Mitchell v Jobst
[2025] QDC 41
•1 April 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Mitchell v Jobst [2025] QDC 41
PARTIES:
WILLIAM JAMES MITCHELL
(Plaintiff)v KARL JOBST
(Defendant)
FILE NO/S:
BD 1075/2024
DIVISION:
Civil
DELIVERED ON:
1 April 2025
DELIVERED AT:
Brisbane
HEARING DATE:
16-20 September; 8, 11 October 2024
JUDGE:
Barlow KC, DCJ
ORDERS:
1. Judgment for the plaintiff:
(a) for damages for non-economic loss, in the sum of $300,000, plus interest of $34,668.50 (subject to either party seeking a different order as to interest, upon delivery of this judgment or by filing and serving a written submission within 14 days); and
(B) FOR AGGRAVATED DAMAGES IN THE SUM OF $50,000, PLUS INTEREST OF $5,778.08 (SUBJECT TO EITHER PARTY SEEKING A DIFFERENT ORDER AS TO INTEREST, UPON DELIVERY OF THIS JUDGMENT OR BY FILING AND SERVING A WRITTEN SUBMISSION WITHIN 14 DAYS).
2. UNLESS EITHER PARTY SEEKS A DIFFERENT ORDER AS TO COSTS, EITHER UPON DELIVERY OF THIS JUDGMENT OR BY FILING AND SERVING A WRITTEN SUBMISSION WITHIN 14 DAYS, THE DEFENDANT PAY THE PLAINTIFF’S COSTS OF THE PROCEEDING.
CATCHWORDS:
DEFAMATION – PUBLICATION – GENERALLY – INTERNET PUBLICATIONS –extent of publication – the plaintiff sued in respect of comments made on the defendant’s YouTube channel – direct evidence of publication of the video in United States of America, Australia and Jamaica – indirect evidence the video was downloaded before it was taken down – whether extensive publication proved.
DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – PARTICULAR STATEMENTS – IMPUTATION – the meaning of the publication – the plaintiff alleged the offending words carried five defamatory imputations – whether the offending words were capable of conveying a defamatory meaning – whether the imputations were capable of being conveyed by the publication to the ordinary reasonable person – whether the imputations were defamatory.
DEFAMATION – JUSTIFICATION – TRUTH – SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH – the defendant sought to establish the defence of contextual truth – the defendant alleged five contextual imputations – whether any reasonable viewer would conclude that the matters were contextually and substantially true – whether the contextual imputations were more serious than the plaintiff’s imputations.
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – extent to which the plaintiff was personally affected – extent to which the plaintiff’s reputation was damaged – grapevine effect – the proceeding was covered extensively in the media and online – whether plaintiff’s publication of response video that showed the defamatory words was a mitigating factor – whether the defendant’s retraction video was a mitigating factor – appropriate measure of general damages.
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – SPECIAL MATTERS – AGGRAVATION – whether amendments to s 35 of the Defamation Act 2005 made in 2001 affected the factors which a court should take into account in determining whether aggravated damages should be awarded and, if so, in what sum.
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – SPECIAL MATTERS – AGGRAVATION – the plaintiff claimed aggravated damages – the imputations were based on a fallacy – the defendant repeated the publication – the defendant used extravagant and sensationalised language – the defendant had malice towards the plaintiff – the defendant’s conduct of the litigation was aggravating – the retraction video did not demonstrate a genuine apology – whether the defendant’s conduct was aggravating in the circumstances – appropriate measure of aggravated damages.
LEGISLATION:
Defamation Act 2005, ss 8, 14, 18, 26, 34, 35, 38, 39
Defamation (Model Provisions) and Other Legislation Amendment Act 2021, ss 2, 15, 21
Uniform Civil Procedure Rules 1999, rr 166(5), 681, 698CASES:
Ali v Nationwide News Pty Ltd [2008] NSWCA 183, applied
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, applied
Ames v Spamhaus Project Ltd [2015] 1 WLR 3409, cited
Armagas Ltd v Mundogas SA ('The Ocean Frost') [1985] 1 Lloyd's Rep 11, cited
Associated Newspapers v Dingle [1964] AC 371, applied
Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430, considered
Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 3) (2012) 213 FCR 380, cited
Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201, cited
Banks v Cadwalladr [2022] 1 WLR 5236, cited
Barilaro v Google LLC [2022] FCA 650, considered
Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674, cited
Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535, applied
Bolton v Stoltenberg (2018) Aust Torts Reports 82-417, applied
Brose v Baluskas (No 6) [2020] QDC 15, applied
Camden v McKenzie [2008] 1 Qd R 39, cited
Campbell v T. L. Clacher No. 2 Pty Ltd [2019] QSC 218, cited
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, applied
Cassell & Co Ltd v Broome [1972] AC 1027, applied
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, applied
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, applied
Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181, applied
Chappell v Mirror Newspapers Ltd (1986) Aust Torts Rep 80,691, cited
Deeming v Pesutto (No 3) [2024] FCA 1430, considered
Doak v Birks [2022] NSWDC 625, applied
Dow Jones and Co Inv v Gutnick (2002) 210 CLR 575, applied
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, applied
Forrest v Askew [2007] WASC 161, followed
Fox v Percy (2003) 214 CLR 118, cited
Goody v Odhams Press Ltd [1967] 1 QB 333, cited
Greenwich v Latham [2024] FCA 1050, applied
Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132, cited
Hallam v O’Connor [2024] QDC 187, considered
Harrington v Shoard [2023] QDC 11, considered
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, applied
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157, cited
Jeynes v News Magazines Ltd [2008] EWCA 130, applied
Jones v Dunkel (1959) 101 CLR 298, applied
Jones v Skelton [1964] NSWR 485, applied
Lewis v Daily Telegraph Ltd [1964] AC 234, applied
Ley v Hamilton (1935) LT 384, applied
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, cited
Manly Council v Byrne [2004] NSWCA 123, cited
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119, applied
Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468, applied
McQuire v West Morning News [1903] 2 KB 100, cited
Mickle v Farley [2013] NSWDC 295, applied
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, applied
Mitchell v Race, unreported, Supreme Court of Florida No SC2023-0432, referred to
Mitchell v Twin Galaxies, LLC, Court of Appeal of the State of California, Second Appellate District, Division Eight, B308889, considered
Murray v Raynor [2019] NSWCA 274, cited
Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19, applied
Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64, applied
O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, considered
O’Reilly v Edgar [2019] QSC 24, considered
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403, cited
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, applied
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7, cited
Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192, cited
Plato Films Ltd v Speidel [1961] AC 1090, considered
Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139, applied
Race v Mitchell, 357 So 3d 720 (2023), referred to
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, applied
Rayney v State of Western Australia (No 9) [2017] WASC 367, considered
Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, applied
Roberts v Prendergast [2014] 1 Qd R 357, applied
Rogers v Nationwide News Ltd (2003) 216 CLR 327, applied
Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232, cited
Scali v Scali [2015] SADC 172, considered
Sims v Jooste (No 2) [2016] WASCA 83, applied
Sirocki v Klerck (No 2) [2015] QSC 92, considered
Smith v Lucht [2015] QDC 289, cited
Sobrinho v Impresa Publishing SA [2016] EMLR 12, applied
Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana”) (1924) 20 LI L Rep 140, cited
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, applied
Stocker v Stocker [2020] AC 593, applied
Stoltenberg v Bolton (2020) 380 ALR 145, cited
The Gleaner Co Ltd v Abrahams [2004] 1 AC 628, applied
Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477, applied
Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, cited
Triggell v Pheeney (1951) 82 CLR 497, applied
V’Landys v Australian Broadcasting Corporation [2023] FCAFC 80, cited
Wagner v Harbour Radio Pty Ltd [2018] QSC 201, considered
Wagner v Nine Network Australia Pty Ltd [2019] QSC 284, applied
Watney v Kencian [2018] 1 Qd R 407, applied
Watson v Foxman (1995) 49 NSWLR 315, cited
White v The King (1947) 89 CCC 148, citedWithyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10, cited
OTHER MATERIAL:
Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 Explanatory Note
Gatley on Libel and Slander (Sweet & Maxwell, 13th ed, 2022)
George, P, Defamation Law in Australia (LexisNexis, 4th ed, 2023)
Heydon, JD, Cross on Evidence (LexisNexis Australia)
Lord Devlin, The Judge (Oxford University Press, 1979)Rolph, D, Rolph on Defamation (Lawbook Co, 2nd ed, 2024)
COUNSEL:
P Somers for the plaintiff
M de Waard for the defendant
SOLICITORS:
Bennett & Philp Lawyers for the plaintiff
Mills Oakley for the defendant
Contents
Introduction and summary of findings
Mr Mitchell and his history
The contested scores
The challenge to Mr Mitchell’s scores
Twin Galaxies’ findings and consequences
Litigation by Mr Mitchell
Twin Galaxies
Donkey Kong Forum, Jeff Harrist, Jeremy Young
Guinness World Records
David Race
Benjamin Smith – “Apollo Legend”
Apollo Legend’s last actions
Mr Jobst
A little about Mr Jobst
Earlier and later publications by Mr Jobst about Mr Mitchell
The publications
The first version (the first publication) – 26 May 2021
Mr Mitchell’s response video – 3 June 2021
The second version of the video – 4 June 2021
The third version (republication) – 9 June 2021
The fourth version – 13 June 2021
Mr Jobst’s “retraction video” – 29 July 2021
The extent of the publications
The parties’ contentions
What constitutes publication?
Evidence of the extent of publication
Conclusions on the extent of publication
Extent of publication of response video and retraction video
Meanings of the publications
The imputations alleged
Determining the meaning of the publications
The ordinary reasonable person
Did the imputations arise from the video?
Imputation 1 – Mr Mitchell required Apollo Legend to pay him a large sum, etc
Imputation 2 – a major contributing factor to Apollo Legend’s decision to commit suicide was the requirement to pay Mr Mitchell a large sum to settle Mr Mitchell’s claim
Imputation 3 – Mr Mitchell hounded Apollo Legend to death
Imputation 4 – Mr Mitchell was the main cause, or a cause, of Apollo Legend committing suicide
Imputation 5 – Mr Mitchell’s conduct was a contributing factor to Apollo Legend committing suicide
Conclusions on imputations alleged by Mr Mitchell
Were the publications defamatory?
The first imputation
The second, fourth and fifth imputations
The third imputation
Conclusion – the imputations were defamatory
Issues of credit
General approach to issues of credit
Mr Mitchell
Mr Jobst
Other witnesses
Mr Mitchell’s witnesses
Mr Jobst’s witnesses
The absent witness – Mrs Mitchell
Contextual truth defence
The components of contextual truth
Did the contextual imputations arise and were they substantially true?
First contextual imputation – publicly exposed as having cheated
Second contextual imputation – banned from submitting scores to Twin Galaxies for cheating
Third contextual imputation – Mr Mitchell planned a fraudulent video
Fourth contextual imputation – callously expressed joy at reported death of Apollo Legend
Fifth contextual imputation – using litigation to force others to recognise his achievements
Conclusions on contextual imputations
Effects of imputations and contextual imputations on Mr Mitchell’s reputation
Evidence of reputation generally
The alleged pre-existing bad reputation
Mr Mitchell’s reputation, before and after publication
Witnesses
Other evidence
Conclusions on Mr Mitchell’s reputation
The sectors of Mr Mitchell’s reputation
Did the publications harm Mr Mitchell’s reputation?
Conclusions – Mr Jobst defamed Mr Mitchell and caused him harm
Damages
General damages
Principles
Personal effects on Mr Mitchell
Extent of harm to reputation
Vindication
The grapevine effect
Mitigating factors
Aggravated damages
Reckless indifference to the facts
Repeated publication
Sensationalised and extravagant video
Malice toward Mr Mitchell
Obtaining pecuniary benefits
The “retraction”
Conduct of litigation
Conclusions – Mr Jobst’s conduct merits aggravated damages
The award of damages
Other damages awards
Amount of general damages
Aggravated damages amount
Other matters
Rulings on evidence
Interest on damages
Costs
Introduction and summary of findings
The plaintiff, William Mitchell III, lives in Florida, United States of America. He has been well known (as Billy Mitchell) among adherents of video and arcade gaming in many countries, including Australia, since about November 1982.
At an arcade and video gaming competition in November 1982 that took place in Ottumwa, Iowa, USA, playing an arcade game called Donkey Kong, Mr Mitchell scored a world record 874,300 points and was the first person ever recorded as reaching the “kill screen” (that is, reaching the end of the game). At the time he was 17 years old.
Mr Mitchell went on to be recognised as having achieved a number of world records and world firsts in video and arcade gaming. They included achieving the first perfect score of 3,333,360 in another game called Pac-Man in 1999, setting a new world record (and the first score of over 1,000,000 points) of 1,047,200 in Donkey Kong in June 2005, another Donkey Kong world record of 1,050,200 in July 2007 and a third Donkey Kong world record of 1,062,800 in July 2010.
The defendant, Karl Jobst, lives in Queensland and describes himself as a “professional YouTuber.” Since about the end of 2018, he publishes videos on his own YouTube channel, from which he earns income. He has over 1,000,000 followers on that channel. His videos mostly concern “speed running,”[1] but since about late 2019 he has also covered gaming world records and cheating in arcade and video games. Since about June 2020 he has published many videos about Mr Mitchell (including about this and other litigation). He is also a video game player himself and said that he has earned a large number of world records in certain games.
[1]Which Mr Jobst described as competing to see how fast you can beat a video game: T4-93.
Twin Galaxies Inc (later Twin Galaxies LLC) is a company incorporated in Florida, USA. It was founded by Walter Day, who sold it to Jace Hall in February 2014. Its role (apparently self-determined) was and remains, in essence, to set rules for video and arcade gaming competitions and records, to organise and hold competitions and to publish the achievements of gamers, including records set by them and recognised by Twin Galaxies as legitimate. Perhaps its role is best described in the following passage taken from its current website:[2]
Twin Galaxies stands as a cornerstone in the world of competitive gaming, offering a specialized platform for video game enthusiasts. It serves as the authoritative body for setting rules, verifying achievements, and maintaining a comprehensive database of records and rankings across various electronic gaming platforms. This platform is committed to acknowledging and promoting video game player achievements globally, emphasizing the significance of players’ skills and accomplishments in the gaming community.
[2] This description was not in evidence but it does, although somewhat floridly, reflect the evidence about Twin Galaxies.
Records of video and arcade games scores were also, at the relevant times, published by Guinness World Records, mostly in special “Gamers’ Editions” of its ubiquitous Guinness Book of World Records. It appears that Guinness World Records may take into account Twin Galaxies’ published records in Guinness World Records’ consideration of what records it may recognise and publish itself. Guinness World Records did publish Mr Mitchell’s records referred to above in several editions.
Twin Galaxies makes available on its website a forum for members to discuss matters of relevance to video and arcade gaming. It also has a documented process under which a member[3] may dispute a score that has been recognised (or submitted for recognition) by Twin Galaxies. As I understand the system, other members can then discuss the dispute, including submitting further evidence about it, until ultimately a decision on the dispute is made by Twin Galaxies.
[3]“Member” does not mean shareholder, but someone who has registered with Twin Galaxies to have access and to contribute to its member forums.
One of Twin Galaxies’ rules for the conduct of competitions and the acknowledgement of records in arcade games, including Donkey Kong, was that the gamer use “original unmodified arcade hardware” to play the game.[4]
[4]Twin Galaxies does recognise other records in which arcade games are played on other hardware, including computers, but as separate categories from games played on the original hardware.
In August 2017, a member of Twin Galaxies, Jeremy Young, submitted a dispute against the last three of Mr Mitchell’s historical and then current original arcade Donkey Kong scores referred to above. Mr Young contended that the scores were not achieved on original Donkey Kong hardware, but were generated through the use of software known as MAME.[5]
[5]One witness, David Race, said that means Multiple Arcade Machine Emulator: T5-49.
MAME software was explained by Mr Jobst during the trial in the following way:[6]
So you’ve got the original arcade machines that were produced in the eighties, um, which is called the original hardware. And over the years, people have, ah, sort of, extract – extracted the code from the game so that you could play it on computers. So you don’t actually need to play it on an arcade anymore. You can just, sort of, download the raw code and play it on a computer. So you don’t need to play the actual arcade. But the thing about that is, because computers work differently and they load – graphics load differently, there’s specific signatures that you can see in the way it loads that differ between arcade and MAME. Now, to a lay person who watches arc – you know, the two different – MAME versus arcade, they wouldn’t be able to tell the difference. Um, but if you pause it on the – on certain screen transitions and see how it loads, there’s a very distinct difference. … The only reason it’s a concern is because if you play it on a computer, there are tools available to you that allow you to cheat, which aren’t available to you on arcade.
[6]T4-97 - 98. I do not understand this description to be disputed. Another useful description of MAME software appears on the MAME website: which records that the term MAME is a registered trademark.
At the end of the dispute process, on 12 April 2018 Twin Galaxies announced that it had decided to remove all of Mr Mitchell’s scores and to ban him from participating in its competitive leaderboards.[7] The following day, Guinness World Records announced that, based on Twin Galaxies’ decision, it would also remove all Mr Mitchell’s record scores from its records.[8]
[7]Twin Galaxies’ announcement of the decision is in the trial bundle (exhibit 1) at tab 5 (TB[5]), as well as exhibit 17. The date of the announcement was recorded in exhibit 18.
[8]The text of Guinness World Records’ announcement is set out in exhibit 18.
Thereafter, many people in the online “community” maintained that Mr Mitchell was a cheat. Mr Mitchell commenced proceedings for defamation in the USA against Twin Galaxies, as well as against a number of others. One of these lawsuits was against a young man, Benjamin Smith, who was known online as “Apollo Legend”.[9] He published videos on YouTube about gaming, including a number in which he accused Mr Mitchell of cheating, falsifying his Donkey Kong scores and not using legitimate gaming hardware.[10]
[9]Out of respect for Mr Smith and because he is so widely known as “Apollo Legend”, I propose to refer to him in these reasons by that moniker.
[10]The videos published by Apollo Legend are not in evidence. I take these descriptions from the complaint filed by Mr Mitchell against Apollo Legend in the Circuit Court for the 17th Judicial Circuit in Florida: TB[10].
Mr Mitchell and Apollo Legend settled that proceeding on 22 August 2020.[11] Their agreement provided that Apollo Legend agreed to remove all of his YouTube videos and social media posts that referred to Mr Mitchell, to assign the copyright in those YouTube videos to Mr Mitchell and permanently to cease producing any oral, written or electronic documents or communications that in any way mentioned or referred to Mr Mitchell or his family, apart from an agreed statement in terms provided in the settlement agreement. Any breach by Apollo Legend of the last of these obligations would result in him being liable to Mr Mitchell for US$25,000 in liquidated damages for each breach. Unless he committed such a breach, he did not have to pay Mr Mitchell any money.
[11]The settlement agreement is at TB[12].
Apollo Legend appears to have complied with that agreement. However, on 20 December 2020 he published a video on YouTube (referred to in this proceeding as his “goodbye video”[12]), in which he told viewers that he was recording his final video and “this is the end of my life” and he explained why. Neither in that video nor in the accompanying message did he mention Mr Mitchell, the claim against him or the settlement agreement. Shortly after publishing it, he committed suicide.
[12]TB[13].
On 26 May 2021, Mr Jobst published a YouTube video entitled “The Biggest Conmen in Video Game History Strike Again!”[13] In some detail, he accused Mr Mitchell (and another person, Todd Rogers) of cheating and of pursuing unmerited litigation against people who accused him of cheating. He also said the following about Mr Mitchell:
He also sued YouTuber Apollo Legend for $1,000,000. I haven’t spoken about this publicly but this lawsuit ultimately ended with Apollo giving in and settling with Mitchell. He was forced to remove all his videos about Mitchell’s cheating and paid him a large sum of money. This left him deeply in debt, which required him to find extra work, but with his ongoing health issues this was all too much of a burden and he ultimately took his own life. Not that Billy Mitchell would ever care, though. In fact, when Billy Mitchell thought Apollo died earlier he expressed joy at the thought. The lawsuit against Apollo was just as frivolous as the rest and Apollo definitely would have won in court, but again he was extremely ill and couldn’t handle the ongoing stress.
[13]TB[16]. The passage set out starts at 16:40 and ends at 17:24.
In this proceeding, Mr Mitchell sues Mr Jobst for defamation arising from the publication of that video (in particular, the words set out above, to which I shall refer as the “offending words”).[14] I shall set out and discuss later the specific imputations that Mr Mitchell alleges arise from the publication. For now, it suffices to say that Mr Mitchell does not complain that Mr Jobst called him a cheat. Rather, he alleges to the effect that a reasonable person watching that video would understand the offending words as meaning that Mr Mitchell was a major contributing factor in Apollo Legend’s decision to commit suicide and, in essence, hounded Apollo Legend to death.
[14]As I refer to below, Mr Jobst published the video containing the offending words on two occasions. He also published a version without those words, in between and after those two publications. I propose simply to refer to the two videos containing the offending words in the singular, as the “offending video” or “Mr Jobst’s video.”
Mr Jobst denies that the imputations alleged by Mr Mitchell arise from the video. He also alleges that Mr Mitchell had a settled bad reputation (the details of which I shall set out later) that was not damaged further by the video. He relies, in the alternative to his denial of the imputations alleged by Mr Mitchell, on the defence of contextual truth,[15] contending that the video contained a number of other imputations (including that Mr Mitchell had a reputation as a cheat) that were substantially true and, as a result, his reputation was not further harmed by any of the imputations alleged by Mr Mitchell that the court may find to have been made in the offending video.
[15]Defamation Act 2005, s 26.
Mr Mitchell seeks general damages of $400,000 plus aggravated damages of $50,000.
For the reasons below, I have made the following findings:
(a)Mr Jobst defamed Mr Mitchell by making all the imputations that Mr Mitchell alleged;
(b)Mr Mitchell has suffered significant personal and reputational harm as a consequence;
(c)although he had the previous reputations alleged by Mr Jobst, and the defamatory video raised other substantially true contextual imputations about him, Mr Mitchell suffered substantially more personal and reputational harm as a consequence of Mr Jobst’s imputations about which Mr Mitchell complains;
(d)Mr Jobst’s conduct since the first publication of the video, including during this proceeding, has been aggravating and has caused additional personal hurt and reputational damage to Mr Mitchell.
I therefore award Mr Mitchell $300,000 in general damages for non-economic loss and $50,000 in aggravated damages, plus interest on those sums at 3% per annum since the first publication on 21 May 2021. Subject to any submissions to the contrary, Mr Jobst should pay Mr Mitchell’s costs of this proceeding.
Mr Mitchell and his history
In his evidence, Mr Mitchell described himself in this way:
I’m a business salesman/manufacturer. I also play video games on a professional level at times, and a film personality.
His business is known as Rickey’s World Famous Sauce, manufacturing and selling hot sauce under that name. Apparently it is very successful. Mr Mitchell claimed, in his statement of claim in a proceeding against Twin Galaxies to which I refer below, that, “He painstakingly built the company into a highly-successful business, in part trading on his fame as a video game record-holder.”[16]
[16]TB[8], p 2, [6].
It is necessary briefly to trace Mr Mitchell’s rise to fame, as disclosed in the evidence, given that his reputation, both before and after the publication by Mr Jobst, is one of the principal issues in this proceeding. It is also relevant to the evidence about his reaction to the publication of Mr Jobst’s video.
As I have said in the introduction, Mr Mitchell first rose to prominence in 1982, when he made a world record score in Donkey Kong at an arcade and video gaming convention held by Twin Galaxies. He (and his subsequent rise to fame) was greatly supported by the then owner of Twin Galaxies, Walter Day, who was very impressed by his skill as an arcade gamer and clearly became a good friend.
Over the years since 1982, Mr Mitchell became famous among devotees of arcade and video gaming, due to his skill and success in obtaining high scores, in Donkey Kong in particular but also in Pac-Man. He attended many gaming conventions around the USA where, as well as playing games, he spoke to fans, signed autographs and promoted and sold his company’s hot sauce.
Mr Mitchell’s first world record at Donkey Kong was obtained at a gaming convention. He said that virtually all of his scores were obtained at Twin Galaxies’ premises or at a Twin Galaxies event. His subsequent world records were obtained out of the public glare, with his games recorded on videos that he then submitted to Twin Galaxies for verification. That method – of submitting videos of his games – is common to most gamers, but it seems to have led to the later controversies that arose about his records.
Mr Mitchell gave evidence of a number of tributes, both by awards and in articles in mostly online publications, to his skills in gaming since 1982. It is unnecessary to record them here. It suffices to say that he has been well-recognised over the years as a master player of certain arcade and video games. But is worthwhile quoting from one article, published in 2015,[17] as it demonstrates that his talent and fame were not only about his Donkey Kong scores.
Mitchell is probably the greatest arcade-video-game player of all time. When the Guinness Book of World Records first included a listing for video games in 1985 (discontinued in 1987), Mitchell held the records for Pac-Man, Ms Pac-Man, Donkey Kong, Donkey Kong Jr, Centipede, and Burger Time. In 1999, he achieved the Holy Grail of arcade gaming, executing the first-ever perfect game on Pac-Man. The feat requires navigating 256 boards, or levels, and eating every single possible pellet, fruit, and ghost, for the highest score of 3,333,360, all without dying once.
[17]David Ramsay, “The Perfect Man”, Oxford American, 1 July 2015: exhibit 12.
In addition to his gaming records, Mr Mitchell has been the subject of, or played roles in, a number of films. From the titles listed by him in his evidence, they all appear to be related to video and arcade games. According to Mr Mitchell, the most successful was “King of Kong: A Fistful of Quarters”, which was produced in 2007.[18] It appears to be a documentary, but one might more accurately describe it as a “docu-drama:”[19] some of the scenes appear to be very staged rather than spontaneous, which Mr Mitchell confirmed was the case. The end result of the film is that Mr Mitchell is not portrayed in a good light, but rather as a self-important person who refuses to accept or to acknowledge that others might beat his scores and his records. It also portrays Mr Day and Twin Galaxies, while under his control, as hypocritical and prepared to change the rules for recognition of score records to suit Mr Mitchell.
[18]A copy is exhibit 78.
[19]As one witness, Isaiah Johnson, did: T4-83.
Regardless of his portrayal in the film, it clearly added considerably to Mr Mitchell’s fame in several countries. He said that, before its release, he would have one or two paid appearances a year at gaming conventions, but after the film’s release, that quickly increased to around 10 a year and it grew from then on. In 2015, he attended 15 to 20 events in paid appearances and others unpaid. He was not able to accept all the invitations that he received.
The contested scores
The challenge to Mr Mitchell’s scores
As I outlined in the introduction, by 2010 Mr Mitchell had been recognised by Twin Galaxies and Guinness World Records for three world records in Donkey Kong after his first record in 1982: the first (and the first score of over 1,000,000 points) of 1,047,200 in June 2005, another of 1,050,200 in July 2007 and a third of 1,062,800 in July 2010.
The first of these scores featured in the film “King of Kong,” in which his challenger (Steve Wiebe) is shown as beating Mr Mitchell’s 1982 record and achieving more than 1,000,000 points for the first time by any player. The film records that Mr Mitchell then submitted a video to Twin Galaxies, said by him to have been taken before Mr Wiebe’s performance, which showed Mr Mitchell achieving 1,047,200. Twin Galaxies then recognised it as both the new record score and the first recorded score over 1,000,000.[20]
[20]Whether these events are true or simply a dramatization is not clear to me.
On 28 August 2017,[21] Twin Galaxies member Jeremy Young filed a dispute claim, challenging Mr Mitchell’s records in Donkey Kong. Although I have not seen the claim itself (nor the ensuing thread of contributions to the investigation), in its announcement of its decision, Twin Galaxies relevantly described Mr Young’s assertions:[22]
On 08-28-2017 Twin Galaxies member Jeremy Young (@xelnia) filed a dispute claim assertion against the validity of Billy Mitchell’s historical and current original Donkey Kong score performances of 1,047,200 (the King of Kong ‘tape’), 1,050,200 (the Mortgage Brokers score), and 1,062,800 (the Boomers score) on the technical basis of a demonstrated impossibility of original unmodified Donkey Kong arcade hardware to produce specific board transition images shown in the videotaped recordings of those adjudicated performances.
Jeremy’s assertion concluded that not only can original Donkey Kong arcade hardware not produce the board transition images shown in the recordings, but that these transitions were actually generated through the use of MAME (emulation software).
[21]I take this date from Twin Galaxies’ announcement of the result of its investigation - TB[5] – although in his evidence Mr Mitchell said it happened on 2 February 2018. This date appears to have been when Jeremy Young posted on the website of DonkeyKongForum.com a similar claim to that which he had posted on the Twin Galaxies website in August 2017: TB[9], [10].
[22]TB[5]; also exhibit 17. In this and other quotations in these reasons, I have left spelling and any errors as they were in the originals.
Some more detail appears in the reasons for a decision of the Californian Court of Appeal in subsequent litigation between Mr Mitchell and Twin Galaxies:[23]
Young presented evidence that original Donkey Kong arcade printed circuit board (PCB) hardware draws the Donkey Kong levels frame-by-frame with the first frame drawing ½ portions of five girders, and the rest of the frames filling in those girders. Young presented evidence that the Donkey Kong game on emulation software – that is the game loaded on a computer other than a PCB – similarly draws the game’s levels frame-by-frame, but with the first frame drawing three girders, with one girder having a protruding line which has been nicknamed the “girder finger.”
Young posted screenshots from video footage of the Disputed Scores which showed Donkey Kong levels with three girders in the first frame, with one being the girder finger. There were other unexplained anomalies and artifacts in the footage which led him to believe the games played in the video were inconsistent with original Donkey Kong arcade games.
[23]TB[26], Mitchell v Twin Galaxies, LLC, Court of Appeal of the State of California, Second Appellate District, Division Eight, B308889, 12 October 2021, 4-5.
Twin Galaxies’ findings and consequences
It appears from Twin Galaxies’ announcement that many people contributed to the dispute thread. It recorded that two different third parties conducted their own investigations and came to the same conclusions.
Most notable was the 3rd party (Carlos Pineiro) that Billy Mitchell engaged to help examine the dispute case on his behalf, utilizing whatever original equipment Billy could provide, whose final finding was consistent with Twin Galaxies investigation and others.
Twin Galaxies’ most relevant findings were:
- The taped Donkey Kong score performance of 1,047,200 (the King of Kong “tape”), 1,050,200 (the Mortgage Brokers score) that were historically used by Twin Galaxies to substantiate those scores and place them in the database were not produced by the direct feed output of an original unmodified Donkey Kong Arcade PCB.
- The 1,062,800 (the Boomers score) Donkey Kong performance does not have enough of a body of direct evidence for Twin Galaxies to feel comfortable to make a definitive determination on at this time. …
- While we know for certain that an unmodified original DK arcade PCB did not output the display seen in the videotaped score performances, we cannot definitively conclude that what is on the tapes is MAME. …
With this ruling Twin Galaxies can no longer recognize Billy Mitchell as the 1st million point Donkey Kong record holder. According to our findings, Steve Wiebe would be the official 1st million point record holder.
The consequence announced by Twin Galaxies was:
Based on the complete body of evidence presented in this official dispute thread, Twin Galaxies administrative staff has unanimously decided to remove all of Billy Mitchell’s scores as well as ban him from participating in our competitive leaderboards.
The following day, 13 April 2018, Guinness World Records announced that it had disqualified Mr Mitchell as the holder of all his records (both Donkey Kong and Pac-Man) because Twin Galaxies had removed them from its records and it was Guinness World Records’ source of verification for those scores.
Mr Mitchell said that Twin Galaxies’ decision hurt him for a short time. He could recall one event cancelled his appearance, a couple of others stopped communicating with him, but he also received requests to appear for the first time from other events.
Mr Mitchell said he then took to playing and recording Donkey Kong on live streams through the social media platform Twitch. He played many of those games in public venues. He said he did this to prove that he had the ability and could achieve those scores. He beat each of the scores that had previously been his world records and he said he has done that more than 20 times.
Litigation by Mr Mitchell
The Twin Galaxies decision appears to have led to many people believing that Mr Mitchell had cheated in obtaining his world records in Donkey Kong, by using MAME software instead of original unmodified Donkey Kong hardware.
Several people and companies published allegations to the effect that Mr Mitchell was a cheat. Mr Mitchell commenced legal proceedings against a number of them, although why he elected to sue some and not others is not clear.
Twin Galaxies
His first proceeding was against Twin Galaxies. Mr Mitchell said that, following the publication of its decision, “we” (by whom I infer he meant he and lawyers engaged by him) prepared what he referred to as an evidence package containing eye witness and expert testimony and “all the facts we could put together.”
On 9 September 2019, Mr Mitchell’s lawyers sent a letter to Twin Galaxies and to Guinness World Records,[24] demanding that they both retract their claims against him and restore his records. They attached a link to the “evidence package”, contending that it “proves that the claims of Twin Galaxies and Guinness World Records are false.”
[24]Exhibit 18.
The nature and extent of the evidence package were described in some detail by the Californian Court of Appeal in the reasons for decision to which I have referred above.[25] It is unnecessary to set out those details here.
[25]At [33], footnote 23, at 8-11, 15.
Twin Galaxies’ “outside general counsel” responded to that letter on 27 September 2019, refusing to reinstate Mr Mitchell’s scores and denying (with reasons) that anything said by Twin Galaxies in its announcement of the result of its investigation was defamatory of Mr Mitchell, or that Twin Galaxies would be liable to Mr Mitchell even if anything it had said was prima facie defamatory.[26]
[26]Exhibit 43.
On 11 April 2019, Mr Mitchell commenced a proceeding against Twin Galaxies in the California Superior Court,[27] claiming damages for defamation and “false light.”[28] Mr Mitchell contended that he had undertaken the games on original Donkey Kong PCBs that had been verified by independent engineers, he had done so in front of multiple witnesses and the complaint by Mr Young and Twin Galaxies’ investigation were biased and inadequate, so Twin Galaxies published its assertions maliciously.
[27]TB[8].
[28]False light was described by the Court of Appeal in its decision referred to above, citing an earlier decision: “False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” TB[26], 14.
That proceeding lasted for some time and many pre-trial steps were taken, including Mr Mitchell giving deposition evidence (where he was cross-examined by lawyers for Twin Galaxies).
The proceeding settled in January 2024. In accordance with that settlement, on 16 January 2024 Twin Galaxies published a statement on its website,[29] in which it said that:
(a)Mr Mitchell had produced expert opinion that the game play on the tapes of Mr Mitchell’s record game plays could depict play on original unmodified Donkey Kong arcade hardware if the hardware involved was malfunctioning, likely due to degradation of components; and
(b)Twin Galaxies noted that opinion and consequently would reinstate all of Mr Mitchell’s scores as part of the official historical database on its website and would permanently archive and remove from public display the dispute thread concerning Mr Mitchell’s records.
[29]Exhibit 37.
Twin Galaxies took the latter steps. Mr Mitchell said that, in fact, Twin Galaxies had not previously had an historical database but wanted to create one rather than restore his records to the competitive leaderboard, to which Mr Mitchell had agreed.[30]
[30]T1-95.
Mr Mitchell also commenced a proceeding against Twin Galaxies in the Circuit Court of the 17th Judicial Circuit of Florida, in which the complaint was filed on 13 May 2020.[31] The allegations in that proceeding were identical to those in the Californian proceeding. However, Mr Mitchell said, in his evidence, that he commenced that proceeding simply to preserve a limitation period in Florida as, at that stage, he and his lawyers were uncertain whether the Californian court would accept jurisdiction. The complaint was never served on Twin Galaxies and eventually expired.[32]
[31]TB[11]. Although the complaint was dated 12 April 2020 at its end, it is stamped as having been e‑filed on 13 May 2020.
[32]T1-69, understood in the light of similar evidence concerning the litigation against the Donkey Kong Forum referred to below.
Donkey Kong Forum, Jeff Harrist, Jeremy Young
On 3 February 2020, Mr Mitchell commenced a proceeding in the Circuit Court of the 17th Judicial Circuit of Florida, naming the defendants as Donkey Kong Forum.Com, Jeff Harrist and Jeremy Young, seeking damages for defamation.[33] In the complaint, he described the defendants in this manner:
Donkey Kong Forum, a website media outlet organized under laws governing corporate entities for the State of Alaska.
Jeff Harrist is an individual who owns the website domain name DonkeyKongForum.com.
Jeremy Young is an individual who serves as a moderator, using the online username “Xelnia”, for the DonkeyKongForum.com website.
[33]TB[9].
The complaint concerned allegations that, on 2 February 2018, Mr Young posted a claim on Donkey Kong Forum that Mr Mitchell had cheated and falsified his scores on Donkey Kong by using MAME and, on 12 April 2018, Mr Young was quoted in an online article in which he had used the word “cheater” to refer to Mr Mitchell and had stated that Twin Galaxies was built on a foundation of video game high scores and, with another cheater removed, that foundation grew more solid.
Mr Mitchell said, in his evidence, that he also commenced that proceeding simply to preserve a limitation period in Florida as, at that stage, he and his lawyers were uncertain whether the Californian court would accept jurisdiction. The complaint was never served on the defendants and it eventually expired because, Mr Mitchell said, they decided to proceed in California.[34] However, there is no evidence of such a proceeding ever having been commenced. One witness said that the Florida proceeding was dismissed almost two years later for failure to prosecute, but the source of that belief was not stated.[35] Mr Young himself simply agreed that it was never served on him.[36]
[34]T1-68.
[35]David Race, T5-53.
[36]T6-64.
Guinness World Records
I have already referred to the letter that Mr Mitchell’s lawyers sent to Twin Galaxies and Guinness World Records on 9 September 2019.[37] In that letter, the writer quoted the text of an announcement that had been made by Guinness World Records on 13 April 2018, that it had “disqualified” Mr Mitchell’s highest scores on Donkey Kong and on Pac-Man and removed them from its records because of Twin Galaxies’ action in removing Mr Mitchell’s scores. Guinness World Records said that it had done so because Twin Galaxies was the source of verification for all those scores.
[37]Exhibit 18.
It appears that Mr Mitchell did not commence any court proceedings against Guinness World Records. Mr Mitchell’s son (Mr Mitchell Jnr), who also gave evidence, said that his father threatened to sue it if it did not reinstate his scores. It was put to him that the threat ended with it reinstating his scores, although he did not appear to accept that the threat of litigation was Guinness World Records’ reason for reinstating the scores.
In any event, on 17 June 2020, Guinness World Records announced that it had reinstated Mr Mitchell’s scores after “a re-examination of the records in question and the emergence of key eye witness and expert testimonials.”[38]
[38]Exhibit 24.
I am satisfied that Mr Mitchell did not sue Guinness World Records.
David Race
Mr Mitchell described David Race as a competitive video game player. Mr Race himself gave evidence and said that he has a few world records on classic arcade games such as various versions of Pac-Man.
Mr Mitchell sued Mr Race in Florida, in a proceeding commenced on 8 April 2021[39] and amended on 11 April 2022.[40] Mr Mitchell claimed that, unknown to him, Mr Race had recorded 27 telephone conversations between them and had provided the recordings and transcripts of them to Twin Galaxies for use by it in its defence of Mr Mitchell’s claim against it. Mr Mitchell claimed that, in recording those conversations without his knowledge or consent, Mr Race had breached a Florida statute that made it illegal to record any conversation without the consent of all parties. He claimed a statutory entitlement to an award of damages for those breaches.
[39]TB[14].
[40]Exhibit 22.
What is clear from Mr Race’s evidence, is that he feels that Mr Mitchell deceived him and used him to defend Mr Mitchell against the allegations of cheating and then, since Mr Race changed his mind and decided that Mr Mitchell had cheated, Mr Mitchell has victimised him.
What happened to that litigation did not appear in the evidence. However, while not relevant to this proceeding it is of some interest to record that, since the trial in this proceeding finished, I have become aware of two decisions in the United States concerning Mr Mitchell’s claim against Mr Race. In the first, in the District Court of Appeal of Florida (Fourth District),[41] Mr Race successfully appealed from a decision of the Circuit Court which had refused his motion to dismiss Mr Mitchell’s proceeding against him for lack of personal jurisdiction. The Court of Appeal allowed his appeal and remitted the proceeding to the Circuit Court with a direction to enter an order dismissing the case for lack of jurisdiction. Mr Mitchell sought a review of that decision in the Supreme Court of Florida, which dismissed his proceeding for review in November 2024.[42]
[41]Race v Mitchell, 357 So 3d 720 (2023).
[42]Mitchell v Race, unreported, Supreme Court of Florida No SC2023-0432, 7 November 2024.
Benjamin Smith – “Apollo Legend”
As I said in the introduction, Benjamin Smith was a young man who published videos about gaming on his own YouTube channel, under the assumed name of “Apollo Legend.”
On 17 February 2018, he posted a video on YouTube, called “The World’s Most Infamous Donkey Kong Player Caught Cheating.”[43] It appears to be uncontroversial in this proceeding that, in that video, he accused Mr Mitchell of cheating and falsifying his scores on Donkey Kong by using MAME instead of original Donkey Kong hardware.[44] Mr Mitchell said that Apollo Legend also said that Mr Mitchell “owned” Twin Galaxies, financially supported it and bullied the referees.[45]
[43]T3-13. The video itself is not in evidence, so I have not seen it.
[44]I take this and following descriptions from Mr Mitchell’s claim against Apollo Legend - TB[10] and the later settlement agreement between them – TB[12].
[45]T1-56.
Subsequently, Apollo Legend published the following additional videos on his YouTube channel:
(a)on 13 September 2019, a video entitled “Disgraced Gaming Legend Threatens Lawsuit!” in which he also accused Mr Mitchell of cheating and falsifying his Donkey Kong scores;
(b)on 27 September 2019, a video entitled “The Greatest Hoax in Gaming History,” in which he claimed that Mr Mitchell had falsely claimed to be the first person to achieve a perfect score in Pac-Man; and
(c)on 1 October 2019, a video entitled “Arcade Cheater Files Fraudulent Copyright Claims,” in which he said that Mr Mitchell did “stupid stuff” by not acknowledging that he submitted bogus scores and by threatening lawsuits and he accused Mr Mitchell of filing fraudulent copyright claims to have videos removed from YouTube.
On 14 February 2020, Mr Mitchell filed, in the Circuit Court in Florida, a complaint against Apollo Legend claiming damages for defamation arising from those videos. The amount of damages he claimed was not stated in the claim.
Apollo Legend subsequently published two more videos about Mr Mitchell on his YouTube channel:[46]
(a)on 10 May 2020, a video entitled “Angry Cheater Sues Me for $1,000,000;” and
(b)on 13 May 2020, a video entitled “Billy Mitchell Won’t Be Sued (For Now).”
[46]Again, these videos are not in evidence. They are referred to in the settlement agreement between Mr Mitchell and Apollo Legend.
Mr Mitchell said that the complaint was served on Apollo Legend, who later contacted Mr Mitchell’s son through an intermediary, eventually resulting in a settlement agreement between them dated 22 August 2020. Under that agreement,[47] Apollo Legend agreed to remove the six videos from YouTube and any other public or private forum, to assign copyright in the videos to Mr Mitchell, never again to publish (without Mr Mitchell’s consent) anything referring to Mr Mitchell or his family, or to Mr Mitchell’s scores and records in video games, nor to disparage Mr Mitchell, his family or (in essence) anyone associated with Mr Mitchell. Apollo Legend agreed that, if he breached any of those terms, he would pay Mr Mitchell liquidated damages of US$25,000 for each breach. The parties agreed that Apollo Legend could publish a statement about the settlement in agreed terms. They agreed that Mr Mitchell’s proceeding against Apollo Legend would be dismissed by consent and each released the other from any claims. The terms of the agreement were to be confidential.
[47]TB[12].
To be clear, the agreement did not require Apollo Legend to pay any money to Mr Mitchell unless he breached his non-publication obligations.
Apollo Legend published the agreed statement on his YouTube channel on 22 August 2020. Its terms are relevant to some of the issues in this proceeding, so it is necessary to reproduce it in full:
Today, I made the decision to remove many videos from my YouTube channel. I did this to fulfil an agreement I have reached with Billy Mitchell but also because I thought it was the right thing to do. I have also taken the opportunity to remove a few additional videos that have nothing to do with Billy Mitchell. This has nothing to do with our agreement, I deleted them due to the rapidly changing nature of YouTube.
For your own protection, I ask that you not republish any of the videos I produced about Billy. As part of our agreement, I have given Billy ownership of these videos. This means he has the ability to remove these videos if they are republished to YouTube or any other public space.
Billy and I agree it is in our best interest to make a deal and move on so that’s what we are doing. I will no longer discuss this topic either publicly or privately. If you ask, I will just send you this post. I’m sure many of you will be disappointed with this decision but I believe as the months pass you will understand why I did this.
It is also relevant to note that the first comment recorded on Apollo Legend’s channel in response to his statement was by Mr Jobst, saying, “Dont worry guys. I will never back down.”[48]
[48]Exhibit 20.
Apollo Legend’s last actions
On 30 December 2020, Apollo Legend published a video on one of his YouTube channels,[49] in which he said it was his final video and “this is the end of my life.” He discussed his physical and mental health problems. He did not mention Mr Mitchell or their settlement in the video and he said, “This doesn’t have to do with anyone really.” The only debts he mentioned were “unpaid taxes.”
[49]TB[13].
Apollo Legend also posted a message,[50] in which he went into further details about his childhood and his health issues, as well as criticising the “speedrun community” as hypocrites. Notably, he started by thanking “Dark Viper and EZScape for giving me the final push that I needed.” One might think he is identifying the people using those monikers as having in some way contributed to his decision to commit suicide. Again, he did not mention Mr Mitchell, nor any consequences of their settlement.
[50]Exhibit 21. Mr Mitchell Jnr identified this as being in the description of the video: T3-81.
Later that day, Apollo Legend committed suicide.
Mr Jobst
A little about Mr Jobst
I have briefly described Mr Jobst and his activities in the introduction. Mr Jobst could not be described as a shrinking violet, nor as having any concept of tact or diplomacy. Both in his YouTube videos that were played to the court and in giving his evidence, he was self-confident, forthright in expressing his views and he struck me as very hard to dissuade from a view (whether an opinion or as to the existence of a fact) once he had formed it. These character traits are clear in his videos, on occasions when he has been interviewed by other online producers and in his demeanour and evidence in the witness box.
Mr Jobst also has a self-aggrandising and perhaps self-protective tendency not to admit error and not to back down once he has taken a stance. This trait was clear from a number of things arising during the evidence. I have already mentioned one: his response to Apollo Legend’s announcement of his settlement with Mr Mitchell: “Dont (sic) worry guys. I will never back down.” He also demonstrated that trait in his videos about Mr Mitchell, continually calling him a cheat and asserting that his legal proceedings against others (and against Mr Jobst, in this proceeding) were frivolous, bullying and bound to be lost by Mr Mitchell.
Earlier and later publications by Mr Jobst about Mr Mitchell
Mr Jobst did not engage with the topics of video game records and cheaters until late 2018. He did not produce any YouTube videos concerning Mr Mitchell until late 2019. Since then, however, he has produced and published quite a number of videos about Mr Mitchell. While most of the videos themselves are not in evidence, there is evidence that Mr Jobst has posted at least 19 videos that substantially or principally concerned Mr Mitchell and in which Mr Mitchell is shown in the “thumbnail” of the video.[51] Additionally, the first in which he mentioned Mr Mitchell was a video about Guinness World Records’ reinstatement of his records, on or shortly after 18 June 2020,[52] although Mr Mitchell was not shown in the thumbnail to that video.[53] Mr Jobst agreed that he would put an image of Mr Mitchell in a thumbnail to a video when he wanted people to know that the video was about Mr Mitchell.[54]
[51]A thumbnail is a small picture, apparently taken from the video and often over-written with words, that appears to indicate the subject matter of the video. 19 thumbnails are shown in exhibit 68, including for the video the subject of this proceeding. Those videos appear to have been produced between May 2021 and May 2024 (10 of them in 2023). In addition is the video, subsequently taken down, in which Mr Jobst apparently criticised Guinness World Records for reinstating Mr Mitchell’s records.
[52]T5-21.
[53]T5-39.
[54]T5-39.
Mr Jobst said, in his evidence, that he posted so many videos about Mr Mitchell because his litigation against other people was newsworthy and he commenced “so much litigation against other people,” particularly video game players (and Mr Jobst’s YouTube channel is about video games and gaming record holders).[55] Mr Jobst insisted that the subject matters of the video were Mr Mitchell’s litigation against others (and against Mr Jobst, once this proceeding was commenced) rather than Mr Mitchell’s alleged cheating itself. That evidence is supported by the titles and thumbnails of the video themselves (and their contents, to the extent that they were shown in the evidence).
[55]T5-6 – 7.
The publications
I turn now to consider Mr Jobst’s publications the subject of Mr Mitchell’s claim. It is necessary to consider, in chronological order, when he published each version of the video, with and without the offending words, and in the context of what he apparently knew or believed were the facts about the matters discussed in each version. It is also necessary to consider the offending words in their context within the overall video and having regard to the manner in which they were published: that is, in a video (rather than, for example, in writing) in which not only the words were spoken but, at the same time, screenshots relevant to the words were shown. The overall contents of the video also forms part of the context of the offending words and potentially could affect their meanings.
Mr de Waard of counsel, who appeared for Mr Jobst, submitted that the following factors are relevant to the context of the offending words:
(a)the video is over 20 minutes long;
(b)it relates equally to Mr Rogers and Mr Mitchell and to allegations that they are conmen and cheats who bully and sue people to get their fake records recognised;
(c)the title refers to conmen, not just to Mr Mitchell, and it does not identify him (although clearly the thumbnail accompanying the title did identify him);
(d)in addition to the spoken words, the video showed photographs or footage that corresponded with the topic or person being discussed in the voiceover, including some that were humorous and made fun of Mr Mitchell in a form of satire;
(e)the video included the written words of Apollo Legend’s statement in settlement of Mr Mitchell’s case against him; and
(f)the offending words take up about 30 seconds approximately 17 minutes into the 20 minute video.
I agree with those descriptions. They are certainly relevant to the context and import of the offending words. But those facts do not necessarily detract from the meanings of the offending words and the effects they may have had.
I shall now describe chronologically and in some detail each of the versions of the video posted by Mr Jobst on his YouTube channel.
The first version (the first publication) – 26 May 2021
The first version was published on Mr Jobst’s YouTube channel on 26 May 2021. The entire video is just under 20 minutes long. It concerns alleged cheating and litigation by both Mr Mitchell and another video gamer, Todd Rogers. The thumbnail of the video is shown below:
Mr Jobst’s introductory comments and the substantive part concerning Mr Mitchell constitute about half of the video.
In his introduction (lasting one minute), while referring briefly to Mr Rogers, Mr Jobst mostly discussed Mr Mitchell (from 00:12 to 01:03). He commenced by saying (at 00:12):
By now, you’re almost certainly all familiar with Billy Mitchell, the disgraced Donkey Kong player and star of King of Kong who was exposed as cheating in many of his records.
He went on, among other introductory comments, to say, “The man is trying to ruin lives and I’m now of the opinion he is legitimately evil and hopefully something can be done to stop him soon” (00:55). In the section about Mr Rogers (which began at 01:04), Mr Jobst made some comments comparing him with Mr Mitchell, such as, “Rogers never appeared to be as villainous as Mitchell” (01:50) and “[Rogers] wants to prove to the world that he is just as big a scumbag as Mitchell” (02:00).
The section devoted to Mr Mitchell starts at 11:19. The bulk of it concerns the background to litigation then recently commenced by Mr Mitchell against David Race, which I have briefly described above. He went on (at 16:01) to “do a quick rundown of all of the current legal action Mitchell is taking,” referring to his proceedings against Twin Galaxies in California (alleging that he was suing for $1,000,000) and in Florida (allegedly for $10,000,000), against Jeremy Young (allegedly for $1,000,000), against Donkey Kong Forum and Jeff Harrist (allegedly for $2,000,000) and against Apollo Legend (allegedly for $1,000,000). The offending words were at 16:40-17:24. While he related the offending words, he showed an image of Apollo Legend in his goodbye video, some of Mr Mitchell’s earlier text messages about Apollo Legend’s suspected death and an extract from Mr Mitchell’s court proceeding against Apollo Legend. He went on to say that Mr Mitchell had threatened to sue Mr Jobst himself and was trying to extort Mr Jobst for $150,000.
In his evidence, Mr Jobst was asked about his basis for stating that Apollo Legend had paid Mr Mitchell a large sum of money. Apart from Apollo Legend’s public statement about his settlement with Mr Mitchell, Mr Jobst said he was also aware of a post on Reddit that had been made several days before the settlement became public, in which the person posting said something to the effect, “Karl’s playing a dangerous game. Billy forced Apollo Legend to settle and pay him money.”[56]
[56]T4-103. At T5-105, he said he thought the sum of $50,000 was mentioned. The Reddit post is not in evidence, nor is the identity of the person who made the post, although Mr Jobst said (T4-104) it (or a subsequent message to him about it) was by “Ersatz Katz,” whoever that is. I should note that counsel for Mr Jobst did attempt to tender the post, or the message, from Ersatz Katz, but I refused to allow its tender on the basis that, on the pleadings, Mr Jobst was deemed to have admitted the allegation in paragraph 16(a)(i) of the statement of claim that he had published the offending words on each occasion with reckless indifference, manifested by his failure to make any or any proper pre-publication enquiry as to the true position: T4-104 – 107.
It is apposite at this stage to set out the evidence about Reddit. Relatively early in the trial, Mr Mitchell referred to Reddit and I, revealing my ignorance about such sites on the internet, asked what is Reddit. Mr Mitchell’s description was:[57]
Reddit is an anonymous – you can put your name, but almost no one does. But an anonymous forum where you can go on and talk about anything – literally anything. And you’re right, I think it’s popular in the US and not so much here. But, um, very rarely do you see a comment on Reddit that – that someone puts their name. It just always says “anonymous”. And, ah, it’s the last place you would ever look for news.
[57]T1-61.
Mr Jobst said that Reddit is popular in the video game industry as a source of news.[58] He said that it can be a reliable source of information, but it depends on who posts something or if the source of a fact is disclosed.[59]
[58]T4-100 – 101.
[59]T5-87 – 88.
Mr Mitchell said that he first saw the video on 28 May 2021. I shall deal later with his reaction to it. One thing he did was to have his son call a YouTuber, Daniel Keem, known online as “Keemstar,” who was personally known to him and to Mr Jobst, and to ask him to contact Mr Jobst to tell him that what he had said in the video was wrong. Mr Mitchell Jnr did that and Mr Keem agreed to contact Mr Jobst for that purpose. I shall come later to the evidence of their communications.
Mr Mitchell’s response video – 3 June 2021
On 3 June 2021, Mr Mitchell Jnr suggested to Mr Mitchell that he post online a video that responded to Mr Jobst’s claims. Together they drafted what Mr Mitchell should say and recorded the video, titled, “Response to Karl Jobst Regarding Apollo Legend.”[60] Mr Mitchell Jnr said that he uploaded the video at about 2.00am on 4 June 2021,[61] after first checking whether the offending words were still in Mr Jobst’s video (which they were). When he woke up the next morning, he checked again and saw that they were no longer in the online video.[62] He said later that, if the words had been edited out before he had uploaded the response video, he would not have posted the latter.[63]
[60]TB[18]. It was referred to at trial as the “response video.”
[61]United States eastern summer time, 14 hours behind Australian eastern standard time, so it was then 4.00pm on 4 June in eastern Australia.
[62]T3-96.
[63]T4-47.
In this video (in summary), Mr Mitchell played the offending words from Mr Jobst’s video. He vehemently denied that he had been paid anything by Apollo Legend or that he had had any involvement with Apollo Legend that had led him to commit suicide. He asserted that Mr Jobst had effectively accused him of murder. He said that the terms of settlement did not involve any payment and that Apollo Legend had made it clear, even before settlement, that although the litigation had raised his stress levels, he had a lot else going on and, in his final video, he did not mention Mr Mitchell or the litigation at all as a factor in his decision. Mr Mitchell ended the video by saying that he had been going to ignore Mr Jobst for ever, but he could not ignore these allegations. He concluded, “I plan to respond the way that everybody anticipates for me to respond. And Karl, expect me.”
This video has remained on Mr Mitchell’s site since then. Mr Mitchell Jnr said they left it there because it shows that Mr Jobst’s claim that had been “put out and circulated” is false.
The second version of the video – 4 June 2021
On 4 June 2021, Mr Keem contacted Mr Jobst by Twitter, saying, “Hey gotta speak to you about Apollo & Billy Mitchell stuff” and asking for his telephone number. Mr Jobst told the court that he provided that number and Mr Keem then called him, telling him that Mr Mitchell was unhappy about the assertion that Apollo Legend had paid him money in settlement because it was not true. Mr Jobst told Mr Keem that he would remove that part of the video and investigate further, by contacting Apollo Legend’s brother to check if it was correct. He told Mr Keem that, if it was incorrect, he would make a public statement and, if he did not hear anything back, he would leave out the words.
Having received the telephone call from Mr Keem, Mr Jobst altered the video on 4 June 2021,[64] to remove the following words:
I haven’t spoken about this publicly but this lawsuit ultimately ended with Apollo giving in and settling with Mitchell. He was forced to remove all his videos about Mitchell’s cheating and paid him a large sum of money. This left him deeply in debt, which required him to find extra work, but with his ongoing health issues this was all too much of a burden and he ultimately took his own life. Not that Billy Mitchell would ever care, though. In fact, when Billy Mitchell thought Apollo died earlier he expressed joy at the thought.
[64]The altered version is at TB[17].
Having done so, he sent a message to Mr Keem,[65] saying:
I have edited out that section, will take a few hours, this is based on your word. I will be confirming from his brother also, if his brother backs up this, or mitchell provides any concrete evidence I was wrong, I will make a statement about it if I have nothing concrete I’ll just leave the video as edited out and won’t mention it anywhere.
[65]Exhibit 61; sent at 4.36pm AEST.
Apparently he removed that part of the video before he saw Mr Mitchell’s response video. When he saw it later that day, in response Mr Jobst published a Tweet[66] in which he said:
So @BillyPacman claims he will sue me for saying Apollo Legend paid him money. I removed that portion from my video, not because it is wrong, but because this isnt the issue I want to go to court over. Id rather he sue me over his fake donkey kong scores.
[66]TB[19].
On the same day, Mr Jobst emailed Apollo Legend’s brother, Jesse Gravelle, relevantly saying:[67]
Hope you are well. Just letting you know the footage of Ben has been removed from my video.
I was hoping you wouldn’t mind confirming something from me. In the video I mentioned that as part of Ben’s settlement with Billy he was required to pay money. I received this information from a few sources but not from Ben directly.
Billy is threatening to sue me about this, claiming that I provided wrong information. I really don’t want to ever give out the wrong information. Do you know if money was exchanged?
[67]Exhibit 59.
The third version (republication) – 9 June 2021
On 6 June 2021, Mr Jobst posted a comment on his YouTube channel, in apparent response to a comment asking if the mention of Apollo Legend’s suicide had been cut from the video. Mr Jobst said:[68]
Yes I removed it. Not because I dont believe anything that was said, but because Billy wants to sue me for it. And that particular segment isnt worth going to court over.
[68]TB[23], line 7307. The comment to which he was responding appears to be at line 7303.
On 7 June 2021, Mr Mitchell’s Australian solicitors sent a concerns notice to Mr Jobst about the original video.[69] Mr Jobst’s reaction was to post this Tweet:[70]
Billy Mitchell’s lawyer has contacted me. This is very exciting lol. We go to war soon. This will be an amazing experience, cant wait to share it with you all.
[69]TB[20]. Defamation Act 2005, s 14.
[70]Exhibit 34.
Despite Mr Jobst’s statement to Mr Keem that, if he did not hear anything back from Apollo Legend’s brother or if he had nothing concrete, he would leave out the words concerning the alleged payment by Apollo Legend to Mr Mitchell, on 9 June 2021 Mr Jobst again altered the video, reinstating the original version on his channel.
The fourth version – 13 June 2021
On 13 June 2021, Apollo Legend’s brother, Jesse Gravelle, sent Mr Jobst an email responding to his email of 4 June. Mr Gravelle said that, from what he could tell, Apollo Legend had not paid Mr Mitchell any money.[71] Consequently, on the same day Mr Jobst again edited the video to remove the following words:[72]
He was forced to remove all his videos about Mitchell’s cheating and paid him a large sum of money. This left him deeply in debt, which required him to find extra work, but with his ongoing health issues this was all too much of a burden and he ultimately took his own life. Not that Billy Mitchell would ever care, though. In fact, when Billy Mitchell thought Apollo died earlier he expressed joy at the thought.
[71]Exhibit 60.
[72]TB[22].
The balance of the video remained online at all relevant times after then. The section concerning Apollo Legend has, since then, comprised:
He also sued YouTuber Apollo Legend for $1,000,000. I haven’t spoken about this publicly but this lawsuit ultimately ended with Apollo giving in and settling with Mitchell. The lawsuit against Apollo was just as frivolous as the rest and Apollo definitely would have won in court, but again he was extremely ill and couldn’t handle the ongoing stress.
Mr Jobst’s “retraction video” – 29 July 2021
As I have recorded above, in his discussion with Mr Keem, Mr Jobst said that, if what he had said in the first publication was incorrect, he would make a public statement.
On 29 July 2021, Mr Jobst uploaded a video to his YouTube channel entitled “The Greatest Feat in Video Game History.”[73] This video was, in total, a little over 30 minutes long. For the first 28 minutes and 24 seconds, it had nothing to do with arcade gaming, cheating or Mr Mitchell. Rather, it was about a particular type of gaming called “no hit” and the achievements of a particular gamer in that genre. The thumbnail for the video showed a still from the relevant game over-written with the words “DARK SOULS NO HIT.”
[73]TB[25].
When Mr Jobst had finished with that topic, the screen went black for about three seconds. It then played a portion of some other game, while Mr Jobst said:
Now, before I finish the video, I would like to take this opportunity to correct something that I said in a previous video.
Commencing at 28:30, the video showed the opening screen from the “Biggest Conmen” video, showing Mr Mitchell’s and Mr Rogers’ heads and then as background showed excerpts from that video and others (including Mr Mitchell’s video of 4 June) while Mr Jobst spoke. It is relevant to set out all that he said.
Back in May I talked about the new lawsuits filed by Todd Rogers and Billy Mitchell. In that video I made the claim that Apollo Legend paid money to Billy Mitchell as part of their settlement. I would never make such a claim unless I had very good evidence to support my position.
In response to this, Billy Mitchell released a video accusing me of lying and claimed that no money was exchanged. He didn’t provide any evidence to back up this claim, nor did he attempt to get in contact with me to clear up any misinformation I may have had.
However, I did investigate further as I would never want to provide false information to my viewers. I reached out to a member of Apollo’s family who graciously agreed to clarify some details. According to them, despite Mitchell's best efforts, Apollo Legend would not pay any money and in the final version of the settlement there was no clause indicating that he was required to do so. Therefore, the statement I made in that video was almost certainly incorrect. I sincerely apologise for providing false information and no matter what kind of relationship I have with Mitchell, I do not believe that it is ever justified to lie or mislead.
Mitchell also claimed that I was accusing him of murder. This is certainly not the case. I do have my opinion regarding the impact of the settlement on Apollo’s decision, but ultimately it was no-one’s responsibility but his own. The only reason I mentioned it in that video was because I felt like it was important to let you know what happened and as I know many of you enjoy his videos.
This became known as the “retraction video” in the course of this proceeding.
The extent of the publications
The parties’ contentions
Mr Mitchell claims that the video containing the offending words was published online on two separate occasions, for both of which he claims damages. He pleads and submits that the video was available online and downloaded or viewed (and therefore published) and comprehended:[74]
(a)first, from 26 May to 4 June 2021 (10 days), by at least 519,800 individuals across the world, including at least 21,311 individuals in Australia, including in Queensland; and
(b)secondly, from 9 June to 13 June 2021 (5 days), by at least another 7,500 individuals worldwide, including at least 248 individuals in Australia.
[74]Second amended statement of claim, [4AA] and [7A].
Mr Jobst submits that Mr Mitchell has not proved where, nor how often, nor by how many people or whom, the offending words themselves have been watched and heard. He submits that, even if the court finds that the video was downloaded by some people, that does not adequately prove that any person actually heard the offending words, which appeared near the end of a 20 minute video. A person who downloaded the video may not have actually watched it through to completion, or even at all. Therefore, he contends, Mr Mitchell has not proved publication of the video containing the offending words.
What constitutes publication?
Where allegedly defamatory material is uploaded to the internet, the act of uploading itself does not constitute “publication” of the material. Publication is a bilateral act, in which the publisher makes the material available and another person takes the necessary steps to comprehend the material. In the context of publication on the internet, ordinarily publication comprises someone “downloading” the material from the internet and reading or watching the material using the recipient’s computer. It is only when the material is downloaded in comprehensible form and read or (in the case of a video) watched and heard that it is published by the person who made the material available on the internet by uploading it. The corollary is that such material is published on each separate occasion that a person downloads and reads or watches and hears it and it is published where the person who downloads it is located. If the plaintiff then has a reputation in the place where the publication occurs and the reputation is damaged in that place by that publication, then the person who published it has committed the tort of defamation in that location.[75]
[75]Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575, [26], [44].
The mere fact of posting material online does not lead to an inference that it has been downloaded. But it is not necessary, in order to prove publication of a defamatory video that was placed online by the defendant, for a plaintiff to call evidence from particular individuals to the effect that they downloaded, watched and understood the video. Publication, in the legal sense, may be established by pleading and proving a “platform of facts” from which an inference that material has been downloaded and viewed can properly be drawn. An inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of “hits” on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet.[76] In one case, screenshots of the defendant’s YouTube posts were relied on by the parties and accepted by the judge as accurately demonstrating the number of times the allegedly defamatory videos had been viewed as at the date of the screenshots and therefore as evidence of the fact that the video about which complaints were made had been downloaded and comprehended by third parties.[77] In another case, Bradley J expressed the view that tendered copies of 10 Facebook posts the subject of the defamation allegations before him, together with the surrounding “comments”, “likes” and “shares”, were evidence, or at least evidence from which it could be inferred, that each of the posts had been downloaded and read. His Honour was also satisfied that the defamatory posts, which had been effectively made available to anyone in the world with access to the internet and a Facebook application, had been published or republished to some thousands of readers.[78]
[76]Sims v Jooste (No 2) [2016] WASCA 83, [18]-[20]; Bolton v Stoltenberg (2018) Aust Torts Reports 82-417, [187]; affirmed Stoltenberg v Bolton (2020) 380 ALR 145, [28].
[77]Scali v Scali [2015] SADC 172, [23]; referred to by the New South Wales Court of Appeal in Stoltenberg v Bolton, [19], as an example of the inference of publication. However, the parties in Scali had agreed that the number of views shown was accurate, which is not the case here. Nor was there any submission, as there is here, to the effect that downloading a video does not prove that the relevant part of the video was watched and understood.
[78]O’Reilly v Edgar [2019] QSC 24, [28], [206]. See also Barilaro v Google LLC [2022] FCA 650, [260].
The effects of these amendments, insofar as they affect aggravated damages, appears to be that:
(a)aggravated damages are now a separate category of damages from general damages, whereas formerly they were a component of general damages; and
(b)aggravated damages are not subject to the scale and cap on general damages imposed under subsection (1).
Professor Rolph has recently expressed the view that subsection (2A):[332]
appears to mandate a more restrictive approach to aggravated damages than that at common law, which can take into account any factors from the time of publication down to the date of judgment, such as the conduct of the defamation trial itself. Thus far, courts have held that, so long as the statutory cap has not been exceeded, the full range of relevant factors can be considered when assessing damages under the national, uniform defamation laws. It will only be when a court proposes to award aggravated damages in excess of the statutory cap that this restriction may be enlivened.
[332]D Rolph, Rolph on Defamation (Lawbook Co, 2nd ed, 2024), 500, [16.240].
However, with respect, his opinion, although referring to subsection (2A), appears to be based on the pre-amendment version of subsection (2).[333] Although referring to subsection (2A) in Queensland and other States that have legislated the amendments, he records that “aggravated damages may be awarded if the court is satisfied that they are warranted in ‘the circumstances of publication.’” Subsection (2A), though, in Queensland and most other States, no longer restricts the relevant factors to “the circumstances of publication,” but now only refers to “the circumstances.” In any event, in Rayney v State of Western Australia(No 9),[334] Chaney J held that the reference to the “circumstances of publication” did not imply a temporal limit on the circumstances to be considered, but referred to circumstances in which, at common law, aggravated damages might be awarded. That appears to have been confirmed by amended wording in subsection (2A).
[333]Which remains the law in some jurisdictions but not in Queensland or New South Wales.
[334][2017] WASC 367, [856]. In doing so, his Honour agreed with that construction given to the subsection by Newnes J in Forrest v Askew [2007] WASC 161, [71].
Therefore, there being no legislative restriction on the circumstances which the court may take into account in considering whether aggravated damages are appropriate, the common law factors remain relevant.
Accordingly, I do not consider that these amendments have effected any real change to the factors relevant to the determination of aggravated damages. I am fortified in this conclusion by decisions of other courts that have briefly discussed the relatively new provisions.[335]
[335]Doak v Birks [2022] NSWDC 625, [116] – [118] (Gibson DCJ); Greenwich v Latham [2024] FCA 1050, [264] – [266] (O’Callaghan J).
It is therefore necessary to consider, separately from general damages, what if any factors may justify an award of aggravated damages in this case.
Speaking generally, damages may be increased if there is “a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”[336] and if the plaintiff is aware of that conduct, which increases his personal hurt and distress or the damage to his reputation. Relevant aggravating conduct can occur at any time up to judgment in the proceeding.
[336]Triggell v Pheeney (1951) 82 CLR 497, 514.
In this case, Mr Mitchell contends that a number of aspects in Mr Jobst’s conduct lacked bona fides and were improper and unjustifiable, aggravating the personal and reputational damage to Mr Mitchell. In paragraph 16 of the statement of claim, Mr Mitchell pleads, among other things, that the publications were made in circumstances where Mr Mitchell apprehended malice or other unjustifiable or improper conduct by Mr Jobst. The statement of claim goes on to plead a number of facts comprising that improper conduct and demonstrating that malice. I shall consider each in turn.
Before I do, I should record that, in my view (which I indicated during the trial[337]), Mr Jobst’s defence to the allegations in paragraph 16 of the statement of claim did not give a direct explanation of his denial of the allegations. Therefore, he is deemed to have admitted those allegations.[338] However, Mr Somers submitted that, even if that were not the case, the evidence demonstrates the aggravating circumstances alleged in the statement of claim. It is apposite to review that evidence, in case I am wrong in my view of the defence and also to determine the extent of any conduct that I find to be aggravating and the appropriate amount of any aggravated damages.
[337]T4-105 – 107.
[338]Uniform Civil Procedure Rules 1999, r 166(5).
Reckless indifference to the facts
The imputations arising from the video were based on a fallacy: that Mr Mitchell had obliged Apollo Legend to pay him a substantial sum of money as part of the settlement with him. Mr Jobst published that fallacy as fact; in Mr Somers’ submission, without checking its truth. That fallacy led to the defamatory imputations being made, none of which Mr Jobst has since sought to prove as true.
In his defence, Mr Jobst did not admit that the settlement with Apollo Legend did not contribute to him committing suicide, because “that allegation is not within his present means of knowledge and he is unsure of the truth or otherwise of that allegation.”[339] With respect, that is an astonishing non-admission because, if he presently has no means of such knowledge, how did he have the means of knowledge to the contrary at the time he published the video in which that imputation was made?
[339]Defence, [13(b)].
Mr Jobst went on to plead that the settlement nonetheless had a negative financial impact on Apollo Legend because he agreed to remove from his YouTube channel, and otherwise not to publish, anything concerning Mr Mitchell or his family, which affected the income he received from YouTube.
Mr Jobst maintained this position during the trial, contending that the settlement had had a negative financial impact on Apollo Legend and saying that he still believed that it was a contributing factor to his decision to commit suicide.[340]
[340]T5-114.
Mr Jobst did not plead any facts or explanation for his denial of Mr Mitchell’s allegation that he had not made any, or any proper, pre-publication enquiry as to the true position. He did give some evidence, however, as to a source of his assertion that Apollo Legend had been obliged to pay a large sum to Mr Mitchell, namely a comment on Reddit to the effect that Mr Mitchell had made Apollo Legend pay him $50,000. I have described that evidence at [87] above. As I said then, Mr de Waard sought to tender a copy of that message, but Mr Somers successfully objected to it.
Even if I were to have regard to this evidence and to accept that such a message was the source of his belief that Apollo Legend had been obliged to pay Mr Mitchell a large sum of money, it would not assist Mr Jobst’s defence. One person’s comment or message, without any proof of the assertion, would not be a reasonable and sufficient basis for the assertion in the video. Mr Jobst made no enquiry of Mr Mitchell or anyone associated with him or with Apollo Legend before first publishing the offending video. He had no reasonable basis for the assertions he made in the offending words. He was, indeed, recklessly indifferent to whether or not those assertions were true.
Repeated publication
Mr Jobst did remove the offending words after Mr Keem contacted him and told him that no money had been paid by Apollo Legend to Mr Mitchell. At that time, Mr Jobst made a reasonable enquiry of Apollo Legend’s brother to ascertain whether any money had been paid. He told Mr Keem that, if that assertion was not confirmed, he would leave the video online without the offending words.
Mr de Waard submitted that Mr Jobst’s willingness to change his video in the light of what Mr Keem had told him was evidence of his bona fides, rather than any conduct that should give rise to aggravated damages. That may be so, if that were as much as he did. But it is contradicted by the fact that, notwithstanding his assurance to Mr Keem, after seeing Mr Mitchell’s video and after receiving the concerns notice from Mr Mitchell’s lawyers, both asserting the falsity of the offending words, and before receiving any response from Apollo Legend’s brother, Mr Jobst re-posted the full video containing the offending words.
When asked in his evidence why he did that, Mr Jobst said that Mr Mitchell had a reputation for suing people and had threatened to sue Mr Jobst in the past so, on seeing Mr Mitchell’s video, in which Mr Mitchell said he would respond to Mr Jobst in the way everyone expected him to do, and after receiving the concerns notice, he felt that there was nothing he could do to stop whatever action Mr Mitchell was about to take. At that time, he still believed what he had said to be true and, if taking down the offending words would not stop Mr Mitchell suing him, he may as well put the video back up until he obtained concrete information whether or not it was true.[341]
[341]T4-111. Although the transcript records a word or words in Mr Jobst’s evidence as indistinct, I have checked the recording, in which he appears to say “concrete information.”
Mr Jobst later said that he thought it was appropriate to put the offending words back into the video because he does not believe anything Mr Mitchell says. In particular, he did not believe Mr Mitchell’s video, he did not believe the message from Mr Mitchell that he had received from Mr Keem and he did not believe what Mr Mitchell’s solicitors had said in the concerns notice.[342]
[342]T5-97 – 98.
Mr de Waard also relied on the fact that, when he did get confirmation from Apollo Legend’s brother that he had not been required to pay Mr Mitchell any money, Mr Jobst took out the offending words again. He has not republished them since (although he left the remainder online). This was further evidence of his bona fides and the reasonableness of his actions.
I disagree with Mr de Waard’s submissions. Notwithstanding that he ultimately removed the offending words, Mr Jobst twice asserted online that he had removed the words, not because they were wrong or he didn’t believe them, but because he did not want to be sued by Mr Mitchell over that assertion rather than his allegations that Mr Mitchell had cheated at Donkey Kong.[343] That demonstrates a complete lack of bona fides, in my view.
[343]See [97] and [99] above.
All of this conduct was even more reckless and in contumelious disregard of the truth than his first publication given that, by the time of his republication, he had been told three times (by Mr Keem, by Mr Mitchell’s video and by Mr Mitchell’s lawyers) that what he had said in the first publication was false and he had not received any information from Apollo Legend’s brother.
It was not until Apollo Legend’s brother confirmed that the settlement did not require any payment by Apollo Legend that Mr Jobst again edited out the offending words, but he still implied that he thought they were true anyway.
Mr Jobst’s attitude seems to me to have been one of, “Well, if I’m going to be sued, I may as well go for broke and damn the consequences.” Far from being evidence of his bona fides, I consider his conduct to be reckless and to show no regard for the truth or for the effect of his video on Mr Mitchell and his reputation.
Sensationalised and extravagant video
Mr Somers submitted that Mr Jobst used extravagant and sensationalised language in the video that exacerbated the hurt to Mr Mitchell and to his reputation. It is not necessary to set out the examples given in Mr Somers’ written submissions, but I agree that the whole video reflected Mr Jobst’s modus operandi as he described it in a deposition he gave in the Twin Galaxies litigation:[344]
My YouTube videos often contain hyperbole, sarcasm, parody and humour to make them interesting to viewers.
[344]Not directly tendered in evidence before me, but read out and agreed to by Mr Jobst: T5-41.
Mr Jobst accepted that he may have used these methods in the offending video, although he did not accept that saying that Mr Mitchell ruined lives, he’s legitimately evil, he’s a scumbag and he’s insane constituted him using those methods to make it more interesting.[345] That answer in an example of evidence by MrJobst that I consider to be disingenuous.
[345]T5-41 - 42.
I find that Mr Jobst was deliberately using these methods in the offending video to sensationalise his allegations in order to obtain more viewers and to entertain them. Of course, the more viewers of his video, the more damage to Mr Mitchell’s reputation.
Malice toward Mr Mitchell
Mr Somers submitted that the above behaviour and other evidence demonstrated that Mr Jobst published the video and, since then, has continued to act, with clear malice toward Mr Mitchell.
First, he submitted that Mr Jobst has sustained a continued attack on Mr Mitchell, both before and during this proceeding, including by the above conduct and by describing Mr Mitchell, in the video itself, as ruining lives, legitimately evil, a scumbag and insane. In his evidence, he said that he believed those statement to be true at the time he made them and he still believed all except that Mr Mitchell is legitimately evil.[346]
[346]T5-40 – 41.
I have earlier set out Mr Mitchell’s evidence that Mr Jobst’s behaviour in publishing and republishing the video and in publishing his tweets mocking Mr Mitchell’s complaints, caused Mr Mitchell additional distress over that caused by the video itself.[347]
[347]See [210] above.
I find that Mr Jobst certainly has malice toward Mr Mitchell. Not only the matters relied on by Mr Somers demonstrate that, but other conduct concerning the retraction video and other online videos or streamed interviews in which he was involved are clear demonstrations of his malice, not only at the time of the offending video, but continuing up to and during the trial. I refer to that other behaviour below.
Obtaining pecuniary benefits
Mr Somers submitted that Mr Jobst earns substantial money from publishing videos about and critical of Mr Mitchell: not only the offending video, but multiple other videos that he has published, including during the progress of this proceeding.[348]
[348]Exhibit 68 shows 19 videos, including the offending video.
In an interview podcast published on Twitter and played in evidence,[349] Mr Jobst said he made the offending video as part of trying to build his YouTube channel and described Mr Mitchell as a “content creating machine.” When asked about that in his evidence, he agreed that he meant that Mr Mitchell generates a significant amount of content that he sees as beneficial to his channel.[350] In tweets he published in September 2023, he said about this proceeding itself, “I get a lot of content out of it … after the trial there will be a lot more content … content feeds my family etc.”[351] He also participated in another interview online, in which he said that he made multiple videos about Mr Mitchell to earn the money to afford to defend this claim.[352]
[349]Exhibit 64.
[350]T5-15.
[351]Exhibit 65.
[352]Exhibit 66, published on 15 February 2024. I have paraphrased what he said in far more words.
Mr Jobst was open about the fact that his principal sources of income are generated, directly or indirectly, from videos he makes. The more views he gets, the more income he receives and the more followers he has, the more likelihood that he will be paid, not only by YouTube, but also by advertisers and by “Patreon” donations.[353]
[353]Which, as I understand his evidence, are simply viewers who donate small amounts to him after viewing a video. He listed his “patreons” at the end of the offending video and, I infer, at the end of all his videos.
While obviously Mr Jobst relies on substantial numbers of viewers of his videos and, for that purpose, makes them as interesting and, in some cases, as sensational as he considers appropriate, I do not consider that that is an aggravating feature of his conduct. It is just his “business” and, of course, he uses Mr Mitchell – an already controversial character – as a ready source of revenue. But he has not repeated the relevant defamatory statements in order to generate that revenue.
The “retraction”
A defendant’s failure to apologise for and to withdraw a defamatory publication is not always a feature of a proceeding that aggravates the hurt to the plaintiff and consequently can increase damages. However, in some cases, a failure to retract and apologise can be aggravating conduct that justifies an increase in damages. This is especially so where that failure is accompanied by other aggravating conduct (such as maintaining the truth of an allegation without justification). Even where a defendant (as in this case) defends on the basis that the imputations alleged by the plaintiff did not arise from the publication, in some cases the absence of a qualified apology (such as, “If that is how my words were understood, then I apologise”) can be an aggravating circumstance.[354]
[354]See the detailed discussion by Jackson J (with whom Morrison and Mullins JJA agreed) of aggravation arising from a failure to apologise in Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64, [108] – [134] and the discussion by Applegarth J at first instance in Wagner v Nine Network Australia Pty Ltd [2019] QSC 284, [185] – [195].
Mr Jobst made no apology to Mr Mitchell, even in such a qualified way. His retraction video did not retract the imputations at all. It simply retracted the statement that Apollo Legend had paid Mr Mitchell a large sum of money. He did not apologise to Mr Mitchell in any way, rather apologising to his viewers for having made an incorrect statement in the offending video. Furthermore, as I have said earlier, this retraction was not directed to people who were likely to have seen the original video, nor did Mr Jobst in any way draw the attention of people with an interest in videos about Mr Mitchell to the last 45 seconds or so of this video that contained his correction.
Far from retracting any of the imputations and apologising to Mr Mitchell, in that very video Mr Jobst insinuated that he still believed that Mr Mitchell was responsible for Apollo Legend’s decision. He also made similar insinuations in his tweet of 4 June 2021 and in his comment of 6 June 2021. In his evidence he accepted that, in the former, he was intending it to be understood by a reader that he still believed what he had said to be true.[355] He also said that, even now, he still believes that the settlement contributed to Apollo Legend’s decision.[356] Mr Somers also pointed out that Mr Jobst’s solicitors’ response to the concerns notice was, in effect, to dismiss the assertions made in that notice; to assert that, even if they were made, they would not have caused any harm to his reputation; and to rely on the retraction video. They said Mr Jobst would not make any offer of amends.
[355]T5-90.
[356]T5-114.
All of this conduct was far from demonstrating a genuine retraction or apology. For the above reasons, I agree with Mr Somers’ submission that the conduct was of such a nature as to justify aggravated damages.
Conduct of litigation
Mr Somers also submitted that Mr Jobst’s reasons for defending this proceeding, as expressed publicly by him, were an aggravating circumstance. Mr Jobst clearly defended the claim with an agenda of destroying Mr Mitchell’s reputation and punishing him. This was made clear in another video, published by Mr Jobst on 15 February 2024, entitled “Billy Mitchell Is Coming For Me,” in which he had a discussion with a person identified as Camelot331. Mr Jobst made the comments that I have set out above at [228],[357] on which Mr Somers relied as showing his lack of bona fides and his crusade against Mr Mitchell.
[357]Taken from exhibit 77, part of a video from which another extract is exhibit 66.
I agree that Mr Jobst appears to consider himself a crusader: the last of the defendants who have been sued by Mr Mitchell and the only one (apart from Mr Race) who will not back down. He dislikes Mr Mitchell intensely and has indicated his intention to “destroy” him and, if he successfully defends the claim, to obtain a large costs award against him. He sees his role as demonstrating to Mr Mitchell that he should not sue others, as punishing Mr Mitchell for his many alleged sins and as demonstrating to his audience that he is the knight who slew the Mitchell dragon. And, if he succeeds, he will publish widely and often about his success (thereby continuing to punish Mr Mitchell – and earning additional revenue).
Since publishing the offending video, Mr Jobst has repeatedly made his crusade known, apparently by his videos about Mr Mitchell and in such online publications as the interview referred to above. He has publicly stated, including in his evidence in court, that he believes that Mr Mitchell’s settlement with Apollo Legend was a contributing factor in Apollo Legend’s decision to commit suicide. He has clearly taken pleasure in this role and in continuing to publicise himself in this way.
Conclusions – Mr Jobst’s conduct merits aggravated damages
All of the conduct to which I have referred in this part of my reasons (apart from Mr Jobst’s earnings from videos about Mr Mitchell) was aggravating conduct. Mr Mitchell is aware of it all. I have no doubt that it has affected him emotionally and it will have added to the obvious hurt that he suffered on seeing the video originally. Mr Jobst’s ongoing conduct has also continued to damage Mr Mitchell’s reputation.
In my view, Mr Jobst’s conduct merits a significant award of aggravated damages.
The award of damages
Damages for defamation are “at large” and are not susceptible to mathematical calculation. Nor is damage to reputation “a commodity having a market value.”[358]
[358]Rogers v Nationwide News Ltd (2003) 216 CLR 327, [66].
In assessing damages, the court takes into account the extent of harm to the plaintiff’s reputation, the personal hurt to the plaintiff, the grapevine effect and the defendant’s aggravating conduct (if any). The assessment of damages involves an understanding of the nature and seriousness of the imputations and of the defendant’s conduct.[359]
[359]O’Reilly v Edgar [2019] QSC 24, [225].
It is appropriate to take account of other awards of damages, particularly in Queensland courts, to assist in determining an appropriate amount in this case. But it is not easy to compare damages awarded in different cases in an attempt to determine the appropriate amount in this particular case, as all cases have different facts, imputations, extent of publication and effects of the imputations. It is necessary to be cautious in looking at other cases for such assistance. The amount that is awarded in each case must reflect the subjective effect of the defamation on the plaintiff.[360]
[360]Rogers v Nationwide News Ltd, [69].
Applegarth J, in Cerutti v Crestside Pty Ltd,[361] recorded that cases can be found in which there were substantial awards and others in which more moderate awards were made. His Honour went on to say that a court should not be expected to construct lists of awards in defamation cases, or to have long lists of cases presented to them. They can, however, benefit from the careful selection and citation by counsel of broadly comparable cases. This was the helpful approach taken by counsel before me.
[361][2016] 1 Qd R 89, [48]-[49]. His Honour pointed out that a large number of cases have been summarised by Gibson DCJ in “Defamation Case Law Analysis and Statistics”, Australian Defamation Law and Practice, T K Tobin QC and M G Sexton SC (eds), [60,500]–[60,600]. Summaries of recent cases can also be found in The Gazette of Law and Journalism (Lawpress Australia) accessible at damages awards
Mr Somers referred to three decisions that he submitted were usefully comparable.
Sirocki v Klerck (No 2)[362] concerned 10 publications, of which two were by email and the rest were published on a range of websites, accusing the natural plaintiff (who was the director of the corporate plaintiff) of being, among other things, a fraudster, a scammer, a conman, a drug user, an adulterer, a thief and a liar, as well as incompetent in business. There were wide ranging effects on the first plaintiff personally and professionally, including being asked to resign from a number of voluntary positions and other businesses cancelling their arrangements with him or the company. There were no mitigating factors and the defendants made no apology. Even after the statement of claim was served, the defendants published a further 24 derogatory articles about the plaintiffs. The defendants did not defend the proceeding. The plaintiffs did not claim any aggravated damages.
[362][2015] QSC 92.
On an assessment of damages, after receiving considerable evidence of the harm to the plaintiffs’ reputations and the personal effects on the first plaintiff, Flanagan J awarded damages in individual sums against each defendant, having regard to their involvement in the separate publications. Individual sums ranged from $5,000 to $80,000. Between them they totalled $190,000 for the first plaintiff and $70,000 for the corporate plaintiff.
In his reasons, Flanagan J reviewed a number of other awards, several of which involved allegations of paedophilia or child abuse. He agreed with an earlier decision in which Gibson DCJ of the New South Wales District Court described accusations of child abuse as “the most serious imputations capable of being made.” Gibson DCJ awarded $100,000 to each individual who had been so accused. But Flanagan J noted that other factors informing an appropriate award of damages include the extent of the publications, including that, in the case before him, “the defamatory statements can never be truly driven underground.”[363]
[363][2015] QSC 92, [44].
In Rayney v State of Western Australia (No 9),[364] the plaintiff had been accused by police, in each of four press conferences, of being the only suspect in the murder of his wife; an allegation that received wide and repeated publication. As a result, the plaintiff suffered considerable distress, as well as being shunned by former friends and many other people. Chaney J held that the imputation was at the high end of the range of seriousness of defamatory imputations, with a devastating effect on the plaintiff’s life and attended by circumstances of aggravation. His Honour awarded general damages, including aggravated damages, of $600,000.
[364][2017] WASC 367.
In Wagner v Harbour Radio Pty Ltd,[365] the plaintiffs were businessmen whom Flanagan J described as enjoying an excellent reputation for honesty and integrity, both in business and community circles, before the publications. They had been accused by three defendants, in 32 broadcasts on popular radio stations, of 80 imputations described by Flanagan J as being extremely serious and of the gravest kind, including being responsible for the deaths of 12 people, including two children, being selfish and greedy, covering up their involvement in those deaths and corruption. They each suffered profound personal hurt as well as damage to their reputations.
[365][2018] QSC 201.
His Honour found that there were substantial aggravating circumstances. In particular, the radio personality, Alan Jones, had engaged in unjustifiable conduct, particularly repeating the imputations many times, including during his evidence at the trial; and he was motivated by a desire to injure the plaintiffs’ reputations. That conduct, especially repeating in evidence that he believed that the plaintiffs were responsible for the deaths of 12 people, meant that a “substantial award of damages is required to represent a full vindication of the innocence of the plaintiffs, and to be sufficient to convince any bystander of the baselessness of the accusations levelled against the plaintiffs.”[366] His Honour awarded each defendant general damages, including aggravated damages, of $750,000 against Mr Jones and Harbour Radio in respect of 27 publications and an additional $100,000 against Mr Jones and Radio 4BC in respect of another five publications. It is material to record that, at that time, the statutory cap on general damages (not including aggravated damages) was $398,500.
[366][2018] QSC 201, [904] – [905].
Mr de Waard also referred to a number of cases and relied on them as being more indicative of the appropriate award. He principally referred to Harrington v Shoard,[367] in which Sheridan DCJ considered four publications accusing the plaintiff of being a paedophile: one on a sign at the boundary of the defendant’s home and three in oral statements made to other persons. The publications were not widespread and there was no evidence that they caused the plaintiff any distress. Her Honour found that the harm done to the plaintiff was extremely modest and any injury was short lived. She awarded $15,000 by way of general and aggravated damages for one publication, having upheld a defence for the others. Had that defence not succeeded, she would have awarded a total of $25,000.[368]
[367][2023] QDC 11.
[368][2023] QDC 11, [173].
Her Honour referred to four earlier decisions of this Court in which allegations of paedophilia had been made: two in which the plaintiff was awarded $100,000, one in which the award was $150,000 (including $30,000 in aggravated damages) and another in which it was $160,000 (including $40,000 in aggravated damages). Her Honour recorded that the circumstances of each of those decisions were considerably more serious than the case before her, with the publications far more widespread and the impact of them on the plaintiffs much more significant.
In my view, a number of other cases are of assistance in determining the appropriate amount of general and aggravated damages in this case. It suffices, without describing each case in these reasons[369] but simply noting the extent of publication and the damages awarded in each, to record that these cases are O’Reilly v Edgar,[370] Hallam v O’Connor[371] and Deeming v Pesutto (No 3)[372].
[369]Although, to be clear, I do take into account the different facts in each case.
[370][2019] QSC 24, [232]. Comparatively limited publication. Damages of $250,000, including unspecified aggravated damages.
[371][2024] QDC 187, [194] - [206]. Limited publication. Damages of $275,000, including $55,000 for aggravated damages, against one defendant; and $125,000, including $25,000 aggravated damages, against the other.
[372][2024] FCA 1430, [830]. Very extensive publication. Damages of $300,000, not including aggravated damages.
Amount of general damages
In determining the appropriate amount of general damages (not including aggravated damages), I must particularly keep in mind the requirement under s 35(2), that the maximum damages amount is to be awarded only in the most serious case. Apart from such cases, the appropriate award depends on the court’s assessment of the scale of seriousness of the relevant imputations (and the extent of their publication) in each case.
Here, the imputations were of varying seriousness, but the most serious and damaging was that Mr Mitchell hounded Apollo Legend to commit suicide. That imputation implied a deliberate and extended course of conduct by Mr Mitchell that caused such stress to Apollo Legend that he decided to end that stress by killing himself. While not directly accusing Mr Mitchell of having murdered Apollo Legend, nor of knowingly encouraging Apollo Legend to kill himself, in one sense it might be seen as almost as serious as such imputations would have been. Those imputations would, in my view, have been among the most serious cases.
Here also, the publications were very widespread and not only in the locations where Mr Mitchell lives and works, but in several countries around the world where he is known. Although the publications themselves were only available on Mr Jobst’s YouTube channel for a total of 10 days, during that time they were viewed by over 500,000 people and it is likely that some of those people took a copy and may well have republished it since Mr Jobst took it down.[373]
[373]It seems, from Mr Mitchell Jnr’s evidence to that effect, that at least one copy was still locatable on the internet at the time of the trial.
The publications have led to a considerable number of people forming the view that Mr Mitchell is a murderer, evil and callous, who should be punished. Those views continue to be expressed (although less often) widely and to wide audiences and they continue to cause Mr Mitchell ongoing stress and hurt. The grapevine effect is substantial and is likely to continue, or to spring shoots again in the future.
In the circumstances, only a substantial amount of damages will be sufficient to vindicate Mr Mitchell and to meet all the purposes of such awards.
These imputations are not as serious as being called a paedophile, but they come close to the imputations made against the Wagners and, in my view, they are at least as bad as, if not worse than, those made against Ms Deeming. The extent of publication does not appear to have been as great as those about the Wagners, Mr Rayney or Ms Deeming, but it was substantial. The grapevine effect is also substantial and, even if this award were to prune it to some extent, there is a real risk that it will generate new shoots again in the future.
Mr Mitchell seeks $400,000 in general damages. In my view, that is too high, being too close to the maximum amount. This is not one of the most serious cases, although it is at the higher end, especially given the most damaging imputation and the extent of publication.
I assess the appropriate sum of general damages at $300,000.
Aggravated damages amount
Mr Jobst’s aggravating conduct has been serious and ongoing, including in his evidence at trial and his publications about this litigation. It merits substantial aggravated damages.
Mr Mitchell seeks $50,000 in aggravated damages. He may well have been justified in seeking a greater sum, but I shall limit the award to the amount he seeks.
Other matters
It remains to deal with a number of other matters arising during the trial or as a consequence of my findings.
Rulings on evidence
During the trial, many objections were made, by both sides, to evidence proffered by the other. In my reasons above, I have referred at times to rulings that I made during the trial. However, in two cases where objections were made, the parties proposed and I agreed that the evidence be led subject to the objection and that I rule on the objection in my reasons for judgment. It is therefore necessary briefly to address those objections at this point.
The first issue was an objection by Mr Somers to Mr Jobst calling any evidence about the allegation that Mr Mitchell had a pre-existing bad reputation. The objection was on the basis that the alleged bad reputation concerned a different sector of Mr Mitchell’s reputation and therefore was not relevant. Mr Somers proposed that the evidence be called anyway and that I rule on its admissibility in my reasons for judgment.[374] The parties made submissions on the issue in their final written submissions and their addresses and I have dealt with the issue above, finding that the defamatory imputations concerned the same sector of Mr Mitchell’s life as the alleged pre-existing bad reputation (as well as the alleged contextual imputations).
[374]T1-28 – 29.
Secondly, Mr Somers objected to evidence given by Mr White about “mainstream articles” from which he learned about Mr Mitchell’s various pieces of litigation. Mr Somers submitted that Mr Jobst was not entitled to rely on any media articles other than those to which he had referred in the particulars of his defence. Mr Somers simply noted the objection for the purpose of submissions later and I noted that.[375]
[375]T6-10 – 11.
As it turned out, nothing came of the evidence, so it is unnecessary to deal with the objection.
Interest on damages
Interest pursuant to s 58 of the Civil Proceedings Act 2011 should be awarded on each amount of damages from the date of the original publication to judgment. As said in other cases, interest is conventionally awarded at 3% per annum from the date of publication.[376] That rate takes account of both the original damage caused by the publication and the ongoing and increasing harm to the plaintiff’s reputation and personal hurt since then.
[376]Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, [92]; O’Reilly v Edgar [2019] QSC 24, [234] – [235]; Hallam v O’Connor [2024] QDC 187, [203].
I therefore propose to order that Mr Jobst pay interest at 3% per annum on each component of the damages awarded, from 26 May 2021 to the date of this judgment. However, if either party wishes to make submissions that this component of the judgment should be different, I shall hear them and reconsider.
Costs
Mr Mitchell has succeeded in his claim. The usual consequence is that he is entitled to an order that Mr Jobst pay his costs of the proceeding, which include any reserved costs.[377] At present I see no reason why I should not make such an order. However, I shall give the parties an opportunity to seek an alternative costs order, either upon delivery of this judgment or by written submissions to be provided within 14 days thereafter. In the absence of any submission within either of those times, an order to that effect will become effective.
[377]Uniform Civil Procedure Rules 1999, rr 681, 698.
0
19
0