Lakaev v McConkey
[2023] TASSC 48
•22 September 2023
[2023] TASSC 48
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Lakaev v McConkey [2023] TASSC 48 |
| PARTIES: | LAKAEV, Natasha |
| v | |
| McCONKEY, Carli | |
| FILE NO: | 2093/2018 |
| DELIVERED ON: | 22 September 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 15, 16, 17, 18, 19, 24 May, 6 July 2023 |
| JUDGMENT OF: | Wood J |
| CATCHWORDS: |
Defamation – Publication – Republication – Current proceedings concern various publications including book – Previous defamation proceedings determined by consent judgment in 2014 – Newspaper articles published in 2010 – Same articles reproduced in book, and in other respects, publications contained similar content – Whether leave required to bring current proceedings.
Defamation Act 2005 (Tas), s 23.
Aust Dig Defamation [30]
Statutes – Acts of Parliament – Interpretation – General approaches to interpretation – Generally – Question of whether leave provision only applies to multiple extant proceedings – Restricted meaning not supported by text, purpose, statutory context, or extrinsic materials.
Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90 per Basten JA, approved.
Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383, considered.
Carey v Australian Broadcasting Corporation [2012] 84 NSWLR 90, Hockey v Fairfax Media Publications
Pty Ltd (No 2) [2015] FCA 750, 237 FCR 127; Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017]
NSWSC 351, referred to.
Defamation Act 2005 (Tas), s 23.
Aust Dig Statutes [1015]
Statutes – Acts of Parliament – Operation and effect of Acts – Retrospective operation – In respect of procedure – Leave may be granted retrospectively after proceedings have been brought.
Carey v Australian Broadcasting Corporation [2012] 84 NSWLR 90, followed.
Defamation Act 2005 (Tas), s 23.
Aust Dig Statutes [1149]
Statutes – Acts of Parliament – Interpretation – General approaches to interpretation – Generally – Meaning of like matter in s 23 – "Substantial similarity" between publications.
Buckley v the Herald & Weekly Times & Anor (No 2) [2008] VSC 475 per Kaye J, followed.
Defamation Act 2005 (Tas), s 23.
Aust Dig Statutes [1015]
REPRESENTATION:
Counsel:
Applicant: D Zeeman Respondent: In person
Solicitors:
Applicant: Butler McIntyre & Butler
| Judgment Number: | [2023] TASSC 48 |
| Number of paragraphs: | 122 |
Serial No 48/2023 File No 2093/2018
NATASHA LAKAEV v CARLI McCONKEY
| REASONS FOR JUDGMENT | WOOD J 22 September 2023 |
1 On the morning of what was to be the first day of the trial of this matter involving a defamation action, the defendant made an oral application to have large tracts of the statement of claim struck out on the basis that they were caught by s 23 of the Defamation Act 2005.
2 The defamation action is concerned with a book titled, "The Cult Effect", that was published on or about 30 July 2017. The defendant is the author. It was written as the defendant's first-hand account of her experiences in a cult and about the plaintiff who is described as a cult leader.
3 The defamation action relates to specific passages from the book and passages from newspaper articles that are reproduced in the book, as well as published material from other sources, including the defendant's website, an article published by the "Let's Talk About Sects" podcast on 30 January 2018, the defendant's Twitter account, and the defendant's Facebook account. The impugned passages are specifically identified and set out in the statement of claim. The plaintiff asserts that she has been defamed by this content.
4 One of the two newspaper articles that are reproduced in the book was originally published in the Sydney Morning Herald and The Sunday Age newspaper on 17 October 2010, and the other newspaper article was published in The Gold Coast Bulletin on 20 November 2010. The newspaper articles in their print and online form were previously the subject of a defamation action commenced by the plaintiff in 2011. She sued the publishers of the newspapers, The Age Company Limited, Fairfax Digital Ltd, Gold Coast Publications Pty Ltd, two journalists, and the defendant and her then husband. The action was resolved by consent judgment on 8 October 2014, which was entered for each of the defendants against the plaintiff.
5 Noting that the 2014 judgment concerns two newspaper articles that are reproduced in the book, and are the subject of the current proceedings, it is worth mentioning that the doctrine of res judicata does not operate as a bar to the current proceedings insofar as they relate to those newspaper articles. This type of estoppel prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties: Macquarie Bank v National Mutual Life Association of Australia (1996) 40 NSWLR 543 at 556. Here, the current cause of action is not the same as in the earlier proceedings. The current cause of action concerns the publication of the book and the articles in 2017, while the earlier proceedings concerned the publication of the articles in the three newspapers in 2010.
6 I note counsel for the plaintiff initially argued that res judicata did not apply to consent judgments as they do not involve a determination of a cause of action. In further written submissions, it was accepted that the principle of res judicata holds good in cases where a judgment is entered by consent: Chamberlin v Deputy Commissioner of Taxation [1988] HCA 21, 164 CLR 502. In any event, res judicata is not a bar to the current proceedings because it is not the same cause of action.
2 No 21/2023
Section 23
A wider net is cast by s 23 of the Defamation Act and this is relied upon by the defendant. The section
in its applicable form provides:
"If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."
7 I add here a word of explanation about the applicable form of s 23. The current version of s 23 is similar, but does not apply to these proceedings. That version was the result of an amendment by the Defamation Amendment Act 2021, which commenced on 12 November 2021. That amending statute applies only in relation to the publication of defamatory matter on or after the commencement of the amendment: Defamation Act, s 48A. The publication date of some of the website and online material is not pleaded. The occasion of publication of matter on the internet is when it is downloaded: Dow Jones & Co Inc v Gutnick [2002] HCA 56, 210 CLR 575 at [44]. In any event, the publication must have been before the date of the amended statement of claim dated 9 September 2021, and therefore before the commencement date of the amending statute. It is noted that there are other amendments of interest that do not apply, such as amendments which introduced a new element of "serious harm" and the single publication rule.
The ambit of s 23
8 There is a preliminary issue that arises regarding s 23. It is argued that it could not apply to these proceedings because s 23 is confined to multiple extant defamation proceedings and is not concerned with proceedings that have been determined. It is argued that s 23 is not meant to capture proceedings that have been concluded that concern the same or like matter as the current proceedings. Thus, it is submitted that s 23 does not apply and does not provide any obstacle to the republication of defamatory matter after judgment has been obtained regarding that matter. The argument for the plaintiff highlights the consequences of an interpretation that extends to proceedings that have been determined. It would mean a successful plaintiff who has sued for defamation and obtained judgment and an award for damages would have an "obstacle" in their path if the same defendant republished the same defamatory material.
9 However, I do not think that the section should be regarded in this way as an "obstacle" for meritorious cases. The court has an unfettered discretion to grant leave. The section provides a gateway which can be opened readily and promptly in response to the justice of the case. The operation of such provisions involving an unfettered judicial discretion to grant leave can be seen in other contexts, such as applications to grant leave to appeal and, there, meritorious appeals are not inhibited. More to the point, given the statutory construction task at hand, I do not regard the consequence of a meritorious applicant being required to seek the court's leave to proceed as a result that qualifies as absurd or as not conforming to the legislative intent: Statutory Interpretation in Australia, D Pearce, 9th ed, [2.57].
10 The question of the application of s 23 to cases where other proceedings had been brought, but which had terminated, has been considered but not decided. On this point, there are conflicting decisions of single judges.
11 In Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750, 237 FCR 127, Mr Hockey had succeeded at trial regarding the publication of defamatory matter and sought injunctive relief with respect to any possible republication of that matter. White J considered whether leave was required pursuant to s 23 and stated:
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"[23] Given that purpose, s 23 should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications. In a case of that kind, it is improbable that the later publication would satisfy the description of a 'publication of the same or like matter' for the purposes of s 23.
…
[25] Accordingly, I consider that any future publication of the kind postulated by Mr Hockey is likely to be regarded as so separated in time and circumstance from the publication of the SMH poster and the two tweets as not to be regarded as a publication of 'the same or like matter' for the purposes of s 23."
12 It is not apparent whether White J was construing s 23 in such a way that it could have no application after judgment, or making an observation about the application of the section to the facts, ie it was "improbable" that the later publication would satisfy the test of "publication of the same or like matter".
13 In Phillips v Robab Pty Ltd [2014] NSWSC 1520, Rotham J at [182] took a different view of s 23 and considered that a republication by the same defendant of the same matter could not be the subject of future proceedings, except with the leave of the court.
14 In a decision of McCallum J in Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351, the plaintiff had been successful in obtaining damages with respect to a series of articles published by Fairfax Media. He then sought permanent injunctive relief with respect to any further publication of the same material. He argued that, absent such relief, he would not be able to bring further proceedings in the event of a further publication without obtaining leave pursuant to s 23.
15 McCallum J noted the conflicting decisions with respect to the correctness of that argument and went on to express a "tentative view" as to the potential application of the section. Her Honour preferred the analysis of White J in Hockey, stating at [51]:
"In my respectful opinion, s 23 should not be construed so as to place any hurdle in the way of a plaintiff who, having succeeded in a claim for defamation, finds himself defamed again by the same defendant in the same way. Further proceedings in that event would not be a vice and could not be taken to be the vice to which the section was directed. I would understand the section to be directed at preventing the proliferation of concurrent actions against the same defendant in relation to the same or like matter. Repetition after judgment raises different considerations."
16 The question was considered by the New South Wales Court of Appeal in Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90, but was not decided. The Court of Appeal considered whether leave to appeal should be granted with respect to interlocutory orders. One of the orders was to deny leave under s 23 to commence proceedings against two defendants to defamation proceedings that had already been instituted. The question for the Court of Appeal was whether the applicant had shown an arguable case of error. At first instance, it had been conceded that s 23 was engaged because there were defamation proceedings against the respondents in earlier proceedings in the District Court for the same publications, or effectively the same publications. On appeal, it was argued that the section was not engaged and there was an implied restriction on the scope of the provision so that it did not apply with respect to proceedings which had been brought, but which had terminated. In support of that argument, there was reliance on the statement by McCallum J in Carolan.
17 Basten JA reviewed Hockey and Carolan and, relevantly, for our purposes, considered the opinions expressed by McCallum J:
4 No 21/2023
"[20] There are three factors to be considered with respect to McCallum J's opinions. First, they were expressly stated to be 'a tentative view as to the potential application of the section.' Secondly, they went somewhat further than the view adopted by White J. Thirdly, they adopted a view of the limited purpose of the section which was not to be found in the express language used, the statutory context in which the provision appeared, or in any extrinsic materials relevant to the drafting of the provision.
[21] By contrast, in Carey v Australian Broadcasting Corporation, in considering whether leave could be given retrospectively with respect to proceedings commenced without leave, McColl JA referred to several passages in the New South Wales Law Reform Commission Report on Defamation, where the Commission had stated with respect to the predecessor to s 23:
'We think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter. The law as to res judicata is not fitted to impose the appropriate restraint, either under the present rules as to causes of action or under the solution which we propose.'
[22] The draft prepared by the Commission and adopted in the Defamation Act 1974 (NSW), s 9(3), was clearly not intended to be subject to the implied limitation that it only provided a constraint on the institution of concurrent proceedings. That reading of the Act is not self-evidently correct; nor does the recounting of circumstances where leave might well be granted demonstrate that the section cannot have been intended to require leave in such circumstances."
18 Basten JA concluded at [23] that, "although the final resolution of that issue may involve an issue of legal principle, the construction espoused by the applicant is no more than arguable."
19 Simpson JA concluded that there was some semblance of an issue of principle involved, but that did not justify a grant of leave, and the case did not present a suitable opportunity to explore the reach of s 23. In reaching that conclusion, her Honour noted the following:
"[61] For present purposes, I would be prepared to accept, at least tentatively, that the construction of s 23 of the Defamation Act proposed on behalf of the applicant raises an issue of principle. It was argued on behalf of the applicant that that construction gained support from the decision in Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750. [62] In that case, the applicant had already taken action in defamation against a publisher and the proceedings had been finalised. He then sought injunctive relief to restrain what he anticipated to be a repetition of an imputation in respect of which he had been successful. He argued that, should the anticipated repetition take place, he would be without remedy, by reason of s 23. In those circumstances, White J said (at [23]): '... s 23 should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications. In a case of that kind, it is improbable that the later publication would satisfy the description of a 'publication of the same or like matter' for the purposes of s 23.'
[63] This is not the occasion on which to reach a final view about the correctness or otherwise of that proposition. It is sufficient to say that the observation was not part of the ratio of the decision, and was made in a particular factual circumstance. It does not purport to be a concluded construction of s 23. That being the case, the decision affords, at best, tenuous support for the construction now sought to be advanced."
5 No 21/2023
20 I respectfully agree with the views expressed in both judgments in Ghosh that the comments of White J provide "at best" tenuous support for the construction sought to be advanced by the plaintiff.
21 The plaintiff has helpfully drawn to my attention a judgment of Wigney J in Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 and, in particular, a passage at [39] which endorses the observations of Basten JA in Ghosh concerning the construction of s 23.
22 I find the observations of Basten JA regarding the text, purpose, statutory context, and extrinsic materials to be compelling. The implied restriction advanced by the plaintiff that the section is only concerned with concurrent actions against the same defendant in relation to the same or like matter is not to be found in the words of the section. Furthermore, there is no support for the restriction in the statutory context or the extrinsic materials. I agree that the New South Wales Law Reform Commission Report on Defamation (1971) LRC No 11 at page 100 does not evince an intention that it be subject to the implied limitation that it only constrains the institution of concurrent proceedings.
23 I have also had regard to the observations I made about statutory provisions giving courts power to grant leave to a party to proceed. As stated by Sackville AJA in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [123], the very point of this provision is to permit the claim to proceed if there are good reasons for doing so.
24 I conclude that the section should be construed without implying any restriction. Thus, it could apply beyond concurrent extant proceedings and could apply in a case where previous proceedings had been brought, but which had terminated.
25 Before leaving this issue, I note that the plaintiff's contention may have evolved in the most recent version of her written submissions. At [3], it is said:
"I also made the submission in my previous submissions that s 23 of the Defamation Act 2005 cannot be read as referring to any publication made of the 'same or any other publication of the same or like matter' in circumstances where the proceedings relating to a 'previous defendant' have been terminated, unless another Court has ruled that the 'matter' in those earlier proceedings had been found not to be defamatory, or that any defences pleaded by that previous defendant in those earlier proceedings applied to the similar publications in those earlier proceedings."
26 The qualification mentioned of a ruling by another court that the "matter" in the earlier proceedings had been found not to be defamatory, or that any defences pleaded applied in those earlier proceedings, is new to the arguments before me. As an implied restriction additional to that considered in the cases discussed above, it is unsupported by authority. Such a restriction is not disclosed in the text, context, or extrinsic materials, or is even consonant with these indicia. For the reasons I have given, there is no justification for implying restrictions.
Can leave be given retrospectively
27 While the defendant argued the application of s 23 meant that aspects of the statement of claim should be struck out, it can be seen that that does not necessarily follow from the section, assuming it applies. If the proceedings are caught by s 23 as being publication of the same or like matter, then further defamation proceedings cannot be brought "except with the leave of the court". If leave is not given, then the defendant's application for a terminal order would have traction.
28 The defendant argues that leave cannot be given retrospectively after proceedings have been brought. This question of statutory construction has been decided by the Court of Appeal in Carey (above). In Carey, a section in identical terms to s 23 was considered and the majority of that court
6 No 21/2023
decided that leave may be sought retrospectively after proceedings have been brought: per McColl JA
at [92], and per Sackville AJA at [97], [126].29 The defendant has argued that I should prefer the dissenting judgment of Beazley JA at [45]. The defendant argues for the correctness of this judgment based on the grammatical meaning of the words, "the person cannot bring further defamation proceedings for damages…". However, the grammatical meaning of the text is just one consideration, albeit a significant consideration, which was considered by the majority judges in their comprehensive reasons.
30 Comity between intermediate courts is a matter of great importance: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, 230 CLR 89 at [135]. There is strong desirability for conformity of decisions not only in the construction of Commonwealth legislation and uniform national legislation, but also in the case of legislative provisions which are identical in terms, or substantially so. That is not to suggest that a court should slavishly follow decisions from other Australian jurisdictions. Rather, judicial decisions on similar or identical legislation in other jurisdictions are guides to the meaning of legislation. The court faced with the task of ascertaining the meaning of the statutory provision must undertake that task and have regard to the legislative terms, context, and purpose: Marshall v Director-General, Department of Transport [2001] HCA 37, 205 CLR 603 at [62] cited in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5, 233 CLR 259 at [31].
31 In this case, I have the advantage of the majority judgments in Carey. They provide a very useful guide to the question of statutory construction that arises here. Having considered the majority judgments, as well as the judgment of Beazley JA; the text of s 23; its context and extrinsic materials; the purpose of the section, particularly the purpose inherent in a power to give leave provision; and the consequences of the alternative construction, I respectfully regard the conclusion reached by the majority judges as correct.
32 Before leaving the case of Carey, it is worth observing that the judgment of Sackville JA gives weight to the expectation in the language of the section that a leave application will be brought before the proceedings are instituted. Notwithstanding this expectation, the section is construed so that the court is not prevented from granting leave retrospectively, regardless of the circumstances. Thus, it seems to me that the timing of the application and the reason for not seeking leave from the court before commencing proceedings may be factors in the grant of leave. The judgment of Sackville AJA at [114] and [126] would support this approach.
33 As can be seen, s 23 may be engaged in a case where there has been a subsequent publication of the same or like matter. This task involves a comparison of the publications in the earlier proceedings and the passages relied upon as defamatory in the present proceedings. Before embarking on this exercise of comparison, it is necessary to consider the meaning of the words "same or like matter" in s 23. The question is core to the task at hand and involves the meaning of the test that must be applied.
"of … like matter"
34 I have set out s 23 in its applicable form. Section 23 refers to "matter", which is defined in s 3, the interpretation provision:
"matter includes –
(a) an article, report, advertisement or other thing communicated by means of a
newspaper, magazine or other periodical; and
(b) a program, report, advertisement or other thing communicated by means of
television, radio, the internet or any other form of electronic communication; and7 No 21/2023
(c) a letter, note or other writing; and
(d) a picture, gesture or oral utterance; and
(e) any other thing by means of which something may be communicated to a person."
35 The meaning of "like" has been considered in a number of cases and its meaning is settled. The word has its ordinary meaning of "substantially similar". In Buckley v the Herald & Weekly Times & Anor (No 2) [2008] VSC 475, Kaye J stated it is clear that for an article to be "like" another, it may not be identical to it. However, the juxtaposition of the adjective "like" with "same" in s 23 adds force to the view that in order that one defamatory matter be "like" another, it must bear a substantial resemblance or similarity to the latter: [12].
36 In the following passages that are well accepted, Kaye J further considered the test after noting it is important to bear in mind that the relevant "likeness" posited by s 23 is between the articles in the two sets of proceedings:
"[13] … The test postulated by s 23 is not that of likeness between the sets of meanings pleaded and relied upon by the plaintiff. Rather, the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. Obviously, the imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue.
[14] The construction of s 23, and the approach to the question which I must decide, is assisted by reference to the underlying purpose served by s 23. As counsel for both parties have pointed out, the obvious purpose of s 23 is to protect a defendant from being exposed to a multiplicity of proceedings arising out of identical, or substantially similar, publications. In the field of defamation law, the same or similar subject matter may become the subject of a number of different and separate causes of action which, theoretically, may each form the basis of separate proceedings. This consideration was highlighted by the New South Wales Law Reform Commission in its Report on Defamation dated 20 April 1971. As the Commission pointed out in that report, each publication of the same book, leaflet or newspaper gives rise to a multitude of causes of action, each time such a document is distributed to a separate recipient. Further, the same publication may give rise to two or more separate causes of action, where the publication is the basis of both false and true innuendos. It was those considerations which caused the Law Reform Commission to propose, as a solution, that a person should not have an uncontrolled liberty to sue a defendant, whom he has already sued, in respect of the same report, article, speech or other matter. The Commission proposed that a second action, in respect of the same report or document, should not be brought except by leave to the Court.[2] That proposal was adopted in s 9(3) of the Defamation Act 1974 (New South Wales)[3] That provision is in identical terms to s 23 of the New South Wales Defamation Act 2005 (New South Wales), which, in turn, is identical to s 23 of the Victorian Act.
[15] That background to the enactment of s 23 is relevant, in that it reinforces my view that, in order that there be a relevant 'likeness' for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceedings, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications. Rather, the plain terms of the section, its underlying purpose, and its history, all lead to the same conclusion, namely, that in order that the publication in the instant proceeding be considered to be 'like' the publication sued on in an earlier proceeding, there must be a real and substantial similarity between the two sets of publications." (Emphasis added.)
37 Applying that test, Kaye J concluded that the article in the current proceedings was not "like" any of the articles the subject of the first proceeding. Kaye J concluded that, "the content, focus and
8 No 21/2023
subject matter" of the article in the present proceeding were significantly different to that of the articles which were the subject of the first proceeding, such that the article to which the present proceeding related could not be fairly characterised as "substantially similar" to the articles to which the first proceeding related.
38 The contents of the articles are set out in a previous judgment delivered by Kaye J in Buckley v the Herald & Weekly Times & Anor [2008] VSC 459. I accept the plaintiff's contention that it is instructive to have regard to the comparison undertaken by Kaye J with reference to the content of the articles, as well as other cases in which the comparison has been undertaken and which have applied the test expressed by Kaye J.
39 In Massarini v Kriz [2022] FCA 80, 400 ALR 718 Katzmann J at [77] referred to Buckley per Kaye J at [13] with approval. At [79], various other considerations were referred to:
"[79] Various other considerations are identified in the case law that may be relevant, for example, whether the texts of both publications are similar (Lee v Kim at [27] per Handley JA); whether the subject matter of each publication is the same (Reynolds v Nationwide News Pty Ltd [2012] VSC 226 at [25] per Beach J); whether the publications are 'distinctly separated in time' (Ennis at [13] per McClellan CJ at CL) or whether the second publication 'post-date[s] the publications the subject of the earlier proceeding' (Duffy v Google LLC [2019] SASC 157 at [137] per Blue J); whether the proceedings are brought against different defendants (Habib at [206]); and whether the 'medium in which the publications are said to have been made is different' (Rastogi at [7] per Simpson J)."
40 Necessarily, in assessing whether there is substantial similarity between each of the matters, it is necessary to take into account the differences between them and whether the differences affect the overall impression each conveys to the reader: Sullivan v Griffin [2012] NSWSC 687. It is obvious that what is "like" matter involves a question of degree and evaluation for the court: Rostogi v Nolan [2010] NSWSC 735 at [7].
Task of comparing
41 The parties have focussed on the passages in the book said to be defamatory and set out in the statement of claim. Submissions have focussed on whether each of the book passages is substantially the same as the content of the newspaper articles the subject of the Queensland proceedings. Undoubtedly, this comparison is helpful, but there is more involved.
42 It can be seen from s 23 of the Act that the comparators are the publications and the test is whether they are of the same or like matter. "Matter" is defined as meaning a thing by means of which something may be communicated, and the inclusive definition sets out various forms of communication, whether it be letter, book, speech, or some other medium. The comparison is not looking at the impugned passages in isolation, but rather the thing or article and comparing it to the other thing or article which is the subject of the earlier defamation proceedings. As Kaye J stated in Buckley v the Herald & Weekly Times & Anor (No 2) at [13] in the passage quoted above: "… the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings." In Sullivan v Griffin (above), Nicholas J emphasised the nature of the test at [26]:
"The ordinary language of s 23 shows that the comparative exercise involves analysis of the whole of the matter which is claimed to convey defamatory imputations in relation to which the plaintiff has brought proceedings. Necessarily, analysis of the relevant matter cannot be confined to the particular words or passages which the plaintiff has chosen to plead in support of the imputations alleged."
43 In the case of the book, the issue is whether the publication of the book is the same as, or substantially similar to, the earlier newspaper articles published in 2010. As Kaye J stated, there must
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be a real and substantial similarity between the two sets of publications. In undertaking this comparison, I must take into account not only the similarities, but also the differences between them, and whether that affects the content and the overall impression each conveys to the reader.
44 The test of substantially similar is to be applied to the whole of the matters or articles, and the task is a more holistic exercise than the passage by passage analysis undertaken by the parties. Noting that submissions at the hearing were confined to a comparison of passages, I invited submissions on the larger task involving analysis of the publications as a whole and broader considerations of context. Accordingly, written submissions were filed and oral submissions were made regarding those broader considerations.
45 I turn now to the task of comparison, beginning with consideration of the content of the passages, to assess whether the content of those passages is different to the content of the earlier articles. Once I have considered the passages, and, if relevant, the imputations, broader considerations arise as to the focus, content, and subject matter of each of the publications in question.
Comparing passages
46 The defendant assisted the court by setting out each of the passages relied upon by the plaintiff in these proceedings as defamatory and then all of the passages in the articles which were the subject of the previous defamation proceedings and which are relevant to the comparison exercise. The defendant has individually numbered each of the paragraphs in both articles. This is set out in a 90-page document which it is not necessary to reproduce in these reasons. The defendant contends that a comparison with the passages in the book and passages in the articles shows they are of the same or like matter.
47 The defamation proceedings before the court concern passages in the book and a number of other publications online and on the defendant's website. It is convenient to list the publications at this point before turning to the individual passages. There are ten publications. The margin numbers in bold refer to paragraphs in the statement of claim and are referenced below:
5 Book: The Cult Effect - A True Story of Mind Control in Australia 1996-2010 6(a) Book annexure: An article headed "In thrall to a cult: how the unwary fall victim to
mind control" published by The Sydney Morning Herald newspaper on 17 October 20106(b) Book annexure: An article headed "Alleged leader of cult works as psychologist"
published by The Sunday Age newspaper on 17 October 20107A Website: 7B Website: "Book Reviews" (a) Book review
(b) Book review
7C Website page: "My Story" (a) The Sunday Age article: "Alleged leader of cult works as a psychologist" (b) Medium Article Titled: "Carli's Story: Exiting a Cult" 7D Twitter post at the URL: 7E Facebook post at the URL: 10 No 21/2023
48 I turn now to consider the passages in the book and other publications relied on as defamatory. The passages from the book are copied from the statement of claim and minor errors in the statement of claim have been corrected.
"5(a) Group members would single people out and bring up issues with the 'weak' or 'lazy' members, yelling and screaming at them, sometimes getting physical with them to try and Shift them (from being Stuck) so they would not fail to adhere to the rules again. This type of behaviour was initiated and encouraged by Natasha who would scream and yell at students over an Issue regularly and set the example for all other group members to follow. A few times during the year, she hit and shoved people to make her point clear. We soon learned, if we hadn't already, that she had a very domineering, aggressive and controlling personality."
49 The content and the focus of the passage is that particular conduct of group members, in yelling and screaming at other members and being physical with them, was initiated and encouraged by the plaintiff. The statement of claim alleges the defamatory imputation that the plaintiff was a bully and had bullied the defendant.
50 The earlier newspaper articles include reference to the plaintiff hitting the defendant; that the plaintiff "physically assaulted" the defendant; that the plaintiff once beat her young son with a wooden spoon; that the plaintiff was physically violent; and that the defendant "had been beaten up again".
51 There is some common content and they share a common theme or themes, such as that the plaintiff was a bully, but the passage in the book is not substantially similar to the article. The book is discussing physical conduct between members, encouraged by the plaintiff, while the articles refer to the plaintiff's physical conduct against the defendant.
"5(b) Once we had completed the major portion of our PMC assignments, Natasha told us, one night in a meeting, that she had something special in store for us. She explained that, due to us counselling people from all manner of society, we had to be prepared and empathetic with our clients. Therefore, we needed to experience taking drugs. Natasha proceeded to ask one of her Support Team members to bring out marijuana joints which she said were from reputable sources nearby, whom they had bought from previously. She told those of the group who were predisposed to drug addiction that they could partake if they wanted to, as it was under a controlled environment where the Support Team would be in close vicinity. However, once we commenced smoking the joints, the Support Team joined in, as well as Natasha."
52 This topic of an occasion when the plaintiff provided marijuana joints to the group and encouraged illicit drug use by members did not appear in the earlier articles. It is new content.
"5(c) 'No, Carli!' Natasha screamed. 'Luke manipulated you to transfer those funds to pay his own debts! Don't you know he's a gambler and a thief? You are a fucking idiot, you stupid bitch. You do whatever you want to do, you c*nt. ' I was then 'In The Shit', as we would come to call it whenever Natasha punished someone for an extended period of time. The only way you came out of The Shit was by climbing your way out of it - by working harder, smarter and beyond the call of duty. This would involve being screamed at daily, and punished with menial tasks like cleaning, whipper-snipping, or office admin, all hours of the day and night, making you feel degraded and worthless."
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53 The occasion referred to in the first paragraph and the detail of the abuse uttered by the plaintiff is not referred to in the earlier articles.
54 The punishment administered by the plaintiff over "an extended period of time" is not mentioned as a theme in the earlier articles. There are references to some of the conduct mentioned, such as that the plaintiff was "psychologically manipulative"; that the defendant worked without pay for up to 22 hours a day, seven days a week; that the plaintiff's comments to her and others were 90 per cent negative, convincing them that they needed to work harder; and that the defendant worked for the plaintiff in the office without wages.
55 It can be seen that there is some similarity in subject matter and content but not a real and
substantial similarity.
"5(d) Natasha would regularly verbally abuse me on the phone from Brisbane, or while she was down at Omaroo. Constantly she would scream at me, calling me a 'liar', a 'selfish brat', and a 'fat, lazy dog.' Invariably she would finish with the line, 'you are a fucking c*nt'." 56 This passage in the book is concerned with the plaintiff's verbal abuse of the defendant and the details of that abuse. There is a reference in the earlier articles to the plaintiff convincing the defendant that she was a "human f… up", as a quote of the plaintiff's verbal abuse, which is not dissimilar verbal abuse. That, however, does not approach satisfaction of the test in s 23, which is that, on a comparison of the content, they are substantially similar.
"5(e) FRESH ZEN WHOLESALE continued until it became evident that it was no longer financially viable. Natasha then worked on getting Luke institutionalised into a psychiatric facility in Brisbane. I visited Luke at the hospital one day with Natasha, bringing along paperwork that I had been asked to prepare. He looked drugged out and weak, not at all like the strong and vibrant Luke I had once admitted. Natasha asked Luke to sign over his Power of Attorney to her, and she commenced the process of pursuing an Income Protection claim on his behalf. This meant she could collect this money for herself." 57 The subject matter is that the plaintiff had a particular person institutionalised and improperly obtained a power of attorney to unlawfully use it for her personal benefit.
58 The earlier articles refer to fraudulent and dishonest conduct by the plaintiff, but not this particular conduct, and the content is not substantially similar.
"5(f) Madeline must have been an exceptional lawyer (keeping in mind she believed everything Natasha told her) as the court concluded that the claim was legitimate. Natasha was now collecting three income protection amounts, two in her name, and the other as Power of Attorney for Luke. With Luke safely in the care of the psychiatric hospital, Natasha got back together with Jeremy." 59 The focus of this passage is that the plaintiff was collecting three income protection amounts, in one instance, using Luke's power of attorney.
60 This specific conduct is not mentioned in the earlier articles and so, this passage is not similar
to the articles.
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"5(g) Natasha told Michael to hit and slap me and tell me what a bad person and mother I was. 'Mick, you need to whack some sense into Carli. She's an absolute idiot. She has created all of this and you have let her. Take control of your "wife", Mick. I can't do it all for you!"' 61 This conduct of the plaintiff inciting the defendant's husband to assault the defendant and urging him to verbally abuse her is not mentioned in the earlier articles. This passage and the articles are not similar.
"5(h) Whether Michael wanted to beat me or not, Natasha said that if he didn't do what needed to
be done, then the guys would knock some sense into him."62 The incident and comments attributed to the plaintiff, including the threat described in this passage of the book, are not mentioned in the earlier articles and so they are not similar.
"5(i) Soon after this incident, Jeremy ran away again, before the contract had been completed. Sometime later Ted took Natasha to court to recover his equipment and recoup a percentage of the contracts they had secured, as he had a 50:50 share in the company and had virtually set up the whole business. Natasha told each of the PMC guys to sign legal documents stating that they had been paid $7,500 each in wages (which they had not) so she could present to the court the argument that there was no money left over from the business for Ted to lay claim to. She also included $20,000 worth of consultancy fees to herself." 63 This passage relates to the specifics of fraudulent conduct by the plaintiff in connection with a court case, and presenting false documents or false evidence in connection with the case.
64 The passages relied upon in the earlier articles do not refer to any of this specific conduct. There are passages that relate to misleading conduct, scams, and other dishonest dealings with people, including the defendant and her husband. However, they are not similar in content to this passage in the book.
"5(j)
Natasha flew up to the course-room in a rage, wooden spoon in hand, followed by all the mothers. She found Sebastian, who was the oldest of the kids in the room at four years old, tucked in bed, and screamed at him: 'What have you done?'
Sebastian sat up in shock. 'Nothing,' he said.
She demanded an explanation of what had just happened. 'Stand up! Did you take off the children's nappies?'
He shook his head and trembled. 'No'.
'Did you smear this poo all over the floor?'
He again whimpered 'no', his little body shaking.
Natasha started belting into him with the wooden spoon. When it broke, she yelled to
Tiffany: 'Get another one from the Centre Kitchen!'Tiffany raced off to the kitchen and came back with a metal spatula. Again, Natasha started smacking him. She then told Tiffany and Kate to start hitting him as well. After they'd both smacked him, Natasha turned to me and shouted: 'Carli, he's your child. You spank him! You have to teach him these lessons, not just us. Discipline him now, otherwise he's going to be a monster when he grows up."'
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65 A passage in one of the earlier articles includes the following sentence which says: "Lakaev also once beat McConkey's young son with a wooden spoon, she says." This is a very general and short reference to the incident described in considerable detail in the above passage in the book. There is none of the content about the behaviour described in the book, which is extreme in its level of aggression and ungoverned behaviour, and which extends to inciting others to hit the child. The passage in the book is not substantially similar to that short reference in the article.
"5(k) In a matter of minutes, with clearer thoughts, and away from the clutches of Natasha and her increasingly paranoid world, I began to realise that she was a cult leader, and I had been part of a cult." 66 It is argued for the plaintiff that the content, focus, and subject matter of this passage is, as a fact, that the plaintiff is a cult leader. By contrast, it is contended the paragraphs in the earlier articles speculate that the plaintiff is a cult leader. It is acknowledged that in the earlier passages there is an assertion of the fact of a cult, but not that the plaintiff is a cult leader. It is contended that the passage is not caught by the test in s 23. I am urged to have regard to the caution given by Kaye J in Buckley (No 2), which is that it is important to keep in mind when comparing the two sets of publications that the fact that there is some similarity is not sufficient.
67 In relation to the article, "Alleged leader of cult works as psychologist", the following
observations are made.
68 It begins with the qualifications of "alleged" leader of cult, and a woman "accused" of leading a cult. The article then continues on page 15 with a full page dedicated to the story with a heading in very large font: "In thrall to a cult". The sub-heading over the top of a very large photograph of the defendant and child, with her husband and other two children in the background is the heading "Carli McConkey lost 13 years of her life, and hundreds of thousands of dollars, to a New Age cult." The article refers to Natahsa Lakaev's Universal Knowledge organisation, a New Age personal development group, and that it is her business. She is described on that page as "the group's leader Natasha Lakaev". As the article progresses, the writer establishes that the group is a cult and that the defendant is a victim of the cult. Common features of cults are identified and the features of the group of which the plaintiff is the leader are highlighted. The article states explicitly that the defendant belonged to a cult. The article continues over the page with the heading "In thrall to a cult: how the unwary fall victim to mind control". In this section of the article, the defendant is described as a cult member, staying in thrall to the cult, and having been subject to cult indoctrination. As the leader of that group, the plaintiff is clearly identified as a cult leader.
69 There are four explicit references in the article to the defendant belonging to a cult, one in a heading, one in the by-line, and two in the text. The article also builds a clear and compelling case to the same effect. The plaintiff is specifically identified and described as the leader of that group.
70 Furthermore, in its detail, the article has a cumulative impact upon the reader and thereby demonstrates that the defendant belonged to a cult, and that the leader of the cult has been identified as being the plaintiff, whose conduct and traits were identified as being typical of cult leaders. The article both asserts as a fact that the plaintiff is a cult leader, and also demonstrates that fact without ambiguity in its cumulative effect.
71 Given this conclusion, it is unnecessary to consider the other earlier article, "Accused cult leader now a psychologist".
72 It is worth observing that the earlier articles are far more detailed than the impugned passage in the book, and there is nothing in the recent publication that is dissimilar on the topic. The recent
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publication, in its generality, is substantially the same. If the tables were turned and it was the recent publication that contained all the detail, and what had been published in the past was broad and general, the additional or new details would mean that it was not substantially the same as the broad proposition.
73 This approach can be tested and makes good sense in the context of fresh publications of old content that has been the subject of earlier proceedings.
74 I conclude that the content of the passage at 5(k), which is a very simple assertion, is the same assertion or content that is made in the article I have referred to. That, however, does not mean that the publication is substantially the same because there are broader considerations beyond a comparison of the passages, which I shall return to later.
"5(l) We had been taught by Natasha to smack our children with wooden spoons." 75 The thrust of this passage in the book is that the plaintiff told people, including the defendant, to smack their children. There are no assertions to similar effect in the articles and they do not include this subject matter.
"5(m) She is a criminal. She has physically assaulted people, psychologically abused people and
conned people out of money!"76 Counsel for the plaintiff argues that the passage involves a general allegation regarding people. By contrast, the earlier articles concern such allegations but are confined to the defendant and her then husband.
77 As the defendant pointed out in reply, two people are "people". The content of the earlier articles refer to hitting people, namely the defendant and her son; psychologically abusing people, specifically the defendant and her then husband; and conning people, specifically the defendant and her then husband. These facts said to be true, if true, would mean the plaintiff was in fact a criminal.
78 It is argued for the plaintiff that "criminal" means a person who has been convicted of a crime by a court. However, the meaning depends on the context, as exposed by the use of the term a "convicted criminal".
79 I conclude that the content of this passage in its broad and non-detailed factual assertion is substantially similar to the content of aspects of the earlier articles.
"6(a) An article headed, 'In thrall to a cult: how the unwary fall victim to mind control' purportedly published by The Sydney Morning Herald newspaper on 17 October 2010 containing the following publication, of and concerning the Plaintiff. 6(b) An article headed, 'Alleged leader of cult works as psychologist' purportedly published by The Sunday Age newspaper on 17 October 2010 containing the following publications, of and concerning the Plaintff." 80 There are seven "publications" (passages) within the first article in 6(a) which are said to be defamatory of the plaintiff.
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81 There are three "publications" (passages) within the article at 6(b) said to be defamatory of the
plaintiff.
82 The plaintiff's counsel has made a concession that, in the event I reject his argument as to the construction of s 23 by finding that the section is confined to extant proceedings, the paragraphs in the statement of claim concerning these articles will be the subject of an application for leave. It is not submitted that the articles republished in the book are not of the same or like matter as the articles published in 2010. The effect of the concession, given my determination, is that pleadings at 6(a) and (b) are caught by s 23.
"7A
The defendant has also published and continues to publish the following further materials of and concerning the Plaintiff via the website
(a) I lost over 13 years in the destructive cult, Universal Knowledge (formerly known as Life Integration Programmes), run by cult leader Natasha Lakaev (a registered Psychologist with AHPRA, Australia)."
83 It is argued by the plaintiff that this passage on the defendant's website asserts that the plaintiff is a cult leader, as a matter of fact, and the focus is on the fact that the plaintiff was still registered as a psychologist with AHPRA as at the date of the order amending the statement of claim to include this passage, which was 9 September 2021.
84 I have already dealt with the content claiming the plaintiff is a cult leader and demonstrated that that is, if not the same, then substantially similar to content in the earlier articles.
85 As for the fact that Natasha Lakaev is a registered psychologist with AHPRA, Australia, the pleading is not accurate, and in fact the words in parentheses on the website include the word "now": "(now a registered Psychologist with AHPRA, Australia)". The earlier articles referred to the fact that the plaintiff was a government-employed psychologist and the article in the Gold Coast Bulletin noted she was working for Queensland Health as a supervised psychologist at the Ashmore Community Mental Health Service. In another passage, the Gold Coast Bulletin referred to the fact that a spokesperson from the Australian Health Practitioner Registration Authority confirmed the plaintiff was registered as a psychologist under supervision.
86 I accept the reference to registration on the website should be regarded as speaking in the present tense. It is not said that she "was" a registered psychologist, referring to the 13 years that the defendant spent in the destructive cult. The question arises as to what is the present tense for the purpose of the website. It is asserted in the statement of claim that the defendant "continues to publish" the content on her website. Assuming that is so, the statement that the plaintiff is registered as a psychologist speaks to many years after the earlier articles were published. While that is new information, it is merely a continuing state of affairs. I conclude that this passage is substantially similar to assertions in earlier articles the subject of court proceedings.
"(b) Myself and scores of others were abused by Natasha Lakaev, who used mind control to yield power, money and glorification within a high demand group. Cult leaders generally display the traits of a charismatic narcissist, with Antisocial, Borderline and Histrionic Personality Disorders."
87 This extract from the website is in fact two separate passages in the one article. The focus of the content insofar as it relates to the plaintiff is that she used mind control to yield power, money, and
16 No 21/2023
glorification. There are many passages in the earlier articles that speak to the plaintiff employing mind control for gain. There are references to the plaintiff suffering "criticism" about "extreme practices on her courses," and accusations that she was a practitioner of "coercive persuasion" or "mind control" techniques"; that the defendant was "manipulated" by the plaintiff, who "took hundreds of thousands of dollars from her", and "worked her without pay"; and that the plaintiff used a technique used by cults to silence the internal voice of reason. There is significant detail about techniques used to debilitate the individual in one of the courses described as "extreme" and, generally, a process of "cult indoctrination".
88 The traits that cult leaders generally display are not part of the content of the earlier articles, nor is the fact that they suffer from a type of personality disorder as stated.
89 I do not regard the passages from the website as stating the plaintiff displays traits of a charismatic narcissist and various personality disorders, but rather that, as a cult leader, she behaves in a way that resonates with these traits which suggests that, as a cult leader, she may have a personality disorder. It is worth noting this suggestion is not one of the imputations identified in the statement of claim. Still, it can be seen that the passage introduces some new content and provides a new focus.
90 I conclude that the passages on the website are similar but do not bear a real and substantial similarity to, the content of the articles.
"(c) A discussion of the Book as: 'a gripping account of the brutal impact of spiritual and
violent extremism'."
91 It is argued that the earlier articles do not go beyond speculation or a subjective view. I do not accept that argument. The articles do make assertions of fact, albeit often through the lens of the defendant's experience or her former husband's experience. Self-evidently, the book as a first-hand account must also be subjective, at least to a degree.
92 The focus of the quote is the book and the account it provides. The book was not in existence at the time of the articles and so 7A(c) is not substantially similar to the content of the articles.
"(d) 'What at first appeared professional and promising, became a vehicle for
psychological and physical abuse'."
93 This short and simple proposition is substantially similar to content that appears in the earlier articles: "Mrs Lakaev was physically violent and psychologically manipulative"; Natasha Lakaev had hit her and exploited her; Natasha Lakaev had "hit her"; Mrs McConkey and her husband had more than one period apart as they dealt with the psychological and financial pressures imposed by Lakaev; Mrs McConkey says she was psychologically abused and physically assaulted by Lakaev; Mr Greene claimed he was subjected to ongoing psychological abuse by Mrs Lakeav.
94 The passage is very brief and general compared with the earlier articles. In my view, and as discussed above at [72], this is a relevant consideration in comparing the content of the passage with the earlier articles.
95 The passage on the website is substantially similar to the content of the articles.
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"7B The defendant has also published and continues to publish the following further materials of and concerning the plaintiff via the section of her website entitled 'Book Reviews' which is viewable at the URL:
(a) I was involved with Lakaev's courses close to two decades ago and was absolutely shocked to learn that this woman went from operating her cult to becoming a registered psychologist in Australia (current) and at some stage was even working for Queensland Health as a government-employed psychologist. Unfathomable and this was despite several media exposes on her, an obviously questionable online presence and several complaints to the Queensland Psychology Board and the Australian Health Practitioner Regulation Agency (AHPRA). This book reveals it all, providing not only in-depth, clear and explanatory description of how this Australian cult operated but in the final chapters also provides insights into how AHPRA and the Queensland Psychology Board allowed Lakaev to continue with her registration as a psychologist despite what has been presented in front of them." 96 It is argued for the plaintiff that the focus of this passage is two-fold. First, that the plaintiff operated a cult, as a fact, which is content I have found to be substantially similar to the earlier articles. Second, that the plaintiff continues to be a registered psychologist and that despite all the publicity and complaints, AHPRA refused to act against the plaintiff, which presents a stark difference to the earlier articles. Further, the passage is part of a review of the defendant's book. In both respects, this passage is providing information about matters since the date of the publication of the articles and the information is a significant focus of the passage. I conclude that the passage is not substantially similar to the earlier articles.
"(b) Carli McConkey has shared her journey into a New Age cult with honesty and courage. This book will be invaluable in helping others who have been, or find themselves drawn into what appears to be a group offering courses to benefit their lives, often at a vulnerable time in their life. Trapped for 13 years in a world of abuse and control Carli bravely tells her story of life in Universal Knowledge and her journey to freedom."
97 This is another book review. This passage mentions the value of the book and the themes of the book which are also themes of the earlier articles. The focus of the passage, though, is the book itself, and a different focus to the earlier articles. I conclude the content of the passage is not, in a real and substantial sense, similar to the earlier articles.
"7C "The defendant has also published and continues to publish of and concerning the
plaintiff via the section of her website titled 'My Story' at the URL:
(a) An article headed 'Alleged leader of cult works as a psychologist' purportedly published by The Sunday Age and the Sydney Morning Herald on their websites on 16 October 2010 containing the following publications of and concerning the plaintiff:
(i) 'Carli McConkey, has told The Sunday Age that Ms Lakaev was physically violent and psychologically manipulative, and had persuaded her followers that she was the Queen of Atlantis, a reincarnation of Jesus Christ, and one of 12 members of the Intergalactic Council of the Universe.'"
98 It is conceded that the content of the article at 7C(a) is found in the Sunday Age article of 16 October 2010, the subject of the Queensland defamation proceedings, and the content of this
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passage is the same as one of the passages in that article, but that there is a temporal difference in the
publication date.99 The content of this passage is in a real sense substantially similar to the content of one of the articles. This is a republication of that content and, notwithstanding the difference in publication date, it is substantially the same. The passage is described as from an article published in 2010 and could not be regarded as speaking about more recent events.
"(ii) Complaints against her by former acolytes have been investigated once by Queensland's health regulator, but no action taken. The national health regulator will not comment except to say Ms Lakaev 'has current registration and is therefore deemed fit to practise'."
100 The 2010 article is accurately quoted in this paragraph. The content is the same and there is nothing in the above passage which alters the focus or subject matter. This passage, therefore, is substantially similar to the earlier article. Paragraph 7C(a)(i) and (ii) relate to a stand-alone publication on the website which I have read in its entirety and, given my conclusions, it is caught by s 23.
"(b) An article headed 'Medium, Carli's Story: Exiting a Cult' purportedly published by the Let's Talk About Sects podcast on 30 January 2018 containing the following publications of and concerning the plaintiff:
(i) On top of the financial strain, things also often got physical. 'When this cult leader was bashing me up, I was feeling like I deserved this.'"
101 I found the earlier articles included content that the plaintiff was in fact a cult leader. It is argued for the plaintiff that the earlier articles referred to the plaintiff hitting the defendant but not "bashing" her up. There is reference to being "beaten up again", which is essentially the same. I conclude this passage is substantially similar to the earlier articles.
"(ii) My cult leader now as a registered psychologist, threatened that if I did leave, that she would report me to DOCS, Department of Child Safety, and have my children taken away from me 'cos she was going to say that I was an abusive mother and sign off on it as a psychologist."
102 The subject matter of this passage is new content that was not included in the earlier articles. The threat that was made and the use of her role as a psychologist does not appear in the earlier articles. Furthermore, the statement that the plaintiff is "now" a registered psychologist speaks to a time since the articles were published.
103 The content of this passage could not be regarded as substantially similar.
"7D The defendant has published and continues to publish the following material of and
concerning the plaintiff via her Twitter account at the URL:mcconkey?lang=en 19 No 21/2023
(a) 'Please join me in demanding that the Australian Health Practitioner Agency (AHPRA) and the health Care Complaints Commission (HCCC) de-register a Clinical Psychologist who is an abusive Cult Leader.'"
104 The focus of this passage is to call for support in demanding that the professional organisations de-register the plaintiff. The passage describes the plaintiff as a clinical psychologist and implies she is registered, and is not confined to the time when the earlier articles were published.
105 The content of this passage could not be regarded as substantially similar.
"7E The Defendant has published the following material concerning the Plaintiff via her
Facebook account which is viewable at the URL:
(a) Please support this petition to ask the Australian Health Practitioner Registration Agency (AHPRA) and the Health Care Complaints Commission (HCCC) to re- investigate a Clinical Psychologist who has caused significant harm to vulnerable members of the Australian community."
106 The focus of this passage is to support the petition mentioned. This is a different focus to the content of the earlier articles. Further, the earlier articles must relate to matters that pre-date their publication and so are confined to a period with that end-date. The passage here is not so confined to that time frame.
107 This passage is not substantially similar to the content and focus of the earlier articles.
"(b) This psychologist 'was the President of the Australian Psychological Society from 2009 to 2011' at the time when my cult leader, Natasha Lakaev was investigated as a registered Psychologist for allegations of abuse and physical assault. No wonder these criminals get away with their crimes when all levels of government and those in power do nothing and let the perpetrators continue to cause further harm to society. Natasha Lakaev is still a registered psychologist."
108 This passage questions the plaintiff's continued registration as a registered psychologist. In doing so, it references the plaintiff's conduct which is captured in the earlier articles. The focus of this passage, in part, however, highlights her current registration since the publication of the earlier articles. In that sense, the passage introduces a new focus and, consequently, it is not substantially similar to the earlier publications.
109 Comparing the content of the passages said to be defamatory with the earlier articles, I have found there are passages that have a real and substantial similarity. As conceded, these are the articles that are reproduced in the book: 6(a) and 6(b). Further, I have found that the passages at 5(k), 5(m), 7A(a), 7A(d), 7C(a)(i), 7C(a)(ii), and 7C(b)(i) are also substantially similar in their content, focus, and subject matter.
Comparing publications
110 As noted, the comparison exercise relates to the earlier articles and each publication, not passages in those publications. In relation to the book, there are passages that are substantially similar to the articles. Of 13 passages in the book relied upon as defamatory, two have been found to have a real and substantial similarity with the articles. I have read the context for each of those similar passages and that context does not detract from the similarity of the passages with the articles, such that they reveal the passages are references to different topics to those in the articles. As I have
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noted, the two passages found to be substantially similar involve broad and generalised references to conduct described in the articles. This is not a case involving strong similarity across the passages on matters of detail.
111 There are other considerations concerning the book and a comparison with the articles. There is a difference between the articles as reports, which include information from other sources, and the book as an autobiographical narrative. The book covers a great deal of content that is either not referred to in the articles at all, or only with a broad brush. The book is a comprehensive and detailed account of the defendant's experiences, while the articles, by comparison, contain snippets from the narrative marshalled according to the themes of the articles and references to experiences, together with commentary by the journalist.
112 I have had regard to other considerations which relate to all of the publications, such as the timing of them. There is a substantial period of time from the date of the original articles to the date of the publication of the book and publications on the website and online. I have also had regard to the medium in which the publications are said to have been made, which is different; a book and online publications versus newspaper articles in a print version and online.
113 Having regard to the similarities and dissimilarities between the book and the earlier articles, I conclude the book is not, in a real sense, substantially similar to the earlier articles.
114 In relation to the 6(a) and (b) book annexures, namely the articles reproduced in the book, the concession is made that leave is required. In my view, the concession is properly made. As noted, the publication under consideration is the book as a whole, which includes the earlier articles. The fact that the book reproduces the articles, rather than borrowing or quoting from them, means that this part of the book is the same, not just similar. Furthermore, the narrative part of the book refers to and incorporates the articles in the narrative with reference to matters such as meeting the journalists and being interviewed. The narrative provides background and a setting for the articles, and the articles have prominence in the book. Focussing on this aspect of the book, there is substantial similarity between the book and the earlier articles. The difference in timing of the publications and medium do not deprive them of their substantial similarity. Given the pleadings and the approach of the parties to this aspect of the application, in that both have treated the articles as part of the book but a divisible publication, leave shall only be required for the current proceedings insofar as they concern the publication of the articles, which are 6(a) and (b).
115 The publication on the website pleaded at 7A involves a number of passages said to be defamatory. Two of the four passages have been found to be substantially similar to earlier articles the subject of defamation proceedings. Other aspects of the content are dissimilar to the earlier articles and these include a definition of a cult taken from the work of a psychologist, information under the heading "Cults in Australia and where to find support", and information about the defendant's book "The Cult Effect". I conclude the publication on the website at 7A of the statement of claim is not substantially similar to the earlier articles.
116 The book reviews at 7B are dissimilar to the earlier articles and are not caught by s 23.
117 In relation to the article on the website, at 7C(a), as noted, that is caught by s 23. The difference in timing of the publication of the earlier articles and differences in the medium of the publications do not deprive them of their substantial similarity.
118 In relation to the article on the website referred to at 7C(b) of the statement of claim, one of the passages said to be defamatory is found to be substantially similar to the earlier articles, and the other is not. I have read the entirety of the article and the perspective is post the writing of the book, with references to the book and the earlier articles, and matters of background to the articles such as the meetings with the journalists. While a lot of the content that is covered is similar and involves
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consistent themes, some of the content is dissimilar. In conclusion, the website article is not
substantially the same.119 The passages in the publications at 7D and 7E, for the reasons given, are dissimilar to the earlier articles, and consideration of the entirety of the publications supports that conclusion.
Conclusion
120 In summary, the articles reproduced and referred to at 6(a) and 6(b) of the statement of claim, and the article referred to at 7C(a), are caught by s 23. Leave is therefore required to bring defamation proceedings against the defendant with respect to those publications.
121 I shall hear from the parties at a suitable time as to costs. I note counsel for the plaintiff has foreshadowed an application for leave and I shall hear that application now.
Post-script
122 Having heard submissions, leave was granted on 28 September 2023 pursuant to s 23 of the Defamation Act, s 23 to bring defamation proceedings in respect of pars 6(a), 6(b) and 7C(a) of the statement of claim.
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