Newman v Whittington

Case •

[2025] NSWSC 275

•

26 March 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Newman v Whittington [2025] NSWSC 275
Hearing dates: 14 February, 5 and 26 March 2025
Date of orders: 26 March 2025
Decision date: 26 March 2025
Jurisdiction:Common Law
Before: Chen J
Decision:

See [215]

Catchwords:

DEFAMATION – damages – assessment of damages – where serious imputations made against family dispute resolution practitioner including matters concerning paedophilia and fraudulent behaviour – grapevine effect – aggravated damages awarded

DEFAMATION – remedies – injunctions – where twelve individual publications published on defendant’s blog and social media – whether mandatory and permanent injunctive relief appropriate – mandatory and permanent injunctions granted

COSTS – party/party – application made by party entitled to costs under judgment for gross sum costs order – where counsel appointed for plaintiff under pro-bono scheme – where costs orders made by Court of Appeal in interlocutory appeal proceedings – whether jurisdiction to make gross sum costs order inclusive of costs of interlocutory appeal – gross sum costs order made

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Defamation Act 2005 (NSW)

Defamation Amendment Act 2020 (NSW)

Evidence Act 1995 (NSW)

New South Wales Government Gazette, No 245, 28 June 2024

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Al Muderis v Duncan [2016] NSWSC 1726

Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225

Beach Petroleum NL v Johnson(No 2) (1995) 57 FCR 119; [1995] FCA 350

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) (2023) 113 NSWLR 381; [2023] NSWCA 311

Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535

Bristow v Adams [2012] NSWCA 166

Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31

Cassell & Co Ltd v Broome [1972] AC 1027

Commonwealth Bank of Australia v Goater [2016] NSWSC 216

Coyne v Citizen Finance Ltd (1991) 172 CLR 211; [1991] HCA 10

Crampton v Nugawela (1996) 41 NSWLR 176

Doe v Dowling [2019] NSWSC 1222

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56

Eppinga v Kalil [2023] NSWCA 287

Greenwich v Latham [2024] FCA 1050

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254; [1928] HCA 36

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161

Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 33; [2015] FCA 652

Hoser v Pelley [No 3] [2023] VSCA 257

Kegran Pty Ltd v Warrik Pty Ltd [2018] NSWSC 1357; (2018) 19 BPR 38665

Korean Times Pty Ltd v Pak [2011] NSWCA 365

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; [2020] NSWCA 28

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47

Ley v Hamilton (1935) 153 LT 384

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3

Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54

Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432

O’Reilly v Edgar [2019] QSC 24

Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69

Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192

Ratcliffe v Evans [1892] 2 QB 524

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Ryan v Premachandran [2009] NSWSC 1186

Short v Crawley (No 45) [2013] NSWSC 1541

Sims v Jooste (No 2) [2016] WASCA 83

State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276

Sutcliffe v Pressdram Ltd [1991] 1 QB 153

Szymczak v Balijepalli(No 2) [2019] FCA 1093

Tribe v Simmons [2021] FCA 930

Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23

Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

Whittington v Newman [2024] NSWCA 27

Zaia v Eshow [2017] NSWSC 1540

Texts Cited:

D Rolph, “A serious harm threshold for Australian defamation law” (2022) 51(2) Australian Bar Review 185

David Rolph, Rolph on Defamation (2nd ed, 2024, Lawbook Co.)

Guidelines of the New South Wales Costs Assessment Rules Committee (24 October 2023)

J Fleming, Law of Torts (8th ed, 1992, Lawbook Co.)

Category:Principal judgment
Parties: Jasmin Newman (Plaintiff)
Adam Whittington (Defendant)
Representation:

Counsel:
R Armitage (Plaintiff)

Solicitors:
Unrepresented (Plaintiff)
File Number(s): 2021/00035572
Publication restriction: Nil

JUDGMENT

Introduction

  1. Jasmin Newman (‘the plaintiff’) alleges that Adam Whittington (‘the defendant’) defamed her on 12 separate occasions following publications about her by him in WordPress articles, on Facebook and on Twitter in the period December 2019-October 2021. The plaintiff complains that these publications essentially amount to a campaign against her by the defendant, albeit that the evidence about why he has done so was, possibly unusually, rather confined: the campaign appears to be a ‘response’ to a book published by the plaintiff that referred to the defendant – presumably in a manner that displeased him. She seeks damages, including aggravated damages, interest and costs to remedy the damage and loss she claims to have suffered from those publications as well as injunctions – mandatory and permanent – to prevent such publications from recurring.

  2. The plaintiff commenced proceedings by statement of claim filed 8 February 2021. A number of amended versions have been filed. The current iteration is described as the fourth amended statement of claim filed 25 March 2024 (‘the 4ASOC’), although, despite its title, it appears that seven versions of the pleading have, to date, been served. The pleading extends to some 53 pages and contains 59 defamatory imputations that are alleged to have arisen in consequence of the 12 publications.

The non-appearance of the defendant

  1. The defendant did not appear when the matter was called on the first day of the hearing. He did not appear after the matter was called outside Court. He did not appear on the subsequent days when the matter was listed for hearing and called outside Court.

  2. The plaintiff sought to proceed in the absence of the defendant. The plaintiff submitted that, as the defendant was notified of the hearing of the action, she was entitled to proceed.

  3. The plaintiff relied upon her affidavit sworn 12 February 2025 to establish the giving of such notice. It was submitted that the defendant was advised of the hearing, essentially as follows. Pursuant to order 4 made by the Court on 5 September 2024, the plaintiff, through her counsel, approached the Court, via email sent 11 December 2024, to secure a hearing date copying in the defendant via his email address – being: [REDACTED] (plaintiff’s affidavit sworn 12 February 2025, annexure H).

  4. It should be noted that the email address used to communicate with the defendant in the above email (and the one sent by the plaintiff on 10 February 2025: see [8] below) is the one that the defendant used to communicate with the Court on 3 September 2024 and with the plaintiff and her counsel on 12 December 2024 (see, for example, plaintiff’s affidavit sworn 12 February 2025, annexures D and I).

  5. The defendant responded to that email chain, by email sent to the plaintiff’s counsel on 12 December 2024, advising, inter alia (plaintiff’s affidavit sworn 12 February 2025, annexure I):

“Stop wasting my time opening rubbish and tagging me into your nonsense emails. In fact, to make sure you don’t waste another minute of my time, I’ll block you from this day on.

Your scumbag client won’t get one cent. That I promise.”

  1. The plaintiff directly advised the defendant of the hearing date, pursuant to orders that I made on 10 February 2025, by email sent on 10 February 2025 at 10:41 am (plaintiff’s affidavit sworn 12 February 2025, annexure N).

  2. Mr Armitage, who appeared for the plaintiff, confirmed, and I accept, that no response was received to that email. It was further confirmed by the plaintiff in her affidavit sworn 24 February 2025, par 39.

  3. Section 161 of the Evidence Act 1995 (NSW) creates a presumption in relation to electronic communications other than those referred to in s 162 (a section that is not presently relevant). The term “electronic communication” is defined in the Dictionary and relevantly extends to an email: see, in this last respect, by way of example, Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 at [17]-[18]; Kegran Pty Ltd v Warrik Pty Ltd [2018] NSWSC 1357; (2018) 19 BPR 38,665 at [30].

  4. By s 161(1), it is presumed “unless evidence sufficient to raise doubt about the presumption is adduced” that the email: (1) was sent in the form of the email dated 10 February 2025 (s 161(1)(a)); (2) was sent by the plaintiff to the defendant (s 161(1)(b)); (3) was sent on 10 February 2025 at 10:41am (s 161(1)(c)); (4) was “received at the destination to which it appears from the document to have been sent” (s 161(1)(d)); and (5) as it appears from the email that the sending concluded at the time identified, “was received at that destination at that time” (s 161(1)(e)).

  5. As I have noted above, no email or other communication was received by the plaintiff or her counsel to indicate that this email had not been delivered to the defendant’s email address. There is, I accept, no evidence sufficient to raise doubt about the presumption. Accordingly, the presumption created by s 161(1) establishes service of the email and notification of the hearing date.

  6. Accordingly, given the plaintiff was notified of the date of the hearing, it has proceeded in the absence of the defendant. Separately, I add, I am satisfied, given the defendant’s interactions with the Court in connection with the entry of default judgment on 5 September 2024 and his response to the plaintiff’s counsel’s email dated 11 December 2024, that the defendant did not, and does not, intend to participate in the final hearing of the plaintiff’s claim. That is confirmed (as is notice of this hearing) by a further matter. The hearing did not complete on 14 February 2025 and was stood over for further hearing on 5 (and, subsequently 26) March 2025. Following the adjournment on 14 February 2025, my Associate confirmed the orders with the parties by email (to be clear, to the email address provided by the defendant), to which there was no reply or ‘bounce back’. Thus, the defendant, despite that further notice, did not appear. Additionally, notwithstanding that notice (and of the proceedings generally), he has continued to publish matters about the plaintiff (notably, on 18 and 23 February 2025: plaintiff’s affidavit sworn 24 February 2025, pars 37 and 38, annexures 8 and 9) – a matter upon which it will be necessary, later, to return.

The nature of the hearing

  1. In addition to the matter proceeding in the absence of the defendant, it is also proceeding as a trial for the assessment of damages under r 30.1 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’). It is proceeding in that way because on 5 September 2024, the Court, on the application of the plaintiff, entered default judgment against the defendant pursuant to r 16.3 of the UCPR. The orders made by the Court were:

1. Judgment to [sic] the Plaintiff.

2. Damages are to be assessed as organised by the Court by the terms of Part 30 of UCPR.

3. Defendant shall pay Plaintiff’s costs of and incidental to proceedings and costs of the Motion.

4. The Plaintiff has liberty to approach list clerk for the purpose of organising a hearing for the assessment of costs and a date for that assessment.

  1. The plaintiff submitted that it followed, from the first order made on 5 September 2024, that she was relieved of the need to establish, in relation to each defamatory publication, the following matters: that the defendant was the author of each of the publications and that he published them – in fact, and in the wider, bilateral, sense of being “comprehended by somebody other than the plaintiff” (relevantly in Australia): Sims v Jooste (No 2) [2016] WASCA 83 at [9]; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [11]; that the publications were about the plaintiff; and that the publications conveyed each of the imputations alleged by her – that is, the publications were defamatory of the plaintiff. Put simply, the submission was that the orders made dispensed with the need for the plaintiff to establish the three elements at common law to a successful defamation claim: see, in this respect, David Rolph, Rolph on Defamation (2nd ed, 2024, Lawbook Co.) at [6.10] (‘Rolph on Defamation’). (Given the terms of the first order made, no question arises about any defence; defences can thus be put to one side). I accept, generally, what the plaintiff submitted, subject to the following.

  2. Whilst I accept that the defendant authored each of the publications, and that they were “published” (in both senses), it remains necessary for the plaintiff to demonstrate that they conveyed each of the imputations alleged and, in connection with damages, it remains necessary for the plaintiff to relate her injuries, loss and damage suffered to one or other of those defamatory imputations. The plaintiff, I add, contested the first proposition, but accepted the second.

  3. I will explain briefly why I consider it necessary for the plaintiff to demonstrate that each of the imputations were defamatory of her, notwithstanding the entry of default judgment.

  4. In defamation proceedings, where a default judgment is entered in circumstances where no defence has been filed, whilst the facts pleaded are taken to be admitted, it has nevertheless been considered “appropriate” for the Court to “consider the legal question reserved for the Court at final hearing”, being “whether the matters complained of are reasonably capable of conveying the pleaded imputations” prior to entering default judgment: Al Muderis v Duncan [2016] NSWSC 1726 at [3] (‘Al Muderis’); Szymczak v Balijepalli (No 2) [2019] FCA 1093 at [5]; Tribe v Simmons [2021] FCA 930 at [16]. The explanation for this approach lies in the fact that it remains a question of law, to be determined by the Court, whether an imputation “is reasonably capable of arising from the matter complained of” and, as a consequence, a failure to make that determination may result in a judgment in favour of the plaintiff “in respect of a claim that was bad in law”: Al Muderis at [4].

  5. The immediate difficulty with the approach urged by the plaintiff is that it is apparent from the reasons of the Court, when entering default judgment, that no consideration was given to any of the alleged defamatory imputations, nor – importantly – is it apparent that the Court was asked to do so. To be clear, there is no finding that all, or indeed any, of the matters complained of are reasonably capable of conveying the pleaded imputations – and, to the extent that any reference was made to “the merits of liability”, the reasons indicate that the Court was not dealing with them. Accordingly, it follows, in the present circumstances, that it remains to be determined whether each of the 59 imputations were defamatory.

The plaintiff’s evidence

  1. The plaintiff relied upon the following affidavit evidence to support her claim for damages:

  1. Affidavit of Anna Newman ‘dated’ 31 January 2025.

  2. Affidavit of Louise Halford affirmed 6 February 2025.

  3. Affidavit of Alexandra Betts affirmed 10 February 2025.

  4. Affidavit of Madeleine Allgood ‘dated’ 10 February 2025.

  5. Affidavits of Jasmin Newman sworn 12 and 24 February 2025 and 4 and 14 March 2025.

  1. In addition to the evidence contained in her affidavits, the plaintiff also gave evidence at the hearing – evidence that was principally directed to the impact of the defamatory imputations upon her. I will make reference to the plaintiff’s oral evidence, later, when addressing damages. The plaintiff was also granted leave to re-open her case (on two occasions) to rely upon additional evidence, essentially directed to the issue of the (potential) wider “readership” of the defendant’s publications. That evidence was contained in the plaintiff’s affidavits sworn 24 February 2025 and 4 and 14 March 2025.

  2. Separately, the plaintiff tendered a bundle of documents (totalling 161 pages) – those that were annexed to the 4ASOC – which contained, with the exception of what I later describe as the second matter, the defendant’s publications (exhibit F).

The background facts

  1. I set out below the background facts. They reflect my findings and what I consider follows from the entry of default judgment.

The plaintiff

  1. The plaintiff is a family dispute resolution practitioner and accredited in that role with the Commonwealth Attorney-General’s Department.

The defendant

  1. The defendant is: (a) an Australian citizen who, at least at some point in the past, resided overseas, either in Sweden or in Russia, although precisely where he now resides is unknown; (b) the founder and Chief Executive Officer of a Swedish company which operates a Facebook page called “Child Abduction Recovery International”; and (c) the founder of what is said to be a “charity” known as “Project Rescue Children”.

  2. A number of the defamatory “matters” pleaded – notably, the second, third, fourth, fifth, eighth, ninth and tenth matters – were published online on social media pages not by a description referable to the defendant, but to organisations that, in substance, were controlled and operated by the defendant. This, I accept and find, extends to the following at all relevant times:

  1. A “WordPress site” with the name: “CARI – Child Abduction Recovery International”.

  2. A Facebook page with the name: “Child Abduction Recovery International”.

  3. A Facebook page with the name: “Child Abduction Recovery International CARI – Information Page”.

  4. A Facebook page with the name: “Child Abduction Recovery Australia”.

  5. A Twitter page with the name: “CARI – Child Abduction”.

  1. I also accept, and find, that the defendant operated the following at all relevant times:

  1. A “WordPress site” with the name: “Adam Whittington”.

  2. A Facebook page with the name: “Adam Whittington”.

  3. A Facebook page with the name: “Adam Whittington Advocate”.

The defamatory imputations

Background principles

  1. The principles applicable to determine whether a publication conveyed defamatory imputations are well-established. They have been helpfully summarised in a number of decisions including in Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 33; [2015] FCA 652 at [63]-[73] (‘Hockey’) and Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70]-[85].

  2. In Eppinga v Kalil [2023] NSWCA 287 at [95] (‘Eppinga’), Payne JA remarked in relation to those principles:

The central construct is the “ordinary reasonable reader”, in whose eyes the meaning of published matter is judged: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. This reader has certain traits: they are of fair, average intelligence, are neither perverse, nor suspicious of mind or avid for scandal: Lewis v Daily Telegraph Ltd [1964] AC 234 at 260. They do not live in an ivory tower and they can read between the lines in light of their general experience of worldly affairs.

  1. Ordinarily, once a plaintiff establishes each of the elements of the cause of action (relevantly here, that the defamatory imputations alleged were conveyed), the onus shifts to the defendant to establish any defence(s). Self-evidently that will not here arise, given the orders made on 5 September 2024 (which were made, at least in part, because the defendant failed to file a defence, contrary to orders of the Court that he do so).

  2. Before turning to address whether, applying the above principles, the defamatory imputations were conveyed as alleged, I will outline the approach.

  1. The plaintiff has, as I have earlier noted, alleged that she was defamed in 59 ways (that is, by the 59 imputations pleaded) by the defendant in his various publications. The particulars of each imputation are contained in the Schedule of Imputations dated 28 February 2025 (MFI 1). In respect of each of the defamatory imputations, the plaintiff commonly argued that they were conveyed in multiple ways – both within the one publication, and also across different ones. Thus, for example, in relation to the imputation that the plaintiff was “dishonest” (4ASOC, par 7(1d)) the plaintiff relied upon what was more or less a clear statement to that effect in the article posted on the defendant’s WordPress site (exhibit F, page 11) but also, additionally, relied upon seven other references within that document, that are said to convey that same imputation. In the interests of economy, these reasons will refer to the principal manner in which the imputation was conveyed, albeit that specific consideration has been given to each and every way that the imputation was argued by the plaintiff to have been conveyed.

The defamatory imputation: the first matter

  1. The first defamatory matter relied upon by the plaintiff is described as an article, headed: “Andrew (Andy) Gough aka Rae Asun-Schein aka Jimmy McGill & associates”: 4ASOC, par 7. The article is 114 pages of text and images and dated, and first published on, 29 December 2019 “to WordPress and then nine additional times to Facebook”: 4ASOC, par 19. The WordPress site had the name: “Adam Whittington”: 4ASOC, par 19(a).

  2. The publication is contained within exhibit F, pages 1-114.

  3. It is accepted that the article was removed from the internet on 17 February 2021 and, further, the “extent of readership is unknown”: 4ASOC, pars 19(a)(xii) and (xiii).

  4. In relation to the publication of this article on Facebook, this was “linked” from posts published on the Facebook page “Adam Whittington” on 11 and 16 February 2020: 4ASOC, pars 19(b) and (c); on 22 February 2022: 4ASOC, par 19(d) (note: the date in the 4ASOC is incorrect as the post published on this Facebook page was on 22 February 2020, not 2022: exhibit F, page 117); on 17 March 2020: 4ASOC, par 19(e); on 12 April 2020: 4ASOC, par 19(f); on 22 April 2020: 4ASOC, par 19(g); on 19 May 2020: 4ASOC, par 19(h); and on 21 and 24 October 2020: 4ASOC, pars 19(i) and (j). These publications are contained within exhibit F, pages 115-122 and 124. During the hearing on 5 March 2025, the plaintiff disavowed reliance upon par 19(i) – that is, the plaintiff did not rely upon any suggested linking of the WordPress article from a post published on the Facebook page “Adam Whittington” on 21 October 2020.

  5. The plaintiff alleges that, in “its natural and ordinary meaning”, the “first matter” conveyed nine imputations each of which was defamatory of the plaintiff: 4ASOC, par 7. Those imputations were that the plaintiff:

  1. “supports paedophiles” (par 7(1a)): exhibit F, page 75, fourth paragraph, where it is said that plaintiff is “a supporter of all three paedophiles above”. Further, after referring to the plaintiff’s book, it says: “BUT WHY are you so desperately supporting these 3 paedophiles???” (exhibit F, page 78, third paragraph).

  2. “sympathises with paedophiles” (par 7(1b)): exhibit F, page 11, main paragraph, where it is said that the plaintiff, inter alia, is “the most disgusting paedophile sympathisers [sic] in Australia”. The plaintiff also relies upon that imputation being conveyed in a further way, referred to in MFI 1.

  3. “has committed fraud” (par 7(1c)): exhibit F, page 11, main paragraph, where it is said that the plaintiff is “a disgraceful fraud, liar…”. The plaintiff also relies upon that imputation being conveyed in further ways, referred to in MFI 1.

  4. “is dishonest” (par 7(1d)): exhibit F, page 11, main paragraph, where it is said that the plaintiff is “a disgraceful fraud, liar…”. The plaintiff also relies upon that imputation being conveyed in further ways, referred to in MFI 1.

  5. “has falsely claimed to be a psychologist” (par 7(1e)): exhibit F, page 78, sixth paragraph, where it is said: “Jasmin, have you ever ‘pretended’ to be a psychologist? Have you ever told media you were a psychologist? … Why do you lie!!!!”. The plaintiff also relies upon that imputation being conveyed in further ways, referred to in MFI 1.

  6. “supports persons convicted of domestic violence against women” (par 7(1f)): exhibit F, page 75, fourth paragraph, where it is said: “then there are those who support child abusers and those convicted of domestic violence against wom[e]n, like this dumb individual below Jasmin Newman, who thinks she’s some kind of expert in child abduction…”.

  7. “has attacked women intent on protecting their sexually abused children” (par 7(1g)): exhibit F, page 11, main paragraph, where it is said: “Your years of attacking mothers defending their sexually abused children are over!”.

  8. “is a misogynist” (par 7(1h)): exhibit F, page 79, eighth paragraph, where it is said: “Jasmin is nothing but a misogynist with tits!”.

  9. “has committed a criminal offence, namely, by identifying a victim of child sexual abuse contrary to a court order” (par 7(1i)): exhibit F, page 77, third paragraph, where it is said: “Jasmin has also broken a judge’s suppression order, for identifying a sexual [sic] abused child in her book. I’m aware of authorities looking into her breach, which is a criminal offence”.

  1. Given the language used in the publication, little discussion is warranted about whether the defamatory meanings were in fact conveyed to the ordinary reasonable reader: I am well-satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the second matter

  1. The second defamatory matter relied upon by the plaintiff is described as an article, headed: “Parental Child Abduction Frauds, Scammers + Associates”: 4ASOC, par 8.

  2. The publication is contained within exhibit F, pages 125-131. As noted elsewhere, this publication was originally published within a larger publication, approximately 200 pages in length (MFI 1, par 4).

  3. This material was published to a separate WordPress site titled “CARI – Child Abduction Recovery International” on 5 April 2020: 4ASOC, par 20(a); MFI 1, par 4; “pinned” on Facebook pages “Child Abduction Recovery International”, “Child Abduction Recovery International CARI – Information Page” and “Child Abduction Recovery”: 4ASOC, pars 20(b)-(d); and posted on the Twitter page “CARI – Child Abduction”: 4ASOC, par 20(e). The publications on Facebook (on 8 April 2019) or on Twitter (on 16 October 2021) are contained within exhibit F, pages 132-135.

  4. The plaintiff alleges that, in “its natural and ordinary meaning”, the “second matter” conveyed eight imputations each of which was defamatory of the plaintiff: 4ASOC, par 8. Those imputations were that the plaintiff:

  1. “has committed fraud” (par 8(2a)): exhibit F, page 125, first and second paragraphs, where the following was said:

“Jasmin Newman a complete nobody came on the fraud radar in 2020, when she went public with a deplorable book she copied and pasted from media articles with chapters supporting paedophile fathers while attacking mothers trying to defend their children from sexual abuse. Read further and you’ll clearly understand why #JasminNewman supports paedophiles.

But be careful of this fraud as anyone who expresses truths about her she instantly threatens to sue them. She’s done it to multiple people and organisations all to keep her dirty secrets hidden. Well up yours Jasmin. Who gives a flying toss what you do…”

The plaintiff also relies upon that imputation being conveyed in further ways, referred to in MFI 1.

  1. “supports paedophiles” (par 8(2b)): exhibit F, page 125, first and second paragraphs, extracted above.

  2. “has attacked women who seek to protect their children from paedophiles” (par 8(2c)): exhibit F, page 125, first and second paragraphs, extracted above.

  3. “is dishonest” (par 8(2d)): exhibit F, page 126, third paragraph, where it is said: “the amount of blatant garbage, lies, exaggeration, made up horse shit, is off the planet”. The plaintiff also relies upon that imputation being conveyed in further ways, referred to in MFI 1.

  4. “has committed a criminal offence, namely, by identifying a victim of child sexual abuse” (par 8(2e)): exhibit F, page 126, fourth paragraph, where it is said: “… Jasmin has also broken a judge’s suppression order, for identifying a sexual [sic] abused child in her book. We are aware of Australian authorities looking into her breach, which is a criminal offence”.

  5. “has falsely claimed to be a psychologist” (par 8(2f)): exhibit F, page 127, first paragraph, where it is said: “Jasmin, have you ever ‘pretended’ to be a psychologist? Have you ever told media you were a psychologist? Why do you lie!!!!”. The plaintiff also relies upon that imputation being conveyed in further ways, referred to in MFI 1.

  6. “is a misogynist” (par 8(2g)): exhibit F, page 127, twelfth paragraph, where it is said: “Confirms everything we have stated and thought. Jasmin is nothing but a misogynist with tits”.

  7. “has falsely promoted herself as having experience in mediation” (par 8(2h)): exhibit F, page 128, first paragraph, where it is said: “…promoting herself NOW as an experienced mediator ... again with zero education, experience or qualifications”.

  1. Given the language of the publication, I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the third matter

  1. The third defamatory matter relied upon by the plaintiff is described as a publication on the Facebook page “Child Abduction Recovery International CARI – Information Page” on 16 May 2020: 4ASOC, pars 9 and 21.

  2. The publication is contained within exhibit F, pages 136-137.

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “third matter” conveyed eight imputations each of which was defamatory of the plaintiff: 4ASOC, par 9. Those imputations were that the plaintiff:

  1. “is connected with persons who have committed fraud” (par 9(3a)): exhibit F, page 136, first paragraph, where it is said:

“… Jasmin Newman, who is directly connected to an associated with, every known fraud in the child abduction industry and some child abusers, convicted of domestic violence. There is clear evidence to support her behind the scenes [sic] of abusive parents attacking their ex partners.”

  1. “associates with persons who have committed fraud” (par 9(3b)): exhibit F, page 136, first paragraph, extracted above.

  2. “is connected with paedophiles” (par 9(3c)): exhibit F, page 136, first paragraph, extracted above.

  3. “associates with paedophiles” (par 9(3d)): exhibit F, page 136, first paragraph, extracted above.

  4. “has been convicted of domestic violence” (par 9(3e)): exhibit F, page 136, first paragraph, extracted above.

  5. “supports abusive parents attacking their ex-partners” (par 9(3f)): exhibit F, page 136, first paragraph, extracted above.

  6. “has claimed to possess a qualification that she does not in fact possess” (par 9(3g)): exhibit F, page 136, second paragraph, where it is said:

“She has popped up from nowhere proclaiming to be a child abduction and relationship expert, while charging parents $147 for some ridiculous online course. If you do your own due diligence, you’ll find she has no experience, no education and zero qualifications including being a relationship expert.”

  1. “has committed fraud” (par 9(3h)): exhibit F, page 136, fifth paragraph, where it is said:

“We have said it often, this industry thrives with frauds and anyone trying to make a quick dollar on the broken hearts of left behind parents. We have seen this in all the years of helping parents. We will continue to expose those who take advantage of vulnerable parents…”

  1. Given the language of the publication, I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the fourth matter

  1. The fourth defamatory matter relied upon by the plaintiff is described as a publication on the Twitter page “CARI – Child Abduction” on 30 June 2020: 4ASOC, pars 10 and 22.

  2. The publication is contained within exhibit F, page 138.

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “fourth matter” conveyed four imputations each of which was defamatory of the plaintiff: 4ASOC, par 10. Those imputations were that the plaintiff:

  1. “is connected with paedophiles” (par 10(4a)): exhibit F, page 138, where it is said:

“Facts:

All connected-

Andy Gough - Pedophile & DVO

Colin Chapman - Pedophile, convicted fraud & DVO’s x4

Jasmin Newman - Fraud & has a brother who is a ‘convicted pedophile [sic]”

  1. “has committed fraud” (par 10(4b)): exhibit F, page 138, extracted above.

  2. “is connected with persons who have committed fraud” (par 10(4c)): exhibit F, page 138, extracted above.

  3. “is connected with persons who have committed Domestic Violence offences” (par 10(4d)): exhibit F, page 138, extracted above.

  1. Given the language of the publication, I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the fifth matter

  1. The fifth defamatory matter relied upon by the plaintiff is described as a publication on the Twitter page “CARI – Child Abduction” on 30 June 2020: 4ASOC, pars 11 and 23.

  2. The publication is contained within exhibit F, pages 139-143.

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “fifth matter” conveyed two imputations each of which was defamatory of the plaintiff: 4ASOC, par 11. Those imputations were that the plaintiff:

  1. “has falsely claimed to be a psychologist” (par 11(5a)): exhibit F, page 139, where it is said:

“Jasmin Newman is NOT a Psychologist or child abduction expert. She has no training, education or qualification as a psychologist but tells media she is. She also hates women who protect their abused children from abusive men.”

  1. “maintains a hatred for women who seek to protect their children from abuse” (par 11(5b)): exhibit F, page 139, extracted above.

  1. Given the language of the publication, I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the sixth matter

  1. The sixth defamatory matter relied upon by the plaintiff is described as a publication on the Facebook page “Adam Whittington” on 1 October 2020: 4ASOC, pars 12 and 24.

  2. The publication is contained within exhibit F, pages 144-147.

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “sixth matter” conveyed five imputations each of which was defamatory of the plaintiff: 4ASOC, par 12. Those imputations were that the plaintiff:

  1. “sympathises with paedophiles” (par 12(6a)): exhibit F, page 144, where it is said:

“…Paedophiles and their sympathisers stick together and attack online anyone who tries to expose them.

Just look at… Jasmin Newman…

a classic example of a paedophile sympathiser”.

  1. “seeks to protect paedophiles from being brought to justice” (par 12(6b)): exhibit F, page 144, where it is said:

“… Paedophiles and their sympathisers stick together and attack online anyone who tries to expose them.

…Jasmin Newman… for years has attacked any woman protecting their kids from paedo[p]hiles”.

  1. “has committed fraud” (par 12(6c)): exhibit F, page 144, where it is said: “Jasmin Newman, a fraud”.

  2. “has falsely claimed to be a psychologist” (par 12(6d)): exhibit F, page 144, where it is said: “Jasmin Newman a fraud pretending to be a psychologist”.

  3. “has on multiple occasions attacked women who seek to protect their children from paedophiles” (par 12(6e)): exhibit F, page 144, extracted in [58(2)], above.

  1. Given the language of the publication, I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the seventh matter

  1. The seventh defamatory matter relied upon by the plaintiff is described as a publication on the Facebook page “Adam Whittington” on 24 October 2020: 4ASOC, pars 13 and 25.

  2. The publication is contained within exhibit F, page 148 and the plaintiff’s affidavit sworn 4 March 2025, annexure 1 (which contains a slightly clearer version).

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “seventh matter” conveyed three imputations each of which was defamatory of the plaintiff: 4ASOC, par 13. Those imputations were that the plaintiff:

  1. “supports paedophiles” (par 13(7a)): exhibit F, page 148 and plaintiff’s affidavit sworn 4 March 2025, annexure 1, where it is said:

“My stalking paedophiles just can’t handle the fact that they get exposed and try anything to silence those who speak out. New video out soon explaining these few parasites and those who support them over social media”

  1. “associates with paedophiles” (par 13(7b)): exhibit F, page 148, where it is said:

“New video soon on their paedophile associates & number one paedophile sympathiser Jasmin Newman…”

  1. “sympathises with paedophiles” (par 13(7c)): exhibit F, page 148, extracted above.

  1. I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued. Although, viewed in isolation, the first imputation does not expressly refer to the plaintiff, in my view, it is clear from viewing the post as a whole that it includes her: the identification of the “parasites and those who support them over social media” is, when the balance of the post is considered, plainly referring to those the subject of that “new video” – which includes the plaintiff.

The defamatory imputation: the eighth matter

  1. The eighth defamatory matter relied upon by the plaintiff is described as a publication on the Facebook page “Child Abduction Recovery Australia” on 15 December 2020: 4ASOC, pars 14 and 26(a).

  2. The publication is contained within exhibit F, page 149.

  3. The material was also published on the Facebook page “Child Abduction Recovery International CARI – Information Page” on 15 December 2020: 4ASOC, par 26(b); and on the Facebook page “Child Abduction Recovery International” on 15 December 2020: 4ASOC, par 26(c). The further publications are contained within exhibit F, pages 150-151.

  4. The plaintiff alleges that, in “its natural and ordinary meaning”, the “eighth matter” conveyed two imputations each of which was defamatory of the plaintiff: 4ASOC, par 14. Those imputations were that the plaintiff:

  1. “has committed fraud” (par 14(8a)): exhibit F, page 149 where it is said:

“We also push governments to regulate this industry thriving of frauds and their associates who are taking advantage of vulnerable parents.”

  1. “associates with persons who have committed fraud” (par 14(8b)): exhibit F, page 149, extracted above.

  1. In relation to each of the above imputations, the plaintiff alleges that she is identified by way of the inclusion of “#JasminNewman” at the conclusion of the body of text within each Facebook publication (4ASOC, par 33; exhibit F, page 149).

  2. I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued and, to be clear, identified the plaintiff by the inclusion of, following the defamatory remarks, a reference to the plaintiff thus: “#JasminNewman”.

The defamatory imputation: the ninth matter

  1. The ninth defamatory matter relied upon by the plaintiff is described as a publication on the Facebook page “Child Abduction Recovery International” on 31 March 2021: 4ASOC, pars 15 and 27.

  1. The publication is contained within exhibit F, page 152.

  2. The plaintiff alleges that, in “its natural and ordinary meaning”, the “ninth matter” conveyed six imputations each of which was defamatory of the plaintiff: 4ASOC, par 15. Those imputations were that the plaintiff:

  1. “has committed fraud” (par 15(9a)): exhibit F, page 152, first paragraph, where it is said:

“As there is more advertising for mediators to be used in IPCA cases, it also brings out frauds taking advantage of vulnerable parents. We have highlighted the IPCA frauds. This is Jasmin Newman…”.

  1. “grossly overcharges for her professional services as a family mediator” (par 15(9b)): exhibit F, page 152, first paragraph, where it is said: “… Jasmin Newman…charges ten times that of qualified and experienced mediators”.

  2. “has falsely claimed to be a psychologist” (par 15(9c)): exhibit F, page 152, first paragraph, where it is said: “She also has claimed to be a psychologist, but checks with the Australian health department [sic] reveals, she has no qualifications or license to practice psychology”.

  3. “is closely connected with persons who have committed fraud” (par 15(9d)): exhibit F, page 152, first paragraph, where it is said: “You’ll also find her connected closely to convicted frauds”.

  4. “is closely connected with paedophiles” (par 15(9e)): exhibit F, page 152, first paragraph, where it is said: “You’ll also find her connected closely to…some paedophiles”.

  5. “frequently attacks women who seek to protect their children from paedophiles” (par 15(9f)): exhibit F, page 152, first paragraph, where it is said: “She often attacks woman [sic] who protect their children from child predators, which is now supported by over half a dozen mothers”.

  1. Given the language of the publication, I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the tenth matter

  1. The tenth defamatory matter relied upon by the plaintiff is described as a publication on the Facebook page “Child Abduction Recovery International CARI – Information Page” on 31 March 2021: 4ASOC, pars 16 and 28.

  2. The publication is contained within exhibit F, page 153.

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “tenth matter” conveyed six imputations each of which was defamatory of the plaintiff: 4ASOC, par 16.

  4. The plaintiff accepted that the publication “is identical to the ninth matter and hence it conveys the same imputations” (MFI 1, par 21). Those imputations were that the plaintiff:

  1. “has committed fraud” (par 16(10a)).

  2. “grossly overcharges for her professional services as a family mediator” (par 16(10b)).

  3. “has falsely claimed to be a psychologist” (par 16(10c)).

  4. “is closely connected with persons who have committed fraud” (par 16(10d)).

  5. “is closely connected with paedophiles” (par 16(10e)).

  6. “frequently attacks women who seek to protect their children from paedophiles” (par 16(10f)).

  1. Given my conclusion in relation to the ninth matter, it follows that I am equally satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the eleventh matter

  1. The eleventh defamatory matter relied upon by the plaintiff was described as a publication on the Facebook page “Adam Whittington” on 21 October 2021: 4ASOC, pars 17 and 29.

  2. The publication is contained within exhibit F, pages 154-155.

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “eleventh matter” conveyed three imputations each of which was defamatory of the plaintiff: 4ASOC, par 17. Those imputations were that the plaintiff:

  1. “has supported one particular individual paedophile” (par 17(11a)): exhibit F, page 154, fourteenth paragraph, where it is said: “the only three sharing & or supporting the abuser were… Jasmin Newman…”.

  2. “is closely connected with paedophiles” (par 17(11b)): exhibit F, page 155, first paragraph, where it is said:

“These are facts, which are also public knowledge. It’s confirmed all three above are tightly connected with each other and some do have direct communication with the abuser… I rest my case”.

  1. “is dishonest” (par 17(11c)): exhibit F, page 155, third paragraph, where it is said: “[the plaintiff] has lodged a fabricated & malicious defamation lawsuit against me…”.

  1. It should be noted that the publication of this matter occurred after the amendments to the Defamation Act 2005 (NSW) (‘the Act’) that commenced on 1 July 2021.

  2. Given the language of the publication, I am satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

The defamatory imputation: the twelfth matter

  1. The twelfth defamatory matter relied upon by the plaintiff is described as a publication on the Facebook page “Adam Whittington Advocate” on 21 October 2021: 4ASOC, pars 18 and 30.

  2. The publication is contained within exhibit F, pages 158-159.

  3. The plaintiff alleges that, in “its natural and ordinary meaning”, the “twelfth matter” conveyed three imputations each of which was defamatory of the plaintiff: 4ASOC, par 18.

  4. The plaintiff accepted that the publication “is identical to the eleventh matter and hence it conveys the same imputations” (MFI 1, par 24). Those imputations were that the plaintiff:

  1. “has supported one particular individual paedophile” (par 18(12a)).

  2. “is closely connected with paedophiles” (par 18(12b)).

  3. “is dishonest” (par 18(12c)).

  1. Like the eleventh matter, the publication of this matter also occurred after the amendments to the Act that commenced on 1 July 2021.

  2. Given my conclusion in relation to the eleventh matter, it follows that I am equally satisfied and find that the matters complained about by the plaintiff conveyed – clearly and unambiguously – each of the defamatory imputations, as argued.

Damages

Introduction

  1. The plaintiff sought general and aggravated damages, interest on any damages awarded, together with a gross sum costs order in connection with counsel’s fees.

  2. Before dealing with the plaintiff’s entitlement to, and the assessment of, damages for those heads, I will set out the relevant principles that apply to this task.

Damages for defamation: the relevant principles

  1. The principles relating to an award of damages, including those for non-economic loss, in defamation proceedings are settled. They were discussed in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]-[85] (‘Ali’), from which the following summary is principally drawn. These principles are supplemented by, and subject to, provisions within the Act, to which reference will be made.

  2. An award of damages for defamation serves three overlapping purposes: first, “consolation for the personal distress and hurt caused to the plaintiff by the publication”; secondly, “reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation”; and, thirdly, “vindication of the plaintiff’s reputation”: Ali at [70], citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60-61; [1993] HCA 31 (‘Carson’); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at [60] and [69] (‘Rogers’). The first and second purposes “are frequently considered together and constitute consolation for the wrong done” to the plaintiff, whereas the third – vindication – “looks to the attitude of others to the [plaintiff]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation”: Carson at 60-61; Ali at [70].

  3. In terms of vindication, damages are not assessed solely by reference to circumstances “past and present; the amount must be sufficient to vindicate the plaintiff’s reputation in the… future”: Carson at 70; Ali at [75]. Thus, the damages awarded for defamation must take into account that the defamation “driven underground, emerges from its lurking place at some future date” (Cassell & Co Ltd v Broome [1972] AC 1027, 1071 (‘Cassell’)) or what is called the “grapevine effect”: the metaphor used “to help explain the basis upon which general damages may be covered in defamation actions” (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [88]), and expressed in Ley v Hamilton (1935) 153 LT 384, 386 in these terms:

It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large.  It is impossible to track the scandal, to know what quarters the poison may reach:  it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.

  1. The grapevine effect recognises that “the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published” and that the “‘poison’ of a libel may spread beyond the immediate recipients of the initial publication”: Hoser v Pelley [No 3] [2023] VSCA 257 at [221]; Crampton v Nugawela (1996) 41 NSWLR 176, 194-195.

  2. The assessment of damages “involves an understanding of the nature and seriousness of the imputations and the [defendant’s] conduct”: Ali at [76], citing Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 241; [1991] HCA 10. To that end, relevant considerations to the assessment of damages include “the gravity of the libel, the social standing of the parties and the availability of alternative remedies” (Carson at 60, citing J Fleming, Law of Torts (8th ed, 1992, Lawbook Co.) at 595), as well as the extent of the publication. As to that last matter, and the conduct of the defendant, a court may also take into account the fact that the defamatory statement “was never retracted, that no apology was ever offered to the [plaintiff], and that the statement had been persisted in to the end”: Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254, 263; [1928] HCA 36; Ali at [76].

  3. Damage to the reputation of the defamed person need not be proved; rather, it is presumed: “The law presumes that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff’s right and calls it general damage”: Ratcliffe v Evans [1892] 2 QB 524, 528-529; Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225, 258; Bristow v Adams [2012] NSWCA 166 at [20]-[31]. Notwithstanding the presumption that some damage will flow, evidence may be – and typically is – given of actual damage to the plaintiff; undoubtedly that is because although some harm is presumed, “the extent of that harm is not”: Eppinga at [100]. (In relation to the publication of defamatory matters after 1 July 2021, there is a need to consider the “serious harm” threshold: s 10A of the Act; see [105], below. That provision is, however, only relevant to the eleventh and twelfth matters).

  4. The award of damages must reflect the effect that the particular defamation had on the plaintiff: Rogers at [69]. Further, it has been recognised that a person publishing defamatory material must take the plaintiff as they find them, with the consequence that it is appropriate to have regard to any particular sensitivities of the plaintiff: Ali at [77].

  5. In addition to damages for non-economic loss, an award of aggravated damages is also available. Exemplary (punitive) damages cannot be awarded: s 37 of the Act.

  6. Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31]. They are awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1, 8; [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118, 130 and 149; [1966] HCA 40. (Where malice is involved, s 36 of the Act is relevant: see [104], below).

  7. Aggravated damages thus may be awarded where “the defendant has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable”: Triggell v Pheeney (1951) 82 CLR 497, 514; [1951] HCA 23; Ali at [79]; KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; [2020] NSWCA 28 at [150]. Conduct of this kind, which will increase the harm caused by the defamation and may be considered, includes “a failure to apologise, and the conduct of the defendant right up to the [moment] of verdict are all matters which may be taken into account”: Korean Times Pty Ltd v Pak [2011] NSWCA 365 at [126]; Ali at [81]-[83], [85].

  8. As aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings or to the plaintiff’s reputation (Ali at [80], citing Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, 75), the Court must take care not to ‘double-count’. This means that, if damages are awarded for hurt feelings or to the plaintiff’s reputation as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach; that is, an award of so much as is necessary to bring the damages up to the upper end of the available range: Ali at [84]; State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96]. That has been described as the “conventional approach”; that is, if aggravated damages are to be awarded, a separate sum is not awarded because “it is not a discrete head of damage” (Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [385]; Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 at [380] (‘Rush’)) and, further, a separate award “would usually be difficult to assess”: Rush at [380] and the authorities there cited. (In relation to publication of defamatory matters after 1 July 2021, and the awarding of aggravated damages to such matters, the manner in which an award is to be made is dealt with in s 35(2B) of the Act: see [105], below).

  9. Reference should now be made to the relevant provisions of the Act that inform, and constrain, the assessment of damages. Before doing so, it should be noted that the amendments to the Act brought about by the Defamation Amendment Act 2020 (NSW), which commenced on 1 July 2021, are accepted by the plaintiff to apply to the eleventh and twelfth matters, given that those matters were published after that time, as earlier noted: see [82] and [88], above.

  10. The statutory provisions relevant to the assessment of damages are as follows. First, in “determining the amount of damages to be awarded… the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”: s 34. Secondly, the amount of non-economic loss is capped to “the maximum amount” prescribed: ss 35(1)-(2). The current maximum amount is $478,500 (as from 1 July 2024): New South Wales Government Gazette, No 245, 28 June 2024, at 9. Thirdly, the Court is to disregard the malice of the defendant at the time of the publication or at any other time, except to the extent that the malice affects the harm sustained by the plaintiff: s 36. Fourthly, as earlier noted, the plaintiff cannot be awarded exemplary damages: s 37. And, finally, if a court finds for a plaintiff in relation to more than one cause of action, damages may be assessed “in a single sum”: s 39.

  11. However, in the form following the commencement of the Defamation Amendment Act, two further constraints are relevant. The first is the serious harm element – that is, the requirement that the “publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person”: s 10A. The second is that, in relation to aggravated damages, any award of aggravated damages “is to be made separately to any award of damages for non-economic loss to which [s 35](1) applies”: s 35(2B).

Discussion and consideration

  1. The plaintiff’s damages submissions focused upon three matters: first, the inherent seriousness of the imputations; secondly, the “scope of publication”; and, thirdly, the evidence adduced by, or on behalf of the plaintiff, about the impact the defamatory matters have had, and continue to have, upon her.

  2. The plaintiff drew attention to some authorities, submitting that they provided guidance “in respect of the appropriate quantum of damages”: plaintiff’s submissions dated 12 February 2025, pars 21-24. Whilst, in point of principle, it is considered appropriate to give comparable authorities some consideration when assessing damages for defamation, there necessarily are limits to their use – fixing an appropriately proportionate sum of damages necessarily has as its focus the subjective effect of the defamation on the particular plaintiff.

The seriousness of the imputations

  1. In relation to the seriousness of the imputations, I accept, as was submitted, that each of the imputations are inherently serious on their own – particularly those that falsely suggested that the plaintiff supports paedophiles; sympathises and/or is connected and/or associates with paedophiles; and seeks to protect paedophiles from being brought to justice (and like matters). Imputations of this broad kind (which form part of the first, second, third, fourth, sixth, seventh, ninth, tenth, eleventh and twelfth matters) are considered to be, and I accept are, grave or extreme imputations: Whittington v Newman [2024] NSWCA 27 at [42]-[43] (‘Whittington’), citing D Rolph, “A serious harm threshold for Australian defamation law” (2022) 51(2) Australian Bar Review 185 at 197. Although the balance of the imputations conveyed are of a qualitatively different kind, that is not to downplay their seriousness: the imputations nonetheless strike at the heart of the plaintiff’s integrity, honesty and professional competence – matters that are, given her professional calling, undeniably of importance. Further, I have also had regard, when assessing the seriousness of the imputations, to the nature and extent of the defamatory imputations in each publication. For example, for the third matter, there were eight defamatory imputations conveyed by that publication: see [44]-[47], above.

  2. In relation to the eleventh and twelfth matters, consideration must also be had to the operation of s 10A of the Act. As earlier noted, by that provision, it “is an element… of a cause of action for defamation that the publication of defamatory matter about the person has caused, or is likely to cause, serious harm to the reputation of the person”. The defamatory imputations conveyed by these matters were the same – namely, that the plaintiff supported a particular paedophile, and was closely connected with paedophiles, as well as being “dishonest” (see [81] and [87], above).The serious harm element was discussed by the Court of Appeal in Whittington, notably from [42]-[51]. I am satisfied that the publication of these matters is likely to have caused serious harm to the reputation of the plaintiff. Although, so far as the eleventh and twelfth matters were concerned, the evidence, specifically directed to this particular element was limited, I am, nevertheless satisfied that this element has been established. The defamatory imputations conveyed by these matters – essentially that the plaintiff was a supporter of a particular paedophile, and closely connected with paedophiles, as well as being dishonest – are imputations the character of which that I am prepared to infer is likely to have caused serious harm to the reputation of plaintiff: see Whittington at [42]-[43]; Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 at [58] and [81] (‘Peros’).

Gross sum costs orders: the power and the relevant principles

  1. Section 98 of the Civil Procedure Act 2005 (NSW) (‘the CPA’) grants the Court discretion to award costs. By s 98(4)(c), the Court is entitled to make a gross sum costs order in place of assessed costs:

98   Courts powers as to costs

(1)  Subject to rules of court and to this or any other Act—

(a)  costs are in the discretion of the court, and

(b)  the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)  the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

…

(4)  In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to—

(a)  costs up to, or from, a specified stage of the proceedings, or

(b)  a specified proportion of the assessed costs, or

(c)  a specified gross sum instead of assessed costs, or

(d)  such proportion of the assessed costs as does not exceed a specified amount.

  1. The guiding principle, in an application for a gross sum costs order, is that the “power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available”: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22] (‘Harrison’). The relevant principles were summarised in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [14]-[18] (‘Ahern’) in these terms:

14. The principles relevant to the Court’s exercise of discretion under s 98 were set out in Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA) (Hamod). Her Honour noted at [813]:

[813] The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

“The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.”

15. The principal purpose of a specified gross sum costs order under s 98(4)(c) is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Hamod at [816]-[817]. As Basten JA noted in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3]:

The power to make such an order is governed by the obligation of the court to give effect to the overriding purpose of the Act, as identified in Pt 6 of the Civil Procedure Act. The court is to ensure that the issues between the parties are resolved “in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute” (Civil Procedure Act, s 60); that obligation extends to the disposal of disputes as to costs. Although questions of costs undoubtedly play an important practical role in commercial litigation, disputes as to quantification are ancillary to the primary issues in dispute and consequential upon the resolution of the primary issues. Costs provide an opportunity for ongoing litigation about “non-essential issues” which should be resolved with as little technicality and expense as reasonably practicable. [footnotes omitted]

16. Primary considerations relevant to the exercise of the s 98(4)(c) discretion include “the relative responsibility of the parties for the costs incurred; the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability”: Hamod at [816]; see also Kostov v Zhang (No 2) [2016] NSWCA 279 at [22]; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [30].

17. The power to award a gross sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [22]. The power may be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod at [818].

18. If it considers it appropriate to make the order, the Court may adopt a “broad brush” approach to quantification, as to require the Court to undertake a detailed examination of the kind carried out in a formal costs assessment would defeat the purpose of the order: Harrison v Schipp at 743; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. The costs ordered should be “based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills)”: Hamod at [820]. Courts have typically applied a discount when assessing costs on a gross sum basis, though the aptness of a discount primarily depends on the accuracy and reliability of the costs evidence available to the Court: Hamod at [814].

  1. In my view, the following matters demonstrate that this is an appropriate case for the exercise of the Court’s discretion, under s 98(4)(c) of the CPA, to make a gross sum costs order. First, it will avoid the delay, cost and expense of the assessment process. Secondly, there remains some doubt about the defendant’s capacity – putting to one side his willingness – to meet his liability in costs. In relation to this matter (and the first), the evidence from the plaintiff in her affidavit sworn 12 February 2025, par 24 and annexure I records the defendant’s assertion that the plaintiff “won’t get one cent”. Thirdly, in the event that there was a requirement to have the costs assessed, putting to one side the inevitable delay that would result if that were to eventuate, it is quite likely – given what has occurred in the proceedings to this point – that there would be “aggravation” (in the sense described in the authorities, earlier referred to) involved in such process. Fourthly, the power is appropriately exercised where – as here, I find – “a party’s conduct has unnecessarily contributed to the costs of the proceedings”, particularly, “where the costs incurred have been disproportionate to the result of the proceedings”: Ahern at [17].

  2. Although I have found that the circumstances are such that it is appropriate for the Court to give consideration to the exercise of its discretion to make a gross sum costs order under s 98(4)(c) of the CPA, the power “should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials”: Harrison at [22]; Ahern at [17]. I am satisfied as to the existence of both matters.

  3. I turn now to the quantification of the plaintiff’s costs (relating to counsel’s fees). This needs to be an informed assessment so as to permit the Court to make a “logical, fair and reasonable” estimate: Beach Petroleum NL v Johnson(No 2) (1995) 57 FCR 119, 123; [1995] FCA 350. In undertaking that assessment, however, the Court applies a “broad brush”, mindful that the process is not to take on the characteristics of a formal costs assessment – something that would defeat the purpose of the order: Ahern at [18].

Discussion and consideration

  1. The amount claimed for the gross sum costs order reflects the involvement of the plaintiff’s counsel across what has been described as four “parts”: first, the involvement of the plaintiff’s counsel in the matter, including multiple appearances, before Sackar J; secondly, the involvement of the plaintiff’s counsel in the matter, including multiple appearances, before Rothman J; thirdly, the involvement of the plaintiff’s counsel in the matter, including multiple appearances, in the Court of Appeal; and, fourthly, the involvement of the plaintiff’s counsel in the matter, including multiple appearances, leading to and including the current hearing.

  2. The amount claimed across each part is: first part – $62,200.00 plus GST; second part – $32,500.00 plus GST; third part – $29,600.00 plus GST; and fourth part – $43,650.00 plus GST. The total is: $167,950.00, plus $16,795.00 GST = $184,745.00 (plaintiff’s submissions dated 20 March 2025, par 15). The daily and hourly rates charged by counsel are: $3,500.00 plus GST per day (for periods, the daily rate was $3,000.00) and $450.00 per hour (for periods, the hourly rate was somewhat less).

  3. Given the seniority of counsel (who was admitted to the Bar in 2013 and as a solicitor approximately four years prior to that (Tcpt, 5 March 2025, 41(5))), I consider these rates to be reasonable and compare favourably with the Guidelines of the New South Wales Costs Assessment Rules Committee dated 24 October 2023. I also consider that, consistent with the earlier mentioned directive in the authorities to approach the matter in a “broad brush” way, having regard to the Court file, the nature of the issues in dispute and the history of the matter generally, the amount claimed by counsel reasonably reflects the work required to be, and in fact, undertaken.

  4. Generally speaking, as was explained in Ahern at [42]-[43], courts have applied a discount when assessing costs on a gross sum basis:

42. In making a gross sum costs order, the Court is entitled to take into account that if assessed on the ordinary basis, the usual outcome is that the costs recovered represent a proportion in the range of 60 to 85% of the total costs incurred (Bechara v Bates [2016] NSWCA 294 at [69]). Accordingly, in assessing the gross sum costs order, the Court should apply an “impressionistic” or “broad brush” approach in applying a discount to reflect that reality: Hamod at [820]; Bechara at [14].

43. That approach has resulted in discounts ranging between 10% and 30% being applied, although the ultimate discount or deduction applied must take into account the evidence and circumstances of the particular case. For examples of such cases, see Eliezer (No 2) at [30] (20%); and Penson v Titan (No 3) at [24] (30%).

  1. That general rule recognises that “the aptness of a discount primarily depends on the accuracy and reliability of the costs evidence available to the Court”: Ahern at [18].

  2. In my view, consistent with the authorities to which reference has been made, it is appropriate to discount the costs claimed given the costs orders made, and to be made, entitle the plaintiff’s costs to be payable on a “party/party” (or “ordinary”), and not an indemnity, basis and, further, there is nothing to suggest that the “usual outcome” would not apply if these costs were assessed. In the circumstances, I propose to discount the costs claimed by 20% – that is, the amount ordered will be $147,796.00.

  3. There remains one further issue – relating to the costs referable to the “third part” (being work referable to proceedings, and appearances, in the Court of Appeal), being the amount of $29,600.00 plus GST. Specifically, whether any gross sum can extend to those costs that were ordered to be paid, following the defendant’s unsuccessful appeal to that Court (the order made by the Court of Appeal on 16 February 2024 was: summons seeking leave to appeal filed 10 January 2023, dismissed with costs). The position of the plaintiff was, at least initially, that any application for a gross sum costs order in respect of the Court of Appeal costs required an application to that Court. During the course of submissions, however, and in light of the decision of Campbell J in Commonwealth Bank of Australia v Goater [2016] NSWSC 216 (‘Goater’), the plaintiff submitted that an order could, and should, be made.

  4. In my view, there is no impediment to this Court dealing with those costs incurred in connection with the appeal to the Court of Appeal. In short, that is because any gross sum costs order made does not involve any variation to (or inconsistency with) the order of 16 February 2024, nor does it, in substance or in form, alter it; rather, the order is merely a supplemental one that implements the “earlier costs order, by providing an alternative mode of enforcing it”: Short v Crawley (No 45) [2013] NSWSC 1541 at [33]; Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) (2023) 113 NSWLR 381; [2023] NSWCA 311 at [38]. That approach is also consistent with the reasoning of Campbell J in Goater at [14]-[15] (a decision which held that it was open to a Judge in the Common Law Division to make an order that costs payable by order made by the Court of Appeal be payable forthwith).

  5. For these reasons, I propose to order that the defendant pay the costs relating to the plaintiff’s counsel as claimed, albeit discounted by 20%.

Pro bono assistance

  1. The plaintiff was represented by Mr R Armitage, of counsel, on a pro bono basis.

  2. I wish to record my gratitude for him doing so, and for the assistance that he provided to the Court. The administration of justice is enhanced by the willingness of counsel, and those that provide their services through the Legal Assistance Referral Scheme, to appear on this basis.

Orders

  1. For the above reasons I make the following orders:

  1. Judgment for the plaintiff against the defendant in the sum of $160,000.00.

  2. Order the defendant to pay the plaintiff’s costs of and incidental to the proceedings, including pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the amount of $147,796.00 representing fees incurred by counsel for the plaintiff.

  3. Order, pursuant to r 7.41(2) of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’), that Robert Armitage, counsel for the plaintiff, being a barrister who has provided legal assistance to the plaintiff under the scheme for the provision of legal assistance to litigants under Division 9, Part 7 of the UCPR, is entitled to recover the sum specified in order 2.

  4. Order the gross sum costs payable by the defendant in respect of fees incurred by counsel for the plaintiff specified in order 2 (namely, $147,796.00) is to be paid:

  1. within 28 days; and

  2. to a bank account nominated by the plaintiff’s counsel, and to be advised to the defendant.

  1. Order that the defendant be permanently restrained by himself, his servants or agents from publishing or further publishing the matters complained of in these proceedings or any other matter giving rise to the imputations found in this judgment to have been conveyed by those matters (or similar imputations not differing in substance from them).

  2. Order, within 21 days from the date of these orders, the defendant to remove the publications of the 12 matters referred to in the judgment of the Court, and any other material giving rise to those imputations, from electronic platforms controlled by the defendant, those platforms including:

  1. The “WordPress site” with the name: “CARI – Child Abduction Recovery International”.

  2. The “WordPress site” with the name: “Adam Whittington”.

  3. The Facebook page with the name: “Child Abduction Recovery International”.

  4. The Facebook page with the name: “Child Abduction Recovery International CARI – Information Page”.

  5. The Facebook page with the name: “Child Abduction Recovery Australia”.

  6. The Facebook page with the name: “Adam Whittington”.

  7. The Facebook page with the name: “Adam Whittington Advocate”.

  8. The Twitter or X page with the name: “CARI – Child Abduction”.

  1. Direct that the Registrar of the Court send a copy of these reasons for judgment to the defendant.

  2. Direct that these orders be entered forthwith.

**********

Decision last updated: 26 March 2025

Most Recent Citation
Cases Citing This Decision

1

Chompuchan v Srimongkol [2025] NSWDC 161
Cases Cited

56

Statutory Material Cited

6

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Al Muderis v Duncan [2016] NSWSC 1726
Ali v Nationwide News Pty Ltd [2008] NSWCA 183