McVicker v Australian Broadcasting Corporation

[2025] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:	McVicker v Australian Broadcasting Corporation [2025] QDC 182
PARTIES:	ROBERT MCVICKER
(plaintiff)
v AUSTRALIAN BROADCASTING CORPORATION
(defendant)
FILE NO:	1542/22
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING	District Court, Brisbane
COURT:
DELIVERED ON:	21 November 2025
DELIVERED AT:	Brisbane
HEARING	16 and 17 October 2025
DATES:
JUDGES:	Jarro DCJ
ORDER:	Judgment for the defendant. I will hear from the parties as to costs.
CATCHWORDS:	DEFAMATION – PUBLICATION – GENERALLY – where
the plaintiff claims the defendant published an article on its
website which was defamatory of him – where the plaintiff
claims the article was a one-sided account about the failure of
a business – where the plaintiff was the director of the business – whether the article was published – whether the article
contains defamatory imputations about the plaintiff – whether damages should be awarded to the plaintiff – whether
injunctive relief should be awarded to the plaintiff
DEFAMATION – OTHER DEFENCES – MISCELLANEOUS DEFENCES – where the plaintiff is seeking damages and injunctive relief – whether the defence of
offer to make amends pursuant to s 18 of the Defamation Act 2005, as it then was, applies
LEGISLATION:	Defamation Act 2005 (Qld), s 18, s 29A, s 33
CASES:	Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575 Rush v Nationwide News Pty Ltd (No. 7) [2019] FCA 496 Taylor v Nationwide News Ltd (No. 2) [2022] FCA 149 Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570
COUNSEL:	J P Hastie for the plaintiff L E Barnett SC and J S Forbes for the defendant
SOLICITORS:	Mills Oakley for the plaintiff
ABC Legal for the defendant

1. The plaintiff, Mr McVicker, seeks damages and injunctive relief following an online article (the article) of 5 January 2019 by the defendant, the Australian Broadcasting Corporation (the ABC). The article is reproduced in Schedule 1 to these reasons.

2. The principal issues to be resolved in this case involve the following:

(a)	Whether the article was published.
(b)	Does the article contain defamatory imputations about Mr McVicker?
(c)	Does the defence of offer to make amends pursuant to s 18 of the Defamation Act 2005 apply?
(d)	Does the defence of triviality pursuant to s 33 of the Defamation Act 2005 apply?
(e)	What damages should be awarded to Mr McVicker (including whether injunctive relief should be granted).

1. The proceedings arise in circumstances where Mr McVicker claims the ABC, without any attempt to check the facts or obtain his comment, presented a one-sided account about the failure of a business known as Bestjet. Bestjet was an online travel agency which failed about six weeks after Mr McVicker acquired it in November 2018. Mr McVicker placed Bestjet into voluntary administration in December 2018. The

   article, in reporting a statement made by Bestjet’s former director, Ms Rachel James,

   suggested that Bestjet collapsed, and left thousands of customers out of pocket,

   because of Mr McVicker’s poor and inefficient management. In that way, the article

   is said to have defamed Mr McVicker.

2. Pursuant to an earlier decision of Andreatidis KC DCJ on 22 August 2023, Mr

   McVicker’s claim is actionable only in relation to any publication of the article that

   occurred on 28, 29 or 30 June 2021 (the actionable period).[1] In July 2025, his Honour made directions with respect to the conduct of this trial including that the evidence in chief be by way of affidavit. Four witnesses were called on behalf of Mr McVicker, including himself, his wife Mrs Tracy McVicker, Mr James Gaffney and Mr Ronnie Visser. It was only Mr McVicker who was required by the ABC for cross- examination. The ABC did not lead any evidence at trial despite having filed an affidavit in compliance with previous directions.

   [1]           McVicker v Australian Broadcasting Corporation [2023] QDC 167.

3. In short compass, Mr McVicker’s evidence, which was undisturbed in cross-

   examination, outlined his relevant professional experience in the airline, travel and tourism industries, the acquisition of the online travel agency Bestjet, the events that followed the acquisition of Bestjet, the article and its effects following publication.

   The ABC sought not to impugn Mr McVicker’s credit. As for the remaining evidence

   from Mrs McVicker, Mr Gaffney and Mr Visser, their evidence essentially outlined their interactions and dealings with Mr McVicker before and after their knowledge of the article, as well as their impressions of the article itself.

Was the article published?

1. Mr McVicker is required to demonstrate that the article was “published” to at least

   one person during the actionable period, namely on 28, 29 and/or 30 June 2021. He is required to show that a third person read and comprehended the words and images on a computer.

2. In Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575 at [26], the majority (Glesson CJ, McHugh, Gummow and Hayne JJ) observed:

   “Harm to reputation is done when a defamatory publication is

   comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher

   alone. It is not. It is a bilateral act – in which the publisher makes it

   available and a third party has it available for his or her

   comprehension.”

3. At [44], the majority continued:

   “…It is only when the material is in comprehensible form that the

   damage to reputation is done and it is damage to reputation which is

   the principal focus of defamation, not any quality of the defendant’s

   conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will

   be the place where the tort of defamation is committed.”

4. It has been admitted on the pleadings that two persons accessed the article during the actionable period. The first was a user based in Brisbane. The second user was based in Sydney and operated from an IP address connected with Regional Express Airlines. In what is viewed as an admission by the parties based on the defence, the former user accessed the article for less than 10 seconds at about 2:00am on 28 June 2021 and the latter user accessed the article for a period of 1 minute and 45 seconds (from 14:15:41 to 14:17:26) on 30 June 2021.

5. Absent calling the first user, I have not been satisfied that the first user read and comprehended the article in the space of ten seconds in the sense contemplated in Gutnick. Regarding the second user, submissions were advanced by the ABC that there are a range of possibilities based on ordinary human behaviour with respect to that user, for example:

(a)	The second user could have clicked on the article and, if reading fast, read the whole of the article;
(b)	The second user could have clicked on the article, read part of it only, and then clicked off it; or,
(c)	The second user could have clicked on the article, been distracted and read none of it or a small part of it, and then clicked off it.

1. I am prepared to draw an inference in favour of Mr McVicker that there was at least publication to the second user because the article is not particularly long or complex

   and itself identifies a “read time” of two minutes, consistent with the second user

   accessing the article for 1 minute and 45 seconds. During that time, a substantial part of the article, if not all, would have been digested by the second user. I therefore find publication of the article during the actionable period.

   Were there defamatory imputations concerning Mr McVicker?

2. It has been pleaded on Mr McVicker’s behalf that the article was defamatory of him

in that its natural and ordinary meaning of it meant, and was understood to mean (or
meanings not substantially different) that:

(a)	Mr McVicker was to blame for the collapse of Bestjet due to his poor and inefficient management;
(b)	Mr McVicker was to blame for the collapse of a profitable business in solid financial health that followed stringent operational, financial and industry protocols due to his poor and inefficient management; and,
(c)	Mr McVicker was to blame for customers losing money and having their travel plans ruined due to his poor and inefficient management.

1. These matters are rejected by the ABC who contended the article presented conflicting opinions on whether Mr McVicker was to blame for the collapse of

   Bestjet; and provided relevant context regarding Mr McVicker’s involvement in

   Bestjet and the previous involvement of Mr and Mrs James. The article also

   contained no comment on Mr McVicker’s management style.

2. The relevant question is whether the article would have conveyed the asserted (or substantially the same) meanings to an ordinary reasonable person. In this respect the court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader. The question is not a question of construction of the words used in the article in the legal sense.[2] In Taylor v Nationwide News Ltd (No. 2) [2022] FCA 149 at [62], Katzmann J stated:

   “… the hypothetical ordinary reasonable reader is obviously enough

   not a lawyer who examines the publication over zealously 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. 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 pre-disposition about

   what follows and so may assume special importance.”

   [2]           See Rush v Nationwide News Pty Ltd (No. 7) [2019] FCA 496 at [74].

3. Therefore, characteristics of the ordinary reasonable reader include:

(a)	fair to average intelligence, experience and education;
(b)	fair mindedness;
(c)	not being perverse, morbid, suspicious of mind or avid for scandal;
(d)	not living in an ivory tower but can and does read between the lines in light of

that person’s general knowledge and experience of worldly affairs;

(e)	not searching for strained or forced meanings; and,
(f)	reading the entire matter complained of and considering the context as a whole.

1. Mr Hastie of counsel who appeared on behalf of Mr McVicker identified six reasons why the defamatory imputations were conveyed by the article. First, the article

   included statements from Ms James that she was “distraught” and “devastated”

given her efforts in growing the business, followed immediately by a statement from
Ms James that:

“During the last eight weeks, under new ownership and management,

Bestjet has gone from a profitable business that following stringent operational, financial and industry protocols, to one that has

devastated thousands of customers and hundreds of staff.”

1. It was contended that the above extract was plainly apt to suggest to the reader that Bestjet had failed because its new owner and manager, Mr McVicker, had failed to

   deploy appropriate, skilful and efficient management resulting in “devastation”

   suffered by customers and hundreds of staff which was immediately linked to that

   failing. Whilst it is apparent to me that the words describe Bestjet’s failure, I am

   unable to attribute the suggested causal link, when viewed by the ordinary reasonable reader, to Mr McVicker by the words adopted in the article, either alone or in combination with the other matters. To take a different position would be overly zealous.

2. Secondly, it was said on Mr McVicker’s behalf that the force of those earlier comments by Ms James was reinforced by the text under the header “Key Points”. It

   was in larger print. It stated that Ms James had laid “… blame at the feet of the new director and said her family was distraught”. Whilst it is correct that the article

   reports that Ms James “laid blame at the feet of the new director” and the “Key

   Points” header appear in slightly larger print than the rest of the text, it is my

   impression that the ordinary reasonable reader would view it as merely reporting Ms

   James’ opinion evidence in an effort for Ms James alone to portray herself in the most

   favourable light. There was no reinforcement that Bestjet had failed because of Mr McVicker. Further, the first part of the article does not even specifically name Mr McVicker himself.

3. Thirdly, it was submitted that the article states, at an early point, that Bestjet had been

   sold to “McVicker International” just six weeks before it went into administration.

   That is immediately followed by a statement describing Bestjet’s failure as involving

   a “chaotic demise”. It was contended that those statements were not qualified and they were not attributed to Ms James. The suggestion that Bestjet suffered a “chaotic demise” was stated as if it were fact. It was apt to impress the reader that the failure

   of a long running business had occurred chaotically shortly after it had assumed new management. I accept most of this submission except, crucially, for the impression

   that Bestjet’s failure was due to Mr McVicker’s management.

4. Fourthly, it was submitted that none of those statements were accompanied by any comment from Mr McVicker that truly engaged or responded to what was said by Ms James. That was, of course, because the ABC never properly sought, or waited for, any such comment from him. The only comment which was attributed to him is

   that which appeared in the article. Reference was made to Mr McVicker’s report to

   ASIC which, was submitted in a defensive tone, recorded Mr McVicker as having said that he was only a director for 39 days. It then goes on to quote Mr McVicker as saying that:

   “It would be prudent to make enquiries to the previous director

   regarding the balance of the time that this business was in operation”.

5. It was contended that such did not counter Ms James’ statements, was concerned only with the period prior to Bestjet’s “chaotic demise” and did not speak at all to what

   had happened since Mr McVicker had assumed management of the company. I am not persuaded by this argument. The quote of Mr McVicker is expressive that he is encouraging enquiries to be directed to Ms James, in other words, that he is not at fault. An ordinary reasonable reader of fair to average intelligence would view a

   period of 39 days as exceptionally swift to create Bestjet’s chaotic demise. A direct

   comment was not required from Mr McVicker because his initial (and only) quote about making further enquiries with the previous director spoke for itself and the

   article merely aroused Ms James’ opinionated view.

6. Fifthly, and relatedly, it was argued that there was nothing in the article to cast any doubt over the statements attributed to Ms James. Her statements were not phrased

   as “allegations” or “accusations”. There was no qualification that the ABC was

   merely reporting what she had stated without ascertaining its veracity. My view is

   that Ms James’ statements did not need to be phrased as allegations or accusations

   because of the way in which her opinions were reported. It is apparent they were merely her opinions. The ABC could have perhaps been more precise in its reporting

   of Ms James’ statement as allegations or assertions, but the effect or impression is

that Ms James held certain opinions or beliefs as to Bestjet’s collapse. It was Ms
James’ opinion and Ms James’ opinion alone.

1. Lastly, it was submitted that the statements in the article about Mr James’ previous

   involvement in a failed company, Air Australia, did not change the position. Nor did the statements, it was said, about whether Mr James had been employed by Bestjet. Those statements did not go directly to undermining anything said by Ms James. It was contended that they were not apt to cast doubt on the statements earlier attributed to her about the collapse of Bestjet. I reject this submission. If anything, a more impressionistic reaction by an ordinary reasonable reader to the article is suggestive

   that there was involvement by Ms James’ husband, as the architect, to cause Bestjet’s

   demise given Mr McVicker’s limited tenure as director against a backdrop where Mr

   McVicker sought voluntary administration for the company shortly after acquiring it.

2. Overall, this is a somewhat balanced matter when one considers the article as a whole through the prism of the ordinary reasonable reader, but one where I am unable to reach the concluded view that the imputations contended for by Mr McVicker were conveyed by the article. Indeed, if I had reached the contrary view, I would have adopted an overly zealous impression of the article and one of suspicious mind. Mr McVicker is not to be criticised for his concerns in relation to the imputations which the article is said to convey against him, but on the other hand, an objective assessment needs to be made by reference to the hypothetical construct of the ordinary reasonable reader. The pleaded imputations lay blame to Mr McVicker for the collapse of Bestjet due to his poor and inefficient management, but I have not been persuaded that an ordinary reasonable reader would understand the article to convey such imputations. Further, as was submitted on behalf of the ABC contrary to the meanings Mr McVicker seeks to derive from the article, there are a number of features of it that would leave the ordinary reasonable reader with the understanding that the former director (or indeed her husband) was more likely to blame for the collapse. In particular:

(a)  the fact that: 

(i)       Ms James’ husband, Michael James, had previously been involved in a

significant corporate failure in the travel industry which it left many
ticketholders out of pocket;

(ii)      Michael James had been banned from managing companies for three years by ASIC;

(iii)     there were questions as to whether Michael James was breaching that disqualification by being involved in the day to day running of Bestjet;

(iv)     in 2016 Bestjet had been stripped of its accreditation by the Australian

Federation of Travel Agents (AFTA) because of Mr James’ involvement

in the company; and,

(v)      the Supreme Court had upheld AFTA’s decision;

(b)	Mr McVicker was a director for only 39 days;
(c)	Mr McVicker’s statement is more measured and reasonable when compared to Ms James’ statement, and as such would likely be given greater weight by the

reader. Ms James is described as the founder of Bestjet, and her statement indicates that she is emotional about its collapse, especially given the highly emotive language that she employs. The ordinary reasonable reader would accordingly treat the views of Ms James with some caution; and,

(d) Mr McVicker placed the company into voluntary administration, as opposed to trading insolvent, which suggests he is a careful and prudent director.

1. I tend to agree with the submission advanced on behalf of the ABC that at its highest, the ordinary reasonable reader might understand the article to convey that there is a question as to where the blame for the collapse of Bestjet lies. However, a fair reading of the article would not lead such a reader to conclude that the blame in fact rests with Mr McVicker, such that the asserted imputations arise.

2. Finally, no reference is made in the article at all to support a finding with respect to

   any imputations concerning that the collapse was caused by Mr McVicker’s “poor and inefficient management”. That is because the article contains no comment of the

   management style of Mr McVicker. It does not describe his management as “poor” or “inefficient”. As such the imputations contended for Mr McVicker have not been

   conveyed by the article.

   Does the Defence of Offer to Make Amends apply?

1. The ABC relies upon s 18 of the Defamation Act 2005, as it then applied, which provides a defence to the publication of defamatory material if a plaintiff fails to accept a reasonable offer to make amends. Although I have found that the asserted imputations relied upon by Mr McVicker have not been demonstrated, I am of the

   view that Mr McVicker’s claim otherwise fails because, on balance, this defence has

   been established.

2. Mr McVicker’s evidence identifies the efforts made by the ABC as soon as it became

   aware that the article was or may be defamatory. Relevantly on 26 August 2021, the solicitors for Mr McVicker issued a concerns notice which sought the ABC to remove the article and publish a retraction and an apology. The article was not removed, instead it was updated on 14 September 2021 (updated article). The updated article

   is reproduced in Schedule 2 to these reasons. Mr McVicker’s belief is that the

   updated article continues to convey the same message as the article did.

3. Section 18 of the Defamation Act 2005 enables a defence to a claim for defamation where:

(a)	the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory;
(b)	at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and,
(c)	in all of the circumstances the offer was reasonable.

1. Subsection 2 provided that in determining whether an offer to make amends is reasonable, a court:

(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question

taking into account –

(i)       the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and

(ii)      the period that elapses between publication of the matter in question and publication of the correction or apology; and,

(b)

may have regard to –

(i)	whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and
(ii)	any other matter that the court considers relevant.

1. As to there being an offer to make amends, the nature and content of such an offer is set out in ss 13 and 15 of the Defamation Act 2005. In particular, s 15 sets out a number of particular matters that such an offer must include. The reasonableness of an offer to make amends is to be determined objectively.[3] Considerations relevant to the aspect of reasonableness cannot be exhaustively identified, but can include, for example the seriousness of the defamatory imputations and the hurt they caused to an aggrieved person, the existence and adequacy of an apology including the prominence afforded to any proposed correction and/or apology and the relative parity with the prominence given to the matter complained of, the adequacy of any compensation offered and the likelihood of the proceedings being successful.[4]

   [3]           Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [719].

   [4]           Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [72]-[73], [78] and [83]-[84].

2. Despite a submission advanced on behalf of Mr McVicker that the ABC led no evidence to suggest that it was ready and willing to carry out the offer to make amends such that the defence should fail at the outset, I am satisfied on the evidence that the ABC was ready and willing to carry out the offer to make amends. In this respect I note the updated article, as well as the nominal amount offered by way of

   compensatory costs in order to inform my assessment of the ABC’s readiness and

   willingness to carry out the offer to make amends.

3. The updated article was published nine days prior to the offer to make amends. As highlighted on behalf of Mr McVicker, broadly stated the offer to make amends was made to:

(a)	do what the ABC had already resolved to do by issuing the updated article;
(b)	publish the “Editor’s note” on a part of its website styled as “Corrections and Clarifications”;
(c)	communicate the editor’s note to persons nominated by Mr McVicker; and,
(d)	pay Mr McVicker the sum of $5,000 in respect of his legal costs.

1. It was contended no genuine or unqualified apology was offered. Further no offer was made for compensation, and, most importantly, the ABC did not offer to remove the updated article altogether.

2. The “Editor’s note” is on the following terms:

   “On 5 January 2019, the ABC reported on claims made by the

   founders of Bestjet following its collapse including in relation to Robert McVicker Jnr. The ABC did not adopt or endorse those claims, nor did it intend to make any adverse suggestion regarding Robert McVicker Jnr. Should any suggestion have been unintentionally conveyed, the ABC withdraws it, and apologises to

   Mr McVicker Jnr”.

3. I am of the view it is an apology sufficient for the circumstances of this matter. Such

   is made plain in my view by the words “should any suggestion have been

   unintentionally conveyed, the ABC withdraws it, and apologises to

   Mr McVicker Jnr”. It is an apology and the ABC has identified in the editor’s note

   that it did not adopt or endorse the claims made by the founders of Bestjet. The

   editor’s note even appearing at the conclusion of the updated article was given

   sufficiently equal prominence.

4. Leaving aside the apology, the following features are also important:

(a)	The offer to make amends was made as soon as the ABC was first notified that the article may be defamatory. The updated article has equal prominence as the article and it now forms part of the webpage on which the article is available.
(b)	There was a significant period of time which had elapsed between January 2019 when the article was first available and August 2021 when the concerns notice was issued. I therefore accept the submission highlighted on behalf of the ABC that there was a significant delay in bringing the matter to the attention of the ABC which meant that the ABC was objectively entitled to consider the harm to be minor or insubstantial and the terms of the offer to make amends was proportionate to that harm in light of the seriousness of the alleged defamatory imputations.
(c)	In respect to the defamatory imputations, I have not been persuaded that the defamatory imputations were established such as that there were reasonable prospects of the ABC in defending the action. The terms of the offer to make amends were in the circumstances reasonable given:

(i)       the ABC would maintain the amendments to the article and the inclusion

of the editor’s note;

(ii)      the ABC would publish a statement regarding the matter on the ABC’s “Corrections and Clarifications webpage”;

(iii)     the ABC would take reasonable steps to communicate the editor’s note

on its letterhead to third parties nominated by Mr McVicker;

(iv)     the ABC would pay $5,000 to Mr McVicker for his costs (with the possibility that a higher sum may be paid if Mr McVicker proved that he had incurred higher costs).

1. Therefore, on balance, s 18 of the Defamation Act 2005 has been proven. It was reasonable. Somewhat disappointingly the updated article remains on the ABC website today. Ideally the ABC ought to have offered to remove the article altogether, but that in my view is not a necessary ingredient to form the view that the offer to make amends was reasonable.

   Does the Defence of Triviality apply?

2. I do not consider this issue necessary for determination in light of my finding above.

   What Damages should be awarded to Mr McVicker?

3. Consistent with the findings above, there will be no award of damages. However, in the event I am incorrect regarding the findings above, consistent with the submissions advanced on behalf of Mr McVicker, an appropriate award of damages, including aggravated damages would be between $5,000 and $10,000.

4. I would be inclined to award $7,500 given harm caused by the publication established by Mr McVicker within the three-day actionable period, inclusive of aggravated damages. The publication was for a very short period in circumstances where publication of the article was to the second user in Sydney, a city where Mr McVicker has never lived or worked. Further any damage suffered by Mr McVicker is mitigated because of the passage of over two and half years between the posting of the article on the ABC website and the date on which Mr McVicker alerted the ABC to the alleged defamatory contents of the article. Furthermore, Mr McVicker has brought other proceedings for damages in relation to publications which have had the asserted imputations as the article. He has also received compensation from another entity in relation to the publication of an article conveying the asserted imputations or its effect in the present proceedings.

5. It is not appropriate nor would I be inclined to grant injunctive relief in the event I am wrong regarding liability because as has been highlighted to me on behalf of the ABC,

   to do so would effectively circumvent the summary dismissal of Mr McVicker’s

   claim in relation to the updated article and the ABC has submitted it may have had defences open to it in relation to the updated article, for example, the public interest defence pursuant to s 29A of the Defamation Act 2005.

   Conclusion

6. Accordingly, there is judgment for the ABC. I will hear from the parties as to costs.

Schedule 1

Schedule 2