Turtur AO v Connor

[2021] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

TURTUR AO v CONNOR

[2021] SADC 127

Judgment of her Honour Judge Schammer  

17 November 2021

DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION

DEFAMATION - PUBLICATION - GENERALLY - INTERNET PUBLICATIONS

DEFAMATION - OTHER DEFENCES - TRIVIALITY

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - SPECIAL MATTERS TO BE CONSIDERED BY JURY - AGGRAVATION - WHETHER FACTS SHOWING MALICE

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - SPECIAL MATTERS TO BE CONSIDERED BY JURY - AGGRAVATION - CONDUCT OF THE PARTIES

Michael Turtur AO (Applicant) is an Olympic Cycling Gold medallist and a well-known South Australian sporting identity. From 1999 to 2020, he served as the Race Director of the professional cycling race conducted annually in South Australia known as the 'Tour Down Under' (TDU). He is widely recognised as being the creator of that successful event.

Francene Connor (Respondent) is a marketing and communications consultant, who has previously served as an elected member on the Adelaide City Council and on the Board of the South Australian Tourism Commission (SATC).

On 30 March 2019, the Respondent posted three separate messages on her Facebook profile (the posts), wherein she stated, inter alia, that despite widespread media reporting to the contrary, her friend, David MacFarlane, now deceased, and not the Applicant, had conceived the idea for the TDU and lauded Mr MacFarlane for his unrecognised hard work in bringing the TDU to its fruition. She made other comments, referable to the Applicant.

On the relevant date, the Respondent's Facebook profile was 'public' and she had approximately 885 Facebook friends, many of whom held positions in government, tourism and the media. Eight persons were 'tagged' into the first post. Screenshots taken of the posts on 19 June 2019 show that as of that date 10 people, other than the Respondent, had made comments with respect to the posts, and a further 30 (different) people had reacted to the first post.

The Applicant and his partner, Ms Pisani, read the posts on 31 March 2019. The Applicant was angry and upset as he perceived the posts painted him as a liar and a fraud. However, he elected not to take any action with respect to the posts at that time, as he was concerned any negative publicity may impact on his ability to renew a contract held by his company, Bikesport Australia Pty Ltd and the SATC, relevant to him remaining Race Director for the 2020 TDU. The contract was renewed in October 2019, and the Applicant completed his final TDU as Race Director in January 2020.

The Respondent first learned of the Applicant's concerns with respect to the posts on 1 April 2020, more than a year after the posts were made, when she received a letter from the Applicant's solicitors dated 27 March 2020 (Concerns Notice). The Concerns Notice outlined the defamatory imputations the Applicant claimed were conveyed by the posts and demanded damages, including aggravated damages, and a public apology, in terms acceptable to him.

This action was issued on the same day, namely 27 March 2020. By the action, the Applicant alleges that as a consequence of the publication of the posts, he has been greatly injured in his credit, reputation and profession; and has been brought into public odium, scandal and contempt. He claims damages in defamation, including aggravated damages.

As to the claim for aggravated damages, the Applicant alleges that the Respondent made the posts, knowing of the falsity of the imputations contained therein, with malice and for an improper and ulterior motive. The Applicant alleges the Respondent specifically targeted recipients who held positions of influence and/or seniority at all levels of government and that the Respondent held animus towards him arising from what transpired at a Board Meeting in about 2002 or 2003, being the only time he had met or spoken to the Respondent, other than with respect to this action.

The Respondent denies the posts were published and/or contain the defamatory imputations as alleged. The Respondent initially pleaded the defences of qualified privilege, both at common law and pursuant to s 28 of the Defamation Act 2005 (SA) (the Act) and the defence of triviality pursuant to s 31 of the Act. The Respondent abandoned any defence based on qualified privilege shortly prior to trial.

The Applicant did not call evidence at trial from anyone, other than his partner, to the effect that they had either seen and/or comprehended the posts. The Applicant did not call any evidence to establish the 'grapevine effect'. The Applicant called no evidence to demonstrate that the posts had, in fact, caused damage to his reputation.

Held:

1.  The Respondent published the posts.

2.  The first post contains an imputation defamatory of the Applicant, namely that contrary to media reports, it was Mr MacFarlane, not the Applicant, who created the concept for the TDU and that the Applicant had falsely taken credit for having done so. This implies dishonesty on the part of the Applicant.

3.  The second post contains an imputation defamatory of the Applicant, namely that he had treated local mayors and sponsors poorly.

4.  The defamatory imputations are false.

5.  The third post is not defamatory of the Applicant.

6.  At the time of the posts, the Applicant was, and remains, highly regarded within the community for his contribution to the sport of cycling, his role in creating the concept for the TDU and his many years of stellar service as the inaugural and long serving Race Director of the TDU.

7.  At the time of the posts, the Applicant had, and continues to have, a high reputation for honesty and integrity.

8.  The posts were potentially accessible to a wide audience for a period of 1 year and 2 days. That potential audience included the Respondent's 885 Facebook friends, Facebook friends of those 'tagged into' the first post (depending on the users' privacy settings) and the general public, had they conducted an appropriately targeted search on Facebook and/or on another internet search engine.

9.  The Respondent's Facebook friends included many persons who were prominent and/or influential in government, business and/or sporting circles.

10. While the potential audience for the posts was extensive, it is likely that the majority of persons who in fact saw and read the posts did so soon after the posts were made, having regard to the manner in which material is distributed to Facebook users' news feeds, and the ever changing and growing volume of information 'fed' to Facebook users' news feeds.

11. The very limited number of people who interacted with the posts, and the fact there was no media response to the posts until after this action was issued, demonstrates that only a very small proportion of the potential audience in fact read and comprehended the posts.

12. The Respondent has not established the defence of triviality.

13. The Applicant suffered genuine feelings of distress, hurt and anger as a result of the posts and was particularly concerned that many of the Respondent's Facebook friends were people whose view of him was important to him.

14. It is appropriate for a modest award of damages to be made to vindicate the Applicant and his reputation.

15. The Applicant has not established that, at the time the Respondent made the posts, she was acting with malice or ill will towards the Applicant.

16. The Applicant has not established, in any event, that he had a reasonable belief that the Respondent held animus against him.

17. The Applicant is not entitled to aggravated damages.

18. General damages assessed in the sum of $30,000.

Orders

1.  Judgment in favour of the Applicant as against the Respondent in the sum of $30,000.

2.  I will hear the parties as to costs and interest.

Defamation Act 2005 (SA) ss 28, 31, 32, 34, 36; Defamation Act 2005 (Vic) s 33; Defamation Act 2005 (Qld) ss 33, 36; Defamation (Miscellaneous) Amendment Act 2020 (SA); Defamation Act 1975 (NSW) s 13, referred to.
Jones v Dunkel (1959) 101 CLR 298; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; Sims v Jooste (No. 2) [2016] WASCA 83; Taylor v Hewitt [2017] WASC 134; Brose v Baluskas & Ors (No. 6) [2020] QDC 15; Tamiz v Google Inc [2012] EWCH 449; Duffy v Google Inc (2015) 125 SASR 437; Bruce v Odhams Press Ltd [1936] 1 KB 697; Jones v Skelton [1963] 1 WLR 1362; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; Trkulja v Google LLC [2018] HCA 25; Jeynes v News Magazines Ltd [2008] EWCA Civ 130; Rufus v Elliott [2015] EWCA Civ 121; Stocker v Stocker [2019] UKSC 17; Smith v ADFVN [2008] 1797 (QB); Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519; Lewis v Daily Telegraph Ltd [1964] AC 234; Jones v Sutton (2004) 61 NSWLR 614; Szanto v Melville [2011] VSC 574; Smith v Lucht [2016] QCA 267; Barrow v Bolt [2015] VSCA 107; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Defteros v Google LLC [2021] VSCA 167; Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5; Cerutti and Anor v Crestside Pty Ltd and Anor [2014] QCA 33; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Bristow v Adams [2012] NSWCA 166; Bauer Media Pty Ltd v Wilson (No. 2) [2018] VSCA 154; Duffy v Google (No. 2) [2015] SASC 206; Monir v Wood [2018] EWHC 3525; Mickle v Farley [2013] NSWDC 295; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Zwambila v Wafawarova [2015] ACTSC 171; Clarke v Molyneux (1877) 3 QBD 237 CA; Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254; Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496; Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729; Barrow v Bolt [2013] VSC 226; Roberts v Bass (2002) 212 CLR 1; Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 225; Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44; David Syme & Co Ltd v Mather [1977] VR 516; Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503; Triggell v Pheeney (1951) 82 CLR 497; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; Reid v Dukic [2016] ACTSC 344; Geyer v Ghosn [2020] NSWDC 744, considered.

TURTUR AO v CONNOR
[2021] SADC 127

[Civil]

Introduction

1. Michael Turtur AO (Applicant) is an Olympic Cycling Gold medallist and a well-known South Australian sporting identity. From 1999 to 2020, he served as the Race Director of the professional cycling race conducted annually in South Australia known as the ‘Tour Down Under’ (TDU). He is widely recognised as being the creator of that successful event.

2. Francene Connor (Respondent) is a marketing and communications consultant, who has previously served as an elected member on the Adelaide City Council and on the Board of the South Australian Tourism Commission (SATC).

3. On 30 March 2019, the Respondent posted three separate messages on her Facebook profile (the posts), wherein she stated, inter alia, that despite widespread media reporting to the contrary, her friend, David MacFarlane, now deceased, and not the Applicant, had conceived the idea for the TDU and lauded Mr MacFarlane for his unrecognised hard work in bringing the TDU to its fruition.[1]

   [1]    I will refer to the full terms of each message, which, strictly speaking, comprised one ‘post’ and two ‘comments’, later in this judgment.

4. On the relevant date, the Respondent’s Facebook profile was ‘public’ and she had approximately 885 Facebook friends, many of whom held positions in government, tourism and the media.[2]

   [2]    Although the Applicant pleaded the Respondent had approximately 919 Facebook friends at the relevant time, he agreed that number was approximately 885.

5. On 31 March 2019, the Applicant and his partner, Ms Pisani, read the posts, after Ms Pisani was informed of their existence by a friend, who had been ‘tagged’ by the Respondent into the first post.

6. Upon reading the posts, the Applicant was angry and upset. He perceived the posts painted him as a liar and a fraud. He elected not to take any action with respect to the posts at that time, instead determining to dedicate his focus to finalising the renewal of the ‘Tour Down Under Race Director and Related Services Agreement’ between Bikesport Australia Pty Ltd (Bikesport), a company of which he is the controlling mind and majority owner, and the SATC, and to prepare for and complete the 2020 TDU, being his final TDU as Race Director.

7. The Respondent first learned of the Applicant’s concerns with respect to the posts on 1 April 2020, more than a year later, when she received a letter from the Applicant’s solicitors dated 27 March 2020 (Concerns Notice). The Concerns Notice outlined the defamatory imputations the Applicant claimed were conveyed by the posts and demanded damages, including aggravated damages, and a public apology, in terms acceptable to him.

8. On the same day, namely 27 March 2020, the Applicant issued this action against the Respondent.

9. By the action, the Applicant alleges that as a consequence of the publication of the posts, he has been greatly injured in his credit, reputation and profession; and has been brought into public odium, scandal and contempt and claims damages in defamation, including aggravated damages.

10. As to the claim for aggravated damages, the Applicant alleges that the Respondent made the posts, knowing of the falsity of the imputations contained therein, with malice and for an improper and ulterior motive. The Applicant alleges the Respondent specifically targeted recipients who held positions of influence and/or seniority at all levels of government and:[3]

    ·that the timing of the posts, being made the day prior to the expiry of a relevant TDU contract, was designed to cause him maximum damage;[4] and

    ·that the Respondent held animus towards him arising from what transpired at a Board Meeting in about 2002 or 2003, being the only time he had met or spoken to the Respondent, other than with respect to this action.[5]

    [3]    Statement of Claim – Revision 3 (SOC-3) at [13.1]-[13.5].

    [4]    This allegation was ultimately not pursued by the Applicant; Applicant’s Amended Outline of Closing Submissions at [177]; T 365.24-25.

    [5]    SOC-3 at [13.5.1] and [13.5.28].

11. Upon receiving the Concerns Notice, the Respondent sent a letter of apology dated 3 April 2020 to the Applicant via his solicitors and removed the posts from her Facebook profile.[6]

    [6]    Exhibit P1; Tab 31; T 171.3-7; T 171.18-22.

12. The apology was not accepted. The action was subsequently served on the Respondent and her solicitors filed a Notice of Acting and Address for Service on 12 May 2020.

13. The Respondent denied the posts were published and/or contained the defamatory imputations as alleged. The Respondent pleaded the defences of qualified privilege, both at common law and pursuant to s 28 of the Defamation Act 2005 (SA) (the Act)[7] and the defence of triviality pursuant to s 31 of the Act.

    [7]    The Act was amended by the Defamation (Miscellaneous) Amendment Act 2020, however the transitional provisions of that Act provide that the amended provisions only apply to the publication of a defamatory matter after the date of its commencement, namely 1 July 2021.

14. On 17 May 2020, the Sunday Mail published an article outlining the fact the Applicant had issued the action. The article included passages extracted from the Statement of Claim and reported that the Respondent had told the Sunday Mail that she could not comment, as the matter was before the courts, but that she would be ‘vigorously defending’ herself in the matter.[8]

    [8]    Exhibit P15.

15. On 2 July 2020, and without prior consultation with the Applicant, the Respondent posted a public apology to the Applicant on Facebook.[9]

    [9]    Exhibit P1; Tab 33. Notwithstanding some evidence given to the contrary, the parties agreed the apology was a public apology.

16. The action continued and a trial was listed to commence on 7 June 2021. Shortly prior to trial, the Respondent abandoned the defence of qualified privilege. At the commencement of trial, and then again during the trial, the Applicant sought and was granted leave to amend the pleadings with respect to the claim for aggravated damages, and specifically the ‘Particulars of the Respondent’s Animus towards the Applicant’. I will outline the history of those amendments and the reason for them, later in this judgment.

17. The trial concluded on 11 August 2021, and judgment was reserved.

    Issue in Dispute

18. The Respondent does not deny that she was the author of the posts.

19. The following issues are in dispute:

    1.Were the posts ‘published’ by the Respondent?

    2.Do the posts (or any of them) give rise to the imputations as pleaded by the Applicant or imputations not substantially different to those as pleaded? The Respondent conceded that if the imputations as alleged were conveyed by the posts, that such imputations were defamatory.

    4.Has the Respondent established the defence of triviality?

    5.If the Applicant is entitled to damages, what is the assessment of such damages, having regard to the extent of any publication of the posts, and any reasonable inferences that can therefore be drawn as to the extent of any damage to the Applicant’s reputation.

    6.Is the Applicant entitled to aggravated damages and if so, the quantum of such damages?

    The Trial

20. The Applicant gave evidence and called his partner, Ms Pisani, to give evidence. Numerous exhibits were tendered, including:

    ·Tender Book (Exhibit P1).

    ·Supplementary Tender Book (Exhibit P13).

    ·affidavits from witnesses deposing to the Applicant’s reputation (Exhibits P6 - P9).

    ·affidavits from witnesses deposing to contact received by them from the Respondent after the action was issued (Exhibits P10 - P12).

    ·a report from Mr Jean-Pierre du Plessis, computer forensic expert dated 7 June 2021 (Exhibit P14). Mr du Plessis was not required for cross-examination.

21. Included in the Tender Book were media articles and confirmation of awards bestowed upon the Applicant, demonstrating the high level of esteem and regard with which the Applicant is, and has been held. Many of the media articles recognise the Applicant for his role in the creation and development of the TDU and for being the ‘inspiration’ behind the event. Such articles/documents both pre-date[10] and post-date[11] 30 March 2019.

    [10] Exhibit P1; Tabs 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18 and 19.

    [11] Exhibit P1; Tabs 29 and 30.

22. The Applicant also tendered copies of media articles reporting on these proceedings.[12]

    [12] Exhibit P15.

23. The Respondent gave evidence and called evidence from five witnesses; Megan Hender, Linda Matthews, Gillian Pengelley, Phillip Martin and Anne Moran. In addition, the parties agreed certain facts.

24. After each party had closed their case, and after the parties had exchanged written closing submissions, the Applicant applied for, and was granted leave, to re-open his case to call evidence from Ms Leanne Grantham, a former Chief Executive Officer of Australian Major Events (AME).

25. Ms Grantham gave evidence in accordance with the leave given. The Respondent was recalled and gave brief evidence in response.

26. Finally, counsel supplemented their written closing submissions,[13] with oral closing addresses.

    Preliminary Observations

    [13] Comprising Written Submissions of the Respondent dated 16 June 2021, Applicant’s Outline of Submissions dated 17 June 2021, Written Submissions of the Respondent in Reply dated 21 June 2021, Applicant’s Amended Outline of Closing Submissions dated 11 August 2021 and Applicant’s schedule of cases regarding relevant defamation damages awards.

    Malice/Aggravated Damages

1. This is not a case where the Applicant and Respondent have a long and/or chequered personal history, which is often the case in defamation actions.

2. The Applicant pleaded that he had met the Respondent on only one occasion prior to the publication of the posts, namely at an AME board meeting held in about 2002 or 2003, and that he had not spoken to the Respondent since that meeting.[14] The Respondent gave evidence that she did not know the Applicant and denied any recollection of the AME board meeting as described by the Applicant.[15]

   [14] SOC-3 at [13.5.1], [13.5.20] and [13.5.28], noting that the allegations made by the Applicant in the various iterations of his pleadings changed over time as to the nature and timing of this meeting.

   [15] T 165.3-38; T 182.21-22.

3. The Applicant alleged that he held a reasonable belief that the Respondent acted with ill will (or malice) towards him in publishing the posts.[16] He pleaded two bases for that belief, namely:

   1.the Respondent knew of the details of the Applicant’s contractual arrangements pertaining to the TDU, and the history of his negotiations with Ms Hitaf Rasheed of SATC in that respect, such that she made a deliberate decision to publish the posts on 30 March 2019, the date before a relevant contract expired, to cause him maximum damage (the first basis);[17] and

   2.the Respondent bore a grievance towards him, arising from her having been humiliated by him on the occasion of their only interaction at the aforesaid AME board meeting. Ancillary to this was an allegation, that such grievance and/or animus arose, in part, from the Respondent’s friendship with David MacFarlane (the second basis).[18]

   [16] SOC-3 at [13.2].

   [17] SOC-3 at [11.8] and [13.4].

   [18] SOC-3 at [13.5]. I will outline the evidence given by the Applicant with respect to his relationship with Mr MacFarlane in detail, later in this judgment.

4. The Respondent gave evidence, which was not challenged, that she had no knowledge of the Applicant’s contractual arrangements pertaining to the TDU and no knowledge as to when any relevant contract expired.[19] She gave evidence in cross-examination that although she knew of Ms Rasheed, and where she worked, she did not know her as such.[20]

   [19] T 172.21-35.

   [20] T 253.5-14.

5. The Applicant ultimately elected not to rely upon the allegations pertaining to the first basis.[21]

   [21] Applicant’s Amended Outline of Closing Submissions at [177]; T 365.24-25.

6. As to the second basis, by way of summary, the Applicant claimed that at the AME board meeting, the Respondent asked him why the TDU could not attract the same quality of teams as the Tour of Flanders. It was the Applicant’s case that the question was, in fact, ‘fed’ to the Respondent, by her friend Mr MacFarlane, in order to undermine the Applicant in his role as Race Director, and that his response to that question implied criticism of the Respondent and humiliated her.[22] I will outline the evidence given on this topic in more detail, hereunder. The Respondent denied being at any such meeting or of asking any such question.

   [22] SOC-3 at [13.5.20]-[13.5.39].

7. This was a matter in significant dispute at trial. This was an important issue, as the Applicant’s belief as to the Respondent’s motives was central to the allegation of malice and therefore an aspect of the claim made for aggravated damages.

8. The Applicant alleged that in addition to the Respondent, both Phillip Styles, the chair of AME and Belinda Dewhurst, General Manager of AME, were present at this meeting. Neither Mr Styles nor Ms Dewhurst were called to give evidence. The Applicant did not explain their absence or give any evidence as to whether he had attempted to contact either Mr Styles or Ms Dewhurst about their recollection, if any, of this occasion.

9. The evidence called from Ms Grantham was indirectly relevant to this issue. Ms Grantham gave evidence that during her tenure as General Manager of AME between May 2004 to mid-2008, she recalled attending SATC board meetings at which the Respondent was present, and that the Respondent asked ‘race-related’ questions pertaining to the TDU, of her. She recalled that there were ‘occasions’ when the Applicant came into those SATC board meetings to answer race-related questions and that these were ‘almost invariably’ questions from the Respondent.

10. The Applicant was not examined as to his recollection of any such occasions.[23] Insofar as the Applicant’s case is that he had met the Respondent on only one occasion prior to the publication of the posts, and had not spoken to her since then, there is a clear tension between the Applicant’s evidence and that of Ms Grantham, and apparent internal inconsistency in the case as pleaded by the Applicant, and the evidence led at trial, which was not clarified on the evidence.[24] I will return to that tension, and this issue generally, later in my judgment.

    [23] Noting the Applicant was not recalled to give evidence after being given leave to reopen his case to call Ms Grantham.

    [24] For example, compare the pleadings at [13.5.1] and [13.5.28] with that at [13.5.33(ii)].

    Jones v Dunkel inferences

11. Schedule F to the Statement of Claim – Revision 3 (SOC-3), contains a list of 25 persons of relevance identified by Ms Pisani from the Respondent’s list of Facebook friends, being persons who may have potentially viewed the posts.

12. The Respondent called (and tendered) evidence to demonstrate that several persons who were the Respondent’s Facebook friends at the relevant time, and included on Schedule F, had neither seen nor read the posts. She gave evidence that she had contacted the majority of the persons on Schedule F, prior to trial.[25] It was submitted that the Respondent only called those witnesses who were willing to come to court voluntarily and that she did not wish to subpoena witnesses to compel their attendance.[26]

    [25] T 238.28-239.5.

    [26] T 155.36-38.

13. The Applicant submitted that a Jones v Dunkel[27] inference ought to be made against the Respondent arising from her failure to call evidence from any of the other persons she had contacted whose names appear on Schedule F. The Applicant submitted that it should be inferred that the uncalled evidence would not have assisted the Respondent’s case. It was submitted that the explanation as given by the Respondent for her failure to call such witnesses was not a suitable explanation to avoid the operation of the rule.

    [27] (1959) 101 CLR 298.

14. Whether the posts were published, and if so, the extent of that publication, were key issues in dispute at trial.

15. The Applicant pleaded that the posts ‘were downloaded and/or viewed by a large number of visitors to the Respondent’s Facebook Page…’.[28] Although the Applicant tendered screenshots of the posts to demonstrate that they had been the subject of both ‘comments’ and ‘reactions’, he called no evidence from anyone, other than Ms Pisani, to establish that the posts were ‘downloaded and/or viewed’.

    [28] SOC-3; Part 2 at [10].

16. Notwithstanding that pleaded case, the case advanced at trial by the Applicant was that the nature of a publication made on Facebook was such that it could be distinguished from a publication made on an internet website, in that downloading was not a necessary component of publication. Succinctly put, it was submitted that in the case of Facebook, the posts were ‘pushed’ to their potential audience on Facebook by way of the Facebook news feed, such that it was not necessary for a potential viewer to ‘pull’ the material from the internet (ie to download the material) to satisfy the test for publication. I will outline those submissions in detail, later in my judgment.

17. While the Respondent bears the onus of proof with respect to the defence of triviality, it is for the Applicant to prove publication and damage. As stated, the Applicant did not call anyone, save for Ms Pisani, to give evidence that they had either seen and/or read the posts. Indeed, the affidavits tendered by the Applicant included affidavits from persons who were the Respondent’s Facebook friends, none of whom deposed to having ever seen and/or read the posts.

18. In addition, as previously stated, there was no evidence to explain why neither Mr Styles nor Ms Dewhurst were called to give evidence as to what occurred at the alleged AME board meeting.

19. In the circumstances, if I was to draw a Jones v Dunkel inference with respect to the Respondent’s failure to call evidence from other persons listed on Schedule F, or others who were the Respondent’s Facebook friends, to prove the defence of triviality, in my view, it would also be appropriate to draw a similar inference against the Applicant.

20. I decline to draw any such inference against either party.

    Background

    The Applicant

21. The Applicant is now 63 years of age.[29]

    [29] T 24.4.

22. At the age of 12, the Applicant became involved in the sport of cycling, and went on to compete in track cycling at the very highest level for Australia. He won two gold medals and a bronze medal at the 1982 Commonwealth Games and was a member and lead-off rider of the 4000m men’s individual team pursuit, which team won a gold medal at the 1984 Olympic Games. After competing at the 1986 Commonwealth Games in Edinburgh, where he was the flag bearer, the Applicant resigned from international cycling and took up a position as a cycling coach at the South Australian Institute of Sport (SASI).

23. In 1993, the Applicant was appointed as the promoter and manager of the Adelaide Super-Drome. In that role, he was responsible for managing and promoting the venue and organising and facilitating high profile cycling events at the venue. In this role at the Super-Drome, the Applicant became exposed to the promotion of international cycling events, and this, the Applicant said, led to him harbouring a desire to promote road cycling events.[30]

    [30] T 27.20-29.

24. The Applicant was employed, and then contracted, as the Race Director of the TDU from its inception in 1999, until 2020. He originally held the role as part of his employment with the South Australian government. In 2003, the Applicant resigned from the public service and created a company, Bikesport, of which he and Ms Pisani were directors. From 2003 to 2020, Bikesport was retained to provide services with respect to the TDU, including the provision of the Applicant as Race Director.

25. The Applicant gave evidence that in his role as Race Director, he was required to attend AME board meetings. He gave evidence that his only recollection of having met the Respondent, prior to this action, was at such a board meeting, held in about 2003 or 2004, as previously referred to.[31] He recalled the Respondent asking him a question about the Tour of Flanders, and of her being embarrassed by his response. I will refer to that meeting in more detail below.

    [31] T 69.8-70.30; T 95.35-37, and noting it is pleaded at SOC-3 at [13.5.20] that this meeting was in about 2002 or 2003.

26. Among his many personal accolades, the Applicant was named the South Australian of the Year in 2008, selected in the South Australian Sport Hall of Fame in 2010 and in 2018 was presented the Key to the City of Adelaide. In 2018, the Applicant was appointed an Officer of the Order of Australia (AO) for his distinguished service to cycling, particularly through the development and promotion of world class cycling events, and to the community of South Australia.

27. The Applicant’s life partner is Sandra (Sandy) Pisani. Ms Pisani is also a well-known sporting identity in South Australia having represented Australia playing women’s hockey at two Olympic Games and various World Cups, including being a member of the team which won the gold medal at the 1988 Olympic Games.

28. The Applicant and Ms Pisani have been a couple since 1989, and they have a daughter together. Ms Pisani’s employment background includes work as a public servant as the Finance and Administration Manager at SASI for several years from about 1985, and in the International Events Unit, being a unit established to create or bring events to South Australia, from 1992 to 1999.

29. From 1999 to 2000, Ms Pisani assisted the Applicant (and Bikesport) both formally and informally, with respect to aspects of the preparation and planning for each TDU, including the provision of administrative assistance, organising visas for participating riders and support crew, team liaison and the like.

    The Respondent

30. The Respondent operates a consultancy business in marketing, communications and publicity.

31. During the 1980s she was engaged by the South Australian government to assist with a bid for the Commonwealth Games, which bid was ultimately unsuccessful. From 1994-1995 she worked as a Senior Project Officer at the SATC, and then worked for a period of approximately 15 years as a Business and Development Manager for the Royal Adelaide Show. She left that position in 2007 to commence her consultancy business.

32. In 1990, the Respondent was elected to represent the Adelaide City Council as a councillor. She served three terms as a councillor and one term as an alderman for the City of Adelaide between 1990 and 1997.

33. The Respondent served on the Board of the SATC between September 2002 and 2007. The Respondent denied that there was any reason for her, in her role as an SATC board member, to attend AME board meetings.[32] She denied having attended an AME board meeting where the Applicant was present and of asking him a question pertaining to the Tour of Flanders.[33]

    [32] T 165.31-38.

    [33] T 166.9-26.

34. She had no recollection of the Applicant attending SATC board meetings, or of asking ‘race technical’ questions pertaining to the TDU at SATC board meetings.[34]

    [34] T 325.22-27.

    TDU – Creation and Inception

35. The first TDU was held in January 1999, and the event has been held every year, in January, since then, save for 2021, when the event was held in a modified form due to the impact of Covid-19.

36. The Applicant gave evidence, which was not challenged, that he conceived the idea for the TDU.[35]

    [35] T 29.36-30.2.

37. He said that while managing the Super-Drome, he received a call from a man called John McDonnell, who worked in the area of event procurement for AME. He said Mr McDonnell told him he had been approached by a group called Rockspo, who had an idea for a bike race, and enquired whether the Applicant would meet with them.[36] This was at or about the time that the South Australian government were actively canvassing ideas for events to fill the gap created by the loss of the Formula One Grand Prix to Melbourne.[37]

    [36] T 35.2-14.

    [37] T 36.25-27.

38. The Applicant produced a diary entry for Friday 4 August 1995, which records the date of the meeting he then attended with Jim Sutton and Brian Braidwood, being people connected with Rockspo, to discuss this idea.[38]

    [38] Exhibit P1 at tab 1, p 1; T 35.15-30.

39. The Applicant gave evidence that at the meeting, Rockspo put only a ‘two-line pitch’ to him, and said nothing more, with that pitch being a proposed race from Adelaide to Melbourne, with $1 million prize money. He said he told them to go away and do some more work on the idea. [39]

    [39] T 35.31-36; T 36.5-6.

40. A day or two later he received a further call from Mr McDonnell. During that call, the Applicant expressed reservations with respect to the Rockspo idea, insofar as it included Melbourne and Victoria, and the lack of research undertaken by Rockspo. He said that Mr McDonnell asked him if he had any ideas, and he replied that he had an idea for a bike race, and asked if it was possible to meet with him.[40]

    [40] T 36.7-32.

41. The Applicant produced a diary entry, recording a meeting scheduled for him with Mr McDonnell and Jim Sutton of Rockspo on 16 August 1995.[41] The Applicant said that he met first with Mr McDonnell, ‘explained to him my concept’ and that Mr Sutton joined the meeting thereafter.[42]

    [41] Exhibit P1 at tab 1, p 2.

    [42] T 37.2-6.

42. The Applicant gave evidence that on 13 September 1995 he attended a further meeting with respect to his concept with Mr Bill Spurr, then General Manager of AME and Mr McDonnell. He made notes in his diary in preparation for that meeting.[43]

    [43] Exhibit P1 at tab 1, p 3.

43. The event he proposed was to be a ‘unique event’ for this country, with the proposal being a professional race, to be held in January or February being the start of the racing year. Teams were to be based in Adelaide and go out each day to race, before returning to Adelaide, to a city hub including a ‘tour village’.

44. The Applicant explained that he approached his friend, Ron Webb, who was involved in the promotion of cycling overseas and had assisted the Applicant to source international riders for events at the Super-drome, to ascertain the level of support for the concept from the European teams. He also determined to contact Australian riders who were racing with European teams to garner their support. He sought a financial commitment to enable him to ‘take the proposal to (the) next step’ by enabling him to leave his then role and be involved in devising the race format, team and stage structures, targeting teams, working on proposals for travel and accommodation and planning the race route in consultation with the regions.

45. At the Applicant’s suggestion, AME engaged Ron Webb to prepare a report dated 8 July 1996 assessing the viability of the proposal and making further recommendations.[44]

    [44] Exhibit P1 at tab 2.

46. It is apparent from Mr Webb’s report that he visited Adelaide prior to preparing the report. During examination-in-chief, the Applicant was asked about various aspects of the report, wherein Mr Webb had mentioned the involvement of Rockspo in the preparation of initial concepts for the race. Specifically, he was asked about Mr Webb’s statement, on page 9 of the report, that ‘(T)he course drawn up by Mike Turtur and Rockspo Ltd, during my last visit to Adelaide, targets ideal areas.’ The Applicant was asked if that statement was consistent with his memory of what had happened up to that time and he said ‘no’ and that Rockspo had no involvement in the design of the course.[45]

    [45] T 46.4-12.

47. At page 13 of his report, Mr Webb suggested that ‘a very thorough investigation and survey should be undertaken by AME/Rockspo’ to pinpoint five towns to participate as the focal point of each race, with a framework of other associated events and entertainment. The Applicant said that as far as he was aware, Rockspo had no involvement in the pinpointing of towns, either before or after the provision of Mr Webb’s report.[46]

    [46] T 46.13-20.

48. The Applicant was not asked about a further statement in the report, namely:[47]

    On my visit to Adelaide I found common ground with Mike Turtur and Jim Sutton that the Tour should not be a State Tour taking in the outback regions, but rather stay with the attractive scenery. The draft Tour route drawn up by Mike and Jim encompassed the wine growing areas. It was the districts and the towns which struck me as the chance to enhance the feasibility of the event…

    [47] Exhibit P1, tab 2 at p 49.

49. The Applicant gave evidence that it was important the TDU comply with the requirements of the governing body, the Union of Cycling Internationale (UCI). He determined to include the use of official cars and airborne horns to give the TDU the same atmosphere as races in Europe, and devised a unique sign-on board to be a feature at the start of each day’s race. In conjunction with Mr Terry Roberts, a logistics expert, he planned the course and the components of each stage.

50. In 1997 the Applicant was authorised by AME to travel to Italy to attend the Bergamasca, an eight stage International Cycling tour, which fit the criteria for the event as proposed. Thereafter, the Applicant submitted a report to AME containing various recommendations with respect to the event, and a draft tour budget. [48]

    [48] Exhibit P2 is a draft version of this report.

51. It is apparent from the report, that approval for the Applicant to attend the Bergamasca was given after a meeting held between Bill Spurr and David MacFarlane of AME and the Applicant, at which time it was decided that the ‘original concept’ would be too costly, and ‘it was decided that a revised proposal needed to be developed to deliver the same impact’ of the proposed Tour, but at a lower cost.[49]

    [49] Exhibit P2 at p 2.

1. The Applicant gave evidence that in 1996/97, Mr MacFarlane worked at AME. He described him as a cycling fan, who he had come to know over the years through his attendance at some of the events the Applicant had organised at the Super-drome, and as he was a work colleague of Ms Pisani.

2. The proposed event required government support and funding. The Applicant gave evidence that Mr MacFarlane prepared the formal cabinet submission with respect to the event. He said Mr MacFarlane had not previously participated in the development of the concept of the TDU. He said the government ultimately approved the event in 1998, in the form that he (the Applicant) had developed.[50]

   [50] T 55.6-56.7.

3. Thereafter the Applicant was appointed Race Director of the TDU and the primary responsibility for organising the cycling and non-cycling aspects of the race, scheduled for January 1999, fell on him. This included finalising and documenting the course and stages, arranging international travel and accommodation, creating the tour village, organising cars, sponsors, jerseys, drug testing, media and marketing.[51]

   [51] T 56.16-25.

   The Applicant’s relationship with David MacFarlane

4. The Applicant prepared a race manual in conjunction with Mr Roberts.[52]

   [52] Exhibit P1, tab 3.

5. The race manual lists the ‘Tour Organisation’ team as including Bill Spurr as Chairman, the Applicant as Race Director and Mr MacFarlane as ‘Team Liaison’. The Applicant gave evidence that he had proposed Mr MacFarlane undertake this role, which involved Mr MacFarlane interacting with the teams, including meeting them and facilitating their transit in Kuala Lumpur, immediately prior to their arrival in Australia.[53]

   [53] T 57.20-58.2.

6. The Applicant gave evidence that after the first TDU, he invited Mr MacFarlane to his home for dinner, and that during the evening he proposed to Mr MacFarlane the idea of taking on the role of ‘Administration Manager’ for the TDU. He said this was in the context of a discussion initiated by Mr MacFarlane, that he was nearing retirement.[54]

   [54] T 58.3-18.

7. The Applicant said that shortly thereafter he learned that Mr MacFarlane had been unsuccessful in seeking appointment as the Chairman of AME (to replace the incumbent, Bill Spurr) and that Mr MacFarlane was extremely angry at having been overlooked for that position, which was offered instead to Ms Dewhurst.[55]

   [55] T 58.19-30.

8. Shortly thereafter, and without consultation with the Applicant, Mr Spurr designated Mr MacFarlane as ‘Event Director’ for the 2000 TDU. The Applicant gave evidence that this created some confusion in terms of the respective responsibilities of himself as Race Director, and Mr MacFarlane as Event Director.[56] He gave an example of Mr MacFarlane giving directions as to the replacement of the rider of ‘photo bike number 1’ – being a photographer appointed by the Applicant – which ‘astonished’ the Applicant and started what was to become the souring of their relationship.[57]

   [56] T 58.31-59.17.

   [57] T 59.21-60.11.

9. The Applicant gave evidence that from thereafter, his relationship with Mr MacFarlane was ‘not good’.[58] He gave hearsay evidence that the new Chairman of AME, Ms Dewhurst, had observed that the relationship between the Applicant as Race Director and Mr MacFarlane as Event Director was not working, and that in accordance with a proposal made by her, Mr MacFarlane was removed from that position after the 2000 TDU.[59]

   [58] T 60.15.

   [59] T 60.18-61.1.

10. He said Mr MacFarlane moved on to work in the office of the Minister for Tourism. The Applicant said that thereafter his relationship with Mr MacFarlane was ‘strained’ and not ‘amiable’, and he felt that Mr MacFarlane thought he had been behind his removal.[60]

    [60] T 61.6-17.

    Applicant’s relationship with Nino Solari

11. The Applicant gave evidence that his very good friend, Mr Nino Solari was involved in the TDU for several years as the provider of ‘neutral services’, being the provision of assistance (mechanical, personal etc), during the Tour events, for those riders who did not have their support or team car present. He explained that at the conclusion of the 2004 TDU, a decision was made to engage a bigger organisation, Shimano, to provide these services, instead of Mr Solari.

12. The Applicant said he met with Mr Solari to explain this decision to him. Shortly thereafter he received a letter of complaint, purportedly from Mr Solari. The Applicant gave evidence that he believed that letter, which was well composed and put together, had been written by Mr MacFarlane.[61]

    [61] T 73.4-12.

    The Respondent’s relationship with Mr MacFarlane

13. The Respondent pleaded that she first became friends with Mr MacFarlane in 1974, when she worked with him at the Trade Practices Commission, and that they remained friends until his death.[62]

    [62] Defence – 3 at [25e.xvii].

14. She gave evidence that she regarded him as a very good and close friend.[63]

    [63] T 247.25-27.

15. The Respondent said she knew Mr MacFarlane had occupied a position in the organisation of the TDU in 1999 and 2000 and that this was under the ‘umbrella’ of AME.[64] She said that she knew he had left that role to pursue other interests, but denied knowledge that he had ‘been moved on’ from the TDU and said that she did not know what had caused him to leave.[65]

    [64] T 247.28-33.

    [65] T 247.34-38.

16. In response to specific questioning in cross-examination, the Respondent denied having any knowledge that Mr MacFarlane held a sense of grievance about having to depart the TDU, or of knowledge that Mr MacFarlane felt that the Applicant was responsible for that departure.[66] The following exchange occurred in cross-examination with respect to Mr MacFarlane:[67]

    [66] T 248.15-27.

    [67] T 248.1-249.2.

    Q.You knew, didn't you, that he had applied for the position of Chief Executive Officer of AME, following Mr Spurr, and was unsuccessful.

    A.Are you talking about what I know now or what I knew back in 2000?

    Q.I'm talking about what you knew by March 2019.

    A.So you're asking me to answer what about Mr McFarlane in 2019?

    Q.In March 2019, you knew that he had unsuccessfully applied for the position of CEO of AME to replace Mr Bill Spurr.

    A.I don't recall the specifics, but I don't recall if I knew that in 2019. I knew he had moved onto another role with the Tourism Minister, but I didn't know -

    Q.And you knew, didn't you, that he had a sense of grievance about having to depart the Tour Down Under.

    A.I don't recall.

    Q.You may have known that.

    A.I don't recall, but I - I don't recall; I may. I don't recall what I knew about that.

    Q.You knew that he felt that Mr Turtur had been responsible for his departure from the Tour Down Under.

    A.No, I did not know that.

    Q.Are you sure about that.

    A.Yes.

    Q.You did know that, didn't you.

    A.I did not know that.

    Q.You'd discussed things with Mr McFarlane many times over the years after the year 2000, hadn't you.

    A.We had discussed many things, but not that, specifically.

    Q.I suggest he told you that he was very unhappy about his departure from the AME and the Tour Down Under and that he blamed Mr Turtur.

    A.No.

    Q.And I suggest that's not a truthful answer.

    A.David was a very private person. He didn't discuss many things. We had lots of interests, but I don't recall him and I don't believe he ever discussed those things with me.

    The Board Meeting – Tour of Flanders

    Applicant’s Pleaded Case/Evidence

17. The Applicant gave evidence that the incident involving Mr Solari’s letter of complaint was connected, at least in terms of its timing, with an exchange he recalled he had with the Respondent at an earlier AME board meeting, that being the only time they had met.[68]

    [68] T 72.25-36; T 95.31-37.

18. Before outlining the Applicant’s evidence relating to this meeting, it is necessary to revisit the pleadings.

19. When the action was first filed, the Statement of Claim pleaded a claim for aggravated damages, but contained no reference to any alleged animus held by the Respondent against the Applicant, nor any reference to what transpired at any board meeting attended by the parties as being a particular of such animus.

20. On 5 March 2021, approximately 11 months after the action was issued, the Applicant filed a Statement of Claim – Revision 1 (SOC-1). In that amended pleading, amongst other significant changes, the Applicant first raised an allegation that he had knowledge of and/or reasonable belief in the Respondent’s malice in publishing the posts, including animus she held against him arising from what had transpired at an SATC board meeting.[69]

    [69] SOC-1 at [13.2] and [13.5].

21. SOC-1 included detailed particulars as to the Applicant’s recollection of what occurred at that SATC board meeting. The Applicant pleaded that his presence at that meeting was required in response to a series of public statements made shortly before then, in or about 2002, by the Shadow Minister for Recreation and Sport, Mr Duncan McFetridge MP wherein he was critical of the quality of the racing teams attending the forthcoming TDU. That criticism had resulted in the Applicant and Mr McFetridge debating this issue on radio. [70]

    [70] SOC-1 at [13.5.18]-[13.5.20].

22. The Applicant pleaded that at that meeting, Mr Styles, as Chair of the SATC Board invited Board members to ask questions of the Applicant, and that only the Respondent took up that invitation.[71]

    [71] SOC-1 at [13.5.22].

23. After opening his case, but prior to calling any evidence, the Applicant made an oral application for leave to amend the Statement of Claim. In addition to some minor amendments, the Applicant sought, and was granted, leave to amend the pleadings as to the Respondent’s alleged animus towards the Applicant.

24. By the amendment, the Applicant pleaded, inter alia, that he knew of or held a reasonable belief in the Respondent’s malice in making the posts, because of animus she held towards him arising from an exchange that occurred between them at an AME Board Meeting in or about 2002 or 2003. The allegation linking the timing of that meeting (namely it being in response to disquiet arising from the public statements made by Mr McFetridge in or about 2002) was deleted.

25. The Applicant gave evidence that he had a clear memory of this event.[72] He said that to the best of his recollection, the meeting occurred in ‘2003 to 2004, somewhere in that timeframe’.[73]

    [72] T 68.1-3.

    [73] T 70.27-30.

26. He said Mr Phillip Styles, then Chair of AME, Ms Dewhurst, then General Manager of AME and the Respondent were present at the meeting.[74] He had not met the Respondent prior to that meeting, but knew of her as she had worked previously with Mr MacFarlane on an unsuccessful bid to hold the Commonwealth Games in Adelaide. He had not met the Respondent since that meeting, other than in connection with these proceedings.[75]

    [74] SOC-1 contained no reference to Ms Dewhurst’s attendance at the meeting, or of the Applicant’s attendance being at the request of Ms Dewhurst.

    [75] T 95.15-27; T 95.35-37.

27. The Applicant recalled that during the meeting the Respondent made a reference to the quality of the riders the TDU was attracting, and that the quality was not up to standard. He recalled the Respondent asked him why it was that the TDU could not attract riders that took part in the ‘Tour of Flanders’, being a one day event held in Belgium. When asked as to his response to the Respondent’s question, he gave the following evidence:[76]

    [76] T 70.5-23.

    A.I said that her analogy with the Tour of Flanders and the Tour Down Under was ridiculous.

    Q.Did you say anything more.

    A.I said that 'The Tour of Flanders is a one day race and you're trying to make a comparison with our event which is six day tour.

    Q.Did you say anymore than that.

    A.No.

    Q.They sound like fairly sharp words. What was your tone like.

    A.Similar to what I said just then.

    Q.How would you describe it.

    A.Forceful and to the point.

    Q.The language sounds fairly dismissive.

    A.Yes.

    Q.Did you notice how Ms Connor appeared to react.

    A.I think she was embarrassed.

    Q.Did you have any dealing with her subsequently.

    A.No.

28. The Applicant gave evidence that since providing initial instructions to his solicitors, he had learned that the public statements made by Mr McFetridge (as pleaded in the SOC-1) were made in 2008, shortly after the 2008 TDU and not in 2002.[77]

    [77] T 67.1-5; T 92.29-93.2.

29. In cross-examination, the Applicant gave evidence that the meeting occurred at 50 Grenfell Street, and that both the AME and SATC had offices in that building, but on different floors.[78] He said he was required to attend the relevant AME board meeting in response to a request by Ms Dewhurst, to answer questions from a board member, as occurred from time to time.[79] As to whether he had ever attended SATC board meetings, he said:[80]

    A     I can’t say for certainty that I didn’t.

    Q     That you didn’t.

    A     I could have.

    [78] T 94.6-10.

    [79] T 93.14-94.5.

    [80] T 94.16-18.

30. The Applicant explained he had been mistaken when he first instructed his solicitors that the relevant meeting involving the Respondent was an SATC board meeting.[81]

    [81] T 94.22-23.

31. Notwithstanding his mistaken recollection as to the timing (or purpose) of his attendance at the meeting, and of the nature of the meeting, nor the fact he had not previously, or subsequently, encountered or spoken to the Respondent, the Applicant was certain that it was the Respondent who was involved in this alleged exchange. [82] He said:[83]

    No, because of the Tour of Flanders analogy. That’s stuck in my mind all these years.

    [82] T 96.20-38.

    [83] T 96.38-97.1.

32. The Applicant believed what transpired at that meeting and the receipt of the letter of complaint from Mr Solari were connected, with the connection involving Mr MacFarlane. He gave the following evidence:[84]

    [84] T 72.25-73.3.

    QI think you’ve said you connect the timing of that letter with the timing of the exchange with the respondent.

    AYes.

    QSo what’s the connection in timing in your mind.

    AThe meeting happened in 2002, ‘3, that the issue with [Nino] was in 2004, so to me it was a continuation of what was going on behind the scenes.

    QWhen you say ‘what was going on behind the scenes’, did you have a belief about things going on behind the scenes.

    AI did.

    QWe don’t need to go into detail, but [what] only matters at the moment is your belief about that. In a nutshell.

    AMy belief was that David didn’t accept the fact that he was moved on and he was out to make my life and the race’s life difficult.

    Ms Grantham’s Evidence

33. Exhibit P17 is an affidavit sworn by Ms Grantham.[85] Ms Grantham gave brief evidence-in-chief adopting that affidavit and she was cross-examined.

    [85] Admitted into evidence in the form as amended, namely to delete the last two sentences at [19] on the basis that such evidence was hearsay.

34. Ms Grantham was the General Manager of AME/Events SA from about May 2004 to mid-2008, having taken over that role from Ms Dewhurst. In such capacity, she was an employee of the SATC, but not an SATC board member, and she had no direct involvement with the SATC board. However, she recalled attending at least several SATC board meetings per year, with such meetings generally held in the boardroom of the SATC office on the corner of Grenfell Street and Gawler Place, being the same building as that occupied by AME.

35. Ms Grantham deposed that she knew the Applicant from his role as Race Director of the TDU and that she knew the Respondent in her capacity as an SATC board member. She recalled the Respondent being present at most, if not all, of the SATC board meetings that she attended. She also recalled the Applicant attending several SATC board meetings at which she (Ms Grantham) was present, either at her request, or the request of the SATC Chief Executive, Mr Spurr, or of the SATC Chairman at the time, being either Mr Phil Hoffmann or Mr Forde. Her recollection was that the Respondent was also present at those SATC meetings which she attended with the Applicant.[86]

    [86] Exhibit P17 at [3]-[9].

36. Ms Grantham had a specific recollection of the Respondent asking her race-technical questions pertaining to the TDU at SATC board meetings, including questions relating to why a particular stage of the TDU travelled a particular route, and whether a particular rider or team was attending the TDU and if not, why not. She recalled some of the questions related to matters pertaining to the number of Pro-Tour teams and riders able to compete at the TDU, which initially was not rated as a UCI Pro-Tour event, being the sort of issues that the Applicant, in his role as Race Director, had to deal with. She deposed:[87]

    It seemed to me that the questions Ms Connor asked were of the kind that only a person with a technical knowledge of cycling would be in a position to ask.

    …

    Over time, the impression I formed was that Ms Connor’s questions were asked in a way which seemed to me designed to catch the TDU out. (my emphasis)

    [87] Exhibit P17 at [15].

37. Ms Grantham deposed that on occasions she would defer those questions to the Applicant, unless the Chair required her to respond, in which case this would be done at another time once she had consulted with the Applicant.[88] She said:[89]

    There were occasions on which I recall the Chair stepping in and dealing with Ms Connor’s questions by saying they were not relevant. On other occasions, as I say, I would agree to take the question on notice and get an answer from Mr Turtur to be provided later to the Chairman or to the CEO. Further again, there were occasions when I would suggest that only Mr Turtur could answer and if I knew he was in the office I would suggest he be called in to answer. I can recall occasions where he did come in and answer specific questions about the TDU in the presence of the Board. To the best of recollection they were almost invariably questions from Ms Connor as I believe that in my experience she was the only Board Member who raised ‘race-technical’ questions as opposed to financial or tourism-related questions.

    It was so common for Ms Connor to ask me questions regarding the TDU race during the SATC Board meetings that it became something of a “running joke” within AME/Events SA, such that I remember raising the issue with Mr Bill Spurr, the CEO of SATC at the time …

    [88] Exhibit P17 at [17].

    [89] Exhibit P17 at [18]-[19].

38. In cross-examination, Ms Grantham acknowledged that she was friendly both with the Applicant and Ms Pisani, but that she had not discussed this matter with them until after reading a media article reporting on the trial of this action.[90]

    [90] Exhibit LMG1 to her affidavit.

39. She said she could not recall other SATC board members asking ‘race-technical’ questions of her pertaining to the TDU at SATC board meetings, with their questions being confined to tourism related matters such as marketing, return on investment and the like. She recalled the Respondent had also asked questions of that nature, in addition to ‘race-technical’ questions.[91]

    [91] T 319.34-321.6.

40. When asked by what she meant when she deposed to a belief that the Respondent’s questions were designed to catch the TDU out, she said:[92]

    A.What I mean by that is such technical questions around particular riders being invited or not being invited, teams being invited, not being invited, continental teams that had been invited or potentially hadn't been invited to me were questions that just - I should say made no sense, but me was not relevant to a question coming from a board director, because it happened reasonably often when I went to meetings I formed that opinion that Francene was either trying to catch me or the Tour Down Under out, and I guess we're one in the same. (my emphasis)

    [92] T 321.12-22.

1. Ms Grantham gave no evidence to the effect that she was present at any board meeting (either of the SATC or AME) where the Respondent asked the Applicant a question about the ‘Tour of Flanders’.

   Respondent’s Evidence

2. The Respondent gave evidence that she was on the Board of the SATC from September 2002 to 2007. She explained the Board held meetings approximately once per month, and recalled those meeting taking place in the SATC boardroom at North Terrace, although there could have been other locations as the SATC ‘moved around to different buildings’.[93]

   [93] T 164.4.

3. The Respondent said it was rare for persons other than SATC board members to attend SATC board meetings, although on occasions the Chief Executive may attend, or a senior manager.[94]

   [94] T 164.8-16.

4. The Respondent was adamant that she had never attended any AME board meeting at which the Applicant was present, nor taken up any invitation by Mr Styles to ask any questions of the Applicant at such a meeting, nor asked a question about the Tour of Flanders of the Applicant at such a meeting. She gave evidence that she was not on the AME board and had nothing to do with that board. She said the event as described by the Applicant did not occur.[95]

   [95] T 165.18-166.26.

5. In cross-examination, it was suggested to the Respondent that as she could not now recall precisely where the SATC board meetings took place, how could she be certain that she did not go to a meeting where the Applicant was present. She gave the following evidence:[96]

   Q.And despite the fact you can't remember where the meetings were held you claim to be able to assert positively that you didn't go to any meeting at which Mr Turtur was present.

   A.Yes, positively. I remember that there was no such meeting.

   Q.And you wouldn't even concede you might be wrong about that.

   A.No.

   Q.Wasn't there a meeting in which you challenged Mr Turtur about the quality of the Tour Down Under and its riders.

   A.No.

   [96] T 250.18-30, noting the questions did not specify whether any such meeting was an AME board meeting or an SATC board meeting.

6. The Respondent gave evidence that she did not have any idea where the AME board meetings were held. She maintained that she had no recollection of ever attending an AME board meeting where the Applicant was present and she had asked a question in the presence of Mr Styles.

7. She denied that after such an exchange, she held a poor opinion of the Applicant. She further denied that following discussions with Mr MacFarlane she had a poor opinion of the Applicant.[97]

   [97] T 252.13-18.

8. The Respondent was recalled and gave evidence after Ms Grantham gave evidence. She said she dealt with Ms Grantham infrequently during the period when her tenure as an SATC board member and Ms Grantham’s tenure as General Manager of AME overlapped. She could not recall any involvement with her beyond one or two occasions which may have been at functions relating to AME events. She said she had no memory of Ms Grantham attending any SATC board meetings, but acknowledged, in cross-examination, that she may have occasionally attended such a meeting to present a report as a representative of AME.[98]

   [98] T 324.18-29; T 329.12-32.

9. The Respondent had no recollection of ever asking any ‘race-technical’ questions pertaining to the TDU at any SATC board meetings, or of the Applicant attending any SATC board meetings at which she was present and had asked such race-technical questions.[99] She acknowledged that the topic of the TDU may have come up at such board meetings, but she could not recall discussing it.[100]

   [99] T 325.3-27.

   [100] T 330.9-13; T 325.12-14.

10. She gave the following evidence:[101]

    [101] T 324.38-325.27.

    Q.And you're aware that Ms Grantham says that you asked operation or very technical questions.

    A.Yes, I'm aware she said that, yes.

    Q.And they're summarised as being questions relating to why a particular stage of the race travelled on a particular route, whether a particular rider was attending the race or why a particular rider was not attending, or whether a particular team was attending the race, or why a particular team was not attending. They're the technical questions she says that you asked. What do you have to say about that.

    A.I don't recall asking those questions.

    Q.Do you recall discussing the Tour Down Under at board meetings.

    A.No.

    Q.Her evidence is that you asked questions, or she formed the impression that you asked questions in a way which were designed to catch the Tour Down Under out. Do you have anything to say about that.

    A.I don't believe I would have done that, I'm very supporting of the Tour Down Under and love the event, so no, I wouldn't have done that.

    Q.And Ms Grantham says that Mr Turtur attended several meetings of the SATC Board with you present, and that you asked some race technical questions. What do you have to say about that.

    A.It did not happen on my recollection, I have no recollection of that whatsoever.

11. The Respondent gave evidence that Mr Hoffman was chairman of the SATC board when she was first asked to sit on the board. She said she had not made any enquiries of him in response to the allegations made by Ms Grantham, namely that on occasions the chair would step in and deal with her questions, and say they were not relevant. A subsequent chairman of that board was now deceased. She had not retained copies of any board meeting minutes, nor sought copies of any such minutes.[102] She said she had made contact with fellow SATC board members who she had kept in touch with, and for whom she had contact details.

    [102] T 326.12-21; T 327.9-21.

12. The Respondent denied that during the period she was on the SATC board, and Ms Grantham was General Manager of AME, that she was aware Mr MacFarlane had a grievance about the TDU and in particular with the Applicant, and that he was feeding her questions to ask at SATC board meetings.[103]

    [103] T 332.20-28.

13. She denied that the Applicant was ever required to come into SATC board meetings to answer race-technical questions pertaining to the TDU made by her.[104]

    [104] T 331.26-332.2.

    The Applicant’s Relationship with Hitaf Rasheed/TDU Contract Negotiations

14. Ms Hitaf Rasheed is the Executive Director of Events SA, being the successor to AME, and has held that position since 2008.

15. In that role, Ms Rasheed was responsible for negotiating various contracts relating to the involvement of the Applicant and Bikesport in the TDU.

16. The Applicant gave evidence of a particular difficulty he encountered in his dealings with Ms Rasheed relating to the negotiation of the Tour Down Under Race Director and Related Services Agreement between the SATC and Bikesport in 2016. He said Ms Rasheed allowed the previous agreement, the ‘2011-2016 Agreement’, to expire on 31 March 2016, without having commenced renewal negotiations, contrary to a condition of that contract. He said he was without a contract for a period of time thereafter. Notwithstanding this, he had assumed, and others expected, that he was required to continue preparations for the 2017 TDU.[105]

    [105] T 62.3-21.

17. The Applicant gave evidence that he made an official complaint about Ms Rasheed’s handling of that contract extension by letter dated 9 October 2016 to the Minister for Tourism, Leon Bignell.[106] In that letter, the Applicant referred to action associated with contract negotiations in 2011, wherein Ms Rasheed was effectively removed from the negotiations, and stated ‘I believe she has never accepted this action and it is one of the motivating factors in regard to her current conduct’.[107]

    [106] T 62.22-63.14; Exhibit P1, tab 41.

    [107] Exhibit P1, tab 41 at p 302.

18. The letter is quite scathing in its criticism of Ms Rasheed and the contract renewal process. The Applicant stated of his experiences:[108]

    As contractors for one of the most significant events tourism and sporting events, one which was designed by ME, and the most outstanding event in Australia on numerous occasions, it is hard not to feel disgruntled and disrespected.

    [108] Exhibit P1, tab 41 at p 301.

19. A further contract between SATC and Bikesport (Contractor) was signed on 14 October 2016 (the 2016 Agreement).[109] The 2016 Agreement expired on 31 March 2019. [110] The 2016 Agreement included the following terms:[111]

    5.3The parties will enter into discussions in regard to whether or not a new contract should be entered into approximately 9 months prior to the staging of the January 2019 edition of the Tour Down Under with a view to those discussions being concluded by 30 June 2018.

    5.4In consideration of SATC agreeing to enter into the discussions under clause 5.3, the following provisions will apply if an extended term or new contract has not been agreed by 30 June 2018:

    5.4.1 SATC may notify the Contractor that SATC or SATC’s nominee contractor (either being a “Successor” in this context) intends to conduct services the same as or similar to the Services (or part of the Services) after the date of expiry or termination of this Agreement (“Handover Date”);

    5.4.2 at no charge the Contractor must provide the Successor with all information in its possession concerning the operation of this Agreement or the Services as and when requested by SATC, whether in printed or electronic form; and

    5.4.3 at no charge the Contractor must spend up to a maximum of 80 hours discussing and answering questions about the Services with the Successor, to be done at such times as are requested by SATC.

    [109] Exhibit P1. tab 39 at p 240.

    [110] T 63.17-20; Exhibit P1, tab 39.

    [111] Exhibit P1, tab 39 at pp 245-246.

20. The Applicant gave evidence that he wanted to remain in the role of Race Director until the completion of the 2020 TDU, being consistent with what was reported in an article in the Advertiser on 19 January 2019.[112]

    [112] Exhibit P1, tab 19.

21. As at the date of the expiry of the 2016 Agreement, namely 31 March 2019, a further extended contract between Bikesport and SATC, to incorporate the Applicant continuing as Race Director for the 2020 TDU had not been finalised, but, as had occurred upon the expiry of the 2011-2016 Agreement, the Applicant continued to work to prepare for the 2020 TDU in any event.[113]

    [113] T 64.2-21.

22. A further contract between Bikesport and SATC was signed on 18 October 2019 (2019 Agreement). The terms of that contract included, inter alia, that the Applicant was to remain Race Director for the 2020 TDU, but no further events thereafter, and was to provide services to enable the successful transition of the role of Race Director from the Applicant to his successor.[114]

    [114] Exhibit P1, tab 40, specifically at p 294.

23. The Applicant gave evidence that he viewed the delay in negotiating both the 2016 Agreement and the 2019 Agreement as ‘stalling tactics’ to allow Ms Rasheed more time to explore opportunities to find an appropriate person to replace him as Race Director.[115]

    [115] T 64.30-35.

24. The evidence pertaining to the Applicant’s relationship with Ms Rasheed was led for two purposes, namely to support the first basis for the Applicant’s belief in the Respondent’s alleged malice and ill will towards him, and by way of explanation pertaining to his delay in taking action with respect to the posts.

25. As previously stated, the Respondent gave evidence, which was not challenged, that she had no knowledge of the Applicant’s contractual arrangements pertaining to the TDU and no knowledge as to when any relevant contract expired.[116] There was no evidence to support a finding that Ms Rasheed and the Respondent were well known to each other, or that the Respondent had any knowledge of any acrimony between the Applicant and Ms Rasheed.

    [116] T 172.21-35.

    The Posts

26. On 30 March 2019, being the day before the expiry of the 2016 Agreement, the Respondent authored a post on her then public Facebook profile in the following terms (first post):[117]

    For those interested, Sunday is the day on which the contractual confidentiality is supposed to end on Lance Armstrong’s contract to compete in the Tour Down Under. I wonder what will be released? I don’t know the details, but I think he was worth every penny – he helped to raise the profile of this fantastic event on the National and international cycling road-race calendar.

    And, by the way, David MacFarlane, who worked tirelessly for South Australia while he was at Australian Major Events, conceived the idea of the Tour Down Under and NOT Mike Turtur, as the media keeps incorrectly asserting and praising. David was never one to take credit for his ideas and achievements, but I’m now more than happy to speak out on the truth – he worked with some great people, but it was his concept and he successfully pitched it to the Government of the day.

    And, I’ve always loved this quote from Indira Gandhi, who said that: ‘My father once told me that there were two kinds of people: Those who do the work and those who take the credit. He told me to try to be in the first group; there was much less competition there.’ Well David certainly was one to do the work. I salute him, and you should, too.

    Sadly, David has been gone for over ten years, but his memory lives on in our hearts. Sue MacFarlane Margaret Ralston Barry Skinner Julie Peekay Nykiel Cheryl Andrews Andrea Mason Andrew Taylor Bill Spurr.

    [117] Schedule A to the Statement of Claim -  Revision 2; Exhibit P1, tab 20 at p 161.

27. The Respondent gave evidence as to why she made the post.

28. The Respondent said that on 30 May 2018 she recorded a diary note to remind herself that Lance Armstrong’s contract details with respect to the TDU were to be released to the public on 31 March 2019.[118] She gave the following evidence:[119]

    Q.By reference to that document, can you explain why you posted the post.

    A.I was interested in Lance Armstrong appearing at the Tour Down Under. I think he made a great contribution while he was here in increasing tourism and that was always of interest to me. So when I heard that the government was going to release the contract details I made a note in my diary so I would remind myself when the year came – when the date came around.

    [118] T 166.34-167.8; Exhibit D2.

    [119] T 168.6-14.

29. In cross-examination, the following exchange occurred:[120]

    Q.And my question was, was it intended to be factual.

    A.My post was intended to be to friends to alert them to the revealing of the contract payment for Lance Armstrong, and it was about my friend and about how he'd been gone for 10 years.

    Q.I will put the question again. Was the post intended to be factual.

    A.At the time that I wrote the post I believed what I put in there was factual, yes.

    Q.And based on information you believed to be true.

    A.Based on information that I believed to be true, yes.

    [120] T 179.5-15.

30. The Respondent was cross-examined at some length about what her intention was when making the first post. I allowed that line of questioning on the basis that it was relevant to the Respondent’s credit, but not as to the issue of the meaning of the posts.

31. The Respondent agreed with a proposition that at the time she wrote the post, she was propounding the notion that Mr MacFarlane had conceived of the idea of the TDU, and that was an important thing, being what she believed at the time.[121]

    [121] T 182.25-29.

32. When the Respondent was asked if she accepted that she meant to convey, by the first post, that Mr MacFarlane deserved the credit for the conception of the TDU, and that he had not been given that credit, she answered that no, she did not.[122] When further tested on what other sensible meaning could be given to the words she used, she gave the following evidence:[123]

    A.The meaning that I'll give to them is that I had worked with David over a number of years and in his work on the Commonwealth Games bid in particular I know that he was always one never to take credit. He just did a lot of the work and shared responsibilities with people but that he never took the credit and never sought credit for the work he'd done.

    [122] T 185.8-12.

    [123] T 185.19.25.

33. When asked what that had to do with the TDU, she said:[124]

    It wasn’t to do with the Tour Down Under, in my memory; it was to do with one of my favourite quotes from Indira Ghandi, simple as that.

    [124] T 186.10-12.

34. When cross-examined further on this issue, the Respondent conceded that what she had said, in the first post, was that she believed that Mr MacFarlane had conceived the idea for the TDU, and not the Applicant as the media had asserted.[125] When it was put to her that she had asserted this as a matter of fact, rather than a belief, she gave the following evidence:[126]

    A.The truth is that I believe David had conceived the idea and the truth was that I thought that he had worked very hard without taking any credit for that work.

    Q.And the truth is that's what you meant to convey by this post.

    A.I cannot recall what was the truth about what I meant to convey at the time, other than I wanted to give credit to David for his work over many years and particularly around the Tour Down Under, and that he had been gone and been dead for over 10 years, and it was I was trying to honour my friend. I wasn't doing any more than trying to honour my friend.

    [125] T 188.13-24.

    [126] T 189.1-13.

35. When asked if there was any sensible interpretation to the first post, other than that the media kept incorrectly asserting and praising the Applicant for conceiving the idea for the TDU, and that was wrong, she said:[127]

    I think my answer is no to that, I think.

    [127] T 189.37.

36. Later, the following exchange occurred:[128]

    [128] T 191.15-29.

    Q.Can I just make sure we're on the same page, so I get a direct answer. By that you meant the media repeatedly asserted a proposition.

    A.Yes.

    Q.And to build on that, you meant that the proposition the media kept on asserting was that Mike Turtur had conceived the idea of the Tour Down Under.

    A.I believe that could be read from that, yes.

    Q.Well, can you think of any other way to read it.

    A.No, your Honour.

    Q.That's what you intended at the time, isn't it.

    A.I honestly cannot remember what I intended at the time which is now almost two years ago, and it has not occupied my mind at all, and that's what I felt at the time and what I believed at the time.

37. The Respondent did not agree to a proposition put to her that in elevating or praising Mr MacFarlane, she had, by her words, diminished Mr Turtur.[129] However, later, in cross-examination, she gave the following evidence:[130]

    Q.Well now, you would accept, would you not, that what you wrote tended to diminish Mr Turtur.

    A.I believe that it could be read to be that.

    Q.Yes.

    A.That was not my intention though.

    Q.No but you accept it could be read that way.

    A.I can accept that people could read it that way.

    [129] T 193.37-194.21.

    [130] T 200.19-25.

38. The Respondent maintained that the first post was not about the Applicant, and that her mind was not turned to the Applicant when she wrote it, rather she had written the post about her friend Mr MacFarlane and about Lance Armstrong.

39. The first post tagged eight people, including Bill Spurr, Margaret Ralston and Julie Nykiel, all of whom were the Respondent’s Facebook friends. The Respondent explained that the purpose of her post was to honour her friend, Mr MacFarlane, and the eight persons tagged had previously worked with Mr MacFarlane.[131]

    [131] T 193.30-36; T 207.1-33.

40. The Respondent gave evidence that she believed the first post to be factual and based on information she believed to be true.[132] When asked in cross-examination how she knew that the TDU was Mr MacFarlane’s idea, and not the Applicant’s, she said:[133]

    Conversations that I had with David and friends over the years, that was how my memory became – I don’t recall David ever saying that directly but it’s just what I gathered from conversations with him and others around the Tour Down Under over many years.

    [132] T 179.5-15.

    [133] T 195.32-36.

1. Malice is to be distinguished from other states of mind such as carelessness, impulsiveness, pig-headedness, excessive zeal or a failure to arrive at rational conclusions.

2. What is relevant is the defendant’s state of mind at the time of the publication of the defamatory material. In determining that state of mind, a defendant’s conduct after the publication of the defamatory material may provide evidence of malice if it is probative of his or her state of mind at the time of publication.[398]

   [398] Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254.

3. In making the findings I have with respect to the Respondent’s state of mind at the time she made the posts, I have considered all of the evidence, including evidence of her conduct after making the posts and during the course of this litigation. After having done so, I am not satisfied there is sufficient evidence for me to find, on balance, that at the time the Respondent made the posts, she did so because of any malice or ill will she bore with respect to the Applicant.

4. Further, having regard to my finding as to the alleged ‘Tour of Flanders’ exchange, I cannot be satisfied, in any event, that the Applicant was aware the Respondent held any such (alleged) state of mind, necessary to found a claim for aggravated damages.[399] My further reasoning and findings on the issue of malice follow.

   Targeting of Persons with Influence

   [399] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 151-152.

5. The Applicant pleaded as a particular of malice that by the posts, the Respondent deliberately targeted those people, within all levels of government, who held senior and influential positions.

6. I refer to my earlier discussion as to the nature of the recipients at paragraphs 612-615 herein. I accept that, included in the persons tagged, and in the Respondent’s list of Facebook friends, are people who are involved with government in senior and influential positions.

7. However, the Respondent’s background includes periods working within government, as a Project Officer at the Tourism Commission, as an Adelaide City Councillor and as a board member of the SATC. It is therefore understandable that she has a large circle of friends and acquaintances, who now hold senior and influential positions in government, and that these people are her Facebook friends.

8. Further, I accept the Respondent’s evidence that the eight people that she tagged into the first post, were chosen by her as those eight people knew Mr MacFarlane and had worked with him. This evidence was not challenged.

9. I am not satisfied that the Respondent deliberately targeted people in government, who held senior and influential positions, out of malice or any ill will towards the Applicant, or the fact that these people were in fact recipients of the posts is evidence of any alleged malice.

10. The Respondent conceded in cross-examination that she knew, because her Facebook settings were public, that persons other than her Facebook friends had the ability to see the posts, meaning she must have understood that the potential audience for the posts was widespread. However, as I am not satisfied that[SJJ(2]  the Respondent intended the posts to be about the Applicant, I am similarly not satisfied that she made a conscious and deliberate decision to make the posts ‘public’, as a result of any claimed animosity she held towards the Applicant.

    Falsity

11. I accept the Applicant’s unchallenged evidence that he created the concept for the TDU (such that he therefore has not falsely taken credit for doing so) and that he has not treated local mayors and sponsors ‘poorly’. As such, the defamatory imputations conveyed by the first post and the second post were false.

12. However, I also accept the Respondent’s evidence that, at the time she made the posts, she believed, and held an honest belief, that Mr MacFarlane had created the concept for the TDU.[400]

    [400] T 181.5-10, T 181.13-182.4, T 182.25-29, T 191.33-36.

13. This is notwithstanding that the evidence given by the Respondent as to the basis for that belief, was not specific (‘it’s just what I gathered from conversations with [MacFarlane] and with others around the Tour Down Under over many years’ – being people in the cycling world, possibly including Mr Solari).[401]

    [401] T 195.30-196.15.

14. The Respondent was cross-examined as to whether, at the time she made the posts, she honestly believed that the Applicant had ‘stolen the credit’ for having created the concept for the TDU, being the defamatory imputation conveyed by the first post. She said she did not.[402] As such, she did not have an honest belief in the truth of the defamatory statement contained in the first post.

    [402] T 258.2-6.

15. However, having regard to all of the evidence, I accept that the Respondent’s purpose in writing the first post was twofold, as she consistently said, namely, to highlight the forthcoming release of Lance Armstrong’s contract details, and to honour her friend, Mr MacFarlane.  I accept that it was not her intention to discredit or disparage the Applicant, notwithstanding that the words she ultimately used, had that effect.

16. The Respondent gave evidence that at the time she wrote the posts, she had heard rumours to the effect that local mayors and sponsors had been treated poorly over the years.[403] I accept that evidence.

    [403] T 218.16-20.

17. As to whether the Applicant had treated local mayors and sponsors poorly, the Respondent said she could not recall exactly what she knew at the time, but that she must have had the view in her head that the Applicant had treated local mayors and sponsors poorly.[404] Having regard to the context in which this evidence was given, namely during cross-examination designed to illicit agreement from the Respondent that this was a defamatory meaning conveyed by the second post, the Respondent’s evidence on this topic represented a concession, as to her likely state of mind at the time of the posts. I accept that evidence.

    [404] T 218.28-34.

18. Merely because a defamatory statement is untrue, and the Applicant knows it to be untrue, or does not have an honest belief in its truth, does not, of itself, amount to aggravation.[405] However, I accept the submission made by the Applicant that the very fact the imputations are false, impacts on the hurt and distress caused to the Applicant from the publications, and therefore is relevant to the overall assessment of damages.[406]

    Failure to Inquire/Reckless indifference as to the Truth

    [405] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [779].

    [406] Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738, Barrow v Bolt [2013] VSC 226 at [12]-[14].

19. In Roberts v Bass, the High Court stated:[407]

    In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. “When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth”, said this Court in R v Crabbe, “he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.” In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant.

    [407] (2002) 212 CLR 1 at [84].

20. These observations were made in the context of the court considering the availability of a defence of qualified privilege.

21. The Applicant submitted that recklessness in making a publication was a ground for the award of aggravated damages, provided that such ‘state of mind’ had affected the Applicant.[408]

    [408] Applicant’s Amended Outline of Closing Submissions at [137] and [158].

22. In support of that proposition, the Applicant referred to the decision in Andrews v John Fairfax and Sons Ltd,[409] wherein Mahoney JA expressly referred to the potential for aggravated damages to be awarded in circumstances where a defendant failed to make enquiries ‘which would have instantly shown the story to be an utter fabrication’ such that it could be reasonably treated as aggravating a plaintiff’s injury.

    [409] [1980] 2 NSWLR 225 at 249, 250.

23. The Respondent was cross-examined as follows:[410]

    Q.Did it occur to you to check with Mr Turtur before you wrote this post.

    A.No because the post wasn't about Mr Turtur, it was about my friend, David McFarlane, and about Lance Armstrong's contract renewal - contract confidentiality being ended. So no, it wasn't - it wasn't about Mike Turtur. The post was about my friend and about the contract.

    [410] T 200.26-33.

24. There was no evidence as to what, if any, other enquiries the Respondent made, prior to making the posts, to establish the truth of what she proposed to say.

25. As previously stated, I accept that the Respondent did not intend the posts to discredit or disparage the Applicant.

26. Had she made enquiries of the Applicant, she would have ascertained the truth with respect to the defamatory statements. Enquiries with other sources may have revealed a myriad of different views as to the creation of the concept for the TDU, relevant to the defamatory imputation arising from the first post, as demonstrated by the comments made to the first post.

27. I refer again to what was said by the Queensland Court of Appeal in Cerutti and Anor v Crestside Pty Ltd and Anor, namely:[411]

    … Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages. However, if the plaintiff is aware of the defendant’s state of mind and this aggravates the applicant’s hurt feelings, then damages may be increased in order to appropriately compensate.

    [411] [2014] QCA 33 at [40].

28. Although the Applicant gave evidence as to why, he believed, the Respondent held malice towards him, that belief was based on his recollection of the so-called Tour of Flanders exchange. I have already outlined why I cannot be satisfied of such evidence on balance, and why I do not accept, on balance, that the Respondent acted with malice, or for an improper purpose.

29. I am not satisfied that, in the circumstances of this case, the Respondent acted with ‘sheer recklessness’ of the type foreshadowed in Roberts v Bass, or that her failure to make enquiries before making the publications justifies an award of aggravated damages.

    Apology

30. I have outlined previously the steps the Respondent took to apologise, both directly to the Respondent (via his solicitors) and publicly, via Facebook, and the Applicant’s reaction to those apologies.[412]

    [412] See [210]-[223] herein.

31. The Applicant’s evidence was that he thought the letter of apology was ‘a bit of a joke’ and that it made him feel even more angry.

32. Counsel for the Applicant made much of the fact that this letter did not retract the alleged defamatory imputations and described it as ‘no apology or retraction at all’.[413] Counsel focussed on the statement in that letter that the post ‘was intended to be factual’ and based on information that she ‘believed to be true’, as adding to the Applicant’s distress and anger, and thus being a claimed factor in aggravating his damage.

    [413] Applicant’s Amended Outline of Closing Submissions at [145].

33. The Applicant acknowledged that the simple absence of an apology was neutral.[414] However, the Applicant submitted that ‘a purported apology which is no apology at all is capable of increasing the plaintiff’s hurt and, if publicised, of further harming reputation’.[415]

    [414] Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44, 66.

    [415] Applicant’s Amended Outline of Closing Submissions at [143].

34. In support of this submission, the Applicant referred to the decisions of David Syme & Co Ltd v Mather[416] and Carson v John Fairfax & Sons Pty Ltd,[417] both of which concerned defamation proceedings commenced against the press.

    [416] [1977] VR 516, 537-538.

    [417] (1993) 178 CLR 44, 66.

35. In David Syme, the court concluded that in assessing damage, the court was entitled to have regard to both the form of the defendant newspaper’s published apology and its lack of prominence in comparison to the original defamatory article. The court determined that the jury were entitled to find, in the particular circumstances of that case, that after publishing a sensational and false report, the newspaper had endeavoured to escape liability by a modestly presented retraction which failed to give prominence to the apology made to the plaintiff, thus adding to his hurt and distress.

36. In Carson, the defendant newspaper only published an apology some eight months after the publication, and then in guarded terms that differed from a proposed apology authored by the plaintiff, such that the court reasoned that the jury may have considered it to represent a continuation and affirmation of the previously defamatory assertions made by the newspaper.

37. The letter of apology was written in response to the Concerns Notice. The Concerns Notice was a five-page letter, drafted by solicitors and one in which various legal demands were made. Although the version of the Concerns Notice in evidence is partly redacted, it can be inferred the letter contained a demand for payment of a sum by way of damages, having regard to its content and the express reference therein to ‘Aggravated Damages’.

38. The language used in the Concerns Notice mirrors that of the pleadings, which is verbose and difficult to follow, particularly to those who are not legally qualified. The Concerns Notice requests a public apology be made in terms acceptable to the Applicant, but does not, for example attach the draft of any acceptable apology.

39. The Concerns Notice was received by the Respondent over a year after she made the posts and in the absence of the Applicant making any prior contact with her, expressing his concerns about the posts. Notwithstanding I have some doubts as to aspects of the Respondent’s evidence, which I have previously outlined, I accept her evidence that she was shocked upon receiving the Concerns Notice and that she could barely recall having made the posts.[418] I also accept her evidence that she wanted to do everything she could to address any concerns the Applicant had about the posts.[419]

    [418] T 169.30-31.

    [419] T 171.15-16.

40. It was in this context that the letter of apology was written. It was written personally by the Respondent, a private citizen, and not drafted by a solicitor.

41. When the letter of apology is considered as a whole, and in context, rather than simply analysing it from a technical and legal perspective, it reads as a genuine apology and an attempt to make amends. Its tone is polite and respectful. While it does not expressly acknowledge that the Applicant created the TDU nor retract any inference that he had falsely claimed credit for being the creator of the TDU, it expressly refers to the Respondent holding the Applicant in the highest regard for having successfully run the TDU and for his contributions to cycling and the state’s economy. It apologises for the distress caused to the Applicant by the post. It confirms the post has been removed from Facebook. It contains an offer to post both the Concerns Notice and the letter of apology on Facebook to make amends.

42. I am not satisfied that the letter of apology was ‘no apology at all’.

43. I accept the Applicant’s evidence that when he received the letter of apology, he thought it was ‘a joke’ and it made him more angry. Although that was his response, it is not a response that one would necessarily expect, having regard to the terms and timing of that letter.

44. I am satisfied the statement made in the letter of apology that the post ‘was intended to be factual’ was not made ‘to rub salt into the wounds’ but to provide an explanation for why the Respondent had said what she said. I do not doubt that a similar letter drafted by a lawyer, or an experienced defamation litigant such as a newspaper, may have not included those words. But in doing so, I do not consider the Respondent was intending to, nor did she, continue or affirm the defamatory statements.

45. I accept the Respondent’s evidence that she did not refer to the defamatory imputations in the letter of apology as they were not in her mind when she wrote the posts.

46. As the Facebook apology, this was drafted without recourse to the Applicant,[420] and was made publicly on Facebook. It was made at a time by which the Respondent knew that Mr MacFarlane had not created the concept for the TDU.

    [420] Noting again that there was no evidence that the Applicant had ever provided to the Respondent an apology in terms approved by him.

47. The Applicant submitted that by its terms, this apology caused reputational damage of itself, by drawing attention to the original posts without in any real way retracting or apologising.

48. The Facebook apology acknowledged the significant contribution the Applicant had made to the sport of cycling and to the establishment and success of the TDU. The Facebook apology did not expressly retract the defamatory imputations (as I have found them to be, rather than as expressed in the Concerns Notice or in the pleadings).

49. However, I accept the Respondent’s evidence that the reason she posted the apology on Facebook was to ensure the same people who may have seen the posts, also saw the apology.

50. I accept the Respondent’s evidence that she did not expressly retract the defamatory imputations as she did not wish to highlight the imputations in a publicly posted apology. I accept her evidence that she did not want to open up the matter again, rather her intention was to simply apologise to the Applicant. I do not doubt that the Respondent was concerned to ensure that she did not compound matters any further.

51. The pleadings and the Concerns Notice listed multiple defamatory imputations said to arise from the posts. The wording used was in exaggerated and emotive terms. It is understandable why the Respondent may have made a conscious decision not to list and retract the alleged defamatory imputations in the Facebook apology, in those circumstances. I accept that she was genuinely concerned not to draw attention to the subject matter of the original posts, and that the absence of a specific retraction of the defamatory imputations in the Facebook apology, as I have found them to be, did not amount to a continuation or affirmation of the defamatory statements.

52. I am not satisfied that the apologies were ‘accompanied by, or part of, a course of unjustifiable and improper conduct’ on the part of the Respondent,[421] or otherwise ‘motivated by a desire to injure’ the Applicant.[422]

    [421] Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at [167].

    [422] Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44, 66.

53. I am not satisfied that the manner, form or timing of either the letter of apology or the Facebook apology is such as to warrant any additional award of damages.

    Respondent’s Conduct of Litigation

54. In Triggell v Pheeney, the High Court held that the conduct of a defendant up to and including the trial may be taken into consideration not merely as evidence to show, retrospectively, malice at the time of the publication, or the intent with which the wrong was done, but as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable. [423]

    [423] (1951) 82 CLR 497, 514.

55. The matters raised by the Applicant relating to the apology, as previously discussed, were submitted to be examples of such improper post publication conduct. In addition, the Applicant submitted that other conduct, including the advancement of the later abandoned defence of qualified privilege, and the defence of triviality, evidenced the Respondent’s want of bona fides, and had added to the harm sustained to the Applicant.

1. The Applicant did not expressly plead these matters as particulars or circumstances of aggravation and the Respondent did not give evidence-in-chief addressing any such allegations.

2. Although the Respondent was cross-examined about her contact of various persons during the course of the litigation, including Ms D’Aloia, Ms Nykiel and Mr Morris, there was no submission ultimately advanced that this conduct was improper, such that it aggravated the Applicant’s damages. In any event, in my view, there was nothing improper about the manner in which or the circumstances in which the Respondent made contact with those potential witnesses. I accept the Respondent’s evidence that she did so as she was exploring matters pertaining to her defence of the action.

3. The Defence as initially advanced by the Respondent included a pleading that the posts were published on an occasion of qualified privilege, both at common law and pursuant to s 28 of the Act.

4. The Respondent pleaded that she legitimately believed that the recipients had an interest, or apparent interest in the subject matter of the posts, which included Lance Armstrong and his contract details, and Mr MacFarlane’s role in creating the concept of the TDU.

5. This plea was maintained until it was abandoned shortly prior to trial.

6. The Applicant submitted that the withdrawal of that pleading, without explanation, demonstrated that the defence was hopeless and doomed to fail, particularly in circumstances where the Respondent had not properly pleaded any duty to publish, self-interest to publish or sufficient interest to the recipients.

7. The Respondent was neither examined nor cross-examined about her motives or otherwise in advancing this defence.

8. While it can be inferred from the fact the pleading was withdrawn, that the Respondent (and/or her advisers) formed a view, shortly before trial, that the defence was unlikely to be successful, it is difficult, in the absence of proper evidence relevant to the defence, for the court to hypothetically make a finding that the defence was ‘manifestly hopeless’, or that her conduct in advancing the defence was improper or unjustifiable.

9. The Respondent maintained the defence of triviality and was unsuccessful in establishing that defence.

10. As outlined by Toohey J in Coyne v Citizen Finance Ltd:[424]

    It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant’s conduct lacked bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it…. But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff. (my emphasis)

    [424] (1991) 172 CLR 211, 237-238.

11. As outlined, there is a conflict on the authorities as to the precise meaning of s 31 of the Act, such that there remains some uncertainty as to the precise elements of the defence. This was a case involving social media, meaning there is no solid line of established authority in terms of precisely what must be proved to establish publication and the methodology used to interpret the meaning conveyed by matters published on social media.

12. While the defence of triviality failed in this instance, I am not satisfied that it could be said the defence was ‘hopeless’, nor am I satisfied that in maintaining this defence, the Respondent’s conduct was lacking in bona fides, improper or unjustifiable.

13. I am not satisfied that the Respondent’s post publication conduct, including the conduct of the defence, warrants an award of aggravated damages.

    Comparative Cases

14. Both parties provided the court with information pertaining to recent awards of damages in defamation cases throughout Australia.

15. Of course, each case turns on its own facts, and as such, I will not set forth details of all of the authorities to which I was referred, but I have considered each authority, and others, in approaching the assessment of damages in this case.

16. Two of the authorities referred to by the Applicant involved persons who were well known in sporting circles.

17. In Reid v Dukic,[425] the plaintiff had a long history of involvement in the sporting community in Canberra and the defamatory publications were made on Facebook, viewed by between 5 to 23 people and were left online for up to 395 days.

    [425] [2016] ACTSC 344.

18. Whilst, in that respect, there are some similarities with the within action, the nature of the defamatory statements and the imputations conveyed therein were somewhat different.

19. The trial judge assessed general damages in the sum of $160,000 and awarded $20,000 in aggravated damages. As no defence was ever filed, the trial judge proceeded on the basis that the statements made conveyed the defamatory imputations as alleged, which included, inter alia, that the plaintiff:

    (a)was racist,

    (b)was grossly incompetent in terms of her management ability,

    (c)was gender biased,

    (d)had habitually misled the public,

    (e)had defrauded Capital Football,

    (f)had misappropriated funds in the order of $150,000 from Capital Football,

    (g)was a nepotist; and

    (i)had financially taken advantage of parents.

20. In his judgment, Wall J noted that the posts were aimed at the plaintiff’s conduct in her role as CEO of Capital Football and were the subject of conversation both inside and outside of the plaintiff’s workplace. Further, the defendant had targeted the plaintiff over a period of two years and had never provided an apology.

21. In the matter of Geyer v Ghosn,[426] the plaintiff was the daughter of a rugby league “great”, Mark Geyer. Mr Geyer enjoyed an international career as well as playing for the Penrith Panthers Club and has, since his retirement from sport, held positions as a sports commentator in the mainstream media. The plaintiff sued the defendant for two Facebook posts published in March 2019 on a Facebook page “NRL Memes”. A jury found that one of those posts conveyed, inter alia, that the plaintiff was one of the women portrayed in a sex tape involving another well-known Penrith rugby union player. At the time of publication, the Facebook page had more than 300,000 likes and followers, and the publication went ‘viral’.

    [426] [2020] NSWDC 744.

22. Gibson DCJ awarded the plaintiff $125,000 in damages.

23. By comparison to the within action, those two actions involved far more serious defamatory allegations, with demonstrated evidence of the grapevine effect.

    Assessment

24. By way of summary, I have made the following findings from which inferences may be made as to the damage sustained as a result of the posts:

    1.At the time of the posts, the Applicant was, and remains, highly regarded within the community for his contribution to the sport of cycling, his role in creating the concept for the TDU and his many years of stellar service as the inaugural and long serving Race Director of the TDU.

    2.At the time of the posts, the Applicant had, and continues to have, a high reputation for honesty and integrity.

    3.The posts were published by the Respondent on 30 March 2019. Upon receipt of the Concerns Notice on 1 April 2020, the Respondent immediately changed her Facebook settings, such that the posts could only be seen by her. The posts were therefore potentially accessible to a wide audience for a period of 1 year and 2 days.

    4.The posts were published on the Respondent’s Facebook page at a time when her Facebook profile was on a ‘public’ setting such that the posts were automatically presented to her 885 Facebook friends via their Facebook news feed; and in addition, people who were not her Facebook friends could also see the post via three potential ways:

    (a)depending on the ‘relevance’ of the post to the user, it may have appeared in their news feed (and, for example, depending on the privacy settings of those persons tagged into the first post, it may have appeared in the news feeds of the tagged person’s Facebook friends); and/or

    (b)if they searched on Facebook for it; and/or

    (c)if they used another internet search engine such as Google to search for it.

    5.The Respondent’s Facebook friends included many persons who were prominent and/or influential in government, business and/or sporting circles.

    6.Eight people were tagged into the first post, but at least one of those eight people, Julie Nykiel, did not see that post, or the second post. There was no evidence, other than hearsay evidence, that any of the other seven persons tagged, in fact saw and comprehended the posts.

    7.An additional 10 persons posted comments in response to the first post.

    8.An additional 30 persons reacted to the first post.

    9.Of those persons listed on Schedule F, only two either reacted or commented to the first post, being Bill Spurr and JB. At least eight such persons did not see the posts.

    10.Two people commented on the second post, being persons who had also commented on the first post.

    11.While the potential audience for the posts was extensive, it is likely that the majority of persons who in fact saw and read the posts did so soon after the posts were made, having regard to the manner in which material is distributed to Facebook users’ news feeds, and the ever changing and growing volume of information ‘fed’ to Facebook users’ news feeds.

    12.The very limited number of people who interacted with the posts, and the fact there was no media response to the posts until after this action was issued, demonstrates the practical reality, and I find, that only a very small proportion of the potential audience in fact read and comprehended the posts.

    13.The first post contains an imputation defamatory of the Applicant, namely that contrary to media reports, it was Mr MacFarlane, not the Applicant, who created the concept for the TDU and that the Applicant had falsely taken credit for having done so. This implies dishonesty on the part of the Applicant, but not criminal dishonesty.

    14.The second post contains an imputation defamatory of the Applicant, namely that he had treated local mayors and sponsors poorly.

    15.The defamatory imputations are false.

    16.The third post is not defamatory of the Applicant.

    17.The Respondent has not established the defence of triviality.

    18.The Applicant has not established that, at the time the Respondent made the posts, she was acting with malice or ill will towards the Applicant.

    19.The Applicant has not established, in any event, that he had a reasonable belief that the Respondent held animus against him, noting I cannot be satisfied, on balance, as to the reliability of the Applicant’s evidence about the so-called ‘Tour of Flanders’ exchange.

    20.The Applicant is not entitled to aggravated damages.

25. As to general damages, the starting point is an assessment of damages to compensate the applicant for the personal distress and hurt caused to him. The next consideration is reparation for the harm done to the Applicant’s reputation. Finally, the award must be sufficient to vindicate the Applicant’s reputation in the face of the imputations arising from the publications. These three considerations do overlap to a certain degree.

26. I accept that the posts have caused the Applicant genuine feelings of distress, and anger. I accept the Applicant’s feelings have been hurt by the posts, and by his concern at the potential for reputational damage arising therefrom. I accept Ms Pisani’s evidence that since the posts, she has observed the Applicant to be quieter and less self-confident. I also accept that the fact the posts were made on the day prior to the expiry of the 2016 Agreement, while being a fact unknown to the Respondent, contributed to the Applicant’s distress.

27. However, the Applicant took no action with respect to the posts until nearly a year thereafter. While I accept that the issue of proceedings was always likely to generate media reaction, and did, a simple request by the Applicant to the Respondent to remove the posts from her Facebook page, was unlikely to generate any such response. The fact the Applicant did not take that simple step and was able to successfully negotiate the 2019 Agreement and complete the 2020 TDU as Race Director, before taking any action, demonstrates, and I find, that the impact of the posts on the Applicant was relatively modest.

28. Notwithstanding that there was the potential for the posts to cause damage to the Applicant’s reputation, bearing in mind the Applicant’s public profile, stellar reputation and the nature of the potential recipients of the posts, there is no evidence to establish any actual damage to such reputation. The Applicant successfully negotiated the 2019 Agreement after the posts were made and achieved his intended goal of remaining the Race Director for the 2020 TDU. There was no evidence that the Applicant has been denied any business or board opportunities since the posts were published, nor any evidence led to demonstrate that the ‘grapevine effect’ has, in fact, occurred.

29. Notwithstanding the posts, the Applicant continues to receive public and media recognition for his role both as the brainchild behind the TDU and the significant contribution he has made to both the sport of cycling and this state’s economy.

30. Taking all relevant matters into account, including, of course, the necessity for any award of damages to also vindicate the Applicant and his reputation, I assess general damages in the sum of $30,000.

    Orders

    1.Judgment in favour of the Applicant as against the Respondent in the sum of $30,000.

    2.I will hear the parties as to costs and interest.

    
    

[SJJ(1]

[SJJ(2]