DISTRICT COURT OF QUEENSLAND
CITATION:
Noone v Brown [2019] QDC 133
PARTIES:
MAXINE NOONE
(plaintiff)v
HEATHER MANSELL BROWN
(defendant)FILE NO:
1510/18
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
2 August 2019
DELIVERED AT:
Brisbane
HEARING DATE:
11, 12, 13, 14, 18, 24, 25 and 28 June 2019
JUDGE:
Smith DCJA
ORDER:
I give judgment for the plaintiff against the defendant in the sum of $15,000.00.1.
I will hear the parties on the question of costs.2.
CATCHWORDS:
DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – IMPUTATIONS – whether imputations alleged are available
DEFAMATION – DEFENCES – JUSTIFICATION –TRUTH – FAIR REPORT – MATTER OF PUBLIC INTEREST – OTHER DEFENCES – whether the defendant has established defence – whether malice has been established by the plaintiff
DEFAMATION – GENERAL DAMAGES – ASSESSMENT – how much should be awarded
DEFAMATION – AGGRAVATED DAMAGES – ASSESSMENT – how much should be awarded (if any)
DEFAMATION- INJUNCTIONS – whether should be granted
Defamation Act 2005 (Qld) ss 24, 25, 26, 30, 31, 34, 35, 36
Health (Drugs and Poisons) Regulations 1996 (Qld) s 110
Amalgamated Television v Marsden (1998) 43 NSWLR 158
Bale v Mills (2011) 81 NSWLR 498
Bashford v Information Australia (Newsletters) Pty Limited
(2004) 218 CLR 366; [2004] HCA 5
Bellino v Australian Broadcasting Corporation (1996) 185
CLR 183; [1996] HCA 47
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA
34
Browne v Dunn (1893) 6 R 67
Calwell v Ipec Australia Ltd (1975) 135 CLR 321; [1975]
HCA 47
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44;
Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R
89; [2014] QCA 33
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR
519; [1998] HCA 37
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR
245; [2007] HCA 60
Cheng v Tse Wai Chun (2000) 3 HKCFAR 339
Crampton v Nugawela (1996) 41 NSWLR 176; [1996]
NSWSC 651
Cripps v Vakras [2014] VSC 279
David Syme & Co v Canavan (1918) 25 CLR 234; [1918]
HCA 50
Fairfax Digital Australia and New Zealand Pty Ltd v Kazal
(2018) 97 NSWLR 547; [2018] NSWCA 77
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR
1716; [2005] HCA 52
Fraser v Holmes [2009] NSWCA 36
French v Triple M Melbourne Pty Ltd [2008] VSC 553
Guise v Kouvelis (1947) 74 CLR 102; [1947] HCA 13
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84;
[1910] HCA 66
Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695;
Hockey v Fairfax Media Publications Pty Limited (2015) 332
ALR 257; [2015] FCA 652
Horrocks v Lowe [1975] AC 135
Howden v Truth & Sportsman Limited (1937) 58 CLR 416;
Irving v Penguin Books Ltd [2000] EWHC QB 115
John Fairfax Publications Pty Ltd v O’Shane (2005) ATR
81-789
Jones v Skelton [1963] 1 WLR 1362; (1963) SR (NSW) 644
Kuhl v Zurich Financial Services Australia Ltd (2010) 243
CLR 36; [2011] HCA 11
Lange v Australian Broadcasting Corporation (1997) 189
CLR 520; [1997] HCA 25
Lewis v Daily Telegraph Ltd [1964] AC 234
Lloyd-Jones v Allen [2012] NSWCA 230
Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19;
O’Brien v Australian Broadcasting Corporation [2016]
NSWSC 1289
O’Reilly v Edgar [2019] QSC 24
Queensland Newspaper Pty Ltd & Hardy v Baker [1937] St
R Qd 153.
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR
460; [2009] HCA 16
Random House Australia Pty Ltd v Abbott (1999) 94 FCR
296; [1999] FCA 1538
Ratcliffe v Evans [1892] 2 Q.B. 524
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122
Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4
Stephens v West Australian Newspapers Ltd (1994) 182 CLR
211; [1994] HCA 45
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632;
Trkulja v Google LLC (2018) 92 ALJR 619; [2018] HCA 25
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118; [1966]
HCA 40
Wagner & Ors v Harbour Radio Pty Ltd & Ors (2018) ATR
82-405; [2018] QSC 201
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
COUNSEL:
Mr P. McCafferty QC for the plaintiff
Solicitors for the defendant
SOLICITORS:
Carter Newell for the plaintiff
GTC Lawyers for the defendant
Table of Contents
Introduction
Pleadings
Amended Statement of Claim
Defence
Defence particulars
Reply
Evidence
Plaintiff’s case
Plaintiff
Paul Farrington
Tim Antonio
Tim Noone
Paul Noone
Defendant’s case
Defendant
Matthew Newton
Elizabeth Waugh
Dr Reedy
Susan Luder
Robert Shipley
Susan Barnett
Debbie Sauverain
Jenny Honan
Janet Howe
Dr Brett Burrett
Sheelagh Hanson
Nicoletta Carter
Karen Moore
Terms of reference
Rebuttal evidence
Sandy Peardon
Justine Brunner
Lynette Haslem
Leanne Reynolds
Stephen Evans
Submissions
Plaintiff’s submissions
Defendant’s submissions
Further written submissions
Findings
Applying the law to the facts found
The action for defamation
The defences
Defence of justification – common law
Defence of justification – Defamation Act
Defence of contextual truth – Defamation Act
Common law – qualified privilege
Defence of qualified privilege – Defamation Act
Defence of honest opinion – Defamation Act
Conclusion on liability
Damages
General principles
Conclusion on damages
Introduction
This is an action by the plaintiff for damages for defamation.
At all material times, the plaintiff was the Director of Nursing at the Millmerran Centenary Retirement Village (“MCRV” or “Yallambee”).
The alleged defamatory comments were posted by the defendant on Facebook over a few days in October 2017.
Pleadings
Amended Statement of Claim
In the Amended Statement of Claim[1] the plaintiff alleges that in October 2017 the defendant published a number of posts on her Facebook account concerning the plaintiff.
[1]Exhibit B filed by leave on 10 June 2019.
In paragraph 4 of the Amended Statement of Claim it is alleged that on 6 October 2017 the following post occurred:[2]
“Millmerran Centenary Retirement Village
Your brochure paints such a pretty picture of your establishment but I’m afraid it’s just a bad joke as bad as your committee’s president’s offensive elderly jokes he writes in your newsletters. With complaints of staff bullying, forging signatures, miss use of medication and total lack of discernment and negligence, you should be seriously thinking of sacking your incompetent DON, president any board members that does not have the interest of or consideration of the Elderly and their welfare paramount. These are frail, vulnerable lives you are playing with and deserve better.”
[2]The first matter complained of - Exhibit 1.
In paragraph 5 of the Amended Statement of Claim it is alleged that on 7 October 2017 the defendant published the following post on the public page of her social media account:[3]
“Well we know one person who will not suffer dehydration the DON drinks on duty at Millmerran.”
[3]The second matter complained of - Exhibit 2.
In paragraph 6 of the Amended Statement of Claim it is alleged that on an undisclosed date the defendant published a third post on the public page of her social media account:[4]
“It concerns me as it should others that the facility at Millmerran has employed a DON who was escorted off the premises at their last job, was this because of the drinking habit or missing of narcotic drugs.”
[4]The third matter complained of - Exhibit 3.
In paragraph 7 of the Amended Statement of Claim it is alleged that on an undisclosed date the defendant published a fourth post on the public page of her social media account in an exchange with Jayne Hughes wherein the defendant stated:[5]
“Evidently not the DON was walked off the premises at her last job at Rockride Salem.”
[5]Part of the third matter complained of.
The plaintiff alleges the posts were published of and concerning her.
The following imputations are pleaded in paragraph 10 of the Statement of Claim:
First matter complained of:
(a) The plaintiff is incompetent;
(b) The plaintiff is unfit to care for the elderly or discharge the responsibilities of Director of Nursing at the MCRV and should be dismissed.
Second matter complained of:
(a) The plaintiff is habitually intoxicated when on duty;
(b) In the alternative to (a), the plaintiff habitually drinks alcohol while on duty.
Third matter complained of:
(a) The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol;
(b) The plaintiff was dismissed from her previous job and escorted off the premises because she stole narcotic drugs;
(c) In the alternative to (b), the plaintiff was dismissed from her previous job and escorted off the premises because she was responsible for narcotic drugs going missing;
(d) The plaintiff is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job because she either had a problem with alcohol or stole narcotic drugs;
(e) In the alternative to (d), the plaintiff is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job either because she had a problem with alcohol or was responsible for narcotic drugs going missing.
It is alleged in the statement of claim that the imputations were defamatory and the plaintiff has been injured personally and professionally and as a result damages, including aggravated damages, are sought.
Defence
The defendant in her further amended defence[6] does not admit the plaintiff was named in the publications. As to the imputations, the defendant admits imputation 10(a) but denies the other imputations are open.
[6]Exhibit B.
Further, in paragraph 4 of the defence, the defendant says that if the words were defamatory then the meanings were true and for the public benefit, or that the defamatory matter was substantially true and the publication was justified under s 25 of the Defamation Act2005 (Qld).
In paragraph 5 of the defence, the defendant pleads:
“In the further alternative, the Defendant says the words complained of in paragraphs 4, 5, 6 and 7 contained the following contextual imputations:
(a) The plaintiff drank alcohol while on duty;
(b) The plaintiff was responsible for a workforce at which workplace bullying occurred;
(c) Scheduled drugs went missing from the MCRV and were not accounted for;
(d) The plaintiff had not acted in the best health interests of some of the residents of the MCRV;
(e) The medical treatment of some of the residents of MCRV, as to which the plaintiff oversaw and was responsible for, was unprofessional that are substantially true and the imputations alleged by the plaintiff as defamatory do no further harm to the reputation of the plaintiff because of the substantial truth of the balance of the other imputations, and therefore the publication was justified pursuant to section 26 of the Defamation Act2005.”
It was then alleged that particulars would be provided separately.
In paragraphs 6 and 7 it is pleaded:
“In the further alternative, the defendant says that if any of the matters complained of are found to be defamatory of the plaintiff, such defamatory matter was published in good faith:
(a) For the protection of the community interests so as to bring attention to the welfare of the residents of MCRV;
(b) For the public good;
(c) For the purposes of the discussion of a subject of public interest, namely the management of the medical care of the residents of MCRV;
(d) The public discussion of which was for the public benefit, and insofar as the defamatory matter consisted of comment, the comment was fair;
(e) For the purpose of giving information to the recipients with respect to the plaintiff’s management of the medical care of the residents of MCRV, as to which the defendant believed on reasonable grounds the recipients had such an interest in knowing the truth, so as to make her conduct in making the publication reasonable on the circumstances.
7. In the further alternative, the defendant says that if any of the matters complained of are found to be defamatory of the plaintiff, the defendant is not liable for same pursuant to s 30 of the Defamation Act 2005 on the grounds pleaded in the preceding paragraph.”
In paragraph 8 of the defence it is then alleged:
“In the further alternative, the defendant says if and insofar as it should be found that the words complained of in paragraphs 4, 5, 6 and 7 bore the defamatory meanings alleged… the defendant is not liable for the same pursuant to s 31 of the Defamation Act 2005 on the grounds that:
(a) The matters were expressions of opinion of the defendant rather than statements of fact; and
(b) The opinions related to a matter of public interest being the management of clinical health care and nursing care at MCRV, being a not-for-profit community owned facility; and
(c)The opinion was based on proper material on the basis:
(i) Of material that was substantially true (particulars will be provided separately);
(ii) And on an occasion of qualified privilege pursuant to s 30 of the Defamation Act as pleaded in paragraphs 6 and 7 above.”
Finally the defendant denies the plaintiff has been injured.
Defence particulars
Particulars were provided by the plaintiff on 11 June 2019. After rulings and debate they finally were as follows:[7]
[7]Exhibit P. Transcript day 2 pages 14-18.
“1. Drinking whilst on duty
a) On 8 May 2017 the Plaintiff was observed by Nicki Carter to be under the influence of alcohol during a staff meeting; and on occasion when treating Noel Hopkins. She would also often smell of alcohol and eat minties to cover the smell.
b) On 24 July 2017 the Plaintiff was observed by Nicki Carter to be drinking alcohol whilst on duty;
c) On 7 December 2016 Robert Shipley observed the Plaintiff to be under the influence of alcohol whilst on duty.
d) Dr Reedy witnessed the plaintiff to be under the influence of alcohol in September 2016 and 20 January 2017 whilst on duty.
e) On one occasion when Susan Luder spoke to the plaintiff, she was slurring her words and incoherent.
f) Being abusive over the phone to Dr Brett Burrett on 20 May 2018 and acting in such an unprofessional way that may have been influenced by an intoxicating substance when he made enquiries about clinical notes.
2. Competency
a) The Plaintiff refused to respond when advised at midnight 12 December 2016 by Nicki Carter of the serious health condition of Mr Contant;
b) Residents fluid intake was restricted, with the knowledge of the Plaintiff, so as to decrease the need for changing incontinence pads;
c) Residents, including Ruthie Carter, were suffering from severe pressure sores as a consequence of the poor nursing under the supervision of the Plaintiff.
d) On 31 July 2017 Aileen Callan’s broken hip and wrist were left untreated for 24 hrs after a fall and the Plaintiff failed to follow any falls management process;
e) Gary Howe's medical care, under the supervision of the Plaintiff was poor including aggravated rashes in the groin and failing to advise family members of his seizures and aspiration of vomit.
f) The Plaintiff was unaware of a medical directive in place in respect of Heather Brown at the facility, despite it being on Ms Brown's file;
g) Mrs Margaret Fitch, whilst a resident, was denied access to the TV, left for inappropriate periods of time in soiled clothes, left for lengthy periods of time on the toilet, and was showered infrequently.
h) Plaintiff was unaware whether Heather May Brown was on antibiotics during October 2017 when she had a urinary tract infection.
i) For the reasons also set out in paragraph 1 and 3-5 below.
3. Workplace Bullying
a) The Plaintiff disclosed a confidential medical diagnosis of Nicki Carter to other staff;
b) In January 2017 the Plaintiff disclosed to carers complaints made by other carers resulting in workplace disharmony;
c) In August 2018 an employee Vicky Pokarier was intimidated by the Plaintiff;
d) Robert Shipley was subjected to workplace bullying by the Plaintiff resulting in a complaint by him to the Health Ombudsman.
e) Bullying [by the plaintiff] causing stress to Karen Moore that led to her resignation;
f) Instructing Susan Luder not to take photos of wounds where it was standard practice and being told she felt bullied and intimidated because of that.
4. Misusing medication
a) Carers, with the knowledge of the Plaintiff, were administering PRN medications including Oxazepam, Respiradone and Alepam without contacting registered nursing staff and were not recording that medications have been administered
b) Between April and July 2017. Medications including Respiradone and Oxazepam went missing from a resident’s Webster-pak;
c) On 24 January 2017 a quantity of Endone went missing, some of which was located in a rubbish bin by the Plaintiff, despite that bin having been searched twice by staff, who then demanded that a carer take possession of the Endone despite being aware that the carer was not permitted to handle Schedule 8 opiates;
d) The remaining Endone was not located, and was not reported.
5. Lack of Professionalism
a) In May 2017 the Plaintiff threatened Jenny Honan over the telephone by telling her she had better watch what she writes and say, after having opened correspondence from Ms Honan to her mother in which Ms Honan's complaint about the Plaintiff to QCAT had been recorded.
b) The Defendant relies on the particulars stated in paragraphs 1, 2, 3 and 4 above.
6. Lack of Fitness to care for the elderly
a) The Defendant relies on the particulars stated in paragraphs 1, 2, 3 and 4 above.”
Reply
By way of reply[8] the plaintiff says:
[8]Part of Exhibit B.
(a) To any person who had an interest in the affairs of the retirement village they would have been aware that the plaintiff was the Director of Nursing;[9]
[9]Paragraph 2(cc) of the reply.
(b) The publications were not for the public benefit and were published dishonestly and maliciously;[10]
[10]Paragraph 6 of the reply.
(c) There was no substantial truth in the allegations and every one of them is unsubstantiated, scandalous and false;[11]
[11]Paragraph 6 of the reply.
(d) The publications were not in good faith or for the protection of the community’s interests, for the public good or for the purpose of discussion of a subject of public interest and were undertaken dishonestly and maliciously for the sole purpose of seeking to damage the plaintiff’s reputation;[12]
[12]Paragraph 6B(c) of the reply.
(e) The matters reported by Carter and Shipley are false and both are incompetent former employees and are motivated by animus towards the plaintiff;[13]
[13]Paragraph 6B(d) and (e) of the reply.
(f) Qualified privilege is not available under s 30 of the Defamation Act;[14]
(g) The statements were not expressions of opinion but were of fact, they were not in the public interest and were not substantially true and were not based on proper material.[15]
[14]Paragraph 6C of the reply.
[15]Paragraph 6D of the reply.
Evidence
Plaintiff’s case
Plaintiff
The Plaintiff gave evidence that she was the Director of Nursing at the MCRV. She was married to Paul and they had two sons, James and Timothy. She lives in Toowoomba during the weekends and Millmerran during the week.
She commenced her training as a nurse in January 1969 at Ballarat Base Hospital. After qualifying she went to the Queen Elizabeth Hospital in Adelaide (ICU) where she worked as a registered nurse.[16] She then returned to the Ballarat Base Hospital where she completed midwifery. She became a charge nurse there, in charge of the surgical ward. She then did a degree in nursing management in 1979 in Melbourne. She returned to the Ballarat Base Hospital and then became a matron of a small hospital in Beaufort 1981 for 5 years.[17] In 1984 she was married and she fell pregnant with the eldest son in 1986. At this time she became a part-time assistant Director of Nursing at the Ballarat Base Hospital. James was born in 1986. She continued part-time as the associate Director of Nursing at Ballarat. She was in charge of the whole hospital which had 110 beds.[18] Timothy was born in 1987. In 1989 she became the Director of Nursing at the St Arnaud Hospital. There were 21 acute patients and 30 nursing beds. The hospital also conducted surgery and carried out 500 deliveries per year.[19] In 1991 Paul was transferred to Western Australia and she became a clinical nurse consultant in the dementia wing at Mandurah for 4 years. She then became the clinical manager of the facility and was responsible for the care of 72 residents.[20]
[16]Transcript day 1 page 11.1
[17]Transcript day 1 page 12.1.
[18]Transcript day 1 page 12.31.
[19]Transcript day 1 page 13.32.
[20]Transcript day 1 page 14.25.
In 1997 the plaintiff and her family left Western Australia and came to Toowoomba. She became a registered nurse at the Rangehaven Nursing Home for 6 years[21] and then worked at the Lourdes Nursing Home as a registered nurse. She then became a Director of Nursing where she remained until 2009.[22] It was an 84 bed nursing home.[23] She then became the Director of Nursing at Northridge Salem for 6 and a half years but in November 2015 became redundant.[24] She retired at the age of 64. She then received a call from a nurse consultant at the MCRV to ask her to assist to do the accreditation which would involve 3 days’ work a week.[25] On 21 May 2016, Ian Rogers (deceased), the treasurer of the MCRV offered her the Director of Nursing position which she accepted and commenced on 23 May 2016. She still works there.[26]
[21]Transcript day 1 page 15.4.
[22]Transcript day 1 page 15.30.
[23]Transcript day 1 page 15.15.
[24]Transcript day 1 page 16.1.
[25]Transcript day 1 page 16.10.
[26]Transcript day 1 page 16.25.
The plaintiff gave evidence she was proud of her career. Millmerran is a township of some 1,500 people. She had never met the defendant before and did not believe the defendant had ever been to the MCRV.[27] The plaintiff considered her reputation was very important and she had worked hard for 50 years to achieve this. She always strove to be professional and dedicated. The plaintiff is not a follower of Facebook but a number of posts were brought to her attention by staff members.[28]
[27]Transcript day 1 page 16.45.
[28]Transcript day 1 page 17.21.
Turning to Exhibit 1, the first matter complained of, the post was brought to her attention by Sandy Peardon, Chris Jarmey, Stephen Evans, Lyn Haslem and John Rogers (the President of the Board).[29] When she read this she was horrified and felt she had been unfairly misjudged. She was devastated and couldn’t comprehend why it was written.[30] The defendant never contacted her for comment before the post.
[29]Transcript day 1 page 17.35.
[30]Transcript day 1 pages 17.42 – 18.2.
Turning to the second matter complained of (Exhibit 2), this post was shown to her by the same people.[31] Again she was devastated and in a state of disbelief that someone would come up with this untruth. She felt humiliated.[32]
[31]Transcript day 1 page 19.8.
[32]Transcript day 1 page 19.13.
The third matter complained of (Exhibit 3) was also brought to her attention by four staff members.[33] When she read the allegations that she was escorted off her last job because of a drinking habit or the missing of narcotic drugs she felt demeaned and humiliated, particularly about being accused of being a thief.[34] It was traumatic and the comments were untrue.[35]
[33]Transcript day 1 page 20.15.
[34]Transcript day 1 page 21.13.
[35]Transcript day 1 page 21.17.
As to Exhibit 4, a further post by the defendant, this made her feel beyond belief demeaned, undermined and made her feel like a criminal.[36] This post alleged the Plaintiff forged signatures and committed offences.
[36]Transcript day 1 page 22.35.
The plaintiff gave evidence it was not true that she was incompetent, it was not true that she was unfit, it was not true she was habitually intoxicated, she doesn’t drink alcohol at work and she was not dismissed from any previous employment because of alcohol issues or drugs.[37]
[37]Transcript day 1 page 22.40-23.15.
The allegations against her make her feel very sad and upset, bearing in mind she has worked for 50 years with an unblemished career.[38]
[38]Transcript day 1 page 23.20.
Exhibit 5 was a video recording of a Today Tonight show broadcast shown a few days before the trial. Exhibit D is a transcript of the recording.
This shows the allegations that the plaintiff administered medication whilst drinking on the job were repeated. Relevantly, the defendant was asked whether she regretted doing this and she said “no, no because someone has to make a stand. I put it out there, now I have to stick by what I said”. The broadcast also discloses that the defendant’s husband was alleged to have been ill-treated at a nursing home. The defendant went to the media to expose this because she was disgusted in what had happened to him. She set up a Facebook page “Actioning Change for Aged Care” for people to tell their stories and to call for a Royal Commission.
The plaintiff gave evidence that the defendant’s husband was never a patient of the facility.[39] Her son showed her the video (Exhibit 5) on Sunday night and again she was devastated as it tended to indicate that the defendant’s husband was found in that state in her nursing home.[40] It also tended to confirm that all of the posts were true. It was devastating to her that it was publicised that she was drinking on the job. She felt there was a slur on her professionalism. There has been a significant impact by the post, namely an effect on her marriage and in particular, a loss of sleep and there has been a strain on the family.[41] She has never received an apology from the defendant. Exhibit 6 was a letter of redundancy from Northridge Salem Nursing Home dated 29 October 2015.
[39]Transcript day 1 page 25.17.
[40]Transcript day 1 page 26.45.
[41]Transcript day 1 page 27.10.
In cross examination the plaintiff confirmed that after she left the Salem Aged Care Home she retired and then later worked at MCRV. She denied working at the Aveo Freedom Aged Care at Bridge Street in Toowoomba and denied working there for two weeks.[42] She denied she was ever dismissed from there.[43] With respect to the letter from Northridge Salem, she said that she did not have the earlier letter referred to in Exhibit 6 dated 16 October 2015. She could not say what was in the letter.[44] As to the discussion referred to in Exhibit 6, that was with Terry Arthur and Jason Coles in which she was offered the position as care manager but she decided to take a redundancy instead.[45] She denied there was any discussion concerning dismissal.[46]
[42]Transcript day 1 page 28.26.
[43]Transcript day 1 page 29.12.
[44]Transcript day 1 page 30.40.
[45]Transcript day 1 page 31.20.
[46]Transcript day 1 page 31.35.
With respect to the MCRV her formal title is “Clinical Care Manager”. She agreed she was retiring from her present position in September 2019.[47]
[47]Transcript day 1 page 32.30.
She denied knowing a Susan Barnett at Aveo Freedom. She denied working with Ms Barnett. She admitted knowing a Susan from that facility and a Deidre.[48] She denied she had any other defamation proceedings on foot.[49] She was shown a claim and statement of claim though in proceeding no. 1508 of 2018[50] and confirmed she was involved in other defamation proceedings.[51] I find the plaintiff mislead me about this.
[48]Transcript day 1 page 33.20-35. I find the plaintiff mislead the court about this. I will deal with this later.
[49]Transcript day 1 page 34.1.
[50]Exhibit E. I have no regard to the contents of this document.
[51]Transcript day 1 page 34.9.
The plaintiff agreed she knew Robert Shipley. She agreed that she gave instructions on 24 May 2017 for a concerns notice to be written by her then solicitors.[52] She agreed that Shipley had made complaints about her to the Health Ombudsman.[53] She denied the allegations by Shipley.[54] She said that Shipley resigned from the facility.[55] She denied referring to an RN to their face as “dumb as dog shit” but admitted saying that about Karen Moore to somebody else.[56] She did not recall referring to Nurse Waugh as being Shipley’s girlfriend.[57] She denied being prone to mood swings, having staff often in tears, and micro-managing.[58] She did put in rules so staff could only take leave on a calendar week basis. She agreed she did drink at a Christmas party but this was off premises, she was not on duty and was not on duty afterwards. Mr Shipley picked her up and drove her home. However she denied being drunk.[59] She denied adjusting medication charts at Yallambee.[60] She denied bullying staff into resigning.[61] She never said that she had the full support of the Board and no one could do anything to her. She did say she had the full support of the Board.[62] Mr Shipley resigned because a letter of grievance was put to him. He didn’t respond and he resigned.[63] She was notified by the Health Ombudsman of his complaints and she was responded.[64] She said there were probably six complaints against her and about 36 complaints all up concerning the facility. There was one about her by Liz Waugh, there was Mr Shipley’s complaint, Dr Reedy complained about the organisation and there were a number of anonymous complaints. The 36 complaints were in the period October 2016 to August 2018.[65] She agreed she “ran” Yallambee.[66]
[52]Exhibit 7. Transcript day 1 page 35.20.
[53]Transcript day 1 page 43.17.
[54]Transcript day 1 page 41.34.
[55]Transcript day 1 page 42.2.
[56]Transcript day 1 page 44.46.
[57]Transcript day 1 page 45.8.
[58]Transcript day 1 page 45.10-17.
[59]Transcript day 1 page 45.22-46.
[60]Transcript day 1 page 46.2.
[61]Transcript day 1 page 46.3.
[62]Transcript day 1 page 46.5.
[63]Transcript day 1 page 46.12.
[64]Transcript day 1 page 46.15.
[65]Transcript day 1 page 46.20-39.
[66]Transcript day 1 page 47.3.
She agreed that Heather May Brown was a patient. She agreed she had some dealings with Jenny Honan concerning Ms Honan’s mother. Ms Honan wanted to have a car for her mother and the plaintiff did not consider that was warranted.[67] The plaintiff stated she never spoke to Ms Honan about Ms Honan’s displeasure about this.[68] She never spoke to Ms Honan about transferring her mother from the facility because she was not being cared for.[69] She was aware that Ms Honan had signed a medical directive and she denied telling Ms Honan she was unaware of this.[70] She denied that she claimed that the mother was on antibiotics when she was not as regards a urinary tract infection.[71]
[67]Transcript day 1 page 48.12.
[68]Transcript day 1 page 48.22.
[69]Transcript day 1 page 48.27.
[70]Transcript day 1 page 48.32.
[71]Transcript day 1 page 49.5
The plaintiff confirmed she never drank alcohol on duty.[72] She said that she was not under the influence of alcohol on 8 May 2017 when she was with Nicki Carter.[73] With respect to the patient Noel Hopkins, she denied she treated him with Ms Carter whilst under the influence of alcohol.[74] She denied eating Minties to disguise the smell of alcohol on her breath.[75] She denied drinking alcohol on 24 July 2016.[76] She agreed that Dr Reedy visited Yallambee but did not recall the dates. She stated she was not under the influence of alcohol on any occasion when he visited.[77]
[72]Transcript day 2 page 33.40.
[73]Transcript day 2 page 33.45.
[74]Transcript day 2 page 34.13.
[75]Transcript day 2 page 34.22.
[76]Transcript day 2 page 34.25.
[77]Transcript day 2 page 35.3.
On 20 January 2017 she was not at the MCRV in the afternoon as she leaves at lunchtime on a Friday to get back to Toowoomba.[78]
[78]Transcript day 2 page 35.10.
She agreed that on 20 May 2018 she spoke to Dr Burrett and she agreed that he informed her that a patient had pneumonia. She denied being affected by alcohol and did not question his request for clinical records. She did not say that it was bullshit. He had no right to the notes. She never said the word fucking. She was aware though that he had made a complaint to the Ombudsman’s Office but the complaint was dismissed.[79]
[79]Transcript day 2 page 35.22-35.
As to Mr Contant, on 12 December 2016 she agreed that Nicki Carter wanted her to assist him. The plaintiff did not attend because she was advised that he was drinking coffee.[80]
[80]Transcript day 2 page 36.10.
She denied giving any instructions to decrease the need to change incontinence pads.[81]
[81]Transcript day 2 page 36.19.
She was aware of the patient Ruth Carter who had severe pressure sores. She denied that these were caused by poor nursing. She said that Ruth Carter was a diabetic Type 1. She had had a fractured femur. There was an ulcer on her buttock. She was aware that Dr Reedy had made a complaint about this but she said she did not have a good relationship with Dr Reedy. The relationship was fractured with the Board of Management which started because Ms Waugh had made a complaint against the plaintiff. As to Ms Ruth Carter, they got advice from the specialist at the Toowoomba Base Hospital concerning the treatment of the ulcer. Exhibit 8A-C are photographs of the ulcer. She disagreed that the ulcer was due to poor treatment of her. There was nothing more they could do. The family was aware of the treatment. Ms Ruth Carter stopped eating and wanted to die. She was 93.[82]
[82]Transcript day 2 pages 37.20-41.22.
The plaintiff was aware that Aileen Callan broke her hip on 31 July 2017. She agreed the patient was left untreated for 24 hours. This was because the patient showed no signs in the first 15 hours. As soon as signs were shown the patient was transferred to the Millmerran Hospital. The patient was cognitively impaired and could not verbalise pain. If there is an unwitnessed fall with the potential of head injury then there should be observations. There is a management process whereby the patient should be examined by a registered nurse. The process here was not followed with Ms Callan. Nicki Carter was the person who should have done the observations.[83]
[83]Transcript day 2 pages 41.24-42.17.
With respect to the patient Gary Howe, she denied there were rashes in his groin when he left. Mr Howe was not in good health. He had breathing problems, temperature problems and low oxygen saturation. He had been to Accident and Emergency Department three times in five days and was later transferred to the Toowoomba Base Hospital in a seriously ill condition. None of this was due to a lack of care at Yallambee.[84]
[84]Transcript day 2 page 42.19-45.
With respect to the patient Margaret Fitch the plaintiff knew her daughter Debbie. She denied that Ms Fitch was denied access to the television. Ms Fitch would throw the remote control. It was never taken from her. Additionally Ms Fitch refused to have soiled clothes changed and she would decline to have a shower. They would honour this. Usually showers were administered to the patients every second day unless they were soiled. Showers were always done at the residents’ request.[85]
[85]Transcript day 2 page 43.1-45.
The plaintiff denied discussing confidential medical diagnoses of staff with other staff.[86] She denied discussing complaints made by staff with other staff.[87] She never intimidated Nurse Pokarier.[88] She never subjected Mr Shipley to bullying. She was aware that he had made a complaint about her. She said that Mr Shipley told her that she had his full support and that Yallambee improved. This conversation occurred in February 2018.[89]
[86]Transcript day 2 page 44.40.
[87]Transcript day 2 page 44.42.
[88]Transcript day 2 page 44.45.
[89]Transcript day 2 page 45.30-37.
She denied bullying Karen Moore. Ms Moore asked a registered nurse to falsify a signature concerning a Schedule 8 drug. A discipline procedure was imposed and the union asked instead of her being dismissed whether she could resign and Ms Moore was allowed to do this.[90]
[90]Transcript day 2 pages 45.39-46.7.
The plaintiff stated that carers did not administer PRN medication without contacting registered nursing staff. Allegations about this were made to APHRA but were dismissed.[91]
[91]Transcript day 2 page 46.13.
Carers can administer such medications if medically competent.
An anonymous complaint was made about this. Nicki Carter later admitted she was the one who made the complaint.[92]
[92]Transcript day 2 page 46.40.
She denied that medications (namely Resperidone and Oxazepam) went missing from a resident’s Webster-pak between April and July 2017.[93]
[93]Transcript day 2 page 46.42.
She agreed that on 24 January 2017 Endone went missing. She agreed she located 10 tablets of this in the rubbish bin. She agreed that the bins had already been searched. The agency nurse who misplaced the drugs was very upset. The plaintiff denied placing the Endone in the bin. When she picked up the drugs she asked Nicki Carter what was written on them and Nicki Carter and Sandra McLachlan took the drugs to the nurse to place in the S8 cupboard. Eight tablets were not located. She was not there when the drugs went missing.[94]
[94]Transcript day 2 pages 47.9-48.25.
She accepted she spoke to Ms Honan but never threatened her.[95]
[95]Transcript day 2 page 48.45.
She accepted she had seen the newspaper articles from the Chronicle newspaper previously.[96] She was concerned about the validity of the articles because they are a slur on Yallambee.
[96]Exhibit J. Transcript day 2 page 49.8.
She said there were good residential satisfaction surveys conducted. The complaints made had already been investigated by APHRA and there were a lot of untruths in the articles. The opinion of Yallambee was never sought and the journalist never visited the organisation.[97]
[97]Transcript day 2 page 49.15.
The plaintiff said a small minority of individuals were vindictive towards Yallambee. She accepted again there were 36 complaints between August 2016 and October 2018. One included a complaint by Debbie Sauverain; one by Carmel Bladen, an anonymous complaint by Nicki Carter, and one by Dr Burrett. The majority of the complaints were anonymous. Mr Shipley also made a complaint.[98]
[98]Transcript day 2 pages 49.43-50.20.
The plaintiff alleged that many of the complaints were by disgruntled staff members who no longer worked there.[99]
[99]Transcript day 2 page 50.20.
When the plaintiff first commenced work at Yallambee she expected a higher standard and made decisions which were not popular. She was assertive with the staff but those staff are no longer there. The remaining staff are very happy.[100]
[100]Transcript day 2 page 50.25.
There were no similar amounts of complaints at previous facilities where she worked. For example at North Ridge there was one complaint in six and a half years. The 36 complaints were all dismissed. She denied she was the cause of the complaints.[101]
[101]Transcript day 2 pages 50.32-51.1.
She again denied she was employed at Aveo Freedom.[102] She denied the proposition she was not devastated because it had gone to social media. She said she was never drunk on duty or had stolen drugs. She never said to Nicki Carter “I know how to get out of a complaint.” She disagreed she was incompetent or unfit. She said there were only three resignations in the last 12 months.[103]
[102]Transcript day 2 page 51.7-14.
[103]Transcript day 2 page 51.17-39.
She never suffered from bipolar but took Seroquel for depression. She never told Nicki Carter she had bipolar depression. Her son did not prescribe this medication.[104]
[104]Transcript day 2 page 52.18-28.
In re-examination the letter dated 16 October 2015 was tendered as Exhibit 9. She also gave evidence that she found the experience of cross-examination at the trial terrifying and humiliating.[105]
[105]Transcript day 2 page 54.45.
Paul Farrington
Paul Farrington gave evidence. He is a mechanical engineer and a Board member of MCRV. He has been in that position since February 2017.[106] He knows the plaintiff through his involvement with the MCRV. She was the Director of Nursing. The witness was shown Exhibit 1 and said that he saw this publication 2 years ago. He understood it to refer to the plaintiff. He also saw Exhibits 2 and 3 around the same time and he understood these publications to refer to the plaintiff.[107]
[106]Transcript day 1 page 66.44.
[107]Transcript day 1 pages 67-68.
As at October 2017 the plaintiff was held in very high esteem at the facility by nursing staff, care staff and the Board.[108]
[108]Transcript day 1 page 68.30.
In cross examination Mr Farrington conceded he had no medical background. He accepted that Millmerran also had a hospital where another Director of Nursing worked. There is a medical centre in Millmerran as well but no Director of Nursing there.[109] He accepted that there was a significant number of complaints about the hospital.[110] He was aware of complaints by Mr Shipley, Ms Waugh, Dr Reedy and Ms Carter against the plaintiff.[111] He accepted there were quite a number of complaints against the plaintiff specifically but he could not say how many.[112] He recalled there were complaints about her drinking on duty.[113] He was not aware of any staff resigning because of ill treatment by the plaintiff.[114] He was not aware of why Mr Shipley resigned.[115] As to the drinking on duty allegation, it was his view that AHPRA had investigated this and found it unsubstantiated. He had difficulty believing the allegation of drinking was true.[116] He accepted there were articles in the chronicle newspaper regarding the retirement village.[117] He said that there were two current nurses who held the plaintiff in high esteem and her reputation in the circles in which he mixed in Millmerran was high.[118]
[109]Transcript day 1 page 69.1-17
[110]Transcript day 1 page 70.41.
[111]Transcript day 1 page 71.39-46.
[112]Transcript day 1 page 72.5.
[113]Transcript day 1 page 72.11.
[114]Transcript day 1 page 72.15.
[115]Transcript day 1 page 72.42.
[116]Transcript day 1 page 73.1.
[117]Transcript day 1 page 73.20.
[118]Transcript day 1 page 74.25.
I might say I formed the view he did not seem to be greatly aware of the day to day running of MCRV.
Tim Antonio
Tim Antonio gave evidence that he was a fencing contractor and had been a voluntary board member of the MCRV since October 2007. He has known the plaintiff for about three years.[119] He was shown Exhibit 1 and said that he had seen this because it had been brought to a board meeting in late October 2017. He understood it referred to the plaintiff. He also said that Exhibits 2 and 3 were shown to him at a board meeting and he understood that each of those publications referred to the plaintiff. As of October 2017 the plaintiff’s reputation was as a good, honest, hardworking Director of Nursing.[120]
[119]Transcript day 2 page 19.32
[120]Transcript day 2 pages 21-30.
In cross-examination the witness said he did not know where the plaintiff worked prior to coming to Yallambee. He agreed that the title was “Clinical Care Manager” but her job description was as a Director of Nursing. He accepted there had been some complaints made. He could only recall one to start with that is the one made by Mr Shipley in his letter of resignation. Initially he did not recall any other written complaints but then admitted he was aware of Dr Reedy’s complaint and Ms Waugh’s complaint. He was not aware of Nicki Carter’s complaint.[121] He said the Board investigated the complaints as did APHRA and the Commission and Yallambee was exonerated on all of them.[122] He also accepted that Dr Burrett had made a complaint against the plaintiff and two weeks ago it was decided that no further action should be taken.[123] He agreed that some of the complaints related to the plaintiff drinking on duty. He had visited the centre and had never smelt alcohol on the plaintiff or seen her drunk.[124] He agreed that there were seven articles about Yallambee printed in the Toowoomba Chronicle. He had seen all of them except for number 3. The articles were discussed at board meetings. The issues raised related to the treatment of patients at Yallambee. Everything in the articles had been placed before APHRA and the Ombudsman and Yallambee had been exonerated. The articles were the subject of discussion in Millmerran. The witness said that before the Facebook publications and the articles in the Chronicle, the plaintiff’s reputation was very good.[125]
[121]Transcript day 2 page 22.7-27.
[122]Transcript day 2 page 22.32.
[123]Transcript day 2 page 23.27.
[124]Transcript day 2 page 23.40-42.
[125]Transcript day 2 page 28.32.
Equally this witness did not seem to be aware of the day to day running of MCRV. I also did not consider he was completely upfront as to his knowledge of complaints made.
Tim Noone
Tim Noone said that he was a registered medical practitioner practising in Tasmania. He is the son of the plaintiff. He has contact with his mother once a week. He has noticed a change in his mother. The publication was quite devastating for her. She was emotionally very down, teary and withdrawn. It consumes her thinking.[126]
[126]Transcript day 2 page 30.30.
In cross-examination he denied that the plaintiff suffered from bipolar. He said he did not prescribe medication for her. He prescribed cholesterol medication only once when she ran out.[127]
[127]Transcript day 2 page 31.10-18.
He was aware of the Facebook posts and nothing else. He moved to Tasmania in June 2017.[128]
[128]Transcript day 2 page 32.8-25.
Paul Noone
Paul Noone is the husband of the plaintiff. He gave evidence they had been married for 35 years. He lives in Toowoomba. He has noticed emotional changes in his wife since October 2017. She breaks down when discussing these matters. She is in tears every weekend.[129]
[129]Transcript day 2 page 56.18-29.
In cross-examination he agreed that his wife suffered from depression. Dr Latham prescribes her medication not their son.[130] He was shown Exhibit J (the Chronicle articles) and said that he bought the Chronicle every day. He could not recall whether his wife had seen those articles and whether they had been discussed.[131] It was his opinion it was lazy journalism in the articles. Whilst they did not discuss the Chronicle articles they discussed the Facebook publication. They also discussed the complaints including the one by Dr Reedy, Ms Waugh’s complaint and the Shipley complaint. The complaints also had an adverse effect on his wife.[132]
[130]Transcript day 2 page 57.5.
[131]Transcript day 2 page 57.21.
[132]Transcript day 2 page 59.32.
Defendant’s case
Defendant
The defendant gave evidence that she is 70 years old and was a qualified chef. She became involved in aged care after her husband was admitted into aged care at TriCare in Bundaberg. Her husband was abused and neglected. She was abhorred by this and started going to the media to bring to the attention of everybody what was happening in aged care. This was in about May 2016.[133]
[133]Transcript day 2 pages 67.43-68.10.
Before the relevant publications she was contacted by Ms Liz Waugh and was provided information about MCRV.[134]
[134]Transcript day 2 page 68.20.
As to other actions she was involved in, the Nurses’ Union asked her to help with implementing skilled nursing ratios in aged care and a petition was started. There was a need for more staff on the floor of nursing facilities because patients were being neglected. There was also abuse by staff. Jane Hilary Seaholme contacted her about the petition. There are 315,000 signatures on the petition.[135]
[135]Transcript day 2 pages 68.37-69.24.
The defendant admitted publishing the content on Facebook the subjects of Exhibits 1 to 4 about the plaintiff.[136] The purpose of her publishing this material was to bring awareness to the suffering of aged people in care.[137] She admitted that the publications refer to the plaintiff. Liz Waugh was concerned about what was going on at the MCRV and was bound by patient confidentiality. She was very distressed. The defendant knew that as a nurse practitioner Ms Waugh was not allowed to speak out.[138]
[136]Transcript day 2 page 69.43
[137]Transcript day 2 page 69.37.
[138]Transcript day 2 page 70.1-12.
In response to the Facebook posts, defamatory material was published about the defendant.[139] The defendant has also been involved with public meetings at St Kilda and Bundaberg calling for a Royal Commission into aged care. She is hoping to go to the Royal Commission which has made contact with her.[140] Presently her mother lives in aged care at North Lakes. She also spoke to Mr Newton at the Chronicle. She was shown Exhibit J and admitted speaking to him.[141] She said that other residents at Millmerran had spoken to her as well about the MCRV. As to Exhibit 1, she believed she was acting out of concern for a concerned nurse practitioner, Ms Waugh and she believed the content was correct.[142] With respect to Exhibit 2 she believed what she published was correct as she had been told this by Ms Waugh. Equally she believed that what was published in Exhibit 3 was correct as she had been told this by Ms Waugh. She admitted also posting Exhibit 4.[143]
[139]Transcript day 2 pages 70.19-44. Exhibits 11 and 12.
[140]Transcript day 2 page 74.5-14.
[141]Transcript day 2 page 74.25
[142]Transcript day 2 page 78.21.
[143]Transcript day 2 pages 78.25-79.40.
In cross-examination the defendant admitted she had no formal medical qualifications and admitted never meeting the plaintiff before.[144] She had never even spoken to the plaintiff. She claimed in her evidence she did not like or dislike the plaintiff. She admitted she had never apologised to the plaintiff.[145] She had 200 followers on her Facebook account.[146] She also has a Facebook site called “Actioning Change for Aged Care” which was a public page.[147] She did not distinctly admit that in the last two days changes had been made to the privacy settings. I found her to be evasive in her evidence on this point.[148]
[144]Transcript day 2 page 81.1-4.
[145]Transcript day 2 page 81.18.
[146]Transcript day 2 page 81.21.
[147]Transcript day 2 page 81.25
[148]Transcript day 2 page 81.35-41.
After giving a non-responsive answer[149] she admitted that it was a serious allegation to allege that a nurse is incompetent.[150] She said it was “possibly” a serious allegation that a nurse was unfit to look after patients but after some prevarication accepted this was a serious allegation.[151] Again I found the defendant evasive on this point.
[149]Transcript day 2 page 81.43.
[150]Transcript day 2 page 81.47.
[151]Transcript day 2 page 82.1-11.
The defendant accepted it was a serious allegation to accuse a nurse of drinking on duty.[152] She initially alleged that it was not serious to accuse a nurse of habitually being intoxicated on duty but then accepted that it was serious to allege that a nurse habitually drank on duty.[153] Again I consider the defendant prevaricated about her answers.
[152]Transcript day 2 page 82.15.
[153]Transcript day 2 page 82.17-30.
She accepted it was serious to allege that someone was dismissed because they habitually drank alcohol on duty.[154] She agreed it was a serious allegation to allege that somebody was dismissed because they had stolen narcotic drugs or because they had gone missing.[155] It was serious to make these allegations about a practising nurse.[156]
[154]Transcript day 2 page 82.32.
[155]Transcript day 2 page 83.5.
[156]Transcript day 2 page 83.9.
She did not accept it was grossly irresponsible to publish such matters without obtaining the person’s version of events. She was aware that there were bodies to which complaints could be made.[157]
[157]Transcript day 2 page 83.11-18.
Exhibit 5 (the Today Tonight tape) was played to her. The reporter, Rodney Lohse was someone she got in touch with by email.[158] Mr Lohse came to her in Bundaberg and there were two interviews of about three to four hours. She was aware that the program was broadcast in Western Australia and South Australia.[159] She participated in the interview knowing that part of it at least would be broadcast. She said that Ms Waugh contacted her through a google page. The google page was set up by the defendant with the nurses’ union.[160] She admitted saying to Mr Lohse that “one came in from [Ms Waugh] and I took up the fight.” She admitted telling the journalists that the Facebook page got a lot of attention. There were 180 followers then, there are now 1,500.[161] She admitted she posted the Today Tonight promotional video on Facebook intending people to watch the program.[162]
[158]Transcript day 2 page 85.40.
[159]Transcript day 2 page 86.15.
[160]Transcript day 2 pages 87.5-20.3-25.
[161]Transcript day 2 page 88.16-22.
[162]Transcript day 2 page 88.27.
She said she was not sure if she mentioned the plaintiff’s name to Mr Lohse when she spoke to him.[163] She alleged she did not show Mr Lohse the Waugh complaint.[164] She admitted Mr Lohse called her and said that the show would be on but that there would be no names or faces published because he could not do it.[165] The interview itself was about three months ago. The defendant admitted telling Mr Lohse that the trial was starting this week. She said she did not ask him to publish the program.[166]
[163]Transcript day 2 page 88.40.
[164]Transcript day 2 page 88.44.
[165]Transcript day 2 page 89.1-5.
[166]Transcript day 2 page 89.29.
She admitted again that she put the promotional video on the Facebook page. The defendant claimed she did not want to gain maximum publicity for the present case, it was only about aged care.[167] I might say I found this unconvincing bearing in mind the promotional video was placed on the Facebook page shortly before the trial.
[167]Transcript day 2 page 89.35.
She admitted being asked whether she regretted this and admitted saying that she had to stick by what she said.[168] She initially denied this was about the present case but then changed her evidence to say it was.[169] I think that was an important inconsistency. I would also add that I noted the defendant was hesitant in Exhibit 5 when she asked whether she regretted what she did. I infer by this that she realised that she had gone too far. As I later find, she went too far by suggesting the plaintiff may have been dismissed for alcohol use and for missing drugs.
[168]Transcript day 2 page 90.5-20.
[169]Transcript day 2 pages 90.45-93.20.
The defendant said that she made a lot of allegations about aged care and about individuals and did not contact the individuals.[170]
[170]Transcript day 2 page 90.32.
She claimed she thought the meeting with Mr Lohse was about cameras in nursing homes in South Australia[171] but I did not find that convincing because the defamation proceedings were specifically discussed in Exhibit 5. She admitted she told Mr Lohse about the case some 18 months ago.[172] She admitted she wanted as many people to watch the program as possible and this is the reason the promotional video was placed on the Facebook page.[173] She could not say how many views there were of the promotional video.[174]
[171]Transcript day 2 page 91.20.
[172]Transcript day 2 page 92.27.
[173]Transcript day 2 page 93.25.
[174]Transcript day 2 page 93.32.
As to Exhibit 1, she intended to refer to the plaintiff in this post. She never contacted the plaintiff for her comment about the post. She admitted never meeting Ms Waugh in person.[175] She admitted after initial prevarication that harsh language was employed,[176] and she admitted she intended to allege that the plaintiff was incompetent and unfit to care for the elderly.[177] She admitted she wanted the plaintiff sacked but then denied intending her any harm personally.[178] I did not accept the defendant’s last part of the answer in that regard.
[175]Transcript day 2 page 94.5-20.
[176]Transcript day 2 page 94.25.
[177]Transcript day 2 page 94.31.
[178]Transcript day 2 page 94.44.
As to Exhibit 2, she admitted that she intended to refer to the plaintiff at page 1 and intended to infer that the plaintiff drank alcohol frequently.[179] She denied at one point she was attempting to denigrate the plaintiff but then accepted it.[180] Again she prevaricated on this. She denied attempting to humiliate the plaintiff.[181]
[179]Transcript day 2 page 96.13-19.
[180]Transcript day 2 page 96.25-30.
[181]Transcript day 2 page 96.32.
She admitted that on the first page she wrote “do not forget the Endone that would surly [sic] give you a split personality.” She could not really explain why these words were used but she intended to convey that the plaintiff was a drunk.[182]
[182]Transcript day 2 pages 98.46-99.13.
Exhibit 13 was the promotional video which the defendant placed on Facebook. She promoted this twice on 7 June 2019. There were 4,973 views on the Today Tonight website. She accepted that her Facebook page is a public page which can be seen by anybody. She had a second Facebook page called “Actioning Change for Age Care”. The actioning for change Facebook page had about 300 followers. Hers originally had about 167 and now has about 1,500 followers.[183]
[183]Transcript day 3 pages 4-5.
She did not regard it as grossly irresponsible to publish the material without obtaining a version from the plaintiff.[184] She underwent the interview with Today Tonight knowing that the case before this court had commenced.[185] When she spoke to Mr Lohse she knew that the case was due to commence on Tuesday, 11 June 2019. She promoted the story on her personal Facebook page and on the actioning for change Facebook page.[186] She admitted in the two interviews with Mr Lohse that they discussed the court case. She told Mr Lohse about the allegations concerning the plaintiff drinking on duty and that she had to stick by the posts.[187] As to the phrase “taking up the fight”, this related to age care in general.[188] She knew the plaintiff was still employed by the MCRV and wanted her to be sacked but she denied launching a campaign against the plaintiff.[189] I might say I did not accept the defendant’s evidence on this point.
[184]Transcript day 3 page 5.39.
[185]Transcript day 3 page 5.45.
[186]Transcript day 3 page 6.2-10.
[187]Transcript day 3 page 6.24.
[188]Transcript day 3 page 6.32.
[189]Transcript day 3 pages 6.46-7.2.
The defendant admitted Exhibit 14 was a Facebook comment dated 5 October 2017[190] in which she said “to the person who runs this facility [MCRV] you should hang your head in shame to let this neglect and abuse take place under your nose, I will find out your name and I will publish your name to make sure you are never employed in an aged care facility again. Please note I will be doing this to any aged care facility that does not practice duty of care towards its elderly residents.” Originally the defendant denied posting the text and said that some people were forging various posts. She admitted though she could have posted this but she denied posting the photograph.[191]
[190]This was stated by Counsel as 2016, however it is likely 2017.
[191]Transcript day 3 pages 7.4-15.42.
I did not find the defendant’s evidence convincing on this point.
She was then shown Exhibit 15, a Facebook post-dated 11 October 2017.[192] She admitting posting about the plaintiff “the facility manager from hell.” Someone then suggested a drink and the defendant seemed “won’t be much left to drink a trip to the bottle to see Michelle”. Later Helen Hardy added a comment “[snake] in the grass” and the defendant replied “that’s one viper you need to keep an eye on.” The defendant admitted these were about the plaintiff and she admitted that it was vicious to call her a viper.[193]
[192]This was stated by Counsel as 2016, however it is likely 2017.
[193]Transcript day 3 pages 16-18.
She denied though that from 5 October 2016 she started a campaign to have the plaintiff sacked.[194] She then admitted that Exhibits 1 to 3 were posted to ensure the plaintiff was sacked. She agreed she intended to harm the plaintiff.[195]
[194]Transcript day 3 page 18.35.
[195]Transcript day 3 page 19.5-22.
She did agree the plaintiff was the main focus in posts Exhibits 1 to 3.[196] As to Exhibit 2, page 2, she accepted her intention was to humiliate and denigrate the plaintiff.[197]
[196]Transcript day 3 page 20.1.
[197]Transcript day 3 page 20.15-21.
As to Exhibit 3, she admitted she intended to refer to the plaintiff. She was informed that the plaintiff had worked at Northridge Salem. She agreed that she asserted that the plaintiff had been escorted from those premises.[198] Her intention was to raise a suspicion about the plaintiff. She agreed that her mentioning the drinking habit or missing narcotic drugs was to engage in speculation as to why she was escorted from the last job.[199] She agreed the post was a very serious matter.[200] She did not intend to allege that the plaintiff had stolen drugs.[201] The defendant had no information about drugs going missing at Rock Ridge, Salem and agreed the post was false.[202] She agreed she wrote that post because she wanted the plaintiff to lose her job.[203] She said that she never contacted the board or the plaintiff and only relied on the information given to her by Ms Waugh.[204] She knew the plaintiff would have denied the allegations and knew the board would have denied them. She deliberately did not contact the board or the plaintiff because the claims would be refuted.[205] She agreed it was reckless of her to not contact the plaintiff or the board.[206] She believed Ms Waugh worked for the MCRV and knew that she complained to the Health Ombudsman which complaints were dismissed.[207] She did not know this though at the time of the posts.[208]
[198]Transcript day 3 page 21.10-17.
[199]Transcript day 3 page 21.25-34.
[200]Transcript day 3 page 21.36.
[201]Transcript day 3 page 21.40.
[202]Transcript day 3 page 22.7-10.
[203]Transcript day 3 page 22.12.
[204]Transcript day 3 page 22.21.
[205]Transcript day 3 page 22.30-39.
[206]Transcript day 3 page 23.1.
[207]Transcript day 3 page 23.7-31.
[208]Transcript day 3 page 23.34.
As to Exhibit 4, this would have been in about 2016/2017.[209] As regards the allegations she made of forging signatures she intended to refer to the plaintiff. Additionally, the reference to criminal offences was a direct allegation that the plaintiff committed a criminal offence.[210] Allegations that the plaintiff interfered with medical packs were made to get the plaintiff sacked.[211]
[209]Transcript day 3 page 24.5.
[210]Transcript day 3 page 24.10-42.
[211]Transcript day 3 page 24.46.
As far as she knew everything she said about the plaintiff was the truth.[212] She persists with her defence of truth and wants to see patients get better care and wants to see the plaintiff sacked.[213]
[212]Transcript day 3 page 25.8.
[213]Transcript day 3 page 25.20- 28.
She was shown Exhibit 6 and accepted there was no reference to the plaintiff being escorted off the premises to a drinking habit or to missing narcotics. She does not maintain the plaintiff was escorted from the premises at Northridge Salem. She was not willing to apologise.[214]
[214]Transcript day 3 page 26.1-29.
In re-examination the defendant admitted she did not contact the Board and the plaintiff because staff at the MCRV started a vicious attack on her on her Facebook page.[215]
[215]Transcript day 3 page 26.45.
Matthew Newton
Mr Newton was a journalist with the Toowoomba Chronicle. He wrote the articles Exhibit J which were tendered as Exhibit 16. He was contacted by a member of the public about the allegations and wrote the articles some months later. He spoke to about 10 to 20 people before he wrote the articles. People he spoke to did not hold the plaintiff in high regard because they were upset about the treatment of patients at the facility.[216]
[216]Transcript day 3 page 32.15.
In cross-examination Mr Newton admitted he did not know the plaintiff. He had spoken to John Rogers who held the plaintiff in high esteem and accepted that some people may hold her in high esteem.[217] He agreed there was no article concerning the plaintiff directly.[218]
[217]Transcript day 3 page 33.27-42.
[218]Transcript day 3 page 33.46.
Elizabeth Waugh
Ms Waugh gave evidence that she was a nurse practitioner and held a Master’s degree in nursing science. In her role she is allowed to diagnose medical conditions and can refer patients to specialists. She commenced her training in 1989 and was a registered nurse for 27 years. She started working with Dr Reedy in 2001 and started attending the MCRV in about 2013.[219]
[219]Transcript day 3 page 40.4.
Her duties at the MCRV involved weekly rounds to see if the residents were unwell, rewriting medication charts and referring patients if needed.[220]
[220]Transcript day 3 page 40.6.
She agreed she made complaints to the Health Ombudsman’s Office about the plaintiff. There were two complaints.[221] She had dealings with the patient Ruth Carter but not after she left the facility in January 2017.[222]
[221]Transcript day 3 page 45.35-39.
[222]Transcript day 3 page 46.42.
The reason she left is because the Board wrote to Dr Reedy relating to allegations which she had made.[223] She did not know the details of Ruth Carter.[224] She was aware that Ms Callan had sustained injury but this happened after she left.[225] Margaret Fitch was also known to her. She noticed nothing out of the ordinary with her.[226]
[223]Transcript day 3 page 47.4.
[224]Transcript day 3 page 47.12.
[225]Transcript day 3 page 47.35.
[226]Transcript day 3 page 48.1.
The plaintiff did not have a good reputation.[227] She contacted Ms Brown because of complaints she had from staff and because of the things she had witnessed herself.[228] She was appalled by the investigation by APHRA and the Health Ombudsman’s Office. She felt there was a duty to say if there was something wrong and she did this.[229]
[227]Transcript day 3 page 48.19.
[228]Transcript day 3 page 48.22.
[229]Transcript day 3 page 48.30.
In cross-examination she denied that her complaints about the plaintiff were dismissed. It was accepted though APHRA and the Health Ombudsman found there was insufficient evidence to prove the allegation.[230] She would have told Mrs Brown about this. When she first spoke to Mrs Brown this was before she made her statement to the Health Ombudsman’s office in February 2018.[231] The witness conceded ceasing work at the MCRV in January 2017. About this time there was a conflict between Dr Reedy and the Board. The Board offered to mediate but Dr Reedy refused to do this. She agreed she did not like the plaintiff.[232]
[230]Transcript day 3 page 50.5.
[231]Transcript day 3 page 50.35.
[232]Transcript day 3 page 51.22.
In re-examination she said the nature of the conflict was that she spoke to a registered nurse, Annie Muir who brought to her attention reports she had received and that the plaintiff was not the right person for the job. She felt that she had to speak to staff at the facility.[233] The mediation was offered in 2018. She told Ms Brown that she had made a complaint. She refused to go to mediation because the Board took no notice of the complaints. She did not like the plaintiff because she had never witnessed such behaviour from another registered nurse and was appalled by her behaviour.[234]
[233]Transcript day 3 page 51.10.
[234]Transcript day 3 page 52.38.
Dr Reedy
Dr Andrew Reedy gave evidence that he had been a registered medical practitioner since 1998. He is the Queensland Health Medical Superintendent at the Millmerran Hospital. His first contact with the plaintiff was in September 2016 at which time she was the Director of Nursing at the MCRV. His second interaction with the plaintiff was on 20 January 2017.[235]
[235]Transcript day 3 page 53.45.
Turning to the first occasion, he attended the nursing home at about 4.00 pm or 5.00 pm to review a patient. He was introduced to the plaintiff and they proceeded together to the patient. He noticed the plaintiff’s demeanour and the way she presented herself. She was walking with a staggering gait and had to balance herself. She spoke in a very grandiose manner and slurred her words. She made comments out of place, for example about euthanizing patients correctly.[236] She also said that she had altered medications for patients as she saw fit in previous places where she had worked based on her clinical judgment.[237] Dr Reedy told her it would not happen on his shift.[238] Following this conversation Dr Reedy terminated the visit. On the way back up there was similar behaviour on the part of the plaintiff. He also smelt the strong smell of alcohol on her. He then left the facility.[239]
[236]Transcript day 3 page 54.2-25.
[237]Transcript day 3 page 56.25.
[238]Transcript day 3 page 56.27.
[239]Transcript day 3 page 57.35.
He then gave instructions to his nursing staff. He would personally want to see the medical charts. The plaintiff was on duty at the time of the incident.[240]
[240]Transcript day 3 page 58.6-12.
As to the second occasion, on 20 January 2017 he attended the facility to check on a patient to make sure the patient was well. He was with the RN on call. He examined the patient and then went to the doctor’s rooms. The RN did not come up with him. He then saw the plaintiff in her office. He entered. She sat behind her desk and there was a discussion about the patient he had seen. He observed her leaning back, slurring her words and mispronouncing them. She was speaking incoherently. There was the strong smell of alcohol in the room. The conversation lasted for about five minutes and then he left the facility.[241]
[241]Transcript day 3 page 58. 16-32.
Dr Reedy dealt with the patient Ruth Carter. Ruth Carter had been moved to the MCRV to be closer to her daughter as she could not look after herself. Dr Reedy saw this patient on several occasions. A week prior to Ms Carter going to the hospital she had been brought up to his surgery for a routine visit. They were concerned she was not eating and losing weight. A full medical review and pathology review was conducted. This was normal. Ms Carter was suffering advanced dementia.[242]
[242]Transcript day 3 pages 58.41-59.12.
About one to two weeks later he received a call from the RN on call. He was told the patient was in pain and distress and required an increase in pain medication. He gave the phone order and faxed it. The following morning about 8.30 am there was a further fax wanting the administration of additional pain medication because she was still in pain. The doctor rang and spoke to the nurse and told her that he needed to see the patient. He was told it was too hard to move her. He was told the family was happy with the situation. He rang the patient’s daughter Mary and expressed his concern. An ambulance took her to the hospital. She came into the emergency department at about 4.00 pm. A full head-to-toe check took place which is usual with such patients when they come into the hospital. Photographs were sent to him namely Exhibits 8A to 8C. He attended the hospital and reviewed the wounds. They were horrendous bed sores. 8B showed a central ulcer through which one could see the vertebrae at the base of the wound. Light could be seen from the other side when shone into the cavity.[243]
[243]Transcript day 3 pages 59-60.
Dr Reedy confirmed it was a horrendous injury, one of the worst pressure injuries he had seen in his career.[244] He had treated lots of patients with pressure sores and this is the worst case he had ever treated.[245] I might say I thought this consistent with my view of the photographs.
[244]Transcript day 3 page 61.10.
[245]Transcript day 3 page 69.8.
Dr Reedy also treated the patient Gary Howe. Gary Howe was transferred from the Toowoomba Base Hospital to MCRV as a step down patient. He was no longer able to return home and his wife was unable to look after him. He was intellectually impaired and had a history of epilepsy. He was brought to the medical clinic on two occasions. On one occasion he was brought by ambulance on the direction of nursing staff for assessment. When he was brought up early one morning he was extremely unwell. The doctor was told that Mr Howe was not able to get out of bed. A head to toe examination was conducted. He had been extremely unwell for two to three days. He had a high temperature and high fever. It was determined there was an infection but it could not be located. The examination otherwise was normal. It takes 24 hours to get pathology results. Once they were returned it was determined there was a very advanced infection based on the white cell count. Mr Howe was transferred to Toowoomba Base Hospital for scans looking for the source of the infection. It was determined ultimately it was an acute gall bladder infection. He was returned to the ICU until he was stable enough for surgery. He did not return to Millmerran. Mr Howe had minor mobility issues. He was examined and Dr Reedy did not recall any rashes.[246]
[246]Transcript day 3 pages 69.11-70.39.
As to the plaintiff, he did not have a high view of her general reputation. He only had two interactions with her, both of which were unfavourable. At one point he had to order that the pills be counted. He received a number of complaints from staff and families about her when she was at Millmerran. Therefore his view was not favourable.[247]
[247]Transcript day 3 page 70.41-72.6.
In cross-examination the doctor said that his observations of the plaintiff being affected by alcohol on two occasions was of significant concern to him. He accepted he made no complaint after the first occasion.[248] There was no complaint made after the second occasion. The doctor said he was incapacitated because he had personal surgery after that time. He said that when he returned after surgery he lodged his first complaint with the Health Ombudsman. The first complaint related to missing medication and treatment of nursing staff. The second complaint related to failing to report impaired practitioners. No complaint was made concerning the two occasions of alcohol use.[249]
[248]Transcript day 3 page 72.32.
[249]Transcript day 3 pages 72.43-73.2.
He accepted his relationship with the Board was fractured and had been so since January 2017. He never went back.[250] He disputed that the Board tried to mediate the situation. Although he did accept that there was a letter from the Department of Justice as to mediation but he declined the offer. He disputed that the Board was trying to engage him. He accepted receiving Exhibit 17, an undated letter from the Board and Exhibit 18, a letter from the Board dated 5 May 2017.[251]
[250]Transcript day 3 page 72.15.
[251]Transcript day 3 page 73.17-47.
He said that he had no personal grudge against Ian Rogers or the plaintiff.[252] He accepted that Ms Waugh was his nurse practitioner who reported to him and two doctors.[253] He did not accept that AHPRA investigates complaints thoroughly.[254] He accepted he did not respond to the Board’s letters, Exhibits 17 and 18, and did not tell the Board about the alcohol incidents.[255]
[252]Transcript day 3 page 76.15-25.
[253]Transcript day 3 page 77.1.
[254]Transcript day 3 page 77.40.
[255]Transcript day 3 page 79.33-42.
He made no allegation to AHPRA or the Health Ombudsman about the plaintiff drinking.[256] He denied being interviewed or making a statement over the phone regarding Robert Shipley.[257] He said that the Health Ombudsman’s office only did matters by written correspondence.[258]
[256]Transcript day 3 page 80.17.
[257]Transcript day 3 page 80.35.
[258]Transcript day 3 page 80.41.
He said that he only met the plaintiff twice although accepted he may have seen her on more occasions.[259] He denied the proposition that she was not affected by alcohol in September 2016. He said there were several people present.[260] He also denied the proposition she was not affected by alcohol on 20 January 2017. That date, namely 20 January 2017, was the last day of his work before he went on 10 weeks leave. He did not know the plaintiff lived on site during the week and did not know that her place of residence on the weekends was in Toowoomba.[261]
[259]Transcript day 3 page 81.7.
[260]Transcript day 3 page 81.35.
[261]Transcript day 3 pages 81.42-82.10.
He denied that he still had bad blood with MCRV. He denied retaining lawyers about the situation.[262] He accepted that complaints were made about him. There was a post on his Facebook page in which he was accused of organising a campaign against the facility. There was an anonymous complaint to AHPRA that he suffered from a psychological disorder which came from Yallambee. There was anonymous complaint of him being a bully, engaging in sexual harassment and victimisation to AHPRA. He suspected the complaint was from the Board of Directors and he believes the plaintiff influenced the Board to make these complaints.[263]
[262]Transcript day 3 page 82.20-25.
[263]Transcript day 3 pages 82.35-83.35.
There was also a complaint that he failed to return phone calls from MCRV and he instructed staff not to contact him after hours on the phone. He denied these complaints. There was also a complaint about him not prescribing drugs in a timely manner. He denied this complaint.[264]
[264]Transcript day 3 pages 83.40-84.15.
He did not go back to the facility after 10 January 2017. As to Ruth Carter, she was old with advanced dementia. He did not recall any complaint being received about him negligently treating Mr Armstrong.[265] There were also allegations that he showed photographs of Mrs Carter to members of the public but he denied this. The Board accused him of being in a private feud with them but he denied this. The complaint was dismissed. He persisted in his allegation that the plaintiff was under the influence of alcohol on 20 January 2017 and he did see her that day late in the afternoon.[266]
[265]Transcript day 3 page 85.20.
[266]Transcript day 3 pages 85.25-86.4.
In re-examination he said he did not respond to the Board’s letters, Exhibits 17 and 18, because the letters were delivered by hand by Mr Rogers who dropped them to his receptionist; the Yallambee Board put up a personal column in the local newspaper having a go at the medical services; the Board had gone to Queensland Health and insisted he be ordered to return to MCRV or be removed; his staff and partner received anonymous letters in the mail; he was attacked by the plaintiff’s friends on Facebook and shut it down and his union advised him not to respond.[267]
[267]Transcript day 3 pages 88.40-89.12.
The defendant’s subjective belief is irrelevant. The test is an objective one i.e. was the occasion one in which a person who desired to do his or her duty to a neighbour would reasonably believe the publication should be made.[915]
[915]Guise v Kouvelis (1947) 74 CLR 102; [1947] HCA 13 at p 114.
I accept the defendant’s evidence that she did have an interest in publishing this material. I accept her evidence that she was involved in a campaign concerning the treatment of individuals at aged care facilities. Equally I consider her followers on Facebook had such an interest. I consider it was for the public good for issues involved the care of the elderly and the management of a nursing home be discussed.
I am satisfied about these matters objectively.
However the defence fails because of the following findings on malice.
I do accept the defendant has genuine concerns about the welfare of patients in aged care facilities. I accept she was part of a campaign to set up a Royal Commission into aged care. However I have had reservations about aspects of her evidence as set out in my summary of her evidence. I have referred to my concerns there.
I consider the defendant acted recklessly in publishing the untrue material (being sacked for alcohol and drugs missing) about the plaintiff personally. She did not make any proper enquiries as to the truth of the allegations. I consider the defendant was recklessly indifferent as to the truth. Leaving aside the fact she did not make inquiry with the plaintiff about this, she made no inquiry with the previous employer or anyone associated with the previous employer as to the reasons for dismissal.
As to Exhibit 2, I consider the comment about the plaintiff not suffering dehydration went beyond what was sufficient for the occasion. Added to this was the further comment on page 1 “do not forget the Endone that would surly [sic] give you a split personality.” Again this comment goes beyond genuine concerns about the welfare of elderly patients at nursing homes. It is a spiteful comment about the plaintiff personally.
We then have the allegation on page 2 of Exhibit 2 that the plaintiff was walked off the job at Northridge Salem. This is untrue.
We then have the allegation in Exhibit 3 that the plaintiff was escorted off the premises at the last job. Then this is specifically linked in with a drinking habit or the missing of narcotic drugs. Again it is my view this goes beyond genuine concern about the welfare of elderly patients. There was no basis to suggest it.
We then have the unsubstantiated allegations in Exhibit 4 about the plaintiff forging staff signatures and saying she had been up all night doing criminal offences. There were clear inferences that she had stolen Endone and interfered with patients Webster-paks. It was alleged she had overridden doctors’ medication instructions. The contents are quite vitriolic and unproven.
I consider her decision to publish the promotional video of Exhibit 5 shortly before this trial shows not only a lack of insight but in fact ill will towards the plaintiff. She said she had to stick by what she said. The defendant did not care about the actual truth. She continued making the allegations she alleged because they had already been made.
There were a number of admissions made by the defendant in cross examination that she made serious allegations against the plaintiff; she knew the Today Tonight program would be broadcast just before the trial; she admitted humiliating and denigrating the plaintiff; she admitted alleging forgery and criminal offences in Exhibit 14; she referred to the plaintiff as a viper in Exhibit 15 and she ultimately agreed she intended to harm the plaintiff.
I consider that was her intention to harm the plaintiff and to have her sacked.
As I have noted earlier, a court is slow to make a finding of malice but for the reasons I have given I infer that the defendant was malicious towards the plaintiff personally and there was an improper motive at the time of the making of each of the publications of the untrue imputations.
The defence fails.
Defence of qualified privilege – Defamation Act
Section 30 of the Defamation Act provides:
“Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a) the recipient has an interest or apparent interest in having information on some subject; and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a) the extent to which the matter published is of public interest; and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c) the seriousness of any defamatory imputation carried by the matter published; and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f) the nature of the business environment in which the defendant operates; and
(g) the sources of the information in the matter published and the integrity of those sources; and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i) any other steps taken to verify the information in the matter published; and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.”
To establish this defence the defendant must prove on the balance of probabilities the following:
(a) The recipients of the matter have an interest or apparent interest in having information on some subject. For the purpose of apparent interest the defendant must show that she believed on reasonable grounds the recipient had that interest.
(b) The matter is published to the recipient in the course of giving to the recipient information on that subject.
(c) The conduct of the defendant in publishing the material is reasonable in the circumstances. To determine whether it is reasonable the court may take into account the matter mentioned in subsection (3).
The statutory defence was intended to broaden the nature of the interest that suffices for the defence of qualified privilege at common law.
For the reasons I have given concerning the common law defence I consider the defendant has proved she had a relevant interest in the subject matter as did the recipients.
I next turn to whether the conduct of the defendant in publishing the material was reasonable in the circumstances. This depends on all the circumstances of the case.[916]
In my view the conduct of the defendant in publishing the untrue defamatory material was not reasonable in all of the circumstances. I refer to my findings on the question of malice. The defendant did not have to get so vindictive about the plaintiff. There were ways and means of publishing these allegations which would bring to the attention of her followers the allegations in a lawful manner.
The defence fails on this score and also on the question of malice.
Defence of honest opinion – Defamation Act
Section 31 of the Defamation Act provides:
“Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(2) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(3) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
(b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
(c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.”
To establish this defence the defendant must prove on the balance of probabilities the following:
(a) The matter was an expression of the opinion of the defendant rather than a statement of fact.
(b) The opinion is related to a matter of public interest.
(c) The opinion is based on proper material. Subsection (5) notes when the opinion is based on proper material.
The defence is defeated if the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published.
In Fraser v Holmes[917] the New South Court of Appeal considered that the section reflected the common law defence of fair comment. As was noted in John Fairfax Publications Pty Ltd v O’Shane,[918] the defence of fair comment gives controlled priority to the freedom of speech as against the protection of an individual’s reputation.
[917][2009] NSWCA 36 at [78].
[918](2005) ATR 81-789 at [15].
In Channel Seven Adelaide Pty Ltd v Manock,[919] it was held that in addressing the common law defence of fair comment, the relevant question is whether the ordinary, reasonable reader would have understood that the meaning found to have been conveyed by the matter complained of was conveyed as fact or comment.
[919](2007) 232 CLR 245; [2007] HCA 60 at [35]-[36] and [45]. Also see Lloyd-Jones v Allen [2012] NSWCA 230 at [43].
In O’Brien v Australian Broadcasting Corporation[920] Macallum J held that the first matter to be considered is whether the matter complained of would have been understood to be conveyed as a comment rather than fact. At [50] it was noted that a defence of fair comment would not necessarily fail by reason of the inclusion of a factual component in the imputation.
[920][2016] NSWSC 1289 at [48].
It is my view that the following matters were statements of fact and not of opinion as to the imputations I have found:
(a) The plaintiff was on a number of occasions affected by alcohol while on duty. This relates to an existing state of affairs.
(b) The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol. This relates to the fact she was dismissed and the reasons for it.
(c) The plaintiff was dismissed from her previous job and escorted off the premises because she was responsible for narcotic drugs going missing. This relates to the fact she was dismissed and the reasons for it.
The balance of the matters may be regarded as expressions of opinion:
(a) The plaintiff is incompetent. This is an opinion as to her competence.
(b) The plaintiff is unfit to care for the elderly or discharge the responsibilities as Director of Nursing at MCRV. This is an opinion as to her fitness.
(c) The plaintiff was unfit to hold the position of Director of Nursing at MCRV because she was dismissed from her previous job because she had a problem with alcohol or was responsible for narcotic drugs going missing. This was an opinion as to her fitness.
I consider the matter discussed was a matter of public interest. In this regard the High Court considered the question of public interest in Bellino v Australian Broadcasting Corporation.[921] Dawson, McHugh and Gummow JJ held that a subject of public interest meant the actions of omissions of a person or institution engaged in activities that inherently or expressly invited public criticism or discussion.
[921](1996) 185 CLR 183; [1996] HCA 47 at p 215.5.
In my view the discussion of the treatment of persons in aged care facilities was a matter of public interest.[922] This includes discussions about the fitness of staff looking after them.
[922]I refer to exhibit 16- the Chronicle articles and Exhibit 48- the Terms of Reference for the Royal Commission.
Turning to the issue of whether the opinions were based on proper material. I have found the imputations of unfitness, incompetence and on a number of occasions being affected by alcohol to be true. I considered Ms Waugh to be an honest witness. It is true that comment was not sought by the defendant from the plaintiff, but that is only matter to be considered. Some of the material was true. I find (a) and (b) to be based on proper material.
However, I do not consider imputation (c) was based on proper material. There was no truth in the assertions that the plaintiff was dismissed because of alcohol use or missing drugs. This was not checked. The defence fails on this imputation.
I next turn to the defeasance. I consider the defendant honestly held that opinions referred at (a) and (b). There was proper material upon which to base these opinions. The plaintiff has not proved the defeasance.
I uphold this defence insofar as it relates to (a) and (b) of the expression of opinion.
Conclusion on liability
I have found the defendant published a number of defamatory imputations of and concerning the plaintiff.
I find the defences fail as to the following imputations:
(a) The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol.
(b) The plaintiff was dismissed from her previous job because she was responsible for narcotic drugs going missing.
(c) The plaintiff was unfit to hold the position of Director of Nursing at MCRV because she was dismissed from her previous job because she had a problem with alcohol or was responsible for narcotic drugs going missing.
I find the s 31 defence succeeds on the following imputations:
(a) The plaintiff is incompetent.
(b) The plaintiff is unfit to care for the elderly or discharge the responsibilities of Director of Nursing at the MCRV.
I have found that the following imputations are substantially true:
(a) The plaintiff was on a number of occasions affected by alcohol whilst on duty.
(b) The plaintiff is incompetent.
(c) The plaintiff is unfit to care for the elderly or discharge the responsibilities as Director of Nursing at MCRV.
I now turn to the assessment of damages in this context.
Damages
A number of provisions of the Defamation Act are relevant.
Section 34 provides:
“Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, 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.”
Section 35 provides:
“Damages for non-economic loss limited
(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
(3)The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).
(4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.
(5) An amount declared for the time being under this section applies to the exclusion of the amount of $250000 or an amount previously adjusted under this section.
(6) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined under a regulation.
(7) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500.
(8) A declaration made or published in the gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.”
Section 36 provides:
“State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.”
Section 37 provides:
“Exemplary or punitive damages can not be awarded
A plaintiff can not be awarded exemplary or punitive damages for defamation.”
General principles
Upon publication of defamatory material damage to reputation is presumed.[923]
[923]Ratcliffe v Evans [1892] 2 Q.B. 524 at 530 per Bowen LJ.
In Cerutti & Anor v Crestside Pty Ltd & Anor,[924] Applegarth J noted that an award of general damages serves three purposes. Firstly, to compensate the person defamed for the harm. Secondly, to give consolation for the personal distress and hurt caused to the plaintiff by the publication. Thirdly, to vindicate the plaintiff’s reputation.
[924][2016] 1 Qd R 89; [2014] QCA 33 at [25].
In quantifying damages in defamation, the court is obliged to ensure that there is an appropriate rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.[925]
[925]Section 34 of the Defamation Act 2005 (Q).
A plaintiff is not required to prove damage to reputation and once a finding as to liability is made damages must be awarded.[926] Indeed there is no requirement on a plaintiff to call evidence that in fact people thought less of him or her as a result of the publication.[927]
[926]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33.
[927]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [31].
A damages award may also reflect the “grapevine” effect.[928] The sufficiency of the amount awarded is determined by a reference to circumstances past and present as well as what is required to vindicate the plaintiff’s reputation in the future.[929]
[929]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 per Brennan J.
In deciding the amount appropriate the Defamation Act requires two matters to be considered. Firstly, the cap on damages[930] and secondly, as I noted earlier, the appropriate and rational relationship between the harm sustained and the amount awarded.
[930]$389,500 as at 1 July 2017.
In Cerutti,[931] Applegarth J noted that the sum awarded must be “at least the minimum necessary to signal to the public the vindication of the appellant’s reputation”.[932]
[931]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33.
[932]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [25].
Applegarth J also noted that the awarding of compensation for harm that is not measurable in money is a familiar task to judges. However, what is awarded in a defamation case is different to what is suffered in a personal injuries case. Also comparisons with awards of general damages in personal injury cases are difficult.[933] A court is entitled to consider the size of the award compared with other awards and trial judges may take into account comparable cases but caution has to be used in looking at any other award of damages.[934] Caution must be applied in looking at cases in other jurisdictions.[935]
[933]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [46].
[934]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [47].
[935]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [49].
A good summary of the principles is to be found in Hockey v Fairfax Media Publications Pty Ltd & Ors[936] where White J at [446] said:
[936](2015) 332 ALR 257; [2015] FCA 652.
“The parties referred to several of the leading cases containing the principles to be applied in the assessment of damages and, in addition, to Ali v Nationwide News Ltd [2008] NSWCA 183 at [70]-[78] and to Cripps v Vakras [2014] VSC 279 at [549]-[563] in which the principles have been summarised recently. Drawing on the various authorities to which counsel referred, the following principles can be identified as being particularly pertinent to the assessments in the present case:
(a) Damage to reputation need not be proved as it is presumed: Bristow v Adams [2012] NSWCA 166 at [20]-[31];
(b) Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment. The harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them: Cassell & Co Ltd v Broome [1972] AC 1027 at 1125;
(c) A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant;
(d) The level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3];
(e) The circumstance that a respondent has not provided any apology is pertinent: Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263;
(f) Aggravated damages are a form of compensatory damages. They are not awarded to punish a respondent. Exemplary or punitive damages for defamation cannot be awarded: Defamation Act 2005 (NSW) s 37;
(g) An award of aggravated damages may be made if a respondent 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 at 514. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653;
(h) The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations: Carson at 78 per Brennan J;
(i) In awarding aggravated damages, the Court is still compensating applicants for the loss actually suffered by them as a result of the defamation but, in doing so, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085.”
Conclusion on damages
In this matter the three offending imputations (not protected by any defence) were published to at least 167 people. There is evidence here of a grapevine effect bearing in mind the properties of Facebook.
However on the evidence there were very mixed views about the plaintiff. She had the support of the board and some employees but not the support of some of the other witnesses who gave evidence. I have found she had some influence over the board and the supporting employees to be in “her camp”.
As to the imputations, I have found five were protected by a defence and three were substantially true.
In the result the real damage is the publication of incorrect reasons for dismissal. It is serious to incorrectly suggest that someone has been dismissed for alcohol use or being responsible for missing drugs. On the other hand, by reason of the factual findings the damage to her reputation is not like someone with an exemplary character being defamed.
I assess compensatory damages at $10,000.
I do consider aggravated damages should be awarded. This is particularly due to the fact the defendant in effect repeated the allegations just before the trial through the Today Tonight broadcast and this was promoted on her Facebook page. This is an unusual fact and significantly aggravates the damages. I also take into account that this was a full blown trial on all matters. The defendant could have narrowed the issues and conceded incorrect imputations arose concerning the reason for dismissal.
I assess these at $5,000.
I give judgment to the plaintiff in the sum of $15,000.
The plaintiff submitted that there was a risk of further publication and submitted an injunction should be ordered restraining the defendant from further publication.
She relied on O’Reilly v Edgar[937] in which Bradley J ordered a permanent injunction against a defendant where there was a risk of repeated publication.
[937][2019] QSC 24 at [239].
The defendant submitted there was insufficient evidence of such a risk.
I am not satisfied on the balance of probabilities there is sufficient evidence of a risk of publication of untrue imputations. I do note there was no cross examination of the defendant on this point.
Bearing in mind my findings of fact, I decline to grant the injunction sought.
In addition, I decline it for the following reasons:
(a) The plaintiff has not succeeded on all imputations;
(b) The injunction was not sought in the pleadings;
(c) There has been a significant delay; and/or
(d) Damages are an adequate remedy.
I will hear the parties on the question of costs.
- AGLC
- Noone v Brown [2019] QDC 133
- Case
- [2019] QDC 133
- Decision Date
CaseChat Overview and Summary
The court first examined the statements to determine if they were defamatory. The court found that the statements were indeed defamatory as they implied Noone was dishonest and unfit for his role. Next, the court considered the defences Brown raised. Brown argued the statements were true, but the court found the statements were not substantiated. Brown also claimed the statements were a fair report of a matter of public interest, but the court ruled this defence was not valid. The court found Brown had acted with malice, which influenced the damages awarded.
The court assessed the damages Noone was entitled to receive. The court awarded Noone $15,000.00 in general damages for the harm to his reputation. The court also considered but did not award aggravated damages due to the lack of evidence of severe mental distress. The court declined to grant an injunction as Noone had not demonstrated the need for ongoing protection. Finally, the court scheduled a further hearing to discuss the costs of the case.
Orders
Orders of the court
I give judgment for the plaintiff against the defendant in the sum of $15,000.00.1.
I will hear the parties on the question of costs.2.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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