Hockings v Lynch & Adams

[2022] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION:

Hockings v Lynch & Adams [2022] QDC 127

PARTIES:

PENNY HOCKINGS

(Plaintiff)

v

MICHELLE LYNCH

(First Defendant)

And

ALISON ADAMS

(Second Defendant)

FILE NO:

D284/19

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

6 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25, 26, 27 and 28 May 2021

JUDGE:

Dann DCJ

ORDER:

1.   The first defendant pay the plaintiff damages in the sum of $140,000 plus interest in the amount of $12,250

2.   The second defendant pay the plaintiff damages in the sum of $50,000 plus interest in the amount of $4,375

3.   The first defendant and the second defendant jointly pay the plaintiff damages in the sum of $25,000 plus interest in the amount of $2,187.50

4.   The defendants are permanently restrained, whether by themselves, their agents or otherwise, from continuing to publish, publishing, causing to be published, encouraging, requesting or enabling to be published (including by responding to questions or requests for comments from others) by any means whatsoever any comments or images about the plaintiff to the same or substantially the same effect as the First, Fourth to Twenty First and Twenty-Third to Twenty-Fourth occasions

CATCHWORDS:

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – PARTICULAR STATEMENTS – IMPUTATIONS – where the plaintiff alleged twenty four separate imputations were defamatory – where the alleged imputations were Facebook comments and one on Twitter – whether each of the imputations is defamatory

DEFAMATION – PUBLICATION – GENERALLY – INTERNET PUBLICATIONS – SOCIAL MEDIA – where the plaintiff’s claim related to publication of comments made on Facebook and Twitter – where some of the Facebook pages were private and others were in the public domain - where features of social media must be considered – where defendants admit publication in locations where defamatory imputations arose - where features of social media are part of the context in which imputations are read – whether there has been publication

DEFAMATION – PUBLICATION – EXTENT OF PUBLICATION – GRAPEVINE EFFECT - where the plaintiff broadly claimed each publication had been made to hundreds of people – where evidence that some of the original posts were liked, commented or shared – where it was not possible to determine how many of those persons had in fact seen the comments the subject of the proceeding – whether the grapevine effect arises out of facts

DEFAMATION – JUSTIFICATION – GENERALLY – WHETHER PLEA ESTABLISHED – where defendants contended partial plea of justification to imputations – where the plea was based on three grounds – whether the plea is established

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – where plaintiff accepted there was no specific evidence of harm being done to her personal and business reputation – where plaintiff claimed hurt to feelings – where some evidence members of the community did not think less of her – whether vindication is required 

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS TO BE CONSIDERED – AGGRAVATION – PLEA OF JUSTIFICATION – where defendants raised plea of justification – where the defence of justification is not made out – where the plaintiff submits persistence of the defence is an aggravating feature – whether the persistence of the plea is an aggravating feature

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS TO BE CONSIDERED – AGGRAVATION – CONDUCT OF THE PARTIES – where both defendants had the opportunity to apologise prior to the trial – where both defendants made an apology on the final day of the hearing after closing submissions – where the plaintiff acknowledged the apology as unequivocal and wholehearted – whether apology at the conclusion of the trial is sufficient to not aggravate damages

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS TO BE CONSIDERED – AGGRAVATION – WHETHER FACTS SHOWING MALICE – where defendants denied the posts were to diminish the plaintiff – where the imputations were personally hurtful, defamatory and generally demeaning – where the defendants made allegations of fraud – whether aggravated damages should be awarded

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – GRAPEVINE EFFECT – where the publications were on social media - where the first defendant gave evidence the posts were no longer publicly available – where the second defendant was not asked if the posts remained current – whether the grapevine effect is relevant to assessment of damages for ongoing publication 

LEGISLATION:

Civil Proceedings Act 2011 Queensland, section 58

Defamation Act 2005 Queensland, sections 8, 20, 34, 35, 36, 38, 39, 49

CASES:

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Armstrong v McIntosh (No 2) [2019] WASC 379

ASIC v Goldsky Global Access Fund Pty Ltd & Ors [2019] QSC 114

Atholwood v Barrett [2004] QDC 505

Barach v University of New South Wales [2011] NSWSC 99

Bolton v Stoltenburg [2018] NSWSC 1518

Brigginshaw v Brigginshaw (1938) 60 CLR 336

Broome v Cassell & Co Ltd [1972] AC 1027

Brose v Baluskas & Ors (No 6) [2020] QDC 15

Cables v Winchester [2018] VSC 392

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89

Chapman and Anor v Australian Broadcasting Commission (2000) 77 SASR 181

Cripps v Vakras [2014] VSC 279

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575

Farquhar v Bottom [1980] 2 NSWLR 380

Fraser v Business News Group Pty Ltd [2018] VSC 196

French v Frazer [2015] NSWSC 1807

Johnston v Aldridge [2018] SADC 68

Monroe v Hopkins [2017] EWHC 433 (QB)

Nine Network Australia Pty Ltd v Wagner [2020] 6 QD 64

O’Reilly v Edgar [2019] QSC 24

Palmer Bruyn & Parker v Parsons (2001) 208 CLR 416

Penton v Calwell (1945) 70 CLR 250

Polias v Ryall [2014] NSWSC 1692

Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139

Radio 2UE Sydney Pty Ltd v Chesterton (2001) 238 CLR 460

Sierocki and Anor v Klerck and Ors (No 2) [2015] QSC 92

Stocker v Stocker [2020] AC 593

Triggell v Pheeney (1951) 82 CLR 497

Wagner and Ors v Harbour Radio Pty Ltd and Ors [2018] QSC 201

Wagner and Ors v Nine Network Australia Pty Ltd and Ors [2019] QSC 284

Watney v Kencian [2018] 1 Qd R 407

Webster v Coles Myer Ltd [2009] NSWDC 4

Zaia v Eshow [2017] NSWSC 1540

Defamation Law in Australia, 3 ed 2017

COUNSEL:

A Nelson for the Plaintiff

The First and Second Defendants appeared on their own behalf, assisted by Ms Kate Lynch

SOLICITORS:

Cronin Miller for the Plaintiff

The First and Second Defendants appeared on their own behalf

Introduction

1. Ms Penny Hockings complains about 24 separate comments, or series of comments, in posts on Facebook (or in one instance Twitter) made by either or, in some cases both, of the defendants, Ms Michelle Lynch and Ms Alison Adams. The posts were made over the period from 28 October 2018 to 6 July 2019.[1] There is no dispute that the posts were published, although there is a dispute as to the extent of that publication.  To use neutral language, I will refer to each of the posts or series of posts as an “occasion”. Ms Hockings alleges 127 imputations arise from the 24 occasions.

   [1]Paragraphs 6 and 150 of the Statement of Claim (SOC)

2. The majority of the occasions[2] were made on a Facebook page known as the Relocate Kingscliffe Hospital from State Significant Farmland Incorporated Association Facebook Page (Relocate FB Page). The Relocate FB Page was a common interest user group page which was visible to all internet users and had 3913 followers, including Ms Michelle Lynch and Ms Allison Adams.  It was a page where people could express views about the proposed location of the new hospital.   Ms Adams was part of the core Relocate group, she was involved in forming the association, and, for a period of time, she was involved in administration and moderating the Facebook page for Relocate.[3]

   [2]The 1^st, 3^rd, 5^th, 7^th, 8^th, 10^th - 18^th, 22^nd and 23^rd occasions

   [3]T1-74 ll 14-15 [26 May 2021] The transcript for Day 3 of the trial was unhelpfully also numbered as Day 1

3. Three of the posts[4] were made on the Tweed Underground Facebook Page (Tweed Underground FB Page), another Facebook page of which Ms Adams was the creator, owner and administrator and of which Ms Lynch was a member.

   [4]The 19^th, 21^st and 24^th occasions

4. Ms Lynch posted:

   (a)one comment, the Second occasion, to the ABC North Coast Facebook Page; 

   (b)one comment, the Fourth occasion, to the Tweed Daily News Facebook Page; 

   (c)one series of comments, the Sixth occasion, to the Bill Fenlon-Greens candidate for Tweed Facebook page; and

   (d)one post, the Twentieth occasion, to a Facebook page in her own name (of which she was the creator, owner and administrator).

5. Ms Lynch sent a number of comments (comprising the Ninth occasion), via Facebook Messenger, to a Facebook user identified as Allyson Maxwell.

6. Ms Adams uploaded one comment, the Twenty-Fourth occasion, to the Tweed Dirt Twitter Account. She was the creator, owner and administrator of this Twitter account, which was visible to all internet users and, according to the pleaded case, had 52 followers.

7. The first defendant, Ms Lynch was the publisher of the majority of the occasions.[5]  The second defendant Ms Adams was the publisher of the  22^nd and 23^rd occasions. The defendants were jointly the publishers of the 1^st, 11^th, 16^th and 17^th occasions.

   [5]The 2^nd-10^th, 12^th-15^th and 18^th-19^th occasions

8. The posts occurred in a factual backdrop of two main issues and a meeting between the plaintiff and the first defendant on 4 October 2018.  

9. The first issue was the community debate concerning the location for a new hospital for the Tweed/Bryon region (the hospital issue). The New South Wales State government had announced a site for the location of a new hospital for the Tweed Valley.  Whilst the chronology for that is hazy in the material before the Court, it appears that was some time in 2017 or 2018.  People in the community were for or against the site which had been chosen.[6] Broadly, the plaintiff was a member of the group which supported the proposed site, whilst each of the defendants was a member of the group which opposed the location which had been chosen. The latter group was known as the Relocate Group and their public Facebook Page, the Relocate FB Page, was the page on which a significant number of the complained of comments appeared.

   [6]T1-34 ll 42-43

10. Feelings were obviously high in the community about the hospital issue. Ms Hocking was the administrator of the “Support our Hospital” group, which was a private Facebook group for community members who supported the proposed site for the hospital.[7]  Ms Hockings said that she left the very first public community meeting held at Cudgen Leagues Club, which the project director for the Tweed Valley Hospital attended and where there were probably 150/200 people in the room, because she was disgusted in the behaviour that went on in it.[8] Her evidence also was that it would have been naïve to think that there weren’t people in the private Support our Hospital Group who were actually supportive of Relocate and she was confident there were some people who were members of both groups.[9]

    [7]T1-34 ll 35-43, T1-35 ll 1-2

    [8]T1-66 ll 13-21

    [9]T1-67 ll 3-7

11. Ms Lynch was surprised that the new Tweed Hospital was to be built on farmland and anxious about what this all meant for the community. She was baffled why this area, which had State significant protection, was to be developed.  She said that during this time, the community became mistrustful of each other, anger grew and those with opposing views turned on each other.  Neighbours turned on each other and long-time friendships were ruined.[10]  She decided to step up and fight for the farmers as she had fears of future development.[11]

    [10]T1-29 ll 39-46 [26 May 2021]

    [11]T1-73 ll 1-2 [26 May 2021]

12. Ms Adams, at the time a scientist in crop genetics, was motivated by her work to become involved in the Relocate movement.[12]  She became involved in Relocate after she became aware, on social media, of the decision to relocate the hospital and she was contacted because she had been discussing issues concerning the use of farmland for cropping purposes.[13]  

    [12]T1-73 ll 39-43 [26 May 2021]

    [13]T1-73 ll 44-46 [26 May 2021]

13. The second issue was the collapse of a financial advisory or investment firm generally referred to in this proceeding as Goldsky. The plaintiff was the chief foundation officer and a director of a charity called the “Ken and Jane Grace Foundation” (charity). Put at issue by the defendants in their public comments was whether the charity or the plaintiff was involved in some way in dealings of Goldsky.

14. An account of the conduct of Goldsky Global Access Fund Pty Ltd, Goldsky Asset Management Australia Pty Ltd and Goldsky Investments Pty Ltd can be found in the decision of Justice Flanagan in ASIC v Goldsky Global Access Fund Pty Ltd & Ors [2019] QSC 114. The following points from the Supreme Court’s decision assist in understanding the issues in the defamation proceedings before me:

    (a)on 1 July 2017, an entity called Goldsky LLC commenced operating an unregistered managed investment scheme in Australia, called the “Goldsky Global Access Fund”;[14]

    (b)on 29 October 2018 the Supreme Court made interim orders freezing the assets of the first to fourth respondents and appointing Mr Anthony Castley as receiver for the first to fourth respondents. These orders were made on the basis of concerns that the respondents were breaching provisions of the Corporations Act 2001 (Cth), including carrying on a financial services business without an Australian Financial Services Licence;[15]

    (c)the receiver’s report provided on 10 December 2018 identified an estimated short fall of $12,547,904 between investor funds paid into the Goldsky bank accounts and repayments to investors;[16] and

    (d)Kenneth Charles Grace was the sole director and a shareholder of the Goldsky entities.[17]

    [14][2019] QSC 114 at [15]

    [15][2019] QSC 114 at [16]

    [16][2019] QSC 114 at [18]

    [17][2019] QSC 114 at [5]

15. It is important to note at the outset of these reasons that:

    (a)neither the charity nor Ms Hockings is mentioned in the Supreme Court’s decision; and

    (b)there is no suggestion in any of the evidence before me that Ms Hockings had anything to do with the daily operation of Goldsky or any decisions made in relation to the investment of its investors’ funds.  

16. There was, however, a coalescence in timing in the two issues, in that as concerns about the Goldsky entities started to become public knowledge, community debate about the site chosen for the hospital had been raging for some time.

17. The plaintiff’s case proceeded on the basis that a particularly serious aspect of this litigation was that the raising of the plaintiff’s possible involvement in the foundation issue on the Relocate FB Page was done purposefully by each defendant and to seriously damage the plaintiff’s reputation in the debate about the hospital issue. 

18. I deal with the 4 October 2018 meeting below.

19. In setting the scene for the judgment which follows at the outset the point is that the law of defamation seeks to strike a balance between, on the one hand, society's interest in freedom of speech and the free exchange of information and ideas (whether or not that information and those ideas find favour with any particular part of society) and, on the other hand, an individual's interest in maintaining his or her reputation in society free from unwarranted slur or damage.[18]

    [18]Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ

20. The background factual matrix to this case undoubtedly involved issues of concern to the community where all the participants in this litigation lived.  Those issues were ones about which views could legitimately differ.  There were and are clear benefits to how issues which raise matters of genuine public debate can be canvassed through mechanisms such as Facebook Groups. Such discussion needs, however, to focus on the issue and not the person behind the post in question.  It needs to be respectful, accurate and temperate.

21. The issues which have to be determined in the proceedings are:

    (a)whether the comments or series of comments comprising each of the 24 occasions contained the imputations alleged by the plaintiff and if so, whether they are defamatory;

    (b)whether there is a defence of justification arising in respect of a number of the occasions;

    (c)the extent of publication of each of the comments or series of comments comprising the 24 occasions (including the operation of the grapevine effect) which the Court finds to be defamatory;

    (d)what damages, if any, flow; and

    (e)should there be an award of aggravated damages?

22. I have determined:

    (a)the first defendant defamed the plaintiff on the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Eighteenth, Nineteenth, Twentieth and Twenty First occasions. The plaintiff has established 53 imputations arising from these occasions;

(b)the second defendant defamed the plaintiff on the Twenty Third and Twenty Fourth occasions. The plaintiff has established nine imputations arising from these occasions;

(c)the defendants jointly defamed the plaintiff on the First, Eleventh and Seventeenth occasions. The plaintiff has established 19 imputations arising from these occasions;

(d)the first defendant is to pay the plaintiff $ 140,000 in damages, including aggravated damages;

(e)the second defendant is to pay the plaintiff $50,000 in damages;

(f)the first and second defendants are to pay the plaintiff jointly $25,000 in damages;

(g)each defendant pay interest on the global amounts payable from 6 July 2019 to the date of judgment at 3% per anum; and

(h)the defendants are permanently restrained, whether by themselves, their agents or otherwise, from continuing to publish, publishing, causing to be published, encouraging, requesting or enabling to be published (including by responding to questions or requests for comments from others) by any means whatsoever any comments or images about the plaintiff to the same or substantially the same effect as the First, Fourth to Twenty First and Twenty-Third to Twenty-Fourth occasions.

1. I will hear the parties as to costs.

2. My reasons for making those determinations follow.

   The 4 October 2018 car park meeting

3. This is the specific event which forms the specific backdrop to most of the conduct complained of in the proceeding, so far as the first defendant is concerned.

4. On 4 October 2018 the Relocate group held a peaceful rally outside the office of Geoff Provest, the Tweed State member of parliament, to express their collective view that the hospital should not be on Cudgen farmland. Mr Provest supported the proposed location of the hospital.

5. Ms Lynch attended the rally with her daughter and two grandchildren.

6. The day before the rally Ms Lynch had posted on Facebook in the following terms:

   “What is it to you Penny Hngs Penny. Come on Penny. What is it to you. You an Geoff ready for your celebration. Will you come up to Kingscliffe all the way from Pottsville? Be careful when you do. Take care of the song lines. Penny Hngs”[19]

   [19]Exhibit 7

7. Ms Hockings’ evidence was that by this post Ms Lynch had invited her to come along.[20] They had not met in person before the rally.

   [20]T1-38 ll 35-37

1. Ms Hockings went to the rally.  She stayed across the other side of the road with three other people watching the rally from a distance[21] and the people she was with pointed Ms Lynch out to her. Ms Adams had not met Ms Hockings in person, but another person pointed out to her at the rally that Ms Hockings and others were across the road. Ms Adams did not witness the encounter between the plaintiff and the first defendant. After the rally finished Ms Hockings approached Ms Lynch.

   [21]T1-38 ll 38-40

2. Ms Lynch walked over to Tweed City Shopping Centre, through the car park with her daughter and grandchildren. It was hot and the children needed to be fed. Ms Hockings approached her whilst she was in the car park, holding her granddaughter’s hand.

3. The dispute between them lies in how Ms Hockings approached Ms Lynch.

4. Ms Hockings’ evidence was that she called out to her to the effect “Michelle, can I talk to you”, then she introduced herself and told Ms Lynch that Ms Lynch had made a threat to her on Facebook about being careful when she came up to Kingscliffe. Ms Hockings said she told Ms Lynch she would be taking her concern to the police. Ms Hockings said there was a bit of conversation back and forth. There was no swearing, there was no aggression, there probably were slightly elevated voices. She says Ms Lynch kept saying to her “Do you want my address?”  Ms Hockings says after their exchange she went into the shopping centre and went past the first defendant once or twice in the shops, but nothing was said or done by either side. She recalled Ms Lynch being with her daughter and granddaughter and some other people she didn’t know. Before getting into the Shopping Centre she was abused by a man in a car. She did not know the man but was told he was Mr Peter Newton, a supporter and part of Relocate.[22] Ms Hockings went to the Tweed Police Station and reported the threat. The police told her they would speak with Ms Lynch, but she did not know if they did.[23] 

   [22]T1-39 ll 7 - 11

   [23]T1-38 l 33 - T1-39 l 18

5. Ms Hockings denied standing over the first defendant when she approached her, but accepted she did run because she wanted to catch up with Ms Lynch who was walking. Her evidence was that the exchange was fairly respectful.[24]  Ms Hockings said she acted on a spur of the moment to approach Ms Lynch. She did not agree that the words were heated,[25] necessarily, but said there was probably some defensiveness.[26]  Ms Hockings was not aware that Ms Lynch’s daughter felt threatened or intimidated by her actions and she disagreed that she did anything intimidating, saying that she ran but she did not sprint, she wasn’t yelling and there were no hand movements.[27]  She said that when the first defendant asked her if she had seen the numbers she responded to her that “Yes, it’s great”. There was never any issue about there being an opposing view.[28]  

   [24]T1-39 ll 19-26

   [25]T1-82 ll 39-40

   [26]T1-82 ll 44-45

   [27]T1-88 ll 27-39

   [28]T1-67 ll 22-31

6. Mr Holdom, called by the plaintiff was present in the carpark with Ms Hockings and Ms Helen Crowe to observe the rally.[29] He observed an incident where a person who attended the protest had driven past and hurled abuse directed at himself, his wife, Ms Hockings and Ms Crowe.  They yelled something out of a car, but he did not know what it was.[30]

   [29]T2-64 ll 24-29

   [30]T2-64 ll 39-47

7. He saw Ms Hockings having a conversation with Mrs Lynch, who he recognised from having lived in Kingscliff for a long time.  Ms Hockings approached Mrs Lynch.  There was no yelling, no raised voices. He could not hear what they were saying.  It definitely did not look like either of them was behaving aggressively.[31] Mr Holdom denied filming the encounter at the Relocate protest.[32]

   [31]T2-65 ll 11-39

   [32]T2-66 ll 9-11

8. Ms Lynch viewed the encounter differently.  She said Ms Hockings came running towards her, screaming her name, they exchanged names then Ms Hockings said that Ms Lynch had been threatening her and she was getting the police. Ms Lynch said she responded to the effect that she’d never threatened anyone and when Ms Hockings responded she was getting the police Ms Lynch said to get the police.[33]

   [33]T1-31 ll 10-40 [26 May 2021]

9. Ms Lynch rejected the suggestion that her posted message contained a threat or could be perceived by someone as a threat about Ms Hockings coming to Kingscliffe because she and Ms Hockings had been engaging in a bit of banter,[34] her reference to the song lines was a tongue in cheek thing about the way the song lines mapped out Australia and she was a little bit concerned about how one of the other commenters was being offended by the plaintiff.[35] 

   [34]T1-44 l 41 - T1-45, l 6 [26 May 2021]

   [35]T1-44 l 31 - T1-45, l 2 [26 May 2021]

10. She rejected the suggestion that the words “be careful when you do” might be perceived by somebody as a threat.[36]  Ms Lynch said Ms Hockings was standing right in front of her with her finger in Ms Lynch’s face, so as to take Ms Lynch off guard. She accepted that this was not put to Ms Hockings in cross examination. This was, she said, because Ms Hockings was under enough pressure and she thought everyone had moved on from the incident three years ago and in any case the defendants, in conducting their defence, did not know what they were doing.[37] 

    [36]T1-44 ll 4-46 [26 May 2021]

    [37]T1-45 ll 24–41 [26 May 2021]. The Court explained to the defendants the importance of putting their case to the plaintiff and witnesses called on her behalf: see eg T1-105 ll 10 - 18

11. Ms Lynch maintained that the plaintiff was aggressive.[38]  It was the plaintiff running up towards her when she was holding her granddaughter’s hand which was the behaviour she thought made the plaintiff a bully.[39] The approach felt like an attack because she had been taken by surprise.[40] She didn’t see the plaintiff’s group until she was past the bus stop and was heading towards the café, which was after the encounter. Then she looked back and saw Dot at the bus stop and Mr Holdom following then with a camera. When they were sitting having lunch the plaintiff walked past and Mr Holdom was filming them and she was intimidated.[41]

    [38]T1-45 l 44 [26 May 2021]

    [39]T1-45 ll 6-14 [26 May 2021]

    [40]T1-46 l 19 [26 May 2021]

    [41]T1-46 ll 36-47 [26 May 2021]

12. Ms Lynch agreed that during the encounter Ms Hockings was saying to her that she was going to ring the police and that she felt threatened.[42]  These words were said with the plaintiff’s finger going at her and Ms Lynch was holding her granddaughter’s hand and with her pregnant daughter.[43] Mr Peter Newton, called by the defendants, gave unchallenged evidence that he did not attend the rally or the shopping centre that day.[44]

    [42]T1-47 ll 25-31 [26 May 2021]

    [43]T1-48 ll 19-29 [26 May 2021]

    [44]T1-50 ll 27 – 32 [26 May 2021]

13. I find the plaintiff’s construction of the first defendant’s post as an ‘invitation’ surprising, if she also regarded the post as containing a threat. To my mind, if a person thought a post contained a threat, they would construe its anterior words as likely containing a challenge, rather than an invitation.  I  accept that Ms Hockings told Ms Lynch she felt threatened.

14. Ms Hockings was an articulate witness, well able to advance her case in her evidence, and a person who, by profession, was accustomed to dealing with the media and community issues. I assess her as someone who would consciously use the word ‘invitation’ if that is what she believed was occurring. I find there is an inconsistency in the plaintiff’s evidence between her viewing the post as an invitation but, at the same time, saying to the first defendant that she felt it was a threat.

15. Conversely, my observation of Ms Lynch was that she was inarticulate, diffident and timorous in the witness box. In her evidence she placed great emphasis on her initial meeting with the plaintiff as setting the scene for what followed.

16. Ms Hockings has not alleged that there had been any defamatory postings concerning her to this time.  Whilst I do not have any evidence of specific communications passing between the parties prior, there is enough evidence about the differences in the community over the hospitals issue to expect that people on different sides were bantering with each other in their communications over the social media platforms they were using.  I find that it is more likely that the particular post was in the form of banter, as Ms Lynch suggested, at that time.

17. I further find that whilst Ms Hockings may not have intended to intimidate Ms Lynch on this occasion, Ms Lynch was intimidated by what occurred in the car park on 4 October 2018.  

18. It was the defendants’ case that all of Ms Lynch’s comments about Ms Hockings were informed by, and consequent upon, the impact this meeting in the carpark had on her and were made because of her consequent perception that the plaintiff is a bully.[45] Whilst this may explain some of her subsequent actions, it cannot support a defence to the imputations that the plaintiff was a bully, unless, objectively, what occurred on 4 October 2018 was bullying. Bullying has been said to involve the concept of pushing people around in the exercise of power.[46]

    [45]T5-9 ll 40-45

    [46]Barach v University of New South Wales [2011] NSWSC 99 at [36] per Kirby J

19. Weighing the plaintiff’s evidence, the first defendant’s evidence and Mr Holdom’s evidence as an eye witness to the encounter, I find that, objectively, the encounter did not constitute bullying. This is because:

    (a)it occurred on a single occasion, in a public place, after a public rally, in front of some people and in a general milieu of many people;

    (b)there is no issue of either party having power in relation to the other;

    (c)both Ms Hockings and Ms Lynch gave evidence that Ms Hockings ran towards Ms Lynch. Running towards a group of people you do not know but do wish to speak to, of itself, objectively, is not bullying;

    (d)where Ms Lynch’s evidence was that the online posts had been in the nature of banter, and where Ms Hockings’ evidence was that the post was an invitation, the fact that Ms Hockings might approach Ms Lynch to speak to her is also not, objectively, something which gives rise to a suggestion of bullying. The contents of what was discussed, including that Ms Hockings accused Ms Lynch of threatening her, does not constitute bullying. It was a forthright statement to Ms Lynch about how she felt about what was going on online;

    (e)Ms Hockings’ evidence that she was not yelling is supported by Mr Holdom’s evidence as an eye witness to the encounter; and

    (f)whilst it was not specifically put to Ms Hockings that she had her finger in Ms Lynch’s face, Ms Hockings’ evidence that there were no hand movements is supported by Mr Holdom’s evidence that neither party appeared to be behaving aggressively.

20. Accepting, however, that Ms Lynch’s evidence truly reflected that she felt threatened by Ms Hockings, on that occasion, it is very difficult to understand why, consequent upon that encounter, Ms Lynch embarked upon the series of online communications about Ms Hockings of which Ms Hockings complains in this proceeding. Ms Lynch herself, was unable to describe why she had done so.    

    Goldsky’s collapse and its relevance to the plaintiff

21. The fact that a charity was to be established was announced in August 2017. Ms Hockings was employed in October 2017 to establish the charity. 

22. Ms Hockings wrote the business plan, which took months, after extensive research.  She had to register the foundation as a business, obtain an ABN, work with lawyers to write a constitution and get registration as a public benevolent institution, then obtain charity status.  Ms Hockings was responsible for trademarking assets.  Whilst the charity was given a bus, which was registered in Queensland, it had to be modified so it could be registered in New South Wales.  She sourced an accountant and worked with them so that BAS and financial legal requirements were met.  As a member of a Tweed Shire Council working group of stakeholders from different homeless services in Tweed, she was involved in monthly meetings.  She worked with a graphic designer on branding.  The charity went through a number of different names, as it worked on its main focus areas.  Goldsky was never to be the sole benefactor of the charity and Ms Hockings started investigating fundraising.  It was her job to form relationships within the community, to explain the charity’s purposes, to understand the relevant business and to see whether partnerships could be built.[47]

    [47]T2-29 l 28 - T2-31 l 5

23. Ms Hockings ran the charity from home and she worked from home, not in the Goldsky office.[48] Expenses to set up her home office were covered initially by Goldsky before the charity was registered or had a bank account.  After registration, all the receipts from the set-up costs were receipted to Goldsky, so they became a transaction within the charity.[49]  A laptop was supplied to her as an asset of the charity.[50] She accessed an email account which had been created before she was employed as administrative matters were done before she started so she could start work with an email address.[51]

    [48]T1-93 ll 31-38

    [49]T2-20 ll 38-46

    [50]T2-21 ll 5-10

    [51]T2-15 l 44 - T2-16 l 5

24. The charity needed a board of directors with a minimum of three. The directors were herself (also company secretary), James Owen, Jane Grace and Ken Grace. A fifth director was being actively sought.[52]  This all had to be done before status as a charity was conferred.  Then it was necessary to obtain deductible gift recipient status from the Australian Taxation Office.[53]   There was only one registered charity, and there was an alternate business name registered to that charity.[54]  Initially the Goldsky business address was used so a business could be registered. There was a separate PO box for the charity’s correspondence. 

    [52]T2-21 ll 38-42

    [53]T2-21 ll 14-30

    [54]T2-21 l 47 - T2-22 l 2

25. Ms Hockings reported to Jane Grace, who was a director and part namesake of the foundation,[55] not Ken and Jane Grace.[56]  For a period of time before the charity was legally established as a business Ms Hockings received a wage from Goldsky which had made a pledge to donate 25 per cent of its annual client management fees and $100,000 towards the charity.  Once the charity was a business and had a bank account and an accountant was engaged, Ms Hockings’ wage came from the charity.[57]

    [55]T1-96 ll 36-40

    [56]T1-96 ll 31-32

    [57]T2-15 ll 16-24

26. She was paid about $450 a week when she worked and she worked part time.  She didn’t necessarily work every week.[58]  Ms Hockings was paid randomly, there was no consistency to payments,[59] she could well have received payments of $160 on two dates in November 2017 and  on a date in each of January and May 2018, although she could not recall specifics and on occasion Jane Grace paid her wage in cash.[60]  The only gift she received was a voucher to a day spa treatment at the Salt Village in Kingscliffe, which was a Christmas present from Jane Grace in December 2017.[61]

    [58]T2-17 ll 30-38

    [59]T2-19 ll 23-24 

    [60]T2-19 l 34 - T2-20 l 17

    [61]T2-20 ll 18-25

27. Ms Hockings was not aware that the SEC had filed a civil suit against Goldsky on or around 27 September 2018.[62] Mr James Owen resigned as a director around 7 November 2018, which was about a week after the Goldsky first story broke. He resigned by email to Ms Hockings as the company secretary and chief foundation officer.[63] The reasons he gave for why he resigned were because of concern for reputational risk with Goldsky.[64]   In mid-December 2018 she called the chief ASIC investigator, David McArthur, and spoke to him at length about what was going on and sought his guidance. 

    [62]T2-29 ll 9-16

    [63]T2-25 ll 27-34

    [64]T2-26 ll 17-18

28. Ms Hockings started trying to remove Mr Grace from the board of directors in December 2018.[65] This was in part because Mr Grace being on the board was inflicting reputational damage on the charity but also because both defendants by that stage had very regularly and consistently linked the charity with Goldsky across social media platforms.[66]  It proved impossible to secure another director.  When it was not possible to remove Ken Grace or attract a new director and there was widespread evidence on social media that people were believing that the charity was linked to Goldsky, Ms Hockings’ evidence was that the charity was closed on 7 February 2019. [67] 

    [65]T2-27 l 10

    [66]T2-27 ll 13-17

    [67]T2-22 ll 5-28

29. On a review of the chronology, the aspect of the plaintiff’s evidence that the defendants had ‘very regularly and consistently’ linked the charity with Goldsky prior to its closure is not supported by the timing of the posts: as at 7 February 2019 only the first 6 occasions (two of which I have found were not defamatory) had occurred. The remaining occasions occurred between 25 February 2019 and 6 July 2019, after the charity closed.

30. Ms Hockings’ evidence was that the first media article she was aware of was the Australian Financial Review article of 24 October 2018, posted at the outset of the First occasion.  The journalist had called her a week or two earlier, unannounced and asked her questions about the charity.  Things like what was the charity about?  How was it structured?  The very last question he asked her was, “What will happen to the charity [indistinct] investigation was found to be true?”  She had no idea what he was talking about and that was how she found out about Goldsky.  About a week and a-half, two weeks later, that article came out.  She was mentioned very briefly in that article in relation to the charity, not in relation to Goldsky.  The Australian Financial Review ran a series of articles.  The second mention of herself was in the Australian Financial Review in an opinion piece by Myriam Robin.  She couldn’t give the date, but it coincided with one of the defamatory comments where she believed the second defendant was talking about how they had fed information to the AFR and how interested they were.  This opinion piece came out and made allegations that there was no $100,000, there was no charity bus, that it looked like a novelty cheque, wasn’t worth anything and, that in either October or November 2018, she had said that it was business was as usual in the Tweed Valley Weekly.  From the best of her memory, they were the only two articles that mentioned her by name and possibly the charity as well.  Whilst there were numerous articles about Goldsky which talked about Ken Grace and Jane Grace, they did not mention her, or anything about any investigation into the charity or her, because there wasn’t one.[68]

    [68]T2-23 l 30 - T2-24 l 13

    Identification

31. There is no dispute that Ms Hocking was identified in all the posts, bar those relating to the Fifth and Seventeenth occasions complained of.  The test for identification is an objective one, namely whether the words published might reasonably be understood to those to whom they were published to refer to the plaintiff. Whether a matter is of and concerning the plaintiff is a question of fact.[69]

    [69]Wagner and Ors v Harbour Radio Pty Ltd and Ors [2018] QSC 201 at [47] per Flanagan J and the authorities referred to by Flanagan J in the footnotes to [47]

32. I will deal with this issue specifically when dealing with those two occasions.

    The imputations which arise from the comments and whether they are defamatory

1. Ms Hockings’ case is that each of the imputations alleged is conveyed by the natural and ordinary meaning of the words used in the particular comment (or series of comments). She has the onus of proof, on the balance of probabilities, that the hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in the pleaded imputations.[70]  Once that question is answered,  the next issue is whether those meanings are defamatory of her in the eyes of the ordinary reasonable reader: would the ordinary reasonable person think less of the plaintiff because of them.[71]

   [70]Radio 2UE Sydney Pty Ltd v Chesterton (2001) 238 CLR 460 at [5] per French CJ, Gummow, Kiefel and Bell JJ

   [71]Farquhar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J; O’Reilly v Edgar [2019] QSC 24 at [81] per Bradley J

2. The ordinary reasonable meaning of the matter complained of may be the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it. In deciding if any particular imputation can be conveyed, the question is whether it is reasonably so capable and any strained or forced or utterly unreasonable interpretation must be rejected.[72] The ordinary reasonable reader is a person of fair average intelligence, who is not perverse, morbid or suspicious of mind nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.[73] That ordinary reasonable reader considers the publication as a whole and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication.[74]

   [72]Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139 (Palmer) at [19] per Boddice J, McMurdo P and Muir JA concurring

   [73]Palmer op cit at [20] per Boddice J, McMurdo P and Muir JA concurring, Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ, citations from the passages quoted omitted

   [74]Palmer op cit at [20] per Boddice J, McMurdo P and Muir JA concurring

3. A defendant’s intention is not relevant because the objective test is applied.[75]

   [75]Chapman and Anor v Australian Broadcasting Commission (2000) 77 SASR 181 at 189 per Lander J, Doyle CJ and Nyland J concurring

4. The mode, manner or form of publication is also material in determining what imputation is capable of being conveyed.[76] For example, in Palmer the Court of Appeal observed that a gossip column in a newspaper would not be read as closely as other forms of publication by an ordinary reasonable reader, it would not be analysed line by line and an ordinary reasonable reader would also likely read between the lines and have reference to a juxta positioned cartoon.[77] 

   [76]      Palmer op cit at [19] and [22] per Boddice J, McMurdo P and Muir JA concurring

   [77]Palmer op cit at [22]

5. Context counts in deciding whether a publication conveys a defamatory meaning.  The form in which words are communicated may affect the meaning they convey to an ordinary reasonable person, for example because of the transient nature of the medium. The mode of publication can affect the way in which the ordinary reader absorbs the information, including the amount of time they devote to reading or viewing it. Further it is necessary to consider the context in which the words were used and the whole of the publication. Words which are not defamatory in isolation may acquire a different meaning when read in the context of other statements and the converse can also be true. The mere presence of inconsistent assertions or a denial does not remove a defamatory charge or prevent an article being defamatory.[78]

   [78]Watney v Kencian [2018] 1 Qd R 407 at 416 [19] per Applegarth J, Morrison and McMurdo JJA concurring

6. The context will always include facts which were general knowledge at the time the statement was made; the meaning of words includes implications or inferences that a reader would draw from the words, in the light of those facts.  Context will also include any surrounding material in the same “publication” as the words complained of, that has some bearing on how the statement complained of would be read and understood. The mode of publication can affect the way in which the ordinary reader absorbs information, including the amount of time they devote to reading or viewing it.[79]

   [79]Monroe v Hopkins [2017] EWHC 433 (QB) at [32]

7. This case arises in the world of social media. Of social media it has been said that the advent of the 21^st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read; it is wrong to engage in an elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (i.e. ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of a conversation rather than carefully chosen expression; and it is pre-eminently one in which the reader reads and passes on. People scroll through Facebook quickly.  They do not pause and reflect, they do not ponder on what meaning the statement might possibly bear, their reaction to a post is impressionistic and fleeting.[80]

   [80]Stocker v Stocker [2020] AC 593 at [41], [43], [44] per Lord Kerr of Tonaghmore JSC, with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin JJSC agreed

8. It has been said of Twitter (relevant specifically to the 24^th occasion):

   “ … this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”[81]

   [81]Monroe v Hopkins [2017] EWHC 433 (QB) at [35]

9. However, that there are groups of readers who read what was said from different political standpoints is not relevant to the meaning of words.[82]

   [82]Monroe v Hopkins [2017] EWHC 433 (QB) at [36]

10. I gratefully adopt the statements of principle collated from other authorities and articulated by Muir DCJ in Brose v Baluskas & Ors(No.6)[83] concerning the importance of forum and context in determining whether a post is defamatory in social media platforms which I set out below:

    [83][2020] QDC 15 at [65]-[77]

    (a)It is relevant and necessary to examine the posts complained of in the context they were posted and as part of the broader conversation occurring on the relevant sites;

    (b)This task is incomplete without a discussion and recognition of certain characteristics of social media;

    (i)Firstly social media spaces are relatively unregulated and moderation and regulation is rarely consistent even within particular social media sites. In this case, an example of that was evidence from Ms Adams that she found moderating the Relocate FB Page too demanding, and this included managing negative feedback from the community against the plaintiff[84];

    (ii)Secondly, social media sites are notorious as breeding grounds for false or exaggerated claims, statements made with little or no explanatory context and as spaces where specific and personal grievances are aired in obnoxious manners. Consequently, and depending on circumstances, the community generally accepts that online spaces are not the most reliable source of commentary and comments on such fora should be taken with a grain of salt;

    (iii)Thirdly, the ordinary and reasonable reader of social media, being aware of the lack of thorough or consistent moderation inherent in social media fora and being aware of the more general reputation of social media as containing a multitude of false or exaggerated claims is likely to employ a more critical eye when interpreting social media posts; 

    (iv)Fourthly, social media posts can vary hugely in their scope of publication. Whilst they are capable of being viewed by a global audience, but they can be made in specific community groups dedicated to a particular topic. A narrower context can have an impact upon whether a reader would be more inclined to draw general conclusions from specific statements or would be more likely to interpret statements as having personal or narrow meanings rather than general ones. As such the hypothetical reader is taken to be representative of those who would read the publication in question;

    (v)Fifthly, comments and posts made on social media fora are rarely read in isolation and the interpretation of individual comments can be greatly affected by other comments in the forum in question, even posts later in time. As such, the evolving nature of social media fora can make the task of assessing the precise meaning and impact of a particular post even more complex;

    (vi)Sixthly the unique textual features of social media posts, such as emojis, pictures and non-standard characters may influence meaning, as may grammar, syntax and formatting. Muir DCJ used the examples of improper or irregular spelling, capitalisation and grammar which may create a tone of informality which, with other relevant features, may ultimately influence the weight a reader places on a particular comment;

    (c)Consequently, ordinary reasonable readers are alive to a wide range of cues which inform both the meaning and quality of the meaning conveyed.  

    [84]T1-74 ll 15-17

11. For a number of the occasions, the plaintiff alleges imputations arise that she is variously:

    (a)dishonest;[85]

    (b)deceitful;[86]

    (c)duplicitous;[87] and

    (d)a liar.[88] 

    [85]1^st, 2^nd, 5^th, 6^th, 7^th 10^th and 23^rd occasions

    [86]1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 10^th, 11^th, 15^th, 19^th, 23^rd occasions

    [87]1^st occasion

    [88]2^nd, 5^th, 7^th, 10^th, 11^th, 22^nd occasions

12. Whilst each of these adjectives has a similar meaning, because the separate imputations have been pleaded, presumably the plaintiff contends that a range of different nuanced meanings should be drawn from the various posts. The plaintiff’s counsel submitted that if you’re a liar you’re probably dishonest at least about whatever it is you have lied about on that occasion[89] and it might be that you are deceitful because of the way you lied, but just because you are dishonest or deceitful does not mean you are also a liar, rather, you’ve done something which is not kosher.[90] In this case, the general proposition was that the plaintiff was a liar in her general character.[91]

    [89]T1-112 ll 1-11

    [90]T1-112 ll 15-26

    [91]T1-112 ll 37-43

13. Whilst one can see the difference in meaning between dishonesty, deceit and duplicity on the one hand and lying on the other, it is less clear that there is a relevant distinction in the meanings of dishonest, deceitful and duplicitous in this case.  The words are defined as synonyms of each other.

14. Dishonest is defined in dictionaries to mean ‘behaving or prone to behave in an untrustworthy, deceitful, or insincere way’[92] or as ‘not honest’[93] or as “not truthful or cannot be trusted”.[94]  Synonyms for ‘dishonest’ include deceitful[95] and corrupt or crooked.[96]

    [92]Oxford Languages online at

    [93]Cambridge Dictionary at

    [94]Collins Dictionary at

    [95]Cambridge Dictionary at

    [96]Collins Dictionary at

15. Deceitful is defined to mean “behaving in a dishonest way by telling lies and making people believe things that are not true”[97] or “dishonest or hiding the truth”,[98] Synonyms for ‘deceitful’ include “dishonest, untrustworthy or devious”.[99]

    [97]Oxford learners’ Dictionary at

    [98]Cambridge Dictionary at

    [99]Cambridge Dictionary at and see also the page at footnote 13

16. Duplicitous is defined to mean “deceitful”[100] or “dishonest talk or behaviour, especially in saying different things to two people”.[101]  Its synonyms include “double dealing”[102] and “dishonest, deceitful”.[103]

    [100]Oxford Languages at Collins Dictionary at

    [101]Cambridge Dictionary at

    [102]Cambridge Dictionary at

    [103]See

17. Given the similarity in meanings, where the comments appear in the social media environs which have been recognised as more transient and casual than the written word, I propose to approach the imputations of dishonesty, deceitfulness and duplicity alleged as either all being carried by a particular comment or all not being carried by a particular comment.  I also take note that, given the overlap in meanings, I will be less guided by the number of established meanings than by the nature of the meanings I find established.

18. Other than on the 22^nd occasion, when it is alleged the second defendant expressly used the word ‘liar’ none of the impugned comments use the word ‘liar’. To call someone a liar immediately casts doubt on every aspect of that person’s integrity.[104] I propose to consider separately whether the imputation that the plaintiff is a liar is raised wherever that is alleged. 

    [104]Armstrong v McIntosh (No 2) [2019] WASC 379 at [88] per Le Miere J

19. A matter will be defamatory if it is likely to cause an ordinary reasonable person to think less of the plaintiff.[105] As another judge has observed, mere vulgar abuse or invective is not enough to cause relevant harm.[106]

    [105]Radio 2UE Sydney Pty Ltd v Chesterton (2001) 238 CLR 460 at [5] per French CJ, Gummow, Kiefel and Bell JJ

    [106]Johnston v Aldridge [2018] SADC 68 at [197] per Brebner DCJ

    The first publication

20. The plaintiff alleges the following as the First Defamatory Comments jointly against the defendants.

    On 28 October 2018:

    (a)an article was published in the Australian Financial Review entitled, "How a Kingscliff hedge fund became a target of the SEC';

    (b)that same article was uploaded to the Relocate FB Page;

    (c)the second defendant uploaded a comment in response to that article on the Relocate FB Page:

    "Well well well. What have we here. What have Ken and Jane Grace been up to in the Tweed Shire hmmm?";

    (d)a Facebook user identified as MJ Meehan responded to the second defendant's comment:

    "What's Penny Hackings got to do with this?";

    (e)the second defendant uploaded a comment:

    "The Ken Jane and Grace Foundation Ltd was incorporated 3/4/18, business recorded as 'Australian Public Company, Ltd by Guarantee. This date a day prior to Minister's announcement of the Cudgen site. Coincidentally a report went to council also April proposing the current hospital site to be developed for affordable housing."

    (f)the second defendant uploaded a hyperlink to a document containing registration details of the Ken and Jane Grace Foundation Ltd which identified the plaintiff as a director of that entity;

    (g)the first defendant uploaded the comment:

    "Penny Hocking. The plot thickens!!";

    (h)the second defendant uploaded a hyperlink to an article entitled "Going for Goldsky: all that glistens is not...";

    (i)the second defendant uploaded further comments:

    "Trademark Registration by Penny Hackings" and "Honestly - who the *$@# are these people";

    (j)the first defendant uploaded the comment:

    "...I think they are the people that right from the start that this whole push for hospital on farmland thing, seemed dodgy. For a woman that lives in Pottsville aka Penny and her outspoken position on Save the hospital. Her association with Geoff. I think that eventually someone will all trace the dots." (collectively, the "First Defamatory Comments")

21. The Facebook chain which includes the First Defamatory Comments is behind Tab 1 of Exhibit 2 and runs for some 8 pages.  The AFR article which was uploaded at the outset of this Facebook string is Exhibit 8. That article contains the following single reference to the plaintiff:

    “The Ken and Jane Grace Foundation has since been officially registered as a charity and this month purchased a 15 seater bus, which was confirmed by Penny Hockings, an associate of the charity when contacted by the Financial Review.” 

22. Of the charity more broadly, it says:

    (a)in 2017 Jane Grace set up the Sleep Safe Sleep Sweet foundation, or “Ssssh” to tackle youth homelessness in the Tweed Heads area;

    (b)the charity launch was backed by a host of local sporting celebrities including surfer Joel Parkinson, boxer Jeff Horn and Olympic cycling duo Stuart O’Grady and Robbie McEwen;

    (c)to kickstart the initiative Goldsky cut a cheque for $100,000 to the foundation and pledged to donate a quarter of its management fees to the cause.

23. Otherwise the AFR article forming part of Exhibit 8 contains statements including:

    (a)the powerful US Securities and Exchange Commission is suing the fund and its 53-year-old founder, Ken Grace, alleging a “multi-year fraudulent scheme” and there are many unanswered questions;

    (b)did Goldsky and Grace lie to the Australian Securities and Investments Commission, as alleged by the SEC in its lawsuit?;

    (c)among other things, the SEC says the fund’s returns aren’t real;

    (d)Goldsky and Mr Grace had “no agreements with service providers … did not manage $100 million of assets, and … did not have any investment returns as it never had any assets” the SEC claimed; 

    (e)the US Regulator went further, alleging Goldsky lied to ASIC to avoid regulatory scrutiny;

    (f)Mr Grace denied the allegations made by the SEC in a strongly worded response to the AFR in which he threatened to seek an injunction to prevent this article being published last week; and

    (g)the SEC action has cast serious doubt over the legitimacy of Goldsky that was unknown in the local hedge fund community.  

24. The plaintiff alleges the following natural and ordinary meaning arise from the comments:

    (a)the plaintiff is dishonest;

    (b)the plaintiff is deceitful;

    (c)the plaintiff is involved in corruption in the community in connection with the Tweed Valley Hospital site;

    (d)the plaintiff was involved in corrupt dealing with respect to the relocation of the planned Tweed Valley Hospital;

    (e)there are reasonable grounds to suspect that the plaintiff was knowingly involved in a Goldsky wide scale fraud; and

    (f)the plaintiff is a duplicitous person.

25. A total of 14 different people (including each of the defendants) made comments in this series of posts, which I tally at 34 posts. There are at least two ‘threads’ running through the commentary on the AFR article. A number of the posts refer to the fact that a photograph of Rainbow Beach has been used instead of Kingscliffe in the promotion of the story. This suggests that a number of the readers of the material were more exercised by how Kingscliffe was presented in the AFR article than the contents of the AFR article itself.

1. There are, however, some posts by persons other than the two defendants which precede or are interspersed with the defendants’ comments which indicate that there is a thread of Facebook users who were alive to suggestions of untoward happenings in the local area which were somehow connected with the Goldsky difficulties and the plaintiff. 

2. Ms Adams’s evidence was that it was just really surprising to discover that all of these people were connected and that was what her comment was about.[107] At the time she made comment, Ms Adams  knew the plaintiff from numerous media articles she had been involved in and she thought the plaintiff was, more or less, a public figure.[108] She largely remembered the media articles to be about the plaintiff and her two sons, and there were a lot of photographs of herself with her two sons.[109]

   [107]T1-79 ll 45-47 [26 May 2021]

   [108]T1-80 ll 4-7 [26 May 2021] 

   [109]T1-80 ll 22-30 [26 May 2021]

3. Where the AFR article mentions the charity by name and identifies Ms Hockings by name I would not consider that the ordinary reasonable reader would take any of the meanings alleged by the plaintiff from:

   (a)the initial statement of the second defendant (Ms Adams) about what Mr and Mrs Grace have been up to at sub paragraph (c). This statement articulates in a summary form and conclusory way, the issues raised in the AFR article against the very persons who may well have been responsible for the difficult circumstances of the corporate entities;

   (b)the question by another commenter, at the outset of the series of posts, as to “What’s Penny Hackings got to do with this” at sub paragraph (d). Neither defendant has made any reference to the plaintiff at this point. This comment appears on the sequence of posts to arise directly from the terms of the AFR article itself which mentions Ms Hockings by name; and

   (c)the uploading by the second defendant of documents which are publicly available and do no more than set out the fact of the registration of the charity, who are the directors of the charity or that the charity has applied for certain trademarks as set out in subparagraph (f) and the first part of each of subparagraphs (e) and (i). Each appears responsive to the comment of M J Meehan in a factual way.

4. The content of the article “Going for Goldsky. All that glitters is not …” is not in evidence. This prevents the Court from considering the context that article provides in conjunction with the heading. Consequently, the plaintiff has not satisfied the onus of proof in respect of meanings which can be argued to arise from the fact of an article, published elsewhere with such a title as set out at sub paragraph (h) having been posted on the Relocate FB website page.

5. However, the second defendant’s comments about the coincidence of the date of registration of the charity with the date of the announcement of the hospital site and the report concerning the redevelopment of the old hospital site at subparagraph (e) and the comment “who the *@*# are these people” at (i) are in a different category.

6. Placing these comments on the Relocate FB Page after the posting of three documents suggests readers draw negative inferences about the directors of the charity, who include the plaintiff. 

7. I find, in these circumstances, where the comments focus on the hospital and the charity, the ordinary reasonable reader would understand these comments to contain the meanings alleged at 12 (a), (b), (c), (d) and (f) of the SoC.  I find the ordinary reasonable reader would not at this time take the meaning alleged at 12(e) of the SoC.

8. The two comments by the first defendant at 12(g) and (j) of the SoC would also be understood by the ordinary reasonable reader to be directly negative comments about the plaintiff. They are personally targeted at the plaintiff, as they identify her by name in each case.  Their focus is on five comments about the decisions made in relation to the location of the hospital.  Each of them, is suggestively salacious.

9. They also carry the meanings alleged by the plaintiff at 12 (a), (b), (c), (d) and (f) of the SoC.  For the same reasons as for the second defendant, I find the meaning at 12(e) is not carried.

   The second publication

10. The plaintiff alleges the following as the Second Defamatory Comment against the first defendant.

    On 15 November 2018, in response to an article entitled "I don't ask a plumber to fix my car’ - Doctor says listen to the experts on Tweed Hospital Site", the first defendant uploaded to the 'ABC North Coast' Facebook Page (the "ABC FB Page") the following comment:

    "Penny Hngs ...of course Penny. Your friends and work mates are very honest. You also are very truthful, innocent also Penny. You are so amazingly above words. I dont [sic] want to grow up Penny, then I have to acknowledge there are bad people in the world " (the "Second Defamatory Comment")

11. The Facebook chain which includes the Second Defamatory Comments is behind Tab 2 of Exhibit 2 and runs for some 13 pages. 

12. There are 46 separate commentators in this thread of posts, including the plaintiff and the first defendant.  The comment the plaintiff complains of appears a little over halfway through the series of comments. To this point, there has been no reference to Goldsky or the charity. The issue being commented on is the proposed new location of the hospital with people expressing views in support or otherwise.

13. Ms Hockings posted a comment in favour of the chosen location which focused on, essentially, getting on with the decision which had been made. A number of posts further in, she posted in support of another commentator who had stated “It’s unbelievable how much BS gets spruiked by those opposed to this decision, either deliberately misleading or through plain ignorance”. Ms Hockings’ post then stated “what gets me is the complete disrespect for the very people who secured this for them, So embarrassing” (then there is an emoji but on the copy I have I cannot make out what type of emoji it is).   In cross examination Ms Hockings’ evidence was that a smiley face emoji can mean that you’re laughing at something, you’re being sarcastic, a lot of different things.[110]

    [110]T1-90 ll 36-37

14. Ms Lynch then posted, I infer from the way it appears in Exhibit 2, tagging Ms Hockings:

    “It was you Penny Hocking. You are an amazing intelligent genius women. [sic] Thank god for Penny. Not that I am being sarcastic or anything. Penny & Geoff.”

15. Ms Hockings responded, tagging Ms Lynch:

    “Michelle Lynch grow up. You really are a fool. At least we agree on one thing. I am intelligent and I am amazing too. You will never know how much as I choose my friends and associates very carefully. Toxic nasty people like you are not my cup of tea. Perhaps read yours a little closer and you will see the truth I speak.”

16. After this post, Ms Lynch made the post about which Ms Hockings has complained, again tagging Ms Hockings.

17. Ms Hockings then responded tagging Ms Lynch:

    “Michelle Lynch yes my friends and workmates are, thank you. Likewise, I am. Seems you have opened your eyes at long last. Growing up will mean looking in the mirror and seeing the ugly you have been relentlessly trying to convey Michelle. As a spiritual person you should know that truth always comes out and karma always comes around. Only those with anything to hide fear that. I don’t. Do you ? Are you incapable of respectfully agreeing to disagree? The original post was about how the head of Tweed Emergency Department wants the community to trust in those who are qualified to do what they do.  I for one have utmost respect and trust in the clinicians and medical professionals who day in day out live with the reality of how desperately needed this hospital is. What matters most is delivering this. What matters most is improve health care for a rapidly growing region. Where is not what matters most, but what. That is the first and foremost important element of the discussion. If you don’t agree, then do so without trolling and being unnecessarily sarcastic for what we put out there is what we shall reap.”

18. It appears that this sequence of comments was all posted proximately to each other, in that the time identified for each is ‘38w’.  It appears as a “conversation” which is occurring between the plaintiff and the first defendant.  At other places in this thread, other commentators are having individual discussions with each other, also disputing their views or positions, often in a somewhat personal way. 

19. The plaintiff alleges by way of false innuendo the Second Defamatory Comment meant, and would have been understood by the ordinary reasonable reader to have meant that:

    (a)the plaintiff is a liar;

    (b)the plaintiff is deceitful; and

    (c)the plaintiff is dishonest.

20. In the context of the polarised debate in the community about the location of the new hospital, that, in this thread, others were having separate conversations disagreeing with each other’s views and given the specific and particular exchange of comments passing between the plaintiff and the first defendant, in which the plaintiff called the first defendant a ‘toxic nasty person’ immediately prior to the post she complains of, in my view, the ordinary reasonable reader would not take from the comments complained about any of the false innuendos alleged by the plaintiff. 

21. Ms Hockings gave evidence that she did not engage in arguments with the Relocate people on social media; it got to the point that every time she put anything on social media someone, usually the first defendant, would make comments, and there would be discussion about ‘ganging up’ on her and when the Goldsky story broke this increased tenfold. She responded to people, with dignity most, but not all the time.[111]  I accept this evidence in relation to many of the latter posts, but for the reasons given above, I do not accept it in respect of this exchange.

    [111]T1-93 ll 9-18

    The third publication

22. The plaintiff alleges the following as the Third Defamatory Comment made about her by the first defendant.

On 30 November 2018:

(a)the following comment was posted on the Relocate FB Page:

"Hi Guys & gals, I was just browsing thru that myth busters page and noticed for one: they have a massive number of members um think it was 170 or something LOL, two: most of the comments I read were from all those keyboard warriors like Rita Bertram, Steve Borg, and a few others I don't really remember cause that's all they are shit stirring weak warriors. LOL, three: whoo hoo I seem to have been printed on their page as well DOUBLE LOL and finally please everyone don't pay too much attention to them, that's what those kinda people want so not worth it. We 've got way better things to do SOS nic":

(b)the first defendant uploaded the following comment as a response:

" ... old Penny doesn't look like her profile picture. I think she is in cognito [sic] trying to look like she blends in to Kingscliff, seeing she wants to start a new life here next year. " (the "Third Defamatory Comment")

1. The plaintiff alleges the following natural and ordinary meaning arise:

   (a)the plaintiff is deceitful; and

   (b)the plaintiff does not fit in with the community in Kingscliff.

2. When one goes to the thread of posts in which the comment[112] is made, this comment is made immediately after a photograph of three people behind a car has been posted by another user. Whilst there is no oral evidence before me identifying who is in the photograph, I can infer from other evidence given in the trial[113] and the messages surrounding the photograph which refer to bus shelters[114] and Dot[115] that this was a photograph taken at the time of the rally on 4 October 2018 and it includes the plaintiff.

   [112]Tab 3 of Exhibit 2

   [113]Plaintiff’s evidence of being between the bus shelters the day of the rally T1-67, l 32, first defendant’s evidence of seeing Dot Holdom at the bus stop the day of the rally T1-46, ll 36-47

   [114]Tab 3 of Exhibit 2, p 23

   [115]Tab 3 of Exhibit 2, pp 24 and 25

3. The tenor of the message exchange in which the Third Defamatory Comment appears is juvenile and puerile. Objectively, in my opinion, the ordinary reasonable reader on the Relocate FB Page who is scrolling through in the way of a Facebook reader would not take anything which is written in this exchange seriously. Rather, they would be more likely to think that it was two silly people jesting with each other in a way which is not particularly funny.

4. I find that the ordinary reasonable reader would not take from the context and content of this message exchange either of the meanings contended for by the plaintiff.

   The fourth publication

5. The plaintiff alleges the following as the Fourth Defamatory Comment made about her by the first defendant.

   On 8 January 2019:

   (a)an article entitled "A new war of words has erupted between Tweed MP Geoff Provest and State Labour over the controversial $534 million hospital site at Cudgen" was published on the Tweed Daily News Facebook Page;

   (b)the first defendant uploaded the following comment in response to that article:

   "Penny Hackings. You cam [sic] say what you like, but in your heart you know you are guilty. Leave Hayley alone. Yes, you do try to look like her. That's because she is actually a well loved member of the community. Not like some. And you know what,-your-defamation-gar-bage-doe-s-not-mean-anything.-You-can-pretend-you-live in the light, but you know the thruth [sic]. Look for a mens shed in Cabarita, leave Kingscliff alone." (the "Fourth Defamatory Comment")

6. The plaintiff alleges the following natural and ordinary meanings would have been understood by the ordinary reasonable reader:

   (a)the plaintiff is guilty of misconduct and/or corruption;

   (b)the plaintiff misrepresents herself as a benevolent, honest person;

   (c)the plaintiff is desperate to find a man in Kingscliff;

   (d)the plaintiff is not well liked in the Tweed Community;

   (e)the plaintiff is deceitful;

   (f)the plaintiff is a fraudster; and

   (g)the plaintiff is a troublemaker.

7. When pressed by the Court, the plaintiff did not maintain the imputations at (c)[116] and (f).[117]

   [116]T4-42 ll 44-47

   [117]T4-43 ll 21-27

8. The complained about comment appears in approximately 13 pages into a 17-page long series of posts.[118] There are 157 comments made by 42 differently identified people, including the plaintiff and the defendant. In expressing the numbers of posts and persons here, and in respect of the other messages, the Court is not undertaking any particular mathematical exercise. Rather, it is endeavouring to understand, from the material which has been presented, how many individual people are involved in any one (or more) situations, particularly where the main forum of publication is a community Facebook page on a subject of community interest which has a number of followers and where commenters on the posts may be common.

   [118]Tab 4 of Exhibit 2

9. The complained of comment appears after a number of comments have been made by the plaintiff tagging individuals other than the first defendant.  It is the second comment made by the first defendant, but the first one which is directed to Ms Hockings.

10. Issues of community division, trolling, personal attacks, bullying and stalking on social media were being raised in this series of comments by other participants with each other in the chats which preceded the comment the subject of Ms Hockings’ claim.[119]

    [119]See e.g. Exhibit 2, Tab 4, pp 32 and 33: comments of Danielle Hughes and Michelle Barnett, which appear to be responsive to each other

11. In preceding comments, Ms Hockings was actively involved in commenting to others, I infer from Exhibit 2 tagging them, advocating for the position about supporting the proposed location for the hospital. She used direct and firm language.  More relevantly, given the comment which is specifically complained of, in a comment on an earlier post to another user, Ms Hockings concluded with the words: “Crawl back into the darkness and keep your blinkers on.”

12. It appears, too, that the comment complained of by Ms Hockings was made directly in response to the following comment made by Ms Hockings to Ms Lynch:

    “Michelle Lynch you are a fine example of delusional. Hayley Paddon is the last person on earth I would choose to imitate [EMOJI INSERTED]. Show me evidence where I have personally slammed her on Facebook. Then I shall show the community the behind the scenes activities certain Relocators get up to. Then there’s the public one’s on the public page.

    Moron is not a word I use, so tread carefully with defamation Michele. Likewise with making accusations that can be proven to be wrong. If you have something to say to Rita, say it yourself. My actions and those of my children, are all I am responsible for. Thank you for your concern for my wellbeing. Thankfully I am very good at looking after myself. I truly hope you can find some light within yourself, your constant trolling and foul private messages, along with those of your mates, are coming from a dark place.”

13. After the comment the subject of complaints, the first defendant makes a number of further posts to the plaintiff which are not the subject of any complaint in this litigation.  The plaintiff then responds[120] including by stating inter alia “You’re all a bunch of spiteful nasty bullies who lack the maturity to accept that people have different opinions and different reasons for those opinions …”.

    [120]Tab 4 of Exhibit 2, pp 42 and 43

14. When cross examined about this last comment, Ms Hockings’ evidence was that she was responding to numerous things that had been said online by the first defendant about her constantly, and there were a number of occasions where she did forewarn about defamation. She did take public notice out.  The constant saying that she was Myth Busters, and she would respond, “Can’t wait”.  She agreed there’s sarcasm in that.  She did not consider it to be of the same calibre of the accusation of bullying that’s been put against her.[121] Specifically she said:

    “I’ve been accused of aggressively attacking and assaulting defendant 1, and I’ve also been accused of manipulating a person with a disability and being a bully to them.  Those two are very, very serious things.  This – as I said, I’m not going to pretend that I acted like a saint all the time, but I certainly didn’t do any bullying of that same degree, no.”[122]

    [121]T1-76 l 42 - T1-77 l 1

    [122]T1-77 ll 7-11

15. This explanation of her comments by the plaintiff confuses the chronology for this post. Whilst the issue concerning the rally on 4 October 2018 had occurred before this series of comments, the incident involving Mr Morrissey (who I infer is the person with a disability being referred to) did not occur until on or after 23 January 2019,[123] several weeks after the plaintiff made this comment.  Furthermore, in this proceeding, this is only the fourth of 24 allegations of defamation: at this point, relatively little had been said by the first defendant about the plaintiff.

    [123]154A(f) Further Amended Defence (FAD) and 14 of the Reply

16. Given the context in which the comment complained of was made, I find the ordinary reasonable reader would take the meanings at 33(d) and (g) of the SoC as arising from the comments.

17. Whilst I accept the potential for application by analogy of the principle in Penton v Calwell[124] contended for by the Plaintiff, my task is to determine meanings in the context in which the comments appear.  As to the balance of the meanings alleged (being those at 33(a), (b) and (e) of the SoC) in my assessment they do not arise where, once again, it appears the plaintiff and the first defendant are in a personal “tit” for “tat” conversation and the complained of comment is in fact responsive to comments made by the plaintiff. 

    [124](1945) 70 CLR 250

    The fifth publication

1. The plaintiff bears a heavy onus to establish malice on the principles in Brigginshaw v Brigginshaw (1938) 60 CLR 336 where stupidity, bias or carelessness are not enough.[370]

   [370]Bolton v Stoltenberg [2018] NSWSC 1518 at [219] per Payne J

2. Whilst a number of the comments by the first defendant are personally hurtful and defamatory, the issue said by the plaintiff to amount to malice is the linkages and comments each defendant made about the plaintiff’s alleged involvement in or association with the Goldsky situation, which they published, primarily on the Relocate FB Page, a page for the purpose of community debate about the hospital location.

3. The defendants each denied that this was done to diminish the plaintiff in relation to the hospital debate.

4. When cross examined, specifically about the Ninth occasion (which was the one posted only via Facebook messenger to one person) and that the plaintiff being the leader of the Save our Hospital group  had nothing to do with Ken or Jane Grace, Ms Lynch’s evidence was that the plaintiff had annoyed her,[371] it was a communication of a whole area of things happening in the heat of the moment, she was sorry she said it and it was childish.[372]  In respect of calling the plaintiff ‘evil’ she was referring to what had occurred in the carpark.[373]  Ms Lynch said that the incident in the car park was a big thing for her.[374] Ms Lynch denied she was doing her best to cause the plaintiff as much damage as she could.[375]

   [371]T1-72 ll 15–18 [26 May 2021]

   [372]T1-70 ll 6–9 [26 May 2021]

   [373]T1-70 ll 18–19 [26 May 2021]

   [374]T1-70 ll 15–16 [26 May 2021]

   [375]T1-72 ll 27–28

5. I have earlier accepted Ms Lynch was intimidated by what happened in the carpark and I accept Ms Lynch’s evidence that  this assumed some significance in her mind.  It is apparent from the contents of two of the later posts which have been complained of,[376] that the car park encounter remained on Ms Lynch’s mind some months after it occurred.  However, in observing Ms Lynch give her evidence, and considering the context of all of the evidence, I also find that in using the word “annoy”, Ms Lynch was downplaying how she actually felt about the plaintiff throughout this time.

   [376]Seventh occasion, Eleventh occasion

6. Reviewing the posts overall, their number, frequency and tenor I find that the first defendant was concerned to attack and diminish the plaintiff generally and did not seem to care what she said in doing so.  Many of the comments were generally demeaning of the plaintiff. Examples running throughout the comments include that she was a trouble maker, was not well liked in the Tweed community, was a bully and that she fabricated claims of bullying.  Some were plainly silly, such as the statement that the plaintiff wanted to look like someone else (in the Fourth occasion). Some of them had a quality suggestive of scandal: examples being the use of the words “Penny Hockings the plot thickens” on the First occasion, “it’s not rumour it’s the truth” on the Ninth occasion, and “the things I have heard she has done” on the Thirteenth occasion   Some are extremely serious.  It has been said that to call a person evil connotes that they are morally bad, they cause harm, misfortune or destruction.[377]  Repeated allegations of fraud are also very serious, particularly about a person who is working in community engagement, the charitable sector and fundraising.

   [377]Armstrong v McIntosh (No 2) [2019] WASC 379 at [88] per Le Miere J

7. The First occasion involved reference to Goldsky. Thereafter, whilst some of Ms Lynch’s posts on the subsequent occasions said nothing about Ms Hockings’ alleged involvement in Goldsky or the charity,[378] there was a consistent theme in many of her posts about using the charity to hide behind in her other endeavours[379] or that the plaintiff must have known about the fraud at Goldsky.[380]  Veiled and generalised suggestions of wrong doing were made.  I find this can only be explained in a context that at the time Ms Lynch was making the comments she had become fixated with trying to discredit and criticise the plaintiff because of the differences of opinion over the location of the hospital and the annoyance Ms Lunch admitted to feeling about the plaintiff arising from the meeting in the carpark. I find Ms Lynch was reckless in the comments that she made about the plaintiff.

   [378]Second occasion, Third occasion, Fourth occasion, Seventh occasion, Tenth occasion, Fourteenth   occasion, Nineteenth occasion

   [379]Fifth occasion, Sixth occasion, Fifteenth occasion

   [380]Eleventh occasion, Twelfth occasion, Thirteenth occasion, Seventeenth occasion, Eighteenth        occasion, Twentieth occasion, Twenty First occasion

8. Ms Adams’ evidence was:

   (a)she came to know the plaintiff via social media and decided to block the plaintiff from her social medial page very early in the hospital debate because she found the plaintiff disrespectful and antagonistic of people including herself.[381] She was frank about that in her evidence; 

   (b)she had received what she regarded as an unreasonable threat of defamation from a person employed by Goldsky, so she did not regard suggestions of defamation as authentic;[382] and

   (c)she had noticed that the Tweed Daily News was not reporting on Ken or Jane Grace or Goldsky, which to her was a fundamental issue of transparency in the local community and she believed community members were at risk of possible financial damage via Goldsky.[383] 

   [381]T1-74, ll 3-6 [26 May 2021]

   [382]T 1-78 ll 8 – 13 [26 May 2021]

   [383]T 1-78 ll 19 – 29 [26 May 2021]

9. In cross examination, Ms Adams maintained her evidence that reporting on the Goldsky issues was a fundamental issue of community transparency and she had spoken at different points about all four of the directors.[384] That is reflected in her posts.  Ms Adams denied naming the plaintiff on the Relocate FB page to make people think less of her.[385] Her evidence was that, even at the trial, her honest opinion was that the charity was a fake charity, one that was substandard.[386]

   [384]T 1-88 ll 33 – 45 [26 May 2021]

   [385]T 1-89 ll 28 – 30 [26 May 2021]

   [386]T 1-82 ll 19 – 26 [26 May 2021]

10. I have found that Ms Adams defamed the plaintiff individually on two occasions and jointly with the first defendant on a further three occasions. All the impugned posts by Ms Adams related to the plaintiff having some unspecified involvement or association with Goldsky, by reason of her association with the charity.  None of them refer to the hospital issue. Most of them post links to published information (or publicly available information), with Ms Adams’ own comment.  One of the two individual occasions (the Twenty-Fourth) was not published on the Relocate FB Page.

11. The two defendants did not know each other before the proceeding commenced. 

12. In respect of one of the joint occasions, Ms Adams ‘spoke’ directly to the first defendant, by tagging her, to tell her of the plaintiff being a director of the fake charity, again rather than seeking to make any link to the hospital issue. In respect of another, she first identified Ken and Jane Grace, then published information about all the directors.[387]  Each of the comments which Ms Adams has published in the other joint occasions refer to Goldsky issues and make no mention of the hospital issue.

    [387]The First occasion

13. These factors suggest that Ms Adams was less concerned about creating a link between the hospitals issue and Goldsky than about commenting on Goldsky itself, which is consistent with her evidence. I am not satisfied that Ms Adams made the defamatory comments to diminish the plaintiff’s standing in the hospitals issue.

14. Both defendants persisted with their justification defence at trial and had other defences in the earlier iterations of the pleadings. Both failed to apologise prior to the trial.

15. The first defendant’s conduct is substantially more egregious than the second defendant’s conduct. The first defendant made many more comments and she made them generally in the Relocate FB Page (or other public Facebook pages).  I have found she did so to demean the plaintiff in the hospital issue. Her language in the comments is to be most strongly deprecated. I find that damages against the first defendant should include an amount for aggravated damages.       

16. I am not persuaded an award of aggravated damages should be made against the second defendant. I have found the second defendant made many fewer defamatory comments. I have not accepted that the second defendant made those comments with the aim to diminish the plaintiff’s role in the hospital issue.

    Quantification

17. The plaintiff submits that this court would be guided as to quantum by O’Reilly v Edgar[388] and the decisions referred to by Justice Bradley in that case for damages for defamation involving social media activities. The plaintiff submits her case is worse and more broadly published than O’Reilly v Edgar.[389]  She submits the imputations were at the more serious end of the spectrum,[390] there was a long and drawn out campaign of uploading offending material and the defendants relied on the defence of justification at the trial.[391]

    [388][2019] QSC 24

    [389]Plaintiff’s outline of submissions [108] – [110]

    [390]Plaintiff’s outline of submissions at [97]

    [391]Plaintiff’s outline of submissions at [99]

18. The defendants submit that this case is considerably less bad than that in O’Reilly v Edgar for two main reasons. The first is that there is no post equivalent in seriousness to that in O’Reilly v Edgar where the Court accepted that a post gave rise to imputations that the plaintiff, in his capacity as the CEO of the organisation, tried to cover up the actions of a paedophile, instead of trying to protect children, that he encouraged a person who he knew to be a paedophile to remain active in the organisation of which he was CEO and freely exposed children to a risk of harm and that he was an enabler of paedophilia. That post was made on a public Facebook group page, with about 1400 members and was publicly accessible at the time of the trial[392].  That post had attracted 26 likes, 63 comments and 3 shares. Those comments were described as universally adverse to the plaintiff.[393]

    [392]O’Reilly v Edgar op cit at [4], [73] – [76]

    [393]O’Reilly v Edgar op cit at [99]

19. It has been observed in this court that to call someone a paedophile is one of the worst possible things that could be said about someone if it were untrue and it is a statement which, despite denial, may tend to persist and leave a lingering and permanent mark on a person’s reputation.[394] Those observations have been generally acknowledged in the Supreme Court.[395]  I am inclined to the view that the same observation can be made about alleging that someone is an enabler of paedophilia or someone who covers it up.

    [394]Atholwood v Barrett [2004] QDC 505 at [22] per Samios DCJ

    [395]Sierocki op cit at [40] per Flanagan J

20. The second reason the defendants distinguish O’Reilly v Edgar is that the plaintiff had a bigger reputation and a higher profile than the plaintiff in this case, because of his working life.

21. In O’Reilly v Edgar, the nine defamatory posts were published across an approximate 10 month period and most remained available at trial. Eight of the posts were in a Facebook group with 1,400 members. Publication was admitted to at least 1,000 members for each of the third – ninth posts and for more than 1,250 members for the tenth post (relating to the comment referred to in [377] above) and which, by operation of the grapevine effect, were found to have been published or republished to thousands of people, most with a particular interest in kart racing. The publications were found to be targeted to the key part of the public which made them particularly damaging to Mr O’Reilly’s business reputation in his area of specialist expertise. One of the allegations was that the plaintiff had been dismissed from an earlier directorship for sexually harassing a female employee. Others alleged bullying, intimidation and persecution of employees, misconduct in the workplace deserving of dismissal, gross incompetence corruption of the organisation’s election process, personal corruption and that that the plaintiff was a crook.  In determining that aggravated damages were appropriate, as a non-specified component of the award of damages, the Court noted the following matters:

    (a)that whilst the defendant styled himself as a ‘reporter’ he made no attempt to fact check any of the allegations before publishing them, or to put them to the plaintiff;

    (b)the plaintiff’s solicitors sent a concerns notice after the fourth comment. Notwithstanding that, the offending posts were not removed, a mock apology was published which asserted the posts were justified as true and a further five posts (including that at [377] above) were published;

    (c)the proceeding was defended on the basis that the imputations, if conveyed, were all true but the defendant led no evidence that could establish that any of the alleged imputations was true;

    (d)the posts were repeated in open court in circumstances where the defendant was aware that the trial was public and was asking if there were media representatives present in the gallery. The cross examination of the plaintiff was done with a sarcastic tone, covered irrelevant maters, and the defendant mocked the plaintiff’s strong emotional reactions to the posts;

    (e)the defendant failed to put to the plaintiff that the words from his ‘reports’ and the Court found there was an element of cowardice in his approach, whilst being disinclined to the view that the defendant did not understand what he was doing; 

    (f)the defendant’s conduct of his defence was not bona fide and not justifiable in its resistance to the claim; and

    (g)this improper conduct increased the injury to the plaintiff’s feelings and cased additional damage to his reputation and further damages for vindication were also warranted because of the damage caused by the impugned conduct.

22. Without derogating from the seriousness of the defamatory comments in this case, and accepting there are more occasions of defamatory comments in this case than in that of O’Reilly v Edgar, to my mind the latter case is considerably more serious than the present case for the following reasons:

    (a)there is no allegation in this case truly akin to that in [377] above. In so far as the plaintiff contends aspects of the Ninth occasion were equivalent based on the allegation of being a neglectful parent, I find this statement, whilst very hurtful, wrong and defamatory, is not qualitatively equivalent. Further, the Ninth occasion was published to one person, not into the online environment unlike that comment in [377] which the Court found reached thousands of people and remained current on the internet at the time of trial;

    (b)the attack on the plaintiff’s business reputation (in addition to his personal reputation) was greater in O’Reilly than in the present case; and

    (c)the manner of the defendant’s conduct of the proceeding in making further defamatory comments after receiving a concerns notice and in how he conducted the trial can be distinguished from that of the defendants’ conduct in this case, for reasons set out above.  

23. In submissions the plaintiff cited French v Frazer,[396] which involved three publications of baseless allegations of corruption and dishonesty, one on a website, one in an email to 500 people and one on Facebook. The plaintiff there was the head of customer relations at the Commonwealth Bank of Australia. The Court observed in its opening remarks:

    “ … [the defendant] has subjected [the plaintiff] to a hellish two years of bullying and harassment. Publicly he has mounted a wide-reaching and wholly unfounded attack on [the plaintiff’s] reputation. In a disturbingly more sinister private campaign, [the defendant] has bombarded [the plaintiff] with hundreds of mails, texts and voice messages, many containing thinly veiled threats evidently motivated by homophobia and other senseless vitriol.”[397]

    [396][2015] NSWSC 1807

    [397]At [3] per McCallum J

24. The defendant became the plaintiff’s stalker prior to the defamatory publications arising. In respect of the first publication the Court accepted that the plaintiff had experienced reactions from a large number of people in the weeks, months and years following that publication. One such exchange involved a meeting abroad where the person (who he had never met) asked him directly about the publication.  The defendant also sent an email to the Bank, which implied, entirely untruthfully, that the plaintiff was a paedophile. That email was raised at a meeting of the bank’s CEO and group executives.  The second publication was an email to over 500 people, including senior people at the bank, that alleged corrupt conduct, inappropriate staff management and conflicts of interest. Consequently senior members of the plaintiff’s staff attended a meeting to discuss how they were treated. The third publication was a post to the Facebook group of the national industry peak body for complaint handling professionals of which the plaintiff was on the board. The defendant’s post onto their Facebook page contained imputations that the plaintiff acted corruptly as a director of the peak body and that he dishonestly arranged for claims by the defendant about his misconduct to be covered up. The plaintiff felt that this post had single handedly ruined his career and he resigned from the Board. The Court had regard to the whole of the defendant’s conduct, most if not all of which was improper and unjustifiable, to the extent it aggravated the hurt the plaintiff suffered.  It observed that the tone and content of the publications could have prompted some readers to dismiss them as irrational rants.  Damages of $300,000 were awarded. 

25. My analysis of that decision suggests that overall, there was more serious harm done to that plaintiff’s reputation, specifically in the area of business reputation where he held a very senior role, the Court observing that even those who knew the plaintiff well reacted to what they read, notwithstanding the scurrilous tone of the publications and their complete lack of cogency or factual foundation [398]. There was the specific reference to paedophilia. These circumstance, coupled with the defendant’s protracted and highly personal and threatening anterior conduct which the Court took into account, makes Frazer qualitatively more serious than the case before me, notwithstanding there were significantly fewer publications. 

    [398]At [89] pr McCallum J

26. In Fraser v Business News Group Pty Ltd[399] the Court awarded $150,000 (which included aggravated damages) observing that vindication was an important consideration where the plaintiff was a CEO of a substantial business and a board member of an industry association so any attack on his professional competence and ability had the potential to cause him substantial harm in the industry.  Publication was to operators in the industry where the plaintiff occupied a senior position and the grapevine effect operated, although the publication was limited in that it was only on the website for 2 days.  The plaintiff suffered stress and indignity. Aggravated damages were appropriate because the remarks made by the defendant were gratituous, the responses to the request for an apology were derisory and whilst the defendant pleaded justification, it abandoned the proceeding.  The Court noted that there were no allegations of criminality or dishonest conduct, there was no sustained or malicious campaign of harassment by the defendant and there was no direct evidence of harm to reputation, although some was to be assumed.[400]

    [399][2018] VSC 196

    [400]Fraser v Business News Group Pty Ltd [2018] VSC 196 at [43], [46]

1. In Zaia v Eshow[401] a bishop sued his former parishioner over a number of defamatory publications, including seven comments on the defendant’s Facebook page over a 9 month period. The defendant had between 264 and 332 Facebook ‘friends’ over the period of the posts and it was a publicly available page. The imputations found included that the Bishop was a hypocrite, unfit for his position, deserved to be punished for irresponsibly barring a parishioner (the defendant) from the Church, is worse than the terrorist organisation DAESH, is evil, is incompetent and is not fit to be a bishop because he is violent, a drunk and pursues dishonest gain. As the plaintiff did not give evidence he was not entitled to damages for hurt to feeing and the primary focus of the award was vindication of his reputation, which was strong. The Court found that given the relative positions of power (the bishop being more powerful than the parishioner), it was overwhelmingly likely that many readers would reject the extravagant claims made in the posts. Publication was accepted to have occurred to more than the defendant’s Facebook ‘friends’ but it was a matter of speculation how large that was. The Court awarded $150,000.  The Court noted that where another remedy, (a permanent injunction to restrain the defendant from repeating publication) was available, that served to reduce, to a limited extent, the quantum of damages which would be necessary to vindicate reputation into the future.[402]

   [401][2017] NSWSC 1540

   [402]Zaia op cit at [119] per McCallum J

2. In Cables v Winchester[403] the plaintiff, a prominent 60 year old businesswoman in Albury, and the franchisee of six McDonalds restaurants employing 500 people, sued the defendant over nine Facebook publications. The established imputations included that the plaintiff was dishonest, a bully, physically attacked staff, abused staff, underpaid staff, was mentally unstable and was a horrible person who only cared about money. The Facebook page was published to at least 9510 people who ‘liked’ it and 9477 who followed it, as well as being a publicly accessible site. It was accepted that the grapevine effect operated to that the publications would have extended beyond those who saw the actual page and it was accepted that the publications made their way to McDonalds Head Office, which took action post them and the relevant union which, in turn posted to Facebook request for people to contact it with complaints to follow up. The publications were taken down about 2 days after they were published.  The Court found that the plaintiff’s reputation within McDonalds had been damaged, as had her reputation in the Albury business community, the broader Albury community and with her own employees and that she had suffered significant emotional distress and damage (and amongst other things, required regular psychological help). The defamation was severe and the consequences significant.  There was no apology, no defence and a degree of malice in the motivation for the publications, all of which supported a claim for aggravated damages. A global award of $200,000 was made.  The established publication was greater in this case than on the facts before me.

   [403][2018] VSC 392

3. In Cripps v Vakras[404] the male plaintiff suffered six defamatory imputations which were sustained on the internet for over 4 years at the hands of one defendant. One of those was that he was a racist with views similar to those of Adolf Hitler, another that he sexually harassed staff and volunteers at his art gallery and another that he was a bellicose bully. The extent of publication over the internet was unknown. Damages of $250,000 were awarded plus aggravated damages of $100,000.

   [404][2014] VSC 279

4. In Polias v Ryall[405] established defamations included that the plaintiff was a thief.Each of the eight defamations had injured the plaintiff, a poker player, in the poker playing community and the grapevine effect had been most significant. Publications of some of the defamations remained on Facebook at the time of the hearing. The manner of the defendants’ conduct of proceedings (including maintaining defences of justification and truth, failing to apologise, threats to a witness, and giving evidence contrary to admissions, giving false evidence and cross examination of the plaintiff) and their attitude to the plaintiff was a source of aggravation and warranted aggravated damages. Damages, including aggravated damages, were awarded of $125,000 (first defendant), $130,000 (second defendant), $50,000 (third defendant) and $35,000 (fourth defendant).

   [405][2014] NSWSC 1692

5. In Sierocki there were ten publications, two by email and eight on a range of websites.[406] The first plaintiff and the first defendant were in a financial advisory business together for a short time but had fallen out. On two of the occasions the first defendant published defamatory material on websites that would not remove that material, even if the defendant requested it be removed. Publications continued to be made even after service of the proceedings.  The thrust of the comments included that the first plaintiff was a fraudster and a liar, an extortionist, evil, a thief and falsely portrayed himself as a lawyer. There was evidence of significant damage to the first plaintiff’s reputation in the community, significant distress caused to the first plaintiff and ongoing damage being cause by the publications remaining on the internet. The Court ordered $80,000 against the first defendant as general damages, no claim for aggravated damages having been made. Whilst there were fewer publications than by at least the first defendant, their tenor was similar. The ongoing – and seemingly perpetual - publication of those matters is a point of distinction from this case.   

   [406]There were a number of defendants which were corporate alter egos of the first defendant, so I have contained my analysis to the first defendant

6. Finally, although not expressly referred to by the plaintiff, there is Bolton v Stoltenberg.[407] The plaintiff, a former Mayor of the Shire Council, sued the first defendant, the operator of a public Facebook page, and the second defendant, who was a current councillor and, at the time of the publications, was the head of the local Ratepayers and Residents Association. After a falling out between the plaintiff and the first defendant, the first defendant published five posts on the Facebook page, with imputations allegedly arising that, inter alia, the plaintiff deliberately breached relevant legislation, was deliberately corrupt in the selection process for a new General Manager of the Council, engaged in deliberate lies, coercion and intimidation of various persons to suppress views of others on Council matters and was deliberately corrupt in providing information to a statutory body. The aggravated damages aspect of the case relied on further posts, made by the first defendant on the website, which compared the plaintiff and his conduct to that alleged against Mr Don Burke, Mr Craig McLachlan and Mr Harvey Weinstein. Many defences were abandoned shortly prior to the trial. The Court awarded $80,000 in general damages and aggravated damages of $20,000 against the first defendant, the latter sum relating to the further ‘Harvey Weinstein’ post which was improper, unjustifiable and found to be engaged in with a lack of bona fides.  The general damages award was described as relatively modest on the basis that whilst significant publication had occurred, the Court was cautious about the extent to which the various complained of matters were disseminated via ‘likes’ and ‘reposts’ rather than visits to the specific Facebook page.  

   [407][2018] NSWSC 1518

7. The following factors lead me to a conclusion that the sum of $140,000 including aggravated damages is the appropriate sum to award against the first defendant:

   (a)the number of comments, their nature and that the comments were made recklessly. The allegations of dishonesty, fraud and corruption are baseless and serious;

   (b)I have found the first defendant sought to damage the plaintiff in the hospitals debate;

   (c)that the plaintiff has suffered very significantly as a consequence of what has been said about her by the first defendant. To provide consolation for this suffering, and to afford the plaintiff vindication are important purposes for the award of damages;

   (d)that the extent of publication is less substantial than in some cases. In particular, the Ninth occasion, which contained some of the worst imputations and had a particularly negative impact on the plaintiff, was published to only one person. The Twentieth and Twenty-First occasion, which contained imputation of fraud were also not widely published;

   (e)there is no evidence that any of the established defamatory publications were still live at the time of the trial;

   (f)whilst I find the plaintiff had a good reputation generally, the plaintiff’s business reputation is not as established as in some other cases;

   (g)that there is evidence that the hospitals issue was a matter about which there were strong and polarised feelings in the community. As the plaintiff was strongly identified with one side of that debate, some members of the community (other than the defendants) were critical, to the point, on occasion, of being even defamatory of the plaintiff, in material before the Court. Notwithstanding that, other community members were defending her strongly, even towards the end of the period of the defamatory comments. Balancing these features of this case suggests that the plaintiff’s reputation in the eyes of the community was not universally damaged, with some people remaining strongly supportive of her throughout; and

   (h)whilst the first defendant pursued the pleaded defence at trial, the manner in which the case was conducted at trial, together with the fact that the defendants did personally apologise to the plaintiff at the end of the hearing, differentiates aspects of this matter from the more egregious features of some of the other cases.

8. The following factors lead me to a conclusion that the sum of $50,000 is the appropriate sum to award against the second defendant:

   (a)there were many fewer comments made;

   (b)I have not found the second defendant sought to damage the plaintiff in the hospital issue through her posts;

   (c)the allegations of fraud and corruption are baseless and serious. This defendant has not, however, made gratuitously defamatory comments of the plaintiff using words such as ‘evil’ and ‘dangerous’;

   (d)the plaintiff has suffered significantly as a consequence of what has been said about her by the second defendant. Again, to vindicate the plaintiff is a significant consideration; and

   (e)the extent of publication is much less substantial than in some cases. In particular, the Twenty-Fourth occasion was published to a very limited audience.   Whilst it was admitted the Tweet was published to at least 12 followers, there is no evidence the Tweet was liked or “tweeted” by anyone.

9. I award a further $25,000 against the first and second defendants jointly in respect of the three occasions which I have found they jointly participated in.  I fix this further amount cognisant of the amounts I have already awarded against each defendant personally.

   Interest on damages

10. Given the cumulative effect of the defamatory comments on the plaintiff, I propose to award interest on the global amounts payable from 6 July 2019. This is the last date a comment was posted (the Twentieth occasion) and is just prior to the concerns notice being sent. Interest will run to the date of judgment.

11. I fix the rate at 3% per annum.[408]

    [408]Whether to order interest, the rate of any interest and the period for which it is ordered is in the Court’s discretion: s 58 Civil Proceedings Act 2011 Qld. This is the rate adopted by Bradley J in O’Reilly v Edgar op cit at [235]

    Injunctions

12. I gave leave on the final day of the hearing for the plaintiff to file an amended prayer for relief[409] which sought injunctive relief in respect of material which may still be accessible on the social media platforms.

    [409]T5-7 ll 42 - 43

13. Although there is no evidence that any of the defamatory comments was able to be viewed at the time of the trial, it is an important part of righting the wrong done to the plaintiff that any material which might remain on the internet, and able to emerge at any time is not republished on any social media platforms into the future. The defendants indicated in submissions at the hearing they would be deleting their accounts and they would not oppose any such injunctions.[410]  In the circumstances of this case, I will make an order for injunctive relief against each defendant in respect of the comments I have found are defamatory.

    [410]T5-6 ll 5–7, 31

Costs

1. I will hear the parties as to costs.