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

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

JOHN PEROS
(plaintiff)

v

NATIONWIDE NEWS PTY LTD
ACN 008 438 828

(first defendant)

AND
HEDLEY THOMAS
(second defendant)
AND
SHANNAH BLACKBURN

(third defendant)

FILE NO:

BS 7796 of 2023

DIVISION:

Trial Division

PROCEEDING:

Hearing of separate harm issue under Defamation Act 2005 (Qld), s 10A

ORIGINATING COURT:
Supreme Court of Queensland at Brisbane

DELIVERED ON:

27 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29 and 30 July 2024

JUDGE:

Applegarth J

ORDERS:

The proceeding is dismissed.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SERIOUS HARM ISSUE – where the plaintiff was charged with, and later acquitted of, murder – where he was later found by a Coroner to have violently killed the deceased using a bladed instrument – where the Coroner’s finding was widely publicised – where the first and second defendants published an investigative podcast series into the killing – where Episode 13 is alleged to have imputed that the plaintiff murdered the deceased – where the plaintiff pleads that the episode “caused or is likely to cause serious harm” to his reputation so as to satisfy the serious harm element of the cause of action enacted by s 10A of Defamation Act 2005 (Qld) – where the defendants dispute the “serious harm element” of the plaintiff’s cause of action on the grounds that his reputation had been practically destroyed by the widespread reporting of the Coroner’s finding – where the Coroner’s finding was reported in the first episode of the series – where an order is made pursuant to s 10A of the Defamation Act 2005 (Qld) for the early determination of the serious harm issue – where the plaintiff objects to the admissibility of reports of the Coroner’s findings and other prior publications that are alleged to have injured his reputation prior to the publication of Episode 13 – whether the plaintiff has established the serious harm element of his cause of action against the first and second defendants over Episode 13 – whether the plaintiff has established the serious harm element of his cause of action against the third defendant over things she said in an interview that were included in Episode 13

Defamation Act 2005 (Qld), ss 10A, 38
Defamation Act 2013 (UK), s 1

Alsaifi v Trinity Mirror Plc [2017] EWHC 2873 (QB), cited
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, cited
Associated Newspapers Ltd v Dingle [1964] AC 371, discussed
Banks v Cadwalladr [2023] EWCA Civ 219, cited
Barron v Vines [2016] EWHC 1226 (QB), cited
Blake v Fox [2024] EWHC 146 (KB), cited
Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Burstein v Times Newspapers Ltd [2001] 1 WLR 579, cited
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, cited
Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232; [2010] NSWCA 335, followed
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691, cited
Cornwall v Rowan (2004) 90 SASR 269, cited
Daryanani v Ramnani [2017] EWHC 183 (QB), cited
Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1, cited
Dingle v Associated Newspapers Ltd [1961] 2 QB 162, discussed
Dyson v MGN Ltd [2023] EWHC 3092 (KB), cited
Economou v De Freitas [2018] EWCA Civ 2591; [2019] EMLR 7, cited
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547, cited
Faruqi v Latham [2018] FCA 1328, cited
Goody v Odhams Press Pty Ltd [1967] 1 QB 333, cited
Hayson v The Age Company Pty Ltd [2019] FCA 1538, cited
Helton v Allen (1940) 63 CLR 691, cited
Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96, cited
Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, cited
Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 17, cited
Jameel v Dow Jones & Co Inc. [2005] (QB) 946, cited
Jones v Sutton (2004) 61 NSWLR 614, cited
Lachaux v Independent Print Ltd [2016] QB 402, cited
Lachaux v Independent Print Ltd [2020] AC 612, cited
Ley v Hamilton (1935) 153 LT 384, cited
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, cited
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, cited
Napag Trading Ltd v Gedi Gruppo Editoriale SpA [2020] EWHC 3034, cited
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited
Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64, cited
O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, cited
O’Shea v Everingham Unreported, Supreme Court of Queensland number 128 of 1980, 30 October 1985, cited
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116, cited
Peros v Blackburn [2024] FCA 177, cited
Peros v Nationwide News Pty Ltd [2024] QSC 80, cited
Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83, cited
Plato Films Ltd v Speidel [1961] AC 1090, cited
Price v MGM Ltd [2018] EWHC 3014 (QB); [2018] 4 WLR 150, cited
R v Carroll (2002) 213 CLR 635, cited
R v GJL [2021] QCA 175, cited
R v Storey (1978) 140 CLR 364, cited
Rader v Haines [2022] NSWCA 198, cited
Rahman v Arearose Ltd [2001] QB 351, cited
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, cited
Rolfe v Northern Territory Coroner [2023] NTCA 8, cited
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550, cited
Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688, cited
Scott v Sampson (1882) 8 QBD 491, cited
Selkirk v Wyatt [2024] FCAFC 48, cited
Shakil-Ur-Rahman v ARY Network Ltd [2017] 4 WLR 22 at 24-25[9]-[14]; [2016] EWHC 3110 (QB), cited
Sicri v Associated Newspapers [2020] EWHC 3541 (QB), cited
Sim v Stretch [1936] 2 All ER 1237, cited
Sivananthan v Vasikaran [2022] EWHC 2938 (KB); [2023] EMLR 7 at 255, cited
Slipper v British Broadcasting Corporation [1991] 1 QB 283, cited
Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB), cited
Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 (QB), cited
Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 (QB), cited
Tesla Motors Ltd v British Broadcasting Corporation [2011] EWHC 2760; [2013] EWCA Civ 152, cited
Turleyv Unite the Union [2019] EWHC 3547 (QB), cited
Turner v News Group Newspapers Ltd [2006] 1 WLR 3469, cited
Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495, cited
Whittington v Newman [2024] NSWCA 27, cited
Wisher v Mirror Newspapers Ltd [1963] SR (NSW) 745, cited
Wright v McCormack [2022] EWHC 10, cited

COUNSEL:
D J Helvadjian for the plaintiff

D R Sibtain SC and P Morreau for the defendants

SOLICITORS:
Rostron Carlyle Rojas Lawyers for the plaintiff

Thomson Geer for the defendants

Table of Contents Page

ADMISSIBILITY ISSUES

The rule in Dingle’s case

The plaintiff’s submissions

The defendants’ submissions

The plaintiff’s submissions in reply

SERIOUS HARM

CAUSATION AND THE RULE IN DINGLE

Positioning the rule in Dingle and other laws about mitigation of damages in their context

The nature of the plaintiff’s claim

Causation in law and in the law of defamation

The interaction between principles of causation and the rule in Dingle

Does the rule in Dingle render inadmissible other publications to the same or similar effect that are relevant to the issue of causation?

Does the rule in Dingle apply to “quasi-judicial” findings of a kind made by the Coroner?

Notorious or contextual facts

Conclusion on admissibility

THE EVIDENCE

Chronology

The plaintiff’s evidence

RELEVANT CONSIDERATIONS

The gravity of the defamation

The extent of publication of the podcast series and of Episode 13

The extent of publication of other publications

The Coroner’s Report and findings

Publicity surrounding the Coroner’s findings

The overlap issue

By whom the publications were made

The form of the publication

The identity of the recipients

The likely effect of earlier publications to the same or similar effect

The state of the plaintiff’s reputation prior to the publication of Episode 13

Episode 13

The mystery novel analogy

The summary and conclusion argument

The reinforcement submission

Proof of serious harm

The plaintiff’s particulars and his evidence about his reputation

The absence of reputation witnesses and witnesses about the effect of Episode 13

The Reddit posts

Direct evidence of the effect of earlier publications

Has the plaintiff discharged the burden of proving serious harm was caused by Episode 13?

Has the plaintiff discharged the burden of proving that serious harm is likely to be caused by Episode 13?

The position of the third defendant

Conclusion and orders

The plaintiff sues over a podcast episode that he says imputed that he murdered Shandee Blackburn.
In 2014, the plaintiff was charged with the murder of Ms Blackburn on 9 February 2013. After a trial in 2017, he was found not guilty of that charge by a jury.
In 2019, a Coroner conducted an extensive investigation into the death of Ms Blackburn. This included evidence that was not before the jury in 2017, including additional and enhanced CCTV recordings and police questioning of the plaintiff about his movements. The Coroner questioned the plaintiff after he initially refused to give evidence on the ground that the evidence would tend to incriminate him. The Coroner compelled the plaintiff to give evidence under the Coroners Act2003 (Qld). As a result, he was afforded the protections contained in s 39 of that Act against the use of that evidence in other proceedings.
On 21 August 2020, the Coroner published findings that remain available online. They include the finding that:
“Miss Blackburn died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument.”
Unsurprisingly, the Coroner’s finding that the plaintiff violently killed Ms Blackburn was widely reported, including by newspapers and broadcasters, and in their online publications. Those publications have remained online since their first publication.
On 14 October 2021, the first and second defendants began publishing an investigative podcast into the death of Ms Blackburn called Shandee’s Story.
The podcast series as a whole examined the nature and quality of the evidence called at the plaintiff’s criminal trial and at the coronial inquest, including deficiencies in the DNA evidence that was presented at his trial. It made the point that far more evidence was available to the Coroner than was available to the jury. The second defendant interviewed relevant witnesses, including investigators and experts. Parts of those interviews were published by the podcast.
The plaintiff has sued in respect of the publication of Episode 13 of the podcast.
The third defendant is Shandee Blackburn’s sister. She was interviewed on 24 May 2021 by the second defendant. The plaintiff sues her over that interview and the republication in Episode 13 of some of the things that she said in the interview. A limitation period issue remains to be resolved in the plaintiff’s case against her.
Episode 13 was first released to subscribers of The Australian from 17 December 2021, and across other platforms such as Spotify from 10 January 2022.
The defendants contend that before Episode 13 of the podcast was published, the plaintiff’s reputation had been effectively destroyed or “decimated” by the widespread reporting of the Coroner’s finding that Shandee Blackburn “died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument”. They also rely on the fact that listeners to Episode 13 would already have formed an adverse view of the plaintiff from having listened to the first 12 episodes.
The defendants’ case is that, prior to Episode 13 being published, the plaintiff was widely known to be the person who was found by an independent Coroner, acting judicially, to have violently killed Shandee Blackburn.
In those circumstances, and given the state of his reputation before Episode 13’s publication, the defendants contend that the podcast did not cause, and is not likely to cause, “serious harm to the reputation” of the plaintiff.
In the absence of “special circumstances”, an order was made in accordance with s 10A of the Defamation Act 2005 (Qld) for the determination of the serious harm issue before the trial of other issues.[1] Orders also were made for the plaintiff to particularise the nature and extent of his reputation, and the harm he alleged was caused or is likely to be caused to it.[2]

ADMISSIBILITY ISSUES

[1]Peros v Nationwide News Pty Ltd [2024] QSC 80.

[2]Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83.

The parties’ contentions raise the following admissibility issues:
(a)the admissibility of reports of the Coroner’s finding as being relevant to the issue of causation;
(b)the admissibility of the first twelve episodes of the podcast, and the first episode in particular which reported the Coroner’s finding, on the causation issue;
(c)the “rule in Dingle’s case”;[3]
(d)the application of that rule to the determination of “serious harm”;
(e)whether the rule applies to “quasi-judicial” findings of the kind made by the Coroner; and
(f)the admissibility of evidence of the criminal proceedings and coronial proceedings and reporting of them as “directly relevant background material” to the publication of Episode 13.
The rule in Dingle’s case
[3]Associated Newspapers Ltd v Dingle [1964] AC 371 (“Dingle”).
A significant part of the serious harm hearing concerned the admissibility of prior publications that were to the same effect as Episode 13, in that they either imputed that the plaintiff murdered Ms Blackburn or that he had been found by a Coroner to have violently killed that defenceless woman.
The rule in Dingle has been expressed in different ways. It may be formulated as a rule of evidence about the inadmissibility of prior publications as proof of a bad reputation. It may be described as a rule about mitigation of damages in circumstances where other publications to the same or similar effect have injured the plaintiff’s reputation. One simple formulation of the rule is that “where many have published words to the same or similar effect, it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others, and inviting an inference that those other publications have injured the claimant’s reputation”.[4] It does not prevent a defendant from proving that the plaintiff had a bad reputation. It concerns the kind of evidence that is admissible to prove that fact when seeking to reduce damages.
[4]Lachaux v Independent Print Ltd [2016] QB 402 at 413 [15](9) (emphasis added).
I will return to consider the rule in Dingle, its rationale, its possible application in the context of s 10A, and what may be treated as exceptions to the rule for judicial findings (as distinct from mere allegations) and notorious incidents.
The plaintiff’s submissions
The plaintiff first submits:
(a)publications such as newspaper articles about the murder trial, the Coroner’s inquest, and the Coroner’s findings; and
(b)evidence of the first 12 episodes of the podcast;
are not admissible to prove that the plaintiff already had a bad reputation prior to Episode 13 being published. The evidence is submitted to fall foul of “the Dingle rule”.
Second, he submits that the Coroner’s Report is not separately admissible as analogous to a judicial finding in the public domain under the principle discussed in Channel Seven Sydney Pty Ltd v Mohammed.[5]
[5](2010) 278 ALR 232.
Third, he submits that the evidence is not admissible as “directly relevant background context” in accordance with principles derived from Burstein v Times Newspapers Ltd.[6]
[6][2001] 1 WLR 579.
If the above evidence is not admissible, then, in the absence of other evidence to establish a prior bad reputation, the plaintiff submits that:
(a)Episode 13; and
(b)the third defendants’ statements that were included in that episode,
each caused, or is likely to cause, serious harm to his reputation.
This submission relies on:
(a)the gravity of the imputation that the plaintiff murdered Shandee Blackburn;
(b)the extent of the podcast’s publication;
(c)the circumstances of the publication including:
(i)the authority of the first and second defendants in undertaking investigative journalism;
(ii)the fact that the third defendant said that the family’s “100 per cent” view as to the plaintiff’s guilt was because the third defendant had seen more evidence than was presented at the trial; and
(d)the inherent probability that being labelled as a murderer must have caused, or must be likely to cause, serious harm to reputation.
Next, the plaintiff submits that even if the pre-Episode 13 publications, including media reports of the Coroner’s findings, are admitted, they do not prove that persons who came to listen to Episode 13 had a settled, generally-held view that the plaintiff was a murderer before they listened to that episode. The evidence is submitted to show that Episode 13 convinced at least some listeners of his guilt and therefore caused serious harm to his reputation. Further, to the extent Episode 13 may have reinforced a view created from earlier publications that the plaintiff murdered Ms Blackburn, this reinforcement is submitted to constitute “serious harm”.
Alternatively, Episode 13 is said to be “likely to cause” the plaintiff harm in the future because, even if the Coroner’s findings were notorious in 2020, knowledge of them will fade or be non-existent in, say, 2026.
According to the plaintiff, the defendants’ evidence cannot establish that a widespread and negative view of the plaintiff existed prior to Episode 13, and that a significant number of listeners to that episode would not have seriously reduced their estimation of him as a result of listening to it. The inference is that the widespread publication of such a grave imputation by an authoritative, investigative journalist and a leading newspaper would cause serious harm.
The plaintiff submits that the defendants’ evidence does not establish that every listener to Episode 13 had become aware, before listening to that episode, of the Coroner’s findings or other information that he had violently killed Ms Blackburn. There may be some overlap between the persons to whom reports of the Coroner’s findings were published and listeners to Episode 13. But they did not coincide.
If the defendants’ evidence is admitted, the plaintiff submits that there is no proper basis to infer that a sufficient number of the approximately 300,000 listeners to Episode 13 either knew of the prior publications or had a settled view about his guilt prior to that episode, and that hearing Episode 13 did not cause serious harm.
Even if relatively few listeners to Episode 13 were unaware of the Coroner’s finding and did not already have a low estimation of the plaintiff as a suspected murderer, who the Coroner, acting judicially, had found to have violently killed Ms Blackburn, the plaintiff submits that the serious harm element has been established. This is because a grave imputation can cause serious harm to reputation in the case of a publication to only a few listeners.
The defendants’ submissions
The defendants identify the issue raised by s 10A as one of causation. The claimant must prove that the publication complained of (Episode 13) caused, or is likely to cause, serious harm to his reputation. The claimant in proving causation must “isolate” the harm caused by Episode 13 from any harm to reputation that may have been caused by other publications, including earlier publications by the defendants over which he has chosen to not sue.
The rule in Dingle is submitted to not relieve the court of the duty of “isolating” damage caused by the defendant from any other harm that other publications may have caused to the claimant.[7]
[7]Dingle at 410 (Lord Denning); Sicri v Associated Newspapers [2020] EWHC 3541 (QB) at [178] (7) (“Sicri”); Napag Trading Ltd v Gedi Gruppo Editoriale SpA [2020] EWHC 3034 at [56]-[57] (“Napag”); Economou v De Freitas [2019] EMLR 7 at [41] (“Economou”).

The defendants submit that the rule in Dingle is about the inadmissibility of prior publications of the same or a similar defamatory statement as proof of bad reputation in mitigation of damages. Despite the application of the rule in Dingle to the question of serious harm under s 1 of the Defamation Act 2013 (UK),[8] the defendants submit that it does not affect the requirement for the claimant to prove causation. A new legal regime displaces the common law presumption that a defamatory publication causes damage to reputation. A claimant must prove loss was caused by the defendants’ publication that it sues over. The defendants rely on English authorities that are said to hold that evidence of similar publications harmful to the claimant’s reputation are admissible on the question of serious harm, in particular, where they indicate that a specific harm asserted could not be attributed to the publication sued upon.[9]
[8]Lachaux v Independent Print Ltd [2020] AC 612 at 628 [24].
[9]Wright v McCormack [2022] EWHC 10 at [160]-[168] (“Wright”); Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 at [361]-[378] (“Spicer”); Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 (QB) at [10]-[12] (“Soriano”).
Next, the rule in Dingle does not make evidence of convictions, findings in civil proceedings and certain notorious incidents inadmissible. The defendants submit that the rule in Dingle does not apply to judicial and quasi-judicial findings. According to the defendants, the Coroner, acting judicially, in determining the cause of Ms Blackburn’s death made a finding that falls within this category, which may be distinguished from the kind of mere allegations, rumours or unsubstantiated claims to which the rule in Dingle is directed.
Alternatively, the defendants rely on authorities to the effect that evidence of notorious matters that are directly relevant either to the subject matter of the alleged defamatory statement, or to the claimant’s reputation, are admissible to ensure that the assessment of harm to reputation does not occur in “blinkers” and so that the claimant is only compensated for the reputation he or she deserves. The wide dissemination of the Coroner’s findings is submitted by the defendants to be such a matter.
Ultimately, the defendants submit that while the plaintiff may rely on inference, rather than direct evidence, to prove serious harm, the plaintiff’s inferential case presumes ignorance of the Coroner’s findings and their wide publication. The plaintiff’s evidence of harm resulting from Episode 13 is submitted by the defendants to consist of a few disparaging comments published by a few unknown persons on an internet chat forum, Reddit, and an argument that there must have been many listeners of Episode 13 like them, or that there were many listeners to Episode 13 who did not listen to any previous episode.
If it might be inferred that Episode 13 convinced some listeners that the plaintiff murdered Ms Blackburn, one must return to their estimation of the plaintiff prior to Episode 13. If they believed or were almost convinced that the plaintiff killed Ms Blackburn, then Episode 13 will not have caused him serious harm.
Any listener to that episode probably would have listened to Episode 1 which reported the Coroner’s finding that the plaintiff violently killed Ms Blackburn. But even if some listeners to Episode 13 were ignorant of the Coroner’s findings, they would be few in number and not distract from the plaintiff’s settled reputation by the time Episode 13 was published, as being the person whom the Coroner found to be Ms Blackburn’s violent killer. According to the defendants, to determine serious harm without regard to that would be to approach the issue “in blinkers”.
The plaintiff’s submissions in reply
In reply, the plaintiff reiterates that the gravity of being accused of being a murderer and the wide (and continuing) publication of Episode 13 means that his reputation must have been seriously harmed among at least some listeners to Episode 13, or is likely to be seriously harmed by that episode in the future. He submits that the evidence does not establish that each and every listener in the past had a settled view that he violently killed Ms Blackburn prior to listening to Episode 13, or that every listener to that episode in the future will have that view before listening to it.
The inference that every listener had a settled view because of Episode 1’s reporting of the Coroner’s finding and other matters implicating the plaintiff as the killer is said to be negatived by Episode 1 raising a question mark over who killed Ms Blackburn, and Episodes 1 to 12 identifying other suspects. If the podcast series is likened to an unfolding story like a novel, then Episode 1 simply created an interest or a mystery and did not create a settled view that the plaintiff was Ms Blackburn’s murderer. Alternatively, if Episode 1 provided enough content to seriously harm the plaintiff’s reputation and create a settled view among listeners to the series, the plaintiff submits that:
(a)the defendants’ approach is met by an equally probable inference that between Episodes 1 and 13 listeners simply forgot about the Coroner’s findings and did not have a settled view, or that any settled view had dissipated by the time they heard Episode 13; and
(b)one should not proceed on the basis that each listener religiously listened to each episode, vividly remembering its content so as to accumulate a settled view prior to listening to Episode 13, or binged earlier episodes and formed such a settled view prior to Episode 13.
The plaintiff’s response to the defendants’ argument about the lack of evidence from any actual listener to Episode 13, the absence of any direct evidence from the plaintiff or other witnesses of the reaction of others to Episode 13 (as distinct from their reaction to earlier episodes), and the paucity of evidence in the form of a few Reddit comments, is that the Court can infer that the views of those few commentators were shared by others who did not post their views on social media.
The absence of direct evidence of serious harm from Episode 13 (or even evidence of how any listener reacted to it) is explained on the basis that the law recognises that mass media publications “of very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary”.[10]
[10]Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) at [47], [2016] EMLR 12 (“Sobrinho”).
To the extent the issue is one of causation (rather than proof of bad reputation in mitigation of damages), the plaintiff submits that any listeners who already had a negative view of him were likely to have that reinforced by the allegations in Episode 13. According to the plaintiff, a listener with a settled view who heard the exchange between the second defendant and the third defendant in Episode 13 about the plaintiff’s guilt, and the third defendant’s certainty of that guilt, would have that settled view reinforced. Reinforcement of the settled view is submitted to be sufficient to justify a finding of serious harm being caused by Episode 13.[11]
[11]Turleyv Unite the Union [2019] EWHC 3547 (QB) at [114] (“Turley”).
As to the rule in Dingle, the plaintiff relies on authorities that reiterate the general rule that proof of a bad reputation requires proof by calling persons who can speak to that bad reputation, and that previous publications to the same effect are inadmissible to prove a pre-existing bad reputation. Following Lachaux, a rule that applies to proof of a bad reputation in mitigation of damages should apply to proof of bad reputation in the context of serious harm.
In summary, the plaintiff submits that:
(a)it is simply not possible for such a widespread mass media publication, conveying such a grave imputation, not to have caused serious harm to the plaintiff’s reputation, or not to be likely to cause serious harm;
(b)there is actual evidence (a few Reddit comments) that people believed that the plaintiff was a murderer because they listened to Episode 13;
(c)if the Reddit comments do not establish serious harm, numerous authorities establish that serious harm may be established by inference;
(d)the fact that the Coroner’s findings were reported widely and were referred to in an earlier episode does not mean that every listener to Episode 13 would have a settled view that the plaintiff was a murderer prior to listening to Episode 13; and
(e)in the circumstances, both limbs of s 10A(1) are established.

SERIOUS HARM

The new element of the cause of action for defamation created by s 10A of the Act is that “the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person”.[12]
[12]Defamation Act 2005 (Qld), s 10A(1). An identical provision was enacted in most other Australian jurisdictions as part of a national defamation law reform process.
The new element is expressed in the language of causation. Its counterpart in s 1 of the Defamation Act 2013 (UK) includes serious harm as part of the definition of what is defamatory. It similarly imposes a requirement about causation of serious harm.
The publication of defamatory matter
Under s 10A, the claimant must prove either that “serious harm” was caused or is likely to be caused by the publication of “defamatory matter”, not by a certain defamatory meaning or a particular defamatory imputation. Still, in pleading the cause of action upon which he or she relies, the claimant will be expected to specify the publication relied upon and, save in exceptional cases, inform the defendant and the Court of the defamatory meaning or meanings upon which he or she relies.
The terms of s 10A do not require the judge who determines the issue of serious harm to first make a finding that binds the tribunal of fact at any trial about the precise defamatory imputation that the publication conveyed. Section 10A contemplates that the serious harm element will be determined as soon as practicable before the trial of the proceeding, unless the judge is satisfied that there are special circumstances justifying the postponement of that determination. This differs from practice and procedure in other jurisdictions, such as the United Kingdom, where typically meaning, reference to the claimant, and serious harm will be determined at the same time.
Section 10A relates to the publication of defamatory matter, not defamatory imputations, and therefore a judge determining the issue of serious harm is not required to find that a certain imputation was conveyed. Despite this, it would make no sense to proceed with a special harm hearing on the assumption that certain defamatory imputations pleaded by the claimant will not be found, and that the hearing should be conducted by reference to far less serious imputations which are likely to be found at trial. One might do so if the more serious imputations were clearly untenable and liable to be struck out. Given the presumptive timing of the s 10A hearing and the consequences of finding that serious harm is not established, a sensible course may be to proceed on the basis that the defamatory matter that was published conveyed the imputation or imputations pleaded by the claimant, imputations to a substantially similar effect, or imputations of a similar degree of seriousness. Otherwise, an assumption that the publication only conveyed a substantially less serious defamatory meaning than those reasonably contended for by the claimant might see the claimant shut out of a claim that, if allowed to proceed to trial, might result in the more serious imputations being established.
Therefore, in this matter the serious harm hearing proceeded on the assumption that the defamatory matter imputed that the plaintiff murdered Shandee Blackburn or conveyed a similarly grave imputation about his responsibility for her violent death.
Section 10A removes the common law presumption that the defamatory publication caused harm to reputation
Section 10A has been held to remove the presumption of damage, together with any presumption of a good reputation, if the latter presumption was part of the common law.[13] This follows the approach adopted in the United Kingdom in Lachaux.[14] Lord Sumption (with whom the other members of the Supreme Court agreed) adopted the analysis of Warby J (as Warby LJ then was) at first instance. Warby J accepted that s 1 means that libel is no longer actionable without proof of damage, and “that the legal presumption of damage will cease to play any significant role”.[15] Lord Sumption was more emphatic, observing that if the common law rule that damage to reputation was presumed survived, then there would be no scope for evidence of the actual impact of the publication. Therefore, he concluded that the presumption of damage “cannot survive”.[16] The Full Court of the Federal Court has adopted the same approach in considering the effect of s 10A.
[13]Selkirk v Wyatt [2024] FCAFC 48 at [94].
[14]Lachaux v Independent Print Ltd [2020] AC 612 at 626 [20].
[15]Lachaux [2016] QB 402 at 423 [60].
[16]Lachaux [2020] AC 612 at 626 [20].
Had the point not been recently decided by the Full Court of the Federal Court, I would have adopted the same view and followed the reasoning of Warby J, as endorsed by the Supreme Court of the United Kingdom in Lachaux.
In any event, if s 10A had merely burdened the presumption of damage rather than removed it, then the presumption would be one of harm, not a presumption of serious harm. As Professor Rolph observes, the issue of whether the presumption of damage has been abrogated or merely burdened by the introduction of the serious harm element into the cause of action is probably of doctrinal importance only.[17]
[17]D Rolph, Rolph on Defamation (2^nd Ed) 2024 Lawbook Co [9.120].
The determination of serious harm
The determination of serious harm is made by a judge, rather than by a jury. As noted, absent special circumstances, the determination is made if the issue arises, as soon as practicable before the trial.
The determination of serious harm is qualitative, not quantitative.[18] The judge’s task is to evaluate the material before the court and “arrive at a conclusion on an issue on which precision will rarely be possible”.[19]
[18]Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1 at [55].
[19]Lachaux [2020] AC 612 at 627 [21].
The determination is made having regard to all of the circumstances of the case, not simply the circumstances of the publication. This is a point of distinction with the former triviality defence. The term “the circumstances of the publication” in the statutory defence of triviality was interpreted to include “the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published and the place where it is published”.[20] A plaintiff’s bad reputation was held to not ordinarily be a relevant circumstance of publication for the purpose of the defence, unless the matter was published to a small audience who knew the plaintiff.[21]
[20]Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800.
[21]Ibid; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,946-68,948; Jones v Sutton (2004) 61 NSWLR 614 at 621.
I shall consider some of the circumstances that may be relevant to the different issue of “serious harm” under s 10A.
The gravity of the defamation
Clearly, the gravity of the defamation is a relevant factor.[22] The more seriously defamatory the publication, the more likely it is to cause serious harm.
[22]Rader v Haines [2022] NSWCA 198 at [28]-[29], in which the New South Wales Court of Appeal considered the authorities on s 1 of the United Kingdom Act.
The extent of publication
Quantity counts in the evaluation of serious harm, but it is not necessarily decisive. The extent of publication is only one of many potentially relevant circumstances. The fact that the defamatory matter was published to only a few individuals does not necessarily mean that it did not cause “serious harm”. Very serious harm to a reputation can be caused by the publication of defamatory matter to one person.[23] The gravity of the defamation and other circumstances may mean that only a few recipients is not too few to result in serious harm.
[23]Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) at [47].
A mass media publication will not necessarily cause serious harm. That said, mass media publications of “very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary”.[24] This does not mean, however, that the issue of serious harm is a “numbers game”.[25]
[24]Ibid.
[25]Ibid.
By whom it is published
A defamatory publication that is made by or attributed to a credible and reliable source is more likely to cause serious harm than a publication made by a partisan and prejudiced person who recipients of the publication would regard as unreliable or poorly informed. A defamatory publication that is presented as being the product of extensive research by an independent entity is more likely to cause serious harm than a publication that appears to be the product of no inquiry or consideration.
The form of the publication
A statement made in an ephemeral medium, apparently spontaneously, such as a social media post in response to an earlier post, may have less potential for harm than a statement made in a permanent form that appears to be the product of analysis and reflection.
The identity of the recipients
The defamatory matter may be published to persons who know or know of the claimant. For example, a statement made to the family or close friends of the claimant who instantly disbelieve it, is less likely to cause serious harm than if the statement is made to persons who do not know the plaintiff and who believe it.
In some contexts, a defamatory publication may be made to a group that does not alter its estimation of the person being referred to. For example, an email to members of a completely factionalised golf club about a protagonist may not shift the settled views of recipients about the protagonist.
The same may be true of a publication to persons who have not previously heard of the claimant. In O’Shea v Everingham[26] a police officer, who was the officer in charge at an Aboriginal reserve, sued over a letter the defendant, a Member of Parliament, wrote to the Federal Minister for Aboriginal Affairs, and which was copied to the State Minister and several other Members of Parliament. In assessing damages at $1,000, Connolly J observed that, “wounding though this attack obviously was to the plaintiff, his reputation suffered very little as a result of the publication of this letter”. He continued:[27]
“Insofar as it was published to members of the Australian Labor Party, Federal and State, and their advisors, it was simply preaching to the converted. So far as it was addressed to members of the Queensland Ministry and to a Liberal member of the Parliament of the Commonwealth, it was a sermon likely to have fallen on deaf ears.”
[26]Unreported, Supreme Court of Queensland number 128 of 1980, 30 October 1985.
[27]At page 23.
Had Connolly J been required to make a determination under s 10A, he might have concluded for similar reasons that the publication did not cause serious harm.
The state of the claimant’s reputation prior to the publication
If a publication injures a claimant only in a certain sector, then evidence of reputation must relate to that sector.[28] For example, the claimant’s reputation as a talented musician may be unaffected by a report that she is a robber, but her reputation for being law-abiding will be, and is likely to be seriously harmed.
[28]Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83 at [17]; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 91[5].

A claimant is not required to prove that he or she had a good reputation before attempting to jump the s 10A hurdle. This must be so, otherwise the remedies and vindication given by the law of defamation would not be available for someone with a somewhat tarnished reputation, or even a person whose reputation was under a cloud because of earlier publications and whose reputation was completely destroyed by the subject publication.
A party may have a reputation, or reputations in different sectors of their life, among members of the community in which they live, by persons who know them, or by persons who know of them. However, to have a remedy in defamation, a person is not required to prove that he or she had a pre-existing reputation among all of the recipients of the defamatory publication. For example, a citizen who has never come to public prominence can complain about the harm to reputation caused by a mass media publication that is communicated to all parts of the nation. In Lachaux, Lord Sumption said:[29]
“… there is no principled reason why an assessment of the harm to the claimant’s reputation should not take account of the impact of the publications on those who had never heard of him at the time. The claimant’s reputation is harmed at the time of publication notwithstanding that the reader or hearer knows nothing about him other than what the publication tells him.”
[29][2020] AC 612 at 628 [25].
A person with a bad general reputation or a bad reputation in a relevant sector will struggle to prove that a defamatory publication caused serious harm to that already badly damaged reputation.
A person’s bad reputation is relevant to the determination of serious harm. In following English authorities, Besanko J (with whom Anderson and O’Sullivan JJ agreed) stated in Selkirk v Wyatt:[30]
“… a prior bad reputation is relevant to the decision whether the publication has caused, or is likely to cause, serious harm to the claimant. It may mean the difference between the prior bad reputation and the harm caused by the publication is not serious harm.”
[30][2024] FCAFC 48 at [98].
Besanko J also stated that the English cases were authority for the proposition that if the defendant seeks to rely on prior bad reputation in the context of the issue of serious harm, then the onus is on the defendant to prove that matter. I defer discussion of how a bad reputation is proven in the context of “serious harm” and in the different, but related, context of mitigation of damages. I will address that matter in discussing the rule in Dingle.
Proof of the cause of the serious harm
As a matter of first principle governing causation of loss and damage, a defendant is liable only for the harm to reputation and other loss caused by its publication. The starting point under s 10A is that the defendant is responsible only for harm to a claimant’s reputation that is caused by the defamatory publication sued over, not for harm caused by other publications or other causes. Applying this principle, Lord Denning in Dingle stated that the judge would have been “quite right” if he had “isolated” the damage for which the “Daily Mail were responsible from the damage for which they were not responsible”.[31]
[31]Associated Newspapers Ltd v Dingle [1964] AC 371 at 410.
In proving the “serious harm” element of the cause of action and in proving damages at trial, the plaintiff must attempt to isolate the damage caused by the publication of which he or she complains. In Sicri v Associated Newspapers Ltd,[32] Warby J referred to the court’s duty of “isolating” the damage caused by the defendant tortfeasor from any harm that others may have caused to the same interest of the claimant. This was in the context of a claim for the tort of misuse of private information. However, it reflects a principle of causation in any case in which the claimant must prove that the defendant’s wrong caused the harm for which compensation is sought.
[32][2020] EWHC 3541 (QB) at [178] (7).
For reasons to be discussed, in some circumstances a plaintiff may be unable to isolate the harm that the relevant publication caused. An example is where many publications at around the same time to the same or similar effect cause an indivisible loss. In such a case, in which neither the claimant nor the court can isolate the harm caused by the subject publication, a plaintiff may choose to sue over one publication that is alleged to have caused, along with other publications, indivisible damage to reputation. The combined and indivisible harm may be as a result of publications to the same effect by the same defendant or by other publishers. The claimant may seek to invoke another general principle that renders a defendant liable in tort where its wrong was “a cause” or materially contributed to damage that is indivisible. In those circumstances, it is sufficient that the wrong, along with other causes, caused the same loss or damage.
A defendant who is made liable for the whole of the loss or damage where its tort was only one cause may seek contribution from a concurrent tortfeasor whose wrong caused the same loss or damage. Further, as I will discuss, a defendant publisher may seek to mitigate damages pursuant to a statute or by proving that at the time of its publication the plaintiff already had a bad reputation.
If, however, the claimant does not sue over the combined and indivisible harm that was caused by numerous publications to the same or similar effect, then he or she may encounter a problem of proof under s 10A. The following passage makes that point and is relevant in this case in which the plaintiff:
(a)sues only over Episode 13; and
(b)does not seek to claim on the basis that Episode 13 and other publications to the same or similar effect caused an indivisible loss, rather than harm to reputation that is able to be isolated.
In Sivananthan v Vasikaran Collins Rice J stated:[33]
“Where a libel claimant selects some publications as examples of a wider campaign of allegations by a defendant, that claimant may face a daunting problem of causation. If a defendant has undertaken a protracted course of conduct publicising allegations, a corresponding improbability arises that any member of that public later re‑encountering them in published form will be impacted as an effect of that specific publication. The serious harm test is about the impact of an individual publication by a defendant on its readership. If the readership already knows everything about the defendant’s view of the claimant contained in the publication from the defendant’s own history and course of conduct, it is correspondingly unlikely that the publication will have material impact.”
[33][2022] EWHC 2938 (KB) at [56] (emphasis in original).
Proof of serious harm by direct evidence or by inference
The serious harm element requires proof of actual harm to reputation. Harm is not presumed. Serious harm may be proven by direct evidence of harm to reputation, by inference, or by both means of proof.
By direct evidence, I include evidence from recipients of the publication or from persons who have heard others speak about the publication and its effect on their estimation of the claimant. It includes publications in the media, in readers’ comments, in social media posts, abuse, criticism, and being avoided because of the defamatory publication. Care is required in such cases that the abuse, criticism or other response (such as being avoided) is caused by the publication of the defamatory matter, and not by other publications.[34]
[34]Daryanani v Ramnani [2017] EWHC 183 (QB) at [7]; Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 (QB) at [374]-[375].
Actual or likely serious harm may be established by inference, at least when the defamation conveys a gravely serious meaning about the claimant.[35] In some cases, a claimant may rely on inference and, if the inference is strong enough, serious harm may not be in issue. As noted, it has been held that mass media publications of very serious defamatory allegations may render the need for evidence of serious harm unnecessary. All depends upon the circumstances. It may also be unnecessary to call direct evidence of serious harm in the case of grave defamation to a more limited number of recipients, if the circumstances make that inference compelling and there is no competing, reasonable inference.
[35]Whittington v Newman [2024] NSWCA 27 at [42].
This is not to say that serious harm is established by the inherent tendency of the words. Lord Sumption in Lachaux stated:[36]
“… if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment.”
[36][2020] AC 612 at 624 [16].
The gravity of the defamation and the extent of publication may permit actual harm to be reasonably inferred. However, reliance on inference alone may be a brave, forensic choice where there are competing and equally compelling inferences. One example is that quoted above from Sivananthan v Vasikaran, where prior publications by the defendant make it unlikely in the circumstances that a further publication containing the same allegations will have a material impact and cause serious harm. Another is a claimant who had a damaged reputation at the time of publication, and where the difference between that reputation and the reputation that resulted from the relevant publication may not be such as to constitute “serious harm”.
In Rader v Haines[37] the New South Wales Court of Appeal, in applying s 1 of the English statute stated:
“This requirement concerns the seriousness of the harm to the reputation, not of the imputation … the application of the test [for serious harm] is to be determined by reference to the actual facts about the impact of the imputation, and not just the meaning of the words; although the meaning is necessarily part of the impact, because all else being equal a grave imputation will cause more harm than a trivial one, it is only part of the equation, because the gravest imputation will cause no harm if it has no impact.”
[37][2022] NSWCA 198 at [19].
The Court of Appeal emphasised that findings of serious harm should be based on all the relevant circumstances. The same approach should be applied in a determination under s 10A.
Any expectation that a claimant should be able to call numerous witnesses who read or heard the defamatory publication and are prepared to say that they thought less of the complainant as a result, or overheard others speaking about the publication, should be tempered by the reality “that a claimant may struggle to identify, or to produce evidence from, all of those to whom an article was published and in whose eyes the claimant’s reputation was damaged”.[38]
[38]Turley at [109].
A claimant may be able to rely in an appropriate case on “the grapevine effect” and an inability to know to whom the defamatory publication has spread along a traditional, oral grapevine or “by social media and modern methods of electronic communication”.[39]
[39]Ibid.
The approach of Warby J at first instance in Lachaux about the effect of the enactment of a serious harm requirement and how serious harm must be proved by a claimant was approved by the Supreme Court of the United Kingdom on appeal. I respectfully follow it in the context of s 10A. Warby J stated:[40]
“The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication. Serious harm may be proved by inference, but the evidence may or may not justify such an inference.” (emphasis added)
[40][2016] QB 402 at 424 [65].
The meaning of “serious harm”
Section 10A was intended to effect a substantial change to the law of defamation. One purpose, which is evident from extrinsic material, is to deal with “insignificant claims early in the proceedings”.[41] Identical legislation was introduced in New South Wales. The Minister in that State referred to concerns about defamation law being used for “trivial, spurious and vexatious backyard claims” and that the serious harm threshold is intended to filter out “trivial claims”.[42] The legislation is not, however, cast in terms of trivial or vexatious claims or for publications to a limited audience. It is not cast in a form that is intended to be a statutory reflection of the principle of proportionality derived from Jameel v Dow Jones & Co Inc.[43] It is not cast in terms of the triviality defence that was repealed when s 10A was introduced. Section 10A creates a new element for the cause of action in defamation. No extrinsic material suggests that it should be interpreted by applying the case law that applied to the triviality defence. Given their different terms, s 10A may filter out certain claims that would not be defeated by the former triviality defence.
[41]Explanatory Note - Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld), page 2.
[42]Second Reading Speech, Defamation Amendment Bill 2020 (NSW), Hansard, pp 2867-2868. Reference to extrinsic material from another jurisdiction is unusual but the plaintiff’s citation of it was not misplaced where identical legislation was prepared to achieve a shared policy of law reform.
[43][2005] (QB) 946, as to which see D Rolph, Rolph on Defamation (2^nd Ed) [9.20]-[9.30].
The plaintiff submits, and I accept, that it is appropriate to consider the consequences of finding that a claimant has not established the threshold causal element of the cause of action enacted by s 10A. Such a determination shuts the claimant out of a remedy. This, however, is the consequence that the legislature intended, and which it intended should occur, absent special circumstances, as early as possible in a proceeding.
The consequences of finding that “serious harm” is not established do not justify interpreting the provision other than according to its terms or giving “serious” something other than its ordinary meaning. It does not justify tilting the scales unfairly in favour of claimants in allowing them to rely upon inferences of harm from the gravity of the publication, the extent of publication, and the authority of the source of the statement, but not to allow a defendant to rely upon the same kind of inferences in proving that earlier authoritative publications to the same effect caused serious harm, with the result that any further harm caused by the subject publication does not amount to serious harm.
The enactment of s 10A was one part of a package of reforms aimed at “protecting reputations from serious harm while encouraging responsible free speech”.[44] A Parliamentary statement about the compatibility of the amendments with the Human Rights Act 2019 (Qld) stated that the provisions were intended to strike a more appropriate balance between conflicting rights, and that the balance between “protecting individuals’ reputation and not unduly limiting freedom of expression” was to be achieved by introducing a serious harm threshold and omitting the defence of triviality. It continued:[45]
“… preventing matters, which are trivial or minor in nature, or which do not result in any significant harm to a plaintiff, being the subject of lengthy and expensive litigation also promotes and encourages freedom of expression.”
This sentence confirms that the section is not confined to trivial or minor claims and limited publications.
[44]Second Reading Speech, Defamation (Model Provisions) and Other Legislation Amendment Bill 2020, Hansard, 15 June 2021 (Attorney-General), page 1797.
[45]Statement of Compatibility, Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld).
The interpretative provisions of the Human Rights Act 2019 (Qld) do not require me to interpret “serious harm” so as to favour the right to reputation or freedom of expression. The provision is intended to balance both rights.
The requirement to prove “serious harm” should not be interpreted as being satisfied simply by proving that the defamatory meaning is grave, or that the publication was made through the mass media.
In applying s 10A I should not substitute some other term for the word “serious”. I respectfully agree with Basten JA who stated in Rader v Haines:[46]
“There is a risk in seeking synonyms, which may later be treated as valid replacements for the ordinary English word adopted by the Parliament. There is also a risk in seeking to place the term on a scale, between other terms of equal imprecision. The critical concept is ‘serious harm to the reputation of the claimant’; it is that to which the court is required to attend by reference to the evidence of a range of matters. Analysis of individual component words is apt to distract from that inherently impressionistic task.”
[46][2022] NSWCA 198 at [91].
In the same case, Brereton JA observed that:[47]
“… ‘serious’ harm sits on the spectrum above ‘substantial’ harm but below ‘grave’. Importantly, there can be harm which, though substantial, does not reach the level of serious harm.”
[47]Ibid at [27].
Section 10A is not concerned with harm to feelings or consequences other than harm to reputation.
In summary, the term “serious harm” should be interpreted according to its ordinary meaning and to achieve the purpose for which s 10A was enacted. Section 10A was intended to create a threshold requirement that a claimant must prove. It has been interpreted as removing the common law’s presumption of harm to reputation. It uses the language of causation and requires a claimant to prove actual harm and that the harm amounts to “serious harm”.
Section 10A may require consideration of the state of the plaintiff’s reputation (if any) among recipients of the defamatory publication prior to their reading or listening to it, and regard to what evidence exists and what reasonable inferences can be drawn in all the circumstances about the harm to reputation that the publication caused. Having reached a conclusion, on the basis that the material before the court, about the harm that was caused, the judge makes an evaluation as to whether it amounts to “serious harm”.

CAUSATION AND THE RULE IN DINGLE

Positioning the rule in Dingle and other laws about mitigation of damages in their context

Before addressing the rule in Dingle’s case and other issues about admissibility, I will address in a general and preliminary way the common law of defamation’s approach to causation and proof of loss. This is necessary to understand the significant change made by s 10A in enacting an additional element to the common law cause of action in defamation: serious harm.
The general principle is that a defendant is liable only for the harm to reputation and other loss caused by its publication. Proof of causation is aided by the common law’s presumption that a defamatory publication causes damage to reputation.
The effect of s 10A is, among other things, to remove that presumption.[48]
[48]Selkirk v Wyatt [2024] FCAFC 48 at [94].
Prior to the enactment of a serious harm element for the cause of action, a claimant in defamation needed to only prove that the publication had a tendency to injure the plaintiff in the estimation of readers or listeners.[49] In defining what is defamatory, the common law refers to the tendency of a publication to lower the claimant in the estimation of the “hypothetical referee”,[50] the ordinary, reasonable reader. Defamation in the common law does not depend on actual harm in the estimation of actual readers. Actual harm to reputation does not have to be proved at common law. The absence of evidence of actual harm to reputation, actual harm to feelings, or other loss or injury has implications for the quantum of an award of damages for an indefensible defamation. However, some loss of reputation is presumed by the common law once a publication is found to be defamatory.
[49]Sim v Stretch [1936] 2 All ER 1237; Banks v Cadwalladr [2023] EWCA Civ 219 at [41].
[50]Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506.

Because a claimant did not have to prove that the defamatory publication caused actual harm to reputation, the common law of defamation did not address issues of causation in the same way as other torts, such as negligence that causes personal injury or a negligent misstatement, where a plaintiff has to prove that the wrong caused actual loss or damage. Still, as a matter of general principle, the common law makes a defendant liable only for the harm that was caused to the plaintiff’s reputation by the publication complained about.
The law of defamation recognises practical problems in isolating and proving the harm to reputation that was caused by a certain defamatory publication.
A difficulty in some cases is in calling as witnesses persons to whom the publication was made or to whom it was republished “on the grapevine”, and who are prepared to give evidence about the publication and its effect on their estimation of the claimant. In rejecting an appeal against the quantum of a damages award, Lord Atkin famously wrote that “it is impossible to track the scandal, to know what quarter the poison may reach”.[51] The law recognizes that defamations are republished and spread “on the grapevine”.[52] A plaintiff may not know of many of the persons to whom the defamation has spread and be unable to call them as witnesses.
[51]Ley v Hamilton (1935) 153 LT 384 at 386.
[52]Turley at [109] quoting the memorable words of Bingham LJ in Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 300, that defamatory statements are objectionable not least because of “their propensity to percolate through underground channels and contaminate hidden springs”.
Persons to whom the publication was made or been republished may be reluctant to give evidence or there may be too many of them to call as witnesses. The latter problem is overcome by the inference of harm in many cases of mass communications, particularly by the seriousness of the defamatory matter and the extent of its publication.
A different problem of proof is where, at about the same time as the subject publication, many parties published the same or similar defamatory imputations about the claimant. In such a case, the claimant has difficulty in isolating the harm to reputation he or she suffered because of a particular publication. For instance, if the same defamation is published at about the same time by four television news networks, the claimant may struggle to attribute certain consequences to a certain network. How could a decline in social invitations, being avoided, or being verbally abused by a stranger in the street be attributed to any one network?
In a situation in which the court is unable to isolate the harm the defendant’s publication caused, the law’s pragmatic and principled approach to causation is to treat the harm to reputation caused by the four networks as an indivisible loss that can be recovered from each party whose publication contributed to the loss, with each potential defendant’s responsibility for the loss being resolved by contribution between tortfeasors pursuant to statute.
An alternative is for a defendant is to rely on certain statutory provisions in defamation law that enable a defendant, in mitigation of damages, to plead and prove that the claimant has brought proceedings against another publisher who published defamatory matter to the same effect or has received or agreed to receive compensation in relation to such a publication.[53]
[53]Defamation Act 2005 (Qld), ss 38(1)(c), (d) and (e).
A further alternative is for a defendant to seek to mitigate damages by proving that the plaintiff already had a bad reputation at the time of the defendant’s publication.
The rule in Dingle
Dingle precludes a defendant relying in mitigation of damages on other publications that are alleged to have harmed the claimant’s reputation as proof of a bad reputation. The general rule is that a bad reputation must be proven by reputation witnesses.
In Lachaux v Independent Print Ltd Warby J stated :[54]
“In the class of case – of which the present is an example – where many have published words to the same or similar effect, it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others, and inviting an inference that those other publications have injured the claimant’s reputation. This is a brief and deliberately general summary of what I shall call ‘the rule in Dingle’.”
[54][2016] QB 402 at 413 [15](9).
While firmly entrenched in the law of defamation, the rule in Dingle is hard to categorise. Since a defendant may rely on the claimant’s bad reputation in mitigation of damages, the rule in Dingle may be described simply as a rule of evidence that precludes a defendant from relying on earlier publications as proof of bad reputation in mitigation of damages.
What is the rationale for a rule that permits a defendant to call witnesses to say that the claimant had a bad reputation before the subject publication, but not to tender publications to the same or similar effect as proof of that bad reputation?
To what kind of prior publications does the rule not apply? Why, for example, does it not apply to proof of a criminal conviction and the assumed notoriety of such a fact? If the rule does not apply to judicial findings in civil cases that are likewise assumed to follow a defamation claimant and damage reputation, should it not apply to the findings of a Coroner who, acting judicially and applying the demanding standard of satisfaction dictated by Briginshaw v Briginshaw, makes a public finding about the cause of a death, being a finding that is widely reported?
I will return to address those questions and Dingle in greater detail, authorities that have considered it, and authorities that confirm the general principle that a defendant is liable only for the harm to reputation caused by its publication.
The rule in Dingle may be said to be part of the law’s approach to problems of causation and proof of loss in cases where multiple publications cumulatively injure reputation and result in a loss that is treated as indivisible. The claimant’s and the court’s causation problem of isolating harm is addressed by permitting the claimant to recover the whole of a loss from a defendant whose publication contributed, along with other publications, to that loss. The law also permits such a defendant to reduce or mitigate damages by proving that the claimant already had a bad reputation at the time of its publication. A bad reputation must be proven by admissible evidence. The rule in Dingle concerns the evidence that is admissible as proof of a bad reputation.
Causation, problems of proof and mitigation of damages
Presently, it is sufficient to make two general observations about causation and proof of harm to reputation.
The first is that in a case involving only a single publication, whether by a mass media defendant or in a non-media setting such as an individual who makes a statement at a meeting, the common law recognised the practical problem of proof by creating a presumption of harm to reputation.
The second is the problem of proof where, at about the same time as the subject publication, or some time before it, many parties published the same or similar defamatory statements about the claimant. The claimant must prove the harm caused by the subject publication and, if it can, isolate or disentangle that harm from the harm caused by other publications to the same or similar effect. In a case in which the plaintiff cannot isolate the harm that only the publication sued over caused, the law treats the harm caused by that publication and other publications (including harm to reputation) as indivisible. In such a case, the defendant’s publication is treated as a material cause of the indivisible damage. The defendant is made liable for the harm to reputation to which it contributed. It can seek contribution from other tortfeasors pursuant to statute, seek to mitigate damages if a statutory provision permits it to do so, or seek to mitigate damages by proving a pre-existing bad reputation.
The damages being mitigated or reduced on the basis of a bad reputation are the damages assessed to compensate for the indivisible loss to which the defendant’s publication contributed along with other publications to the same or similar effect. The damages being mitigated are not damages that are awarded for harm that has been isolated as having been caused by the defendant’s publication and not by other publications or causes.
In summary, mitigation of damages on the grounds of bad reputation arises in cases where the claimant is unable to isolate the harm the publication complained of caused and seeks to recover damages for an indivisible loss to which the publication contributed. This is the realm in which the rule in Dingle about proof of bad reputation and the inadmissibility of publications to the same or similar effect as proof of a bad reputation arises.
The law’s approach to allowing a claimant to recover against a single defendant the indivisible harm caused by the defendant’s publication and other publications to the same or similar effect, subject to rules about mitigation and contribution between tortfeasors, is a pragmatic and principled approach in situations where a claimant, through no fault on his or her part, is unable to isolate the loss that only the defendant’s publication caused, and the defendant also is unable to assist the court in its duty of attempting to isolate that loss. The alternative of denying the plaintiff a remedy in damages against a tortfeasor whose publication contributed to an accumulated and indivisible loss of reputation is unattractive as a matter of policy or justice.
The law’s approach to harm of reputation where multiple publications have caused a practically indivisible injury to reputation may be said to encourage over‑compensation because a claimant might in separate proceedings against separate tortfeasors recover compensation for reputational loss to which the publication sued over contributed, but did not wholly cause. The risk of over-compensation is addressed, however, by statutes that provide for contribution between tortfeasors and statutes that permit a court to mitigate damages in such a case.[55] The statutes ameliorate the harshness to a defendant of having to compensate for an indivisible loss to which it only partly contributed.
[55]Statutes have long provided for a defendant to give evidence in mitigation of damages. The Defamation Act 1889 (Qld), s 24, drafted by Sir Samuel Griffith, provided that in the trial of an action for defamation “in a periodical” the defendant may give evidence in mitigation of damages that the plaintiff has already recovered, or has brought action for, damages, or has received or agreed to receive compensation, in respect of other publications of defamatory matter “to the same purport or effect as the matter for the publication on which the action is brought”. The Defamation Act 2005 (Qld), ss 38(1)(c), (d) and (e) provide for mitigation in similar circumstances, but are not confined to publication in a periodical.
The common law of defamation also has permitted defendants who seek to limit their liability for the accumulated damage to reputation caused by various earlier publications, including their own and earlier publications that are defensible, to prove that by the time the subject publication occurred, the claimant already had a bad reputation.
The rule in Dingle is about proof of bad reputation in such a case. Subject to certain exceptions, a bad reputation cannot be proved by tendering publications to the same or similar effect as the subject publication.
The nature of the plaintiff’s claim
Against that background, it is appropriate to identify the nature of the plaintiff’s claim, and the type of claim he does not bring.
The plaintiff claims that Episode 13 and certain things said by the third defendant in that episode each caused serious harm to his reputation. His case is that it is possible to isolate the harm that each of those publications caused.
The plaintiff’s case is not that a number of publications to the same or similar effect that include reports of the Coroner’s findings, parts of the first 12 episodes of the podcast, and Episode 13, caused harm to his reputation and he is unable to isolate the harm that Episode 13 caused.
The issue is whether he has proven the element of causation in the claim that he has chosen to litigate: that Episode 13 caused him serious harm or is likely to cause him serious harm.
The defendants contest that he has discharged his burden of proof. Part of their case on causation relates to the absence of direct evidence. Another part is that, whereas ordinarily serious harm may be proved by inference in the case of the mass publication of a gravely defamatory allegation, proof by inference is not so compelling where, prior to the publication complained of, the plaintiff had been the subject of numerous mass publications to the same or a similar effect, including reports of the Coroner’s findings. One way to describe the defendant’s challenge to the plaintiff’s case on causation of “serious harm” is to say that serious harm had already been done by other publications, and Episode 13 did not cause him any further serious harm. The damage had already been done. Little more damage could be done by Episode 13.
Therefore, whatever inference of serious harm might have been drawn had Episode 13 been the only publication that defamed him, it was not a stand-alone publication. It was one of many publications that had come before it to the same or similar effect. Therefore, the defendants contend that one cannot simply infer from the fact that it was a mass publication of a grave allegation that it caused serious harm in the circumstances.
Analysed this way, the issue raised by the defendants is one about causation, and rebutting a case on causation that relies almost entirely on inference. The defendants do not seek to rely on the prior publications simply to prove a bad reputation and, in doing so, run the admissibility gauntlet of Dingle by arguing that the Coroner’s findings resemble judicial findings. The defendants’ reliance on the prior publications is to contest the plaintiff’s case on causation.
In a case in which the plaintiff has set himself the task of isolating the harm that Episode 13 caused to his reputation and seeks to do so on the basis of inference, it seems legitimate for the defendants to meet that case by arguing that, in circumstances where there were numerous prior publications to the same or similar effect, the inference that Episode 13 caused serious harm, while arguable, should not be drawn. Episode 13 may have caused some additional harm, but it falls short of “serious harm”.
That at least is the defendants’ argument about causation of serious harm.
The prior publications are being relied upon to contest causation in a case in which the plaintiff has set himself the task of isolating the harm that was caused by Episode 13 from the harm that was caused by other publications. They are not being relied upon to prove bad reputation in aid of mitigation of damages. They do not fall foul of the Dingle rule on admissibility.
If a plaintiff claims that he suffered serious harm to his back because of his employer’s negligence on a certain occasion, then he has the burden of proving causation. He has to isolate the harm that the alleged negligence caused and rebut any suggestion that the harm he claims was caused by other incidents. In meeting the plaintiff’s case on causation in such a claim, the defendant is entitled to prove, if it can, that the serious harm to his back about which the plaintiff complains was caused by other incidents. Doing so is part of assisting the Court in its duty to isolate the harm that the tort caused, and putting the plaintiff to proof that the incident caused his bad back.
In principle, proof and disproof of causation should be the same for harm to a back as for harm to a reputation. Proof of harm may be aided by inferences supported by the evidence. One might be about the harm that a mass media publication of a serious defamation is apt to cause to the plaintiff’s reputation among persons to whom it is published and to whom it spreads on the grapevine. A defendant in either type of tort case should be permitted to call evidence that the claimed harm was not caused by its conduct but was caused by another incident or incidents, or that the harm that its conduct caused was not as serious as the plaintiff claims because the plaintiff had already been seriously injured as a result of those earlier incidents. In that context, evidence of earlier incidents should be admissible on the issue of causation and to isolate the harm that the defendant’s conduct caused.
If earlier publications are admissible as relevant to the issue of causation, then there seems no sound reason why the defendant cannot rely on inferences about the harm that the earlier publications were likely to cause to the plaintiff’s reputation because of the gravity of the matters conveyed, the extent of publication, and the authority of the source of the relevant statement.
Subject to considering Dingle in greater detail and other authorities on causation and mitigation of damages on account of a prior bad reputation, my provisional view is that the defendants’ evidence to which the plaintiff objects is admissible on the issue of causation in a case in which the plaintiff seeks damages for harm that he claims was caused only by Episode 13 and that the evidence permits the court to isolate. My provisional view is that I should not uphold the plaintiff’s “Dingle admissibility” objections as recorded in MFI-B.
Causation in law and in the law of defamation
Windeyer J stated that “questions of cause and consequence are not the same for law as for philosophy and science”.[56] Mason CJ in March v E & M H Stramare Pty Ltd[57] cited that observation and continued:
“In law … problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill’s definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage …”
[56]National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 591.
[57](1991) 171 CLR 506 at 509 (“March”) (footnotes omitted).
Professor Stapleton’s scholarship[58] has explored and explained that causation in law encompasses two distinct inquiries. The first is factual causation: the role that something played in an outcome. The second is concerned with legal responsibility for that outcome, or what Mason CJ referred to as “ascertaining or apportioning legal responsibility”.
[58]J Stapleton ‘Perspectives on Causation” in Oxford Essays in Jurisprudence 4^th series (J Horder ed) Oxford Univ Press 2000 at p 61, ‘Legal Cause: Cause-in Fact and the Scope of Liability for Consequences’ (2001) 54 Vanderbilt Law Review 942, ‘Unnecessary Causes’ (2013) 129 LQR 39, ‘An “Extended But-For” Test for the Causal Relation in the Law of Obligations’ (2015) 35 OJLS 697, ‘Unnecessary and Insufficient Factual Causes’ (2023) J. Tort Law.
The second inquiry may be labelled “scope of responsibility” or “scope of liability”.[59] It inquires into whether legal responsibility should be attributed to the defendant for a given outcome, for example, economic or other loss. In deciding whether or not to attribute legal responsibility, value judgments are made about the appropriate scope of liability. A court may refuse recovery of all or part of claimed losses, despite, as a matter of incontrovertible fact, the defendant’s conduct was “a cause” of the loss, in the sense that the loss would not have occurred but for the defendant’s conduct. In certain circumstances, the court limits recovery of losses on the basis of a judgment about the appropriate scope of legal responsibility, not on the basis of an inquiry into historical fact.[60] As was stated in Westpac Banking Corporation v Jamieson:[61]
“At law, a person may be responsible for a loss when his or her conduct was one of a number of conditions sufficient to produce that loss. Whether or not the person is made legally responsible for all or part of a loss for which his or her conduct was a cause is an enquiry into whether it is appropriate to attribute legal responsibility for a given occurrence in the context of [a] particular legal norm.”
[59]Civil Liability Act 2003 (Qld), s 11(1)(b).
[60]Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495 at 534 [102] (“Jamieson”).
[61]At 534 [103] (emphasis in original, footnote omitted).

The podcast interviewed individuals who were familiar with the toxic relationship between the plaintiff and Ms Blackburn. It included reports by Ms Blackburn of being threatened by the plaintiff, including a threat that he could arrange to have her killed by others.
The Coroner’s finding, as reported initially in Episode 1, was not an unremarkable detail that was likely to fade from the memory of most listeners. It was the matter that gave rise to the question of how the plaintiff came to be acquitted.
Overall, Episodes 1 to 12 enabled listeners to understand how the inquest in 2019 covered more evidence and heard from more witnesses than the jury did at the murder trial.
The podcast series did not purport to clear William Daniel or his associate from suspicion. However, it made the point that a statistically meaningless probability ratio may have been given more weight by the jury than it warranted in considering the possibility that William Daniel was the killer.
While parts of some episodes included content that was favourable to the plaintiff (and his particulars identify some matters in that regard), overall Episodes 1 to 12 depicted the plaintiff as a deeply-troubled individual whose dislike of Shandee Blackburn continued long after the relationship ended. The episodes included the Australia Day 2013 witnesses who said that the plaintiff expressed his hatred of Ms Blackburn that day and a desire to stab her. Those witnesses were discredited at the trial because of their false denial of being involved in drugs. However, the podcast, like the prosecutor’s address that was summarised in Episode 12, made the point that any such remarks by the plaintiff on Australia Day 2013 (a few weeks before Ms Blackburn’s murder), were the kind of thing that would be remembered by those individuals, even if they were affected by alcohol or drugs at the time they were said. One reason is that the remarks were completely out of character as far as the witnesses were concerned.
Listeners to the first 12 episodes were likely to be highly influenced by what was said about the CCTV images of a vehicle that matched the plaintiff’s and which was in the vicinity of where she was killed at about the time she was killed. Listeners might have noted that the plaintiff, while recalling where he was that day, was unable to recall where he was that night. Listeners were likely to be influenced by the abundant evidence in earlier episodes of botched DNA testing that left the prosecution without forensic evidence at the trial linking the plaintiff to the crime, or even to the interior of the vehicle in which he travelled each day and never cleaned. As noted, the DNA evidence led to the exclusion of presumptive positive tests for blood inside the plaintiff’s vehicle.
After the first 12 episodes, William Daniel remained a suspect, but the episodes highlighted evidence, including a great deal of evidence that was not placed before the jury, that overwhelmingly pointed to the plaintiff as the person who had brutally killed Ms Blackburn. To be clear, I am not making any finding of responsibility in this regard nor am I agreeing with the Coroner’s findings. Instead, I am concerned with the impression that the first 12 episodes would have left upon listeners.
Conclusion
I find that listeners to the first 12 episodes were likely to conclude that the Coroner’s findings were right, and that the plaintiff had violently attacked Ms Blackburn with a bladed instrument in a fast, frenzied and personal attack at around 12.15 am on 9 February 2013.
This conclusion is not based simply on the tendering of those earlier publications. It relies on the perceived authority of the persons who made those publications, and the form of the publications as being the product of investigative journalism. That distinguishes the publication from a publication of rumours and bare allegations.
The state of the plaintiff’s reputation prior to the publication of Episode 13
Prior to Episode 13 being published, numerous other publications, including the first 12 episodes of the podcast, had seriously injured the plaintiff’s reputation. Listeners to the podcast series were told that the plaintiff was the person who the Coroner had found to have violently killed Ms Blackburn, and most listeners would have concluded on the strength of the first 12 episodes that the Coroner’s findings were firmly based in evidence that was not placed before the jury at the plaintiff’s criminal trial.
Listeners would have regarded William Daniel as a suspect. However, by the end of Episode 12, they would have reached the view that, despite his acquittal, the plaintiff was Ms Blackburn’s killer.
Episode 13
Episode 13 is titled “Unheard Evidence”. It continued a theme that ran through the podcast series and that was introduced in Episode 1, namely that the jury at the murder trial did not hear a great deal of the evidence that was potentially available at the time of the trial, but was either not relied upon by the prosecution or excluded from the evidence as the result of principles governing criminal trials and rulings by the trial judge. Another theme of the podcast series prior to Episode 13 was that the jury, the judge, the prosecutor, the police, and others were unaware, at the time of the trial, of the deep flaws in the system for DNA testing. These flaws were the subject of many episodes in the podcast series. Episode 13 did not bring these issues to light. It repeated them.
Episode 13 was introduced by Mr Thomas saying:
“We are a long way into this series. And up to now, you haven’t heard Shandee’s sister, Shannah, or her mother, Vicki, disclose their views about the murderer’s identity. This has been a deliberate omission. I wanted listeners to make their own judgments about this, untainted by the family’s position, but it’s now time to hear it and to understand some of the reasons which have informed their views.”
This accords with my view that Episodes 1 to 12 had enabled, and indeed encouraged, listeners to reach a view about the identity of Ms Blackburn’s murderer and, in doing so, conclude that the Coroner’s findings were correct.
Episode 13 proceeds to take Ms Shannah Blackburn, the third defendant, through items of evidence and asks her to explain why she has an absolute “100 per cent confidence” that the plaintiff killed Shandee. This included the CCTV footage of the car and the evidence of what Mr Thomas described as “our experts” who had looked at it. In different ways, Episode 13 reiterates that what the jury heard was not the case that the Coroner would hear two years later, and that the jury heard only a “whittled down brief of evidence” (Mr Thomas’ words in Episode 13). My recollection is that during the first 12 episodes Mr Thomas referred on more than one occasion to the evidence being “filleted” before it was presented to the jury.
Episode 13 introduced a few new topics, including the apparent failure to conduct DNA testing of another person of interest, Scott McPherson. However, in general it repeated topics that had been explored in earlier episodes.
The mystery novel analogy
In addressing the causal potency of Episode 13, counsel for the plaintiff likened the podcast series to an unfolding story that creates a mystery, or at least poses a question at the start, and provides the answer in a final chapter. One question was how the jury and the Coroner could come to apparently different conclusions. The second, related question was “Who killed Shandee Blackburn?”
The first question was effectively answered at the outset of Episode 1 by the statement that the Inquest in 2019 “covered more evidence and heard from more witnesses than the actual murder trial two years earlier”. The subsequent episodes develop this point and, in different places, identify evidence that was not presented by the prosecution at the trial or that was excluded from the jury’s consideration by pre-trial rulings.
As to the second question, any analogy with a murder mystery novel cannot be sustained. This is not a case where the final chapter (assuming it to be Episode 13, with the seven episodes that followed being some kind of long epilogue) revealed the killer, after which all the evidence falls into place. The podcast was not like a mystery novel set in a stately home in England, and where there is some clever plot twist or revelation in the final chapter.
The question of how the plaintiff came to be acquitted by the jury but found by the Coroner to have killed Ms Blackburn was answered long before Episode 13. The answer included different evidence, the different rules that apply to a criminal trial and that are tilted in favour of the accused, and the DNA bungle within the State DNA laboratory about which the trial participants were ignorant.
The outcome of the criminal trial having been explained, Episodes 1 to 12 also conveyed the message that, because of these matters, the Coroner had reached the correct conclusion about the identity of Ms Blackburn’s killer.
Mr Thomas’ introduction to Episode 13, which I have earlier quoted, reinforced the fact that the series had come “a long way” and that the views of Ms Blackburn’s sister and mother had not been disclosed in the earlier episodes, so as to allow listeners to make their own judgments “untainted by the family’s position”. Episode 13 did not present startling new evidence that would enable listeners to finally answer the question, “Who killed Shandee Blackburn?”
Episodes 1 to 12 provided enough content to enable listeners to answer that question and to reach the conclusion that, while William Daniel remained a suspect, the Coroner had correctly identified the plaintiff as Ms Blackburn’s killer.
The summary and conclusion argument
Mr Helvadjian of counsel, who prepared and presented the plaintiff’s case with great skill, alternatively likened Episode 13 to the summary or conclusion to a long work of non‑fiction.
Each episode went for an hour or more, and most listeners would not have binged the first 13 episodes. Many would have listened to the episodes over a period of weeks or months. Although some key interviews and pieces of evidence were repeated across different episodes, one would not expect listeners to have a photographic memory of the detail of each episode. Mr Helvadjian is correct in submitting that one should not proceed on the basis that each listener “religiously listens to each episode, vividly remembering its content”.
The argument is that Episode 13 operated as a kind of summary and conclusion, much like the kind that may appear at the end of an expert report or a long judgment. The reader of such a document may have generally followed its contents, however, the summary and conclusion bring matters together with a clarity that may be lacking in the preceding chapters. The fact that a careful reader might have been able to predict the report’s summary and conclusion if one had not been included, does not mean that the summary and conclusion lack influence. Their purpose is to distil and to clarify.
During the hearing I encouraged the summary and conclusion argument to some extent by noting the marked decline in the total number of downloads after Episode 13. But other explanations may exist for that decline, including the fact that Episode 13 was available over the usual summer holiday period. Another is that readers had heard enough by Episode 12 and found Episode 13 repetitive, save for hearing from Ms Blackburn’s sister and mother.
Their contribution to Episode 13 would not be likely to alter the views that listeners held after Episode 12. They were members of the victim’s family and lacked independence. The sympathy which listeners had for them might tend to reinforce views that had developed and settled by the end of Episode 12. They would be unlikely to cause any significant change to those views, since Episode 13 largely repeated what had gone before.
The reinforcement submission
The plaintiff submits that reinforcement of a settled view is sufficient to justify a finding of serious harm being caused by Episode 13. Some care is required in elevating a passing observation in Turley v Unite the Union[219] to a proposition that reinforcement is sufficient to cause serious harm. It would be an odd thing if reinforcement necessarily caused serious harm. Otherwise, the boring repetition of a proposition that had been made many times in previous publications to the same recipients would cause serious harm. The passage that I have earlier quoted from Sivananthan v Vasikaran[220] identifies the improbability that such a repetitive publication will satisfy the serious harm test.
[219][2019] EWHC 3547 (QB) at [114(iii)].
[220][2022] EWHC 2938 (KB) at [56].
I conclude that most listeners to Episode 13 had already formed a very adverse view of the plaintiff because of the contents of Episodes 1 to 12, which included a report of the Coroner’s findings. To the extent Episode 13 reinforced their views about the plaintiff’s responsibility for the death of Ms Blackburn, I am not satisfied that any additional harm that it caused to his reputation amounts to “serious harm”.
Proof of serious harm
As Warby J stated in Lachaux, “Serious harm may be proved by inference, but the evidence may or may not justify such an inference”.[221]
[221]Lachaux [2016] QB 402 at 424 [65].
The proposition that a podcast episode that accuses a person of murder, and that is heard by a few hundred thousand listeners, does not cause serious harm to reputation is confronting. The causation issue depends, however, on all the circumstances. For example, if the claimant was a notorious murderer at the time the episode was published, serious harm would not be inferred. Some compelling direct evidence of actual harm to reputation that amounted to “serious harm” would be required.
Depending on the circumstances and the evidence, a newsletter or blog that defames an individual by accusing the person of certain conduct or having a certain character may not cause serious harm if it simply repeats what has been said in earlier publications in the same medium by the same publisher. If the readership already knows of the publisher’s claims about the person, a further publication is unlikely to have a material impact.[222]
[222]Sivananthan v Vasikaran at [56].
The defendant in such a case is not required to prove that its latest publication caused no harm, and it is insufficient for the claimant to prove some harm to reputation. The claimant must prove that a specific publication caused, or is likely to cause, serious harm to reputation.
An inference is not to be confused with speculation. To prove serious harm by inference, or almost exclusively by inference, the inference must be more compelling than competing inferences that are reasonably open on the evidence.
In Sivananthan v Vasikaran, Collins Rice J stated:[223]
“The components of an inferential case must themselves be sufficiently evidenced and/or inherently probable to be capable of adding up to something which discharges a claimant's burden.”
[223]At [53].
Has the plaintiff discharged his burden?
The plaintiff’s particulars and his evidence about his reputation
I have summarised the evidence that the plaintiff called on the serious harm issue. Neither the plaintiff’s evidence nor any other evidence supports certain assertions contained in his particulars of pre-publication reputation and serious harm.
The defendants do not contest the plaintiff’s particulars that he was generally regarded as a murderer among immediate family members and friends of Shandee Blackburn, including those who attended the tenth anniversary of her death in Mackay.
As for his reputation in and around Australia more broadly, the plaintiff particularises that he had been referenced on national television and in news articles by reports that stated that he was suspected of the murder of Ms Blackburn, that he had been charged with her murder, and that he had been acquitted of her murder. Originally, the plaintiff particularised that he also had a reputation that the Central Queensland Coroner, who oversaw the inquest, had determined that Ms Blackburn died as a result of a violent altercation involving a bladed instrument with the plaintiff. At the hearing in late July 2024, the plaintiff sought and obtained leave to amend his particulars to remove this reputation. However, the evidence establishes that he was widely, but not universally, known to have been the subject of such a finding by the Coroner. I conclude that he was widely known to have been subject to that finding by persons who read reports of the Coroner’s findings, and by listeners to the podcast who listened to Episode 1 and other episodes that referred to the inquest.
Notwithstanding these matters, the plaintiff’s case is that he was not generally regarded by members of the general public to be the murderer of Ms Blackburn, since it had never been reported that he had been found guilty of her murder.
As to his reputation among listeners of the matter complained of, the plaintiff particularises in subparagraph (e) that prior to the publication of Episode 13, listeners:
“(i)were aware that the plaintiff had been successful, in that, he had owned multiple investment properties.
(ii)that he had assisted the late Shandee Blackburn, after their relationship had been terminated, with:
(1)   obtaining compensation from her former employer;
(2)   purchasing a flight to the Gold Coast;
(3)   paying to her $500.00 per week for a period of approximately a month to financially support her;
(4)   selling her car, and transferring the proceedings to her.
(iii)that, notwithstanding the plaintiff and the late Shandee Blackburn having had, at times, a difficult relationship, they had both legitimately and genuinely loved each other.
(iv)that the plaintiff was an extremely loyal individual.”
This is said to be based upon the contents of Episode 2. The matters in subparagraph (e)(ii) involve some “cherry picking” to find some favourable things that were said about the plaintiff in that episode. His reputation in owning multiple investment properties is not in the relevant sector. Particular (e)(iii) is an accurate enough account of an aspect of the complex and toxic relationship that the plaintiff and Ms Blackburn had, according to the podcast. Particular (e)(ii)(4) may be incomplete because, as I recall it, another episode included a complaint by Ms Blackburn about the failure of the plaintiff to deliver on his promise to sell her car and give the proceeds to her.
Subparagraph (f) of the particulars refers to the plaintiff’s reputation among his family and friends. He is said to have been known among them, prior to the publication:
“(i)to be a qualified, skilled heavy diesel fitter;
(ii)to be a hard worker;
(iii)as a friendly, approachable person;
(iv)as an accomplished amateur boxer, having competed in the Middleweight division at the National Boxing Titles in November 2012 in Mackay, Queensland;
(v)to have had many friends in and around Mackay, Queensland, where he previously:
(1)   resided
(2)   was employed; and
(3)   owned property.
(vi)to have provided financial assistance to his former girlfriend, the late Shandee Blackburn; and
(vii)to have formed work-based friendships with the following persons:
(1)   Mr Kyle King;
(2)   Mr Tori Bellotti; and
(3)   Mr Brian Morhan.”
It is unnecessary to dwell on these matters because the plaintiff’s reputation as a qualified tradesperson, as a hard worker, and as an accomplished boxer who competed in national titles, is not in the relevant sector. The plaintiff did not call or give evidence about the regard in which he was held by friends in and around Mackay. The podcast itself included some individuals in this category. One might assume that many close friends and family had a high opinion of him, and the estimation in which he was held by them was unaffected by the podcast or other publications. However, there is no evidence about this, save for the evidence given by his solicitor about the solicitor’s conversations with Mr King, Mr Bellotti and Mr Morhan. It provides some evidence of the regard in which the plaintiff was held. It is completely silent about the effect which Episode 13 had upon Mr Bellotti, and there is no evidence that Mr King or Mr Morhan ever listened to the podcast.

Particular (g) recites the same seven matters in relation to what is said to have been the plaintiff’s general reputation, prior to the publication of the matter complained of.
The plaintiff’s particulars cite R v GJL[224] in which McMurdo JA (with whom Bradley J agreed) considered authorities about the incontrovertibility of an acquittal. Gibbs J in R v Storey[225] referred to the “well-established principle that a verdict of acquittal once given is binding and the Crown cannot in subsequent proceedings seek to show that that the accused was guilty of an offence of which he has previously been acquitted”. The principle was applied in R v Carroll.[226] However, the principle applies for the purposes of the criminal law. As Gleeson CJ and Hayne J explained in Carroll, the principle of incontrovertibility has been held to not “preclude persons other than the prosecution asserting that the person committed the crime of which he or she was acquitted”.[227] McHugh J also stated that the principle applied to a “subsequent criminal proceeding” and would not have prevented a court in a civil action determining that Carroll killed Deidre Kennedy.[228] That principle of incontrovertibility does not apply to a coronial inquest.[229] It would not preclude the defendants from pleading a truth/justification defence in the current proceeding.
[224][2021] QCA 175.
[225](1978) 140 CLR 364 at 387.
[226](2002) 213 CLR 635.
[227]At 650 [45].
[228]At 676 [138].
[229]Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 17 at [40].
The present issue is further removed from that issue or the correctness of the Corner’s finding. It concerns the effect of earlier publications on the plaintiff’s reputation. The principle of incontrovertibility does not preclude a finding that the plaintiff was reputed among listeners to have killed Ms Blackburn, notwithstanding his acquittal. This is, after all, the finding that the plaintiff seeks at trial, namely that he had that reputation because of Episode 13. The present issue is whether he had that reputation among listeners prior to Episode 13.
The absence of reputation witnesses and witnesses about the effect of Episode 13
Earlier I acknowledged, as do the authorities, the difficulty which plaintiffs in defamation actions experience in calling witnesses who are prepared to say that they heard or read the relevant publication and thought less of the plaintiff as a result. These problems include seeking out individuals and asking them whether they have heard or read a publication and thereby inadvertently engaging in self-publication. Another is the grapevine effect. I again acknowledge these difficulties of proof.
None of the plaintiff’s friends, work colleagues, acquaintances, or family members have said a single thing about the effect that Episode 13 had upon their estimation of the plaintiff, or what their estimation of him was immediately before listening to Episode 13. The highest the evidence goes is that Mr Bellotti would see the plaintiff and catch up in Perth with him to have a beer, and that Mr Bellotti had listened to the Podcast.
The only direct evidence of the effect of the podcast series upon the plaintiff and his reputation are the matters that I have already mentioned. The first relates to the termination of his employment well before Episode 13 was published, and the day after Episode 1 was first published, when workers on the site were talking about a podcast. The second is the account given by Mr Bellotti to the plaintiff’s solicitors about overhearing a conversation in mid-to-late 2021 which, for the reasons I have given, cannot be reasonably attributed to Episode 13 as distinct from earlier podcasts or earlier publications. The third are the Reddit posts.
The Reddit posts
As discussed, the Reddit posts on 6 January 2022 cannot be attributed to Episode 13 as distinct from earlier podcasts. The remaining three Reddit posts are consistent with the individuals having listened to Episode 13. However, there is nothing to suggest that Episode 13 was the first episode that those three individuals had listened to.
The timing of the post by Bardgirl23 that “her ex absolutely did it” is consistent with Episode 13 influencing her in reaching this view. It leaves uncertain what the state of that person’s estimation of the plaintiff was before she listened to Episode 13. The same applies to the comment by Blonde_arrbuckle “100% he did” on 3 February 2022.
The comments by noraludora on 8 February 2022 about William Daniel, that “the crime was personal”, that the plaintiff was abusive to Ms Blackburn, and that “It’s crazy he was acquitted” are consistent with these views having been formed before Episode 13 and being confirmed by it.
The Reddit posts are consistent with what those three individuals thought of the plaintiff after listening to Episode 13, but that does not show what they thought about the plaintiff before they listened to Episode 13. They provide a limited basis upon which to infer that Episode 13 caused serious harm to the reputation of the plaintiff in their estimation or in the estimation of other listeners. Their views are consistent with serious harm already having been caused to the plaintiff’s reputation by the Coroner’s findings, by the reporting of them in Episode 1, and by earlier episodes of the Podcast, and that any further harm caused by Episode 13 was not to such an extent as to constitute “serious harm” in the circumstances.
The Reddit posts do not suggest that Episode 13 changed their minds from having no opinion as to who the killer was, or believing that William Daniel or someone else was the person responsible, to having an absolute or 100 per cent belief that the plaintiff was responsible. One might reasonably infer that Episode 13 contributed to each of the three Reddit commentators being convinced that the plaintiff was the killer (e.g. “100% he did”). However, it is also reasonable to infer that those listeners were at least fairly convinced of the plaintiff’s responsibility, or strongly believed that he was responsible for the killing, before they listened to Episode 13.
It is reasonable to infer that in January and February 2022 (the period of the three relevant Reddit posts) and at subsequent times, other listeners shared the views of the three anonymous Reddit commentators. Just as relatively few people write letters to the editor, write to MPs, or attend public meetings, compared to the number who have strong beliefs on topics, it is reasonable to conclude that the views of the three Reddit commentators were shared by many other listeners. This does not permit, however, the conclusion to be drawn that Episode 13 significantly altered their pre-existing beliefs about the plaintiff’s responsibility for the killing. That is one possible inference. However, there are equally strong inferences that Episode 13 did not have this effect. Assuming the posts were prompted by Episode 13, it simply was the occasion for the Reddit commentators, having now heard Ms Blackburn’s sister and mother’s views, to record their already settled view that the plaintiff, rather than William Daniel or anyone else, was responsible for the death of Ms Blackburn.
Prior publications, including the findings of the Coroner, the widespread reporting of those findings, and Episodes 1 to 12 of the Podcast, provide a basis to conclude that, prior to Episode 13, listeners had reached the view that an independent Coroner, having analysed more evidence than was available to the jury, found that the plaintiff killed Ms Blackburn, and that his finding was correct.
Because of the contents of other publications, particularly the first 12 episodes, a reasonable inference is that listeners to Episode 13 (including the three Reddit commentators) already had an extremely adverse view of the plaintiff prior to listening to Episode 13.
The extent to which Episode 13 further harmed their estimation of the plaintiff depends on inference, rather than direct evidence from any of those listeners. The Reddit evidence does not prove that Episode 13 caused such a significant change in those listeners’ estimation of the plaintiff so as to constitute serious harm.
Direct evidence of the effect of earlier publications
As noted, there is evidence from the paragraphs of the plaintiff’s own affidavit that were relied upon by the defendants that the first episode of the Podcast (and perhaps publicity in the media surrounding its release), led to the termination of his employment. The evidence of Mr Bellotti of overhearing conversations in the workplace about the Podcast also supports the conclusion that early episodes of it led to the plaintiff having a reputation as a murderer.
Has the plaintiff discharged the burden of proving serious harm was caused by Episode 13?
The defendants are not required to prove that the plaintiff had a bad reputation prior to Episode 13. The plaintiff is required to prove that Episode 13 caused, or is likely to cause, “serious harm” to his reputation.
Had Episode 13 been a stand-alone publication, then serious harm would be easily inferred from the gravity of the defamation and the extent of its publication. Episode 13 was not, however, a stand-alone publication. It was the 13^th episode in a series, the first 12 episodes of which seriously injured the plaintiff’s reputation. This is before regard is had to the separate and extensive reporting of the Coroner’s findings.
Direct evidence points to earlier episodes of the series, rather than Episode 13, leading listeners to believe that the plaintiff was a murderer. The contents of the earlier episodes and the authority of those who produced them support the inference that, while William Daniel remained a suspect, listeners to the first 12 episodes were likely to conclude that the Coroner’s findings were right, and that the plaintiff had violently attacked Ms Blackburn in a frenzied and personal attack.
The Reddit posts provide limited support for the conclusion that Episode 13 did any more than reinforce or confirm views already held by those commentators, or that any further harm that it caused to the plaintiff’s reputation in their eyes or in the eyes of others was to such an extent as to constitute “serious harm”. I decline to speculate that Episode 13 did more than confirm a view already held that the plaintiff killed Ms Blackburn. The proposition that Episode 13 significantly changed the Reddit commentators’ or other listeners’ views about the plaintiff is unproven. Any inference (as distinct from speculation) that it did is met by an inference of equal force that it did not.
The evidence of earlier publications, including the first 12 episodes, inferences about their likely effect on listeners’ estimation of the plaintiff, and the evidence of the actual effect which an earlier episode had on his reputation at the mine site, lead me to conclude that, by the time Episode 13 was first published, the plaintiff had a damaged reputation in the relevant sector among listeners to the podcast. He would have been viewed by listeners to be the person who killed Ms Blackburn. They would not simply have known him to be the person who a Coroner found to be Ms Blackburn’s killer. They would have formed the view, based on the evidence and arguments placed before them in the series, that the Coroner’s finding was correct.
If one infers that Episode 13 caused some harm to reputation in fortifying or reinforcing a view already held, or even convincing some listeners of a view that they already strongly held, then I am not persuaded that the extent of that harm amounts to “serious harm” for the purpose of s 10A.
I am not persuaded that Episode 13 probably caused a significant change in the strength of listeners’ beliefs about the plaintiff’s responsibility for the death of Ms Blackburn. However, if it did, I am not satisfied that any further harm to his reputation in that regard amounts to “serious harm” for the purpose of s 10A.
The plaintiff has not discharged his burden of proof that Episode 13 caused serious harm to his reputation.
Has the plaintiff discharged the burden of proving that serious harm is likely to be caused by Episode 13?
For essentially the same reasons, I am not satisfied that Episode 13 is “likely to cause” the plaintiff harm in the future. One can no more expect listeners in the future to “jump in” at Episode 13 without knowing anything about the earlier episodes or about the plaintiff than one can conclude that this happened in the past. Episode 13 is not labelled something like “Summary and Conclusion” to which an eager listener would go first. It is the 13^th of 20 episodes, and one would expect a person interested in the series to listen to at least the start of Episode 1.
The plaintiff submits that Episode 13 is “likely to cause” him harm in the future because, even if the Coroner’s findings were notorious in 2020, knowledge of them will fade or be non-existent in, say, 2026. I am not persuaded of this, if for no other reason than the Coroner’s findings feature in Episode 1, and are not likely to be forgotten by a listener to Episode 1.
The position of the third defendant
Episode 13 has not been shown to have caused, or be likely to cause, serious harm. The same conclusion applies to the contribution that the third defendant made to that episode, essentially for the same reasons. In addition, the things said by the third defendant to the second defendant on 24 May 2021 seem unlikely to have altered the second defendant’s pre-existing estimation of the plaintiff. There is no evidence or submission that they did.
Conclusion and orders
The plaintiff has not proven the serious harm element of his cause of action against the first and second defendants, and he has not proven the serious harm element of his cause of action against the third defendant.
The appropriate order is that the proceeding is dismissed.
Subject to any submissions about the costs that were reserved by paragraph 14 of my order of 13 May 2024 to reflect the parties’ mixed success on the interlocutory applications, costs should follow the event of the proceeding being dismissed. My provisional view in May 2024 was that the costs of the earlier applications should be the parties’ costs in the proceeding. Therefore, absent further submissions on that point or any submissions about the basis upon which costs are to be awarded, the costs order will be that the plaintiff pay the defendants’ costs of and incidental to the proceeding to be assessed on the standard basis, if not agreed.

CITATION:	Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192
PARTIES:	JOHN PEROS (plaintiff) v NATIONWIDE NEWS PTY LTD ACN 008 438 828 (first defendant) AND HEDLEY THOMAS (second defendant) AND SHANNAH BLACKBURN (third defendant)
FILE NO:	BS 7796 of 2023
DIVISION:	Trial Division
PROCEEDING:	Hearing of separate harm issue under Defamation Act 2005 (Qld), s 10A
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	27 August 2024
DELIVERED AT:	Brisbane
HEARING DATE:	29 and 30 July 2024
JUDGE:	Applegarth J
ORDERS:	The proceeding is dismissed.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SERIOUS HARM ISSUE – where the plaintiff was charged with, and later acquitted of, murder – where he was later found by a Coroner to have violently killed the deceased using a bladed instrument – where the Coroner’s finding was widely publicised – where the first and second defendants published an investigative podcast series into the killing – where Episode 13 is alleged to have imputed that the plaintiff murdered the deceased – where the plaintiff pleads that the episode “caused or is likely to cause serious harm” to his reputation so as to satisfy the serious harm element of the cause of action enacted by s 10A of Defamation Act 2005 (Qld) – where the defendants dispute the “serious harm element” of the plaintiff’s cause of action on the grounds that his reputation had been practically destroyed by the widespread reporting of the Coroner’s finding – where the Coroner’s finding was reported in the first episode of the series – where an order is made pursuant to s 10A of the Defamation Act 2005 (Qld) for the early determination of the serious harm issue – where the plaintiff objects to the admissibility of reports of the Coroner’s findings and other prior publications that are alleged to have injured his reputation prior to the publication of Episode 13 – whether the plaintiff has established the serious harm element of his cause of action against the first and second defendants over Episode 13 – whether the plaintiff has established the serious harm element of his cause of action against the third defendant over things she said in an interview that were included in Episode 13 Defamation Act 2005 (Qld), ss 10A, 38 Defamation Act 2013 (UK), s 1 Alsaifi v Trinity Mirror Plc [2017] EWHC 2873 (QB), cited Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, cited Associated Newspapers Ltd v Dingle [1964] AC 371, discussed Banks v Cadwalladr [2023] EWCA Civ 219, cited Barron v Vines [2016] EWHC 1226 (QB), cited Blake v Fox [2024] EWHC 146 (KB), cited Briginshaw v Briginshaw (1938) 60 CLR 336, cited Burstein v Times Newspapers Ltd [2001] 1 WLR 579, cited Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, cited Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232; [2010] NSWCA 335, followed Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691, cited Cornwall v Rowan (2004) 90 SASR 269, cited Daryanani v Ramnani [2017] EWHC 183 (QB), cited Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1, cited Dingle v Associated Newspapers Ltd [1961] 2 QB 162, discussed Dyson v MGN Ltd [2023] EWHC 3092 (KB), cited Economou v De Freitas [2018] EWCA Civ 2591; [2019] EMLR 7, cited Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547, cited Faruqi v Latham [2018] FCA 1328, cited Goody v Odhams Press Pty Ltd [1967] 1 QB 333, cited Hayson v The Age Company Pty Ltd [2019] FCA 1538, cited Helton v Allen (1940) 63 CLR 691, cited Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96, cited Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, cited Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 17, cited Jameel v Dow Jones & Co Inc. [2005] (QB) 946, cited Jones v Sutton (2004) 61 NSWLR 614, cited Lachaux v Independent Print Ltd [2016] QB 402, cited Lachaux v Independent Print Ltd [2020] AC 612, cited Ley v Hamilton (1935) 153 LT 384, cited March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, cited Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, cited Napag Trading Ltd v Gedi Gruppo Editoriale SpA [2020] EWHC 3034, cited National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64, cited O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, cited O’Shea v Everingham Unreported, Supreme Court of Queensland number 128 of 1980, 30 October 1985, cited Pamplin v Express Newspapers Ltd [1988] 1 WLR 116, cited Peros v Blackburn [2024] FCA 177, cited Peros v Nationwide News Pty Ltd [2024] QSC 80, cited Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83, cited Plato Films Ltd v Speidel [1961] AC 1090, cited Price v MGM Ltd [2018] EWHC 3014 (QB); [2018] 4 WLR 150, cited R v Carroll (2002) 213 CLR 635, cited R v GJL [2021] QCA 175, cited R v Storey (1978) 140 CLR 364, cited Rader v Haines [2022] NSWCA 198, cited Rahman v Arearose Ltd [2001] QB 351, cited Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, cited Rolfe v Northern Territory Coroner [2023] NTCA 8, cited Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550, cited Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688, cited Scott v Sampson (1882) 8 QBD 491, cited Selkirk v Wyatt [2024] FCAFC 48, cited Shakil-Ur-Rahman v ARY Network Ltd [2017] 4 WLR 22 at 24-25[9]-[14]; [2016] EWHC 3110 (QB), cited Sicri v Associated Newspapers [2020] EWHC 3541 (QB), cited Sim v Stretch [1936] 2 All ER 1237, cited Sivananthan v Vasikaran [2022] EWHC 2938 (KB); [2023] EMLR 7 at 255, cited Slipper v British Broadcasting Corporation [1991] 1 QB 283, cited Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB), cited Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 (QB), cited Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 (QB), cited Tesla Motors Ltd v British Broadcasting Corporation [2011] EWHC 2760; [2013] EWCA Civ 152, cited Turleyv Unite the Union [2019] EWHC 3547 (QB), cited Turner v News Group Newspapers Ltd [2006] 1 WLR 3469, cited Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495, cited Whittington v Newman [2024] NSWCA 27, cited Wisher v Mirror Newspapers Ltd [1963] SR (NSW) 745, cited Wright v McCormack [2022] EWHC 10, cited
COUNSEL:	D J Helvadjian for the plaintiff D R Sibtain SC and P Morreau for the defendants
SOLICITORS:	Rostron Carlyle Rojas Lawyers for the plaintiff Thomson Geer for the defendants