Stoltenberg v Bolton

[2020] NSWCA 45

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45

Hearing dates:

5 August 2019

Decision date:

20 March 2020

Before:

Macfarlan JA at [1]
Gleeson JA at [2]
Brereton JA at [250]

Decision:

2018/334329 (Mr Stoltenberg’s appeal)

 

(1)   Appeal dismissed.

 

(2)   Appellant to pay the respondent’s costs.

 

2018/324176 (Leave to appeal/cross-appeal)

 

(1)   Summons seeking leave to appeal filed 21 November 2018 be dismissed with costs.

 (2)   Cross-summons for leave to cross-appeal filed 31 January 2019 be dismissed with no order as to costs.

Catchwords:

DEFAMATION – appeals – publication – Facebook – where defamatory posts made on public Facebook page styled “Narri Leaks” – evidence of publication – whether evidence outside particularised case – proof of extent of publication – whether respondent’s wife was acting on behalf of respondent in downloading the posts – whether answers to interrogatories evidence of proof of extent of publication – whether appropriate to draw Jones v Dunkel inference where defendant did not give evidence

 

DEFAMATION – appeals – imputations – whether error in finding three imputations were conveyed by fifth matter complained of

 

DEFAMATION – appeals – defences – common law qualified privilege – where posts made on public Facebook page – whether excessive publication – where posts downloaded by people outside Narrabri Shire – whether privileged occasion – whether error in rejecting defence of common law qualified privilege

 

DEFAMATION – appeals – defences – statutory qualified privilege – Defamation Act 2005 (NSW) s 30 – where finding that publication was unreasonable – whether presumption of honesty – significance of failure to contact plaintiff prior to publication

  DEFAMATION – application for leave to appeal – publication – secondary participant in publication –whether endorsement of defamatory statements – Facebook comments – whether question of principle or of public importance involved – where small amount in issue – whether injustice if refusal of leave

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60
Defamation Act 1974 (NSW), ss 22
Defamation Act 2005 (NSW), ss 30, 32, 33
Evidence Act 1995 (NSW), ss 69(1)(b), 81, 183
Independent Commission Against Corruption Act 1988 (NSW), s 8(1)
Practice Note SC CL 4
Local Government Act 1993 (NSW)
Supreme Court Act 1970 (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 15.1, 15.19(1)(d), 42.1, 51.18(1)(e)

Cases Cited:

Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25
Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bolton v Stoltenberg [2018] NSWSC 1518
Brady v Norman [2008] EWHC 2481
Byrne v Deane [1937] 1 KB 818
Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325
Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30
Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126
Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Duke of Brunswick v Harmer (1849) 14 QB 185
Enders v Erbas & Associates Pty Limited [2014] NSWCA 70
Frawley v New South Wales [2006] NSWSC 248
Google Inc v Duffy (2017) 129 SASR 304: [2017] SASFC 130
Hird v Wood (1894) 38 Sol J 234
Jameel v Dow Jones & Co Inc [2005] QB 946
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514
Marshall v Smith [2013] WASC 452
Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Papaconstantinos v Holmes ‘A Court (2012) 249 CLR 534; [2012] HCA 53
Payne v Parker [1976] 1 NSWLR 191
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Sims v Jooste (No 2) [2016] WASCA 83
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Theodore Skalkos v Joseph Assaf [2002] NSWCA 14
Toogood v Spyring (1834) 1 G M & R 181; 149 ER 1044
Trumm v Norman [2008] EWHC 116
Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127
Vakras v Cripps [2015] VSCA 193
Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350

Category:

Principal judgment

Parties:

Stephen Robert Stoltenberg (Appellant)
Ann Loder (Applicant)
Conrad Moran Bolton (Respondent / Cross Applicant)

Representation:

Counsel:
Ms S Chrysanthou / Mr B C Dean (Appellant)
Mr R W Potter / Ms L Andelman (Applicant)
Mr M Richardson / Ms M Rabsch (Respondent / Cross-Applicant)

  Solicitors:
Kalantzis Lawyers (Appellant)
Peter James Breen (Applicant)
Bell & Johnson Solicitors (Respondent / Cross Applicant)

File Number(s):

2018/334329 (Stoltenberg v Bolton)2018/324176 (Loder v Bolton)

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 1518

Date of Decision:

15 October 2018

Before:

Payne J

File Number(s):

2015/366431

HEADNOTE

[This headnote is not to be read as part of the Judgment]

In June and July 2015, the appellant Mr Stephen Stoltenberg, made a series of posts on a public Facebook page styled “Narri Leaks”, which allegedly conveyed imputations that the respondent, Mr Conrad Bolton, the Mayor of Narrabri Shire Council had been corrupt, dishonest and intimidating in his role as Mayor, and that this conduct warranted an ICAC inquiry. More specifically, the posts allegedly asserted that Mr Bolton had been corrupt in selecting the general manager of the Council in 2015 and that he had provided the Independent Pricing and Regulatory Tribunal with information he knew to be false (IPART post). The applicant, Ms. Ann Loder, made “comments” on posts made to the Narri Leaks page. Mr Stoltenberg was the administrator of, and thus had control over, the content posted to the Narri Leaks page.

Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. The trial judge held that the Facebook posts conveyed imputations defamatory of Mr Bolton, and that Mr Stoltenberg had no defence to five of the matters complained of. His Honour also held that the Facebook “comment” made by Ms Loder endorsing one of Mr Stoltenberg’s posts had amounted to secondary publication of the defamatory material. Mr Stoltenberg was ordered to pay damages of $100,000 and interest of $10,000, plus costs. Ms Loder was ordered to pay damages of $10,000.

Mr Stoltenberg appealed against the judgment and Ms Loder sought leave to appeal. Mr Bolton sought leave to cross-appeal against the rejection of other parts of his claim against Ms Loder. He only pressed his leave application if Ms Loder was granted leave to appeal.

The principal issues before the Court were:

in relation to publication of the posts, whether evidence outside the particularised case had been erroneously admitted; whether Mr Bolton’s wife was acting on his behalf in downloading the posts on the Narri Leaks page; and whether certain answers by Mr Stoltenberg to interrogatories were admissions of the extent of publication;

in relation to the imputations conveyed by the posts, whether the trial judge erred in finding that three imputations were conveyed by the IPART post;

whether the trial judge erred in rejecting the defences of common law qualified privilege and statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW); and

whether there should be a grant of leave to appeal to permit Ms Loder to challenge the trial judge’s finding that Ms Loder had engaged in secondary publication.

Held, rejecting the appeal and applications for leave to appeal and for leave to cross-appeal (per Gleeson JA; Macfarlan and Brereton JJA agreeing)

As to issue (i):

The trial judge did not err in the admission of evidence on publication: the evidence of publication was rightfully admitted, Mr Bolton’s wife was not acting on his behalf in downloading the posts, and there was no error in the weight given to admissions made by Mr Bolton in answer to interrogatories as proof of the extent of publication: [69]-[76], [78]-[87], [91], [93]-[94], [99]-[102], [104]-[107].

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

Duke of Brunswick v Harmer (1849) 14 QB 185; and

Jameel v Dow Jones & Co Inc [2005] QB 946 considered.

As to issue (ii):

The trial judge did not err in finding that three imputations were conveyed by the IPART post: [124]-[128].

As to issue (iii):

The trial judge did not err in rejecting the defence of common law qualified privilege, chiefly because the matters complained of were published to a much wider audience than those residents of Narrabri Shire Council who were interested in Council finances: [145]-[174].

Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350;

Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514;

Vakras v Cripps [2015] VSCA 193;

Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 considered.

The trial judge did not err in rejecting the defence of statutory qualified privilege, chiefly because the conduct of Mr Stoltenberg in publishing the posts was not reasonable in the circumstances: [181]-[210].

Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57

Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374;

Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 considered.

As to issue (iv):

No question of principle or of public importance was involved in the finding that Ms Loder’s endorsement of Mr Stoltenberg’s post amounted to secondary publication. Nor was there any injustice shown that was reasonably clear, particularly given the small amount in issue.

Judgment

1. MACFARLAN JA: I agree with Gleeson JA.

2. GLEESON JA: This appeal and related applications for leave to appeal and leave to cross-appeal concern the publication of a series of posts on a public Facebook page styled “Narri Leaks” in June and July 2015. The imputations allegedly conveyed by the posts included allegations of deliberate breaches of the Local Government Act 1993 (NSW) by the plaintiff, Mr Conrad Bolton, the Mayor of Narrabri Shire Council, deliberate corruption by Mr Bolton of the selection process for the general manager of the Council in 2015, corrupt, dishonest and intimidating actions of Mr Bolton as Mayor of Narrabri Shire Council warranting a full ICAC inquiry, and deliberate engagement by Mr Bolton in corrupt conduct by providing the Independent Pricing and Regulatory Tribunal (IPART) with information Mr Bolton knew to be false.

3. On 14 December 2015, Mr Bolton commenced defamation proceedings by statement of claim against the first defendant, Mr Stephen Stoltenberg, who was the administrator of the Narri Leaks Facebook page and the author of the posts on that Facebook page, the subject of the defamation claim, and the second defendant, Ms Ann Loder, who was the author of certain “likes” and comments on the Narri Leaks Facebook page.

4. The hearing below proceeded as a judge-alone trial before Payne J. The primary judge found that the six matters complained of carried imputations defamatory of Mr Bolton and that Mr Stoltenberg had no defence to five of the matters complained of. The primary judge also found that a later comment posted by Ms Loder on the Narri Leaks Facebook page specifically endorsed the second matter complained of, and amounted to secondary participation in this publication. Judgment was given against Mr Stoltenberg for damages of $100,000 and interest in the amount of $10,000, plus costs. Judgment was given against Ms Loder for damages of $10,000: Bolton v Stoltenberg [2018] NSWSC 1518 (Judgment).

5. Mr Stoltenberg has appealed against the judgment and Ms Loder seeks leave to appeal.

6. Mr Bolton seeks leave to cross-appeal against the dismissal of parts of his claim against Ms Loder. If successful in obtaining leave and in those challenges, Mr Bolton seeks a reassessment of damages against Ms Loder.

7. Ms Loder and Mr Bolton both require leave to appeal because the matter in issue as between them is less than the threshold of $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r).

Factual background

8. Mr Bolton was a councillor of the Narrabri Shire Council from 2004 to 2016 and Mayor from September 2012 to September 2016. The primary judge observed that Mr Bolton had a long distinguished history of service in the Narrabri Shire. He did not stand for re-election in September 2016 as a result of the conduct the subject of complaint in the proceedings below.

9. The Facebook page called “Narri Leaks” was created on 13 June 2015 by Ms Rook, at Mr Stoltenberg’s request. Ms Rook was Mr Stoltenberg’s partner. “Narri Leaks” described itself as a page “Blowing the whistle on waste, poor management & worse in Narrabri Shire Council”.

10. Ms Rook and Mr Stoltenberg were the administrators of the Narri Leaks Facebook page, which meant that they could change the photographs, modify the page, post to it and modify the posts and add links to videos, amongst other things. The primary judge found at Judgment [32]-[33]:

[32]   Ms Rook created a filter in an attempt to prevent profanity being used in posts or comments, which would hide posts or comments containing profane words from the public (but not from the administrators).  Apart from that profanity filter, the Facebook page was open to the world and anyone, anywhere, with access to the internet, could add a comment or a post to the Narri Leaks page.  As administrators, Mr Stoltenberg and Ms Rook were each able to remove people’s posts by hiding or deleting them.  After about a week of operation, Ms Rook added a feature to the Narri Leaks page such that the administrators would have to approve posts before they were allowed to be added to the page. Ms Rook applied a standard for letting posts through which she described as preventing profanity or anything “defaming”. 

[33]   Ms Rook allowed onto the page posts relating to Narrabri Shire Council issues.  Mr Stoltenberg, however, allowed posts to be made to Narri Leaks which were not related to the Narrabri Shire Council. Mr Stoltenberg’s avowed purpose in making and allowing these posts was to drive traffic to the Narrri Leaks site; that is, to encourage downloads of posts to the site by as many people as possible from as wide a geographic area as possible. Ms Rook and Mr Stoltenberg were unable to stop comments being made before they were posted, although they could delete or hide a comment after it was posted.

There is no challenge to these findings.

11. Mr Stoltenberg was the author of many posts to the Narri Leaks page, including the six matters complained of. Five matters were posted in the period June to July 2015 and one in January 2016, after the commencement of proceedings. Each of those posts was downloaded by Mrs Beryl Bolton who took a screen shot of it. The primary judge found that Mrs Bolton did so because she was upset about the allegations being made on the Narri Leaks page about her husband. The judge rejected Mr Stoltenberg’s submission that Mrs Bolton acted as Mr Bolton’s agent in collecting this material: Judgment at [135]. Mr Stoltenberg challenges this finding.

The primary judge’s findings as to defamatory imputations conveyed by the matters complained of

12. It is not necessary to refer to the defamatory imputations which his Honour found were conveyed by the sixth matter complained of. As to these imputations his Honour found that the defence of innocent dissemination under s 32 of the Defamation Act 2005 (NSW) had been established by Mr Stoltenberg. Mr Bolton does not challenge this finding.

13. The primary judge found that the other five matters complained of conveyed at least some of the pleaded imputations which were defamatory of Mr Bolton. The references below to the numbered imputations are to the pleaded imputations in the further amended statement of claim (FASC).

First matter complained of

14. On 15 June 2015, the first matter complained of headed “Captain’s call” was uploaded to the Narri Leaks page by Ms Loder, at Mr Stoltenberg’s request. The subject matter of this post was the selection process for a new general manager of the Narrabri Shire Council to replace Ms Hood who had been appointed in December 2013. The primary judge found that the first matter complained of contained the following imputations which were defamatory of Mr Bolton:

(1)   “The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by making a ‘Captain’s Call’ to hire a weak and inexperienced General Manager that he could control”;

(2)   “The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by ignoring the recommendations of expert consultants hired by Council and instead prevailing on other councillors to pick a candidate on criteria other than merit”: Judgment at [76].

15. The business records of Facebook established that by 20 January 2016 the “Captain’s call” post had a “reach” of 661 and that 83 “likes, comments and shares” had occurred in response to the post: Judgment at [37], [154]. The primary judge found that the “reach” of the post records the number of people Facebook recorded as having read the post: Judgment [147]-[148].

Second matter complained of

16. On 27 June 2015, the second matter complained of was uploaded to the Narri Leaks Facebook page beginning with the words “again, for the purpose of accurate facts”. That post made various allegations concerning the hiring of Mr Todd as general manager of the Narrabri Shire Council on about 24 June 2015. The primary judge found that the second matter complained of contained the following imputation which was defamatory of Mr Bolton:

(2) “The Plaintiff in his role of Mayor of Narrabri Shire Council, breached the Local Government Act by awarding the position of General Manager of Council on criteria other than merit”: Judgment at [82].

17. By 20 January 2016, the post had a “reach” of 797 and 124 “likes, comments and shares” had occurred in response to the post: Judgment at [41], [154].

Third matter complained of

18. On 27 June 2015, the third matter complained of was uploaded to the Narri Leaks Facebook page beginning with the words “Again, for the purpose of accurate facts …”. The post included certain of the comments posted to the second matter complained of. The primary judge found that the third matter complained of contained the following imputations which were defamatory of Mr Bolton:

(2)   “The Plaintiff in his role of Mayor of Narrabri Shire Council, breached the Local Government Act by awarding the position of General Manager of Council on criteria other than merit”;

(3)   “The Plaintiff, in his role as Mayor of Narrabri Shire Council, breached his duties by deliberately rejecting experienced candidates for the position of General Manager of Council in favour of a worse and inexperienced candidate, so that he would not be challenged by a competent General Manager”: Judgment at [88], [89].

19. By 20 January 2016, the post had a “reach” of 797 and 124 “likes, comments and shares” had occurred in response to the post: Judgment at [44], [154].

Fourth matter complained of

20. On 29 June 2015, the fourth matter complained of was uploaded to the Narri Leaks Facebook page, headed “The Carton (sic) Below” at 11.44 pm. The post was viewed by Mrs Bolton 54 minutes later at 12.38 am on 30 June 2015. It was subsequently deleted by Ms Rook shortly thereafter, at the request of Mr Stoltenberg.

20. The primary judge found that the fourth matter complained of contained the following imputations which were defamatory of Mr Bolton:

(1)   “The Plaintiff in his role of Mayor of Narrabri Shire Council deliberately corrupted the selection process for the General Manager for Council”;

(2)   “The Plaintiff in his role of Mayor of Narrabri Shire Council, over a three year period, breached a number of laws including [the] Local Government Act, in his effort to silence the interchange of ideas and the diversity of views on Council”;

(3)   “The Plaintiff in his role of Mayor of Narrabri Shire Council told deliberate lies and engaged in coercion and intimidation of employees, contractors, residents and elected councillors in his effort to suppress the views of others on Council matters”; and

(4)   “The Plaintiff’s corrupt, dishonest, and intimidatory actions as Mayor of Narrabri Shire Council, warranted a full ICAC inquiry”: Judgment at [93], [94], [95], [96].

Fifth matter complained of

22. On 18 July 2015, the fifth matter complained of was uploaded to the Narri Leaks Facebook page, headed “The Council’s IPART submission …” and included appended comments. At the time of this post, IPART was conducting an exercise with respect to the finances of local councils across New South Wales known as “Fit for the Future”. The Narri Leaks post referred to a submission by Narrabri Shire Council to IPART for a 30 per cent increase in rates, since reduced to 24.2 per cent, and a $19 million difference between budgeted and actual fees collected as recorded in the Narrabri Shire Council accounts over the last five years. The post included a cartoon depicting two persons, one viewing a laptop computer, the other holding a pad and pen and the comment, “Our books are balanced. 50% of our numbers are real and 50% are made up.”

23. The primary judge found that the fifth matter complained of contained the following imputations which were defamatory of Mr Bolton:

(1)   “The Plaintiff, in his role as Mayor of Narrabri Shire Council engaged in corrupt conduct by providing the Independent Regulatory and Pricing Tribunal (IPART) with information he knew to be false”;

(3)   “The Plaintiff, in his role as Mayor of Narrabri Shire Council acted illegally by providing the IPART with information he knew to be false”;

(5)   “The Plaintiff in his role as Mayor of Narrabri Shire Council knew and did not reveal that Councillor Ken Flower, the chairman of the finance committee, had falsified the Council’s books”: Judgment at [102], [104], [106].

24. By 20 January 2016, the post had a “reach” of 1,900 and 57 “likes, comments and shares” had occurred in response to the post: Judgment at [49], [154].

25. Mr Stoltenberg does not challenge any of the findings as to the imputations conveyed by these matters, other than the finding concerning the three imputations conveyed by the fifth matter complained of.

Answers to interrogatories

26. In answers to interrogatories, Mr Stoltenberg said that he did not intend to convey any of the imputations which the primary judge found were conveyed by the five matters complained of. He also said that prior to publishing each of the five matters complained of, he or any servant or agent did not contact or attempt to contact Mr Bolton with respect to the matters complained of.

The primary judge’s reasons

27. It is convenient first to refer to the primary judge’s reasons relating to the claim against Mr Stoltenberg. Matters relevant to the claim against Ms Loder are addressed separately below at [217]ff.

Publication by Mr Stoltenberg

28. No complaint is made in relation to his Honour’s statement of principles concerning proof of publication. At Judgment [116], his Honour said:

The tort of defamation requires evidence of publication, or communication, of the defamatory material to a third party who comprehends it, causing harm to the reputation of the defamed: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25]-[26]; Sims v Jooste (No 2) [2016] WASCA 83 at [8]-[12]. In an action for defamation involving online material, publication is established through evidence that a third party downloaded and read the material: Dow Jones & Co Inc v Gutnick at [26] and [44]. Publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference that material has been downloaded can properly be drawn. The mere fact of posting material online does not lead to an inference that it has been downloaded: Sims v Jooste (No 2) at [18]-[20].

29. His Honour found that Mr Stoltenberg was the author of the first to fifth matters complained of: Judgment at [117]. This finding is not challenged.

30. His Honour gave the following reasons for rejecting Mr Stoltenberg’s submission that Mr Bolton had not proven that any one person had downloaded and read any of the matters complained of: Judgment at [117].

31. The first concerned an objection by Mr Stoltenberg at trial that Mr Bolton was seeking to conduct a case outside the particulars he had given. The primary judge rejected this complaint: Judgment at [112]. After reviewing the solicitors’ correspondence relating to the request for particulars, and considering the requirements of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 15.1 and 15.19(1) and the remarks of Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-193, his Honour found that Mr Bolton’s pleading of publication was not limited by the exchange of particulars, as Mr Bolton’s solicitors refused to provide the particulars of identification that had been sought: Judgment at [130].

32. His Honour further found that Mr Bolton was entitled to rely upon publication to Mrs Bolton who gave evidence that she had read each of the matters complained of. As indicated, his Honour found that Mrs Bolton was not the agent of Mr Bolton: Judgment at [134]-[135].

33. Second, and in any event, his Honour held that Mr Bolton was entitled to rely on “a platform of facts” from which inferences of downloads could properly be drawn in order to establish publication and found that there were abundant facts from which the inference that each of the matters complained of was downloaded and read could properly be drawn: Judgment at [136]. Those facts comprised:

1. answers to interrogatories provided by Mr Stoltenberg concerning the number of hits the Narri Leaks Facebook page received in the first week from 17 June 2015, and the number of readers of the Narri Leaks website for the period June 2015 to January 2016;

2. Facebook posts by Mr Stoltenberg referring to the wide readership of Narri Leaks;

3. Facebook activity logs which were eventually tendered without objection; and

4. evidence of the readership of Narri Leaks given by Mrs Bolton that people in Queensland, Wellington, Adelaide and Singleton had spoken to her indicating that they had read items on the Narri leaks website, and evidence given by Mr Webb that the Narri Leaks website was discussed at local government conferences outside the Narrabri Shire at a state and national level, including at a particular mayoral function on the Gold Coast.

34. His Honour found that Mr Stoltenberg published each of the matters complained of: Judgment at [159].

Identification

35. No complaint is made in relation to his Honour’s statement of principles concerning proof of identification. At Judgment [187], his Honour said:

Identification can be proved if the court is satisfied, by inference, that at least one person who read the matter complained of would have identified the plaintiff as the person referred to: Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 at 597. This requires consideration of whether the publication would, reasonably in the circumstances, lead persons acquainted with the plaintiff to believe that he or she was the person referred to: David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at 238.

36. His Honour found that he was comfortably satisfied that at least one person who had read each of the five matters complained of would have identified Mr Bolton as the person referred to. He gave the following reasons at Judgment [189]-[190]:

[189]    … The matters complained of were all addressed to issues in Narrabri and named the Mayor as a central focus of the matter complained of. The central thesis of each of Mr Stoltenberg’s posts was that Mr Bolton was responsible for various ills that Mr Stoltenberg had diagnosed. Many readers, even if only dimly aware of the Narrabri Shire councillors, would clearly have understood Mr Stoltenberg’s complaints about the “Mayor” to refer to Mr Bolton.

[190]   It is clear that each of the publications reasonably in the circumstances would lead persons acquainted with Mr Bolton to believe that he was the person referred to. Identification has been established.

Common law qualified privilege

37. No complaint is made in relation to his Honour’s statement of principles concerning common law qualified privilege. At Judgment [192]-[193], his Honour said:

[192]   Communications are protected where a person has a legal, social or moral interest or a duty to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty to receive it: Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [31]-[32] (sic). The relevant “sting” must be germane and reasonably appropriate to the occasion: Bashford at [2], adopted by a majority of the High Court on appeal at [27], [193] and [235].

[193]   The question of whether the defence of qualified privilege applies depends on a close scrutiny of the circumstances of each case and the facts revolving around the publication. In Bashford, the High Court explained:

[10]   These principles are stated at a very high level of abstraction and generality. ‘The difficulty lies in applying the law to the circumstances of the particular case under consideration’. Concepts which are expressed as ‘public or private duty, whether legal or moral’ and ‘the common convenience and welfare of society’ are evidently difficult of application. When it is recognised, as it must be, that ‘the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact’, it is clear that in order to apply the principles, a court must ‘make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication’. (Footnotes omitted.)

38. His Honour observed that the debate between the parties, with respect to the defence of common law qualified privilege, focused on whether Mr Stoltenberg could establish the requisite “reciprocity of duty and interest” between Mr Stoltenberg and the recipients of his publications: Judgment at [191].

39. In addressing Mr Stoltenberg’s submissions that a distinction is to be drawn between mass media publications and specialist web pages, and that the publication in the present case was not made to an unrestricted audience, his Honour rejected Mr Stoltenberg’s submission that Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 was incorrectly decided, noting that Mr Stoltenberg’s characterisation of Narri Leaks as a “limited website publication” rather begs the question: Judgment at [195].

40. His Honour also rejected Mr Stoltenberg’s submission that the authorities to which he referred established any generally applicable statement of principle for the purposes of the present case: Judgment at [198]-[202]. Reference was made to: Marshall v Smith [2013] WASC 452 at [33], [39]; Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428 at [10]; Trumm v Norman [2008] EWHC 116 at [33]-[37]; and Brady v Norman [2008] EWHC 2481 at [24]-[26].

41. His Honour rejected Mr Stoltenberg’s submission, based on the particulars point, that the pleading identified a limited class of persons to whom Narri Leaks was published: Judgment at [206]. His Honour said at Judgment [207]-[209]:

[207]   Mr Bolton’s pleading asserted that each matter complained of was in fact downloaded and read in each of the states and territories of Australia. That averment was never further particularised and no application was made by Mr Stoltenberg for further and better particulars of that issue.

[208]   The defence of qualified privilege here is based on Mr Stoltenberg’s claim that the Narri Leaks Facebook page is “dedicated to dealing with issues of interest to persons within the Narrabri Shire”. The defence relies on the claim that each of the readers of the Narri Leaks Facebook page was a resident of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.

[209]   A close scrutiny of the circumstances of this case and the facts revolving around the publication of Narri Leaks leads to the conclusion that Mr Stoltenberg has failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, being financial issues relating to the Narrabri Shire Council and/or the appointment of General Managers to the Council.

42. In rejecting the defence of common law qualified privilege, his Honour gave the following reasons.

43. First, that Narri Leaks was downloaded and read by a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council, and that an avowed, and successful, purpose of the site was to attract readers from far beyond the Narrabri area who did not share the identified interest: Judgment at [210]. In support of this finding, his Honour referred to the four matters identified above at [33].

44. Second, his Honour said that even if, contrary to his principal finding, the matters complained of were only downloaded and viewed by a limited class of persons within a limited subject matter, evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication, giving the following reasons at Judgment [212]:

The readership of the Narri Leaks Facebook page reflected its deliberate and successful attempts to garner views and hits “all over the Shire, [and] …over the country”. It follows, as the Victorian Court of Appeal found in Vakras v Cripps that publication of each of the matters complained of was not protected by qualified privilege.

45. Third, whilst his Honour accepted that the finances of the Narrabri Shire Council and the appointment of general managers was an important topic in the Narrabri area, he found that Mr Stoltenberg had no duty to attack Mr Bolton’s reputation. Further, although the allegations of Mr Bolton acting corruptly and inappropriately may have been of general interest within the Narrabri community, his Honour found that Mr Stoltenberg failed to demonstrate the existence of a “special and reciprocal interest”, referring to Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195: Judgment at [213].

46. Fourth, with respect to Mr Stoltenberg’s fall-back case that the relevant interest group was all people, wherever situated, with an interest in local government, his Honour found that there was no basis for concluding that the posts were only downloaded and viewed by a limited class of persons with an interest in local government: Judgment at [214].

47. Having rejected the defence of common law qualified privilege, his Honour went on to find that Mr Bolton had not established malice: Judgment at [221].

Statutory qualified privilege

48. After setting out the terms of s 30 of the Defamation Act, his Honour continued at Judgment [223]:

The test for statutory qualified privilege involves the same reciprocity of interest as in common law qualified privilege but has an additional requirement that the conduct of the defendant in publishing the matter is reasonable in the circumstances. A finding of malice negates the defence: s 30(4).

49. Mr Stoltenberg challenged the first sentence of this passage as containing error. So much was fairly acknowledged by counsel for Mr Bolton who accepted that the only issue at trial in relation to s 30 was the reasonableness of the conduct of Mr Stoltenberg in publishing the defamatory matters: s 30(1)(c).

50. On the issue of reasonableness, his Honour referred to the observations of Giles JA in Theodore Skalkos v Joseph Assaf [2002] NSWCA 14 at [135]-[137] and Hunt AJA in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388 in relation to the test of reasonableness and the predecessor provision in s 22 of the now repealed Defamation Act 1974 (NSW). His Honour accepted that the same test of reasonableness applies under s 30, as under the former s 22 of the 1974 Act, that is, a defendant’s conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of: Judgment at [224]-[225].

51. In rejecting the defence of statutory qualified privilege, his Honour gave the following reasons at Judgment [226]-[233]:

[226]   I find that Mr Stoltenberg has failed to establish that he had an honest belief in the truth of the imputations I have found were conveyed by each of the matters complained of. It is clear from Mr Stoltenberg’s answers to interrogatories that he did not intend to convey the imputations pleaded. Mr Stoltenberg did not even give consideration to whether the fourth and fifth matters complained of conveyed the pleaded imputations. I reject Mr Stoltenberg’s submission that he has discharged his onus by proving that the imputations he did intend to convey were the subject of reasonable conduct on his part. There was no evidence as to whether Mr Stoltenberg took any steps to prevent the pleaded imputations from being conveyed or was otherwise acting reasonably in publishing any of the matters complained of.

[227]   I reject Mr Stoltenberg’s submission that the Roberts v Bass presumption of honesty is a matter to be taken into account as an implication from s 30(4) in addressing the matters in s 30(3). That approach is not supported by authority and would in my view lead to an incoherent application of the statute.

[228]   Further, I find that Mr Stoltenberg’s failure to contact Mr Bolton, or someone else on his behalf, about the issues the subject of the matters complained of, is contrary to notions of reasonableness and independently fatal to Mr Stoltenberg’s claim for statutory qualified privilege: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 2 at 574.

[229] Whilst I accept that in cases that do not involve mass media publications, it is not necessarily fatal to a defence under s 30 for the defendant to speak to or contact the plaintiff or a representative of the plaintiff prior to publication, in all the circumstances here, Mr Stoltenberg has failed to prove that he acted reasonably. It is common ground that Mr Stoltenberg made no attempt to contact Mr Bolton. There is no basis in my view for concluding that Mr Stoltenberg is relieved from the usual obligations to check defamatory allegations because he was running a public Facebook page rather than a separate website.

[230]   I also find that the language used in the relevant posts was excessive and the publication itself lacked reasonableness. It is not reasonable to make the allegations of unlawful and/or corrupt conduct the subject of this case in a public Facebook page, open to the world, without seeking any comment from Mr Bolton first. In the absence of any evidence from Mr Stoltenberg I am not satisfied that he has discharged his onus of proving that his conduct was reasonable.

[231] I reject Mr Stoltenberg’s submission that I would infer from his documentary tender that he acted reasonably within the meaning of s 30. The first volume contained the conduct reports I have addressed at [19], various Narri Leaks posts dealing with miscellaneous issues, press reports, letters and e-mail correspondence. The second volume consisted of a large number of text messages between Mr Stoltenberg and Mr Bolton, which ended prior to the Narri Leaks Facebook page being started. Some selected documents about the Narrabri Shire Council were also included. No evidence was given about what, if any, effect anything in these two large lever arch folders had upon any of Mr Stoltenberg’s actions. Little attention was paid in written or oral submissions to any one of these voluminous documents, although some submissions were made about the Narri Leaks posts which had been tendered.

[232]   The documentary tender on the First Defendant’s part sits without any relevant anchor. I am not satisfied that Mr Stoltenberg had any one or any combination of those documents in his mind when publishing any of the matters complained of.

[233]   The whole tenor of Mr Stoltenberg’s posts the subject of the 5 matters complained of in content and tone are antithetical to notions of reasonable conduct. The language and extent of the publication was excessive and thus not reasonable.

A. Mr Stoltenberg’s appeal

Issues on the appeal

52. The notice of appeal contains 25 grounds of appeal and a total of 53 issues if sub-grounds are counted separately. It is not consistent with the requirements of the rules that the notice of appeal state “briefly, but specifically, the grounds relied on in support of the appeal”: UCPR, r 51.18(1)(e). The importance of brevity and precision in formulating the grounds of appeal cannot be overstated. Prolixity is inconsistent with the just, quick and cheap resolution of the real issues in proceedings: Civil Procedure Act 2005 (NSW), s 56(1). It also obscures apparent merit: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [70] (McHugh J).

53. In written submissions, Mr Stoltenberg identified five issues as being raised by the appeal:

(1)   the significance in a defamation action based on internet content (in a non-mass context) of particulars or lack of particulars of the readers of a publication, proof of publication and extent of publication in those circumstances (Grounds 1-11);

(2)   the assessment of defamatory meaning when the matter complained of is predominantly not about the plaintiff (Ground 12);

(3)   the principles that apply to identification where a plaintiff is not named in the matters complained of and the relevance of proper particularisation of that identification (Grounds 13-14);

(4)   the principles that apply to the common law defence of qualified privilege where the matters complained of are uploaded on a special interest website available to the public to download and the interrelationship between identification, publication and the common law defence of qualified privilege where the plaintiff is not named in an online publication (Grounds 15-24); and

(5) the defence of qualified privilege under s 30 of the Act as applies to social media publications by private individuals about politicians (Ground 25).

54. This outline of the issues, which was repeated by counsel in her opening oral argument, does not serve as a substitute for the proper articulation of the grounds of appeal. This has made the Court’s task more difficult in ascertaining the real issues in dispute: Civil Procedure Act, s 56(1).

Publication: grounds 1 to 11

55. It is not in dispute that his Honour correctly acknowledged the bilateral nature of publication for the purposes of a defamation claim, referring to Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [26]-[27] and [44]:

[26]   Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.

[27]   The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action.

…

[44] In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. … (Citations omitted)

56. His Honour also correctly accepted that the mere fact of posting material online does not lead to an inference that it has been downloaded, referring to Sims v Jooste (No 2) [2016] WASCA 83 at [18]-[20]. It is useful to reproduce in full the remarks of Martin CJ at [17]-[20] (Buss JA and Mitchell J agreeing) in relation to proof of publication in cases involving the internet:

[17] Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site. There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site. This has been recognised in the cases to which I will now refer.

[18] In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction. Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded. The English cases recognise however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference of download can properly be drawn. However, such an inference will not be drawn from the mere fact that the material complained of has been posted on an internet site.

[19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established that the material of which complaint was made had been downloaded and viewed by somebody, without necessarily having to provide particulars of the identity of the person or persons who downloaded the material. The cases also establish that an inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of 'hits' on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali [2015] SADC 172 screenshots of the defendant's YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties.

[20] Cavasinni v Camenzuli [2009] NSWDC 159 provides the one Australian exception to this line of authority. In that case, in deciding an application to strike out the statement of claim, Gibson DCJ distinguished the principle enunciated by the High Court in Dow Jones on the basis that that case concerned publication on an internet site only available to subscribers. In her view, in a case in which the relevant internet site was available to all, it was sufficient for the plaintiff to plead the jurisdictions in which publication was asserted, without pleading or proving specific facts from which an inference could be drawn to the effect that the material of which complaint was made had been downloaded. With respect to her Honour, I do not read the observations of the plurality in Dow Jones as being limited to cases in which complaint was made of material published on a site only available to subscribers. Nor is such a distinction consistent with the principles consistently enunciated in the English cases, or the other cases in Australia to which I have referred. For that reason, with respect, I would not follow the view expressed in Cavasinni. (Emphasis added.)

57. In oral argument, Mr Stoltenberg’s essential complaint was that the primary judge erred in allowing evidence that fell outside the particulars of publication to be admitted (ground 5). A related complaint asserted error in relying upon evidence outside the particularised case to prove publication (grounds 2, 3, 4, 9 and 10).

58. There is a separate complaint challenging the finding that the fourth matter complained of was published at all, given that it was removed shortly after it was posted and, according to the contention, the only person who read it was Mrs Bolton, the wife of Mr Bolton (ground 1).

59. The other complaints relating to publication are that the primary judge erred in making findings as to the extent of publication (grounds 3, 6, 7 and 8); and erred in failing to address the publication individually for each post (ground 11). With respect to these grounds, Mr Stoltenberg conceded at trial that the first and second matters complained of were published to persons other than Mrs Bolton, whilst submitting that such publication was limited to persons within the Narrabri Shire. The evidence was that the first matter complained of, it was “liked” by at least Ms Loder and Ms Rook and received comments by Mr John Hartford and “Andrew Boggabri”. The second matter complained of was “liked” by at least 12 people.

60. Mr Stoltenberg contended that there was no evidence that the third, fourth and fifth matters were published to any person other than Mrs Bolton, that the cause of action based on publication to Mrs Bolton was outside the particulars, and in any event, the proceedings based on publication to Mrs Bolton were an abuse of process because she was the agent of Mr Bolton in reading and keeping a record of the matters complained of.

Whether erroneous admission of evidence: ground 5

61. Mr Stoltenberg submitted that the primary judge erred in allowing evidence outside the particularised case of publication to be admitted to prove publication for three reasons:

1. the 1 February 2016 response clearly represented that Mr Bolton’s case was based on “readership of such a page in a small town”;

2. his Honour failed to consider the provisions of UCPR, r 15.19(1)(d) as applied to the first, second, third and fourth matters complained of or the issue of identification at all in this context; and

3. his Honour did not take into account Practice Note SC CL 4 and ss 56-60 of the Civil Procedure Act 2005 (NSW) in assessing the consequence and effect of the 1 February 2016 response:

62. The particulars point directs attention to the relevant rules of pleading.

63. UCPR r 15.1(1) provides that a party plead “such particulars of any claim, defence or other matter … as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet”.

64. UCPR, r 15.19(1) is also relevant. It provides:

(1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following:

(a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified,

…

(d) if the plaintiff is not named in the matter complained of – particulars of identification of the plaintiff together with the identity, by reference to names and address or class of persons, of those to whom any such particulars were known, …

65. The FASC gave the following particulars of publication under pars 4, 6, 8, 11 and 13 with respect to each of the five matters complained of:

Particulars of publication

The [first, second, third, fourth and fifth] matter complained of was made available for download by the First and Second Defendants in each state and territory in Australia from on or about [relevant date] on Narri leaks.

The [first, second, third, fourth and fifth] matter complained of was in fact downloaded and read in each of the states and territories of Australia.

66. The following particulars of identification were given under pars 4, 6 and 11 of the FASC with respect to the first, second and fourth matters complained of:

Particulars of Identification

The Plaintiff has since 18 September 2012, been the Mayor of Narrabri.

67. No particulars of identification were given with respect to the third and fifth matters complained of; Mr Bolton was specifically mentioned by name in each of these matters.

The particulars point

68. The primary judge set out the relevant parts of the request for particulars and the response at Judgment [120]-[121] as follows:

[120]   On 25 January 2016, the then-solicitors for Mr Stoltenberg, Newhouse Lawyers, wrote to Mr Bolton’s solicitors as follows:

Objections to Statement of Claim

…

2. In relation to each of the First, Second, Third and Fourth matters complained of, because the plaintiff is not named, you are required to comply with Rule 15.19(1)(d) UCPR and to provide particulars of the name and address of at least one person who read each matter complained of, in each jurisdiction sued (which is pleaded as each State and Territory) and who identified the plaintiff.

[121]   On 1 February 2016, Bell and Johnson Solicitors replied to the letter from Newhouse Lawyers as follows:

As to paragraph 2 we do not agree that such particulars are necessary. In a situation where a Facebook page, set up with the express purpose of exposing misfeasance in a local shire, then refers to the “Mayor” the notion that the plaintiff needs to particularise or call witnesses who read the matters and knew the Mayor’s surname, seems to say the least, unnecessary. Indeed, even if such readers didn’t know the Mayor’s surname (perhaps unlikely amongst the readership of such a page in a small town) the plaintiff would still be defamed. (Emphasis added.)

69. Mr Stoltenberg submitted that the effect of this correspondence was that Mr Bolton ultimately limited his case in relation to the matters where he was not named, to persons within the Narrabri Shire. I do not agree.

70. The context of Mr Stoltenberg’s request for particulars was a complaint that Mr Bolton was not named in each of the first, second, third and fourth matters complained of. In fact, Mr Bolton was named in the third matter. Mr Stoltenberg sought particulars of at least one person who had read each matter complained of and who had identified Mr Bolton. The response by Mr Bolton’s solicitors was that such particulars were unnecessary, it being obvious that at least some readers would identify a person named as “Mayor” of a shire.

71. The primary judge correctly observed that Mr Bolton refused to provide the particulars of identification which had been sought. The parenthetical statement in the response by Mr Bolton’s solicitors was in support of the position that identification particulars were unnecessary. That statement did not limit or circumscribe Mr Bolton’s case, as suggested by Mr Stoltenberg.

72. As to Mr Stoltenberg’s complaint that he was prejudiced by the evidence given by Mrs Bolton that she downloaded and read the matters complained of, this is without merit. Mr Stoltenberg did not take any issue with the response to the request for particulars. He did not seek an order for particulars of either identification or publication; indeed, his solicitors did not respond to the 1 February 2016 letter from Mr Bolton’s solicitors.

Required particulars of identification

73. Although his Honour did not specifically set out the terms of sub-rule (d) when referring to r 15.19(1) at Judgment [124], it is plain from his Honour’s reasons that he had regard to the required particulars when considering Mr Stoltenberg’s complaint based on the response to particulars: see Judgment at [130], [139], [188].

74. Contrary to Mr Stoltenberg’s submissions, his Honour did consider the issue of identification. Whilst his Honour accepted that an order for the provision of particulars of identification or publication might have been made if an application had been made by Mr Stoltenberg in a timely manner, he noted that there was no such application: Judgment at [129], [133]. There was no error in finding that the pleading of publication was, relevantly, unqualified: Judgment at [131].

Practice Note and case management considerations

75. With respect to the third matter relied upon by Mr Stoltenberg, nothing in Practice Note SC CL 4 or ss 56-60 of the Civil Procedure Act had the effect of constraining Mr Bolton’s case in circumstances where, as his Honour correctly observed, no application for particulars of identification or publication was made by Mr Stoltenberg.

76. Ground 5 is not made out.

Publication to Mrs Bolton: grounds 1, 2 and 5

77. There are two parts to Mr Stoltenberg’s challenge to the primary judge’s finding that the matters complained of were read by and published to Mrs Bolton.

78. The first is that evidence of publication to Mrs Bolton was outside the particulars because she was never particularised as a recipient of the matters complained of. This complaint is answered by the reasons given above in relation to the particulars point. There was no error in the finding that the publication to Mrs Bolton was within the pleading: Judgment at [134].

79. The second aspect of the challenge is the contention that the primary judge erred in finding that Mrs Bolton was not acting on behalf of Mr Bolton when reading posts on the Narri Leaks website.

80. The primary judge found that Mrs Bolton was not “directed to the allegedly defamatory material by [Mr Bolton]”, rather it was she who first drew Mr Bolton’s attention to the Narri Leaks site, and that far from directing Mrs Bolton to read and download material from Narri Leaks, Mr Bolton was anxious that his wife and daughter spend less time looking at the site, or better still, not engage with it at all: Judgment at [135]. None of these findings were challenged.

81. Nonetheless, Mr Stoltenberg submitted that Mrs Bolton’s evidence established a voluntary agency to which Mr Bolton assented. I do not agree. Mrs Bolton gave evidence in cross-examination that her husband did not tell her to monitor the site and to capture the posts. There was no evidence of any assent by Mr Bolton to the asserted voluntary agency.

82. In oral argument, Mr Stoltenberg submitted that Mrs Bolton was acting no differently to a paralegal or a solicitor in keeping a record of the posts. Again, I do not agree. That Mrs Bolton agreed in cross-examination that her purpose in capturing screenshots of the posts was to have a record in case her husband wanted to do anything about them was not evidence of agency or assent by Mr Bolton to that conduct. There is no error in his Honour’s conclusion that Mrs Bolton was not, on the evidence, the agent of Mr Bolton.

83. Mr Stoltenberg further submitted that whether or not an agency is established, the cause of action based on a person like Mrs Bolton and/or anyone who is intimately involved in the prosecution of the claim is not actionable and is an abuse of process, referring to Duke of Brunswick v Harmer (1849) QB 185 and Jameel v Dow Jones & Co Inc [2005] 14 QB 946 at [56]. Alternatively, it was submitted that the circumstances of publication to Mrs Bolton would have attracted the defence of triviality under s 33 of the Defamation Act.

84. One difficulty with the abuse of process argument is that the point was not pleaded or raised below. Nor, was it suggested that this is an exceptional case such that Mr Stoltenberg should be allowed to rely upon a new point on appeal: Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. In any event, this case is readily distinguishable from Brunswick v Harmer.

85. In Brunswick v Harmer the Duke procured republication to his agent, who had purchased a back number containing the defamatory article and obtained another copy from the British Museum, seventeen years after its publication. As Lord Phillips MR remarked in Jameel at [22], the facts in Brunswick v Harmer are remarkable, whilst noting at [56]:

We do not believe that Brunswick v Harmer could today have survived an application to strike out for abuse of process. The Duke himself procured the republication to his agent of an article published many years before for the sole purpose of bringing legal proceedings that would not be met by a plea of limitation. If his agent read the article he is unlikely to have thought the Duke much, if any, the worse for it and, to the extent that he did, the Duke brought this on his own head. He acquired a technical cause of action but we would today condemn the entire exercise as an abuse of process.

86. Here, the effect of the unchallenged findings is that Mrs Bolton acted independently of Mr Bolton in downloading and reading material from the Narri Leaks web pages: see above at [80]. The present case is far removed from the facts in Brunswick v Harmer where republication was procured by an agent of the plaintiff for the purposes of proceedings. That Mrs Bolton thought she should have a record in case her husband wanted to do anything about the posts did not make the proceedings by Mr Bolton an abuse of process.

87. As to the submission that Mr Stoltenberg might have pleaded other defences, such as under s 33 of the Defamation Act, the short answer is that he did not plead this defence and he is bound by the conduct of his case.

Admissions and documents evidencing the extent of publication: grounds 3, 6, 7 and 8

88. Mr Stoltenberg submitted that the primary judge erred in taking into account as admissions evidencing the extent of publication, Mr Stoltenberg’s answers to interrogatories and in other contemporaneous posts. According to the submission, Mr Stoltenberg was not an expert in Facebook operations and therefore lacked first-hand knowledge of the extent of publication.

89. Given that there was ultimately no challenge to the admissibility of this evidence, this complaint concerns the weight given to Mr Stoltenberg’s admissions as to the extent of publication of Narri Leaks in the context of the “platform of facts” from which inferences of downloads were drawn by his Honour in order to establish publication.

Admissions in interrogatories

90. As to Mr Stoltenberg’s answers to interrogatories, his Honour referred to two admissions: Judgment at [137], [139]. First, in response to interrogatory 95, concerning a statement on the Narri Leaks Facebook page on 17 June 2015 “We were at 9,800 people”, Mr Stoltenberg answered:

9,800 was a number of hits the Narri Leaks Facebook page received in the first week.

91. After inferring that Mr Stoltenberg answered this interrogatory with the assistance of his legal advisers, his Honour found that a “hit” is the number of times that the Narri Leaks Facebook page was downloaded and viewed during the week: Judgment at [138]. There is no challenge to this finding.

92. Second, interrogatory 97 should be set out in full:

“Question: …for the period June 2015 to January 2016 please specify the actual and/or estimated number of readers of the Narri Leaks website, specifying the source of any numbers.

Answer: The only indicator is the weekly data report on Facebook and depending on the story shared the number varied between 5000 and up to 35,000.”

93. His Honour found that this answer was an admission as defined in the Evidence Act 1995 (NSW), being a previous representation made by a party, Mr Stoltenberg, that is adverse to his interests in the outcome of the proceeding, and accordingly the opinion and hearsay rules did not apply to evidence of an admission: Evidence Act, s 81. Again, there is no challenge to this finding.

94. His Honour was entitled to take these admissions into account as part of the evidence from which inferences of downloads could be drawn in order to establish publication and the extent of publication.

Admissions in contemporaneous posts

95. The primary judge found that Facebook posts made by Mr Stoltenberg were replete with references to the wide readership of Narri Leaks, and each of those posts contains admissions to which the hearsay and opinion rules do not apply: Judgment at [141]. Those admissions were made in the context of evidence that Mr Stoltenberg had set up and operated the Facebook page known as Narri Leaks, had access to the activity data recorded being a feature offered by Facebook to page hosts, and had translated that data into posts he authored.

96. His Honour’s conclusion was amply supported by the findings at Judgment [142]-[148], which it is convenient to reproduce in full:

[142]   On 17 June 2015, Mr Stoltenberg stated “the new Ratepayers assoc has since Monday been running a Facebook page called Narri Leaks…from a zero start, the [Facebook page] has had 10,000 hits in 2 days.”

[143]   Also on 17 June 2015, Mr Stoltenberg wrote “we are at near 11,000 hits , we’re now being watched not just by all over the shire , but all over the country , in our 3rd day of existence” … As will become apparent, this is a significant admission by Mr Stoltenberg in the context of his common law qualified privilege defence.

[144]   Also on 17 June 2015, Mr Stoltenberg wrote that:

“We were at 9800 people last night, at 11000 by 2 pm , got to 12,000 by 7pm , then the footy buggered us , stalled at 12,258… Thanks to all the people emailing in material [email protected]… Had 30 emails this afternoon… We are now getting a lot of inboxing people who want to talk not in public on the open page…”

[145]   On 2 July 2015, Mr Stoltenberg wrote:

This page had 21,000 hits in its first 10 days, but we were fudging a bit, not only posting all manner of embarrassing dirty laundry of counsel to draw attention, but We did spend about $400 “boosting” posts all over the state for all the second week.

Not doing either now, because we really do have 719 locals who hit like page to follow and get each post… In Narrabri Shire, we only have about 6000… So about 12% of all council’s ratepayers are actively watching. Our total reach is 2414… They are mostly local… Anyone who has a legitimate complaint, post it here, big chunk of the Shire , nearly every third adult , will see it. (Emphasis added)

[146]   This post refers to the period during which the second and third matters complained of were uploaded to Facebook by Mr Stoltenberg. The admission contained in the post is that “we” (which I infer is in fact Mr Stoltenberg) paid $400 to promote posts via Facebook’s algorithm, making them more visible to a wider audience. Further, Mr Stoltenberg himself states that “719 locals … get each post”. I infer that to access the posts made on the Narri Leaks site it was necessary only to like the site and posts by Narri Leaks, which I find were posts under that title uploaded by Mr Stoltenberg, would automatically appear in a Facebook news feed without any separate step being required. I infer that Mr Stoltenberg’s reference to 719 locals who get each post is a clear admission that by 2 July 2015 there were 719 people in the position Ms Loder explained she was in who would automatically get each Narri Leaks post in their Facebook news feed without visiting the Narri Leaks Facebook page.

[147]   So far as Mr Stoltenberg’s reference to reach is concerned, it was submitted that I was unable to take this matter into account as there was no evidence of what “reach” meant. I reject that submission. There is evidence, from Mr Stoltenberg himself, that the “reach” figures provided in the Facebook business records which were tendered, are capable of demonstrating, at least in a broad way, the numbers of people who had access to Narri Leaks posts on the Facebook page.

[148] In any event, I have drawn inferences from the face of the Facebook business records under section 183 of the Evidence Act. Those records lead me to draw the inference that Facebook records separate interactions between a device connected to the internet and posts on the particular Facebook page, here Narri Leaks, and that those figures are reflected in the business records tendered. I infer from the business records tendered that in the context of a post, the “reach” of the post records the number of people Facebook has recorded as having viewed the post. (Emphasis in original.)

97. Mr Stoltenberg did not challenge any of these findings other than the finding at Judgment [147]-[148] that the Facebook documents about “reach” were capable of demonstrating the number of people who had access to Narri Leaks posts and records the number of people who viewed each publication (ground 7). The question is whether his Honour was entitled to draw the inferences which he did from the Facebook business records.

98. In Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, Leeming JA (Basten and Gleeson JJA agreeing) said at [91]

… s 183 of the Evidence Act authorises a court to draw reasonable inferences from the document itself as well as from other matters from which inferences may properly be drawn. That provision provides that where a question arises about the application of the Act to, inter alia, the operation of s 69 to a document, then the court may “draw any reasonable inferences” from the document as well as from other matters from which inferences may properly be drawn.

99. Here, s 183 permitted the drawing of “any reasonable inferences from” the document “if a question arises about the application of the Act in relation to [the] document”. Given that ultimately there was no objection to the admissibility of the Facebook records, the question which arose from the application of the Act was the identification of any “previous representation made or recorded in the document in the course of, or for the purposes of, the business”: Evidence Act, s 69(1)(b). In this regard, his Honour found that the Facebook activity logs provide cogent evidence of publication of each of the matters complained of, giving the following reasons at Judgment [152]-[155]:

[152] The Facebook activity logs were eventually tendered without objection. It was submitted that I should give those logs little if any weight because of the absence of expert evidence from Mr Bolton’s camp about their meaning. I do not accept that submission. There is evidence, particularly admissions by Mr Stoltenberg himself, that the inference I would otherwise have drawn under s 183 of the Evidence Act about those records is correct. That inference is that each of the matters complained of was downloaded and read by numerous third parties. I have earlier rejected the attempt by Ms Rook and to a lesser extent by Ms Loder to explain or qualify the meaning of those records.

[153]   The Facebook activity logs provide cogent evidence of publication of each of the matters complained of. I more comfortably draw that inference in the absence of Mr Stoltenberg being called to give evidence to explain or qualify that evidence. Mr Stoltenberg’s evidence could not have assisted his case on this issue.

[154]   Those business records establish the following:

(1)   in respect of the first matter complained of, Facebook recorded a “reach” of 661 and “likes, comments and shares” of 83;

(2)   in respect of the second and third matters complained of, Facebook recorded a “reach” of 797 and “likes, comments and shares” of 124;

(3)   in respect of the fourth matter complained of, Facebook business records demonstrate over the relevant week 26 June to 3 July 2015 Narri Leaks having a “total reach” of 2414 and “total page likes” of 719 and 499 described as “people engaged”;

(4)   in respect of the fifth matter complained of, Facebook records show a “reach” of 1900 and “likes, comments and shares” of 157.

[155]   This evidence in and of itself does not prove that a particular person downloaded and read each of the matters complained of, but it is cogent evidence forming part of a platform of facts from which an inference that material has been downloaded and read can properly be drawn.

100. In oral argument, Mr Stoltenberg submitted that the meaning of the word “reach” in the Facebook records “must be aspirational, and it is a calculation perhaps done by Facebook based on how many friends a person has”. This submission may be put aside; counsel for Mr Stoltenberg acknowledged that there was no evidentiary basis for the submission.

101. Next Mr Stoltenberg drew attention to the difference between the Facebook records concerning the “reach” of the posts, and the number of “likes, comments and shares”. Reference by way of example was made to the first matter complained of where the business records of Facebook established that by 20 January 2016 the post had a “reach” of 661 and that 83 “likes, comments and shares” had been added to the post: Judgment [37], [154]. This submission goes nowhere. It may be readily inferred that not all persons viewing a post on the Narri Leaks page will make a response by either clicking “like” or “share” or by adding a “comment” to the post. Those persons who did so are a sub-set of the larger number of persons who viewed the page.

102. The inference drawn by his Honour that in the context of a post, the “reach” of the post records the number of people Facebook has recorded as having viewed the post was reasonably open to be drawn from the Facebook business records and the other evidence of admissions by Mr Stoltenberg in answers to interrogatories and in his contemporaneous posts as to the “reach” of the Narri Leaks web pages.

Jones v Dunkel inference

103. Although Mr Stoltenberg was not called to give evidence to explain or qualify his admissions in his own contemporaneous posts, it was submitted that his Honour erred at Judgment [153] in drawing an inference against Mr Stoltenberg that his evidence on publication could not have assisted him (ground 8). This complaint should be rejected for the following reasons.

104. Of the three conditions referred to by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202 as to when the rule in Jones v Dunkel is applicable, the first and third conditions were satisfied: Mr Stoltenberg would be expected to be called in his case, not by Mr Bolton, and no explanation was offered for his absence as a witness.

105. As to the second requirement in Payne v Parker – that the evidence would elucidate a particular matter – Mr Stoltenberg submitted that this was not satisfied because he did not have specialist knowledge concerning Facebook. The absence of specialised knowledge is no answer in the present case.

106. In Payne v Parker at 202C–D, Glass JA explained this second requirement as follows:

According to Wigmore, par. 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts … might have proved the contrary; would have a close knowledge of the facts …, or where it appears that he had knowledge … I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from a failure to call him. (Citations omitted.)

107. As indicated, Mr Stoltenberg translated the activity data recorded by Facebook into posts he authored, including specific reference to the “total reach” of 2,414 on 2 July 2015: see [97] above. Plainly, his evidence would have elucidated his use of the word “reach”, he could have put a true complexion on the facts, and it appears from his other posts that he had knowledge of the facts concerning the reach of the Narri Leaks web pages, including the number of hits. There was no error by the primary judge in drawing a Jones v Dunkel inference that Mr Stoltenberg’s evidence on publication could not have assisted him.

Oral evidence of publication outside the Shire: grounds 4, 9 and 10

108. Mr Stoltenberg submitted that the primary judge erred in taking into account as part of the “platform of facts”, the evidence given by Mrs Bolton and Mr Webb to the effect that they had engaged in conversations with persons outside the Narrabri Shire about Narri Leaks and its attacks on Mr Bolton. The evidence of Mrs Bolton included conversations with a niece in Adelaide and relatives in Singleton. She also gave evidence that Mr Brad Pascoe, who commented on the third matter complained of, lived in Wellington at the time of the post and now lives in Junee. Mr Webb gave evidence of conversations at local government conferences outside the Narrabri Shire, including at a mayoral function on the Gold Coast. It was submitted that this evidence was too non-specific and ought to have been disregarded.

109. The conversations which both Mrs Bolton and Mr Webb gave evidence about occurred nearly three years before they gave evidence. It can be accepted, as Mr Bolton acknowledged in his submissions, that their evidence was in general terms and they could not recall the individual posts being discussed. Mr Bolton submitted that the primary judge did not rely on this evidence as proof of an actual instance of a publication of a particular matter complained of and “took the evidence into general account as part of a platform of facts suggesting significant publication”. That submission should be accepted. I do not read the passage at Judgment [156] as suggesting that this evidence was proof of an actual instance of a publication of a particular matter complained of.

110. Insofar as Mr Stoltenberg complained that this evidence was outside the particulars, that complaint should be rejected for the reasons given above in relation to the particulars point.

Failure to assess publication individually for each post: ground 11

111. Mr Stoltenberg submitted that the primary judge failed to assess the issue of publication individually for each post. This ground is directed to challenging his Honour’s conclusion on publication at Judgment [157] as follows:

On the basis of the platform of facts I have described, I infer that each of the matters complained of was published by Mr Stoltenberg, in that the material which he admits he uploaded was downloaded and viewed by third parties.

112. The reference by his Honour to a “platform of facts” adopted the language used by Martin CJ in Sims v Jooste (No 2) at [18], citing Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294, in relation to proof of publication in cases involving the internet:

113. The “platform of facts” from which his Honour drew an inference that the five matters complained of were downloaded by somebody have been referred to above at [33]. Taken together, the admissions by Mr Stoltenberg as to the number of “hits” on the Narri Leaks site – 9,800 in the first week and 21,000 in the first 10 days, that the estimated number of readers in the period June 2015 to January 2016 depending on the story varied between 5,000 and up to 35,000, that Narri Leaks was being watched all over the State, that $400 was spent “boosting” posts all over the State for all of the second week of publication in June 2015, that on 2 July 2015 719 “locals” out of a “total reach” of 2,414 hit the “Like” button; the inferences drawn from the Facebook records as to “reach” of the posts; and the evidence of Mrs Bolton and Mr Webb of readership of the Narri Leaks website by persons outside the Narribri Shire, amply support his Honour’s findings that the matters complained of were published by Mr Stoltenberg.

114. As to the extent of publication, there was no error by his Honour in finding that publication of the matters complained of extended to persons beyond the Narrabri Shire. Mr Stoltenberg acknowledged in his post on 2 July 2015 that the number of ratepayers in the Narrabri Shire was about 6,000: Judgment at [145]. The number of ratepayers may be contrasted with the evidence of the number of “hits” and readers of the Narri Leaks site. Importantly, there were admissions by Mr Stoltenberg concerning the number of “hits” on the Narri Leaks site of 9,800 in the first week, 12,258 readers on 17 June 2015, and 21,000 “hits” in the first 10 days, and that the estimated number of readers in the period June 2015 to January 2016, depending on the story, varied between 5,000 and up to 35,000.

(1) No requirement of reciprocity of interest

181. Unlike the position at common law, there is no requirement of reciprocity of interest for the statutory defence under s 30: Cush v Dillon at [11]; Roberts v Bass at [62]; Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 at [14], fn 24. As counsel for Mr Bolton acknowledged, the finding by the primary judge that there was such a requirement was an error. However, the error was not material given that his Honour proceeded to address as a discrete issue whether Mr Stoltenberg’s conduct was reasonable in the circumstances: Defamation Act, s 30(3).

(2) The presumption of honesty

182. At trial Mr Stoltenberg submitted, with reference to the remarks in Roberts v Bass at [96] concerning malice, that there is a presumption that he acted honestly and with a proper purpose, and therefore he believed what he was writing. The primary judge rejected this submission that the Roberts v Bass presumption of honesty is a matter to be taken into account as an implication from s 30(4), in addressing the matters concerning reasonableness in s 30(3).

183. Mr Stoltenberg repeated this submission on appeal. The submission continued that if, for the purposes of reasonableness under s 30(3), the defendant was required to prove honesty of purpose, then the intention of Parliament that the onus of proof of malice under s 30(4) is on the plaintiff would be frustrated.

184. Roberts v Bass involved the defence of qualified privilege at common law. Gaudron, McHugh and Gummow JJ said at [96]-[97], with respect to malice:

[96] Statements in the cases to the effect that the defendant will lose the protection of the privilege unless he or she had an honest belief in the truth of what that person published must be understood in the light of two matters. First, honesty of purpose is presumed in favour of the defendant. It is for the plaintiff to prove that the defendant did not use the occasion honestly or, more accurately, for a proper purpose. Secondly, in many – perhaps most – cases, a defendant who has no belief in the truth of what he or she publishes will know or believe that it is untrue. ...

[97] Because honesty is presumed, the plaintiff has the onus of negativing it. That is to say, the plaintiff must prove that the defendant acted dishonestly by not using the occasion for its proper purpose. Unless that is kept in mind, there is a danger that reference to the honesty of a defendant will reverse the onus of proof. …

185. The concepts of reasonableness and malice are distinct features of the statutory defence under s 30, with the onus of proof of each placed on different parties.

186. Section 30(4) provides that if a plaintiff establishes malice, then the statutory defence of qualified privilege is lost. Thus, the plaintiff has the onus of proof of malice. By contrast, s 30(1)(c) read together with s 30(3) place the onus of establishing reasonable conduct on the defendant.

187. The remarks in Roberts v Bass at [96] concerning the significance of honest belief in the truth of what the defendant published for the purposes of malice, were not directed to the concept of reasonableness under the statutory defence in s 30(3). Nor do those remarks relieve a defendant of his or her burden under s 30(1)(c) of establishing reasonable conduct in publishing the matters complained of. There was no error in the primary judge’s approach to assessing reasonableness under s 30(3).

188. For completeness, it should be observed that the premise of this complaint – that Mr Stoltenberg believed what he was writing – was contradicted by Mr Stoltenberg’s answers to interrogatories which revealed that he did not believe in the truth of the imputations that were found to be published.

(3) Failure to assess the matter published

(4) Failure to assess reasonableness of each publication individually

189. These two complaints are related.

190. As s 30(1) of the 2005 Act reproduces s 22(1) of the 1974 Act, it has been accepted that it is appropriate to have regard to the jurisprudence developed in that context: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325 at [251] (McColl JA, Beazley P and Simpson AJA relevantly agreeing).

191. In Morgan v John Fairfax & Sons (No 2), Hunt AJA summarised a number of propositions at 387-388 in relation to the requirement of s 22(1)(c) of the 1974 Act that the conduct of the defendant in publishing the matter was reasonable in the circumstances:

(1)   The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation.

(2)   If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case, and perhaps also that discussed in Collins v Ryan) have believed in the truth of that imputation.

(3)   If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:

(a)   that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and

(b)   that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.

If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s 22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australian Broadcasting Commission at 712 (whether the defendant “knew whether he was likely to convey a misleading impression”); Austin v Mirror Newspapers Ltd (at 362) (Privy Council).

(4)   The defendant must also establish:

(a   that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;

(b)   that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;

(c)   that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and

(d)   that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.

The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum[1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd[1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd(1987) 9 NSWLR 44 at 55-56. …

192. It is not in dispute that the primary judge correctly stated, with reference to Morgan v John Fairfax and Sons Ltd (No 2), that the Court was obliged to assess the reasonableness of publishing each matter complained of individually: Judgment at [225].

193. Mr Stoltenberg contended that the primary judge erred in assessing the reasonableness of the publications because he failed to consider the “matter” published as opposed to the imputations; that is, his Honour did not assess the reasonableness of the publications by reference to the actual words published rather than the imputations found to be conveyed. I do not agree.

194. That his Honour considered the actual language of the matters published, can be seen from his finding that the language used in the relevant posts was excessive. That finding at Judgment [230] was in these terms:

I also find that the language used in the relevant posts was excessive and the publication itself lacked reasonableness. It is not reasonable to make the allegations of unlawful and/or corrupt conduct the subject of this case in a public Facebook page, open to the world, without seeking any comment from Mr Bolton first. In the absence of any evidence from Mr Stoltenberg I am not satisfied that he has discharged his onus of proving that his conduct was reasonable.  

195. Mr Stoltenberg further submitted that his Honour failed to consider whether it was reasonable to convey those matters that Mr Stoltenberg did intend to convey, as established by the tendered answers to interrogatories, and erroneously focused on the imputations which were found to have been conveyed. This submission was directed to the first, second and third matters complained of.

196. As to these three matters, it is necessary to refer to the tendered answers to interrogatories, in which Mr Stoltenberg said that he “intended to convey that the crucial vacant job of General Manager ought to have been awarded on merit to the most capable and experienced candidate”, and that his belief in relation to each such imputation was:

.. that the two previous times the position of General Manager had become vacant, it was not filled on merit. It was my understanding that the best applicant for the position of General Manager was not offered an interview, instead one with scant experience was appointed and the Plaintiff had sung her praises to me in a chance meeting in the main street of Narrabri a few days before Christmas 2013. I told the Plaintiff in a chance meeting that most of the constituents did not think that the best applicant had been appointed.

197. Contrary to Mr Stoltenberg’s submission, his Honour had regard to the imputations that Mr Stoltenberg intended to convey. His Honour said at Judgment [226]:

I reject Mr Stoltenberg’s submission that he has discharged his onus by proving that the imputations he did intend to convey were the subject of reasonable conduct on his part. There was no evidence as to whether Mr Stoltenberg took any steps to prevent the pleaded imputations from being conveyed or was otherwise acting reasonably in publishing any of the matters complained of.

198. His Honour’s approach was consistent with the third proposition stated by Hunt AJA in Morgan v John Fairfax & Sons (No 2) at 387. Whilst his Honour implicitly accepted the reasonableness of the imputations which Mr Stoltenberg intended to convey, he found that Mr Stoltenberg failed to establish that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed, for the reasons given at Judgment [226]-[233]. There was no error in that finding.

(5) Absence of honest belief in the imputations

199. Mr Stoltenberg submitted that the finding at Judgment [226], that Mr Stoltenberg had failed to establish that he had an honest belief in the truth of the imputations which were found to be conveyed, involved an erroneous reversal of the onus of proof under s 30(3). I do not agree.

200. Having rejected Mr Stoltenberg’s argument based on a presumption of honesty, his Honour proceeded to deal with the substantive submission that Mr Stoltenberg believed what he was writing. Whether the defendant has an honest belief in each of the imputations found to have been conveyed is a circumstance that the court may consider relevant under s 30(3)(j). As McColl JA said in Cummings v Fairfax Digital Australia & New Zealand Pty Ltd at [257]:

While s 30(3) lists matters which a court may take into account in determining the reasonableness of a defendant’s conduct, the court is not confined to those matters. Other relevant matters may include the manner and extent of publication, the degree of care exercised and any knowledge by the defendant that a defamatory meaning may be conveyed. In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. (Citations omitted.)

201. In finding that Mr Stoltenberg had failed to establish that he had an honest belief in each of the imputations found to have been conveyed, his Honour was correctly applying the onus of proof under s 30(3), which is on the defendant, to establish the reasonableness of the publication.

(6) Failure to contact the plaintiff prior to publication

202. Mr Stoltenberg submitted, with reference to Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 at [83], that the primary judge erred in finding that the failure to contact Mr Bolton prior to publication was “independently fatal” to the statutory defence.

203. In Enders v Erbas, Tobias AJA (Ward and Leeming JJA agreeing) said at [83], with respect to the matters referred to in s 30(3):

[83] … Each of the matters in the so called "checklist" are matters which, when determining whether the conduct of the defendant to publish the matter complained of is reasonable, "may" be taken into account. The statute does not require that they must be taken into account and in any event they could only be taken into account where it was relevant to do so for the purpose of determining whether the conduct to the defendant was reasonable in the circumstances.

204. This statement does not assist Mr Stoltenberg. And, as counsel for Mr Stoltenberg properly accepted, the failure to contact Mr Bolton prior to publication was relevant to the reasonableness of the publication in the present case. Importantly, the evidence did not establish that the seeking or publication of a response by Mr Bolton was impracticable, or that it was unnecessary to give Mr Bolton an opportunity to respond, particularly to allegations of corruption and inappropriate conduct.

205. The observation by his Honour that Mr Stoltenberg’s failure to contact Mr Bolton prior to publication as “independently fatal” to the statutory defence of qualified privilege, is to be read together with the immediately following paragraph at Judgment [229], which it is convenient to extract again:

[229] Whilst I accept that in cases that do not involve mass media publications, it is not necessarily fatal to a defence under s 30 for the defendant to speak to or contact the plaintiff or a representative of the plaintiff prior to publication, in all the circumstances here, Mr Stoltenberg has failed to prove that he acted reasonably. It is common ground that Mr Stoltenberg made no attempt to contact Mr Bolton. There is no basis in my view for concluding that Mr Stoltenberg is relieved from the usual obligations to check defamatory allegations because he was running a public Facebook page rather than a separate website. (Emphasis added.)

206. On a fair reading of his Honour’s reasons he did not treat the failure to contact Mr Bolton prior to publication as determinative of the reasonableness of the publications. Rather, his Honour found that “in the circumstances here”, being a reference to the findings at Judgment [226]-[228], Mr Stoltenberg had failed to prove that he acted reasonably. Mr Stoltenberg’s complaint concerns the weight given to his failure to contact Mr Bolton prior to publication. No error has been demonstrated.

(7) Failure to take into account whether non-response from Mr Bolton

207. Mr Stoltenberg submitted that his Honour failed to take into account other circumstances, as referred to in s 30(3)(h), in assessing the reasonableness of the publication. Reference was made to two matters. First, the documentary evidence by Mr Stoltenberg for the proposition that he had sought a response from Mr Bolton about other matters and Mr Bolton had not responded, specifically to certain text messages from Mr Stoltenberg on 16 April 2014, 21 August 2014, 19 January 2015 and 10 February 2015, among a larger number of texts sent in the period from 2014 to November 2015. Second, the evidence given by Mr Bolton that he no longer wished to engage with Mr Stoltenberg, and that Mr Bolton was invited to respond but did not respond to the Narri Leaks page, and that Mr Bolton was invited to attend but did not attend a ratepayers meeting.

208. Contrary to Mr Stoltenberg’s submission, his Honour took the documentary tender by Mr Stoltenberg into account finding at Judgment [231]-[232]:

[231] … The second volume consisted of a large number of text messages between Mr Stoltenberg and Mr Bolton, which ended prior to the Narri Leaks Facebook page being started. Some selected documents about the Narrabri Shire Council were also included. No evidence was given about what, if any, effect anything in these two large lever arch folders had upon any of Mr Stoltenberg’s actions. Little attention was paid in written or oral submissions to any one of these voluminous documents, although some submissions were made about the Narri Leaks posts which had been tendered.

[232] The documentary tender on the First Defendant’s part sits without any relevant anchor. I am not satisfied that Mr Stoltenberg had any one or any combination of those documents in his mind when publishing any of the matters complained of.

There is no error in these findings.

209. Nor is there any merit in the submission that, notwithstanding the often angry messages sent by Mr Stoltenberg to Mr Bolton over the years, the fact that Mr Bolton no longer wished to engage with him rendered the publication of the matters complained of reasonable, given the allegations of corruption and inappropriate conduct.

210. The challenge to the finding that the publication of the matters complained of was unreasonable has not been made out.

Notice of contention

211. Given the conclusions above with respect to the defence of statutory qualified privilege, it is not necessary to address Mr Bolton’s notice of contention directed to seeking to uphold his Honour’s rejection of this defence on additional grounds.

Conclusion on appeal

212. The appeal by Mr Stoltenberg has failed. There is no reason why costs should not follow the event: UCPR, r 42.1.

B. Ms Loder’s application for leave to appeal and Mr Bolton’s application for leave to cross-appeal

(a) Ms Loder’s application for leave

213. The draft notice of appeal seeks to challenge the primary judge’s finding that a later comment by Ms Loder following a defamatory post by Mr Stoltenberg on the Narri Leaks Facebook page (the subject of the second matter complained of) was sufficient to make her liable as a secondary publisher of the defamatory post.

214. Mr Bolton responded by serving a draft notice of contention seeking to uphold the primary judge’s decision on two bases.

(b) Mr Bolton’s application for leave

215. Mr Bolton’s draft notice of cross-appeal challenges the primary judge’s findings that Ms Loder did not publish the first and fifth matters complained of. If those challenges are established, Mr Bolton seeks a reassessment of the damages payable by Ms Loder.

216. Counsel for Mr Bolton indicated that the Court need not determine the issues raised by Mr Bolton’s notice of contention and application for leave to cross-appeal if the Court refused Ms Loder’s application for leave to appeal.

Background

217. Shortly after the commencement of the Narri Leaks Facebook page, posts were published on 16 and 17 June 2015 answering the rhetorical question “But who is Narri Leaks?”. The post on 17 June 2015 stated:

… Who is Narri Leaks, it’s a panel of 4 led by Ann Loder and 3 others who for the moment won’t be named, a farmer, an accountant and a lawyer. That will do for the next couple of weeks.

218. At trial, the case against Ms Loder was put on two bases, but only the first is of present significance: Judgment at [161]-[162]. Mr Bolton contended that Ms Loder was liable for publication of the defamatory matter on the Narri Leaks Facebook page by reason of her subsequent endorsement or adoption of the Narri Leaks posts which were published by Mr Stoltenberg.

Primary judge’s reasons

219. The primary judge addressed the secondary publisher case against Ms Loder at Judgment [165]-[169]:

[165]   I will first address the claim that Ms Loder is liable for publication of the matters complained of by reason of her subsequent endorsement or adoption of the Narri Leaks posts which were published by Mr Stoltenberg.  As Isaacs J stated, “[A]ll who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication”: Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 at 364. This principle extends to those who encourage or authorise a primary author: Ives v The State of Western Australia [2010] WASC 339 at [7]; Kenyon v Sabatino [2013] WASC 76 at [14]-[17]; Watts v Times Newspapers Ltd [1997] QB 650 at [60]-[63]; Brown on Defamation (2nd ed) at [7.2]. 

[166]   A party may be a secondary participant and have responsibility for the continued publication of defamatory material where they consented to, approved of, adopted, promoted or ratified the defamatory material: Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 at 69,193; Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130 at [130]-[133]; Rana v Google Australia [2013] FCA 60 at [51]; Visscher v Maritime Union of Australia (No 6) at [20], [22], [29]; Wishart v Murray.  

[167]   Liability as a secondary publisher for failure to remove defamatory material requires that there be a failure to take advantage of an opportunity to remove the allegedly defamatory material which failure shows consent, approval, adoption or promotion of the presence of the statement: Google Inc v Duffy at [131]; Urbanchich v Drummoyne Municipal Council at [7]; Byrne v Deane [1937] 1 KB 818; Rana v Google Australia at [51]; Visscher v Maritime Union of Australia (No 6) at [29].

[168]   This requires proof that the defendant is aware of the existence of the defamatory material, had been requested to remove it, had the ability to remove it and had failed to remove it within a reasonable period, leading to the inference that the defendant accepted responsibility for the continued publication of the defamatory material: Frawley v New South Wales [2006] NSWSC 248 at [15].

[169]   If by words or conduct a person draws the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication. In Google Inc v Duffy, Kourakis CJ said:

[133]   There is a connection between the concept of consent, approval and adoption postulated in Urbanchich and the concept of authorisation explained by Gaudron J in Thompson.  Consent, approval or authorisation to display defamatory material, if given in advance, will generally render the owner or occupier of the property a publisher and primary participant.  Positive acts which demonstrate approval, adoption or promotion of the presence of publication, at least if publically communicated, will serve to make the building owner or occupier liable as a participant in the publication.  Approval, adoption or promotion cannot practically be given without knowledge of the presence of defamatory material, and by reason of that knowledge the building owner or occupier may be liable either as a publisher depending on the particular act, or as a secondary participant in the publication of another.  Adding to the poster in a way which highlights it or points it out may be an act of authorisation which attracts liability.  If one by words or conduct draws the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication: Hird v Wood (1894) 38 Sol J 234.  Practically, the drawing of attention to a defamatory statement cannot occur without the person knowing, or being in a position to know, of the presence of the defamatory material in what is being pointed out.

220. Applying the test stated by Kourakis CJ in Google Inc v Duffy (2017) 129 SASR 304; [2017] SASFC 130 at [133], the primary judge rejected Mr Bolton’s case that “liking” a post, on the evidence before him, constituted a level of endorsement of the publication by Mr Stoltenberg to render Ms Loder also liable as a publisher: Judgment at [171]. That finding disposed of the case against Ms Loder, except with respect to the third matter complained of.

221. As to the third matter, the primary judge found at Judgment [173] that Ms Loder’s comment on 27 June 2015 was in a different category, given that Ms Loder wrote:

Ann Loder: “…Anyone else agree about getting ICAC and The Minister for local government involved need to like this post. We need to let Council know we are serious and are not going to be intimidated by them.” (Emphasis in original.)

222. The primary judge gave the following reasons at Judgment [174]-[175] for finding that Ms Loder was liable for secondary participation in the publication:

[174]   The comment is a specific endorsement of the second matter complained of. It is plain that Ms Loder’s comment, together with the second matter complained of, was downloaded and read by others. So much is apparent from the comment stream itself which forms part of the third matter complained of. This comment falls squarely within the class of conduct Kourakis CJ described in Google Inc v Duffy as secondary participation in publication.

[175]   My finding is that Ms Loder has, by words and conduct in this instance, drawn the attention of another to defamatory words. Adding her comment in the way she did, urging others to express their agreement with the post I have found to convey a defamatory imputation, was an act of authorisation which attracts liability. She thereby is liable for the second matter complained of. There has been participation in the relevant sense in the publication of the second matter complained of by Ms Loder. It is not to the point that Ms Loder did not intend to publish the defamatory material or that her attention was focussed on part only of the second matter complained of.

Draft notice of appeal

223. Ms Loder’s draft notice of appeal contains four grounds directed to the single issue of whether the comment by Ms Loder following a defamatory post by Mr Stoltenberg on the Narri Leaks Facebook page was sufficient to make her liable as a secondary publisher of the defamatory post.

224. Ground 1 asserts that Ms Loder’s comment did not amount to consent, approval or ratification by her of the defamatory material in the second matter complained of. Ground 2 asserts that the comments’ stream to the defamatory post – the subject of the second matter complained of, was not sufficient to infer that Ms Loder’s comment thereby drew the attention of others to the defamatory post. Ground 3 asserts that there must be some responsibility accepted for the ongoing publication of the defamatory matter to others, and that his Honour failed to take this into account. Ground 4 asserts that Ms Loder did not intend to publish the defamatory matter and that her attention was focused on the part only of the matter complained of and that his Honour failed to take this into account.

Submissions

225. Counsel for Ms Loder submitted that the proposed appeal raised a question of public importance and a clear issue of principle in relation to the liability of a third-party commentator on social media platforms, such as Facebook, for the defamatory publication of another person.

226. It was further submitted that the findings against Ms Loder in the present case as a third-party commentator may cause any potential commentator to be reluctant to speak where a primary post is potentially defamatory and that would promote a chilling effect on the fine balance between the protection of reputation and freedom of speech.

Disposition of application

227. Contrary to the submissions of Ms Loder, the proposed appeal does not involve a question of principle, or of public importance. The principles sufficient to make a person liable as a secondary publisher of a defamatory matter are well-established. Many of the cases relate to trespass to property, where hardcopy defamatory material is affixed to a building or structure maintained by another. However, as Kourakis CJ observed in Google Inc v Duffy at [124], the analogy of the property cases with the liability of a person who posts comments on a webpage is far from perfect.

228. In the property cases such as, Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Rep 81-127 and Byrne v Deane (1937) 1 KB 818, the liability of the owner of the building or structure requires proof that the defendant is aware of the existence of the defamatory material, had been requested to remove it, had the ability to remove it and had failed to remove it within a reasonable period, leading to the inference that the defendant accepted responsibility for the continued publication of the defamatory material: Frawley v New South Wales[2006] NSWSC 248 at [15] (Simpson J).

229. By contrast, the present case concerns the liability of a person who posts a comment on a webpage.

230. Google Inc v Duffy involved the liability of hosts of internet servers and internet search engines. That is a different factual circumstance to the present case. In Google Inc v Duffy the plaintiff found that a search of her name resulted in defamatory extracts/snippets, as well as hyperlinks to a third-party website called “The Rip-Off Report” and Google had refused to take the material down. Given the volume of data passing through, Google could not have known of the defamatory material, but became liable once it was put on notice and refused to take action to remove the defamatory material. Kourakis CJ remarked at [124] that “… the need to ensure coherence in the approach to internet communications requires some consideration of the analogy” with the “trespass” cases as his Honour described them, before referring to Byrne v Deane and Urbanchich. The critical reasoning of Kourakis CJ at [133], which the primary judge set out in his reasons at Judgment [169], is reproduced above at [219].

231. Ms Loder does not complain that the primary judge misstated the principles relating to her participation in the publication of the third matter complained of, except for one aspect of the remarks of Kourakis CJ in Google Inc v Duffy at [133], where his Honour cited Hird v Wood (1894) 38 Sol J 234 for the proposition that “[I]f one by words or conduct draws to the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication”.

232. Hird v Wood involved a placard containing allegedly defamatory material put up on a roadway near where a gala event was taking place, and the defendant took up position on a stool and continually pointed to the placard with his finger and thereby attracted it to the attention of those who passed by. The trial judge held that there was no evidence of publication and directed a verdict for the defendant. On appeal, Lord Esher MR, and Lopes and Davey LJJ held that there was evidence of publication which ought to have been left to the jury and ordered a new trial.

233. Read in the context of the passage in Google Inc v Duffy at [133], the statement by Kourakis CJ about which Ms Loder complains is unexceptional. The context of the statement was the previous sentence in [133] referring to the trespass cases and the potentiality that conduct which highlights or points to defamatory material may amount to an act of authorisation which attracts liability.

234. Ms Loder next submitted that the primary judge misapplied the principles stated in Google Inc v Duffy by limiting his consideration to certain parts of the comments posted by Ms Loder and not taking into account her subjective intentions. The latter was a reference to Ms Loder’s evidence in cross-examination that it was not her intention to give readers the understanding that she was urging them to like the post she had made, although she agreed that “looking back on that” this was her intention.

235. On a fair reading of his Honour’s reasons, I do not agree that his Honour limited his consideration to certain parts of the comments posted by Ms Loder. His Honour had regard to Ms Loder’s comments in the context of the whole of the third matter.

236. As to the relevance of Ms Loder’s subjective intentions, reliance was placed upon Byrne v Deane, however that case does not assist Ms Loder.

237. In Byrne v Deane the majority of the English Court of Appeal (Greer LJ at 830 and Greene LJ at 838) held that the proprietor and the secretary of a golf club were responsible for the continued publication of a defamatory poem about the plaintiff affixed to an internal wall of the Club house. The facts were that it was necessary to obtain the consent of the secretary to post such documents and the secretary had left it on the wall as she “saw no harm in it”. The secretary’s evidence that she saw no harm in leaving the defamatory poem on the wall of the clubhouse was relevant to whether the secretary had accepted responsibility for the continued publication of the defamatory matter, which the majority found she had.

238. Counsel for Ms Loder acknowledged that he could not point to any authority for the proposition that the subjective intentions of the person posting a comment was relevant to whether by that conduct the defendant consented to, or approved of, or adopted, or promoted, or ratified the defamatory material. It should be observed that Ms Loder did not seek to avoid liability as a subordinate publisher by proving that she did not know, and could not reasonably have known, that the publication was likely to contain defamatory material: cf Google v Duffy at Kourakis CJ at [102], Peak J at [354], [582].

239. This is a clear case for refusing leave. No question of principle, or of public importance is involved. There has not been shown to be any injustice to the applicants which is reasonably clear, going beyond what is merely arguable: JaycarPty Ltd v Lombardo [2011] NSWCA 284 at [46];Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

240. There is an additional consideration here. This Court has emphasised the need for restraint in granting applications for leave to appeal in cases where the amount in issue is below the threshold of $100,000: Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126 at [4]-[5]; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at [2]-[3]; and Be Financial at [37]-[39]. That consideration is particularly significant in this case, given the small amount at issue of $10,000.

241. Leave to appeal should be refused. It follows that it is not necessary to address Mr Stoltenberg’s draft notice of contention.

Draft notice of cross-appeal

242. Mr Bolton’s application for leave to cross-appeal was defensive only. As Ms Loder’s application for leave to appeal should be refused, it is not necessary to address the proposed cross-appeal. The application for leave to cross-appeal should be dismissed.

Costs of the leave applications

Ms Loder’s leave application

243. Ms Loder’s application for leave to appeal has failed. There is no reason why costs should not follow the event: UCPR, r 42.1.

Mr Bolton’s leave application

244. As to Mr Bolton’s application, there are good reasons for displacing the usual rule that costs follow the event: UCPR, r 42.1. First, Mr Bolton’s leave application was entirely defensive, having been filed in response to Ms Loder’s leave application.

245. Second, whilst it has not been necessary for the Court to determine the merits of this application, it is not appropriate to describe the position taken by Mr Bolton as a capitulation.

246. Third and related to the previous point, both parties acted reasonably in commencing and defending Mr Bolton’s leave application, and the conduct of the parties continued to be reasonable until the further pursuit of the leave application became futile: Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6.

247. The proper exercise of the Court’s discretion in the present case is that there should be no order as to the costs of Mr Bolton’s application for leave to cross-appeal. This is a case where a supervening event, namely the refusal of leave with respect to Ms Loder’s proposed appeal, removed the subject of the dispute with respect to Mr Bolton’s proposed cross-appeal.

Conclusion and orders

248. The appeal by Mr Stoltenberg has failed. Ms Loder’s application for leave to appeal should be refused. Mr Bolton’s application for leave to cross-appeal should also be refused.

249. I propose the following orders:

2018/334329 (Mr Stoltenberg’s appeal)

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs.

2018/324176 (Leave to appeal/cross-appeal)

3. Summons seeking leave to appeal filed 21 November 2018 be dismissed with costs.

4. Cross-summons for leave to cross-appeal filed 31 January 2019 be dismissed with no order as to costs.

250. BRERETON JA: I agree with Gleeson JA.

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Amendments

26 March 2020 - Amendment to Catchwords

Decision last updated: 26 March 2020