.
11th Lyn O’Connor 3.10.17 to (a) the plaintiff as CEO of the LGAQ was Publication 23.4.18 protecting mayors in Queensland local
government who were, in fact, guilty of
crimes; and(b)
the plaintiff as CEO of the LGAQ, was assisting mayors who were in fact guilty of crimes, to escape responsibility for their wrongful actions.
12th Lyn O’Connor 16.12.17 (a) the plaintiff was of low and tainted personal Publication to 26.4.18 character; and (b) the plaintiff was deserving of close over a long period; and
(c)
the plaintiff would eventually be found to be a corrupt wrongdoer.
13th Lyn O’Connor 7.12.17 to (a) the plaintiff as CEO of the LGAQ, had Publication 23.4.18 contributed to the LGAQ as being an
organisation out of control; and(b) the plaintiff as CEO of the LGAQ, had caused or allowed the LGAQ’s operations to be other than in the public interest; and (c)
the plaintiff as CEO of the LGAQ, had allowed its operations to protect local government, mayors, councillors and executives when they did not deserve such protection; and
(d) the plaintiff as CEO of the LGAQ had allowed its operations to enable persons to
Publication Period Defamatory imputations obtain funds, benefits or advantages which they did not deserve or were not entitled to; and
(e)
the plaintiff was amongst those whose wrongdoing would be eventually exposed.
14th Lyn O’Connor 29.06.18 (a) that reasonable grounds existed to warrant Publication to Mr Hallam being investigated for possible 29.06.18 corruption. 15th Lyn O’Connor 21.12.18 (a) that reasonable grounds existed to warrant Publication to present Mr Hallam being investigated for his part in
the erosion of ethics and honesty in local
government; and(b)
the plaintiff, as the CEO of the LGAQ, had permitted the LGAQ to substantially contribute to local government being void of ethics and honesty; and
(c)
the plaintiff had a suspicious association with one Ms Oxenbridge, the wife of a council CEO, Mr Wulff.
16th Lyn O’Connor 21.12.18 (a) that reasonable grounds existed to warrant Publication to 22.1.19 Mr Hallam being investigated by a
parliamentary select committee in respect to
his possible relationship to local
government corruption; and(b) the plaintiff was suspiciously associated guilty to corruption charges.
17th Lyn O’Connor 3.2.19 to (a) Mr Hallam had a suspicious association Publication present with the corrupt wife, Ms Oxenbridge, of a
corrupt council CEO, Mr Wulff, in
circumstances where Mr Hallam had
unreservedly endorsed a Mr Walker who
had been convicted of facilitating MsOxenbridge’s and Mr Wulff’s corruption; and (b)
the plaintiff was associated with a lot of people who are guilty of or charged with
corruption and the CCC would probably
Publication Period Defamatory imputations uncover more such people; and
(c) that reasonable grounds existed for and Corruption Commission; and
(d) Mr Hallam to publicly disclose how he
that reasonable grounds existed obliging horse with Mr Oxenbridge, who was guilty of corruption.
18th Lyn O’Connor 18.2.19 to (a) that reasonable grounds existed to fully and Publication present properly investigate and publicly expose
Mr Hallam because he was so well linked to
other characters/criminals like the four
Ipswich criminals jailed on Friday; and(b)
that though not corrupt himself, Mr Hallam and the LGAQ of which he was the CEO undesirably contributed to corruption in local government.
19th Lyn O’Connor 5.11.19 to (a) the plaintiff had a suspicious association Publication present with Ms Oxenbridge, who together with her
husband, a council CEO Mr Wulff, had
been convicted and jailed on charges of
corruption; and(b)
the plaintiff seemed to have a bit of a habit of associating with criminal and dodgy types; and
(c)
the plaintiff had questionable judgement; and
(d)
that reasonable grounds existed to warrant Mr Hallam being investigated for possible corruption.
20th Lyn O’Connor 20.11.19 (a) the plaintiff had a suspicious association Publication to present with Ms Oxenbridge, who together with her
husband, a council CEO Mr Wulff, had
been convicted of charges of corruption;
and(b)
that reasonable grounds existed to suspect Mr Hallam was dodgy.
Publication Period Defamatory imputations
21st Lyn O’Connor 24.11.19 (a) the plaintiff had a suspicious association Publication to present with Ms Oxenbridge who together with her husband Mr Carl Wulff had been convicted of charges of corruption; and (b) that reasonable grounds existed to warrant Mr Hallam being investigated for his role in criminality associated with local government figures. 22nd Lyn O’Connor 2.12.19 to (a) the plaintiff had a suspicious association Publication present with Ms Oxenbridge who together with her
husband, the ex-CEO of the Ipswich
Council had been convicted and jailed on
charges of corruption; and(b) that reasonable grounds existed to warrant Mr Hallam being investigated for possible corruption. 23rd Lyn O’Connor 9.12.19 to (a) the plaintiff had a suspicious association Publication present with Ms Oxenbridge who together with her husband, Mr Wulff, had been convicted and jailed on charges of corruption; and (b) that reasonable grounds existed to warrant Mr Hallam being investigated for possible corruption.
The assessment of damages against the first defendant will be so based. I will first address liability against the fourth defendant to provide the factual matrix necessary for assessing damages against the first defendant and fourth defendant, as applicable.
Did the fourth defendant publish one or more of five publications?
The fourth defendant’s liability, if any, must be determined in respect of five posts or
comments on his public Facebook page between 21 June 2017 until they were taken down on 8 January 2018. The plaintiff sues the fourth defendant for the following five alleged defamatory publications on his public Facebook page:
Post Period Matter
1st Rob Pyne 21/6/17 - “Thanks to all people supporting a Queensland Publication 8/1/18 ICAC. Those in power rarely welcome increased scrutiny, but the ordinary decent people in
Post Period Matter government roles (who are often the victims) need
us to maintain the rage!”
These words were followed by this caricature.
2nd Rob Pyne 7/8/17 - “We all put our recyclables in the bin, doing the Publication 8/1/18 right thing. After that, the truth is a disgrace!
Corruption is rife and it is no surprise that local
government is at the heart of the crooked
behaviour. Please watch this doc @4861721440954". 3rd Rob Pyne 9/8/17 - “Those in power are the problem. Rather than Publication 8/1/18 attack the cause of systemic corruption they are
attacking and trying to discredit me. The politics of‘power and privilege’ by insider groups has dominated for too long and it is time to smash it open!” 4th Rob Pyne 10/8/17 - “I have never dodged a bill or traded while Publication 8/1/18 insolvent in my life. Never taken an overseas trip at
ratepayer/taxpayer expense or taken money from
developers. Those who want to silence me need to
be held to account and these weak little men with
big expense accounts need to understand, you arenot scaring anyone and people are awake to you!” 5th Rob Pyne 23/8/17 - “When will this government act on corruption? Publication 8/1/18 The evidence is overwhelming. If the premier will
Post Period Matter not announce a Commission of inquiry into
corruption in government administration, theparliament should with true confidence and demand
a state election. We must stop the rot!”
Once the posts are made available in a comprehensible form and are seen and read, that is, comprehended by third-party readers, the bilateral act of publication is complete.[2]
There is no dispute that the fourth defendant posted the following words and images on his public Facebook page. However, he initially did not admit that the posts were read or understood by anyone until during oral testimony at trial. In any event, by then, the plaintiff adduced direct evidence of publication through a solicitor and a
secretary employed by the plaintiff’s solicitors.
Therefore, I find that the fourth defendant published each of the five publications attributed to him.
Was one or more of the publications of and concerning the plaintiff?
The plaintiff must prove that each of the 1st through 5th Rob Pyne publications were of and concerning the plaintiff. That is, each of these publications could and would, on the balance of probabilities, have been understood as referring to him.[3]
The fourth defendant argues that publications concerned other individuals and entities and would not be read as identifying the plaintiff.
The test of identification is an objective one, using the standard of whether a hypothetical ordinary and reasonable reader acquainted with the plaintiff would have
understood the publication as referring to the plaintiff. The publication’s contents
should be considered based on what a hypothetical ordinary and reasonable reader would know as general knowledge or public awareness, not on special knowledge known only to a limited group.[4] Such a reader does not read with care, or with cautious and critical analytical care, or mindfully to formulate reasons, but such a reader gets a general impression, and may look again before coming to a conclusion and acting on it.[5]
In this case the plaintiff points to the contextual identification of the plaintiff:
(a) All of the 1st to 5th Rob Pyne publications (including the first Jabba the Hutt caricature) is context for each other: The fourth defendant’s Facebook page
likely attracted a growing readership who could scroll back to view earlier
posts. The publications were contemporaneously available for months.
(b) The earnest political and purportedly factual nature of the fourth defendant’s public Facebook page. The fourth defendant’s Facebook page is distinct from
print, radio, or TV media due to easier access to past posts. The page’s name “Rob Pyne: Putting Cairns First” and its presentation resembled an election
sign. It was a platform for political communication, promotion, and public
interaction.(c) The politically aware and inquiring nature of the likely readership of the fourth defendant’s public Facebook page. Readers were likely interested in politics
and possibly supportive of the fourth defendant’s political agenda. The page
was used to communicate with constituents, supporters, and the media.
(d) The “LGAQ” is a reference to the Local Government Association of Queensland. It is known to the public. Its membership consists of all local governments in Queensland and is broad in its engagement with media, government, and public issues.
(e) The plaintiff was well known to the public as the chief executive officer and public face of the association, having been in that role for 25 years, which involved him in public and media engagement. (f) The plaintiff’s physical appearance, including his obesity was publicly recognisable.
(g) The public discourse between the plaintiff (amongst others) and the fourth defendant is critical of the fourth defendant’s use of parliamentary privilege to
table documents sensationally asserting local government corruption. The controversy in the public mainstream media was well underway by December 2015.
(h) Whilst the plaintiff, as head of the association, had been criticising the fourth defendant’s persistent and repeated use of parliamentary privilege since 2015,
it is tolerably clear that the intensity of that criticism and the support it was
attracting from others did not occur until on or shortly before 15 June 2017.(i) The fourth defendant continued to table documents purportedly concerning wrongdoing and corruption in local government on numerous occasions between 11 May 2016 and 24 May 2017.
(j) On 15 June 2017, an LGAQ press release consisting of a statement by the plaintiff indicating that the LGAQ rejected the fourth defendant’s allegations
and calls for a special inquiry into local government and accusing the fourth defendant of allegations as being made without foundation, though under parliamentary privilege. It was just part of the wider criticism and comments
about the fourth defendant’s use of parliamentary privilege.
(k) On 14 June 2017, the fourth defendant tabled under privilege in Parliament a document entitled “Ipswich Inc”, which marked a high flashpoint in the
parliamentary privilege and public discourse.
(l)
In the midst of all this, the fourth defendant published the 1st Rob Pyne publication including the Jabba the Hutt caricature his public Facebook page on 21 June 2017.
(m)
After 21 June 2017 and throughout the period covering the initial publications of the 2nd, 3rd, 4th and 5th Rob Pyne publications the fourth defendant continued to table documents under privilege in Parliament about purported local government wrongdoing and corruption, which continued to fuel public discourse about his use of parliamentary privilege including criticism from the plaintiff.
(n) The publications and the fourth defendant’s actions kept the debate in the public eye up to the November 2017 state election.
Although the plaintiff is not named in words, he may, nevertheless, be described to be recognised. Whether that description takes the form of a word picture of an individual, a reference to a class of persons of which he is or is believed to be a member or any other form, if in the circumstances the description is such that a person hearing or reading the publication would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.[6]
The 1stRob Pyne publication containing the words and associated ‘Jabba the Hutt’
caricature is persuasive evidence of identification. The fourth defendant argues that the caricature depicts a toad and thereby refers to the Queensland local government
and that references to “the establishment” were directed at government leaders, not
the plaintiff. However, it seems to me that the depiction of the catchy meme is likely to be read and understood by the ordinary reasonable reader to refer to the plaintiff. The caricature visually parodied the plaintiff, who appeared as a witness and
exhibited similar physical features. The caricature’s physical qualities and contextual elements (like “LGAQ” on the shirt and book) reinforced its connection to the
plaintiff and would lead an ordinary reasonable reader to identify the plaintiff as
within the class of “those in power” as distinct from “the ordinary decent people in
government roles (who are often the victims)”.
Witnesses’ direct testimony they understood the publication as referring to the
plaintiff can also indicate whom the hypothetical ordinary and reasonable reader would understand as being referred to.[7] In this case, Mr Jamieson, Ms Browning and Mr Millar testified that they recognised the plaintiff in the caricature.
There is also at least one recipient of the publication who had special knowledge, based on extrinsic facts, to understand it referred to the plaintiff, including prior or contemporaneous third-party publications.[8] Even without direct evidence of a witness identifying the plaintiff based on extrinsic facts, identification can be inferred if at least one person would have made the connection. The weight of the evidence depends on the timing of the identifying and sued publications, the relevance of the subject matter, and the interest to the overlapping readership.
Identification innuendo is established by the broader context of publications and posts, suggesting cross-readership and shared interests among the relevant Facebook groups in the period between the initial publication of the 1st to 5th Rob Pyne publications, respectively on 21 June 2017, 7 August 2017, 9 August 2017, 10 August 2017 and 23 August 2017, and when they were removed between 8 January 2018 but
more likely closer to 17 January 2018. The fourth defendant’s Facebook page had a
regular and growing readership with over 5000 followers in 2017, and the posts were likely receiving significant engagement. Regular readers were likely exposed to all relevant publications, increasing their familiarity with the context and subjects discussed. There was significant discourse surrounding the 1st Rob Pyne Publication, including the express naming of the plaintiff, also linked to the Jabba the Hutt figure
in Jabba the Hutt caricatures in the first defendant’s publication made on the same day, 20 June 2017. Further, Facebook’s algorithm likely ensured that readers of the
first publication would see subsequent related posts, maintaining visibility and reinforcing the connection between the publications. The context of the thought bubble in the caricature, especially the public controversy involving the plaintiff and the association, would lead an ordinary reasonable reader to identify the plaintiff as one of the targets of the caricature and related posts.
[24] The evidence, both direct and inferential, strongly supports the plaintiff’s
identification. It seems to me that the -1st Rob Pyne publication is temporally proximate and posted in the same Facebook page to lend significant context to the 2nd to 5th Rob Pyne Publications, to lead an ordinary reasonable reader to identify the plaintiff:
(a) as a key individual associated the “local government”, which is slated as being “at the heart of the crooked behaviour” where “corruption is rife!” in the 2nd
Rob Pyne Publication.
(b) as being within one of “Those in power” who had publicly engaged in criticism of the fourth defendant, and therefore “Rather than attack the cause of systemic corruption, they are attacking and trying to discredit me”. He was also the head of one of the “insider groups” that long dominated with “power and
privilege” in the 3rd Rob Pyne Publication.
(c) as being within the class of “those who want to silence” the fourth defendant who “need to be held to account” and as a member of the class of “weak little
men” who “people are awake to” in the 4th Rob Pyne Publication; and
(d) as a key individual “in government administration,” about which there is a call for the government to act on corruption and for the premier to announce an
inquiry into “corruption” to “stop the rot” in the 5th Rob Pyne Publication.
Therefore, I conclude that each of the 1st to 5th Rob Pyne publications could and would, on the balance of probabilities, have been understood to be of and concerning the plaintiff.
Did the publications have the capacity to convey any of their pleaded imputations? If so, did the publications convey any of their pleaded imputations?
The standard of the hypothetical ordinary and reasonable reader applies to both questions.
This requires consideration not only of the literal words and images in the publication but also of the implications and inferences conveyed by the whole publication in its context.[9]
As to the scope of the test, the High Court in Trkulja v Google LLC[10] explained:
“[31] The test for whether a published matter is capable of being
defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience.
As Lord Reid observed in Lewis v Daily Telegraph Ltd, ‘[s]ome are unusually suspicious and some are unusually naïve’. So also are some
unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
[32] As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose
thinking. He or she may be taken to ‘read between the lines in the light of his general knowledge and experience of worldly affairs’, but
such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, [w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations
adverse to the subject.” (references omitted)
Cases have recognised other characteristics of the ordinary reasonable reader, including:
(a) having fair average intelligence;[11] (b)
reading between the lines[12] in light of his or her general knowledge[13] and experience in worldly affairs;[14]
(c)
reading the entire matter complained of and considering the context as a whole,[15] not just the isolated statement. Words that may not be defamatory alone can gain a different meaning in context, and vice versa.
(d)
are informed by matters of public notoriety or awareness and general knowledge of public matters.[16]
(e)
not being prone to reading publications carefully, less still, reading them with cautious and critical analytical care, let alone re-reading the same publication;[17]
(f)
drawing conclusions from general impressions and in the process perhaps overlooking details inconsistent with such impressions.[18] Facebook and Twitter posts require an impressionistic approach rather than detailed analysis. Social media users interpret messages quickly and casually, reflecting the conversational nature of these platforms.[19]
(g)
having a much greater capacity for implication than a lawyer or a judge[20] even to the extent of drawing farfetched inferences;[21]
(h) engaging in a certain amount of loose thinking;[22] (i)
being specially influenced by captions and their digital equivalents including, it is submitted, caricature memes on Facebook;[23]
(j)
being fair minded in the sense of trying to strike a balance between the most extreme meaning the publication could have and the most innocent meaning the publication could have.[24]
(k)
does not give equal weight to every part of a publication;[25] emphasis from headlines, headings, captions and images significantly influences their interpretation.
(l)
can attribute a meaning shaped by insinuations or suggestions in the publication, including being guided by the publisher to suspicious interpretation without directly stating it.[26]
(m)
draw implications more freely, especially when derogatory. If a publisher invites a suspicious or conjectural approach, they are liable for the conclusions that an ordinary reasonable listener might draw.[27]
Ordinary readers draw implications much more freely than lawyers, including judges, especially when these implications are derogatory.[28] But if an imputation can only emerge as the product of a strained, forced or utterly unreasonable interpretation, it must be so unreasonable, i.e. utterly unreasonable, that a jury could not find such an interpretation open to the hypothetical ordinary and reasonable reader.[29]
The ordinary and reasonable reader is presumed to have a uniform understanding of the language and images used in a publication.[30] When words or images are unclear, ambiguous, or unusual, the ordinary and reasonable reader is given a lot of leeway to draw imputations adverse to the defendant.[31] But where there are multiple interpretations, the court must select one single meaning that the impugned matter is taken to convey.[32] If there are competing meanings, then the most prominent is adopted; if meanings are equally open, then the most defamatory meaning to be selected.[33]
1st Rob Pyne Publication
Thanks to all people supporting a Queensland ICAC. Those in power rarely welcome increased scrutiny, but the ordinary decent people in government roles (who are often the victims) need us to
maintain the rage!”
The plaintiff asserts that the following imputations are contained in the 1st Rob Pyne publication:
(a) The plaintiff was a powerful crime boss; and (b)
further and alternatively, the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire; and
(c) further and alternatively, the plaintiff was corrupt; and (d)
further and alternatively, the plaintiff sought to corruptly influence public officials including elected members of the Queensland Parliament; and
(e)
further and alternatively, the plaintiff had overborne the ethical standards which the LGAQ should have provided to local government; and
(f)
further and alternatively, the plaintiff as the CEO of the LGAQ, did not welcome appropriate scrutiny of himself or the LGAQ; and
(g)
further and alternatively, the plaintiff as CEO of the LGAQ, contributed to ordinary decent people in government roles becoming victims by the misuse of power.
The caricature’s physical features and contextual elements (like “LGAQ” on the shirt
and book) identified the plaintiff in a controlling role in the Association, and would lead an ordinary reasonable reader to identify the plaintiff in the 1st Rob Pyne
Publication as being within the class of “those in power” who “rarely welcome
increased scrutiny” as distinct from “the ordinary decent people in government roles (who are often the victims)”. In my view, when read with the wording in the
publication, in the context of the parliamentary conduct, public debate, and other proximate posts and comments, the caricature goes beyond mere satire or vulgarity
that might be considered fair comment or the ‘rough and tumble’ of political debate.
The asserted imputations (a) and (b) largely depend upon the ordinary and reasonable
reader recognising that the plaintiff has attributed to him Jabba the Hutt’s essential
characteristics of being a corrupt and criminal villain, a ‘baddie’, and a very negative
person.
As to imputation (a) that the plaintiff was a powerful crime boss, the plaintiff argues that he was well known as the CEO of the LGAQ and its public spokesman, and therefore in effect, the boss, and if the ordinary honest and reasonable reader perceives him as doing corrupt criminal and villainess things, then the 1st Rob Pyne publication conveys the meaning that he was a crime boss. It is further argued that the meaning was that of a powerful crime boss since he contemplated speaking to the
government and the Speaker and was, after all, one of those “in power”.
The plaintiff led no evidence about the role and character of Jabba the Hutt in the movie Star Wars. Instead, he relied upon his presumed public notoriety inferentially known to the ordinary reasonable reader as a criminal figurehead. I am not satisfied on the evidence that there is any such prolific notoriety to safely attribute such the ordinary reasonable reader.
The fourth defendant confirmed that he was “now” aware that the role which Jabba the Hutt played in the Stars Wars movie franchise was as “a corrupt and criminal
villain”, “a baddie” and a pretty negative person, having learned of such content in
this proceeding, and was not otherwise aware by some general notoriety. Instead, he attributed the caricature as depicting a cane toad being a notorious pest in Queensland and associate with representative sporting teams, and other Queensland figures. At
best, his evidence – to the extent that it might be indicative of an ordinary reasonable reader – showed that Jabba the Hutt was an image used in cartoon political satire, not
because of his movie persona, but of an overbearing, overweight and ugly character (e.g. a similar use regarding Clive Palmer and Senator Lambie). This is also consistent with the evidence of the first defendant that the Jabba the Hutt imagery was in common use due to its visual feature in relation to Donald Trump and in relation to Clive Palmer, not in the context of the movie. Although I note that Mr Millar testified that he was familiar with Jabba the Hutt as a large villainous and evil character from the fictional Star Wars franchise.
It seems to me that the alleged imputation (a) that the plaintiff is a powerful crime boss and (b) that the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire, can only emerge as the product of a strained, forced or utterly unreasonable interpretation with knowledge of the character and role of Jabba the Hutt in the movie Star Wars. In my view, without such notoriety, a jury could not find such an interpretation open to the ordinary and reasonable reader as alleged in imputations (a) and (b). Therefore, the 1st Rob Pyne Publications does not have the capacity to convey any of their pleaded imputations (a) and (b).
Even if the 1st Rob Pyne Publications had the capacity to convey any of their pleaded imputations (a) and (b), I do not accept that a jury could find the contended interpretation open to the ordinary and reasonable reader. The 1st Rob Pyne publication will more likely be interpreted as a broad critique of power dynamics and systemic issues between political parties and the LGAQ rather than conveying the specific defamatory imputations of the plaintiff as a crime boss or that he operated a profitable criminal empire as a cartel through the association.
However, the Jabba the Hutt movie role attributes are not necessary to convey imputations (c), (d), (e), (f) and (g).
Imputations (c) and (d) are anchored by the opening sentence, “Thanks to all people supporting a Queensland ICAC,” which would be understood by a reasonable reader
as referring to the Independent Commission Against Corruption. Corruption in the context of a public commission implies bad or improper behaviour, dishonesty, and a willingness to act without integrity for personal gain or an improper purpose in public office.
The plaintiff argues that imputation (d) is evident from the thought bubble, which shows the plaintiff contemplating influencing public officials, including Queensland Parliament members. The bags of money behind the figure imply ill-gotten gains that
would be lost if the plaintiff’s meetings with the government and the Speaker failed
to silence the fourth defendant. This suggests the plaintiff is acting dishonestly for personal gain. To a reasonable reader, the caricature indicates that the plaintiff is seeking to corruptly influence public officials. This level of corruption justifies the
call to “maintain the rage!” The plaintiff also contends that Imputation (c) follows
from imputation (d), as it involves covering up unethical actions. The depiction suggests that the plaintiff has benefited from dishonest gains and is trying to protect them.
Whilst it is tolerably clear that imputation (c) draws from the notion that corruption involves covering up improper actions and imputation (d) is derived from the thought
bubble’s words. I think it is an utterly unreasonable interpretation to attribute a return
of some personal improper benefit, gain or money in doing so to the plaintiff himself. It seems to me that the depiction of the plaintiff is as representative of the LGAQ body, that is, as the embodiment of the LGAQ, with its political support found in the
acronyms on the figure’s shirt. The embodiment is constraining the LGAQ’s ethics
manual, which sandwiches cash money, suggesting to a reasonable reader that the association, albeit under his leadership, is engaged in money-motivated unethical behaviour, which the plaintiff seeks to protect from unwelcome scrutiny by a corruption watchdog. In that sense, I think the publication is capable of conveying imputation (c) and did convey that imputation.
Imputation (d) is derived from the thought bubble’s words. The figure depicts the
plaintiff contemplating influencing public officials, including Queensland Parliament members, to oppose the creation of such a body at the urging of the fourth defendant
lest he “ruin everything” of the status quo. The bags of money behind the figure
depicting the acronyms “ALP” for the Australian Labour Party and “LNP” for the
Liberal National Party suggest not ill-gotten gains but the political funding protecting
the association’s interests. Again, I do not accept the plaintiff’s contention that it
represents personal ill-gotten gain by the plaintiff, but instead, it represents the unscrutinised political relationships and gain of the association. Nor do I accept that it implies to a reasonable reader that the plaintiff intended to act dishonestly and without integrity for personal gain, seeking to corruptly influence public officials. But it highlights the close relationship with, and perceived power and ease of access
to, the government and speaker to lobby against the fourth defendant’s use of his
position and mode for agitating for an anti-corruption commission. It follows that the figure depicts the plaintiff contemplating meeting public officials, including Queensland Parliament members, for an improper purpose to oppose the creation of
such a body at the urging of the fourth defendant lest he “ruin everything” of the status
quo for an improper purpose of protecting the associations unethical practices. In that sense, I think the publication is capable of conveying imputation (c) and did convey that imputation.
Imputation (e) is based on the caricature of the plaintiff holding a chain restraining the LGAQ Ethics Manual, depicted as a book-like figure. Chains symbolise slavery, leading a reasonable reader to infer that the plaintiff unethically subjugated the ethical standards the LGAQ should have provided to local government.
I accept the plaintiff’s argument regarding that imputation (f). It is based on the post’s statement, “Those in power rarely welcome increased scrutiny,” and the
accompanying caricature. The caricature depicts the plaintiff as a powerful figure
contemplating silencing “that bloody Rob Pyne” by speaking to the government and the Speaker. References to the LGAQ and the controversy over the plaintiff’s criticism of the fourth defendant’s use of parliamentary privilege further support this
interpretation. Therefore, the publication is capable of conveying imputation (f) and
did convey that imputation.
Imputation (g) follows from the words, “… but the ordinary decent people in
government roles (who are often the victims) need us to maintain the rage!” The word “victim” means a sufferer from an adverse action or agency. I agree with the
plaintiff’s submission that an ordinary reasonable reader would have inferred that
decent people in government were being adversely affected by “those in power,” a
class that included the plaintiff as the LGAQ executive head, and that is why they did not welcome increased scrutiny. The accompanying caricature would have reinforced this idea by illustrating what those in power did not want to be scrutinized: the fourth
defendant’s revelations under parliamentary privilege and the undermining of the
ethical standards the LGAQ should have provided to local government. But I do not accept, as being utterly unreasonable for the reasons already discussed for Imputation (c) & (d), the interpretation the resistance of scrutiny was to protect that the ill-gotten
gains (represented by the bags of money behind the figure’s tail). Nevertheless, with
that small reservation, I find that the publication is capable of conveying imputation
(g) and did convey that imputation.
Therefore, I find that the 1st Rob Pyne Publication was capable of, and did in fact convey, the imputations (c), (d), (e), (f) and (g).
2nd Rob Pyne Publication
“We all put our recyclables in the bin, doing the right thing. After
that, the truth is a disgrace! Corruption is rife and it is no surprise
that local government is at the heart of the crooked behaviour.Please watch this doc @
The plaintiff alleges that the following imputations are contained in the 2nd Rob Pyne publication:
(a) The plaintiff was at the heart of crooked behaviour; and (b) further and alternatively, the plaintiff contributed to corruption being rife.
I have already found that an ordinary reasonable reader is able to identify the plaintiff
in the 2nd Rob Pyne Publication as a key individual associated with “local government”, which is slated as being “at the heart of the crooked behaviour” where
“corruption is rife!”
Whilst the wording draws the reader to watch the Facebook report of the ABC program Four Corners and its wider context of improper recycling practices in local government, the publication must be read in the context of the surrounding discourse. It is made in the context of the call for the anti-consumption commission, use of parliamentary privilege, reactive posts and comments by others, and the 1st Rob Pyne Publication.
It seems to me to plainly follow that, both imputation (a) and (b) are capable, and in fact conveyed, by the 2nd Rob Pyne Publication.
3rd Rob Pyne Publication
“Those in power are the problem. Rather than attack the cause of
systemic corruption they are attacking and trying to discredit me.
The politics of ‘power and privilege’ by insider groups has
dominated for too long and it is time to smash it open!”
The plaintiff asserts that the following imputations are contained in the 3rd Rob Pyne:
(a)
the plaintiff was, with others, a member of insider groups, including the LGAQ, who had dominated for too long; and
(b)
further and alternatively the plaintiff was, with others, not prepared to attack the systemic cause of corruption; and
(c) further and alternatively the plaintiff was, with others, the problem; and (d)
further and alternatively, the plaintiff with others, deserved to be smashed open; and
(e)
further and alternatively, the plaintiff was facilitating and further and alternatively, allowing systemic corruption.
Again, context remains important to considering the alleged imputations, including the earlier publications by the fourth defendant, other posts and comments, and the continuing controversy regarding parliamentary privilege.
I have already found that an ordinary reasonable reader would identify the plaintiff in
the 3rd Rob Pyne Publication as being within one of “Those in power” who had publicly engaged in criticism of the fourth defendant, and therefore “Rather than
attack the cause of systemic corruption, they are attacking and trying to discredit
me”. He was also the head of one of the “insider groups” that long dominated with
“power and privilege” as described in the 3rd Rob Pyne Publication.
The last sentence of this post supports imputation (a), particularly considering the first two sentences. In this context, the LGAQ and its CEO, the plaintiff, could be seen by a hypothetical ordinary and reasonable reader of the Rob Pyne Facebook
pages as one of the “insider groups” that have “dominated for too long”. Therefore,
imputation (a) is capable, and in fact conveyed, by the 3rd Rob Pyne Publication.
As for imputations (b) and (e) the plaintiff argues that, due to the plaintiff’s criticism
of the fourth defendant in the course of the public controversy, which involves the plaintiff attacking the fourth defendant and necessarily trying to discredit him, these words were previously observed as identifying the plaintiff. However, as the argument goes, in the minds of the ordinary and reasonable reader of the fourth
defendant’s Facebook page, they also ascribe to the plaintiff in his doing so a desire
not to attack the systemic cause of corruption.
I disagree. It seems to me that the alleged imputations (b) and (e) could only arise from a strained, forced, or completely unreasonable interpretation, especially when considering the context of the public discourse, other posts, comments, and the
publication itself. In my view, the public discourse, including the plaintiff’s criticism, was focused on the fourth defendant’s reckless use of parliamentary privilege and not
a failure of preparedness to “attack the cause of systemic corruption” and not to
somehow facilitate or allow systemic corruption. Therefore, I do not believe that a jury could reasonably interpret the publication as conveying the imputations claimed by the plaintiff in (b) and (e). Consequently, I do not accept that these imputations are capable of being, or were actually, conveyed by the third Rob Pyne publication.
The first sentence of this post clearly supports imputation (c) through its literal
wording. The plaintiff is identified as one of “those in power” who collectively form “the problem.” Similarly, imputation (d) is derived from the literal words, “it’s time to smash it open,” by reference to the “insider groups,” including the LGAQ under the plaintiff’s leadership, who were engaging in the politics of “power and privilege.”
Therefore, imputations (c) and (d) are capable, and are in fact conveyed, by the 3rd
Rob Pyne Publication.4th Rob Pyne Publication “I have never dodged a bill or traded while insolvent in my life.
Never taken an overseas trip at ratepayer/taxpayer expense or taken money from developers. Those who want to silence me need to be held to account and these weak little men with big expense accounts
need to understand, “you are not scaring anyone” and people are
awake to you!”
The plaintiff asserts that the following imputations are contained in the 4th Rob Pyne publication:
(a) the plaintiff had acted in a way which inappropriately silenced the fourth defendant; and (b) further and alternatively, the plaintiff needed to be held to account; (c) further and alternatively, the plaintiff should be aware that people were awake to his wrongdoing.
The plaintiff emphasis that the context is important in determining the imputations
because of the regular readership of the fourth defendant’s Facebook page, including
the public controversy of him using parliamentary privilege, but also the proximate
1st, 2nd and 3rd Rob Pyne publications.
I have found that an ordinary reasonable reader is able to identify the plaintiff in the
4th Rob Pyne Publication as being within the class of “those who want to silence” the
fourth defendant, who “need to be held to account” and as a member of the class of
“weak little men” who “people are awake to”.
The plaintiff relies upon the third sentence of this post as the basis for imputations (a) and (b).
While I disagree that the imputation is derived from the wording “must be held to account”, it seems to me that “those who want to silence” the fourth defendant, which included the plaintiff, did so for the improper purpose of “scaring” the fourth
defendant and anyone of his supporters, then their intimidatory purpose is suggestive
of “inappropriate” conduct. Imputation (b) is capable of being conveyed by reference to the third sentence. Stating that the plaintiff, among others, “must be held to account”, as distinct from being called to account, suggests that the plaintiff must face
punishment or other forms of sanction or condemnation to account for past wrongful actions. In contrast, being called to account simply requires a person to explain their actions. Therefore, the 4th Rob Pyne Publications does have the capacity to convey, and did, in fact, convey the pleaded imputation (a) and (b). Imputation (c) is also,
therefore, capable of being conveyed by the last sentence that “people were a wake-
up to his wrongdoing”, for which the plaintiff “must be held to account”.
Therefore, the 4th Rob Pyne Publications does have the capacity to convey, and did convey the overlapping pleaded imputations (a), (b) and (c).
5th Rob Pyne Publication
“When will this government act on corruption? The evidence is
overwhelming. If the premier will not announce a Commission of
inquiry into corruption in government administration, the parliamentshould with true confidence and demand a state election. We must
stop the rot!”
The plaintiff alleges that the following imputations are contained in the 5th Rob Pyne publication are that the plaintiff:
(a) amongst others, the plaintiff was subject to overwhelming evidence of corruption; and (b) further and alternatively, the plaintiff, amongst others, ought because of that corruption, be the subject of government action; and (c) further and alternatively, the plaintiff, amongst others, was contributing to the rot of corruption.
Of course, the relevant context includes the public discourse of the fourth defendant’s
use of parliamentary privilege, the attribution of corruption and need for a corruption commission in the 1st Rob Pyne publications, other proximate posts and comments in
the fourth defendant’s public Facebook page, and the cumulation of the series of the
2nd 3rd and 4th Rob Pyne publications.
I have found that an ordinary reasonable reader to identify the plaintiff in the 5th Rob
Pyne Publication as a key individual “in government administration” about which
there is a call for the government to act on corruption and for the premier to announce
and inquiry into “corruption” to “stop the rot”.
It follows from the literal interpretation that imputations (a), (b) and (c) are capable of being conveyed, and were conveyed, by the 5th Rob Pyne publication.
Were the imputations conveyed in the publications defamatory of the plaintiff?
The test for defamatory matter is whether the published content is likely to make an ordinary reasonable person think less of the plaintiff, considering all aspects of a
person’s standing in the community.[34] While general community standards are not
part of the test, they may be relevant when assessing the impact of an imputation on
the plaintiff’s reputation, particularly for determining damages.[35]
I have found the fourth defendant’s publications conveyed the following imputations:
Publication Period Imputation 1st Rob Pyne 21/6/17 - (a) [not allowed] Publication 8/1/18 (b) [not allowed]
(c)
The plaintiff had overborne the ethical standards which the LGAQ should have provided to local government; and
(d)
The plaintiff as the CEO of the LGAQ, did not welcome appropriate scrutiny of himself or the LGAQ; and
(e)
The plaintiff as CEO of the LGAQ, contributed to ordinary decent people in government roles becoming victims by the misuse of power.
2nd Rob Pyne 7/8/17 - (a) The plaintiff was at the heart of crooked Publication 8/1/18 behaviour; and
(b)
The plaintiff contributed to corruption being rife.
3rd Rob Pyne 9/8/17 - (a) The plaintiff was, with others, a member of Publication 8/1/18 insider groups, including the LGAQ, who had
dominated for too long; and(b) [Not allowed]
(c) The plaintiff was, with others, the problem; and (d)
The plaintiff with others, deserved to be smashed open.
(e) [Not allowed]
4th Rob Pyne 10/8/17 - (a) The plaintiff had acted in a way which Publication 8/1/18 inappropriately silenced the fourth defendant;
and
(b) The plaintiff needed to be held to account; and (c)
The plaintiff should be aware that people were awake to his wrongdoing.
5th Rob Pyne 23/8/17 - (a) The plaintiff, amongst others, was subject to Publication 8/1/18 overwhelming evidence of corruption; and Publication Period Imputation
(b) the plaintiff amongst others, ought because of that corruption, be the subject of government action; and (c) the plaintiff, amongst others, was contributing to the rot of corruption.
In my view, each of the imputations found in the 1st, 2nd, 4th and 5th Rob Pyne Publications are likely to make an ordinary, reasonable person think less of the plaintiff, but I do not think so in relation to the imputations found in the 3rd Rob Pyne Publication.
The 1st, 2nd, 4th and 5th Rob Pyne Publications are sensationalist in tone and pregnant with insinuation and suggestion of improper conduct and wrongdoing, which invites readers to adopt a suspicious approach and repeatedly invites conjecture. Whereas, even amidst the negative context surrounding the publications, I think that an ordinary reasonable reader is sufficiently familiar with political workings to see that the imputations derived from the 3rd Rob Pyne Publication use a different tone for statements of broader political application and are unlikely to make an ordinary,
reasonable person think less of the plaintiff. This is because: “insider groups”
insinuate internal organisations (not individuals) who have an advisory influence on the political workings of government rather than carrying an improperness
connotation; “dominated for too long” is an observation about the groups’ effective
policy influence, again not an implication of wrongdoing, but a desire to disrupt that
dominance; “power and privilege” is widely used as a descriptor of those perceived
with higher social economic status who gain positions of authority, but without implying misuse of their entitled background; the publication makes general observations about the nature of the groups, to which the LGAQ belongs, without suggesting that the LGAQ or, and even less so the plaintiff, engaged in unethical or improper domination; and it is preferable to the legitimate role in government systems, rather than as a personal indictment of the plaintiff.
Therefore, the imputations in the 3rd Rob Pyne publication would likely be seen as
factual observations, rather than defamatory statements that could harm the plaintiff’s
reputation in the eyes of an ordinary, reasonable reader.
The fourth defendant, having raised no positive defences, is liable for defaming the plaintiff as found in respect of the 1st, 2nd, 4th and 5th Rob Pyne Publications,[36] and damages will be assessed based on all of the imputations found for each of those publications.
ASSESSMENT OF DAMAGES
By virtue of section 6(2) of the Defamation Act 2005 (Qld) (the Act), the operation of the general law in relation to the tort of defamation is not affected, except to the extent expressly or by necessary implication it provides otherwise. Subsection (3) provides that:
“Without limiting subsection (2), the general law as it is from time to
time applies for the purposes of this Act as if the Defamation Act 1889
had never been enacted.[37]”
Pursuant to s 34 of the Act, the amount of damages must reflect “an appropriate and rational relationship to the harm sustained by the plaintiff”. The section reflects the
three purposes of compensation at general law.
In Rogers v Nationwide News Pty Ltd [2003] HCA 52[38] Hayne J (Gleeson CJ and Gummow J agree) refer to Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44,[39] to affirm the three main purposes of damages in defamation: first, they provide consolation to the plaintiff for the personal distress and hurt caused by the publication; secondly (and often considered with the first), they offer reparation for the harm
inflicted on the plaintiff’s personal and professional reputation; and thirdly, they aim
to vindicate the plaintiff’s reputation by influencing the opinion of others.
All three purposes of consolation, reparation and vindication are relevant here and a single amount must be awarded to serve each purpose and there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
The recent Court of Appeal decision in Nine Network Australia Pty Ltd & Ors v Wagner & Ors[40] clarified the principles for awarding damages when multiple defendants are sued for multiple defamatory publications. The principle of indivisible harm was central to this case, as the harm caused by multiple defamatory publications was treated as one.
Here, applying those principles, the respective defendants should be classified as a separate tortfeasor, a joint tortfeasor, or several concurrent tortfeasors. Separate tortfeasors act independently, while joint tortfeasors collaborate in committing the defamatory act, and several concurrent tortfeasors cause indivisible harm through separate but related acts. Indivisible harm occurs when multiple acts contribute to a single, undivided injury that cannot be apportioned among the tortfeasors. In those circumstances, each tortfeasor will be liable for the entire harm if their conduct is a cause of that harm, regardless of whether they acted together or separately. The courts have consistently rejected the need for a global damages approach, instead supporting separate awards for different harms caused by each defendant. But, double recovery is not permitted, ensuring fair compensation for the plaintiff while preventing overlapping compensation for the same harm. Further, separate awards must be made for any aggravated damages (where all defendants do not jointly engage in the aggravating conduct) such that the same amount is not to be assessed against several concurrent tortfeasors for aggravating conduct.
Since the defendants’ respective and multiple applications are made in the context of
the broader Facebook discourse, I think that the first and fourth defendants are properly to be classified as several concurrent tortfeasors, each causing indivisible harm through their respective publications but avoiding double recovery. The
circumstances of the defendants’ numerous, disjointed, separate, and different
publications warrant separate awards of damages against each defendant and
disparate consideration of aggravated damages.
In the circumstances here, where the first and fourth defendants have now been
adjudged liable for the imputations, some damage to the plaintiff’s reputation is
presumed. Any allowance on account of consolation and reparation should reflect
the subjective impact of the defamation upon the plaintiff.
The assessment of damages in defamation is governed by the general principles of tort concerning causation and remoteness of damage.[41] In Carson v John Fairfax &
Sons Ltd,[42] McHugh J said in relation to damages being ‘at large’ that:
“No doubt the rough-and-ready process by which juries assess
damages in a defamation action is not one which appeals to the many sophisticated minds of the spreadsheet generation. It does not, as the speech of Lord Shaw makes plain, purport to be a scientific, or even a pseudo-scientific, process. There are no columns and rows into which the components of the verdict can be conveniently placed, no relationships which can be made the subject of mathematical formulas. The assessment depends upon nothing more than the good sense and sound instincts of jurors as to what is a fair and reasonable award, having regard to all the circumstances of the case. That is why the
damages are said to be ‘at large’.”
The plaintiff must show causation as a pre-condition for the recovery of substantial damages for a defamatory wrong. It is sufficient that wrongful conduct is just one of several conditions sufficient to produce that damage.[43] Causation is a factual question decided by common sense and experience.[44] The issue is whether the injuries and damage suffered by the plaintiff were caused or materially contributed to
by the defendant’s wrongful conduct.[45] A defamatory wrong need not be the sole or
predominant cause of damage; it is enough that it materially contributed to the damage.[46] Once the plaintiff shows causation, the evidential burden shifts to the defendant to disprove causation or entitlement.[47]
The plaintiff conceded that this case is less serious than Barilaro v Google LLC [2022] FCA 650 where the plaintiff, a former Deputy Premier of New South Wales, was awarded $675,000 for ordinary and aggravated compensatory damages. He was defamed in two YouTube videos produced by an individual and published by Google, who failed to remove the videos despite being notified of their defamatory content. These videos contained severe defamatory accusations, including corruption, perjury, blackmail, and theft. The relentless and abusive nature of the campaign left the plaintiff emotionally broken, leading to his resignation from Parliament. Despite the severe impact, the judgment does not note any medical evidence of a recognised psychiatric condition resulting from the defamation. The period between the first video and the judgment was nearly one year and nine months. While this case involves extensive publication and serious imputations, it is argued that the damages awarded in this case should not exceed the $675,000 awarded in Barilaro v Google LLC for ordinary and aggravated compensatory damages. This case provides no useful comparative value.
Likewise, the first defendant contrasted the circumstances of this case with that of Bauer Media Pty Ltd v Wilson (No 2) [2018] 56 VR 674, where damages were reduced and released on appeal to $600,000 for non-economic loss. This case also has no comparative value.
What damages ought to be awarded to the plaintiff against the first defendant?
[202] I assess damages against the first defendant for $283,355.00, comprising non-economic loss damages of $275,000.00 (including $55,000.00 for aggravated damages) and special damages of $8,355.00.
By s 58 of the Civil Proceedings Act 2011 (Qld), the plaintiff is entitled to interest on past loss up to judgment. The plaintiff contends for a modified interest rate of 3% per annum over the whole period from the commencement of the publication to the date of judgment. I agree.
I will award judgment accordingly, together with interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld), at the rate of 3% per annum to the date of judgment from 10 June 2017 for general damages being $61,004.79 and from 7 October 2017 for special damages being $1,771.72.
What damages ought to be awarded to the plaintiff against the fourth defendant?
[205] The case against the fourth defendant involved liability regarding five alleged defamatory publications and the assessment of any damages. I have found the defendant liable for four publications of and concerning the plaintiff.
[206] Accordingly, I assess damages against the fourth defendant for $128,798.50, comprising non-economic loss of $125,000.00 (including $25,000.00 for aggravated damages) and special damages of $3,798.00.
I will award judgment accordingly, together with interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld), at the rate of 3% per annum to the date of judgment from 21 June 2017 for general damages being $27,657.53 and from 7 October 2017 for special damages being $805.38.
INJUNCTION
Should a permanent injunction be made against the first defendant?
The plaintiff also seeks a permanent injunction against the first defendant in the exercise of discretion under s 69(1) of the District Court of Queensland Act 1967 (Qld).
[209] The court's decision is discretionary and does not solely depend on proving the imminence of the material acts on the balance of probabilities. While proof on the balance of probabilities that the complained acts will occur is generally sufficient for specific relief, the fundamental enquiry is the extent of hardship caused by leaving the plaintiff to seek damages or reapply if the threat increases. This consideration depends not only on the probability of the acts occurring but also on their gravity and the degree of damage or inconvenience they would cause.[97]
Relevant considerations may include:[98] the absence of an existing infringement is not irrelevant and may complicate proving sufficient risk; if the likelihood of injury is not high, relief will be refused, leaving the applicant to other remedies; the applicant must show a substantial risk, beyond an insignificant or illusory risk; greater potential
prejudice or inconvenience increases the Court’s willingness to intervene despite
uncertainties; the Court must be convinced of sufficient risk to justify an injunction; the decision is discretionary, weighing the probability and gravity of the acts, potential damage, respondent's hardship, and any inequitable conduct by the applicant; evidence of intention to commit the acts is valuable but not decisive; other evidence may also be significant; previous breaches or stated intentions can help establish risk, but their weight depends on the case; the first defendant's right to free speech within limits; the ease of internet republication of defamatory material; avoiding multiple litigations by restraining repeat unlawful conduct; the burden imposed on the plaintiff by s 23 of the Act; the lack of the first defendant's undertaking not to republish defamatory imputations.
There is a risk that the first defendant will publish similar defamatory material in the future. This risk is evidenced by 38 separate publications, some of which occurred after the proceedings began, and the fact that nine of these publications remain undeleted. This ongoing infringement indicates a likelihood of continued defamation. Additionally, the first defendant has not adequately apologised for the actions, nor has there been an undertaking not to republish defamatory content. The first defendant continued to assert that the plaintiff has engaged in malicious misconduct by bringing this proceeding, suggesting an ongoing risk of defamatory behaviour. The future intentions and capacity to continue using Facebook are also uncertain. The first defendant has expressed a desire to reconfigure the social media presence, but a headstrong nature makes it prone to repeating defamatory actions. The first
defendant’s mental health issues have further compromised her ability to delete
defamatory matters in a timely way. The presence of a permanent injunction could assist in resisting the temptation to defame the plaintiff in the future, even if mental health deteriorates. It is significant that continued defamatory publications would
impede the plaintiff’s mental health recovery. Without an injunction, the plaintiff
would face the burden of pursuing further legal action, which may be unfruitful given the likelihood of future publications and the potential difficulty in obtaining damages.
On the other hand, the first defendant has taken significant steps to change behaviour. Many of the defamatory posts have been deleted amidst complexities, and there has not been any publication related to the plaintiff since late 2019, demonstrating a consistent change in behaviour over the past four years. These proceedings have also been a significant source of strain and restraint. The first defendant misguided herself in her unrepresented capacity but seemed to act on legal advice when available and has made efforts to delete the complained posts. I accept that her continued publications from late 2019 was made under duress and during a period of mental health decline. The first defendant accepts a need to focus on health and personal well-being, about which she has shown genuine commitment during this proceeding, albeit also a period of mental health decline. The first defendant has apologised for
the 14th Lyn O’Connor publication and expresses an intent to delete any remaining
defamatory material when her health permits. The evidence and conduct since 2019 show a commitment to living a different life, free from the defamatory behaviour that led to the current proceedings.
Weighing up these matters, it seems to me that the risk and gravity of the potential harm to the plaintiff justifies the imposition of an injunction, which would not impose an unfair burden on the first defendant but rather prevent the commission of wrongful acts on their part.
Accordingly, I will allow the plaintiff’s claim for a permanent injunction to prohibit
future defamatory publication of and concerning the plaintiff.
COSTS
I will hear the parties on the terms of final orders, including the calculation of interest and the disposition of costs, which ought to follow the event unless either party seeks a different order within 14 days of this judgment.
ORDERS
For these reasons, I will give judgment to the plaintiff against the first and fourth defendants and make the following orders:
1.
Judgment for the plaintiff against the first defendant in the amount of $346,131.51 including interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) at the rate of 3% per annum to the date of judgment from 10 June 2017 on general damages of $61,004.79 and special damages from 7 October 2017 of $1771.72.
2.
The first defendant is permanently restrained from directly or indirectly publishing or causing to be published any of the matters, or substantially to the same effect as those matters, subject of her publications in this proceeding.
3.
Judgment for the plaintiff against the fourth defendant in the amount of $157,261.41 including interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) at the rate of 3% per annum to the date of judgment on general damages from 21 June 2017 of $27,657.53 and on special damages from 7 October 2017 of $805.38.
4.
Unless either party applies for a different costs order within 14 days of this judgment, I will also order that the first defendant and fourth defendant will pay
the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on
the standard basis of the proceedings against each of them, respectively.
5. I will hear the parties as to costs.
[1] I disallowed pleaded imputations (a) and (b) in the 1st Rob Pyne Publication, and pleaded imputations (b)
and (e) of the 3rd Rob Pyne Publication.
[2] Dow Jones & Co v Gutnick (2002) 210 CLR 575 at [26], [27] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[3] Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd (2018) 97 NSWLR 739 at [58] per McColl JA (Beazley P agreeing).
[4] Consolidated Trust Co Ltd v Brown (1949) 49 SR (NSW) 86 at 91 per Jordan CJ (Street J agreeing) and at 92 and 93 per Davidson J; Cross v Denley (1952) 52 SR (NSW) 112 at 116 per Owen J (Street CJ and Herron J agreeing); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639 and 640 per Mason and Jacobs JJ.
[5] Morgan v Odhams Press Ltd (1971) 2 All ER 1156 at 1160 and later at 1162-1163 per Lord Reid, at 1190 per Lord Morris, at 1184 per Lord Pearson, followed in the MSW of Appeal in Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 at 354 per Moffitt P, at 362-364 per Hutley JA, at 372-374 per Samuels JA, and affirmed in Plymouth Brethen (2018) 17 NSWLR 739 at [70], [74], [75] and [76] per McColl JA (Beazley P agreeing).
[6] David Syme & Co v Can (1918) 25 CLR 234 at 238 per Isaacs J.
[7] Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 848 at 364-365 per Hutley JA and at 371-375 per Samuels JA.
[8] Hyams v Peterson (1991) 1 NZLR 711 at 720-721; John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 708-709 per Mahoney JA
[9] Dutton v Bazzi [2021] FCA 1474 at 2[20]-[28].
[10] Trkulja v Google LLC (2018) 92 ALJR 619.
[11] Slayter v Daily Telegraph Co Ltd (1908) 6 CLR 1 at 7 per Griffith CJ (O’Connor and Isaacs JJ agreeing).
[12] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR at [10] 1716 per Gleeson CJ, McHugh,
Gummow and Heydon JJ.
[13] Jones v Skelton (1963) 3 All ER 952 at 958 per Lord Morris.
[14] Rubber Improvement Ltd v Daily Telegraph Ltd (1964) AC 239 at 258 per Lord Reid.
[15] John Fairfax Publications v Rivkin (2003) 77 ALJR 165 at [26] per McHugh J.
[16] Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [90]-[92].
[17] Morgan v Odhams Press Ltd (1971) 2 All ER 1156 at 1170 per Lord Morris and at 1184 per Lord Pearson; and Dutton v Bazzi [2021] FCA 1474 at [19], not disturbed on appeal on this point.
[18] Morgan v Odhams Press Ltd (1971) 2 All ER 1156 at 1162 and 1165 per Lord Reid.
[19] Stocker v Stocker (2020) AC 593 at [47] per Lord Reed, Lady Black, and Lords Briggs (Kitchin agreeing). CF. Dutton v Bazzi [2021] FCA 1474 at [23]-[24].
[20] Plymouth Brethren (2018) 97 NSWLR 739 at [75] per McColl JA (Beazley P agreeing).
[21] Morgan v Odhams Press Ltd (1971) 2 All ER 1156 at 1162 per Lord Reid.
[22] Morgan v Odhams Press Ltd (1971) 2 All ER 1156 at 1163 per Lord Reid.
[23] Chakravarti v Adelaide Advertiser (1998) 193 CLR 519 per Kirby J at [134] item 4.
[24] John Fairfax Publications v Rivkin (2003) 77 ALJR 165 per McHugh J at [26].
[25] Cf. Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [35]
[26] John Fairfax Publications v Rivkin (2003) 77 ALJR 165 per McHugh J at [26].
Gummow and Heydon JJ.
[29] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [9] per Gleeson CJ, McHugh, Gummow and Heydon JJ.
[30] Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505-506 per Brennan J (Gibbs, Stephen
and Wilson agreeing) cited with approval in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
at [7].
| [31] Trkulja v Google LLC (2018) 92 ALJR 619 at [32]; | Amalgamated Television Services Pty Ltd v Marsden |
(1998) 43 NSWLR 158 at 165; Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [34] per Flanagan J.
[32] Slim v Daily Telegraph (1968) 2 QB 157 at 173; Ten Group v Cornes (2012) 114 SASR 46 at [43]-[50]
per Kourakis CJ (Gray J agreeing); Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at
[73]; Dutton v Bazzi [2021] FCA 1474 at [17].
[33] Ten Group v Cornes. (2012) 114 SASR 46 at [171], [175], [176], [193]-[197] and [214]-[219] per Blue J.
[34] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [2] – [7], [36] per French CJ, Gummow,
Kiefel and Bell JJ.
[35] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [41] per French CJ, Gummow, Kiefel and Bell JJ.
[37] Defamation Act 2005 (Qld), s 6(3).
[38] Rogers v Nationwide News Pty Ltd [2003] HCA 52
[39] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
[40] Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221 at [39], [51]-[65], [76]-[82]
referring to Dingle v Associated Newspapers (1961) 2 QB 162 and Glanville Williams, “Joint Torts and
Contributory Negligence”, London, 1951. See also Television New Zealand Ltd v Ah Koy (2002) 2 NZLR
616 at [31].
[41] Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA at 244 per McColl JA (Spigelman CJ,
Beazley JA, McClelland CJ in CL and Bergin CJ in Eq. agreeing)
[42] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 115.
[43] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 509 per Mason CJ. Medlin v State Government Insurance Commission 1995) 162 CLR 1 at 7 per Deane, Dawson, Toohey and Gaudron JJ.
[44] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 522 per Mason CJ (Toohey and Gaudron JJ
agreeing) at 515 and per Deane J.
[45] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 514 per Mason CJ, Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 20 per McHugh J, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [134] per Kirby J.
[46] Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at [177] per Kirby J, March v Stramare (E &
MH) Pty Ltd (1991) 171 CLR 506 at 509 per Mason CJ, at 524 per Deane J and at 530 per McHugh J
(Tooney J agreeing with Mason CJ and Gaudron J agreeing with Mason CJ and Deane J).
[47] Chappel v Hart (1998) 195 CLR 232 at [93] item 5 (on 271) and item 8 (on 273 and 274) per Kirby J.
[48] Broome v Cassell & Co Ltd [1972] AC 1027
[49] Broome v Cassell & Co Ltd [1972] AC 1027 at [1125]
[50] Carson v John Fairfax & Sons Ltd (1993) 113 ALR 577 at 623
[51] Cf. Bauer Media Pty Ltd v. Wilson (No. 2) (2018) VR 674; Nationwide News Pty Ltd v. Rush [2020]
FCAFC 115 at [442] to [468] per White, Gleeson and Wheelahan JJ; and Wagner v. Nine Network
Australia & Ors [2019] QSC 284 at [245] per Applegarth J.
[52] Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284 at 208]-[210] and [338]-[340].
[53] Sierocki & Anor v. Klerck & Ors (No. 2) [2015] QSC 92 at [36].
[54] Rogers v. Nationwide News Pty Ltd (2003) 216 CLR 327 at [67] per Hayne. Broome v. Cassell & Co.
(1972) AC 1027 at 1125 per Lord Diplock, at 1070-1072 per Lord Hailsham; Channel Seven Sydney Pty Ltd v. Mahommed [2010] NSWCA 355 at [220] to [222] and [236] per McColl JA (Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in EQ agreeing).
[55] Carson v John Fairfax & Sons Ltd and Ali v Nationwide News Pty Ltd. [2008] NSWCA 183 at [71] per
Tobias and McColl JJA.
[56] McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86 at 107 per Diplock LJ.
[57] Broome v Cassell & Co, (1972) AC 1027 at 1071 per Lord Hailsham; John Fairfax & Sons Ltd v Kelly
(1987) 8 NSWLR 131 at 136; Baffsky v John Fairfax & Sons Pty Ltd (1991) 106 FCR 21 at 55; Humphries v TWT Ltd (1993) 113 FLR 402 per Miles CJ at 418; Wagner v Nine Network [2019] QSC 284 per Applegarth J at [1].
[58] Cerrutti v Crestside Pty Ltd (2016) 1 Qd.R 89 at [35] per Applegarth J (McMurdo P and Gotheson JA
agreeing.
[59] Broome v Cassell & Co (1972) AC 1027 at 1125 per Lord Diplock; Coyne v Citizen Finance Ltd (1991)
172 CLR 211 at 241 per McHugh J; Humphries v TWT Ltd (1993) 113 FLR 402 at 416 and 417 per Miles
CJ; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [72] per Tobias JA and McColl JA.
[60] Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524; Rigby v Associated Newspapers Ltd
(1969) 1 NSWLR 729 at 738 per Walsh JA; Singleton v Ffrench (1986) 5 NSWLR 425 at 442 per McHugh
JA; Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 508 – 510 per Hunt J per Abadee A-JA
(Sheller JA and Simos A-JA agreeing).
[61] Mirror Newspapers v Jools (1985) 5 FCR 507 at 510, Rigby v Associated Newspapers (1963) 64 SR(NSW) 34 PER at 36-57 Manning J.
[62] Cf. Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383 at 389 and 390 per Barwick CJ, at 391 and 392 per McTiernan J, J at 393 per Menzies, at 402, 404 and 405 per Windeyer J and at 414 per Walsh J, Tame v New South Wales (2002) 211 CLR 317 at 193 per Gummow and Kirby JJ and at [44] per Gaudron J agreeing; Chester v Waverley Corporation (1939) 62 CLR 1 at [26] per Evatt J; Neall v Watson (1960) 34 ALJR 364 at 367L per Dixon CJ, McTiernan, Kito, Menzies and Windeyer JJ, Commonwealth v McLean (1996) 41 NSWLR 389 at 406D to E per Handley JA and Beazley JA (Santow A-JA agreeing).
[63] Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 234 per Toohey J (Dawson and McHugh JJ agreeing).
[64] Clark v Ainsworth (1996) 40 NSWLR 463 at 472A – 475C.
[65] Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [82] per Tobias and McColl JJA.
[66] Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1414] to [1419] per Beazley, Giles and Santow JJA.
[67] Broome v Cassell & Co, (1972) AC 1027 at 1071 per Lord Hailsham; John Fairfax & Sons Ltd v Kelly
(1987) 8 NSWLR 131 at 136; Baffsky v John Fairfax & Sons Pty Ltd (1991) 106 FCR 21 at 55; Humphries v TWT Ltd (1993) 113 FLR 402 per Miles CJ at 418; Wagner v Nine Network [2019] QSC 284 per Applegarth J at [1].
[68] Cerrutti v Crestside Pty Ltd (2016) 1 Qd.R 89 at [35] per Applegarth J (McMurdo P and Gotheson JA
agreeing.
[69] Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 254F to 255D
[70] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at p. 60 per Mason CJ, Deane, Dawson and Gaudron JJ.
[71] Amalgamated Television Services v Marsden [2002] NSWCA 419 at [1371].
[72] Allsopp v Incorporated Newsagencies Co. Pty Ltd (1975) 26 FLR 238 at 248 per Blackburn J.
[73] A. v IPEC & Crew (1973) VR 39 at [47] per Menhennit J.
[74] Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 per Hunt J at 483.
[75] Holland v O’Connell (1984) A def R 40,149 at 40,155 per Southwell J.
[76] Cerutti v Crestside Pty Ltd (2014) QCA 33 at [29] per Applegarth J (McMurdo P and Gotterson JA
agreeing).
[77] John v MGN Ltd [1997] Q.B. 586 (CA) at 607 per Bingham LJ. Cf. Greville v Wiseman (1967) NCLR
795 at 795, 800-801.
[78] Moit v Bristow [2005] NSWCA 322, which passage was, again, cited with approval in Channel 7 Sydney
Pty Ltd v Mahomed [2010] NSWCA 335 at [68].
[79] Banks v Cadwalladr [2022] EWHC 1417, at [50](viii).
[80] Cf. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [36]; and O’Hara v Sims [2009]QCA
186 at [33].
[81] Wagner v Nine Network [2019] QSC 284 at [173], [174], [219]-[226] per Applegarth J, not disturbed on
appeal on this point, Wagner v Nine Network [2020] QCA 221.
[82] Banks v Cadwalladr [2022] EWHC 1417, at [50](xii).
[83] Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at [217] per Kaye J.
[84] Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 at [88] and [89] per Gummow J.
[85] Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 at [89] per Gummow J.
[86] Cf. Higgins v Sinclair [2011] NSWSC 163 at [216] to [218]; Cantwell v Sinclair [2011] NSWSC 1244 at
[168] to [169]; Polias v Ryall [2014] NSWSC 1692 at [95] to [97] and Hallam v Ross [2012] QSC at [39].
[87] Cf. Wagner v Nine Network [2019] QSC 284 at [185]-[195], and where a separate award was required by
appeal in Wagner v Nine Network [2020] QCA 221 at [65]-[70] per Jackson J (Morrison and Mullins JJA
agreeing).
[88] Cerutti v Crestside Pty Ltd 2016] 1 Qd R 89 at [37]; citing Costello v Random House Pty Ltd (1999) 137
ACTR 1, at 46
[89] Triggell v Pheeney (1951) 82 CLR 497 at 514; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at
71, 72; Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [40]; Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 114; Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59(h)] citing Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348 at [116] applied in Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [739]-[745] (not disturbed on appeal Harbour Radio Pty Ltd v Wagner Harbour Radio Pty Ltd v Wagner (2019) 2 QdR 468.
[90] Triggell v Pheeney [1951] 82 CLR 497 at 514
[91] Praet v Graham [1889] 24 QBD 53 at 55; Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord
Hailsham.
[92] Cerutti v Crestside Pty Ltd 2016] 1 Qd R 89 at [37]; Triggell v Pheeney (1951) 82 CLR 497 at 514.
[93] Cerutti v Crestside Pty Ltd 2016] 1 Qd R 89 at [39]; citing Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151.
[94] Browne v Dunn (1893) 6 R 67
[95] McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104 per Pearson LJ.
[96] Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [47]- [49] per Applegarth (McMurdo P and Gotterson JA
agreeing).
[97] Spry ICF “The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and
Equitable Damages”
[98] Apotex v Servier (No. 2) (2012) 293 ALR 272 at [30], [32]-[43], [52], [69] & [90]; Phillips v Robab Pty
Ltd [2014] NSWSC 1520 per Rothman J at [182].
Judge DP Morzone KC
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