Kelly v Davis - [2022] NSWDC 352

District Court

New South Wales

Medium Neutral Citation: Kelly v Davis & Anor [2022] NSWDC 352
Hearing dates: 8, 9 August 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 257

Catchwords:
DEFAMATION – plaintiff and first and third defendants all university students - Facebook posts on social media published by the first and third defendants on sites associated with two universities – whether each of the matters complained of identified the plaintiff – whether each of the matters complained of conveyed the alleged imputations – whether triviality defence applicable to each of the matters complained of – whether, in the case of the third defendant, the defences of qualified privilege (in statute and in common law) applicable – consideration of damages

Legislation Cited:
Defamation Act 2005 (NSW) ss 30, 34, 38
Uniform Civil Procedure Rules 2005 (NSW) rr 15.19, 15.31, 15.32, 41.1, 41.2

Cases Cited:
ABC v Chau Chak Wing (2019) 271 FCR 632
Adam v Ward [1917] AC 309
Aktas v Westpac Banking Corporation (2010) 241 CLR 79
Barrow v Bolt [2015] VSCA 107
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Bristow v Adams [2012] NSWCA 166
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86
Cross v Denley (1952) 52 SR (NSW) 112
Cush v Dillon (2011) 243 CLR 298
David Syme & Co v Canavan (1918) 25 CLR 234
Dutton v Bazzi [2022] FCAFC 84
Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48
Goldberg v Voigt [2020] NSWDC 174
Herron v HarperCollins Publishers Australia Pty Ltd (2022) 400 ALR 56
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
Jones v Sutton (2004) 61 NSWLR 614
King v Greenwood [2022] NSWDC 61
Lee v Wilson and MacKinnon (1934) 51 CLR
Lewis v Daily Telegraph Ltd [1964] AC 234
Loveday v Sunday Newspapers Ltd (1938) 59 CLR 503
Megna v Marshall [2010] NSWSC 68
Mickle v Farley [2013] NSWDC 295
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Mowlds v Fergusson (1940) 64 CLR 206
Murray v Raynor [2019] NSWCA 274
Northern Territory v Sangare (2019) 265 CLR 164
Palmer v McGowan (No.5) [2022] FCA 893
Papaconstantinos v Holmes ‘A Court (2012) 249 CLR 534
Penton v Calwell (1945) 70 CLR 219
Perkins v New South Wales Aboriginal Land Council (unreported, NSWSC, 15 August 1997)
Raynor v Murray [2019] NSWDC 18
Roberts v Bass (2002) 212 CLR 1
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Stocker v Stocker [2020] AC 593
Stoltenberg v Bolton (2020) 380 ALR 145
Toogood v Spyring (1834) 1 C M & R 181
Younan v Nationwide News Pty Ltd [2013] NSWCA 335
Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

Texts Cited:
Tobin, T. K. and Sexton, M.G, Australian Defamation Law and Practice (LexisNexis, loose-leaf service)

Category: Principal judgment
Parties: Mr M Kelly (plaintiff)
Mr O Davis (first defendant)
Ms J Chan (third defendant)
Representation: Mr Kelly represented himself
Mr Elachkar (Counsel) for the first defendant
Mr Vogel (solicitor) for the third defendant

File Number(s): 2020/00272992
Publication restriction: Nil

Table of contents

REASONS FOR JUDGMENT

Introduction
The nature of the case
Other preliminary matters
The issues

THE FIRST MATTER COMPLAINED OF

Identification
Pleading and information obtained through court process
Evidence in the hearing
Mr Kelly
Cross-examination of Mr Kelly
Screenshots (Exhibit F)
Jessica Jessica
Exhibits G & H
Exhibit I
Mr Davis
Exhibit 1D1

Principles
Submissions
Mr Kelly’s submissions
Mr Davis’ submissions

Consideration

Did the matter convey the pleaded imputation?
The alleged imputation
Principles
Submissions
Consideration

The pleaded defences
Triviality
No requirement in Mr Kelly to prove serious reputational harm
Mr Davis’ pleading
Mr Kelly’s ‘Response’ to the triviality defence
Evidence
Mr Davis’ evidence
Ms Chan’s evidence

Principles
Submissions
Consideration

THE SECOND MATTER COMPLAINED OF

Identification
Evidence
Mr Kelly’s evidence

Principles
Submissions
Consideration

Whether the matter complained of conveyed the pleaded imputations
The pleaded imputations
Submissions
Consideration

Qualified privilege
The pleading
Schedule 2 to Ms Chan’s Defence
Mr Kelly’s ‘Responses’

Evidence in the hearing
Submissions
Ms Chan’s submissions
Mr Kelly’s submissions

Principles
Statutory qualified privilege
Common law qualified privilege

Consideration
Statutory defence of qualified privilege
Common law defence of qualified privilege

Triviality
Pleading and particulars
Schedule 3 to Ms Chan’s Defence
Mr Kelly’s responses to the triviality defence

Evidence at the hearing
Submissions
Consideration

ISSUES CONCERNING DAMAGES

Pleading matters
Mr Kelly’s pleading
Mr Davis’ pleaded claim of mitigation of damages
Ms Chan’s pleaded claim of mitigation of damages

Evidence
The first matter complained of
The second matter complained of

Principles
Mr Kelly’s submissions
Actual harm
Comparative cases
As against Ms Chan

Mr Davis’ submissions
Ms Chan’s submissions

Consideration
Claim against Mr Davis
Seriousness of imputation
Mitigating circumstances
Damage to reputation
Injured feelings
Extent of publication
Conclusion

Claim against Ms Chan
Number and Seriousness of imputations
Mitigating circumstances
Harm to reputation
Injured feelings
Extent of publication
Conclusion

SUMMARY & ORDERS

Conclusions
Costs
Orders

ANNEXURE A – FIRST MATTER COMPLAINED OF

ANNEXURE B – SECOND MATTER COMPLAINED OF

REASONS FOR JUDGMENT

Introduction

The nature of the case

The plaintiff (Mr Kelly) is a university student. On 20 September 2020 he commenced a defamation suit in this Court against eight defendants. He amended his pleading in February 2021. With the exception of the first (Mr Davis) and third defendant (Ms Chan), both of whom are also university students, the claims against the other defendants were discontinued.
Mr Kelly sues in respect to two publications, both made on social media (Facebook). The first publication was on a Facebook page titled ‘UNSW Discussion Group’. The second publication was on the Facebook paged titled ‘USYD Love Letters Revived’.
As to the former publication (which I will hereafter refer to as the ‘First Matter Complained of’) on 28 June 2020, which he admitted publishing, Mr Davis labelled Mr Kelly on the Facebook Page as “the local uni predator”. Mr Kelly alleged that the publication conveyed the imputation that he was a sexual predator on the UNSW campus.
In Mr Davis’ defence, he originally denied that Mr Kelly was identified, denied the pleaded imputation, and also relied upon the defences of justification, contextual truth, and triviality, as well as offering to make amends. However, Mr Davis no longer presses the defences of justification or contextual truth and offering to make amends. He also pleaded matters in mitigation of damages, although, as will become apparent, that claim was narrowed in the course of the hearing.
As to the second publication (which I will hereafter refer to as the ‘Second Matter Complained of’), on 1 December 2020, which she admitted she had published, Ms Chan raised on the second of the Facebook pages the question “hey aren’t you that 40 yr old guy who hangs around UNSW creeping on first yrs? don’t you have a desk job to go to instead of lurking on uni pages?”. Mr Kelly alleged that the publication conveyed the imputations that:

Mr Kelly attended campus for an illegitimate (or no legitimate) purpose;

Mr Kelly was on campus and/or a webpage for the purpose of sexually propositioning first year students;

Mr Kelly spends time on campus actually sexually preying upon first year students.

In Ms Chan’s defence, she denied that Mr Kelly had been identified, and denied the pleaded imputations. She also (originally) pleaded defences of justification, contextual truth, qualified privilege and triviality; though, like Mr Davis, at the hearing, she did not press the defences of justification and contextual truth. She also pleaded matters in mitigation of damages; although that was also narrowed during the hearing.
The legal representatives for both defendants each conceded, properly in my view, that if the imputations were made out as they had been alleged by the plaintiff, they would be defamatory.
To assist the reader, I have appended the two matters complained of at the end of these reasons for judgment.

Other preliminary matters

Before proceeding with substantive analysis, I observe certain procedural matters affecting the progress of the matter to hearing and which, in some cases, had real impact.
As one preliminary matter, I note that on 31 October 2021, Judge Gibson directed Mr Kelly to file any Reply to the defences of the first and third defendants and made a self-executing order to that effect (after he had failed to file a Reply in accordance with earlier directions and the Court rules). As will be noted again later in these reasons, when referring to the third defendant’s defence of qualified privilege, this omission had significance as to what, as a matter of procedural fairness, he could fairly say in answer to that particular defence. Mr Kelly had earlier prepared a ‘Response to Defences’ document (16 September 2021), which was included in the Joint Court Book that had been produced through the cooperation of the parties. Much of that document did not fulfil the function of a Reply (much of it featured argumentative assertions and the inclusion of evidence). Be that as it may, as will be indicated, consistently with my appreciation of the need for procedural fairness to all parties, and mindful of the content of the requirements of Court rules for defamation actions, I have considered the document and, in some instances, made reference to it in these reasons. Neither of the legal representatives for Mr Davis or Ms Chan asked to me to refrain from looking at it.
As a second preliminary matter, Mr Kelly had commenced a different defamation suit in this Court on 28 January 2021 against the University of New South Wales. By order of this Court made on 3 March 2022, it was determined that the hearing of this other proceeding would proceed separately to the hearing of the present proceeding.
As a third preliminary matter, I wish to say something about delay. Although it is unfortunate that a defamation suit commenced in September 2020 has not been heard before now, it is pertinent to note that the proceeding has been beset by some procedural complexity, as indicated, amongst other things, by at least two separate interlocutory judgments on procedural issues by the Defamation List Judge^[1].
1. On 25 February 2021 and 14 October 2021
As a fourth preliminary matter, I note that Mr Kelly represented himself at the hearing. As I read one of the interlocutory judgments of Gibson DCJ, on 25 February 2021, on the Court’s file, steps had been taken by the Court to see that legal advice could be supplied to him, owing to problems that were apparent in the way that he had originally pleaded his claim. The extent of the assistance, if any, which Mr Kelly received is not apparent, but as Gibson DCJ stated on that date, “it is not the Court’s duty or responsibility to settle pleadings by persons who cannot afford legal representatives”.

The issues

The issues for consideration are:

whether Mr Kelly was identified by the respective publications;

whether the matters respectively complained of conveyed the alleged imputation(s);

whether in respect to both matters complained of the defence of triviality was made out;

whether (for the second matter complained of) defence of qualified privilege (both in statute and under common law) was also made out;

damages issues, including issues of mitigation and quantum.

THE FIRST MATTER COMPLAINED OF

Identification

Pleading and information obtained through court process

In his pleading, Mr Kelly asserted that he was regularly recognised and approached around campus by persons commenting on his posts. Asked by Mr Davis for particulars of this assertion, Mr Kelly elaborated that a “bunch of people” had all asked him “are you Mike Meyers?” and they said that they thought that he was funny or loved his posts. One of those was a ‘guy’ in one of his classes.
Asked, more specifically by Mr Davis’ solicitor, for particulars of identification of him (with reference to names and addresses of persons or classes of persons to whom such particulars were known), Mr Kelly referred to certain pictures, where he was identified in real life and connected to his FB (Facebook) name. He said that most people (which he estimated as being at least several dozen) to whom he had introduced himself, in real life, at the university (UNSW), had added him on Facebook, so they knew both his names. Counting them up at the time he had provided particulars, he estimated that at least 36 students were his Facebook friends. He later said in his evidence that these students were mainly from the UNSW and comprised people who had met him online or in person.
In answer to an interrogatory, as to whether from the date of publication anyone had communicated with him concerning the contents of the first matter complained of, Mr Kelly answered:

“No one has contacted me regarding those comments specifically
They’ve approached me asking if I’m Mike Meyers but never mentioned any specific posts”.

Evidence in the hearing

Mr Kelly

Mr Kelly said that he always used a nickname when he was ‘online’, and only used his real name to submit work and when he communicated with close friends. He estimated that his real name would not mean anything to “99+%” of UNSW students. However, he said that his image on the profile made him readily recognisable.
Mr Kelly referred to two Facebook posts, which he said identified him ‘in the same thread as (Mr Davis’) defamatory statement. The first was a link to a video interview that Mr Kelly did on campus with an animal rights group; the second was a statement by Mr Kelly’s lab partner, Darius Dorranian, for a biology course the previous year; stating that he had information about the plaintiff.
In an email sent to my Associate at 8:25pm on 5 August 2022 (Exhibit C), Mr Kelly relevantly wrote the following:

“I use my nickname with 99% of people. Only my lecturers and a few good friends know my real name. Even my landlady and some of my flatmates/ex-flatmates call me ‘Mike’. My real name would mean nothing to anyone else, However my picture on Facebook has not changed since before the first defamatory post was posted.”

Attached to this email was some Facebook messages in which he was referred to as “Mike” (or similar variations on that name).

Cross-examination of Mr Kelly

Mr Kelly accepted that many people used the name ‘Mike Meyers’ as the title for their Facebook profile.
In answer to questioning from Counsel for Mr Davis, Mr Kelly:

said that some of his UNSW friends had met him through face-to-face contact; whilst others met him online;

said that everyone who knew him in ‘real life’ also knew him for his Facebook profile identity; but the converse position was not true;

said, in response to the proposition that those who had met him online would only have known him as “Mike Meyers”, that the answer would depend if he met them in real life. He added that if he met them in person, he would indicate his real name;

said, in response to the proposition that those who had met him in real life, would not know of his Facebook page, that he could not think of anyone who he knew, in real life, who was not on his Facebook page.

was asked about ‘pictures 7 & 8’ in the material he relied upon as establishing that he had been “rapidly identified” by 2 people “in the same thread as Mr Davis’ statement” and that his image on his Facebook profile made him easily recognisable, indicating entries by Darius Dorranian and Simon Marks, respectively. Mr Kelly said that he had never had a discussion with the former about the Facebook profile. As to Mr Marks, Mr Kelly said that he did not know of this person.

Under cross-examination by Ms Chan’s solicitor, Mr Kelly said that the answer to the question of how he was commonly known, depended on whether he was online or in person. To take a concrete example, he said that his teachers would not know of his use of ‘Mike Meyers’.
Asked why he used an ‘alias’ or pseudonym at all, Mr Kelly answered that it was privacy and a desire to avoid being harassed.
As to why he chose the alias ‘Mike Meyers’, Mr Kelly said that he was aware of the Canadian actor (whose surname is spelt ‘Myers’), but that was not the reason for his choice; and he added that he did not intend any comic effect (unlike the title that he had used to describe his occupation for a LinkedIn profile he had set up 7 years before, being ‘bikini inspector’). He said he had a friend who used a profile with that surname and ‘Mike’ had letters which also comprised some of the letters in his first (real) name. He said he did not intend the alias as being a real person; but only a Facebook profile.
Asked if his purpose in using the Mike Meyers’ pseudonym was to remain anonymous, Mr Kelly did not entirely agree with this. He said that one could not use a different alias on the Facebook platform.

Screenshots (Exhibit F)

Mr Kelly referred to screenshots (Exhibit F) which he asserted (without proof, but also without contradiction) had been produced by the second defendant, when it was a party in the proceeding, represented the entirety of replies to the original post, to establish that other users had identified him.

Jessica Jessica

Mr Kelly called his landlady (referred to in Exhibit C), Jessica Jessica to give evidence. She said that the plaintiff had gone by the name known to her as “Mike Meyers”, that they were Facebook friends and that they communicated by Facebook.
In cross-examination from Counsel for Mr Davis, she said she had entered only a verbal lease arrangement with the plaintiff, who had introduced himself to her as ‘Mike Meyers’. She had not noticed the name ‘Milton Kelly’ until she saw it in a bank transfer for the rent three months ago. She said that she only became aware of the current proceeding thirty minutes before giving evidence.
Under cross-examination from Ms Chan’s solicitor, she said that she was not a member of the University of Sydney’s Facebook page and had never read that publication.

Exhibits G & H

Mr Kelly relied upon two documents relating to Facebook post by Simon Marks. This had preceded the First Matter Complained of. Mr Kelly’s point was that Simon Marks had established the connection between the photograph that was on the Facebook profile for the plaintiff and Mr Kelly’s use of “Mike Meyers” as his alter ego.

Exhibit I

This was a photograph and brief description of an American television journalist, Mr Chris Hansen. The description referred to Mr Hansen as being the host of a television show said to be directed to exposing online sexual predators by luring them with underage impersonators.

Mr Davis

Mr Davis said, under cross-examination, that when he posted the comment, he was aware that it was about him, with reference to posts that (you) had made. In re-examination, there was some questioning as to which identity Mr Davis was referring to: the plaintiff’s real name or his alter ego, ‘Mike Meyers’, in order to clarify the ambiguity of the word “you” in the answer given in cross-examination. Mr Davis said he was referring to Mike Meyers. He said he did not know of the plaintiff’s real name at the time he made the post.

Exhibit 1D1

Mr Davis relied upon a printout of a Facebook search result for “Mike Meyers”. It yielded seven pages.

Principles

It is an essential element of a claim in defamation that the plaintiff prove that the statement was made “of and concerning” the plaintiff: Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [126]. This requires proof that the matter complained of (a) was published to a person (or persons) who knew and believed that the plaintiff had been referred to; and (b) those readers were "ordinary sensible readers" who could reasonably have come to that conclusion: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371; applied in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [14] & [17].

In Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86, Jordan CJ said at 89:

“If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it is published, and publication to one person is enough … If, however the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, it would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove the publication, to prove that it was published to a person or persons who had knowledge of those circumstances^[2].”
2. Also Cross v Denley (1952) 52 SR (NSW) 112 at 116

In Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (“Channel Seven”) Mason P dealt with the situation where a plaintiff goes by some other name, but the publication did not refer to the plaintiff by his, her or its actual or ‘real’ name. His Honour said (at [45]-[51], citations omitted):

“..If the matter complained of does not refer to the plaintiff by name, it is not enough that the plaintiff proves that someone who read or saw it linked the publication and the business. The plaintiff must prove that the link was drawn between the publication and the plaintiff.
46 Does this mean that the viewer or reader must know the plaintiff’s name? In my opinion, no. It is sufficient to prove publication to persons who … “would know who the owners were”. This requires identification of ownership and the plaintiff, but does not require knowledge of the plaintiff’s name.
47 In the reasons of Simpson J … the example is given of a statement “The man who lives in that house is a paedophile” made of a reclusive person whose name was not even known to people living in his street. Would the evidence of a neighbour who heard that remark and realised that it referred to the plaintiff prove identification? I think so. It would not matter that the man whom he now thought less of remained the nameless occupant of No X, Smith Street.
48 This hypothetical situation falls within the principle illustrated by Owen J in Cross.Owen J recognised that identification of an unnamed person by a small percentage of the community would suffice, provided “some one or more of those to whom the pamphlet was published had that special knowledge”. The “special knowledge” required in these circumstances was not knowledge of the plaintiff’s name, but of the plaintiff’s identity with the matter complained of. In Cross it would have been enough if a witness happened to know that the plaintiff was the printer who used the imprint “X-press Printery”.
49 Naturally, it will be an unusual case in which evidence tending to identify the plaintiff with the defamatory publication would not also link the plaintiff’s name. But, like the rose which by any other name would smell as sweet, a person’s reputation adheres to more than his, her or its name. It is an attribute of (legal) personality itself. It would be anomalous that, if it were said falsely that a David Jones store was riddled with cockroaches, David Jones Pty Ltd could recover substantial damages in defamation (if it were the owner) but ACN 346 Pty Ltd could not (if it were the owner) absent evidence that a reader knew the obscure name of the corporate owner of the well known business.

50 These principles can be illustrated and (I think) their cogency demonstrated by two further examples. The first is where the identifying witness is slightly mistaken as to the plaintiff’s name, believing him to be “Peter Smith” when in truth he is “Peter Smythe”. This should make no difference.
51 The second example involves a famous personage who is known by a stage name but who retains a family name for private purposes. If defamatory matter was published of and concerning the plaintiff by his stage name then he should be able to recover damages without calling witnesses who know his private name. Equally, the damages recoverable should not be confined to loss of esteem and consequential financial loss derived from the small group of insiders who know his family name.

As was said by Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 at 238:

“..although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.”

Further, as Mason P explained in Channel Seven (at [52]-[58]), where the plaintiff is not named, identification is made mainly in any of the following alternative ways. First, it is common, though not essential that witnesses are called who say that they made the requisite link between the defamatory material and the plaintiff. Secondly, it is proved by inference from all of the evidence (including that of witnesses) that there was a person or persons who probably took the words as referring to the plaintiff. Thirdly, the plaintiff might give evidence of being contacted by people in circumstances showing that such contact was obviously a response to what they read in the publication which did not, ex hypothesi, expressly refer to the plaintiff. A variant is evidence of talk amongst readers or viewers that is indicative of the identification having been made.

Submissions

Mr Kelly’s submissions

Mr Kelly submitted that he was identified in the publication. His photograph appeared in the Facebook profile. He submitted that his former lab partner, Mr Darius Dorranian and Mr Mark Simon, in other facebook posts responsive to the originating post, had identified the plaintiff, in different ways.

Mr Davis’ submissions

Mr Davis submitted that Mr Kelly was unable to establish the combined requirements that persons had (a) read the Matter Complained Of and (b) linked the publication to the plaintiff. Of the 31,792 members which Mr Kelly estimated comprised the Facebook group, Mr Davis submitted that the plaintiff did not and could not argue which ones knew of his identity at the time of publication. Of the 7 persons who commented or reacted to the post, he did not establish that any of them identified him.
In response to a request for discovery, Mr Davis pointed to two individuals who Mr Kelly had identified: one of them was Mr Kelly’s lab partner; and the other was a person (Simon Mark) not known to Mr Kelly or Mr Davis. But neither of those individuals were shown to have read the First Matter Complained of; they were only responding to the original post.
Mr Davis submitted that it was unclear how an ordinary reader could have understood that the imputation referred to him. The accompanying post (inquiring who ‘Mike Myers’ was) did not assist. There was no photograph of Mr Kelly.
Mr Davis emphasised the conjunction of the Mike Myers reference to the question ‘isn’t he the guy from shrek’ as confirming that the publisher of the original post did not know of Mr Kelly’s identity. It would be inferred that others who happened to read the original post would have been in no better position to identify the plaintiff.

Consideration

I accept that there is one or more persons who both: (a) know who Mr Kelly looks like and (b) know that he uses on his Facebook profile the alias ‘Mike Meyers’. These are ‘special circumstances’, to adopt the expression of Jordan CJ in Consolidated Trust Company, known to those persons.
The trouble for the plaintiff, in my opinion, in relation to both matters complained of, is that even though he established that there was at least one person, indeed more than one, with knowledge of those ‘special circumstances’, it remained necessary for him to prove that such person or persons had read the Matters Complained Of.
Addressing each of the ways of proving identification articulated by Mason P in Channel Seven:

no witnesses were called, with knowledge of those ‘special circumstances’, who say that they made the requisite link between either of the Matters Complained Of and the plaintiff;

there was no evidence of another person or persons to indicate that they probably took the words in either Matter Complained of as referring to the plaintiff;

the plaintiff did not give evidence of being contacted by a person or persons in circumstances showing that such contact was obviously a response to what they read in the publication which did not, ex hypothesi, expressly refer to the plaintiff. I take into account Mr Kelly’s submission that it might be inferred that persons might want to shun someone who was outed for being a predator, or someone outed as acting in a creeping fashion; but the submission fails to take an equally available inference that the plaintiff may have obtained a number of Facebook friends who might have made inquiry of the Mike Meyers that he, she or they knew to ascertain whether there was any substance to what had been published about their Facebook friend;

there was no evidence of talk amongst readers or viewers that was indicative of the identification having been made.

It is not enough, in short, that there are some people who know what Milton Kelly looks like and that Milton Kelly uses the Mike Meyers alias on his Facebook page.
For the First Matter Complained of, although Mr Kelly argued that there were posts, from Simon Marks and Darius Dorranian, but he did not establish that either of them had seen the impugned post. To the extent that there were others, in Exhibit F, who may have seen the thread, and the impugned post, Mr Kelly did not establish that they were aware of the ‘special circumstances’ of his using the alias on his Facebook page.
Without proof of this element Mr Kelly’s claim against Mr Davis must fail.
On the contingency that I am wrong in this conclusion, I now consider other issues affecting Mr Kelly’s claim against Mr Davis.

Did the matter convey the pleaded imputation?

The alleged imputation

To reiterate, the pleaded imputation is that the plaintiff “is a sexual predator on UNSW campus”.

Principles

In King v Greenwood [2022] NSWDC 61 (“King”) at [47], I recently set out my understanding of the principles; with reference to earlier statements of authority. For convenience, I reproduce that summary of the principles (omitting citations):

“[48] First, the question is whether the defamatory meanings were conveyed to an ordinary reasonable reader of the publication.
[49] Second, that is a question of fact on which the applicant carries the burden of proof on the balance of probabilities.
[50] Third, it is for the tribunal of fact (here the Court) to determine whether the natural and ordinary meaning of the words in question conveys any or all of the alleged meanings. Although some publications may be reasonably capable of bearing more than one meaning, the Court must ultimately determine whether the alleged meaning was the natural and ordinary meaning of the words complained of^[3].
3. That is, the Court must arrive at a single meaning that an objective audience should collectively have understood the matter to bear (ABC v Chau Chak Wing (2019) 271 FCR 632 at [32]).
[51] Fourth, the natural and ordinary meaning of the words may be their literal meaning or an implied, inferred, or indirect meaning (at [81]). In considering whether the alleged meaning is implied or inferred the ordinary reasonable reader will draw on their general knowledge. General knowledge in this context includes “matters of universal notoriety”, namely, “matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775–1802] All ER Rep 390 at 393E). The meaning the publisher may have intended is irrelevant. Equally, the manner in which the publication was actually understood is also irrelevant.
[52] Fifth, the Court does not approach the matter in the way it would interpret a statute or a contract or other legal instrument. Rather, the Court must consider the meaning of the words in question as the ordinary reasonable reader or, as Wigney J put it in Rush at [74], “[t]he Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader”.
[53] Sixth, the hypothetical ordinary reasonable reader is obviously not a lawyer who examines the publication overzealously and does not live in an ivory tower. Rather, the ordinary reasonable reader is a reader of fair to average intelligence, experience, and education . Such readers are taken to be fair-minded and not perverse, morbid, suspicious of mind or “avid for scandal” . They do not search for hidden meanings or adopt strained or forced interpretations, but they do draw implications, particularly derogatory ones, more freely than do lawyers^[4] . They can and do read between the lines. They read the publication in its entirety and the words in question in context but take into account emphasis given by conspicuous headlines or captions. A headline, for example, might give the reader a predisposition about what follows and so may assume special importance.
[54] Seventh, a defamatory statement in one part of an article will not necessarily be negated by a contrary statement in another part of the article. But an allegation of disreputable conduct may be removed by another statement or other statements in the publication (commonly referred to as the “bane and antidote”).
[55] Eighth, the manner in which the material is published can be relevant to the approach taken by the ordinary reasonable reader….:
“[T]he mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.”

[56] Ninth, the meaning the ordinary reasonable reader would attribute to an article may also be influenced by its overall tone or tenor (at [80]). Thus, the article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:
“It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong”.
4. This point was emphasised recently in Herron v HarperCollins Publishers Australia Pty Ltd (2022) 400 ALR 56 at [28]-[31], [242] & [305]

It will be immediately plain that the construct of the ordinary and reasonable reader indicates an objective standard of meaning. Just as the defendant cannot answer that he, she or they did not intend to convey a defamatory meaning^[5], so too, the plaintiff’s understanding of what a matter meant is irrelevant.
5. Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288
Since that statement of principles, in Bazzi v Dutton [2022] FCAFC 84 (“Bazzi”), the Full Federal Court considered the eighth of these principles in connection with defamatory publications on social media. In the joint judgment of Rares and Rangiah JJ, their Honours (at [29] & [47]) approvingly quoted observations from Lord Kerr SC in Stocker v Stocker [2020] AC 593 (“Stocker”) at [41]-[43] being:

“[41] The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.
[42] In Monroe v Hopkins [2017] EWHC 433; [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter:
“The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”

[43] I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on. (emphasis added)”
Lord Kerr JSC also went on (at [47]) to say that:
“Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post.”

and, at [49], said:
“.. the ordinary reader of the Facebook post .. does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance.”

Where a plaintiff relies on an ‘innuendo’ meaning (that is a meaning other than the ordinary meaning of the matter complained of), he, she or they must plead the facts to support such meaning, including the extrinsic facts known by the reader which gives the publication a special or secondary meaning: Lewis v Daily Telegraph Ltd [1964] AC 234 at 280-81; followed in Bazzi at [38]; and see also r 15.19(1)(c) of the UCPR.

Submissions

Mr Kelly submitted that the ordinary and reasonable reader would have understood that part of the context of the message was the participation of students on a university online social media platform. He submitted that the reference to a predator could only have been understood by the ordinary and reasonable reader to sexual predation. This was how both the first and third defendants themselves understood the reference.
Mr Davis submitted that the Court would reject the suggestion that the First Matter Complained of conveyed the imputation that Mr Kelly was a sexual predator. Absent knowledge of any prior publications by Mr Kelly, the ordinary and reasonable reader would not have arrived at the inference argued for by Mr Kelly. Counsel for Mr Kelly accepted that the construct of the ordinary and reasonable reader should be someone who participated in the online forum, but that person would not be avid for scandal or would readily jump to conclusions. The possibility that someone (perhaps the third defendant) might jump to the conclusion was not sufficient.
Counsel for Mr Davis suggested that, in the abstract, a reference to someone as being a predator might itself be defamatory, but to indicate that someone was a sexual predator took the reference to another level; just like the reference to someone being a thief was distinct to a reference to the person being a bank robber.

Counsel argued that no allegation of a sexual nature was ever made, when read together with the original post. The word ‘predator’ connoted a person who uses, controls or harms others. There might be circumstances where predatory conduct could occur in a sexual context, but the First Matter Complained of does not convey this. Mr Davis also complained about the absence of particulars to support the alleged imputation.

Consideration

I do not accept that the ordinary meaning of the First Matter Complained of carries the alleged imputation. In the context in which the first matter was complained of, including the original post to which Mr Davis’ comment responded, and the responses that it engendered before Mr Davis posted his comment, there was nothing to suggest that an invitation was extended by the author of the original post to make any reference to the personal characteristics, including reputation, of the person who appeared to go by the alias ‘Mike Myers’.
In the conversational medium that the Facebook exchanges occurred, in which participants engage in snappy, and often humorous exchanges, the ordinary reader might have understood that Mr Davis’ reference to a person with the alias ‘Mike Meyers’ as someone who habitually engages in actual or potentially harmful conduct towards vulnerable people at the University of New South Wales, but there was nothing in the wording or context of the publication to indicate that this was conduct of a sexual nature, or character.
The word ‘predatory’ is protean; it takes its meaning from its context. On a university campus, the term could be applied to someone who snatches bags or other items of property, or is a pick-pocket. It could be applied to someone who supplies drugs, or to a person who randomly and violently attacks others who have a particular characteristic (such as race, colour or gender). I do not accept that the ordinary and reasonable reader would, without more in the matter complained of, associate it with a sexual connotation.
The ordinary and reasonable reader is to be taken as not being avid for scandal and is not prone to select the worst meaning of a word, where some other non-defamatory meaning is available. It is not enough to say that someone might have understood the word predator in the sense alleged. A bare reference to someone being a predator is bad enough. That the person is a sexual predator is much worse and to read that word into the publication would be to attribute to the ordinary and reasonable reader the adoption of a strained interpretation.
Mr Kelly did not allege that there was a special meaning to the publication, making it a true innuendo. But Mr Kelly submitted in reply, with reference to Exhibit I, that persons reading the post would have associated the reference to being a predator to being a paedophile.
However, the document that comprises Exhibit I, which was the only document he relied upon to ground the submission, was in no way incorporated into Mr Davis’ post, or even in the lead up to it, in earlier posts as part of the ‘thread’. He did not, for example, prove other posts by Mr Davis that referred to Mr Hansen, or his television show. Nor did he call any witness to prove the existence of this extrinsic fact, as at the date of the publication to say that he, she or they understood the word predator in that sense; from which the Court might reason to the conclusion that the ordinary and reasonable reader, with knowledge of the facts, would conclude that the matter complained of had that meaning.
I am not persuaded that the First Matter Complained of carries the imputation as alleged. This is an alternative and additional basis for rejection of Mr Kelly’s claim against Mr Davis.
Again, acting on the contingency I am wrong on this basis, I will consider other issues arising from Mr Kelly’s claim.

The pleaded defences

Triviality

No requirement in Mr Kelly to prove serious reputational harm

As a general matter, affecting the triviality defences raised by both defendants, it is to be emphasised that the applicable law is as it was before the law changed on 1 July 2021. From that date, a plaintiff in a defamation suit has to prove that publication of a defamatory matter “has caused, or is likely to cause, serious harm to the reputation of the person” (s 10A) (emphasis supplied).
That requirement does not apply to Mr Kelly’s claims against Mr Davis and Ms Chan. For reasons to become apparent in the section on Damages, if the law that is now in place applied to this proceeding, there may have been real doubt as to whether either claim could have got off the ground.

Mr Davis’ pleading

By his defence, Mr Davis articulated the following facts and circumstances to sustain this defence:

the publication did not name Mr Kelly;

the publication was one of many comments in response to another person’s (Aden Samimi-Duncan) Facebook post;

most viewers of a Facebook feed do not read all Facebook posts on the feed;

of the viewers that do read such a post, most do not read all of the comments;

Mr Samimi-Duncan’s post queried the identity of the operator of the ‘Mike Meyers’ Facebook page;

readers who read Mr Samimi-Duncan’s post, and who thereafter proceeded to read comments in response to that post, were already familiar with the ‘Mike Meyers’ Facebook profile and were interested in determining the identity of the operator of that page;

such readers already had their own views about the operator of that page;

none of the comments querying the identity of the Mike Meyers Facebook profile named Mr Kelly as the operator;

the content of the publication was very limited and lacked detail; so it was unlikely to be accepted by those recipients who could identify Mr Kelly;

the content of the publication constituted a spontaneous remark by Mr Davis in the context of a free discussion on an open platform and would have been understood by recipients as a humourous or light-hearted remark not intended to be taken seriously;

ordinary and reasonable readers of Facebook posts consume information from that medium casually and are unlikely to subject it to close analysis;

only one person ‘liked’ the publication and only six other people ‘reacted’ to it with a laughing icon. The use of that icon suggested that the publication had been interpreted as being humorous or light-hearted, and not serious;

other than these 7 people, there was no real basis to suppose any further publication.

Mr Kelly’s ‘Response’ to the triviality defence

As indicated, Mr Kelly attempted to file a Reply but this was rejected by the Registry as a matter of form. In the Joint Court Book that the parties supplied to the Court, he did however, prepare an informal document, titled ‘Responses’. In this document, most of what Mr Kelly wrote related to the justification and contextual truth defences raised by Mr Davis (and also Ms Chan) which were subsequently abandoned. But in relation to the triviality defence, Mr Kelly raised an answer that was commonly applicable to the claims against both Mr Davis and Ms Chan. I do not consider that it is unfair to the defendants for Mr Kelly to rely upon this part of the ‘Responses’ document, even if it did not appear in a Reply which conformed to Court Rules: the defendants were effectively on notice of what Mr Kelly relied upon in this respect. Mr Kelly asserted that, in effect, it was incongruous for both defendants to claim that Facebook posts were usually treated as light-hearted jokes but that his posts were ‘deadly serious’; and which revealed that he was a misogynist, bigot, pervert and creep who sexually propositioned (especially young) girls.
It might be noted that much of these matters travelled well beyond the pleaded imputations in respect to each defendant.

Evidence

Mr Kelly was referred to information suggesting that 6 people had ‘laughed’ in response to the First Matter Complained of, and one had ‘reacted’. He agreed that none of those persons had left any comments themselves. He also agreed that after the post had been published, he had not been contacted by anyone at all. Mr Kelly acknowledged that this was the position that he conveyed to Mr Davis through the processes of discovery and interrogatories.
Under cross-examination, Mr Kelly accepted that the matter complained of was only a comment upon another person’s Facebook post. Mr Kelly said that after he saw it, he reported it to the University, before contacting Mr Davis.

Mr Davis’ evidence

Mr Davis gave evidence. He said that the comment he had made on the post was removed within 12 hours. He also said that he had contact with the plaintiff 3 weeks after. He retracted the allegations and apologised on the same forum in which the post was made.

Ms Chan’s evidence

Over the objection of Mr Davis’ solicitor, I allowed Mr Kelly to question Ms Chan as to her opinion about the significance of Mr Davis’ post, but with a limitation that it only related to the defence of triviality. This had been pleaded by Ms Chan in her own Defence, albeit in connection with her earlier defences (abandoned at hearing) of justification and contextual truth. Ms Chan said, in answer to a question by me (attempting to rephrase a question Mr Kelly had asked) that she understood that the comment was significant and could damage Mr Kelly’s reputation.

Principles

In King at [100]-[105], I also set out my understanding of the principles concerning this defence, substantially, but not entirely, constituted by my application of the observations of the Victorian Court of Appeal in Barrow v Bolt [2015] VSCA 107, as follows:

“34 First, the inquiry, whether the publication was likely to cause harm to the applicant, is directed to the time of publication. The issue, at that time, concerns ‘... the quality of the publication in respect of its proneness to cause harm.’
35 Secondly, the focus of the inquiry is on the ‘circumstances of the publication’. The critical test is whether those circumstances were such, at the time of publication, that it was unlikely that the applicant would suffer harm. The circumstances include (inter alia) the content of the publication, the extent of the publication, the nature of the recipients and their relationship with the applicant. However, the phrase ‘circumstances of the publication’ is not sufficiently wide to encompass the previous bad reputation of a plaintiff.
36 Thirdly, the phrase ‘unlikely to sustain any harm’ does not mean that it is sufficient for the defendant to establish that it is ‘more probable than not’ that the plaintiff will not suffer harm. Rather, the defendant must demonstrate that there is ‘the absence of a real chance’, or the ‘absence of a real possibility’, of harm.
37 Fourthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer ‘any’ harm. Accordingly, the onus, on the defendant, to prove that matter, is high.
38 Fifthly, the defence, provided by s 33, applies to the publication of ‘defamatory matter’. Thus, s 33 provides a defence where matter, that has been published, is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the ‘circumstances of publication’ were such that the plaintiff was unlikely to sustain any harm as a result.”

As was said in Perkins v New South Wales Aboriginal Land Council (unreported, NSWSC, 15 August 1997) Badgery-Parker J:

“It would be relatively easy to make out the defence in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed.”(cited approvingly in Jones v Sutton (2004) 61 NSWLR 614 at [15])

One matter which I adverted to in King (at [101]) as an ‘open’ question, is whether ‘harm’, within the meaning of s 33 of the Defamation Act 2005 (NSW) (‘the Act') extends beyond reputational harm to injured feelings. There are decisions of different intermediate appellate courts across the country that point in different directions: see Tobin, T. K. and Sexton, M.G, Australian Defamation Law and Practice (LexisNexis, loose-leaf service), at [16,011]). After referring to the New South Wales Court of Appeal’s decision in Jones v Sutton, the learned authors of that service wrote:

‘It might .. be inferred from the judgment of the Court of Appeal that its members took the view that the defence was concerned with hurt to feelings as well as damage to reputation because the judgment quoted an earlier decision of the Court of Appeal in Morosi v Mirror Newspapers Ltd^[6] where the defence was considered:
The subsequent acts or statements of persons from which it appears, or may be inferred, that the person defamed was or was not upset by the defamatory publication can have only a limited bearing on whether that person’s reputation was likely to be damaged or his feelings were likely to be hurt.”
6. [1977] 2 NSWLR 749 at 799

I agree. I respectfully consider myself bound by authority in the Court of Appeal indicating that, for the purpose of the triviality defence under s 33, harm may include injured feelings.

Submissions

Counsel for Mr Davis submitted that the focus is upon the circumstances at the time of the publication; not afterwards.
Aside from reprising the particulars to support its pleaded argument of this defence, Mr Davis noted that the Original Post did not name Mr Kelly; nor correctly identified the pseudonym for his asserted Facebook profile. It was highly likely that the extent of publication was very limited. Further, given the medium of the publication, it was probable that most viewers paid little attention to comments responsive to one of many posts. The publication was jocular in nature; and did not cast any serious dispersion. Nothing had otherwise come of it, such as any investigation (by the University) into what was conveyed. Those viewers who troubled themselves to look at it closely and had identified the plaintiff would likely had formed their opinions of him; which were unlikely to have been affected by a spontaneous remark that was obviously intended to be humorous.
Mr Kelly submitted that the circumstance that, in both cases, the matters complained of were taken down within a reasonably short time is not of much weight. The nature of Facebook posts is such that there is a universe of persons who could see it but it may be difficult to gauge whether or not they have ‘reacted’. Facebook friends who “like” a particular post may be apt, without the matter being susceptible to exact proof, to ‘share’ it.

Consideration

Proof that there is an absence of any real chance of harm is a notoriously high bar for a defendant in a circumstance that reputational harm is presumed to flow from a defamatory publication (and Mr Davis ultimately abandoned an attempt to rebut the presumption).
There is an obvious artificiality in considering the issue where, as I have found, the plaintiff has failed to prove either (a) identification or (b) the imputation he alleged. It is only on the contrary premises, that he was identified, and the alleged imputation was made out, the analysis can proceed.
I do not find convincing Mr Davis suggestion that there was no proof that more than 7 people saw the publication even if it was fleeting; i.e. taken down the next day simply because there were manifest or tangible indications that 7 people had ‘liked’ or ‘reacted’ to it. The membership of the Facebook page was large in number: Mr Davis admitted that on the date of the publication, it had 31,792 members. Its very title indicated the generality of topics that members may have wanted to have exchanged posts about. One imagines that in a spare moment on campus, many students might be tempted to go to the site on their iPhones. The defamatory imputation was not made in circumstances analogous to a verbal conversation between a small group of people at a moment in time. It remained on the Facebook page until the step was taken to remove it. Until removal, the digital imprint is made.
In terms of the nature of the relationship between the plaintiff and the recipients, the only connection, designedly, was an online connection. Mr Kelly made it very clear that he tried to compartmentalise his life into discrete identities, between his Facebook identity (using an alias) and also his engagement in what some might describe as the real world; featuring personal interactions, in the flesh, with lecturers, or students in classes, or perhaps other social, sporting or other cultural activities at the university campus (in which he used his real name). The likely damage here, in terms of reputational harm, would generally be expected to have occurred only in his interactions with Facebook recipients. However, that is not to underestimate the potential harm in the sense of hurt to his feelings. It is a fact of modern life that many people place a great deal of importance and take significant steps to cultivate their image or identity on forms of social media. Some place great pride in quantifying the number of their Facebook (or Instagram) ‘friends’; even if they never meet those friends in person. One might think that the feelings of a person are indivisible whether the injury is inflicted to one part of a person’s (social media) identity, as distinct from damage inflicted to another part of the person’s identity (in physical dealings with others). There is every prospect that a person who saw themselves labelled, in effect, as a sexual predator within a discrete, but still large, community would have injured feelings.
The content of the defamatory imputation, for the first matter complained of, is serious even if some of the recipients of this Facebook page might use it as a platform for light-hearted banter.
I take into account the nature of the medium, which is conversational and, more often then not, transitory, as recipients flit from one topic to another Stocker at [44]). However, this particular post was likely to stick out. To describe and identify someone as a sexual predator on a university campus is a serious thing. Moreover, I do not accept Mr Davis’ argument that users of the Facebook page would have had firm opinions about the plaintiff which would have meant that it was likely that they would have been swayed by what they saw; which amounted to bare assertion.
In the circumstances, on the stated premises (contrary to what I have earlier found), I am not persuaded that the triviality defence would have been established for the first matter complained of.
I will defer consideration of damages (also performed contingently) until after my consideration of the case against Ms Chan.

THE SECOND MATTER COMPLAINED OF

Identification

Evidence

Mr Kelly’s evidence

Part of Mr Kelly’s evidence when cross-examined by Ms Chan’s solicitor was referred to in the corresponding section, on the topic to ‘Identification’ in the First Matter Complained of.
In addition, Mr Kelly said that he understood that the USYD Facebook Group was operated by Sydney University students and understood that discussion on that Facebook page primarily occurred between those students. However, he explained that he used the ‘Mike Meyers’ alias on that forum because there were a lot of students who had multiple Facebook pages.

Principles

I referred to the principles relating to identification earlier in the section of these reasons concerning the First Matter Complained of.

Submissions

Mr Kelly submitted that Ms Chan was responding to his posts. It followed that people who received the matter complained of knew who she was responding to. He added that the matter complained of also evinced her knowledge of his (approximate) age.

Ms Chan submitted that the plaintiff was not named and there was no reason why any reader would (not) have known that ‘Mike Myers’ was a pseudonym; but at any rate, there was nothing to suggest that any reader of the posts would have known of the true identity of ‘Mike Myers. It was emphasised that the Facebook group was run by students from Sydney University; whereas ‘Mike Myers’ ostensibly appeared to be a UNSW student.
Ms Chan’s solicitor distinguished this case from the type of situation where an actor used a stage name. He argued that it would be easy to find out an actor’s real name. In contrast, it was very difficult to connect Mike Meyers with the plaintiff’s real name. There was evidence of 80 persons with the Facebook profile ‘Mike Meyers’ (Exhibit 1D1). Mr Kelly’s own landlady only knew the plaintiff as Mike Meyers.
Mr Vogel stressed the significance of the choice of pseudonym: ‘Mike Meyers’, which was materially similar to the spelling of the well-known actor who became accustomed in many people’s minds as ‘Austin Powers’. It was not uncommon that people on social media to use fictitious names to shield their anonymity by using parodies of names, for the purpose of concealing their true names. But a consequence is that if something is said that is defamatory of the person with the alias, persons may not know who is being referred to.

Consideration

The reasoning underpinning rejection of the aspect of identification for the First Matter Complained of applies to the Second Matter Complained.
Mr Kelly has not established that the people who tracked his exchange with Ms Chan generally on the USYD Love letters Facebook page, and who saw the matter complained of in particular, knew that Mike Meyers was his alter ego.
On that basis alone, Mr Kelly’s claim against Ms Chan fails.
The balance of what follows in these reasons concerning the Second Matter Complained is supplied if I am wrong in that dispositive conclusion.

Whether the matter complained of conveyed the pleaded imputations

The pleaded imputations

To reiterate, these were:

that the plaintiff attends campus for illegitimate purposes;

the plaintiff was on campus and/or the webpage for the purpose of sexually propositioning first year students;

the plaintiff spends time on campus actually sexually preying on first year students;

By her Defence, Ms Chan disputed the alleged imputations. She argued that, read in the context of the relevant Facebook discussion, the reader would reasonably have understood that the exchange was part of a discussion about racial prejudice in which Mr Kelly had ‘thrown the first stone’ by accusing her of criticising white people and of being “very woke”. Her comment, which attracted complaint had to be seen in context. It was, at its highest, offensive and derogatory but the alleged imputation was not established.

Submissions

Mr Kelly submitted that the meaning carried by the Second Matter Complained in relation to ‘creeping’ had a clear sexual connotation. It was partly being conveyed that he was someone who had no legitimate other purpose for being on campus (or communicating on-line) but for giving other (first year) students unwanted sexual attention. The overall effect, Mr Kelly submitted, was that he was an old guy, not a student, whose only purpose for being on campus and the university site was for sexual motives. This submission, I note, conflates the separate imputations Mr Kelly alleged in his pleading.
Ms Chan submitted that the reference to ‘creeping’, though undoubtedly offensive and derogatory, did not suggest any predatory conduct. But in closing verbal argument, her solicitor, Mr Vogel, did not dispute that it could be understood as having a sexual connotation. But Ms Chan said that the reference needed to be seen in the context of earlier posts in which what had started as a serious exchange about interracial dating had been derailed by insulting statements made about Ms Chan by Mr Kelly. Mr Vogel accepted that this was also relevant to his client’s triviality defence.

Consideration

I do not see any difference, in substance, between the second and third alleged imputations.
I generally accept Mr Kelly’s argument in connection with the first and second imputations. Reading the Matter Complained of as a whole, and taking into account the conversational nature of the medium in which the matter complained of was made, both matters are made out.
As was indicated in Stocker (at [43] & [49]), and as adopted by the Full Court in Bazzi, for Facebook posts, it is inappropriate to parse and isolate parts of a post and construction of meaning is to take into account the conversational mode of the medium; as well as the reality that posts are scolled through quickly by recipients without reflection with reactions that are impressionistic and fleeting. I consider that the reasonable and ordinary recipient of this post would understand that what was being conveyed were two things. First, he was a middle aged man who propositioned young uni students for sex and secondly, he had no other legitimate purpose for being on campus and participating in an associated university social media publication (such as being a student) other than to proposition first year students.
These conclusions can be broken up in the way alleged. There are two “stings”, albeit that they are related. A reasonable and ordinary reader for this medium would, I am satisfied, on the probabilities, that have understood the matter complained of to convey that:

that the plaintiff attends campus for illegitimate purposes (hereafter the “purpose of attendance imputation”); and

the plaintiff was on campus and/or the webpage for the purpose of sexually propositioning first year students (hereafter the “propositioning imputation”).

Qualified privilege

The pleading

Schedule 2 to Ms Chan’s Defence

The facts and circumstances which Ms Chan relied upon to sustain the defence of qualified privilege were set out in Schedule 2 to her Defence. No distinction was drawn, in the pleading of the facts in Schedule 2, between the statutory defence and the defence under the common law.
In the initial part of Schedule 2, under the sub-heading ‘Background context to the comment’ Ms Chan started by noting that her comment was the third, in sequence, to the original post that had asked users for their comments on the subject ‘Asians who don’t want to date other Asians’. The actual post was:

“What is your impression on Asians who don’t want to date other Asians? Am I being self-hating or it is just a preference?”

Mr Kelly, using his alter ego ‘Mike Meyers’, responded:

“Your dating life is for you and only you to figure out. There’s no right or wrong if you wanna or don’t wanna date someone for any reason.”

Another post was made (by a different person) before Ms Chan entered the fray. In her first comment, Ms Chan expressed her view that racial preferences were rooted in racial prejudice and questioned whether racial preferences might arise from white supremacy or other institutionalised racism. That first comment generated reaction. Ms Chan asserted that she was qualified to express the comments, amongst other places, writing an opinion piece (‘Peril’) in the Asian-Australian Arts and Culture Journal. She had expressed another comment on the other post, but that did not elicit reaction. The first comment drew Mr Kelly’s attention. He interpreted Ms Chan’s view as criticising white people and belittling her by suggesting that she “line up for (her) Woke award”. To this post, Ms Chan responded sarcastically, referring to his appearance (as an Anglo-Australian) and implicitly casting doubt upon his qualification. That only provoked Mr Kelly to comment again, describing her as “just very woke”.
Ms Chan then set out her view about stereotyping of the Asian-Australian section of the community, and hate crimes and asserted that issues about race and social justice were ‘hot button’ issues at University. Further, it was asserted that Mr Kelly himself had entered the fray when, according to Ms Chan, he had, by a separate post, defended a person accused of being ‘exposed’ to a history of racist and transphobic social media posts. I interpolate here that it was not apparent in the evidence, or the written or verbal argument raised on Ms Chan’s behalf, what this was a reference to.
Continuing with Schedule 2, Ms Chan asserted further that the Second Matter Complained of related to the subjects of (a) dating-related behaviour that Mr Kelly had engaged in, or was known to have engaged in; and (b) Mr Kelly’s expression of his attitudes towards vulnerable women.
Ms Chan further asserted that any recipients of the Second Matter Complained of had an interest in receiving information on these ‘subjects’ as they supplied details about Mr Kelly’s background, context, attitude, potential biases and motives in asserting opinions in his argument with her and, more broadly, to Asian-Australian dating habits. These details were of public interest since it enabled readers of his comments to understand relevant circumstances in which Mr Kelly had expressed his views: the details might suggest whether his contributions were coloured and could illuminate how they should be received.
Her comment was published to any (alleged) recipients in the course of giving them this information.
Her conduct in publishing the Second Matter Complained of was, she asserted, reasonable in all the circumstances, including the nature of Facebook communications, which featured characteristics of being a ‘fast-moving medium’ (where conversations were often ‘ill-thought-out’), where arguments were often heated; where they do not lend themselves to verification (to the same extent as other media reporting) and the subjects provided important context which readers should know before viewing Mr Kelly’s contributions to his argument with Ms Chan.

Mr Kelly’s ‘Responses’

In Mr Kelly’s ‘Responses’ document, referred to earlier in these reasons, on the issue concerning qualified privilege, he asserted that the matters cited by Ms Chan in Schedule 2 were “ridiculous”. The comment she made, which gave rise to his claim against her, was “off-topic” to the general Facebook discussion she referred to. She clearly intended other readers to see what she had posted. He also took issue with Ms Chan’s point that Facebook communications do not lend themselves to requiring verification prior to publication to the same extent as media reporting.
Significantly, Mr Kelly did not refer to malice in his ‘Responses’ document, as an answer to the defence of qualified privilege (under statute or under the common law) as r 15.31 of the UCPR required him to do; in order to defeat either of these defences.
I note that on 14 October 2021, Judge Gibson made a self-executing order as to the (already extended) time for him to file a Reply.
In those circumstances, although he made certain submissions in oral argument regarding Ms Davis’ state of mind when publishing the matter complained of, including the multiple use of the assertion that she was motivated by ‘revenge’, I explained to Mr Kelly, more than once, during the hearing that I was not prepared to permit him to rely on an answer of malice to the defence; whether that was to the statutory defence or the defence under the common law^[7].

Evidence in the hearing

7. In any event, there may be a question whether in the circumstances any desire for revenge against Mr Kelly was a “purpose foreign to the privilege” causing Ms Chan to use the words she did, given the interest she had in the publication, to make out malice: Roberts v Bass (2002) 212 CLR 1 at [75]-[76]; Cush v Dillon (2011) 243 CLR 298 at [27]

In her evidence, Ms Chan said that she was currently enrolled as a student, but was also a teacher. She said that she had previously made several writings on the dating preferences of other Asians.
She complained that Mr Kelly had previously belittled her contribution to the discussion, dismissing it as a ‘criticism of white people’ and telling her to ‘line up for (her) Woke award’.
In cross-examination by Mr Kelly, Ms Chan was asked what the relevance of the Second Matter Complained of had to interracial dating. Ms Chan said that her post was a response to other posts that Mr Kelly had made. Asked further why she made the post, Ms Chan said that she had felt “insulted” by Mr Kelly’s responses to her earlier contribution. She said that the source of what she wrote in the second matter complained of comprised her impressions from reading other posts from friends which were on the internet. It was suggested that she had not referred to the posts of other friends in the Defence. Ms Chan indicated that she was unsure whether or not that was the case.
But she was directed, specifically, to Mr Davis’ post, which formed the subject matter of the First Matter Complained of. She said she did not know of Mr Davis before her post^[8]. In re-examination, she said she only saw this post at the time she was served with Mr Kelly’s pleading. She was also directed to the Reddit post (this appeared to be a reference to the matters referred to in paragraphs 5-8 of Schedule 1 to her Defence). Schedule 1 was directed to the defences of truth and contextual truth which Ms Chan abandoned at the hearing. She said she did not think that the matters referred to were untrue.
8. This was apparently the document Annexure A to Schedule 1 of Ms Chan’s filed defence (p 48 of the Joint Court Book), which was virtually illegible.
Ms Chan was referred to the reference that she made as to her Sociocultural background. She explained that when she referred to ‘hot button issues’ (paragraph 13 of Schedule 2 to the Defence) she meant ‘culturally relevant’.
Ms Chan was asked about her reference to ‘dating-related behaviour’ (paragraph 14.1 of Schedule 2). Ms Chan said that this was a reference to comments that Mr Kelly had made online about women; which she characterised as the ‘objectification of women’. Later, she said that Mr Kelly’s posts followed a ‘thread of creepiness’. She indicated her view was sourced in her reading of Mr Kelly’s posts and comments, as well as Reddit.
Questioned whether she had relied upon posts that were dated (going back 4 years, apparently, before the Second Matter Complained Of) she said that it was after her comment was published that she had reviewed them.
Ms Chan was asked about her assertion (paragraph 20.3 of her Defence) that she had a ‘duty’ to publish the comment. She said that Mr Kelly had said irrelevant things and had insulted her.
She was challenged upon her reliance of what others had said about him. She acknowledged (hardly surprisingly) that she had no personal knowledge of what he had done.
She said that she did not consider the effect of her comment upon Mr Kelly.

Submissions

Ms Chan’s submissions

In her solicitor’s written submissions, Ms Chan raised the matters as establishing the defence of qualified privilege, under statute and under the common law. She submitted her comment was made in the context of broader political discussion about racial preferences in student dating; an area touching upon her expertise and on which she had been published (in fora other than social media). She made the comment to ‘contextualise’ Mr Kelly’s contributions to the discussion to which the original post had alluded, centred on ‘Asians who don’t want to date other Asians’. That was necessary since Mr Kelly had commented upon her own contributions, which were insulting and belittling.
Mr Vogel did not make any additional submissions on qualified privilege at the hearing.

Mr Kelly’s submissions

Mr Kelly orally addressed the Court about some of the matters in s 30 of the Act. He argued that Ms Chan had not considered the effect upon him of the Matter Complained Of, but instead had published hastily. She did not rely upon her first-hand knowledge of him but upon what others had said about the plaintiff. She did not distinguish between suspicion and facts and did not care about whether what was said about him was true. These matters made her conduct unreasonable such that the statutory defence did not lie.
As to the common law defence of qualified privilege, as I understood him to submit, Mr Kelly submitted that although there was spirited discussion between him and Ms Chan, and although he acknowledged that not every insult would be defamatory, Ms Chan had ‘crossed the line’ by becoming ‘personal’. I understood Mr Kelly to submit, that even if the occasion was established for the privileged comment, the second requirement of the common law defence – a connection between what was said and the occasion - was not.

Principles

Statutory qualified privilege

Section 30(1) of the Act provides a defence to a publisher if:

the recipient had an actual or apparent interest (i.e. where the publisher believes on reasonable grounds that the recipient of the material had an apparent interest in it at the time of publication) in having information on some subject;

the matter is published to the recipient in the course of giving to him or her information on that subject; and

the conduct of the publisher in publishing the matter is reasonable in the circumstances.

The ‘reasonableness’ referred to in s 30(1)(c) is, under s 30(3), the subject of a discretionary and non-exhaustive list of considerations, including:

the extent to which the matter published is of public interest;

the extent to which the matter published relates to the performance of the public functions or activities of the person;

the seriousness of any defamatory imputation carried by the matter published;

the extent to which the matter published distinguishes between suspicions, allegations and proven facts;

whether it was in the public interest in the circumstances of the matter published to be published expeditiously;

the nature of the business environment in which the defendant operates;

the sources of information and the matter published and the integrity of those sources;

whether the matter published contain the substance of the person’s side of the story and;

any other steps taken to verify the information about that published; and

any other circumstances that the court considers relevant.

In Palmer v McGowan (No.5) [2022] FCA 893 at [184], Lee J adopted but also supplemented the statement of principles articulated by Wigney J in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [109]-[116]^[9] on the requirement of ‘reasonableness’ in s 30(1)(c), as follows:

“(1) in most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure its conduct in relation to the publication was reasonable;
(2) a respondent who intended to convey an imputation that was in fact conveyed must generally establish that they believed in the truth of that imputation and that the imputation conveyed was relevant to the subject;
(3) the fact that the respondent may not have intended to convey the imputation that was in fact conveyed does not necessarily mean that their conduct in publishing was unreasonable. In such a case, the respondent must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation which they did not intend to convey, but which was in fact conveyed. In this regard, it may be relevant to consider whether it was reasonably foreseeable that the publication might convey the unintended imputation and, if so, whether the respondent considered that possibility and took appropriate steps to prevent that imputation being conveyed;
(4) the respondent must generally establish that reasonable steps were taken before publishing to ensure that the facts and conclusions stated in the publication were accurate. That generally involves making proper or reasonable inquiries, checking the accuracy and reliability of sources of information and ensuring that the conclusions follow logically, fairly and reasonably from the information. Where serious allegations of fact have been published about a person without the publisher having taken steps to check with the person concerned, it is the publisher (and not the person defamed) who takes the risk that the allegations cannot be justified;

It is pertinent first, to address the imputations separately. I find that the ‘attendance on campus imputation’ was so trivial that there was no real chance that it was likely to cause harm. A university campus is by nature, a prominent community. It is a matter of common knowledge that the UNSW campus occupies a large amount of physical space in the South- East of Sydney. Many, but not all people are there for study, teaching or researching purposes. Others are of course, administrators. But the community is not entirely ‘academic’, given the scope of social, sporting and cultural activities that may occur on campus at any one time. To impute that someone may be present there for illegitimate reasons is vague and, at any rate, is a long way short of saying that they are there, say, for malevolent reasons or worse. The triviality defence is established in relation to the attendance on campus imputation
What is really in question is whether there was a real chance of an absence of harm arising from the ‘propositioning imputation’. The imputation itself is, to my mind, serious to a degree, striking as it does at the reputation and character of Mr Kelly. The imputation did not convey any isolated instance of Mr Kelly propositioning a single student, but rather a discernible tendency sufficient to burnish a reputation.
However, the seriousness of this imputation cannot be isolated from contextual matters. I agree with Ms Chan that the defamatory imputation was made in a context where barbs (or insults) were publicly being exchanged between herself and Mr Kelly; in a fluid conversational medium, where new feeds and subsequent posts are made. I consider it likely that its gravity was not such that it may not have stuck in the mind of many recipients for very long and I accept Mr Vogel’s point that an indication of this was Mr Kelly’s own delay in checking that it had been deleted; albeit that he had requested Ms Chan to remove it the next day. That said, the fact that he did request her to remove it was an indication of the affront to his feelings and I cannot discount the possibility that to members of this Facebook page, some were likely to look upon Mr Kelly adversely in the light of what Ms Chan posted about him.
I do not place weight on the circumstance that Mr Kelly was a student of the University of New South Wales and the publication occurred on a Facebook page affiliated with Sydney University. In the online world of Facebook friends, the physical place from where Facebook members or friends communicate is irrelevant.
I do not place too much weight on the proposition that only one person had, through a post, manifestly indicated that they had read the second matter complained of; that there was only one “known” recipient; for the purpose of this defence. What is of greater weight, for the purpose of this defence, is the potential base of recipients.
The extent of publication is, of course, relevant to the assessment of damages issues, considered later in these reasons, and it is something that it would be expected that would be in a plaintiff’s interest to prove. In the present context, however, the triviality defence is a matter for Ms Chan to prove. If she wanted to rely upon a narrow class of actual recipients who saw the post as grounding the defence, this was a matter upon which she bore the onus.
To my mind, comparatively, the matters are more finely balanced for the triviality defence for the second matter complained of than the first. Nevertheless, as indicated, the relevant test is whether Mr Kelly is likely to have suffered any harm. On the stated premise, on balance, I am not persuaded that he would not have suffered any harm.
If it was necessary to find, I would have rejected Ms Chan’s triviality defence.

ISSUES CONCERNING DAMAGES

Mr Kelly drew little, if any distinction, between the damage he says arose through the publication of both Matters Complained Of, but that does not relieve the Court of dealing with the damages awards separately.

Pleading matters

Mr Kelly’s pleading

By his amended pleading, Mr Kelly claimed ‘general damages’.
He also indicated a desire to receive damages which would ‘deter other similar posts by others in the future’. This is the language of exemplary damages. However, by s 37 of the Act, exemplary damages cannot be ordered.
I note that in his pleading, as amended, no claim was made for aggravated damages (as required by r 15.32(a) of the UCPR).

Mr Davis’ pleaded claim of mitigation of damages

Through the course of closing submissions, Mr Davis’ Counsel refined his client’s plea of mitigation of damages from that which had been pleaded. Ultimately, the pleading of the claim was limited to:

Mr Kelly not being named in the First Matter Complained of;

The limited extent of publication;

The facts, maters and circumstances proved to support the defences.

Mr Davis’ Counsel confirmed that his client also relied upon his public apology on 2 September 2021 in mitigation of damages (s 38(1)(a) of the Defamation Act).

Ms Chan’s pleaded claim of mitigation of damages

By her defence, as it became narrowed during the course of Mr Vogel’s closing oral submissions, Ms Chan relied on the following matters as mitigating damages:

Mr Kelly acted provocatively in the lead up to publication of the matter complained of;

The circumstances in which the publication of the matter complained of was made;

The circumstance that the post was taken down immediately upon Mr Kelly’s request;

The circumstance that the reputation of Mr Kelly was already bad prior to publication of the matter complained of;

The ‘infinitesimal’ extent of publication;

The triviality of harm sustained.

Evidence

The first matter complained of

Mr Davis gave unchallenged evidence that the post containing the First Matter Complained of was deleted within 24 hours. Further, Mr Davis subsequently issued a public apology to the same online forum upon which the First Matter Complained of was published.
Mr Kelly accepted that when he contacted Mr Davis, the latter had apologised and informed him that the post had been deleted.
Mr Kelly placed before the Court (Exhibit C) an email which he said he had sent to a course adviser in March 2022 (after the proceeding commenced), in which he informed the adviser that he had been accused of being the “local uni predator” and ‘paedophile’ and that a girl (being a reference to Ms Chan) had said something similar on the USyd students Facebook page.
He explained to the adviser that he had been trying to get “them” (apparently a reference to administrators at both universities) do something, but he had been informed that his conduct had constituted a breach of a student code. He said that “this” was making studying incredibly difficult for him and that he was having unwanted thoughts. He indicated that he himself had been threatened with expulsion by the university. He complained that neither defendant had been punished. In effect, he complained of different standards being applied to him to other persons following a breach of student code of conduct.

The second matter complained of

Ms Chan gave unchallenged evidence that she took the post down the day after it had been published. She said she did so immediately.
There was little evidence directed specifically (separately) to the damaging consequences flowing from the second matter complained of, as distinct from the damage arising from the first matter complained of.
Although Ms Chan continued to rely upon the particular of ‘bad reputation’ of Mr Kelly in mitigation of damages, neither in pre-trial written submissions nor in the verbal closing submissions of her solicitor was any reference made to negative evidence of reputation against Mr Kelly. It follows that this particular should be rejected. This particular should not have been pressed.

Principles

It is trite that the purposes of awards of damages for defamation suits are: consolation for hurt feelings; recompense for damage to reputation; vindication of the plaintiff’s reputation (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61).
As Lee J recently observed in Palmer v McGowan (No.5) [2022] FCA 893 at [499]-[502], there is a natural interrelationship between these matters. Thus, his Honour said, if there is no real damage to reputation, there is little to vindicate.
By s 34 of the Act, it is emphasised that the amount of damages awarded must be proportionate to the harm sustained. By s 35, damages for ‘non-economic loss’ are capped; although the presence of a cap does not suggest that the Court will consider the ‘worst-case’ scenario and then scale the award downwards. The extent of publication is a relevant consideration.
Since damage to reputation is presumed, it is unnecessary for the plaintiffs to prove actual damage to reputation: Bristow v Adams [2012] NSWCA 166 at [20]-[31].
I summarised other principles relating to damages awards in defamation in King at [144]-[147] and I do not propose to repeat what I said there.

Mr Kelly’s submissions

Actual harm

Mr Kelly accepted that he could not prove that he actually suffered harm because of either of the matters complained of. No one had come up to him. That did not, however, mean that people did not think badly of him after the matters complained of; though he had no way of establishing their (purely internalised) thoughts.

Comparative cases

In his written argument (MFI 1), Mr Kelly drew the Court’s attention to three decisions of this Court indicating damages awards in defamation suits which, he argued, would assist the Court to quantify damages in this case against both matters complained of. He referred to Mickle v Farley [2013] NSWDC 295, Raynor v Murray [2019] NSWDC 18 and Goldberg v Voigt [2020] NSWDC 174.
About Mickle, Mr Kelly emphasised the limited value of the publisher’s apology in the circumstances of that case where it was said that the “apparent” sincerity of the defence was undermined by later events, including the publisher’s reliance upon a truth defence in the defence as initially filed.
About Raynor, Mr Kelly pointed to a damages award of $120,000 for what he submitted was a publication addressed to a very small audience.
About Goldberg, Mr Kelly identified that the damages award was $35,000 for what he argued was a very similar claim, where there a potential audience of 1,200 people. Mr Kelly submitted that it was likely that, having regard to the membership of the UNSW Discussion Group forum, many thousands would have read the post.
Both defendants sought to distinguish these cases as not providing meaningful assistance.
In supplementary written submissions (MFI 4) Ms Chan said that Mickle was a poor comparator. The case concerned only an assessment of damages, so the content of the defamation was not known. There was evidence of actual physical harm to the plaintiff in that case: she had to take sick leave and returned to work part-time.
I would interpolate here to add that the passage in Mickle referred to by Mr Kelly concerned an award of aggravated damages. Mr Kelly has not made that claim in this case.
The decision at first instance in Raynor was overturned on appeal on liability (Murray v Raynor [2019] NSWCA 274) so the decision at first instance on the damages award is stripped of whatever precedential value it otherwise had, and what was said on the subject of damages in the appellate court was only obiter. But Payne JA (Macfarlan JA and Emmett AJA agreeing) observed (at [96]-[97]) that there was no finding at first instance of damage to reputation and no need for a damages award to vindicate that reputation. To vindicate hurt feelings, no more than $25,000 should have been awarded (and there was no basis for an award of aggravated damages). The defamation in that case was in an extensive email (comprising 15 paragraphs); not a fleeting comment on a social media post. There was much evidence to establish the claimant’s distress and an aggravated award was made.
Goldberg comprised a damages award for 13 separate imputations, some of which were so serious as to convey that the claimant was mentally unstable and likely to kill women. Further, the post by the defendant in that case was a ‘News Feed’; not a comment, such as the one published by Ms Chan. It was much less prominent, and likely to be viewed than the defendant’s post in Goldberg. There was a deal of ‘chatter’ in the community in that decision which was not apparent in this case.

As against Ms Chan

Mr Kelly indicated that he felt shocked by this post.

Mr Davis’ submissions

Mr Davis did not dispute the presumption of harm being suffered, but argued that the evidence indicated that the extent of actual harm sustained, if any, was extremely limited. For example, he did not demonstrate his exclusion from any social circles.
Mr Davis submitted even if Mr Kelly could establish the requirement of identification, the publication was limited: the Matter Complained Of was removed within a day. Notwithstanding that the membership of the forum was large, the evidence did not suggest that any more than 7 persons had seen the defamatory post which was one of 33 responsive posts to the original post.
His Counsel pointed out that that in response to the issue of court process (requests for particulars, discovery and interrogatories) (Exhibit 1D2) Mr Kelly was unable to identify any correspondence that he had with any other person who read the matter complained of (apart from herself); nor any record of injury to his reputation, or loss, hurt or embarrassment arising after the publication; nor any other record proving that he had been brought into hatred, contempt or ridicule as a result of the publication. As Mr Kelly had succinctly said in one answer: no one had contacted him about the post.
Mr Davis argued that Exhibit C did not assist the plaintiff. For one thing, Mr Kelly had conflated the imputation of his being a predator with being a paedophile. For another, the grief that he was complaining about to his course adviser had to do with what he regarded as a lack of responsiveness by the university (or universities) to his complaints about the first and third defendants and what he took to be double standards in the officials’ treatment of him.
He submitted that there was little need to demonstrate to the ordinary bystander of the baselessness of the charge where it was not demonstrated that the charge could materially have affected the bystander’s opinion.

Ms Chan’s submissions

Ms Chan said that she immediately deleted the post after receiving Mr Kelly’s complaint. She estimated that it was visible for less than 12 hours. She submitted that there was no evidence that her comments were seen by anyone other than Mr Kelly (and the defendants).

Consideration

Claim against Mr Davis

Seriousness of imputation

This analysis proceeds, of course, on the premises (contrary to what I have found) that Mr Kelly was identified in a publication containing the defamatory imputation that he was a sexual predator.
I have, already, rejected the triviality defence. I necessarily accept that the imputation is serious. Nevertheless, a question remains how serious. Part of the answer to that question involves consideration of context; which, in turn, is affected by the medium.
There is force to the view that university publications, made by and disseminated to what is predominantly a student base, often feature a degree of irreverence, satire, gossip, mockery and light - hearted banter. For example, the Sydney University’s Honi Soit (originally published in 1929) and the UNSW’s Tharunka (established in 1953) are known to be replete with contributions of that character. It is not hard to see why. Many university students have only recently finished school and are liberated from the shackles of their school experience. Further, for many, it is also a time of exploration in an intellectual sense. Although there was little evidence about the publication (other than its membership) I do not regard the ‘UNSW Discussion Group’ Facebook page as being quite in the same light. By the same token, it is not a forum soliciting scholarly contributions on topical issues either.
The nature of the Facebook forum, as touched upon earlier, lends itself to breezy, pithy and perhaps even superficial expression of views. But there is no natural limitation on subject matter. Conceivably, there are likely to be a large number of contributions, by new feeds and by responsive posts, on any given day from a potentially wide membership base. In such a case, to anyone ‘glued’ to the particular Facebook page in question, contributions on any particular subject may likely be rapidly displaced by new feeds on different subject matter. In other words, most feeds and posts would not be expected to linger in the memory.
What is being engaged in on Facebook is conversation between people (who, as was the case here, may not personally have encountered each other in ‘real life’) which, on any particular matter, is likely to be of fleeting duration; in other words, ordinarily ephemeral. The medium may be contrasted, say, with weekly publications such as The Monthly, or Quadrant; featuring serious articles on matters of public interest; in which a contributor will likely need to exercise some effort in exposition and, of course, the recipient will need to exert effort in understanding. In short, the forum here was not geared to, nor likely to give rise, to deep consideration or reflection.
In his materials he used in his argument (MFI 1), Mr Kelly placed before the Court a stream of other posts on the ‘UNSW Love Letters’ Facebook page. But this proceeding did not involve any defamation of him on that page, and other than the posts on that particular Facebook page themselves, there was no evidence to indicate how it was connected to the Facebook pages that were in issue in this proceeding. I regarded the reference to this page, and the posts from it which Mr Kelly had produced as being an irrelevant distraction.
As indicated in my rejection of the triviality defence, the imputation was exceptional and, indeed, it went beyond the pale. It was not part of any contribution to a topic of interest, in the sense of political, cultural, social affairs. It was simply a targeted, ad hominem attack. Even so, given the nature of the medium, directed to a large but still segment of the community, it was by no means the worst context in which the imputation was conveyed.

Mitigating circumstances

Section 38(1) of the Act sets out a non-exhaustive list of considerations in mitigation of damages. One of them, s 38(1)(a) is applicable here: Mr Davis’ apology. I take that into account of limiting actual harm to Mr Kelly’s reputation. But in another, briefer apology, when Mr Davis promised that it “won’t happen again”, he referred to other comments on the Facebook page about Mr Kelly having ‘messaged’ first year girls and, in a sarcastic fashion, asked rhetorically “that is quite odd considering your age, don’t you think”? That matter reinforces my impression of Mr Davis that the longer form apology was insincere, all to do with utilitarian benefit (to limit his potential liability) and was not likely, nor did anything, to assuage Mr Kelly’s injured feelings.
I also take into account in mitigation, the removal of the post within a day. As will be noted again later when considering the extent of publication, the removal plainly limited the potential audience of recipients.

Damage to reputation

It was unnecessary for Mr Kelly to prove good reputation. That was presumed and, after Mr Davis abandoned the allegation that he was of bad reputation, the presumption was not displaced.
To his credit, Mr Kelly did not equivocate when accepting that he could not prove any actual harm to his reputation. Nevertheless, it does not assist Mr Kelly to say that the nature of the imputation is such that people may be reluctant to associate, or help (in litigation) someone identified with the imputation. That will always be the case with a defamation. The fact is that he cannot demonstrate any practical effect, in the sense of any adverse change in the way people have subsequently interacted with him. Without this, I cannot conclude that there has been actual damage to his reputation.

Injured feelings

Mr Kelly said that he felt that the two matters complained of which, though distinct, were similar, amounted to the ‘worst thing’ that could be said. There was very little else that he said about his feelings, beyond internalised thoughts. In fairness, it is not the easiest thing for people to articulate feelings or how they have been injured.
Nevertheless, he did not, for example, lead evidence from his landlady, Ms Jessica, to say that he had given vent to his feelings to her. He did not give evidence of any treatment for distress, such as seeking out the counselling of friends (of either the Facebook variety or friends outside of social media), or mental health professionals.
Mr Kelly was plainly affronted, as was evident in the thread of the posts where he indignantly protested to Mr Davis that he considered the latter’s post to be defamatory and said he did not want “this sort of claim (to be) made of me”.
I accept, also, that he was angry and frustrated. It appears that he has had recent difficulties studying. But as I read the email that comprised Exhibit C, Mr Kelly appeared more strongly motivated by a desire to punish Mr Davis (and Ms Chan), and a perception that complaints against him had been treated differently to his complaints against Mr Davis and Ms Chan. His frustration appeared, or at least partly appeared, to be directed at university administrators.
The evidence is such that I although I find that his feelings were injured to a degree, such injury was not substantial.

Extent of publication

Mr Davis accepted that 7 people reacted to a post that was only on the Facebook page for a day. I am not persuaded that this represents the entirety of recipients who saw the post, however, given the membership base. Nevertheless, in contrast to the triviality defence, where the onus of proof fell on a publisher, the onus of proof here fell upon Mr Kelly and the most he could say was that there was a potential for a large base to see the matter complained of. That does not materially advance his position in the circumstance where Mr Kelly has shown nothing to establish actual harm to his reputation.

Conclusion

I have derived minimal assistance from the comparative cases that the parties relied upon in argument, to assist in assessment in the cases against either defendant. I accept the distinguishing matters referred to by the defendants’ legal representatives.
In this evidentiary vacuum, if it was necessary, it may have been appropriate to award Mr Kelly only nominal damages. This question was considered by Lee J in Palmer v McGowan (No.5) [2022] FCA 893 at [502]-[509]. Although I have rejected findings of real reputational harm and expressed scepticism of the extent to which his feelings were injured, I would have considered that he had a basis for a modest recovery as consolation and (limited) vindication so as to reflect the baselessness of the imputation. Taking into account the factors I have referred to, in applying the statutory test of proportionality, I would have assessed damages for the sum of $5,000.

Claim against Ms Chan

As he did in his claim against Mr Davis, in his claim against Ms Chan, Mr Kelly sought ‘general damages’ and damages to ‘deter’; but not aggravated damages. For the reason indicated earlier, exemplary damages are unavailable to him. His claim is therefore restricted to what is referred to in the Act as ‘non-economic loss’.
Many of the considerations referred to in the damages case against Mr Kelly apply to his damages case against Ms Davis.

Number and Seriousness of imputations

To be clear, the focus here is on the propositioning imputation (the other one being found to be trivial, so that the triviality defence defeated a claim based on that imputation). That being so, there is a single imputation.
Nearly all of what I said about the nature of the medium in the case against Mr Davis applies here.
Although I rejected the triviality defence in this instance, that was a finely balanced assessment. To say on the site, that related, in a very general way, to dating, that a middle-aged person spent his time on campus propositioning first year students, was not very serious. It said nothing, for example, about whether sexual advances were actually welcomed (in any or all cases), or were perceived as a form of sexual harassment (in any or all cases). By way of comparator, it was less serious than the imputation by Mr Davis.
As Mr Vogel submitted, it was telling that Mr Kelly was not vigilant in checking that the post had been taken down.

Mitigating circumstances

I earlier noted that s 38(1) of the Act did not limit considerations relevant to this issue.
Some of the matters relied upon by Ms Chan in her pleading of this issue have been, or will (shortly) be addressed elsewhere in these reasons, on such things as triviality, extent of publication and extent of reputational harm.
What I find as being most pertinent in this regard are the features of provocation and the taking down of the post.
As to the former, this has been partly subsumed in the defence of qualified privilege (in common law). It is not a matter which sustains any defence, say, like contributory negligence in another tort, where a tortfeasor can say that a claimant has unreasonably brought on damage himself, herself or themselves contrary to their own interests. I struggle to see how provocation by a defamed person could otherwise mitigate damage flowing from defamation (and no authority was supplied to the Court to establish that it has been treated as being mitigating).
The short time interval in which the post was taken down mitigates the loss.

Harm to reputation

The position here is no different to what I noted in the corresponding section of the case against Mr Davis.

Injured feelings

Mr Kelly says he was ‘shocked’ by Ms Chan’s post; though he did not elaborate to any real degree on that statement. I find it difficult to accept this evidence. He could not have been surprised that Ms Chan would respond with some level of heat and possibly even vituperation; given the insults he had previously hurled at her. This particular defamation had occurred less than 6 months after the defamation by Mr Davis which, as earlier explained, was more serious than Ms Chan’s. Both, however, concerned his reputation, or character, relating to a sexual tendency. Though he did not argue this in terms, what might have provided some level of surprise was that Ms Chan’s post was made on a different publication to the UNSW Discussion Facebook page where the first defamation had been made; in circumstances where Mr Kelly was a student at the UNSW.
Of course, Mr Kelly requested that the post be taken down not long after it has been published. As I found in relation to the case against Mr Davis, there was little external manifestation of injured feelings flowing from Ms Chan’s publication. Although I accept that there were some injured feelings, these were not very substantial.

Extent of publication

I accept Ms Chan’s submission that there is a general dearth of evidence as to the universe of people who saw the post. Mr Kelly relied upon the membership base to prove only that there was potential widespread observation of it.
I accept that there is little, other than speculation, to support any notion of a ‘grapevine’ effect.

Conclusion

Again, the quantum of this award is primarily tailored to providing vindication and consolation for injured feelings, modest though that has been established to be. Taking into account the factors I have referred to, in applying the statutory test of proportionality, including the relative lack of seriousness in the imputation, if it was necessary, I would have assessed damages in the sum of $2,500.

SUMMARY & ORDERS

Conclusions

It may assist the reader to restate my conclusions in summary. I will address the positions of each defendant separately.
As to Mr Kelly’s case against Mr Davis:

I have found that the requirement of identification is not satisfied, which carries the consequence that his claim against Mr Davis has failed;

I would not, in any event, have found that the imputation alleged was established;

If I am wrong about (a) and (b), I would:

have rejected Mr Davis’ defence of triviality; and

awarded Mr Kelly the sum of $5,000 for general damages plus interest.

As to Mr Kelly’s case against Ms Chan:

I have found that the requirement of identification is not satisfied, which carries the consequence that his claim against Ms Chan has failed;

I would have found that two of the three imputations alleged were established, being what I have abbreviated in these reasons as the ‘attendance on campus’ imputation; and the ‘propositioning imputation’;

I would have found that Ms Chan’s statutory defence of qualified privilege failed, but her common law defence of qualified privilege would have succeeded;

I would have rejected Ms Chan’s defence of triviality in relation to the propositioning imputation but would have found that it succeeded on the ‘attendance on campus’ imputation;

I would have awarded Mr Kelly the sum of $2,500 as general damages against Ms Chan, plus interest.

Costs

On the issue of costs, the usual rule is that costs should follow the event (r 42.1 of the UCPR). The circumstance that Mr Kelly has said throughout the proceeding that he is impecunious, or the circumstance that there may be remote prospects of enforcing costs orders against him, provide no basis for declining the imposition of costs orders against him^[12]. Further, it is also ordinarily appropriate that costs be payable on the ordinary basis (r 42.2 of the UCPR), although it appears that the third defendant may wish to argue that this position be modified.
12. Northern Territory v Sangare (2019) 265 CLR 164 at [35]
Nevertheless, the parties should have the opportunity to be heard as to the costs consequences of the orders I am about to make.

Orders

The orders of the Court are:

Judgment for the first defendant against the plaintiff.

Judgment for the third defendant against the plaintiff.

The question of costs, in each claim, is reserved.

Costs questions are henceforth to be adjudicated as follows:

The first and third defendants are to file and serve a short outline of written submissions on costs (not exceeding 3 pages in length), with any supporting evidence within 3 days of these orders;

The plaintiff is to file and serve a short outline of submissions on costs (not exceeding 5 pages), attaching relevant supporting evidence, within a further 3 days of these orders;

For the purpose of these orders:

it will be sufficient for the purposes of filing that documentation is emailed to my Associate;

the filing of documents is to occur at or near contemporaneously with the service of such documents.

The questions will be determined on the papers in the absence of any contrary indication by my Associate to the parties.

ANNEXURE A – FIRST MATTER COMPLAINED OF

ANNEXURE B – SECOND MATTER COMPLAINED OF

*****

Endnotes

Decision last updated: 18 August 2022

Medium Neutral Citation:	Kelly v Davis & Anor [2022] NSWDC 352
Hearing dates:	8, 9 August 2022
Date of orders:	18 August 2022
Decision date:	18 August 2022
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 257
Catchwords:	DEFAMATION – plaintiff and first and third defendants all university students - Facebook posts on social media published by the first and third defendants on sites associated with two universities – whether each of the matters complained of identified the plaintiff – whether each of the matters complained of conveyed the alleged imputations – whether triviality defence applicable to each of the matters complained of – whether, in the case of the third defendant, the defences of qualified privilege (in statute and in common law) applicable – consideration of damages
Legislation Cited:	Defamation Act 2005 (NSW) ss 30, 34, 38 Uniform Civil Procedure Rules 2005 (NSW) rr 15.19, 15.31, 15.32, 41.1, 41.2
Cases Cited:	ABC v Chau Chak Wing (2019) 271 FCR 632 Adam v Ward [1917] AC 309 Aktas v Westpac Banking Corporation (2010) 241 CLR 79 Barrow v Bolt [2015] VSCA 107 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 Bristow v Adams [2012] NSWCA 166 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 Cross v Denley (1952) 52 SR (NSW) 112 Cush v Dillon (2011) 243 CLR 298 David Syme & Co v Canavan (1918) 25 CLR 234 Dutton v Bazzi [2022] FCAFC 84 Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48 Goldberg v Voigt [2020] NSWDC 174 Herron v HarperCollins Publishers Australia Pty Ltd (2022) 400 ALR 56 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 Jones v Sutton (2004) 61 NSWLR 614 King v Greenwood [2022] NSWDC 61 Lee v Wilson and MacKinnon (1934) 51 CLR Lewis v Daily Telegraph Ltd [1964] AC 234 Loveday v Sunday Newspapers Ltd (1938) 59 CLR 503 Megna v Marshall [2010] NSWSC 68 Mickle v Farley [2013] NSWDC 295 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Mowlds v Fergusson (1940) 64 CLR 206 Murray v Raynor [2019] NSWCA 274 Northern Territory v Sangare (2019) 265 CLR 164 Palmer v McGowan (No.5) [2022] FCA 893 Papaconstantinos v Holmes ‘A Court (2012) 249 CLR 534 Penton v Calwell (1945) 70 CLR 219 Perkins v New South Wales Aboriginal Land Council (unreported, NSWSC, 15 August 1997) Raynor v Murray [2019] NSWDC 18 Roberts v Bass (2002) 212 CLR 1 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Stocker v Stocker [2020] AC 593 Stoltenberg v Bolton (2020) 380 ALR 145 Toogood v Spyring (1834) 1 C M & R 181 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Zoef v Nationwide News Pty Ltd [2016] NSWCA 283
Texts Cited:	Tobin, T. K. and Sexton, M.G, Australian Defamation Law and Practice (LexisNexis, loose-leaf service)
Category:	Principal judgment
Parties:	Mr M Kelly (plaintiff) Mr O Davis (first defendant) Ms J Chan (third defendant)
Representation:	Mr Kelly represented himself Mr Elachkar (Counsel) for the first defendant Mr Vogel (solicitor) for the third defendant
File Number(s):	2020/00272992
Publication restriction:	Nil