Howe v Zuchowski

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0003

CAMERON HOWE	Applicant
v
SAM ZUCHOWSKI	Respondent
S EAPCI 2023 0011

CAVENDISH PROPERTIES PTY LTD (ACN 063 802 586)	First Applicant
AMBER ZUCHOWSKI	Second Applicant
v
CAMERON HOWE	Respondent

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JUDGES:	BEACH, LYONS JJA, J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2024
DATE OF JUDGMENT:	4 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 56
JUDGMENT APPEALED FROM:	[2022] VCC 1604 (Judge Lauritsen)

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DEFAMATION – Identification – Plaintiff not named in publications – Whether publications of and concerning plaintiff – Whether plaintiff identified in publications to those who knew extrinsic facts – Whether ordinary reasonable readers armed with requisite knowledge would understand defamatory imputations directed at plaintiff.

DEFAMATION – Defences – Innocent dissemination – Whether defendant was a subordinate publisher – Whether defendant did not know that publications were defamatory – Defence of innocent dissemination not made out.

DEFAMATION – Defences – Broadcasting Services Act 1992 (Cth), cl 91 of Sch 5 – Whether defendant was an internet content host – Whether defendant was not aware of nature of internet content published in third party comments on Facebook page – Defence not made out.

DEFAMATION – Damages – Extent of publication – Whether judge erred in conclusions about extent of publication – Grapevine effect – Whether judge erred in conclusions about the extent of grapevine – Damages assessed at $205,000 – Whether damages assessed manifestly excessive – Appeal allowed – Damages re-assessed at $70,000.

DEFAMATION – Defences – Qualified privilege – Public meeting – Whether what was said at public meeting on topic of controversy was said on occasion of qualified privilege – Whether what was said was excessive or not relevant to occasion of qualified privilege – Words said on privileged occasion covered by defence of qualified privilege – Appeal allowed – Trial judge’s judgment against defendants set aside.

Broadcasting Services Act 1992 (Cth), clauses 3, 90 and 91 of Sch 5, Defamation Act 2005, ss 30 and 32.

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Counsel
Applicant in proceeding S EAPCI 2023 0003/Respondent in proceeding S EAPCI 2023 0011	Mr T Sowden
Respondent in proceeding S EAPCI 2023 0003/First and Second Applicants in proceeding S EAPCI 2023 0011	Mr JA Castelan with Ms P Wakhlu
Solicitors
Applicant in proceeding S EAPCI 2023 0003/Respondent in proceeding S EAPCI 2023 0011	William Mulholland + Co Lawyers
Respondent in proceeding S EAPCI 2023 0003/First and Second Applicants in proceeding S EAPCI 2023 0011	Sutton Laurence King Lawyers

BEACH JA
LYONS JA
J FORREST AJA:

There are two applications for leave to appeal before the Court. They arise from orders made following the trial of two related defamation proceedings.
In the first proceeding (‘the Zuchowski proceeding’), Sam Zuchowski successfully sued Cameron Howe in respect of ten publications which variously appeared for periods of time in 2019, on a Facebook page (‘the Forum Facebook page’) then administered by Mr Howe. In the Zuchowski proceeding, the plaintiff (Mr Zuchowski) was awarded damages in the sum of $205,000.[1]
[1]Zuchowski v Howe [2022] VCC 1604, [340] (‘Reasons’).
In the second proceeding (‘the Howe proceeding’), Mr Howe sued Cavendish Properties Pty Ltd (‘Cavendish’) and Amber Zuchowski (Mr Zuchowski’s daughter) in respect of a statement made by Ms Zuchowski, in her capacity as the development manager of Cavendish, at a City of Kingston Council meeting held on 22 May 2019 (‘the Council meeting’). In the Howe proceeding, Mr Howe was awarded damages in the sum of $15,000 against Cavendish, of which Ms Zuchowski was jointly liable for $10,000.[2]
[2]Ibid [419].
The defendants in each proceeding (Mr Howe in the Zuchowski proceeding; and Cavendish and Ms Zuchowski in the Howe proceeding) now seek leave to appeal (and, if leave is granted, to appeal) the orders made against them by the primary judge.
In the Zuchowski proceeding, Mr Howe advances four proposed grounds of appeal. Essentially, Mr Howe contends that the judge:
•erred in finding that Mr Zuchowski was identified in any of the ten Forum Facebook page publications (proposed ground 1);
•erred in rejecting Mr Howe’s defence of innocent dissemination pursuant to s 32 of the Defamation Act 2005 (proposed ground 2);
•erred in rejecting Mr Howe’s defence under cl 91 of Sch 5 of the Broadcasting Services Act 1992 (Cth) (proposed ground 3); and
•erred in his assessment of Mr Zuchowski’s damages (proposed ground 4).
By a notice of contention in relation to proposed ground 3, Mr Zuchowski seeks to support the judge’s rejection of the Broadcasting Services Act defence on grounds additional to those relied upon by the judge.
In the Howe proceeding, Cavendish and Ms Zuchowski advance three proposed grounds of appeal. Essentially, they contend that the judge:
•erred in rejecting their defence of qualified privilege at common law (proposed ground 1);
•erred in rejecting their defence of statutory qualified privilege pursuant to s 30 of the Defamation Act (proposed ground 2); and
•erred in ordering costs against them (proposed ground 4).[3]
[3]Proposed ground 3 was abandoned during the hearing.
By a notice of contention in relation to proposed ground 1, Mr Howe seeks to support the judge’s rejection of the common law qualified privilege defence on grounds additional to those relied upon by the judge.

Background facts

Mr Howe set up the Forum Facebook page, called the Carrum Patterson Lakes Forum Facebook Page, in 2010 when he was 16 years of age. He established the Forum Facebook page as a means of promoting issues of concern to the Carrum and Patterson Lakes communities.
In 2019, the Forum Facebook page had around 6,000 to 7,000 users. Mr Howe gave evidence that it successfully oversaw the funding of local projects and gave the community a voice on, and awareness of, issues that could include over-development and planning issues.
Cavendish is the major property developer in a precinct known as the Patterson Lakes Marina precinct (‘the Marina precinct’). Mr Zuchowski is one of two directors of Cavendish. The other director is Mr Zuchowski’s son, Adam. As we have already said, Mr Zuchowski also has a daughter, Amber, who, at the time of the Council meeting, was the development manager of Cavendish.
Cavendish purchased the Marina precinct in 1994 or 1995. At that time, the only structure in the precinct was a dry stack shed, about six storeys high, used to house boats. Otherwise, the Marina precinct consisted of vacant land and did not have any services. Following its acquisition, Cavendish developed the Marina precinct. In the course of doing so, it:
•excavated the Marina precinct to create a basin and filled it with water to create the Marina basin;
•developed and sold between 150 to 200 lots and provided services to those lots, including water, electricity, sewage, telephone and roads, having subdivided about 100 lots of land;
•developed properties such as the Cove Hotel, the main hotel in the Marina precinct;
•made numerous planning applications to the City of Kingston (‘the Council’) regarding the Marina precinct; and
•was delegated by the Council as the responsible authority for approving the design of every townhouse that was developed in the Marina precinct.
By about 2019, approximately 1,000 people lived in the Marina precinct — a gated community with properties situated around the Marina basin. The residents stored their boats in the Marina, either in the dry stack shed or by mooring them outside their homes. The inhabitants of the Marina precinct were well known to each other and ‘living in the Marina was like living in a village’.[4]
[4]Reasons, [10].
Mr Zuchowski was the public face of Cavendish. Some people thought his surname was Cavendish. When there was an issue with the Marina precinct, he was the person to whom others came. From a development perspective, he made practically every decision except for Council approval. Outwardly, he was truly a ‘one-man band’.[5]
The publications sued upon by Mr Zuchowski in the Zuchowski proceeding
[5]Ibid [229].
In March 2018, the Council approved an application by Cavendish for the construction of three apartment buildings in the Marina precinct (‘Marina Quay Development’). The endorsed plans complied with the Comprehensive Development Zone Plan 1999, which required three car parking spaces for each apartment. In July 2018, Cavendish made an application numbered KP–2018/459 (‘the Cavendish application’) to reduce the number of carparks required.
The Cavendish application became a matter of discussion on the Forum Facebook page. On 10 February 2019, Mr Howe uploaded a lengthy post on the Forum Facebook page. The opening paragraph of the post was as follows:
!!COVE CAR PARKING REDUCTION FOR HIGH RISE TOWERS: We submitted a 35 page letter this week in response to the car parking reduction under permit KP–2018/459, to construct two 10-storey towers and a 3-storey building in The Cove precinct. Further planning documents from the City of Kingston were repeatedly requested and not supplied, leaving our committee to respond to the application with the information available at this time.
The post then set out 12 dot points which were said to be ‘in summary’ of relevant matters. These dot points made various assertions that irrelevant documents containing outdated information were being considered; VicRoads had not been consulted about a particular matter; there had been breaches of two other permits; a recent car parking reduction had ‘congested the precinct’; there had been ‘a failure to construct footpaths to account for increased traffic volumes and pedestrians’; and that the existing car parking had ‘been double counted for multiple uses for a site that is accessed by residents, visitors, hotel patrons …’. The post concluded:
To reiterate this car parking reduction must not proceed under any circumstances and would result in an unmitigated disaster for current and future residents. A car parking reduction is a permanent decision, forever cementing the suburb’s prolific congestion and parking issues. We are seeking for the immediate termination of the process and refusal of application KP–2018/459.
From 10 February 2019 onwards, the Forum Facebook page attracted comments from readers. Those comments, together with Mr Howe’s original post and subsequent posts made by him, formed the publications upon which Mr Zuchowski sued. None of the posts named Mr Zuchowski, although three of them referred to ‘Cavendish’, with one of those three also referring to Adam Zuchowski. As to the comments posted by others, none of these named Mr Zuchowski, except for one of the comments in the seventh publication, in which the name ‘Sam’ appeared. More particularly, the publications upon which Mr Zuchowski sued were as follows:
(1)The first publication consisted of Mr Howe’s 10 February 2019 post and the following comment:
Billy Zeitoune:          $$$ talks.
(2)The second publication was a comment made on the Forum Facebook page,[6] on about 15 May 2019,[7] as follows:
[6]For completeness, we should note that, while the judge correctly described the second publication as consisting of a comment at Reasons [86], at Reasons [141]–[145] his Honour described the second publication as comprising both the post on which the comment was made and the comment. That said, no issue was taken by Mr Howe, before us, in relation to the later erroneous description.
[7]For completeness, we should note that the various dates on which publications commenced being made were the subject of admissions in Mr Howe’s defence and were not the subject of any dispute at trial.
Mike Hildred:           I would think the serious money was ‘invested’ long ago … cant trust councils or developers from what I have unfortunately seen.
(3)The third publication consisted of a post, made by Mr Howe on about 21 May 2019, which referred specifically to Cavendish and named Adam Zuchowski, together with the comment:
Carol Flanagan:         After reading about the lack of transparency, delayed in the release of relevant documents, questions raised over the developers integrity how could the council approved such a radical change the clearly stipulated car parking requirement.
(4)The fourth publication consisted of a post, made by Mr Howe on about 7 August 2019, related to Cavendish’s development at Pier One Drive in the Marina precinct, together with the comment:
Blane Pritchard:        Someone’s getting sus Brown paper bags from certain parties.
(5)The fifth publication consisted of the following comments, made from about 6 September 2019:
Lloyd Borrett:           And if the developer has the connections to work around the rules like this one would think they might be prepared to cut other corners.
Zachariah Crombie:    Who’s pushing this one and paying who under the table…
Rik Price:This utterly stinks. Over-development 100%. Either the system is broken or someone is on the take.
(6)The sixth publication consisted of a post, made by Mr Howe on about 23 September 2019, which spoke of a scandal relating to contamination from ‘ageing fuel tanks from the site of an approved tower’, together with the comment:
Andrea Kemp:           So whose pockets are being lined at Kingston. This is beyond ridiculous and a full investigation needs to be undertaken at KCC!
(7)The seventh publication consisted of a post, made by Mr Howe on about 27 September 2019, which referred to the developments of Cavendish, together with the following comments:
Andrew Doran:         His contribution? That’s rich. His contribution is to rape the face of Patterson Lakes for money, then back to Toorak for gefilte fish………
Andrew Doran:         Fidel Ami Cato he came in when the original developer went belly up, picked up the asset for relative peanuts and has been getting fat off it ever since. He is not our saviour, he is a self aggrandising cynical thief
Andrew Doran:         Fidel Ami Cato actually there is a lot we can and are doing about it……Sam’s still not there yet. The probity of the ‘approval’ he has got is under investigation. He hasn’t won at VCAT. He’s lost all support at Council including any special friends in Planning. And he has to sell a percentage to get finance… not easy in today’s market. He can’t even sell the rest of his Pier One holding and that’s been four years now….
Michelle Doran:        I am totally disgusted with Kingston Council. A full review of the planning approval should be undertaken, no body in their right mind would approve such a grotesque over development of this site. This developer is corrupt and council is not much better
Sarah Victoria:          A cowboy developer doing as they please because no one stopped them
Leanne Hutchinson:    This developer seems to do as they wish without concern for rules or anyone else. Seems they might have people in their pockets on the council. Needs to be stopped.
Shaun Mulcahy:        Under the table deals again. Disgraceful
Reece Cliff:looks dodgy as
Vivienne Daniells     How much money does a person need? Why not retire and enjoy his ill gotten gains...
(8)The eighth publication consisted of a post, made by Mr Howe on about 1 October 2019, which specifically referred to Cavendish, together with the comment:
Christine Sullivan:    It is a disgrace that one greedy developer can destroy the look and feel of a suburb
(9)The ninth publication consisted of a post, made by Mr Howe on about 17 October 2019, which stated that the new CEO of the Council had agreed ‘to an investigation into the Cove’s governance issues’, together with the comment:
Ken Taylor:You could probably find similar ‘errors’ in planning law relating to the marina workshop when it was relocated into a residential area in Inner Harbour Drive. I regard it as corruption
(10)The tenth publication consisted of a post, made by Mr Howe on 6 December 2019, which referred to the Melbourne Racing Club’s deal with Cavendish for a 30-year lease of the Cove Hotel, together with the comment:
Paul Kika:Hope the developers choke on the next meal, filthy animals
In 2019, Mr Zuchowski instituted proceedings in the County Court of Victoria against the authors of four of the comments within the seventh publication, Andrew and Michelle Doran. The Dorans received a Concerns Notice dated 23 October 2019 and removed their comments from the Forum Facebook page. The proceeding was settled in January 2020 on terms that required the Dorans to pay Mr Zuchowski the sum of $45,000.
Immediately or so soon after upon receiving a Concerns Notice from the solicitors for Mr Zuchowski dated 12 December 2019, Mr Howe blocked access to the Forum Facebook page and removed the publications from it.
The publication sued upon by Mr Howe in the Howe proceeding
On 19 February 2019, Mr Howe wrote and uploaded the following onto the Forum Facebook page:
COVE HOTEL UNDER THREAT: will it remain commercially viable with reduced parking? Join the City of Kingston Planning Consultation tomorrow, 5-6pm at PL Community Centre.
There was a public consultation meeting in relation to the Cavendish application that was arranged by the Council on 20 February 2019. It was attended by objectors, Ian Nice (Chief Planning Officer from the Council), Mr Zuchowski on behalf of Cavendish and a traffic engineer. Around 100 to 150 people were present. The meeting lasted about 90 minutes and Mr Zuchowski was asked more than a hundred questions (although, in his evidence at trial, Mr Howe disagreed as to the length of the meeting and the number of questions which were asked). Mr Howe asked questions sufficiently aggressively for Mr Nice to threaten to have Mr Howe removed.
The Council meeting to determine whether the Cavendish application would be approved was scheduled for 22 May 2019.
On 15 May 2019, Mr Howe uploaded a post onto the Forum Facebook page which stated if the Cavendish application were approved, then the Cove Hotel would be in breach of its car parking permit. The post provided:
!! ALERT: approval of the car parking reduction enabling the high-rises to proceed will breach The Cove Hotel’s car parking permit. How does this make you feel?
Make some noise. Come to the Council’s decision on Wednesday. Register here.
The judge found that this statement was false, although he also concluded that Mr Howe did not realise that the statement was false.[8]
[8]Reasons, [125], [377], [380].
On 21 May 2019, Mr Howe created another post which referred to the Cavendish application, Adam Zuchowski and an alleged involvement in a land banking development. This post is part of the third publication. The post provided:
!!ATTENTION! As a committee we have experienced significant issues with the City of Kingston, in terms of documents not being supplied, preventing us from responding adequately to The Cove application by Cavendish Properties. …
This begs the question: can you trust the Zuchowski’s (sic) to deliver on their word?
…
The Endeavour Cove Comprehensive Development Plan 1999 says that they must consider: ‘The demand for car spaces generated by the uses established in previous stages of the development.’ This would mean not allowing the applicant to build on parking previously set aside for a different use or counting parking spaces for multiple purposes, i.e. parking provided for the marina cannot then be counted again for hotel patrons.
Increasing the population, while almost halving the parking would cement our suburb’s parking issues forever, in addition to enabling the business case for the towers to stack up.
PLEASE attend the council’s decision tomorrow night at 7pm at their Cheltenham offices at 1230 Nepean Hwy!

The Council meeting then took place on 22 May 2019. Around one hundred people were present and the purpose of the meeting was for the Council to determine whether it would approve or reject the Cavendish application. Mr Howe gave evidence about the attendees:
They’re there largely because the event’s been promoted and advertised online on the page I operate. Everyone sort of knows that.
During the Council meeting, Andrew Doran (whose comments formed part of the seventh publication) spoke on behalf of the objectors. In the course of his speech, Mr Doran criticised Cavendish’s traffic report, saying that there were ‘a number of blatant errors in the report’. He also criticised the Council’s planning report as ‘equally misleading’. In respect of a planning tool referred to as ‘CDZ1’, he noted that the Council planning report recommended that it (CDZ1) be ignored, without any ‘actual evidence’ as to why it should be ignored. He concluded his statement by saying:
The proposal will detrimentally affect the amenity of the neighbourhood, the traffic congestion that is inconsistency with the car parking requirements, there is no reason to circumvent CDZ1 other than because the developer wants it. Don’t fall for the con job, uphold it and I have one more quick point. On Saturday, May 11th , the intersection of McLeod Rd and Pier One Drive saw its first fatality. It will not be the last, every councillor who votes in favour of this proposal, will bear some responsibility for the future deaths that occur here. Please let good sense prevail, just say no. Thank you.
Amber Zuchowski then spoke on behalf of Cavendish immediately following the Doran statement. Ms Zuchowski spoke for approximately three minutes. In the course of her speech, she sought to explain the reason for, and appropriateness of, the Cavendish application. Her remarks at the end of her speech constitute the publication upon which Mr Howe sued Cavendish and Ms Zuchowski in the Howe proceeding. Specifically, at the end of her speech, Ms Zuchowski said:
I realise that now this has become an incredibly politically sensitive topic, due to the lies, the blatant misinformation from a Facebook warrior that has online been delivering fake news and misinformation with murky motives.
The judge found that Ms Zuchowski believed in the truth of what she said in her statement.[9]
[9]Ibid [354], [379], [411], [414].
The Council meeting was live streamed and the recording was made available for viewing on the Council’s website. However, there was no evidence that Ms Zuchowski’s statement was viewed by any person, whether on the live stream or the recording that was retained on the Council’s website.

THE APPEAL IN THE ZUCHOWSKI PROCEEDING

Before turning to the four proposed grounds of appeal in the Zuchowski proceeding, it is necessary to summarise his Honour’s reasons for concluding that Mr Zuchowski was defamed by Mr Howe in the ten publications complained of, and entitled to an award of damages in the sum of $205,000.

The judge’s reasons

The judge commenced his reasons for judgment by noting that the issues in the Zuchowski proceeding were:
•whether Mr Howe published the matters complained of;
•whether the matters complained of conveyed the imputations pleaded by Mr Zuchowski;
•whether the publications complained of were of and concerning Mr Zuchowski;
•whether Mr Howe’s defence under s 32 of the Defamation Act was made out;
•whether Mr Howe’s defence under cl 91 of Sch 5 of the Broadcasting Services Act was made out; and
•the amount of any damages.[10]
[10]Ibid [4].
The judge then set out the background facts, to which we have already referred, in some detail.[11] In the course of doing so, his Honour referred to Mr Howe, the Zuchowskis and an expert, Vanessa Paech.
[11]Ibid [9] et seq.
The judge described Ms Paech as ‘an expert in social media including Facebook’.[12] He summarised her evidence as being that, as the administrator of the Forum Facebook page in 2019, Mr Howe had available to him a number of tools which could block material uploaded by a third party. These included a tool which allowed an administrator to read the comments of third parties and prevent their appearance on the Facebook page; a tool triggered by the appearance of a word or phrase; a tool which could stop all comments from being published until they were reviewed by the administrator; and a ‘block word’ tool, which enables an administrator to upload a series of popular block-word lists available on the internet.[13] Additionally, his Honour noted Ms Paech’s evidence about ‘moderation permissions’, which permit an administrator to edit a post, delete the post entirely, or hide it; and her evidence that an administrator can suspend or ban a user, a facility Mr Howe had used to prevent an employee of a company referred to as Marina Operations, Susanne Gadsby,[14] from posting on the Forum Facebook page.[15]
[12]Ibid [43].
[13]Ibid [44]–[46].
[14]Referred to in the transcript of her evidence as Susanne Gatsby.
[15]Reasons, [47].
With reference to Mr Howe, the judge said that the strength of the evidence enabled him to make a positive finding that Mr Howe was ‘well aware of the comments, the subject of this proceeding, at or near the time of their posting’.[16]

The imputations

[16]Ibid [68].

Having described the ten publications in some detail,[17] the judge turned to the question of what imputations were conveyed. His Honour held that:
[17]Ibid [80]–[100].
(1)The first publication conveyed:
(a)Mr Zuchowski was using money to taint the planning process relating to Cavendish’s application; and
(b)he was acting in a corrupt manner in relation to that application.[18]
[18]Ibid [138]–[140].
(2)The second publication conveyed:
(a)Mr Zuchowski corruptly paid representatives of the Council so that Cavendish would receive favourable treatment from those representatives; and
(b)he cannot be trusted to act honestly when dealing with Council representatives.[19]
[19]Ibid [141]–[145].
(3)The third publication conveyed:
Mr Zuchowski lacks integrity as a developer.[20]
[20]Ibid [146]–[151].
(4)The fourth publication conveyed:
(a)Mr Zuchowski bribed a council representative; and
(b)he acted in a corrupt manner in his dealings with the Council.[21]
[21]Ibid [152]–[154].
(5)The fifth publication conveyed:
(a)Mr Zuchowski was prepared to break the law;
(b)he had bribed representatives at the Council;
(c)he had acted in a corrupt manner when dealing with the Council.[22]
[22]Ibid [155]–[158].
(6)The sixth publication conveyed:
Mr Zuchowski bribed a Council representative and acted in a corrupt manner in his dealings with the Council.[23]
[23]Ibid [159]–[161].
(7)The seventh publication conveyed:
[Mr Zuchowski] has no regard for the area and uses it to make himself rich; he is a thief; he has bribed Council representatives; and he is corrupt.[24]
(8)The eighth publication conveyed:
[Mr Zuchowski] has a callous disregard for the Patterson Lakes community and uses the marina district just to make himself rich.[25]
(9)The ninth publication conveyed:
[Mr Zuchowski] had engaged in corrupt dealings with the Council.[26]
(10)The tenth publication conveyed:
Mr Zuchowski is a contemptible person.[27]

Whether the publications were of and concerning Mr Zuchowski

[24]Ibid [162]–[164].

[25]Ibid [165]–[167].

[26]Ibid [168]–[169].

[27]Ibid [170]–[171].

Notwithstanding the judge’s references to Mr Zuchowski in the imputations he found had been conveyed by the ten publications, his Honour turned to the question of whether or not the defamatory statements were ‘of and concerning Mr Zuchowski’. The judge referred to a number of relevant authorities, including E Hulton & Co v Jones,[28] David Syme & Co v Canavan,[29] Cassidy v Daily Mirror Newspapers Limited,[30] Lee v Wilson & MacKinnon,[31] and Triguboff v Fairfax Media Publications Pty Ltd.[32] In the course of doing so, his Honour identified the following propositions:
(a)it is irrelevant whether the publisher intended to refer to the plaintiff or not. The test in libel is objective: it depends on what the reader understood – not what the writer intended;
(b)it is also irrelevant whether the publisher knew of the person’s existence;
(c)it is irrelevant that the publisher did not know or could not have known the facts which cause readers with special knowledge to link the statement to the plaintiff;
(d)extrinsic evidence is admissible to connect the plaintiff with the person related to in the article.[33]
[28][1910] AC 20 (‘Hulton’).
[29](1918) 25 CLR 234 (‘Canavan’).
[30][1929] 2 KB 331 (‘Cassidy’).
[31](1934) 51 CLR 276 (‘Lee’).
[32][2018] FCA 845 (‘Triguboff’).
[33]Reasons, [182] (footnote omitted).
The judge then referred to the evidence called on the issue of identification, making specific reference to two witnesses: Ian Busch[34] and Mathew De Leeuw.[35] Mr Busch lived in the Patterson Lakes Marina area between 2000 and 2021. Mr De Leeuw had lived in the Marina area for the ten years leading up to trial. The judge noted Mr Busch’s evidence that Cavendish and Mr Zuchowski are ‘one and the same’;[36] and Mr De Leeuw’s evidence that Mr Zuchowski ‘pretty much’ developed the Marina precinct, and that many thought Mr Zuchowski’s surname was Cavendish.[37]
[34]Referred to in the transcript of his evidence as Ian Bush.
[35]Referred to in the transcript of his evidence as Matthew Deleeuw.
[36]Reasons, [213].
[37]Ibid [217].
The judge referred to the evidence of Mr Busch and Mr De Leeuw as falling into the category ‘exemplified by the cases of Hulton and Cassidy’.[38] He said that these witnesses had ‘special information’, and that Ms Gadsby, and Adam and Ms Zuchowski also fell into that category, as would many in the Marina precinct who read the comments.[39]
[38]Ibid [218].
[39]Ibid.
The judge also referred to the evidence of witnesses called by Mr Howe who had made comments in some of the publications, but who gave evidence that they did not know the name Sam Zuchowski. These were Christine Sullivan, who made a comment which was part of the eighth publication; Zachariah Crombie, who made a comment which was part of the fifth publication; and Sarah Nielsen, who made a comment, under the name ‘Sarah Victoria’, which was part of the seventh publication.[40]
[40]Ibid [224]–[227].
The judge concluded the identification section of his reasons for judgment by saying:
I am satisfied in the marina area, there were many tens, perhaps hundreds, of persons who reasonably believed the comments in the publications referred to Mr Zuchowski. ‘Tens’ or ‘hundreds’ because the population of the marina area was very small and, I daresay, a portion of the population were persons who would not be interested (eg, children).[41]

The defences of innocent dissemination

[41]Ibid [234].

The judge commenced his analysis of the innocent dissemination defences by setting out the relevant parts of ss 32(1) and (2) of the Defamation Act which provide for the statutory defence of innocent dissemination. Those sections provide:
(1)It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
(b)the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
(c)the defendant's lack of knowledge was not due to any negligence on the part of the defendant.
(2)For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person—
(a)was not the first or primary distributor of the matter; and
(b)was not the author or originator of the matter; and
(c)did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.
Following obiter dicta in Rothman J’s decision at first instance in Voller v Nationwide News Pty Ltd,[42] the judge concluded that Mr Howe was a primary distributor of the defamatory comments that made up the ten publications, and that his statutory defence of innocent dissemination was thus not made out.[43] The judge also concluded that the requirements of s 32(1)(b) and (c) were not made out by Mr Howe.[44]
[42][2019] NSWSC 766 (‘Voller (first instance)’).
[43]Reasons, [257].
[44]Ibid [259]–[264].
In addition to rejecting the statutory defence of innocent dissemination, the judge rejected Mr Howe’s common law defence of innocent dissemination. The judge rejected the common law defence of innocent dissemination because Mr Howe could not establish that he did not know that the comments that formed part of each of the ten publications were libellous, nor that he was ignorant of them.[45]

The Broadcasting Services Act defence

[45]Ibid [265]–[267].

The judge commenced his analysis of the Broadcasting Services Act defence by setting out the relevant parts of cl 91(1) of Sch 5 of that Act. Specifically, cl 91(1) provides:
(1)A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(a)subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or
(b)requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host;
Following obiter dicta in Basten JA’s judgment in the New South Wales Court of Appeal decision of Fairfax Media Publications PtyLtd v Voller,[46] the judge concluded that, while Mr Howe was an ‘internet content host’ within the meaning of cl 91(1), and Mr Zuchowski’s claims were ‘in respect of hosting particular internet content’ within the meaning of cl 91(1)(a),[47] his Honour did not accept that Mr Howe was ‘not aware of the nature of the internet content’.[48] His Honour thus concluded that the defence provided by cl 91(1)(a) was not made out.
[46][2020] NSWCA 102 (‘Voller (CA)’).
[47]Reasons, [291]–[292].
[48]Ibid [300]–[303].
As to cl 91(1)(b), the judge noted that Mr Howe did not rely on the defence provided by this paragraph.[49]

Damages

[49]Ibid [272], [290], [304].

Having concluded that Mr Howe’s publications were defamatory of Mr Zuchowski and that none of Mr Howe’s defences had been made out, the judge turned to the issue and assessment of Mr Zuchowski’s damages. His Honour commenced his analysis by setting out some relevant principles in relation to damages, as follows:
(a)The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation. The assessment of general damages is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula.
(b)The sum awarded must demonstrate vindication of the plaintiff’s reputation. The level of damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment.
(c)The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge. At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.
(d)Section 34 of the [Defamation] Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
(e)The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
(f)In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.
(g)It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages. Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.[50]
[50]Ibid [306].
Next, the judge referred to the witnesses who gave evidence at trial and who described Mr Zuchowski’s reputation as ‘very moral, honest, hard-working and trustworthy’; ‘a positive reputation throughout the marina area’; ‘very professional and courteous’; and ‘relatively well liked in the marina’.[51] The judge made specific reference to the evidence of Mr De Leeuw and Mr Busch. The judge also referred to an episode in which Mr Zuchowski’s motor vehicle was ‘keyed’. His Honour said:
Mr Zuchowski’s Porsche motor vehicle was ‘keyed’. Mr De Leeuw knew the car and its registration number because they were both distinctive. It is too much of a coincidence that his distinctive car was unmolested over the years and yet is damaged during the time of these publications. I am satisfied the damage to Mr Zuchowski’s motor vehicle is linked to them. This shows the depth of feeling in, at least, one person towards Mr Zuchowski.[52]
[51]Ibid [307].
[52]Ibid [312].
Next, the judge dealt with Mr Zuchowski’s feelings. The judge noted Mr Zuchowski’s concern for the effect of the defamatory publications on his relationship with the Council and financiers, and Adam Zuchowski’s evidence of his observation of the effect of the publications on his father.[53]
[53]Ibid [313]–[318].
The judge discussed the issue of aggravated damages, before concluding that such damages were not justified.[54]
[54]Ibid [325].
Having dealt with the extent of publication when earlier dealing with the issue of identification, the judge returned to the extent of publication on the issue of damages. After again referring to the evidence of Mr Busch and Mr De Leeuw, and in particular their evidence that ‘the grapevine effect applied’,[55] the judge said:
The posts and comments were able to be read by the residents of the marina area. They were also available to residents of the suburb of Patterson Lakes and neighbouring suburbs. The potential audience was significant, numbering thousands. While the early comments may have had limited audiences initially, as the reactions mounted, more and more people became involved. One would expect some of the people to read what had been published earlier.[56]
[55]Ibid [333].
[56]Ibid [335].

The judge concluded his analysis of the damages to be awarded to Mr Zuchowski by saying:
It is seriously defamatory to describe a property developer as corrupt and who has bribed a council. What people mean by the word ‘corruption’ can take many forms but bribery is a criminal offence. To these are added a greedy developer and a contemptible person. These descriptions have an individual and cumulative defamatory effect. Since these kinds of statements were made repeatedly, it is little wonder they adversely affected Mr Zuchowski's reputation, his relationship with residents of the marina area and with the Council.
Before these publications, for many years, Mr Zuchowski enjoyed an excellent reputation. For those who knew him professionally, he could not be faulted.
Among other things, Mr Zuchowski’s counsel stressed the importance of damages sufficient to convince a bystander of the baselessness of the allegations in the publications. It was submitted his damages should be in the range of $250,000 to $300,000, subject to the need to deduct the amounts paid by Mr and Mrs Doran. Accordingly, he seeks damages, including aggravated damages, in the range of $205,000 to $255,000.
Returning to the purposes of damages in this context, Mr Zuchowski was deeply hurt by what was said. His reputation was badly damaged and there is a corresponding need to vindicate his reputation. I have strived to gauge the size of the audience who would believe Mr Zuchowski was being defamed in the comments. I am satisfied it would include many of the adult population of the marina area. But beyond that area, it becomes doubtful. None of the witnesses called by Mr Howe knew of Mr Zuchowski. Each lived outside the marina area but in the general vicinity of it. I agree with the lower figure submitted by his counsel after deducting the amount paid by Andrew and Michelle Doran. Accordingly, I will award Mr Zuchowski the sum of $205,000 in damages.[57]
[57]Ibid [337]–[340].

Proposed ground 1: identification

The proposed ground of appeal

Proposed ground 1 is expressed as follows:
The learned judge erred in law in finding that the publications (and in particular the first to sixth publications and the eighth to tenth publications) were of and concerning [Mr Zuchowski] and not ... [Cavendish].
While proposed ground 1 is formulated in terms of an error of law (as is proposed ground 3), an appeal to this Court is, of course, an appeal by way of rehearing as described by the High Court in Fox v Percy.[58] Such an appeal is not limited to one involving only errors of law.
[58](2003) 214 CLR 118.
Moreover, Mr Howe’s arguments under proposed ground 1 traversed both matters of law and questions of fact. In the circumstances, we do not propose to limit our consideration of proposed ground 1 merely to whether the judge erred in law. Rather, we will address proposed ground 1, as required by Fox v Percy, by reference to whether the judge made a relevant error of fact and/or law. We will take the same approach in relation to the other complaints of error made by the parties in these applications.

Mr Howe’s submissions

In his submissions under proposed ground 1, Mr Howe acknowledged that there was evidence given at trial that Mr Zuchowski was the public face of Cavendish and that defamatory comments in the publications, which referred directly or indirectly to Cavendish, ‘were known by at least some to refer to [Mr Zuchowski]’. Mr Howe contended, however, that neither the posts published by him, nor the comments (save for a comment which formed part of the seventh publication) referred to Mr Zuchowski by name. He then contended:
The fact that an individual director might be associated in the public’s mind, however notoriously, with a particular company does not mean that publications defamatory of the company must necessarily be defamatory of the director.
In support of that contention, Mr Howe submitted that s 9(1) of the Defamation Act (which provides that certain corporations do not have a cause of action for defamation) ‘would be deprived of force if, every time a corporation was defamed, a director could stand in its shoes merely because he or she was associated with the company in the minds of certain members of the public’. Mr Howe submitted that, in order to ‘lift the corporate veil’ and avoid the prohibition under s 9(1), there needed to be ‘something in the body of the published material identifying the director’. He submitted that, save for the reference to ‘Sam’ in one of the comments in the seventh publication, there was nothing in the publications which pointed specifically to Mr Zuchowski. In summary, Mr Howe contended that:
An ordinary and reasonable reader would assume the entity referred to was the developer and the developer was Cavendish. Accordingly, the comments (save for comment number seven) were not of and concerning [Mr Zuchowski].

Proposed ground 1: consideration

The principles concerning the issue of identification in defamation proceedings are well settled. In order to be actionable at the suit of a plaintiff, the allegedly defamatory material must be published of and concerning that plaintiff. The test for determining whether the plaintiff is sufficiently identified is whether ordinary, reasonable readers of the publication would understand that the matter complained of and the imputations thereby conveyed were directed at the plaintiff. Where the plaintiff is not named, but is allegedly identified to readers with knowledge of particular extrinsic facts, the specific question to be asked is whether ordinary, reasonable readers, armed with the requisite knowledge, would understand the defamatory imputations to be directed at the plaintiff.[59]
[59]See generally Hulton [1910] AC 20; Canavan (1918) 25 CLR 234, 238 (Isaacs J); Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1252 (Lord Morris).
The judge concluded that the ten publications made by Mr Howe conveyed a number of defamatory imputations, including imputations of corruption, dishonesty and bribery. While the question of whether some of those imputations were actually conveyed might have been capable of debate, in this Court no issue was taken by Mr Howe as to the imputations found by the judge — save for Mr Howe’s contention that they were conveyed in respect of the developer, Cavendish, and not Mr Zuchowski. Additionally, while the third, fourth and sixth to tenth publications each consisted of a post and a comment or comments, the imputations found by the judge to have been conveyed by those publications were said by his Honour to have been conveyed by the comments in them, without any reference to the accompanying posts.[60] That said, no party took issue before us about the judge’s findings that particular imputations were conveyed by only parts of the third, fourth and sixth to tenth publications.
[60]Reasons, [150]–[151], [153]–[154], [160]–[161], [163]–[164], [166]–[167], [169] and [171].
Proposed ground 1 puts in issue the judge’s conclusion that there were ordinary, reasonable readers of each of the publications who, by reason of their knowledge of the circumstances of the development of the Marina precinct, would have understood the defamatory imputations conveyed by the publications to be directed at Mr Zuchowski.
The judge’s conclusions that Mr Zuchowski was the public face of Cavendish, that some people thought his surname was Cavendish, and that outwardly, he was truly a ‘one-man band’, were not disputed by Mr Howe in this Court. On the evidence of Mr Busch and Mr De Leeuw, and on the facts as found by the judge and not put in issue in this Court, we see no error in the judge’s conclusion that each of the publications was read by at least one person who, because of their knowledge of the circumstances surrounding the development of the Marina precinct, reasonably understood the defamatory imputations conveyed by the publications to be directed at Mr Zuchowski. The real question is the number of readers who possessed knowledge of the requisite extrinsic facts who read the publications and identified Mr Zuchowski as the person (or a person) to whom the defamatory imputations were directed. That is a matter to which we will return in greater detail when considering Mr Howe’s proposed ground 4 dealing with the issue of damages.
First, it is not to the point that Mr Howe may not have had any intention to refer to, or to defame, Mr Zuchowski. The question of whether a plaintiff is sufficiently identified depends upon whether ordinary, reasonable readers, armed with the requisite knowledge of any relevant extrinsic facts, would understand the matter complained of to be directed at the relevant plaintiff — regardless of the publisher’s actual intention.[61]
[61]Hulton [1910] AC 20; Lee (1934) 51 CLR 276.
Secondly, it is not correct to say that the only specific identification of Mr Zuchowski occurred in a comment forming part of the seventh publication. In Mr Howe’s post which formed part of the third publication, after referring to Adam Zuchowski, the post went on to say, ‘Can you trust the Zuchowski’s (sic) to deliver on their word?’.
Thirdly, it is not disputed by Mr Howe in this Court that the publications were defamatory of the developer of the Marina precinct, Cavendish. Indeed the publications are replete with references to the developer, and Cavendish is specifically named in the third, eighth and tenth publications. When one examines the publications in detail (as the judge did) and considers them with the evidence of Mr Busch and Mr De Leeuw about the knowledge that many residents in the area had about Cavendish being the developer and Mr Zuchowski being the ‘one-man band’ who ran it, it is hard not to conclude that at least a small number of readers of the publications would reasonably have understood the publications to be directed at Mr Zuchowski. It is not to the point that some readers (including some witnesses called by Mr Howe at trial) might not have heard of, or identified, Mr Zuchowski in any of the publications.
Fourthly, while Mr Howe’s submission that the prominence of an individual director of a company ‘does not mean that publications defamatory of the company must necessarily be defamatory of the director’ can be accepted, that submission does not assist in the resolution of this case. Obviously, publications defamatory of a particular company are not necessarily defamatory of that company’s directors. The question in each case is whether a publication, which might be accepted to be defamatory of a company is, in all the circumstances, also defamatory of one or some of its directors.
On that issue, and contrary to Mr Howe’s submissions, s 9(1) of the Defamation Act is of no assistance to him. As the authorities in this area show, publications can be defamatory of more than one person. In the present case, there was no error in the judge concluding that Mr Howe’s ten publications were defamatory of Mr Zuchowski — even if they were also defamatory of Cavendish. The point is made even more clearly by s 9(1) of the Defamation Act, which provides:
(5)Sub-section (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation.[62]
[62]Emphasis added.
Proposed ground 1 must be rejected.

Proposed ground 2: innocent dissemination

The proposed ground of appeal

Proposed ground 2 is expressed as follows:
The learned judge erred in failing to find that the applicant had a defence under s 32 of the Defamation Act in innocent dissemination and failed, or failed properly, to take into account the voluntary nature of the Facebook page on which the publications were posted and failed, or failed properly, to distinguish the facts of this case with those in [Voller (first instance)].

Proposed ground 2: Mr Howe’s submissions

Under proposed ground 2, Mr Howe contended that the judge erred in rejecting his defence of innocent dissemination pursuant to s 32 of the Defamation Act. While, as framed, proposed ground 2 appears to concentrate on the requirement that a defendant prove that he or she was a subordinate distributor,[63] Mr Howe also cavilled with the judge’s failure to accept that he neither knew, nor ought reasonably to have known, that the ten publications were defamatory.[64] Notwithstanding that, in order to establish the statutory defence of innocent dissemination, Mr Howe had to establish three matters referred to in s 32(1) of the Defamation Act, his argument concentrated on the judge’s failure to accept that he had established the first element — namely, that he was a subordinate distributor of the ten publications.
[63]Defamation Act, s 32(1)(a).
[64]See s 32(1)(b).
In support of his contention that he was a subordinate distributor of the ten publications, Mr Howe relied upon Voller (first instance) and to what was said by Gageler and Gordon JJ in Fairfax Media Publications Pty Ltd v Voller.[65] Mr Howe submitted that Voller (first instance) and a passage in the joint judgment of Gageler and Gordon JJ in Voller (HC) supported the proposition that he was a subordinate distributor of the ten publications, rather than a first or primary distributor.[66]
[65](2021) 273 CLR 346 (‘Voller (HC)’).
[66]See s 32(2)(a) of the Defamation Act.
Before analysing Mr Howe’s submissions, it is necessary to describe the decision in Voller in a little more detail.

Voller v Fairfax Media Pty Ltd

Voller was a case in which the plaintiff sued three media companies, each of which maintained a public Facebook page on which it placed comments and which invited members of the public to comment. The plaintiff’s claim was in defamation, alleging that the media defendants were liable in respect of their own comments and the comments posted by third parties on their Facebook pages. The following question was ordered to be tried separately from the remainder of the proceedings:
Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?
Rothman J, sitting at first instance, answered the question ‘Yes’.[67] An appeal to the Court of Appeal was dismissed,[68] and an appeal to the High Court was also dismissed.[69]
[67]Voller (first instance) [2019] NSWSC 766.
[68]Voller (CA) [2020] NSWCA 102.
[69]Voller (HC) (2021) 273 CLR 346.
At first instance, Rothman J said that if an author of a comment, which is defamatory, were to post that comment on a public Facebook page, ‘publication occurs by virtue of the fact that the owner of the public Facebook page allows access to the comment by the publication of the page and allows access by other third-party users to the comments on the page’.[70] His Honour went on to say:
Further, the Owner/Administrator of a public Facebook page, of the kind here relevant, is capable of rendering all or substantially all comments hidden, which would mean they were unable to be downloaded or accessed by any person with a Facebook account, except the administrator, the third-party commentator and Facebook friends of the third-party commentator. Thus, the extended publication of the comment is wholly in the hands of the media company that owns the public Facebook page.[71]
…
[A public Facebook page] allows the publication of the Facebook page and comments by the Administrator, but allows the Administrator to forbid all comments by others. Further, by the use of a list of prohibited words that includes words that would be necessary to render any comment intelligible, such as all pronouns; the definite and indefinite articles; and all conjunctions and prepositions, the Administrator is able to hide all comments, pending the monitoring of such comments.[72]
[70]Voller (first instance) [2019] NSWSC 766, [106].
[71]Ibid [116] (emphasis added).
[72]Ibid [205].
Rothman J said that each defendant was ‘not merely a conduit of the comment. It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments’,[73] although, as Rothman J acknowledged, the defence of innocent dissemination was not in issue in the trial of the separate question. His Honour went on to say:
[T]he defendant in each of the proceedings is, in relation to the general readership, in the position where ‘they know or can be expected easily to find out the content of the articles being published and … are able to control that content, if necessary preventing the article’s publication’ before its publication to the general readership … . This assumes the capacity to hide all comments on these particular postings and to monitor those comments and ‘un-hide’ acceptable ones.
In conclusion, the Court, as presently constituted, is satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher, in relation to the general readership of the Facebook page it operates. As a consequence of that classification, the defence of innocent dissemination would not arise. That latter aspect is not, strictly, necessary to answer the question that has been posed.
If the Court is wrong in that classification, or if one is dealing with the Facebook friends of the commentator, then each would be a subordinate or secondary publisher, and the answer to the question posed would still be in the affirmative. Plainly, the defendants have each participated in the publication of the relevant comment. In that circumstance, the question would arise whether the plaintiff has shown that the defendant in each proceeding is liable for the publication, bearing in mind the defence of innocent dissemination.
In my view, the principles in Byrne v Deane … need some clarification. When a defendant commercially operates an electronic bulletin board and posts material that, more probably than not, will result in defamatory material, the commercial operator is ‘promoting’ defamatory material and ratifying its presence and publication.
A defendant cannot escape the likely consequences of its action by turning a blind eye to it. Where a defendant’s assessment of the consequences of allowing comment, if performed, would have been that defamatory material will be published and, if that defendant is a subordinate publisher, the defendant is promoting, ratifying and consenting to the publication of the defamatory material, even though its precise terms may not be known. The defendant, in that situation, is on notice … .[74]
[73]Ibid [224].
[74]Ibid [227]–[231] (citations omitted).
In the Court of Appeal, the issue of whether the media defendants were primary or subordinate publishers was not the subject of consideration. One of the members of the Court (Basten JA), however, considered cl 91 of Sch 5 of the Broadcasting Services Act. We will return to that issue in our consideration of Mr Howe’s proposed ground 3.
In the High Court, by majority,[75] the Court held that by creating public Facebook pages and posting comment on those pages, the media defendants facilitated, encouraged and, accordingly, assisted the posting of comments by third party Facebook users, and were thereby publishers of those comments. In their joint judgment, Gageler and Gordon JJ said that each media defendant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user, ‘by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user’.[76] Their Honours then said:
In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to ‘Like’ or ‘Share’) to ‘Comment’ on the content by posting a comment which (if not ‘filtered’ so as to be automatically ‘hidden’ if it contained ‘moderated words’) was automatically accessible in a comprehensible form by other Facebook users.[77]
[75]Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ, Edelman and Steward JJ dissenting.
[76]Voller (HC) (2021) 273 CLR 346, 376 [98].
[77]Ibid.

Their Honours then referred to Rothman J’s findings that over 15 million Australians are Facebook users; that the media defendants chose to operate public Facebook pages in order to engage commercially with that significant segment of the population; and that the primary purpose of the operation of the public Facebook pages was to optimise readership and advertising revenue.[78] Their Honours concluded:
Having regard to those findings, the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.
The conduct of the appellants is accordingly distinguishable from ‘graffitied wall’ cases, such as Byrne v Deane and Urbanchich v Drummoyne Municipal Council, in which issues have been raised about whether an owner of a building or noticeboard on which a defamatory statement was initially wrongfully affixed by a third party subsequently ‘consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement ... so that persons other than the plaintiff may continue to read it’. There is plainly a critical difference between that line of cases, involving defendants who have played no role in the facilitation of publication prior to becoming aware of the defamatory matter, and the present case.
Where, as here, the operator of an ‘electronic bulletin board’ posts material with the intention that third parties will comment on the material posted, the operator cannot escape being a publisher of the comments of those third parties. The most appropriate analogy is with live television or talkback radio. As Brennan CJ, Dawson and Toohey JJ recognised in Thompson v Australian Capital Television Pty Ltd, in the context of a live to air broadcast of a television program being simultaneously aired by another network, ‘the nature of a live to air current affairs program carries a high risk of defamatory statements being made’ and such a program ‘by its nature would be likely to involve comments about persons’.
In sum, each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments.[79]

Proposed ground 2: consideration

[78]Ibid [100]–[101].

[79]Ibid [102]–[105] (citations omitted).

In order to succeed in a defence of innocent dissemination at common law or under s 32 of the Defamation Act, a defendant must: (a) establish that he or she is a subordinate distributor; (b) prove that they did not know that the publication contained a libel; (c) prove that they did not know, and had no ground for supposing, that the publication was likely to contain a libel; and (d) prove that their ignorance was not due to any negligence on their part.[80] While the judge rejected both of Mr Howe’s innocent dissemination defences, in this Court, notwithstanding the practically identical operation of these defences, Mr Howe only contests the judge’s rejection of his s 32 defence.
[80]Emmens v Pottle (1885) 16 QBD 354; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; Voller (HC) (2021) 273 CLR 346; Google LLC v Defteros (2022) 96 ALJR 766, 802 [156] (Gordon J); Defamation Act, s 32(1).
In our view, the judge was entirely correct when he rejected Mr Howe’s innocent dissemination defences.
First, Mr Howe’s position as the administrator of the Forum Facebook page was relevantly identical to the media defendants in Voller as administrators of their Facebook pages. Publication of the comments that formed part of the ten publications in the present case only occurred by virtue of the fact that Mr Howe (the owner of the Forum Facebook page) allowed access to the page and permitted third parties to post comments which he was capable of blocking or hiding. The reasoning of Rothman J in Voller (first instance) leading to the conclusion that the defendant media companies in that case were not subordinate distributors is compelling and applies with equal force in the present case.
Moreover, notwithstanding Mr Howe’s submissions to the contrary, we are not persuaded that Rothman J’s reasoning depended upon any of his Honour’s factual findings about any commercial benefit that may be derived by the administrator or owner of a public Facebook page. If we are wrong about this, we do not consider that it was central to his Honour’s reasoning that a commercial benefit be derived by the administrator or owner of a public Facebook page. In any event, however, receiving (or not receiving) a commercial benefit cannot change the nature of a publisher from subordinate to primary, as the case may be. Further, any conclusion that a financial benefit is necessary fails to contemplate that parallel, non-commercial benefits may also drive people to administer, own and drive engagement on provocative Facebook groups (for example, political or social benefits).
Secondly, there was no error in the judge’s conclusion that Mr Howe had failed to establish that he neither knew, nor ought reasonably to have known, that the publications were defamatory (the requirement in s 32(1)(b) of the Defamation Act). Specifically, the judge was not wrong when he rejected Mr Howe’s evidence denying that he was ‘paying very careful attention to the contents of [the Forum Facebook page]’.[81] As the judge correctly noted, Mr Howe made his own comments in response to the comments of others during the course of the various publications. Specifically, Mr Howe made:
•three comments during the course of the third publication;
•at least six comments during the course of the fifth publication;
•seven comments during the course of the sixth publication; and
•seven comments during the course of the seventh publication.[82]
[81]Reasons, [66]–[68].
[82]Ibid [61].
Given the evidence of Mr Howe’s maintenance of, and interest in, the Forum Facebook page, and his very real interest and involvement in matters concerning the development of the Marina precinct, it is difficult to see how the judge could have come to any conclusion other than that, during the course of all ten publications, Mr Howe knew of the defamatory comments on the Forum Facebook page which formed part of those publications as they were being published.
In order to avail himself of the statutory defence of innocent dissemination, Mr Howe had to establish all three of the elements set out in s 32(1)(a)–(c). For the reasons given above, we are not persuaded that the judge erred in concluding that Mr Howe failed to establish the matters set out in s 32(1)(a) or (b). In circumstances where the requirements of s 32(1)(b) are not made out, s 32(1)(c) does not arise for consideration — there being no lack of any relevant knowledge on the part of Mr Howe as presupposed by s 32(1)(b).
Proposed ground 2 must be rejected.

Proposed ground 3: the Broadcasting Services Act defence

The proposed ground of appeal

Proposed ground 3 is expressed as follows:
The learned judge erred in law in finding that [Mr Howe] did not have a complete defence under Clause 91 of Schedule 5 of the Broadcasting Services Act when [Mr Zuchowski] had failed to provide any proof of when the comments were posted and in circumstances where [Mr Howe] removed the comments immediately upon being served with a Concerns Notice and in determining that:
(i)the test for knowledge under clause 91 of Schedule 5 to the Broadcasting Services Act was that of ‘qualitative awareness’;
(ii)[Mr Howe] carried the onus of proving that he did not have ‘qualitative awareness’ of the publications; and
(iii)there was evidence to support a finding that [Mr Howe] had knowledge of the publications.

Proposed ground 3: Mr Howe’s submissions

Under proposed ground 3, Mr Howe submitted that the judge erred in not upholding his defences under cll 91(1)(a) and (b) of Sch 5 of the Broadcasting Services Act. Mr Howe submitted that, while the judge correctly concluded that he was an internet content host in respect of hosting particular internet content, he erred in not accepting that Mr Howe was not aware of the nature of the internet content.
In support of his submissions, Mr Howe relied upon a number of authorities, including a decision of the Court of Final Appeal of Hong Kong in Oriental Press Group Limited v Fevaworks Solutions Limited,[83] for the proposition that an administrator of a Facebook page can avoid liability if the impugned material is removed once he or she is put on notice. Mr Howe submitted that he was not liable in defamation to Mr Zuchowski because, upon receipt of Mr Zuchowski’s Concerns Notice, he blocked access to the Forum Facebook page and removed the publications from it.
[83](2013) 16 HKCFAR 366 (‘Fevaworks’).
Mr Howe also submitted that, even if it could be shown that he had knowledge of the defamatory material in the comments which formed part of the publications before being put on notice by Mr Zuchowski’s Concerns Notice, it was ‘not possible to draw an inference that he failed to act promptly to take it down’. Additionally, he submitted that the comments made by the Dorans which formed part of the seventh publication were taken down by the Dorans in October 2019 and that, accordingly, there was no basis upon which it could be concluded that he was aware of those comments before they were removed.

Proposed ground 3: Mr Zuchowski’s submissions

Mr Zuchowski supported the judge’s reasoning in his rejection of the Broadcasting Services Act defence, submitting that his Honour was correct to find that Mr Howe was aware of the comments at or near the time that they were posted.[84]
[84]Reasons, [66]–[68], [293]–[302].
By a notice of contention, Mr Zuchowski also sought to support the judge’s rejection of the Broadcasting Services Act defence by submitting that the judge erred in finding that Mr Howe was an internet content host for the purposes of cl 91(1) of Sch 5 of the Broadcasting Services Act. Mr Zuchowski submitted that, to the extent that this conclusion was supported by the reasoning of Basten JA in Voller (CA), Basten JA’s reasoning was erroneous and should not be followed. It is thus necessary for us to return to Voller.

Voller v Fairfax Media Pty Ltd

Prior to the hearing of the appeal from Voller (first instance), three unrelated media parties (referred to as ‘the Bauer parties’) sought leave to intervene, alternatively to appear as amici curiae. They did so ‘in support of the appeal’; alternatively, on the question of whether the plaintiff’s defamation claims were subject to cl 91 of Sch 5 of the Broadcasting Services Act.
Meagher JA and Simpson AJA concluded that the Bauer parties’ application to intervene had no merit and concluded that it should be dismissed.[85] Basten JA, however, considered the substance of the Bauer parties’ arguments concerning the application of cl 91 of Sch 5.[86]
[85]Voller (CA) [2020] NSWCA 102, [69].
[86]Ibid [12]–[30].
Basten JA commenced his analysis by setting out the relevant provisions of the Broadcasting Services Act. At the risk of repetition, his Honour identified the relevant provisions in the following terms:
The operative provision of the Broadcasting Services Act, Sch 5, cl 91, relied on by the amici, is, relevantly, in the following terms:
91 Liability of internet content hosts and internet service providers under State and Territory laws etc
(1) A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(a)subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or
(b)requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host; or
....
Of the terminology used in cl 91, namely ‘internet content’ and ‘internet content host’, the following definitions appear in cl 3:
3 Definitions
In this Schedule, unless the contrary intention appears:
...
internet contentmeans information that:
(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an internet carriage service;
but does not include:
(c) ordinary email; or
(d) information that is transmitted in the form of a broadcasting service.
internet content hostmeans a person who hosts internet content in Australia, or who proposes to host internet content in Australia.
The term ‘data storage device’ is defined in cl 3 to mean ‘any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device’. The term ‘internet carriage service’ is also defined, in terms which cover a ‘carriage service’ between a point in Australia and one or more other points, either in or outside Australia.[87] A ‘carriage service’ means ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’.[88] (This language is adopted in the definition of ‘electronic communication’, a term found in the definition of ‘matter’, in s 4 of the Defamation Act.)
Finally, the issue of legislative intention with respect to possible inconsistency is addressed in cl 90, which provides:
[87]Telecommunications Act 1997 (Cth), s 16(1).
[88]Telecommunications Act, s 7.
90 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Schedule is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Schedule.[89]
[89]Ibid [12]–[15] (footnotes in original).
In determining whether the media defendants in Voller were ‘internet content hosts’ as defined in s 3 of the Broadcasting Services Act, Basten JA first considered whether the defendants were ‘hosting’ the internet content contained on their Facebook pages; before then considering whether the defendants were hosting ‘in Australia’.
In holding that the media defendants in Voller were ‘hosting’ the internet content contained on their Facebook pages within the meaning of the Broadcasting Services Act, Basten JA said, among other things:
[A]lthough the legislation uses the terms ‘internet content host’, ‘internet service provider’ and ‘internet carriage service’, individual entities may fall within more than one category. Thus, as noted in Roadshow Films Pty Ltd v iiNet Ltd [No 2], a copyright case, iiNet was both a carriage service provider and an internet service provider. The question in that case, not presently relevant, was whether iiNet had breached the copyright held in films by failing to prevent its customers operating a computer program (BitTorrent) to share films, in breach of copyright. Nevertheless, the legislation involving amendments to the Copyright Act 1968 (Cth) by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) is material because its enactment was almost contemporaneous with the 1999 amendments, which inserted Sch 5 into the Broadcasting Services Act. Although it did not deal with ‘publication’ in terms, the 2000 amendments to the Copyright Act were directly concerned with the concept of ‘communication’ of copyright material and the potential liability of parties providing the physical facilities for such communications. In concluding that iiNet did not authorise infringements of copyright which took place via its servers and carriage service, the majority reasons noted that ‘iiNet is not a host of infringing material, or of websites which make available .torrent files relating to infringing material’. To similar effect, Gummow and Hayne JJ noted the concession by the appellants that ‘iiNet itself could not take down the infringing material because it was not acting as host’. It appears from such cases (and the earlier Federal Court judgments discussed in Roadshow Films), that the operator of a website or page on a platform which is able to control the content it makes available to internet users is properly described as hosting that content. Such an entity would therefore fall within that part of the definition of ‘internet content host’.[90]
[90]Ibid [21] (footnotes omitted, emphasis added).
It is the correctness of this passage (in particular the emphasised part of the passage) with which Mr Zuchowski takes issue in his notice of contention filed in this Court.
After dealing with the question of whether the media defendants in Voller were hosting ‘in Australia’ (an issue not the subject of any dispute in the present proceeding), Basten JA concluded his analysis by saying:
It would seem to follow that a publication on the internet can only give rise to liability under New South Wales law with respect to defamation if the publisher in Australia was aware of the nature of the particular content. To that extent, State law will operate concurrently with Sch 5 of the Broadcasting Services Act, pursuant to cl 90, but not otherwise.[91]

Proposed ground 3: consideration

[91]Ibid [30].

Proposed ground 3 asserts that the judge erred in rejecting the Broadcasting Services Act defence in circumstances where Mr Zuchowski ‘had failed to provide any proof of when the comments were posted’. The following points should be made in relation to that assertion:
(1)First, Mr Zuchowski proved his cause of action in defamation. He was not required to prove anything other than the elements of his cause of action.
(2)Secondly, the existence or otherwise of a defence under the Broadcasting Services Act did not depend upon any failure by Mr Zuchowski to provide proof of anything. It was for Mr Howe to prove the elements of the defence he sought to establish.
(3)Thirdly, the times at which the various comments that formed part of the publications were posted were not in dispute at trial. The publications, including the comments that formed part of them, were pleaded to have been made from specified dates in 2019 until the time of their removal. There was no dispute about any of these time periods at trial, no doubt because they had been the subject of admissions in Mr Howe’s defence.
Mr Howe complains that the judge rejected his Broadcasting Services Act defence because he concluded that Mr Howe could not establish that he had ‘some qualitative awareness’ of the various comments.[92] Mr Howe submits that, on its terms, the Broadcasting Services Act defence is not defeated by a publisher merely having ‘some qualitative awareness’ of the internet content being hosted.
[92]Reasons, [302].
Mr Howe’s submissions about the judge’s use of the words ‘some qualitative awareness’ are without substance. True it is that that is the expression the judge used when considering the Broadcasting Services Act defence. That language, however, has to be read in the context of the Reasons as a whole — and particularly in respect of the judge’s findings of knowledge when dealing with the innocent dissemination defences. When dealing with those defences, after analysing all of the evidence relevant to Mr Howe’s knowledge, his Honour concluded that the evidence led him to find that Mr Howe was ‘well aware of the comments, the subject of this proceeding, at or near to the time of their posting’.[93] Having reviewed the evidence for ourselves, and for the reasons we have already given, we think this conclusion was entirely correct.
[93]Ibid [259].

Statutory qualified privilege (s 30)

[136][1917] AC 309.

[137](1947) 74 CLR 102 (‘Guise’).

[138]Reasons, [406].

[139]Ibid [406]–[408].

The judge commenced his analysis of the statutory qualified privilege defence by setting out s 30 of the Defamation Act.[140] He noted that one of the requirements for the statutory qualified privilege defence is that ‘the conduct of the defendant in publishing [the matter complained of] is reasonable in the circumstances’.[141] His Honour said that the issue in this case was whether this requirement was proven.[142]
[140]The version of s 30 set out by the judge at Reasons [409] is in fact the version of the section as amended by s 32(1) of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020. That version only applies to publications made on or after 1 July 2021. It does not apply to the words published by Ms Zuchowski and Cavendish at the meeting on 22 May 2019.
[141]Reasons, [409]–[410].
[142]Ibid [410].
The judge described the concluding remarks that Mr Doran made at the Council meeting as ‘an appalling way to end his presentation’.[143] Again referencing the language of Starke J in Guise, the judge concluded:
That almost all of Ms Zuchowski’s presentation was measured is remarkable. In most presentations of this kind, the final words are meant to resonate with the audience.
In the context of this public meeting, calling Mr Howe a liar and maker of fake news carries reasonably serious defamatory imputations. The impugned matters were statements of opinion based on alleged facts. It did not distinguish between suspicion, allegation or proven facts. The application was a serious matter for Cavendish and for Ms Zuchowski as its employee. Its failure impeded Cavendish’s ambition for significant development. Ms Zuchowski made the impugned statements as a summary of the factual matters which preceded it. Ms Zuchowski believed what her father had told her. There was no reason for her to believe otherwise. However, it was unreasonable for her to describe Mr Howe in those terms in that setting. I would adopt the language of Starke J that no right-minded person would have said those words in those circumstances.
In the circumstances, the impugned statements of Ms Zuchowski were unreasonable. I am not satisfied the defence under s 30 has been established.[144]
[143]Ibid [413].
[144]Ibid [413]–[415].
Having rejected the defences relied upon by Ms Zuchowski and Cavendish in relation to imputations (a), (b) and (d), the judge awarded Mr Howe $15,000 damages against Cavendish, and ordered that Ms Zuchowski be jointly liable with Cavendish for $10,000 of that sum.[145]
[145]Ibid [419]–[420].

Proposed ground 1: common law qualified privilege

The proposed ground of appeal

Proposed ground 1 makes a number of complaints about the judge’s rejection of the common law qualified privilege defence. In summary, Ms Zuchowski and Cavendish contend that the judge:
•erred in finding that they did not have a social or moral duty to publish the words, having ‘also found’ that the words were spoken on an occasion of qualified privilege (without having identified what the occasion of privilege was);
•erred in finding that the words were not relevant or germane to the occasion of privilege;
•should have found that the occasion of privilege was that the words were a communication between Cavendish, local residents and the Council relating to the Cavendish application; and
•should have found that the words were relevant or germane to this privileged occasion.
Before analysing this proposed ground, it is necessary to briefly summarise Guise (and in particular the judgment of Starke J), given the judge’s reliance on it in his rejection of both of the qualified privilege defences.

Guise v Kouvelis

The facts in Guise were that the plaintiff was playing a game of cards with two or three other players for substantial stakes in a Greek club. He was not a member of the club. He was a visitor. The game was being played in a large room in which 50 or 60 people were present playing cards or billiards or conversing with one another. A dispute occurred and the plaintiff threw his cards on the table and claimed a new deal. The defendant was a committee member of the club. He had been watching the game and making comments on it. After the plaintiff threw down his hand, the defendant said, in a loud voice, ‘You are a crook.’ The suggestion was that the plaintiff had thrown his cards on the table because he had a poor hand and therefore desired a new deal. The statement, ‘You are a crook,’ was audible to the 50 or 60 people in the room in which the game was being played.
At first instance, the trial judge directed the jury that the defence of qualified privilege was not open to the defendant. The jury awarded the plaintiff £500.
On appeal to the Full Court of the Supreme Court of New South Wales, by majority, the Court set aside the jury’s verdict and ordered a new trial on the ground that the trial judge should have directed the jury that the occasion on which the words complained of were spoken was one of qualified privilege.[146] The plaintiff appealed to the High Court and, by majority,[147] the High Court allowed the plaintiff’s appeal, holding that the words complained of were not spoken on a privileged occasion.
[146]Guise v Kouvelis (1946) 46 SR (NSW) 419.
[147]Latham CJ, Starke, McTiernan and Williams JJ, Dixon J dissenting.
Latham CJ (with whom McTiernan and Williams JJ agreed) said:
The persons to whom the statement was made, whether members or visitors, must, I think (in the absence of evidence to the contrary), be taken to have included individuals who might never have anything to do with the plaintiff, except, in the case of members, in having a common membership of the club. I can see no justification for holding that the interests of the defendant or of the members of the club or any social or other duty fairly warranted the public statement which was actually made. The basis of the privilege in question is social welfare and I am not prepared to hold that it is conducive to social welfare to lay down a rule that a member of a club who is doubtful of the honesty, or is satisfied of the dishonesty, of another person who is in the club on a particular occasion is privileged in expressing his opinion to members of the club in general. To hold the contrary would amount to granting a wide licence to officious and interfering mischief-makers.[148]
[148]Guise (1947) 74 CLR 102, 112.
In separate reasons, Starke J commenced his analysis by noting that Adam v Ward[149] and Watt v Longsdon[150] governed the law of the case. His Honour then said:
An occasion is privileged where the person who makes the communication has an interest or a duty legal, social or moral to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. ‘As to legal duty,’ said Scrutton LJ, ‘the judge should have no difficulty; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes of moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley LJ in Stuart v Bell: ‘The question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognized by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal’.
The test applied is whether ‘the great mass of right-minded men’ in the position of the respondent would, in the circumstances of the case, have thought it their duty to call out in a loud voice, ‘You are a crook,’ so that the words could be heard by fifty or sixty persons who had no interest in the particular game or in the players engaged in it. Clearly the respondent had no legal duty to make any such statement and no reasonable right-minded man in the circumstances and in the position of the respondent ought, in my judgment, to have made it.[151]
[149][1917] AC 309.
[150][1930] 1 KB 130.
[151]Guise (1947) 74 CLR 102, 113–114 (citations omitted).

Proposed ground 1: consideration

When Ms Zuchowski spoke about the Cavendish application at the Council meeting on 22 May 2019, she was undoubtedly speaking on an occasion of qualified privilege. Ms Zuchowski and Cavendish had a duty or interest to speak about the Cavendish application, and those who attended the Council meeting had a corresponding duty or interest to receive what was conveyed.[152]
[152]Adam v Ward [1917] AC 309; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 (‘Bashford’); Cush v Dillon (2011) 243 CLR 298 (‘Cush’); Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 (‘Papaconstuntinos’).
In Adam v Ward, Lord Atkinson, after reviewing relevant authorities, said:
These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication though in fact it was not so.[153]
[153]Adam v Ward [1917] AC 309, 339.
In Cush, French CJ, Crennan and Kiefel JJ discussed Adam v Ward as follows:
Adam v Ward confirms that there may be limits to what may be said upon a subject on an occasion of qualified privilege and that those limits are to be tested by the connection of the statement to the subject. In that case Earl Loreburn observed that the fact that an occasion is privileged ‘does not necessarily protect all that is said or written on that occasion’ and that anything ‘not relevant and pertinent’ to the discharge of the duty or the safeguarding of the interest which creates the privilege will not be protected. Where such a question is raised it will be necessary for the trial judge to consider the matter of the duty or interest and rule whether the defendant has published something ‘beyond what was germane and reasonably appropriate to the occasion’. Lord Dunedin spoke of a statement ‘quite unconnected with and irrelevant to the main statement’; Lord Atkinson to ‘foreign and irrelevant’ matter and Lord Shaw of Dunfermline to matter which was ‘not in any reasonable sense germane’ to what was being conveyed in the discharge of duty or the protection of an interest.
Although the statements in Adam v Ward were not central to the matter being communicated, they were held to be relevant. In that case the plaintiff had made allegations against a Major-General in Parliament, that he had deliberately misstated the facts relating to one of five officers who had been placed on half‑pay, in a confidential report he had submitted to a superior officer. The defendant was the secretary to the Army Council which investigated the allegation and then issued a letter, addressed to the General, to the press. The evident purpose of the letter was to vindicate the General from the charges made by the plaintiff. But in the course of doing so it identified the plaintiff as one of the other officers who had been the subject of the report and who were afterwards removed from the regiment. It said that the plaintiff had been called upon to retire from the service, but that the General had intervened on his behalf.
The statements were held to be relevant to what was said on the occasion of the privilege, since they were necessary to the complete vindication of the General. In that regard it was considered necessary that the true position of the plaintiff, a person not disinterested in the report, be revealed. Earl Loreburn entertained some doubt on the question of relevance, but did not dissent.
It is not necessary to determine whether the descriptions given of irrelevant material in Adam v Ward vary as to the stringency with which relevance ought to be tested. The passage from Toogood v Spyring suggests that no narrow view should be taken of the pursuit of a duty or interest in what was said. To do so may unduly restrict the operation of the defence. More recently an issue of the kind here in question was stated in the joint judgment in Bashford v Information Australia (Newsletters) Pty Ltd to be ‘whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence’. In that case the article in question incorrectly described the result of court proceedings, by identifying the plaintiff as the subject of findings of contravention of s 52 of the Trade Practices Act 1974 (Cth), by engaging in misleading and deceptive conduct. In fact the party the subject of the findings was a company controlled by the plaintiff and his wife. In the joint judgment it was held that the error ‘did not alter or reduce the connection between the privileged occasion and the defamatory matter.’[154]
[154]Cush (2011) 243 CLR 298, 308–309, [19]–[22] (French CJ, Crennan and Kiefel JJ). See also Bashford (2004) 218 CLR 366, 372–373 [9]–[10] (Gleeson CJ, Hayne and Heydon JJ), 390 [65] (Mc Hugh J); Papaconstuntinos (2012) 249 CLR 534, 541, [8] (French CJ, Crennan, Kiefel and Bell JJ).
After discussing Adam v Ward, their Honours referred to the observations of Lord Esher MR in Nevill v Fine Arts and General Insurance Co,[155] to which Lord Dunedin had referred in Adam v Ward, and in which Lord Esher distinguished an excessive statement, otherwise connected to the privileged occasion, from one which had no such connection. Specifically:
There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it. Instances have been put during the argument of cases where a defendant on an occasion which is privileged as between himself and some other person makes some defamatory statement affecting a third person which has nothing to do with the privileged occasion, in which case, of course, that third person would have a right of action against the defendant, and, as between him and the defendant, there would be no privileged occasion. But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice.[156]
[155][1895] 2 QB 156, 170 (‘Nevill’).
[156]Nevill [1895] 2 QB 156, 170; Cush (2011) 243 CLR 298, 309–310 [24].
The appropriateness or otherwise of the Cavendish application was a topic which had plainly generated strong feelings amongst those who had an interest in its outcome. Unlike the judge, we see nothing inappropriate or unreasonable in what Ms Zuchowski said at the end of her speech during the Council meeting. The words were said on an occasion of qualified privilege. Ms Zuchowski honestly believed what she said (ie, the words). No allegation of malice was made by Mr Howe. The words were relevant to the privileged occasion; and Ms Zuchowski did not irrelevantly defame some third person not connected with the ongoing disputation about, and discussion of, the Cavendish application.[157]
[157]Nevill [1895] 2 QB 156, 170; Cush (2011) 243 CLR 298, 309–310 [24].
The fact that the words might be contrasted with the very measured factual delivery of what fell from Ms Zuchowski before she uttered them cannot be a basis for concluding that the words did not form part of the privileged occasion or were impermissibly excessive so as to make them irrelevant to it.[158] The approach taken by the judge that led to this conclusion was too narrow. His Honour’s approach unduly restricted the operation of the defence and was contrary to authority.[159]
[158]Cf Reasons, [408], [413].
[159]See the authorities referred to in n 152, n 154 and n 157 above.
As to the judge’s reliance upon Guise, and in particular the judgment of Starke J, we would make the following observations. As Starke J observed, Guise was a case governed by the principles in Adam v Ward.[160] Apart from confirming relevant principles, the decision in Guise does not itself create some principle. It was an application of settled principle to known facts.
[160]Guise (1947) 74 CLR 102, 113.
With respect, one of the errors the judge appears to have made in the present case is to reason from a factual conclusion in one case (Guise) to a factual conclusion in the present case. Such reasoning has long been the subject of deprecation by the High Court.[161]
[161]See in particular Teubner v Humble (1963) 108 CLR 491, 503 (Windeyer J); Waugh v Kippen (1986) 160 CLR 156, 161–162 (Gibbs CJ, Mason, Wilson and Dawson JJ); and Bus v Sydney County Council (1989) 167 CLR 78, 89 (Mason CJ, Deane, Dawson and Toohey JJ). See also Knight v Maclean [2002] NSWCA 314, [61] (Heydon JA, with whom Meagher JA and Young CJ in Eq agreed); Nenna (a pseudonym) v The Queen [2021] VSCA 183, [91] (Beach, McLeish and T Forrest JJA).
The facts in, and result of, Guise provides no assistance in the resolution of the present case. In Guise, the defendant spoke loudly to people who plainly had no interest or duty in hearing his words; and, correspondingly, he (the defendant) had no relevant interest or duty in saying what he said to those people. The present case is different: Cavendish and Ms Zuchowski plainly had a relevant duty or interest in publishing the words to those who attended the Council meeting.
It remains to deal with Mr Howe’s notice of contention which seeks to support the judge’s rejection of the qualified privilege defences on the basis that there was no reciprocity of interest between Cavendish and Ms Zuchowski on the one hand, and those to whom the meeting was broadcast live and/or subsequently watched on the council’s website. There is no substance in these contentions.
First, there is no evidence that anyone watched the broadcast live or subsequently watched the archived video of the Council meeting.
Secondly, and more importantly, there is no evidence that anyone who might have watched the footage was not as interested in the Cavendish application as those who attended the Council meeting in person. One cannot simply infer that the video of the Council meeting has been watched by a person or persons who had no interest in the outcome of the Cavendish application. The dry nature of the topic, to a person with no interest in the outcome of the Cavendish application, precludes the possibility of inferring (in the absence of any evidence) that disinterested persons would have watched the video and heard the words.[162]
[162]See generally, Lorbek v King [2023] VSCA 111, [41]–[50] (Beach, Walker and Osborn JJA).
For the above reasons, leave to appeal must be granted, the appeal must be allowed, the judgment in Mr Howe’s favour must be set aside and, in its place, there must be judgment for Cavendish and Ms Zuchowski in the Howe proceeding.

Proposed ground 2: statutory qualified privilege

The proposed ground of appeal

Proposed ground 2 asserts that the judge erred in holding that the conduct of Cavendish and Ms Zuchowski was not reasonable in the circumstances, for the purposes of s 30(3) of the Defamation Act. Ms Zuchowski and Cavendish contend that the judge should have found that, for the purposes of that section, their conduct in publishing the words was reasonable in the circumstances, and that the defence of statutory qualified privilege was made out.

Section 30 of the Defamation Act

At the time the words were published at the Council meeting, s 30 of the Defamation Act relevantly provided:
30 Defence of qualified privilege for provision of certain information
(1)There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)the recipient has an interest or apparent interest in having information on some subject; and
(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2)For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3)In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)the extent to which the matter published is of public interest; and
(b)the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)the seriousness of any defamatory imputation carried by the matter published; and
(d)the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)the nature of the business environment in which the defendant operates; and
(g)the sources of the information in the matter published and the integrity of those sources; and
(h)whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)any other steps taken to verify the information in the matter published; and
(j)any other circumstances that the court considers relevant.
(4)For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

Proposed ground 2: consideration

Having regard to our conclusions about the common law defence of qualified privilege, it is strictly not necessary for us to consider proposed ground 2 and the statutory defence of qualified privilege provided by s 30 of the Defamation Act. That said, we would make the following observations.
First, as the Reasons disclose, the judge applied the version of s 30 in force in respect of publications made on or after 1 July 2021.[163] In doing so, his Honour appears to have deprived himself of the ability to consider the matters set out in paras (a) and (b) of s 30(3), as it was in force at the time the words were spoken, when considering the issue of reasonableness. While his Honour may also have overlooked the ability to consider the matters set out in paras (g) and (h) of the earlier version of s 30(3) as well, we doubt, due to the terms of those paragraphs, that consideration of the matters in those paragraphs could have had any material effect on the determination of the reasonableness issue.
[163]See n 140 above.
Secondly, we would reject the judge’s conclusion (expressed by his Honour in terms of ‘adopting’ the language of Starke J) ‘that no right-minded person would have said [the words]’ in the circumstances of this case.[164]
[164]Reasons, [414].
Thirdly, given the circumstances leading up to the Council meeting, and the way in which those who were opposed to the Cavendish application (including Mr Howe) had been expressing themselves in their opposition to the Cavendish application, there is much to be said for the proposition that, in publishing the words, the conduct of Cavendish and Ms Zuchowski was reasonable. Were it necessary, we would so conclude for the following reasons:
•Ms Zuchowski believed the words were true;
•the words were only spoken at the Council meeting;
•Mr Howe was not specifically named by Ms Zuchowski, notwithstanding that he had participated in publishing false information on the Forum Facebook page about Cavendish and Mr Zuchowski; and
•the words themselves were relatively restrained and commensurate with the tone of the Council meeting, especially in the light of Mr Doran’s closing remarks at the meeting on behalf of the objectors.

Proposed ground 3: costs

Having found for Mr Howe in the Howe proceeding, the judge ordered costs to follow the event. Proposed ground 3 cavils with the judge’s order as to costs. As the appeal will be allowed and judgment will now be entered for Ms Zuchowski and Cavendish, the judge’s costs order will have to be set aside and the issue of costs reconsidered. In the circumstances, it is not necessary for us to say anything further about this proposed ground of appeal.

The appeal in the Howe proceeding: conclusion

Cavendish and Ms Zuchowski will be granted leave to appeal. The appeal will be allowed. The orders below will be set aside and, in their place, there will be judgment for Cavendish and Ms Zuchowski.

ORDERS

For the reasons given above, orders will be made:
(a)in the appeal in the Zuchowski proceeding resulting in the assessment of damages of $205,000 being reduced to $70,000; and
(b)in the appeal in the Howe proceeding, setting aside the judgment in favour of Mr Howe and giving judgment in favour of Cavendish and Ms Zuchowski.
---

[2024] VSCA 56

4 April 2024