Wells v Cossari
[2020] VCC 988
•23 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-05805
| KIMBERLEY ARTHUR WELLS | Plaintiff |
| v | |
| GIUSEPPE “JOE” COSSARI | Defendant |
JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 5, 9, 10, 11, 12, 29, 30 June 2020 | |
DATE OF JUDGMENT: | 23 July 2020 | |
CASE MAY BE CITED AS: | Wells v Cossari | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 988 | |
REASONS FOR JUDGMENT
Subject:Damages claim for defamation; Counterclaim for personal injury
Catchwords: Independent candidate for election to Victorian State Legislative Assembly alleges assault and battery against rival and successful candidate for election; Publications conceded to be defamatory save for imputations said by plaintiff to arise by incorporation by reference to initial publication; Defence of justification and qualified privilege; Defamation Act 2005 ss25 and 30; Counterclaim for damages for assault and battery; Judgment for the plaintiff for damages; Counterclaim dismissed
Legislation Cited: ss25, 30, 31, 35 Defamation Act 2005 (Vic); s140 Evidence Act 2008; Crimes Act 1958; Defamation Act 1974 (NSW)
Cases Cited:Briginshaw v Briginshaw (1938) 60 CLR 336; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Roberts v Bass (2002) 212 CLR 1; Stoltenberg v Bolton [2020] NSWCA 45; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374; Carson v John Fairfax and Sons Limited (1993) 178 CLR 44, 60; O’Reilly v Edgar [2019] QSC 24; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Broom v Cassell and Co Limited [1972] AC 1027; Lower Murray Urban and Rural Water Corporation v De Masi (2014) 43 VR 348; Rantzen v Mirror Group Newspapers Limited [1994] QV 670; Clark v Ainsworth (1996) 40 NSWLR 463; Goldberg v Voigt [2020] NSWDC 174; Anand v Armstrong [2020] SADC 34; Bolton v Stoltenberg [2018] NSWSC 1518; Mirabella v Price [2018] VCC 650
Judgment: For the Plaintiff; Counterclaim dismissed.
Orders:1. Within 14 days of this day the parties must bring in short minutes to give effect to these reasons.
2.Costs reserved.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Hoyne | Carbone Lawyers |
| For the Defendant | Mr D Gilbertson QC with Ms S Whiteman | Burch & Co Lawyers |
HIS HONOUR:
Background
1 Mr Wells, the plaintiff in this proceeding, has been a member of the Victorian Legislative Assembly since October 1992 representing an area in outer south‑eastern Melbourne now comprised in the electorate of Rowville. The name of the electorate and its precise boundaries have varied over the years as a result of redistributions. Mr Wells is the longest serving member of the State Lower House and occupies the Shadow Ministry as Special Minister of State and Minister for Counter-Terrorism. He is the manager of Opposition Business in the Lower House. Over the years, he held various shadow ministries whilst the Liberal Party was in Opposition, including Shadow Treasurer from December 2006. He served as Treasurer from 2010 until 2013 with the Liberals in Government in Coalition, and thereafter until the election of 2014, he served as Minister for Police and Emergency Services and Minister for Bushfire Response. Following the party’s return to Opposition, he served again as Shadow Minister for Police and Emergency Services. (Transcript “T” 69) His role as Shadow Special Minister of State means that he is the Opposition spokesman on subjects such as the Ombudsman, Freedom of Information, the Independent Broad-Based Anti‑Corruption Commission and the Public Service Commission. He is also Opposition Spokesman on Parliamentary Pay and Conditions. (T72-3)
2 12 November 2018 was the first day of “pre-polling” for the Victorian State General Election of 2018. During a two-week pre-polling period, electors who would experience difficulty in casting their votes on the appointed election day could cast them early at a select number of polling stations. In accordance with the regime of preferential voting in Victorian State elections and Commonwealth elections, the Liberal Party of Australia, which had endorsed Mr Wells as its candidate for the seat of Rowville, determined to direct its voters to give second preference to the defendant, Mr Cossari. (T76, Lines (“L”) 2-5)
3 Mr Wells said that he had known Mr Cossari at that point “maybe for 15, 16 years …” He knew him as a councillor in the City of Knox. Mr Cossari represented the ward where Mr Wells lived. (T73, L24-28) Mr Wells became aware that Mr Cossari would be a candidate for election for the seat of Rowville around 6 or 7 November. (Ibid, L29-31) Mr Wells had been given to understand that Mr Cossari would represent the “Transport Matters” Party. This led Mr Wells to telephone Mr Cossari on 7 November seeking confirmation of Mr Cossari’s candidacy and an indication of “where was he putting his preference.” (T74, L1‑11) Mr Wells said Mr Cossari told him that he was running as a candidate for “Transport Matters” and that the party would decide the direction of preferences. (Ibid, L12‑15) Subsequently, Mr Wells became aware on 9 November that Mr Cossari would be running as an independent rather than as an endorsed candidate for the Transport Matters Party. This became evident to Mr Wells at the ballot draw conducted by the Victorian Electoral Commission on that day. (T75, L21‑31)
4 Around the same time – that is, on 7, 8 or 9 November – Mr Cossari’s volunteer campaign manager, Mr Cole, with Mr Cossari’s authority, negotiated a preference “swap” with the Labor candidate, Dr Shahbaz. This would have the effect that the Australian Labor Party would direct its voters to give second preference to Mr Cossari and Mr Cossari would direct his voters to give second preference to the Labor candidate. (T578‑9, Court Book (“CB”) 233, T476)
5 The pre‑polling station for Rowville was situated in a small factory property at Kelletts Road. (Exhibit B) Photographs depict this factory as being accessed through a roller door at the side of the building which is divided from its neighbouring factory by a paved driveway. Car parking spaces set at 90 degrees to the driveway were available, both abutting the side wall of the factory used as the polling booth and its neighbouring factory on the other side of the driveway. There was also parking space at a 90 degree angle to the front wall of the factory. The roller door, which provided voter access to the polling station, was situated in the side wall of the factory complex towards the rear of the allotment – that is, at the end furthest from the frontage at Kelletts Road.
6 According to Mr Wells, he arrived on 12 November – that is, the first day of pre‑polling – at his electorate office around 9.15 or 9.20am, conducted a staff meeting and undertook a meeting at 10.00am with one of the elders of a church located in Rowville who had offered his assistance in the election campaign, specifically to hand out how-to-vote cards. (T79) According to Mr Wells, “then I did general office stuff, just making sure our planning was right.” (Ibid, L29‑30) Mr Wells said he was “rostered for about midday down at the pre-poll.” (T80, L5‑6) After a meeting with a church elder, there was a further staff meeting. (Ibid, L8‑12) This meeting started at about 10.30am, concluding about 11.00am. (Ibid, L24-27) A roster prepared for the first day of pre‑polling showed Mr Wells rostered with Mr David West at the polling station at 14/5 Kelletts Road from 12.00pm [viz, noon] to 2.00pm. (Exhibit C) Mr Wells estimated the period to travel from his electorate office to the polling place at “around about 10 minutes.” He said he left his electorate office at around 11.30am. He said he parked “directly out the front of the pre‑polling building” then “grabbed a couple of how‑to‑vote cards and then proceeded to walk around to find the Liberal volunteers who were handing out how‑to‑vote cards.” (T81, L22‑32) Mr Wells then met party branch member, Mr Andrew Fong. As he walked along by the cars parked at the side of the factory, he met Mr Cossari, who, he said, put out his hand and said, “I guess I’ll shake your hand now.” They shook hands and Mr Wells inquired where Mr Cossari was directing his preferences. Mr Cossari responded, “I’m doing an open ticket.” Mr Wells expressed his disappointment. He said there were perhaps six or seven people in the vicinity including Mr Fong, a Greens candidate Ms Natasha Sharma, Mr Shanahan who was distributing how‑to‑vote cards for the Democratic Labour Party, and a number of Labor Party members. (T82, L10‑26) Mr Wells said he then took over the duties of handing out Liberal how‑to‑vote cards from Mr Fong and Mr Brian Harris, with the assistance of Mr David West. Mr Wells said he had no further interactions with Mr Cossari on that day. (T83, L1‑12)
7 Mr Cossari said that he arrived at the pre-polling station on the first occasion around 8.00am on 12 November. He said this was a preliminary visit “to see what was going on”. He was given how‑to‑vote cards by a number of people, the first being the Greens card. He said he told those present that he was a candidate but could not stay. He “had to take [his] wife to Carlton where we did voluntary work for the Italian community. We served three and a half thousand people approximately.” (T433, L7‑18) The journey from Mr Cossari’s residence to Kelletts Road, he said, “would be at the maximum, 10 to 15 minutes.” (Ibid, L19-22) He therefore had a 15 minute trip back to Wantirna to collect his wife and convey her to Carlton, which trip took an hour and 15 to 20 minutes. He remained at the location of the charity in Carlton for 15 to 20 minutes. (T434, L2‑13) Mr Cossari said he then travelled to Kelletts Road. This journey he calculated as taking “close to an hour and three‑quarters.” (Ibid, L19‑26) According to his calculations, he returned to Kelletts Road between 10.00 and 10.30am. He added, “that’s only an estimation, I wasn’t timing.” (T435, L8‑10) He parked his car at the polling station for “about an hour.” He “opened the boot and started to get [himself] organised to hand out how-to-vote cards.” He had an “A‑frame” in the boot and his brochures. (Ibid, L9‑16) He said that Mr Wells was walking past and he (Mr Cossari) said to Mr Wells, “We are opposed at this election but nevertheless it doesn’t stop us from shaking hands and remaining friends.” (Ibid, L17‑25) Mr Wells, he said, “partly shook my hand … and walked down [scil on].” (Ibid, L26‑29) There was no discussion at that point of Mr Cossari’s preferences. (Ibid, L30‑31)
8 The how‑to‑vote cards which Mr Cossari was distributing had been published by the Transport Matters Party. Since he was not an endorsed candidate for that party, he “took the top off.” (T437, L2‑10) He said where he took up his position distributing cards he “would be the last person to give the voter a card.” (Ibid, L15‑16) Nevertheless, he said he “moved around.” (Ibid, L19) Mr Cossari said he was standing in the driveway of the factory looking towards Kelletts Road “to the people that are coming … to give them a brochure.” (Ibid, L28-30) He said Mr Wells approached him from his left and said, “who did you preference?” Mr Cossari said he responded, “ ‘no‑one’ because at the bottom of those brochures there was no preferences.” He said Mr Wells “then grabbed my hand and twisted it to see the underneath of the brochure. He looked at it, dropped my hand and moved away …”
9 Mr Cossari was born on New Year’s Day 1947. (T430, L28) In the old imperial measurements, he said he was five foot five inches tall. (Ibid, L30‑31) In the circumstances, he described himself as “shit-scared”. (T438, L12). He said that he suffers from atrial fibrillation. (T438, L14‑17) He described Mr Wells as speaking in “a very loud voice.” (Ibid, L23‑24) The entire event took place over three, four or five seconds. (Ibid, L26‑27) He said he was “traumatised”. (Ibid, L20) As a result of this interaction, Mr Cossari said he “experienced pain in the top of my shoulder as well as my elbow, and it’s like I’d been – somebody aggressively twisted my arm.” (Ibid, L29‑31) The underside of the brochures, he said, was blank, “nothing underneath.” (T439, L1‑2) Mr Cossari complained that the pain has persisted. He said during his evidence at trial “I got pain today. I have sleepless nights. It’s a continuous pain.” (T439, L8‑9) Mr Cossari said that he remained at the polling place “all day. On and off … but there all day.” (Ibid, L28‑30) He visited Officeworks at some time during the day seeking printing of a sample card reflective of his status as an independent candidate rather than an endorsed candidate of the Transport Matters Party. He then returned to the polling station. (T439, L31‑T440, L12)
10 In the course of the day, Mr Cossari spoke to a number of people at Kelletts Road. He did not tell them about the arm-twisting incident just described “because I didn’t think it was their business to know what happened.” (T441, L1‑6) Specifically, he spoke to Greens candidate, Natasha Sharma, and “even handed out how‑to‑vote cards for her.” He also spoke to Mrs Wells. (T441, L7‑19) He told Mrs Wells that he thought “Kim would win.” (Ibid, L29‑31) This was a brief conversation lasting only a matter of seconds. (T442, L1‑3) He exchanged pleasantries with a Mr Holland, a Liberal Party member and former Knox City Councillor. Mr Cossari said, “I was moving my vehicle somewhere else and he [Mr Holland] – and we just exchanged pleasantries.” (T442, L4‑8) He was engaged in conversation with another Liberal Party volunteer, Mr West, explaining that he had left the Knox Council and was now engaged in doing voluntary work for the Italian community. At that point, he said, “Mr Wells rolled up and said to Mr West, ‘don’t talk to him, move away from him’.” Mr Cossari said he was scared. (Ibid, L21‑27) Mr Wells was, he said, “quite loud.” (Ibid, L28)
11 Later in the evening at his home, Mr Cossari said he spoke to his volunteer campaign manager, Mr Cole, who was also a personal friend. (T443, L6‑11) He said he “explained to [Mr Cole] what happened and the least I can have is an apology for what happened.” (Ibid, L12‑13) He said he did not ask Mr Wells directly for an apology because “the way he carried on and how he spoke [was] intimidating.” (Ibid, L14‑16)
12 The following day – that is, Tuesday 13 November – Mr Cossari had had how‑to‑vote cards showing him as an independent candidate prepared. (T443, L25‑29, CB 298-99) He spoke to a Ms Golding of the Victorian Electoral Commission about these cards. At the time of the 2018 Victorian General Election, she had been appointed the Electoral Commissioner for the Rowville district for that election. She was the senior Victorian Electoral Commission officer on site at Kelletts Road. (T248) The electoral diary kept by the Victorian Electoral Commission for 13 November recorded a number of discussions between Ms Golding and Mr Cossari, referring to a meeting at 1.00pm on 13 November in which Mr Cossari “requested explanation of why his sign and handouts were not acceptable.” Ms Golding, according to the diary, explained that the materials were deceptive and misleading. Even after photos and other material were deleted or covered, the card which Mr Cossari was distributing “showed registered by Victorian Electoral Commission which was not the case.” (T459, L1‑23, Exhibit NN) At that stage, Mr Cossari made no complaint to Ms Golding or any of the other Victorian Electoral Commission officials on site relative to Mr Wells “twisting his arm.” Mr Cossari said he made no complaint about this on 13 November “because I was trying to get my independent brochures going.” (T445, L9‑16) On the evening of 13 November, Mr Cossari again met Mr Cole at his home. He said, “I spoke to Mr Cole, I was upset for what happened the previous day and I said to him I need an apology, this is not acceptable.” (T445, L24‑26) He asked Mr Cole’s assistance to put “words in proper English because now I am reverting a bit to my Italian origins.” (T445, L24‑30) Mr Cossari wanted an apology and he and Mr Cole decided to place a post on the Transport Matters Facebook page, established presumably for the Rowville election. (T446, L1‑6) The post uploaded, it would seem, at 9.40pm, 13 November, under the heading “Joe Cossari, Transport Matters, Rowville” stated:
“I would like to make known to the Rowville District that mid morning yesterday 12/11/2018, I was bullied, attacked, threatened & intimidated by the standing Liberal Party candidate Kim Wells at the Kelletts Rd Pre Polling Booth. He grabbed & twisted my left arm and demanded to see who I preferenced. I am still traumatised now by yesterday’s incident and I am requesting a formal public apology from Kim Wells.” (Exhibit E)
This is referred to in Mr Wells’ statement of claim as the “first publication”.
13 A post to similar effect dated 13 November under the heading “Joe Cossari, Natasha Sharma – Greens for Rowville” went up on Ms Sharma’s Facebook page. (Exhibit CC) This was uploaded following Mr Cossari’s discussions with Mr Cole. (T457, L27‑28) This is referred to in the statement of claim as the “fifth publication”. A post consisting of the same text was uploaded to the website of Dr Muhammad Shahbaz – Labor for Rowville. This is referred to in the statement of claim as the “fourth publication”.
14 The following day – that is, Wednesday 14 November – Mr Cossari attended Ms Golding in company with Mr James Gann, Australian Labor Party volunteer. The initial query was whether “we could leave our material on the premises.” Mr Cossari said, “she told us we can with certain conditions.” He continued, “Incidentally I want to report an incident that happened on Monday.” He said he explained what had happened. (T448, L5‑18) Mr Cossari said he told Ms Golding that there was physical contact between him and another candidate whom he did not name. (Ibid, L23‑25) Mr Cossari said Ms Golding replied, “Since there’s physical contact you must report to the police.” He said he told her that he wanted the matter to go to the Electoral Commission “end of story”, but she insisted, “you have to report it because of physical contact.” (Ibid, L26‑30) Ms Golding, who was called as a witness for the plaintiff, Mr Wells, said that she received a complaint from Mr Cossari, not naming the candidate involved but stating that Mr Cossari felt “intimidated”. (T261, L1‑7) She said the complaint needed to be put in writing and “we would then forward that to the VEC.” (Ibid, L10‑14) In her evidence‑in‑chief, she denied telling Mr Cossari to contact the police. (Ibid, L15) In cross-examination by Mr Gilbertson QC on behalf of Mr Cossari, she softened her denial to a statement: “I do not recall suggesting going to the police.” (T268, L10‑11) She continued, “I don’t believe I would have advised him to go to the police because the procedure that we have at the VEC is for complaints to be put in writing to the VEC in the first instance.” She gave this answer in response to my question: “Is it the case that not remembering that, it might have happened or it might not have happened, you can’t say one way or the other, or do you mean I can’t remember it because it didn’t happen?” (T268, L14‑22)
15 Whilst Ms Golding did not give a direct answer to my question, I take the answer which she did give to amount to a statement that she did not remember suggesting the complaint be brought to the police, but could not distinctly deny that she had made the suggestion.
16 In fact, whether in response to a suggestion from Ms Golding or not, Mr Cossari did attend Rowville Police Station and made a complaint against Mr Wells. Mr Cossari said, “I spoke to an officer. We sat down. Described what happened. And the officer said, ‘Do you want to press charges?’ I said, ‘No, this is for the Electoral Commission only.’” (T449, L9-13) Mr Cossari said he made this complaint to Victoria Police understanding that “anybody that makes a false report to police there’s a jail term, and I don’t want to be in jail.” (Ibid, L15‑17) Mr Cossari received a printed document styled “Notice to Victim – Important Information”. (Exhibit 2) It recorded the name of the officer described as “the police investigator” and the making of a report or complaint at 11.28 on 14 November 2018. The complaint was of “unlawful assault 14/5 Kelletts Road, Rowville, Vic, 3178.” The statement made to a Constable Bellink was as follows:
“My name is Giuseppe Cossari.
I am a candidate for election for the seat of Rowville in the forthcoming Victoria state election.
On 12 November 2019, I attended the early polling booth at Kelletts Rd in Rowville, to hand out brochures and speak with constituents. At approximately 9:30am, Kim Wells, the sitting liberal member for Rowville, who was standing for re-election, approached me and grabbed my left arm in an aggressive manner and twisted it, in order to see who I was directing my preferences to in my “how to vote” cards.”
17 This is referred to in the statement of claim as the “sixth publication”. The statement was not placed in evidence but, as Mr Hoyne in his closing submissions observed, Mr Cossari’s amended defence admitted the making of the statement.
18 The initial post (at Exhibit E) had attracted some 104 “likes”, 127 comments and 18 shares on the Facebook system. One of the comments was from Raymond Ng which stated:
“If this was real he would have already called the police. Don’t you find it a bit odd that Kim Wells needed to find out what his preferences were by grabbing him. Also, if it was true there would have been lots of witnesses from both sides and the police would have been involved. You are not really that gullible, are you?” (Exhibit Y)
19 This comment was the subject of discussion between Mr Cossari and Mr Cole by telephone on the early afternoon “that day”, viz 14 November. Following that discussion, Mr Cole put up a response to the comment on behalf of Mr Cossari and in his name on the Transport Matters page, stating:
“Raymond Ng I am disgusted that you think it is ok to physically touch a 72 year old man and twist his arm when you could have politely asked. My arm still hurts and I feel intimidated. I am no Labor Stooge. I stand for my own ideas and policy.” (Exhibit Z, T450)
This is referred to in the statement of claim as the “second publication”.
20 In response to further hostile comments from Steven Catani and Jimmy Wilcock, Mr Cole, on behalf of and in the name of Mr Cossari, placed a response on his behalf on the Transport Matters page, stating:
“Why would I lie? I am still in pain today and feel intimidated by what happened. I have nothing to gain by lying. Anyway I don’t need to justify myself to you.” (Exhibit AA)
This is referred to in the statement of claim as the “third publication”.
21 The following day, Mr Cossari had a discussion with Mr John Morgan of the Victorian Electoral Commission. Mr Cossari handed a copy of the Notice to Victim and a document styled “Statement” and headed “CAV Joe Cossari JP – Independent for District of Rowville”. (Exhibit 3) The statement referred to events happening on 12 November when Mr Cossari was at the electoral pre‑poll office in Kelletts Road, Rowville, handing out how‑to‑vote cards. It continued:
“Mid-morning Liberal Candidate Kim Wells came over to me and asked me who I was preferencing. I said ‘That’s my business’ and then from out of the blue he whacked my hand, grabbed my wrist and twisted my arm to try and see my how to vote card. I am still feeling the physical affects (sic) from this today.”
According to the statement, these events “shook” Mr Cossari and he had had “a couple of sleepless nights after being bullied”. Apart from the physical effects, he said, “I also feel apprehensive towards going to the Pre‑Polling booth as I am not sure what he or his team are going to do next.” He referred to the complaint that he had made to Rowville Police on 14 November. He said, “I am angry from the point of view of being physically touched and attacked, but also from the point of a lack of democracy this type of action demonstrates to other candidates and the community.” The statement also said, “On Thursday 15/11/2018 I will be submitting an official complaint to the Victorian Electoral Commission as I believe there is no place in society for this type of attack on our democracy.” He said he felt worried about the rest of the campaign “as I am not sure if Kim Wells will be physically or mentally abusive towards me or my team.” He concluded:
“All I am asking for is a public apology from Liberal Candidate Kim Wells for the physical attack on me, freedom of speech and democracy.
A 72 year old man I feel hurt by the actions of this Liberal candidate and hope that the rest of the party don’t attack their opposition.”
22 The following day, Friday, 16 November, Mr Cossari had a conversation with Mr Holland, a former councillor of the City of Knox, whom Mr Cossari understood to be a good friend of Mr Wells. Mr Holland asked Mr Cossari to give his preferences to Mr Wells and offered to print Mr Cossari’s electoral material “gratis” if he gave his preferences to Mr Wells. Mr Cossari declined the offer saying, “after what happened, I would never do that.” (T452, L14‑30)
23 The following Monday, 19 November, Mr Cossari attended Rowville Police again to make what he described as a “formal statement”. (T453, L23‑27) This statement, over Mr Cossari’s signature, placed his first interaction on that day with Mr Wells at 9.30am and the second “about four or five minutes later”, describing Mr Wells as asking, “Who are you preferencing?” and Mr Cossari responding, “no one at the moment”. The statement said:
“At this point Kim Wells grabbed and twisted my left arm in an aggressive manner away from my body. I am unsure as to which arm he used to grab mine. I believe it was to see the underneath of the card.”
The statement said that Mr Wells “then let go of my arm and walked away and I walked in the opposite direction to keep away from him, to keep my distance.” According to the statement, “the incident left me with a sore left arm for two or three days.” It concluded, “this incident has left me feeling victimised and apprehensive to be at the polling booth.” (Exhibit 4) The statement included the words, “I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.”
24 Mr Wells said he had left the pre-polling station at 2.15pm on 12 November, having only one interaction with Mr Cossari, not two as Mr Cossari recalled it, and without any “arm twisting”. (T84, L29‑31)
25 Ms Shan Blethyn was a full-time electoral officer for Mr Wells from 2011 until 2020. (T213, L6‑7) She sent an email to Ms Caroline Inge, a liaison officer employed by the Liberal Party and providing advice to candidates and to Mr Wells relative to Mr Cossari’s candidacy for the seat of Rowville. The email (Exhibit EE) said:
“Hi Caroline,
The independent running in Rowville, Joe Cossari, has been handing out material today, which falsely states he is a candidate for the Transport Matters Party (see scan attached).
Rowville VEC manager, Amanda Golding (ph 8619 1771) confirmed verbally to me before the ballot draw on Friday that Mr Cossari had withdrawn his nomination as Transport Matters and was renominating as an independent.
Is he able to be handing out material pretending to be representing Transport Matters and can we take this further?
Kind Regards”
26 Ms Inge responded a few moments later stating she would refer the issue to the party’s compliance team to investigate. At 6.57pm the same day, Ms Blethyn sent an email (Exhibit FF) to Ms Golding, copy to Mr Wells, referring to s84 of the Electoral Act 2002 prohibiting the distribution of misleading or deceptive matter. The email stated that Mr Cossari’s use of the Transport Matters material “would mislead or deceive a voter.” Ms Golding responded in an email to Mr Wells at 9.12am on the 13th, which Ms Blethyn was able to read based on her access to Mr Wells’ email (T219, L27‑31), stating “Thank you Shan, I have removed the sign this morning and will be meeting with Candidate Cossari shortly.” (Exhibit GG) Ms Blethyn passed the advice from Ms Golding on to Mr Andrew MacNaught, a Liberal Party officer, remarking inter alia:
“Mr Cossari had initially covered up the ‘transport matters’ part of the sign, but now it has been removed.
Also Kim was on prepoll (sic) this morning and saw Mr Cossari handing out HTV’s with the top cut off, which was raised with the VEC, who advised him that the material wasn’t properly authorised and couldn’t be handed out.
By 11.30am, Mr Cossari had left prepoll.” (Ibid)
27 Ms Blethyn said that she first became aware of Mr Cossari’s Facebook posts on the early morning of 14 November from a friend in the party, asking by text, “have you seen this?” with a screenshot of the first post by Mr Cossari. (T220, L22‑26) Ms Blethyn immediately referred this to Mr Wells, asking if he was aware of it. Mr Wells responded that officers of the Liberal Party were “onto it”. (T221, L18‑23) Ms Blethyn said when she met Mr Wells at his electoral office that day (14 November):
“He was … quite visibly in shock, he is usually a very confident, outgoing person and he was quite … upset … pacing around … didn’t quite know what to do about [it], what to do next. And just horrified that anyone could say such things about him.” (T222, L2-7)
Ms Blethyn said she then saw a further email of the same text described as “sponsored”. (CB 306) Ms Blethyn also saw a further post by Mr Cossari under the heading “Joe Cossari, Transport Matters Rowville”, which stated as follows:
“Police report in relation to the incident that took place on 12/11/2018 at the Pre-Polling Centre at Kellett’s Rd Rowville. I had my hand grabbed and arm twisted by Kim Wells Candidate for Rowville as he was trying to see who I was giving my preferences to. He could have asked politely like a gentleman. I am very angry, hurt and have had sleepless nights due to this attack on me, our democracy and freedom of speech. I will not be bullied, intimidated or threatened.”
There was a further post stating:
“Just to confirm that I have reported the incident that took place on 12/11/2018 at the Election Pre Polling Booth at 14/5 Kelletts Road, Rowville, to the Rowville Police at 11.28am today. I take these matters very seriously.”
The Notice to Victim was attached. (Exhibit DD) Ms Blethyn said she spoke to Mr Wells on 15 November and “he was obviously furious.” (T225, L17‑18) These posts are referred to in the Statement of Claim as the “Seventh Publication”.
28 When Mr Wells saw the first posting (Exhibit E) it had been drawn to his attention by a telephone call from Party Head Office from a Mr Gary Anderson. (T89, L31‑T90, L4) He was at home and showed the text to his wife, who began crying. He woke his daughter, who is apparently more “tech savvy” than Mr Wells himself, asking what could be done to “take down” the posting. He said he felt there was a misunderstanding or a mistake and it could be cleared up within an hour. (T90, L6‑15) Mr Wells said, “All of a sudden you just see everything [viz, his campaign for re-election] falling apart.” (T91, L9‑11)
29 On the morning of 14 November, Mr Adam Wojtonis, who described himself as “Deputy Director, Operations” of the Liberal Party of Australia Victorian Division, sent an email to Mr Wells copying the complaint that he had lodged with the Victorian Electoral Commission on behalf of Mr Wells and the party. It stated inter alia:
“I draw your attention to the post below that Joe Cossari has posted.”
It continued:
“The allegation is denied by the Liberal candidate referenced in the post and is supported by witnesses. This is a serious allegation that includes defamatory imputations to influence voters when they cast their ballot. Our candidate is exploring other legal avenues to further address this directly with Mr Cossari.”
The email repeated the complaints about Mr Cossari’s lack of endorsement, stating:
“Furthermore, Mr Cossari continues to purport that he is endorsed by a registered political party on his Facebook profile. It is my understanding that the local EM has already cautioned him against doing so in other material …” (Exhibit F)
30 Speaking of his experience at the pre-poll station on 14 November, Mr Wells said:
“During the day, as I said it just progressively got worse because of comments and I was handing out how-to-vote cards, and an older lady came up, I introduced myself as I normally do, and she just looked at me and said, ‘I don’t vote for fakes [scil thugs],’ and just grabbed the Labor card and just kept going.” (T93, L24-29)
Mr Wells said he concluded “that the power of Facebook was far more powerful than I have ever dreamt in a million years.” (T93, L31-T94, L1) He said that he had responsibility within the party to provide support and leadership, not only in his own electorate but in three neighbouring seats, namely Frankston, Mordialloc and Carrum, and the issues raised by Mr Cossari led him not to provide the support and leadership in those electorates that he should have. (T94, L11-20) Mr Wells said a police report against him was especially humiliating for him as a former Police Minister. (T95, L1‑5)
31 Following discussions with a number of Liberal Party figures, including the Chief of Staff to the then Leader, Mr Wells prepared a written statement as to what had and had not occurred, according to him. He described a reluctant handshake with Mr Cossari on 12 November, but denied any further interaction. He referred to the various postings. The statement concluded:
“It appears that the Facebook posts regarding this incident were removed at about 8pm on Wednesday night, but they had already been shared at least 18 times, with 127 comments.” (Exhibit G)
32 On the same day, Mr Wells made a statutory declaration as to the events of 12 November, broadly to the same effect as the other statement made that day. (Exhibit H)
33 Next, on 15 November, Ms Blethyn drew Mr Wells’ attention to an email from Mr Towell of “The Age” newspaper with reference to Mr Cossari, stating:
“The above candidate has complained to police that you assaulted him at a pre-poll station on Monday.
Are you able to call me please to discuss?” (Exhibit I)
Mr Wells said he telephoned Mr Towell and told him the allegations were “a blatant lie”, and that it would be “grossly unfair to run a story that had no truth to it.” Mr Wells felt further humiliation and feared there was a high risk The Age would run the story. Ultimately, however, Mr Towell rang back 45 minutes later to say that, following discussions with his editor, the story would not run. (T97, L1‑22)
34 That evening, Mr Wells sent a telephone text to Mr Byron Hodgkinson, part of the Liberal Party’s legal team, stating:
“Byron, Cossari has now sponsored his Facebook post with the police report on it. He is still using the transport matters thing on his fb. Kim Wells.” (Exhibit J)
35 Mr Wells was keen for action to be taken. He sent a text to campaign director, Nick Demeris, authorising the party’s lawyers to act on his behalf relative to Mr Cossari’s allegations. (Exhibit L) He also received a text message from his sister-in-law residing in South Africa, commiserating with him relative to the allegations. (Exhibit K) HR Legal, a law firm acting on behalf of the Liberal Party, sent an email to Mr Cossari on the afternoon of 16 November 2018, constituted by a letter of demand alleging inter alia that Mr Cossari’s allegations were “blatantly false”. The letter concluded with a threat of legal proceedings and claims for damages and costs. (Exhibit M)
36 On 19 November 2018, Mr Wells was told by staff in his office that Victoria Police wished to interview him. He said he told Ms Blethyn that he “wanted this sorted to go away”, so the two travelled immediately to Rowville Police Station. (T100, L22‑27) Mr Wells said the police conducted a “full interview”, though conceding that there were no witnesses to the alleged assault (presumably with the exception of Mr Cossari, himself). Mr Wells said:
“Just for the first time [in] my whole life, you see it on TV but to actually have your mugshot taken by Victoria Police it’s just devastating, absolutely devastating.” (T101, L23-26)
He continued:
“I had worked so hard over 26 years to build up a good solid trustworthy loyal reputation as a member of Parliament. Having been appointed as a Police Minister to walk into a police station where I was always very welcomed, always incredibly welcomed by police stations right across the entire state without hesitation, but to go with this accusation hanging over me and to be interviewed in an interview room by two police officers … my reputation was being destroyed.” (T101, L29‑T102, L7)
37 At 4.23pm on 22 November 2018, Ms Blethyn sent an email to Mr Wells advising that she had received a telephone call from Sergeant Wayne McDonald at Rowville Police advising that no further action would be taken. (Exhibit O) On election night, Mr Wells retained the seat of Rowville without resort to preferences. According to Mr Wells, “The 2018 election we only just on primary fell over the line. And we consider that to be a poor performance.” (T64, L7‑9) This stood in contrast to a primary vote of around 60 per cent when he first entered Parliament in October 1992. (T63, L29‑T64, L2) He continued:
“Most of the conversations on election night … were all about my poor showing. Yes, we won, but it’s my poor showing. It was the worst election result – primary vote that I have ever received. People were saying part of it has got to be the Cossari factor, but it did damage the campaign, it did damage my reputation.” (T104, L26‑30)
38 Carbone Lawyers sent a letter of demand dated 27 November 2018 to the unsuccessful Labor candidate for Rowville, Dr Muhammad Shahbaz, requiring him to remove comments from his Facebook page made by Mr Cossari on 13 November. (Exhibit P) Early the following morning, Dr Shahbaz responded, confirming the material had been removed. (Exhibit Q)
39 Then, by letter dated 4 December 2018, expressed to be a “Concerns Notice” relative to defamation of Mr Wells pursuant to the Defamation Act 2005, Mr Wells’ solicitors referred to some six allegedly defamatory publications. The letter stated, “There was no assault. There was no attack. Our client did not grab, whack or twist your arm. Our client did not bully, intimidate or threaten you.” The allegations were said to be “demonstrably false and motivated by malice.” (Exhibit R) The letter invited Mr Cossari to make an offer of amends, pursuant to the Defamation Act.
40 Burch & Co Solicitors responded by letter dated 18 December 2018 (Exhibit X). The letter said:
“The posting of the Material followed an incident which involved a number of heated exchanges between Kim and Joe in the lead up to the recent Victorian Parliamentary election on 24 November 2018.”
The letter continued that whilst Mr Cossari did not agree that the online material was false, as a sign of goodwill and in recognition of his longstanding relationship with Mr Wells, he took prompt steps to have the posts removed. The letter said that in light of the big defeat suffered by the Liberal Party state wide, Mr Wells’ win in Rowville was “a resounding victory”. The letter included a witness statement in the name of Mr Cossari. In the statement, Mr Cossari once again identified the “arm twisting” as having occurred shortly after his arrival at the pre-polling booth, about five minutes after an initial meeting, with Mr Wells walking past Mr Cossari’s car as he was gathering brochures from the boot for distribution. The statement repeated the allegation that Mr Wells had “reached out and grabbed my left arm by the wrist and twisted it in an upward motion so as to expose the information on the brochures.” There was no reference to “whacking”. The statement referred to the approach said to have been made by Mr Holland to reprint Mr Cossari’s brochures if he would allocate his second preference to Mr Wells, and stated, “I felt as if I was being targeted by not only Mr Wells, but by people he had engaged to assist him.” He said Mr Wells’ conduct “was intimidating, physical and designed to bully me into a course of action that served his political aspirations.”
41 On 21 December 2018, solicitors acting for Mr Wells filed the Writ which commenced this proceeding. Two days later, on 23 December 2018, an article appeared in the online version of The Age newspaper headed, “State MP Launches Defamation Action Over Polling Booth Assault Claim”. (Exhibit S) Mr Cossari was quoted as saying, “If he wants to go down the defamation path that’s fine, but I was manhandled and attacked and I’ve made a report to police”. This article appeared because Mr Wells’ solicitor sent a copy of the Writ to the newspaper. (T108, L3-5)
42 About 15 months later, Mr Cossari’s solicitors wrote to Mr Wells’ solicitors by letter dated 31 March 2020, referring to “a recent incident involving your client’s wife [that is, Mrs Wells] that has caused Mr Cossari considerable upset and angst”. The letter sought Mr Wells’ “assurances that this conduct will immediately cease”. The letter stated that whilst Mr and Mrs Cossari were shopping in the Coles supermarket at Knox City Shopping Centre, Mrs Wells “thought it appropriate to follow the Cossaris through the supermarket for 20-25 minutes, taking a video record of them shopping”. The letter sought some seven undertakings from Mr and Mrs Wells relative to approaches or communications with the Cossaris. (Exhibit T)
43 The following day, Mr Wells’ solicitors responded, denying the allegations “in the strongest possible terms” and stating that Mrs Wells was, at the relevant time, fulfilling her duties as a nurse at the Royal Children’s Hospital. The letter concluded, stating that Mr Wells reserved the right to rely on the correspondence on the question inter alia of aggravated damages. (Exhibit U)
Plaintiff’s claim
44 Mr Wells’ Statement of Claim referred first to the relative standing of the plaintiff and defendant: Mr Wells, as the sitting member for Rowville seeking re-election in 2018, and Mr Cossari as a candidate either representing the Transport Matters Party or standing as an independent. Next, it referred to a Facebook website “Joe Cossari, Transport Matters, Rowville”. Next, it referred to what was described as the “first publication” on the relevant Facebook page at 9.40pm on 13 November 2018, referring to the 104 “likes”, the 127 “comments” and the 18 “shares”. This publication, it was said, “was of and concerning the plaintiff, and of and concerning him in his profession or trade”.
45 The first publication was said to be “defamatory of the plaintiff”, meaning and being understood to mean that being a candidate for the Liberal Party in the election for Rowville he “physically assaulted a rival candidate”, “bullied, attacked and intimidated a rival candidate in order to find out whom that candidate had directed preferences [to]”, and that Mr Wells had “so seriously assaulted a rival political candidate that the victim was still traumatised 24 hours later”. The publication, it was said, was “shared” by at least 18 Facebook users and these “shares” constituted republication for the purposes of the law of defamation.
46 Next, the Statement of Claim referred to what was described as the “second publication” uploaded to the Facebook page on 14 November 2018. This material, it was said, was uploaded as a reply to a comment by one Raymond Ng. Reference was made to persons following and “liking” Mr Cossari’s site, and it was said that one user had “liked” the second publication.
47 According to the Statement of Claim:
“It is inherently likely that some or all of the persons who downloaded and read the First Publication will also have downloaded and read the comments and replies posted to the Cossari Facebook Page in response to the First Publication, which comments and replies included the Second Publication.”
48 Accordingly, “it may be inferred that the second publication has been downloaded and read by a wide and extensive audience of internet and Facebook users in Victoria and Australia”.
49 The second publication, according to the Statement of Claim, “was published in close proximity and juxtaposition to the First Publication” and therefore it was likely they would be read together. The two publications were “of and concerning [Mr Wells], and of and concerning him in his profession or trade”.
50 According to the Statement of Claim, the two publications read together were defamatory of Mr Wells and meant and were understood to mean that as the Liberal Party candidate for Rowville he had “physically assaulted a rival candidate”, “intimidated an elderly rival candidate by twisting his arm in order to find out to whom that candidate had directed his preferences”, and that the assault was so serious that the candidate “still experienced pain and felt intimidated some two days later”.
51 The third publication was said to have been made “on or about 14 November 2018” on the same site or Facebook page. This publication was “a reply” to a comment posted by “Jimmy Wilcock”. For the same reasons mentioned relative to the second publication, it was said that the persons who downloaded the third publication would also read the first publication and that both were “downloaded and read by a wide and extensive audience of internet and Facebook users in Victoria and Australia”. This publication was also said to concern the plaintiff and concern him in his profession or trade and to be defamatory of him in its natural and ordinary meaning.
52 The fourth publication was said to have been made at “about 9.14pm and 9.50pm … on 13 November 2018” on the Facebook webpage entitled “Dr Muhammad Shahbaz – Labor for Rowville”. Similar allegations were made relative to this publication.
53 The fifth publication was said to have been made on 13 November on the website of Natasha Sharma – Greens for Rowville. Once again, similar allegations were made relative to this publication.
54 The sixth publication referred to a statement said to have been given by Mr Cossari to officers of Victoria Police on or about 14 November. It was said that this statement was “of and concerning [Mr Wells], and of and concerning him in his profession or trade” and was defamatory in its natural and ordinary meaning.
55 The seventh publication was said to have taken place on or about 14 November on Mr Cossari’s Facebook page. This was the post which included the “Notice to the Victim – Important Information”, obtained by Mr Cossari from Victoria Police. This publication was also said to be “of and concerning” Mr Wells and defamatory of him in its natural and ordinary meaning. Additionally to the defamatory meanings alleged with respect to the other publications, it was said that this seventh publication:
“meant and was understood to mean that … [Mr Wells] had so seriously assaulted a rival political candidate that his conduct was worthy of investigation by police; and [Mr Wells] committed the crime of unlawful assault when he physically attacked, bullied and threatened a rival political candidate.”
56 Mr Wells was said to have been:
“(a) gravely injured in his feelings, credit and reputation;
(b)injured in his profession;
(c)lowered in the estimation of right-thinking members of society;
(d)humiliated, embarrassed and held up to hatred, ridicule and contempt; and
(e)had suffered loss and damage:”
57 Aggravated damages were sought on the basis, it was said, that Mr Cossari made the publications “knowing them to be false, or without an honest belief in their truth”, without having afforded Mr Wells an opportunity to respond or including any response that Mr Wells might have made.
58 The publications, it was said, were on webpages on the Facebook social media platform, rendering them accessible to any internet user, not merely users residing in Rowville, or who might have a “legitimate interest in the Election or in the electoral contest for the seat of Rowville”. The pages were easily accessible by the Google search engine and it was said the natural and probable consequence was republication via the “share” function. It was said that the first publication was “a sponsored post” and intended to reach a wider audience. The publications were made following discussion with Mr Cossari’s campaign manager.
59 According to the Statement of Claim, Mr Cossari did not lodge any complaint with the Victoria Electoral Commission or Victoria Police prior to lodging the first to fifth publications, but only made these complaints after he had been criticised by persons posting comments on his website “for having not reported his allegations to police”. Therefore, it could be inferred that Mr Cossari published the allegedly defamatory publications “for the improper motive of causing maximum damage to [Mr Wells’] reputation in order to further [Mr Cossari’s] own political interests and prospects in the Election”.
60 Next, it referred to the “Concerns Notice” constituted by the letter of Mr Wells’ solicitors of 4 December 2018 seeking removal of the publications from Facebook, an apology, damages and reimbursement of costs. The response, by letter of 18 December on behalf of Mr Cossari, alleged the publications were “defensible on the grounds of justification and qualified privilege”, and further that any damage to Mr Wells’ reputation “was such that only nominal damages ought be awarded”. The letter claimed that the first, second, third, fourth and fifth publications had been removed from Facebook, but did not inform Mr Wells’ solicitors of the fifth publication nor that it continued to be available for download from Ms Sharma’s Facebook page. There was no apology or willingness to pay damages.
61 Therefore, they said, Mr Cossari’s conduct in these matters had been “improper, unjustifiable, and lacking in bona fides, and [had] aggravated [Mr Wells’] hurt, loss and damages thus entitling [Mr Wells] to an award of aggravated damages”.
62 The Statement of Claim sought damages, an injunction requiring removal of the fifth publication from Ms Sharma’s Facebook page, and a permanent injunction restraining further defamatory publications, together with interest, costs and other relief.
63 At trial, Mr Hoyne announced that he relied on the letter alleging Mrs Wells followed and videoed Mr and Mrs Cossari at the Coles supermarket at Knox City Shopping Centre on 27 March this year as a further ground of aggravation relied on for the purpose of obtaining an award of aggravated damages.
Mr Cossari’s Amended Defence and Counterclaim
64 In his Amended Defence and Counterclaim dated 1 June 2020, Mr Cossari admitted the publications but denied that they were defamatory of Mr Wells or that they bore or were capable of bearing the meanings alleged by him. He denied any entitlement for aggravated damages relative to the matters alleged in that regard by Mr Wells in his Statement of Claim.
65 He said that if the publications were defamatory of Mr Wells, they were “substantially true” and accordingly he had a defence of justification at common law pursuant to s25 of the Defamation Act 2005. Alternatively, if the publications were defamatory they constituted an expression of opinions of Mr Cossari which related to a matter of public interest and were based on proper material and accordingly were entitled to the defence of “honest opinion” under s31 of the Defamation Act.
66 Further, it was said that if the publications were defamatory of Mr Wells:
(a) there were communications which disseminated information, opinion or argument concerning government or political matters;
(b) [Mr Cossari’s] conduct was “reasonable” and they were published on an occasion of “qualified privilege at common law”.
67 Alternatively, reliance was placed on the statutory defence of qualified privilege under s30 of the Defamation Act as being published to persons having an interest or apparent interest in having information, in the course of giving information, and Mr Cossari’s conduct in publishing was “reasonable in the circumstances”.
68 Finally, in mitigation, reliance was placed on “such of the plaintiff’s imputations which are found to be substantially true” and “such evidence as is properly admitted as part of the plaintiff’s claim or in support of any defence”.
69 By way of counterclaim, it was said that Mr Well’s conduct “constituted a battery by reason of which [Mr Cossari had] suffered loss and damage” constituted by pain and restriction of movement of his left arm and shoulder, stress, anxiety and economic loss.
Imputations
70 In his statement of claim, Mr Wells pleaded a number of imputations with respect to each of the publications. It is unnecessary for the purposes of these reasons to set them out in extenso. By way of example, the imputations said to arise from the first publication were, by paragraph 7 of the statement of claim, said to be:
(a) [Mr Wells], the standing Liberal Party candidate for election in the Rowville district, physically assaulted a rival candidate;
(b) [Mr Wells], the standing Liberal Party candidate for election in the Rowville district, bullied, attacked and intimidated a rival candidate in order to find out to whom that candidate had directed preferences; and
(c) [Mr Wells] had so seriously assaulted a rival political candidate that the victim of his assault was still traumatised 24 hours later.
71 As to what is required to be established relative to imputations, Mr Gilbertson and Ms Whiteman referred to the formulation by Payne J of the Supreme Court of New South Wales in Bolton v Stoltenberg [2018] NSWSC 1518 [68]–[69]. Mr Hoyne did not contend otherwise. The learned judge’s formulation was as follows:
“ Mr Bolton must satisfy the Court, on the balance of probabilities, that the hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in the pleaded imputations: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [5]-[6]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [26]; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; [1982] HCA 4 at 506. The relevant meaning includes inferences and conclusions which the ordinary reasonable person draws from the words used. The ordinary reasonable reader may engage in a certain amount of “loose thinking”: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245.
Ordinary reasonable readers are persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind, nor avid for scandal. The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published. The context includes all the surrounding circumstances. The ordinary reasonable person is taken to have read the whole of an article and not just the headline or the particular portions of which complaint is made: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3 at 646.”
72 Mr Gilbertson and Ms Whiteman conceded on behalf of their client that “the imputations arise with respect to all publications, except the second and third.” Further, they conceded that all of the imputations were defamatory (closing submissions, paragraphs 9–11). With respect to the imputations alleged relative to the second and third publications, they said that they “do not arise” (Ibid, paragraph 12). As to the second publication, they noted that Mr Wells was not identified or referred to at all (Ibid, paragraphs 14–15). They denied that persons who read the second and third publications should be found to have also read the first publication. They conceded that Mr Ng must have read the first publication, “but not people who read the comment by Mr Cossari”. Likewise, they said, where a statement conveyed a defamatory imputation only to persons with special knowledge of extraneous facts, those facts must be pleaded and evidence led of them if the action were to succeed. They referred to Collins on Defamation [6.61]; Lewis v Daily Telegraph Ltd [1964] AC 234, 277–8, 281. These extraneous facts were not pleaded or proven, they said (Ibid, paragraphs 17–23).
73 The imputations pleaded relative to the second and third publication are to be found at paragraphs 13 and 17 of the statement of claim. Paragraph 13 is substantially similar to the imputations said to arise from the first publication, including an imputation to the same effect as sub-paragraph (a) of paragraph 7. Sub-paragraph (b) was likewise to similar effect, but identified the rival candidate as being “elderly”. As to the third sub-paragraph of imputation, this was again to the same effect. The trauma arising from the alleged assault was to be understood as having lasted for two days rather than 24 hours, with pain persisting for the same period. The third publication was said to carry imputations similar to those in sub-paragraphs (a) and (c) of paragraph 7, save that the pain and intimidation were said to have lasted two days rather than 24 hours.
74 Mr Hoyne relied on Stoltenberg v Bolton paragraphs [223] and following. He noted that the primary judge had seen the relevant publication by the defendant as constituting an endorsement of the original defamatory material. The Court of Appeal refused leave to appeal without however specifically endorsing the trial judge’s analysis on this point (T740–1). Mr Hoyne said:
“What we have got is Mr Cossari referring back to, in essence, and repeating, in essence by reference, what he had previously said ... [T]hat is sufficient for our purposes.” (T741, L24–28)
75 Mr Hoyne conceded that the second and third publications were unlikely “to have a significant impact on the level of damages” (T742, L2–3). He said “If the person simply read them [viz the publications] and didn’t understand them because they didn’t understand what was being spoken about in terms of the first publication, then I again accept that that is not going to have a significant impact upon damages.” (T742, L16–20).
76 In my view these two publications are to be regarded as incorporating the first publication by reference, and it is not appropriate therefore to dismiss the claim in so far as it depends upon those imputations, as Mr Gilbertson and Ms Whiteman would have me do. Nevertheless, I agree with Mr Hoyne that they have little impact on the issue of damages.
77 As previously noted, Mr Gilbertson and Ms Whiteman conceded that all the imputations were defamatory (closing submissions, paragraph 11).
Justification
78 A central question, perhaps the central question, in this proceeding is what did or did not occur between Mr Wells and Mr Cossari on 12 November 2018 at the pre-poll station. They agree that there was an initial interaction in which they greeted one another and shook hands, apparently with some reluctance on Mr Wells’ part. Mr Cossari describes, and Mr Wells denies, a second encounter which entailed arm twisting on Mr Wells’ part. If Mr Cossari’s account is accepted as “substantially true”, this would provide him with an absolute defence to a defamation claim by virtue of s25 of the Defamation Act, which provides:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
79 Subject to variations of detail, Mr Cossari’s evidence at trial was that the event described in the various publications occurred and that s25 provides the defence of justification to a defendant who “proves that the defamatory imputations … are substantially true”. That is, the burden of proof is placed on the defendant.
80 Mr Gilbertson QC and Ms Whiteman accepted that their client, Mr Cossari, bore the burden of proof on this point. (T633, L26-28) Further, they accepted that the issue had to be proved “to the Briginshaw standard”. This is a reference to the famous case of Briginshaw v Briginshaw (1938) 60 CLR 336.
81 It may be thought that the effect of the High Court’s determination in that case is now to be found codified in s140 of the Evidence Act 2008, which provides:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.”
82 Nevertheless, Briginshaw v Briginshaw continues to be cited and referred to in judgments at the trial and appellate level, indicating that it continues to have an independent operation in civil litigation.
83 Briginshaw was an appeal from the dismissal of a divorce petition based on the ground of adultery by Martin J in the Supreme Court of Victoria. The appellant petitioner argued before the High Court that the trial judge had fallen into error by applying the criminal standard of proof - beyond reasonable doubt - to the question whether the alleged adultery had been established for the purposes of the divorce petition. The appeal was dismissed. Briginshaw is today most frequently invoked when, in the course of civil proceedings, the question arises as to whether events constituting the commission of a crime or some very serious wrongdoing have been adequately proven.
84 In the present case, if Mr Cossari’s account is accepted, the events would appear to constitute an offence of causing injury recklessly or intentionally contrary to s18 of the Crimes Act 1958. As will appear below, success for Mr Cossari’s counterclaim with the award of non-economic damages would require a finding that Mr Wells intended to inflict injury.
85 In Briginshaw, Dixon J (as he then was) said:
“When in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But consistent with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.” (1938) 60 CLR 336, 363
86 Earlier in his judgment, his Honour said:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.” (Ibid, 361)
87 His Honour continued:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.” (Ibid, 361-2)
88 With respect to an allegation of adultery, his Honour said:
“the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact”. (Ibid, 368)
89 Mr Gilbertson QC and Ms Whiteman contended that in light of the manner in which the trial was conducted, it would not be open to the court to find that Mr Cossari was lying in giving his account of the second interaction. It had not, they said, been distinctly put to him that his account was a lie. (Closing submissions, paragraph 28) Mr Hoyne, however, said that it was plain that his lengthy cross-examination of Mr Cossari challenged the reality of the event which he described, even although it was not distinctly put to Mr Cossari, “I put it to you that your account of this alleged incident is a lie”. I accept Mr Hoyne’s contention on this point.
90 In support of a finding that the incident occurred as described by Mr Cossari, Mr Gilbertson QC and Ms Whiteman necessarily relied almost solely upon Mr Cossari’s direct description of the event. A large group of party workers and VEC officers were onsite. Many of them seemed to have been called as witnesses in support of the plaintiff’s case. No other person witnessed the second interaction between Mr Cossari and Mr Wells. This is not conclusive against Mr Cossari’s account by any means, but it is striking. Mr Gilbertson QC and Ms Whiteman noted that the first day of pre-polling was particularly busy. They referred to the evidence of Ms Golding (T266, L5-6), observing: “The focus on the volunteers was on voters arriving at the pre-polling booth and handing out how-to-vote cards. Their attention was focused on that activity and they would not have been concerned to view any interaction between Mr Cossari and Mr Wells”. They referred to Mr Cossari’s evidence to that effect. (T546, L23-28) On the other hand, as Mr Hoyne observed on behalf of the plaintiff, on Mr Cossari’s account, Mr Wells had spoken to him in a very loud voice [8] (T438, L23-24) which one would have thought would have been calculated to draw attention to the interaction between the two men.
91 Mr Hoyne, on behalf of Mr Wells, noted that no complaint as to this incident was made to any VEC officer on 12 or 13 November. The first complaint to the VEC was made on 14 November.
92 Against this, Mr Gilbertson QC and Ms Whiteman relied on the “recent complaint” made to his campaign manager, Mr Cole, on the evening of 12 November 2018. In Closing submissions (paragraph 34) they said: “That evidence should be accepted”. My Hoyne, however, pointed out that Mr Cole, Mr Cossari’s assistant with Facebook, took no action to place any posts on the Facebook platform until the following evening. (Closing submissions, paragraph 50) In his answer to interrogatory five administered by Mr Wells, Mr Cossari refers to consultation with Mr Cole at Mr Cossari’s residence on the evening of 13 and 14 November 2018, but makes no mention of any consultation between the two of them on the evening of 12 November. The answer to the interrogatory was prefaced by the sentences, “I cannot recall each and every conversation that I had with Peter Cole about the Publications. However, what I do recall is the following”. The discussion which Mr Cossari did not remember on 14 August 2019, when he swore his answers to interrogatories, he did recall when giving evidence at trial. This poses a query as to the accuracy of a recollection almost two years after the event, but not held one year after it. Mr Cole was definite in his evidence that a discussion on 12 November took place. (T571-T572) Eighteen months after the event, however, there must be a risk that Mr Cole was mistaken as to whether there were two meetings at Mr Cossari’s home; one on the 12th and one on the 13th, or, as Mr Cossari’s answer to the interrogatory would suggest, one only on the 13th. Moreover, whilst “recent complaints” have assumed significant importance in sexual cases, they are generally regarded as less significant in other areas of the law. They are ultimately self-serving.
93 Even if Mr Cossari had good reason for not making an earlier complaint to the VEC officer, for instance, at initial concern to resolve the issue of his how-to-vote card, it is not obvious why when, on his account, and indeed on the terms of the posts themselves, his principal objective was to obtain an apology from Mr Wells, he did not make a direct approach to Mr Wells, demanding or requesting such apology. Mr Cossari’s explanation for this was that he was “intimidated” by Mr Wells. Yet, at some point after the second interaction as described by Mr Cossari, Mr Cossari said that “I offered Mr Wells a mineral water, and he refused. I was trying to break the ice”. (T497, L7-9) His willingness to make this offer is scarcely consistent with his account of being too intimidated to approach Mr Wells.
94 More pertinently, there was no convincing explanation as to why he did not broach the subject through an intermediary. The general trend of the evidence was that the party workers in attendance at the pre-poll station in the early days of the pre-poll period were well known to one another, acquainted from council days and so forth, and on good terms generally. Even if Mr Cossari did not consider seeking an apology via one of these workers as an intermediary, one might have expected that he would have made complaint to one of the other party workers in the vicinity, if not a Liberal volunteer, then perhaps someone in attendance for the Greens or the Australian Labor Party, saying something along the lines of “Did you see what he just did to me?”. Yet nothing of the sort seems to have happened. Mr Cossari’s explanation that it was not “their business to know what happened” (T441, L1-6), paragraph [10] above, lacks credibility. Why was this “arm twisting” a private matter not fit for discussion with other party volunteers on 12 November, when on 13 and 14 November Mr Cossari caused a series of statements to be posted which seem aimed to achieve wide publicity, resorting not only to his own “Transport Matters” website but also the websites of two other candidates, namely Dr Shahbaz and the Greens candidate.
95 The complaint to the police also does not seem to have been given priority over the program to establish Facebook posts denouncing Mr Wells’ actions. Whilst Ms Golding did not ultimately deny outright telling Mr Cossari that he must report the matter to police, as he said she did, she had no recollection of doing so, and there would be no obvious reason why she should have said such a thing. Mr Cossari was concerned to respond to the comments on his first post. (Exhibit E) One of those comments was by Anna Dominguez-Smith, who said, “What proof does he have and has he reported it to VicPol and the VEC?” (Exhibit QQ) There is some plausibility in the plaintiff’s suggestion that it was commentary of this type that prompted the complaints to officialdom.
96 Again, Mr Cossari’s accounts of when his interaction with Mr Wells occurred “were all over the place”. I have referred to them above. It was not suggested that there was any reason to disbelieve Mr Wells’ account that he arrived at the pre-poll station at approximately 11.45am on 12 November. Mr Cossari said he did not wear a watch, and “I can’t even remember what I had for breakfast yesterday”. (T467, L5-6) Even so, confusion as to when the alleged event occurred, manifesting itself not years after the event, but within days, is scarcely a testament to Mr Cossari’s recollection. Plainly, as Mr Gilbertson QC and Ms Whiteman contended, an individual even with a poor memory as to dates and times would have a clear memory of an egregious incident. Mr Cossari’s inconsistencies extend not only to the timing of the issue but also to its substance. In some places he referred to receiving a “whack” on the arm. In other places, including in his evidence-in-chief, he made no reference to the “whack”.
97 The very extravagance of Mr Cossari’s language in describing the event leaves one somewhat uneasy. The multiplication of words such as “bullied”, “intimidated” and “harassed”, and reference to threats to democracy seem excessive to describe an incident which is said to have occurred over a short few seconds and which Mr Gilbertson QC and Ms Whiteman suggested may have occurred with Mr Wells being scarcely aware of what he had done.
98 As the quotation from Briginshaw indicates, whilst clear direct evidence, such as given by Mr Cossari, needs to be considered, so does Mr Wells’ denial, along with the presumption of innocence.
99 During Mr Cossari’s cross-examination, Mr Hoyne took him to the answer to interrogatories in which he denied having suffered any pain or restriction in movement of his left arm or shoulder prior to the alleged event. The answer said that there had been no pain or restrictions prior to 2018. Mr Cossari admitted that in 2016 and 2017 he had pain in his left shoulder, but this had been caused by his neck. I found his answers on this point unconvincing and they scarcely enhanced his credibility. (T467-69)
100 I do not believe that Mr Cossari has made out the defence of justification under s25 of the Defamation Act to the Briginshaw standard.
Qualified privilege
101 Since I have not sustained Mr Cossari’s defence of justification under s25 of the Defamation Act, I must now turn to the other defences, specifically qualified privilege. Reliance is placed both upon the “constitutional” privilege deriving from the High Court’s judgment in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and upon the statutory qualified privilege established by s30 of the Defamation Act.
102 I turn, first, to the Lange privilege.
103 In Lange’s case, having examined Australia’s constitutional arrangements and the system of democratic representative government which it embodied, a unanimous High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) said:
“Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution.” (1997) 189 CLR 520, 571‑2
104 Their Honours said that this qualified privilege for its success as a defence required the publisher of the relevant material to “prove reasonableness of conduct”. The defence might be defeated if the plaintiff could show that the publisher was actuated by malice, that is, if the publication was “made not for the purpose of communicating government or political information or ideas, but for some improper purpose”. (1997) 189 CLR 520, 574
105 In Roberts v Bass (2002) 212 CLR 1, the Court held that for the purpose of this “constitutional” qualified privilege a mere absence of belief in truth in a publication should not be regarded as express malice such as to defeat the defence.
106 According to Mr Gilbertson QC and Ms Whiteman, this qualified privilege defence applied in the present case. The publications were communications of political and electoral matters. They said Mr Cossari acted reasonably because he believed what he published was true.
107 Mr Hoyne, on behalf of Mr Wells, however, said:
“if there was no assault, [Mr Cossari] the defendant must have known that his publications were untruthful. A publication of this nature – which [Mr Cossari] the defendant must know to be untrue if it did not happen – cannot be reasonable.” (Plaintiff’s Closing Submissions, paragraph 194)
108 The knowledge of untruthfulness which Mr Hoyne said must have been possessed by Mr Cossari “would constitute overwhelming evidence of malice”. (Ibid, paragraph 195)
109 In light of the findings which I have made on the question of justification, the issue of qualified privilege must be dealt with on the footing that the assault did not in fact occur. Indeed, if it did occur, the defence of justification would have succeeded and we would not have reached the issue of qualified privilege at all. I agree with Mr Hoyne’s contention that if the assault did not occur, it cannot be supposed that Mr Cossari would have been ignorant of that fact, nor when the allegation was that he was the victim of the assault could he have been acting reasonably in alleging that it occurred. The “constitutional” qualified privilege defence fails.
110 The statutory defence of qualified privilege is established by s30 of the Defamation Act, which provides:
“(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)the recipient has an interest or apparent interest in having information on some subject; and
(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)the extent to which the matter published is of public interest; and
(b)the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)the seriousness of any defamatory imputation carried by the matter published; and
(d)the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)the nature of the business environment in which the defendant operates; and
(g)the sources of the information in the matter published and the integrity of those sources; and
(h)whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)any other steps taken to verify the information in the matter published; and
(j)any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.”
111 Mr Gilbertson QC and Ms Whiteman said that this defence was made out with respect to all seven publications. They said recipients of the posts:
“had an apparent interest on the subject of Mr Wells’ conduct during the election, because all of the posts were on the Facebook pages of candidates during the election and the statement to the police (Sixth Publication) concerned that conduct. In those circumstances, Mr Cossari believed on reasonable grounds that the recipients of the publications had that interest.” (Closing submissions, paragraph 83)
112 Referring to the various considerations as to reasonableness in s30(3), they said these ought not to be considered as “hurdles” for a defendant relying on the statutory privilege to overcome. The statements referred to the performance of Mr Wells’ public functions (paragraph (b)), and were allegations of fact rather than mere suspicion. (Paragraph (d)) It was in the public interest that these matters be published expeditiously. (Paragraph (e)) The “business environment” in which Mr Cossari operated was the rivalry of a state election. (Paragraph (f)) The source of information as to the allegations was Mr Cossari himself. (Paragraph (g)). As to paragraph (h), whilst no attempt was made to give Mr Wells’ side, there was “no point in those circumstances seeking Mr Wells’ side of the story and seeking a response”.
113 They said, as to paragraph (c), these matters were considered by the New South Wales Court of Appeal. Gleeson JA with the concurrency of Macfarlane and Brereton JJA in Stoltenberg vBolton [2020] NSWCA 45 [190]-[191], adopting a formulation by Hunt AJA in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374, 387-8, where, he said, his Honour said:
“(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation.
(2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case, and perhaps also that discussed in Collins v Ryan) have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a)that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b)that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.”
114 His Honour was there speaking of the corresponding provision in s22 of the New South Wales Defamation Act 1974. Mr Gilbertson QC and Ms Whiteman said that it was apparent from Mr Cossari’s evidence that he intended to convey all of the imputations and that he believed in the truth of them.
115 Mr Hoyne, however, said the defence failed because Mr Cossari’s conduct in publishing the material was not, in the circumstances, reasonable. He relied, as I understood him, upon the same matters which he had advanced relative to the “constitutional” qualified privilege, namely that on the premise that this assault did not occur, Mr Cossari could scarcely have been in any doubt on that subject. It would not be reasonable to publish seriously defamatory material where the publisher knew it to be untrue. One might also consider paragraph (h) of sub-s(3) relative to the issue of reasonableness. The publication was made without any prior discussion with Mr Wells seeking an explanation or, perhaps, an apology, directly from him or through an intermediary. Again, if knowledge of the falsity of the assault allegation is to be regarded as evidence of malice for the purposes of the constitutional defence, the same would apply to the statutory qualified privilege defence under s30.
116 The formulation by Hunt AJA relied on by Mr Gilbertson QC and Ms Whiteman, and adopted by the New South Wales Court of Appeal in Bolton v Stoltenberg, pertained to a different type of publication scenario from the one we are dealing with here. In the Fairfax case, Hunt AJA was obviously concerned with the situation of a newspaper or other media operator publishing material based on third party information. In Bolton v Stoltenberg itself, the defamatory or allegedly defamatory material involved allegations of impropriety by the mayor of a New South Wales shire council. The Facebook post constituted commentary on action taken by the mayor and imputed impropriety to those matters, such as the choice of council’s general manager on grounds other than merit.
117 Plainly, there is an element of interpretation and comment in such allegation. They are not plainly primary facts such as arm twisting within the direct and immediate knowledge of the publisher as the alleged victim. The “arm twisting” either occurred or it did not occur. It could not be a matter of mistake or misinterpretation.
118 The s30 defence fails. It may readily be accepted, as Mr Gilbertson QC and Ms Whiteman contended, that these were serious matters and, in the political environment in which publication occurred, expeditious publication was in the public interest. Nevertheless, these sorts of considerations do not outweigh the matters to which I have just made reference.
119 Whilst there is passing reference to common law non-constitutional qualified privilege, this defence was not pleaded and I did not understand it to be relied upon.
Honest opinion
120 The defence of “honest opinion” was not pressed in closing submissions by Mr Gilbertson QC and Ms Whiteman.
Damages
121 Mr Hoyne said that the court awards damages for defamation for three purposes. First, to console the defamed person for distress, embarrassment and hurt. Secondly, by way of reparation for the injury done to the person or business reputation of the person defamed and, thirdly, to vindicate the reputation of that person. He referred to Carson v John Fairfax and Sons Limited (1993) 178 CLR 44, 60; O’Reilly v Edgar [2019] QSC 24 at [188]. He said that s35 of the Defamation Act capped general damages at $407,500, though this cap did not apply where aggravated damages were awarded. He referred to Wilson v Bauer Media Pty Ltd [2017] VSC 521 [249].
122 He said that relevant considerations included:
(a) the reputation or social standing of the plaintiff prior to the publication of the defamatory material;
(b) the gravity or seriousness of the imputations;
(c) the extent of publication of the defamatory material, including the “grapevine effect”;
(d) the extent of the stress, upset or injury suffered by reason of the publication of the defamatory material.
He referred to Broom v Cassell and Co Limited [1972] AC 1027, 1125 per Lord Diplock.
123 He said it was not necessary to call evidence from people thinking less of the plaintiff because such people would rarely come forward to give evidence, but the real point was that the award must be sufficient for the purposes of vindication to “nail the lie”. He referred to Lower Murray Urban and Rural Water Corporation v De Masi (2014) 43 VR 348 [107].
124 Mr Hoyne conceded that the refusal or failure to apologise “may not result in an award of aggravated damages”. It could increase the compensatory damages if it contributed to hurt feelings. An apology could mitigate the damage done. He referred to Rantzen v Mirror Group Newspapers Limited [1994] QB 670; Clark v Ainsworth (1996) 40 NSWLR 463, 469, 474-5. He referred to a number of damages awards in recent defamation cases which he described as “relevant”.
125 Mr Hoyne said there was no application for special damages.
126 He said the evidence showed the effect on Mr Wells’ feelings had been “seriously significant”. He noted that whilst Mr Wells won the 2018 election, “it was with a reduced first preference vote”. He said Mr Wells was unable to assist other candidates who suffered serious losses, and felt responsible.
127 Mr Hoyne said that his client abhorred physical violence as a result of domestic violence he had witnessed as a child and “the allegations go to the core of how Mr Wells seems himself on the subject of anti-violence and the reputation that Mr Wells has sought to build over three decades”. Even after the election, Mr Wells said his confidence was affected, as was his ability to raise funds for political purposes. The allegations affected the way he viewed himself operating in Parliament and he worried as to his pre-selection in 2021.
128 Mr Hoyne referred to the evidence of the plaintiff’s daughter, Tanya Wells, as to a change in his character following the publication. He had lost his confidence and usual happy demeanour. He referred to the evidence of Edward O’Donohue and Dr Denis Napthine, a former Premier of the State of Victoria and leader of the State Liberal Party.
129 According to Mr Hoyne, the law places a high value on honesty, integrity and judgement, and fixes defamation damages award in light of that value. He referred to Wilson v Bauer Media [2017] VCS 521 [59] per John Dixon J. Mr Hoyne referred to the high reputation enjoyed by Mr Wells, his position as the joint longest serving member of the Victorian Parliament, and his work during his political career in support of law and order and anti-violence.
130 Mr Hoyne said that the publication was made widely, much more widely than Mr Cossari’s followers or friends on the Transport Matters Facebook page. He noted that there were over 100 comments and 160 other people who engaged with the post. He referred to Exhibit X. Mr Hoyne said it was necessary also to consider the grapevine effect.
131 Mr Hoyne said that this was:
“a serious imputation of a criminal wrong. It resulted in Mr Wells having to be interviewed by police and having his mugshot taken. The entire experience was particularly humiliating for him given his former role as Minister for Police.”
132 He said this went way beyond the ordinary rough and tumble of politics and a substantial award of damages was necessary to “nail the lie”. He concluded, “the general public cannot be left wondering by a modest award whether there may be something in the defamatory comments”.
133 Mr Hoyne said, by way of aggravation, it should be found that Mr Cossari knew that he was publishing lies and “doubled down” by repeating them, including by making a false report to police. He said Mr Cossari “has engaged in conduct which lacked bona fides during the course of the proceeding”. He referred to what he said were false allegations against Mrs Wells, which he said substantially added to the hurt suffered by Mr Wells and to the damage which he had suffered. Mr Hoyne disclaimed any allegation of non bona fides action by defendant’s counsel. Aside from the allegation against Mrs Wells, Mr Hoyne did not identify what conduct on the part of Mr Cossari during the course of the proceeding “lacked bona fides”.
134 Mr Hoyne said this was an allegation of criminal conduct which was particularly humiliating for Mr Wells as a former Minister for Police. There were substantial aggravating factors and “$250,000 plus interest is well within the permissible range”. Mr Hoyne said he had abstained from making any “ambit claims”.
135 Mr Gilbertson QC and Ms Whiteman said it was necessary to ensure that there was an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded: s34 of the Defamation Act. In the present case, they said, there was limited publication. The first publication was “unsponsored”, and the second and third publications were taken down within 24 hours. The Transport Matters page was closed on 19 December 2018 (see Exhibit 8), and the comment on Dr Shahbaz’s page was removed on 28 November 2018 (Exhibit Q). Ms Sharma made her Facebook page private two or three weeks after the election. They referred to T298, L5–9.
136 They said the two party preferred swing to Labor in the seat of Rowville was 2.7 per cent, whilst statewide the swing in favour of Labor was 5.3 per cent. They referred to T153, L31-T154, L2.
137 Next, they referred to decisions respectively of the New South Wales and South Australian District Courts, Goldberg v Voigt [2020] NSWDC 174 and Anand v Armstrong [2020] SADC 34. In the first case, damages including aggravated damages were fixed at $35,000. In the second case, damages were fixed at $50,000, consisting of $40,000 in general damages and $10,000 in aggravated damages. In this latter case there were three Facebook posts, two emails and one phone call. The Facebook group consisted of 10,000 registered medical practitioners. They said in Bolton v Stoltenberg [2018] NSWSC 1518, $80,000 of general damages together with $20,000 of aggravated damages were awarded. They said there was no appeal against the damages award. They said the trial judge had relied on Facebook business records to find the total “reach” of the publication was 5,499. They said no such data existed in the present case.
138 In this case, the “reach” should be fixed by reference to 166 likes and followers and 127 comments or replies as to the first publication, and 104 users liking the first publication. Eighteen Facebook users shared the first publication. They said there was no evidence that anyone liked or shared or commented on the third publication, and one user liked the second publication. Dr Shahbaz’s Facebook page had 1919 likes and 1931 followers, and 402 users liked or followed Ms Sharma’s Facebook page, the fifth publication. They said there was no evidence that anyone liked, commented upon, or shared the seventh publication. Insofar as Mr Hawwa had given evidence as to some greater “reach”, his evidence, they said, should be rejected or at the very least heavily discounted. Despite earlier assertions to the contrary, Mr Hawwa’s calculations were not the result of a mathematical analysis of the data which he produced.
139 The present case, they said, stood in contrast to Mirabella v Price [2018] VCC 650, which they said commanded 24 press articles, three newspaper articles, and numerous tweets and posts, together with a Wodonga Race Club video and a comment in the newspaper, “The Border Mail”. They said in this case, insofar as the posts had been retained or republished by a Liberal supporter group known as Web Warriors, that should not be regarded as a normal consequence of Mr Cossari’s publication; nor should the publicity received in The Age newspaper as a result of the plaintiff’s solicitors providing the Statement of Claim to that newspaper. They said the grapevine evidence was limited to parliamentary colleagues and Liberal Party members. The evidence as to reputation, they said, was as to Mr Wells’ reputation now, viz after publication.
140 It is perhaps inevitable that attention as to these matters would focus to some degree on the court’s award in Mirabella v Price. That was one of my own decisions, which concerned an alleged assault or battery said to have been inflicted upon an independent Federal member of the House of Representatives by a candidate and former member for the same electorate in the run-up to a general election. To add to the list of similarities, leading counsel for the defendant there was, as here, Mr Gilbertson QC.
141 The defamation in Mirabella’s case was both more serious in one sense and far less serious in another. It was more serious because the evidence showed that the alleged incident had generated nationwide media attention as part of the Federal general election campaign. This attention extended to national television. The allegation rated a mention in a televised debate between the sitting member, the alleged victim, and the plaintiff challenger for the seat. To use the language employed in the present case, the “reach” of the defamatory statements was far wider. Moreover, there was extensive online commentary, which, in contrast to the commentary in the present case, was hostile to the plaintiff and inclined to “jump on the bandwagon” of the allegation. In contrast, here the commentary included a large dose of scepticism.
142 The present publications, however, can be regarded as more serious than those in Mirabella’s case in at least two respects. First, what was alleged, if it occurred, could constitute a criminal offence. Mr Cossari saw fit to make a complaint to the police. In fact, no prosecution was launched; one may infer because of a lack of corroborating evidence, rather than a view that what was alleged did not constitute a criminal offence. No one suggested in Mirabella’s case that the matter, if it occurred as alleged, constituted other than a purely technical battery. There was no question of its becoming a police matter.
143 I generally accept the critique of Mr Hawwa’s evidence made by Mr Gilbertson QC and Ms Whiteman. As I understood Mr Hawwa’s evidence, the “reach” of Facebook posts, generally, and these posts, in particular, depended crucially upon the operation of the Facebook algorithm or algorithms. These are a “trade secret”. (T413, L10–11) Someone in Mr Hawwa’s situation can only make judgements based upon his observation of the algorithm in action without having direct knowledge of the algorithm or algorithms themselves. The upshot of the lengthy cross-examination to which he was subjected by Mr Gilbertson QC, following production of underlying data, was that his figures as to “reach” did not proceed from a numerical averaging of the data from which he worked, being the records of advertising campaigns carried out by his company, but, rather, represented an impressionistic conclusion from that range of material.
144 Mr Gilbertson QC and Ms Whiteman challenged the admissibility of these opinions. I concluded that they were admissible as being based on Mr Hawwa’s experience, in the same way as, for instance, an orthopaedic surgeon in a personal injury case could express an opinion as to the likely outcome of a projected piece of surgery, based upon his own surgical experience and observation over his career of outcomes achieved by various patients. No doubt, an opinion along those lines would carry less conviction than one which could be vouched for by reference to a peer-reviewed statistical study published in The Lancet or The New England Journal of Medicine, but it would be admissible. The effect, therefore, is that the figures to be found in the Hawwa report are not vouched for by any detailed mathematical calculation. I agree with Mr Gilbertson QC and Ms Whiteman that in the circumstances it would be inappropriate to go beyond the “reach” figures to which they referred in their closing submissions which are derived from the plaintiff’s Statement of Claim.
145 I accept Mr Wells’ evidence that he was deeply dismayed and hurt when these allegations were made against him. Again, self-evidently, they are particularly embarrassing by one who served as the State’s Police Minister, as Mr Wells did. Again, his evidence that his political career has been devoted, inter alia, to advocating non-violence and law and order in light of unhappy experiences in his own childhood, stood unchallenged. The defamations must be regarded, again, as being the more hurtful for that reason.
146 It is difficult to credit that these matters had a significant adverse effect upon Mr Wells’ victory in the seat of Rowville. That victory occurred as part of a very disappointing result for his party. It had lost the 2014 general election, and in 2018, far from “bouncing back”, it sustained an adverse swing against it in excess of 5 per cent. Mr Wells’ performance stood out as a victory without reliance on preferences in an electorate which sociologically could not be regarded as “blue ribbon” for the Liberal Party. (T65, L10–13) In Mirabella’s case the plaintiff failed to regain the seat which she had formerly held at the election following the publication. Nevertheless, I found that there was at least one far more significant factor in her lack of success, and concluded it could not be said that the defamation “cost her” the election.
147 Again, it is difficult to credit that Mr Wells’ current difficulties with fundraising can be attributed to these posts. The disappointing result which the party obtained in the 2018 general election might well account for subsequent fundraising difficulties for the party’s candidates generally. I asked Mr Wells whether he was in a position to make a comparison between his experience in fundraising and that of other state opposition members. Mr Wells replied, “I’ve always been able to fund my campaign on my own” (T112, L25–26), which was not really an answer. Being pressed further, he said “Your Honour, the issue for me is I’ve had long-term supporters, we’ve been through good times and very bad times in 2002 but it’s a very different environment now” (T113, L1–4), which also did not really answer the question. It follows that I am not convinced that any fundraising difficulties which Mr Wells may now encounter can be attributed to these posts. The only distinct and incontrovertible indication that somebody now thought less of Mr Wells as a result of the posts was the statement by one female elector at the pre-poll booth: “I don’t vote for thugs”.
148 Mr Wells also said that he feared for his pre-selection in the 2022 election, implicitly attributing his misgivings on that score to the effect of the imputations in these posts. I found nothing in the evidence to give credibility to these apprehensions. It must be said, however, that against the background of a disappointing performance by Mr Wells’ party, having lost all but one state general election in this millennium, with a further adverse swing in the most recent one, it would be unsurprising if there were a school of thought in the party that it should look for “new blood”. The evidence did not establish any link between these posts and Mr Wells’ concerns as to pre-selection for the 2022 general election.
149 The final and perhaps most significant contrast between this case and Mirabella’s, is that in Mirabella’s case Ms Mirabella received a full, albeit belated, apology. Here, not only has no apology been forthcoming, but Mr Cossari has pressed a counterclaim for damages for assault and battery.
150 Beyond a review of the various factors bearing upon the damages assessment, it is not possible to provide a clear numerical analysis as to how a particular damages figure is selected. It represents the weighing of factors which either increase or mitigate the damage suffered by the plaintiff, and considerations such as the need for vindication and the need to “nail the lie”.
151 Weighing the various considerations referred to above, the figure which I select is $120,000. This represents a smaller award than was made in Mirabella’s case for what is fundamentally a more serious defamation, not mitigated by an apology, but persisted in. The reason for the lower figure is the much less extensive publication. This incident made it to the “mainstream media” only as a result of the actions of Mr Wells’ own legal advisers.
Aggravated damages
152 In Wilson v Bauer Media [2017] VSC 521, John Dixon J stated the principles governing the award of aggravated damages as follows:
“84. Where the conduct of the defendant has increased the injury suffered by the plaintiff, a court may award aggravated damages.
85. Circumstances of aggravation can be found in the defendant’s conduct from the commission of the tort up until the day of judgment. The inquiry is whether the harm suffered by the plaintiff was aggravated by the manner in which the act was done or by the publisher’s conduct thereafter. The focus of the inquiry is on the subjective experience of the plaintiff.
86. The defendant’s aggravating conduct may be found in the circumstances of publication where, for example, the defendant increased the harm suffered by the plaintiff by intentionally or recklessly inflicted damage on the plaintiff’s reputation, by repeating the offending allegations, or where the defendant failed to investigate the defamatory allegations before publishing them. Acts of publication in retaliation or reprisal against the plaintiff may aggravate the harm. Evidence which establishes malice will also generally support a claim for aggravated damages, but only to the extent that the malice affects the harm sustained by the plaintiff.
87. Aggravating conduct may occur after publication and prior to proceedings being commenced where, for example there was a failure to publish a retraction or an apology that amounts to a continuing assertion of the defamatory imputations.
88. Damages may also be aggravated after the proceeding is commenced where the defendant’s conduct, either prior to or during the trial, has been calculated to deter the plaintiff from proceeding, or where a defence of justification has been pleaded with reckless indifference as to its relevance, provided in all cases that the defendant’s conduct increased the harm suffered by the plaintiff. In the conduct of proceedings, the defendant’s conduct must have been lacking in bona fides, unjustifiable or improper. Legitimate defence of a proceeding is not a circumstance of aggravation.”
153 His Honour’s damages award was modified by the Court of Appeal, but I do not understand the principles stated in these paragraphs to have been disapproved. It will be seen that, according to his Honour, bona fide defence of a defamation proceeding cannot be regarded as an aggravating factor, though persistence in the allegation of falsehood and the refusal to tender an apology may be evidence of malice. As previously explained, having concluded for the purposes of this proceeding that the alleged assault on Mr Cossari did not take place, in the absence of any explanation as to how Mr Cossari could have been mistaken as to its occurrence, his defence of the proceeding cannot be regarded as bona fide. In accordance with the views which I expressed relative to qualified privilege, his persistence must be regarded as indicative of malice.
154 The other aggravating factor relied on by Mr Hoyne on behalf of the plaintiff was the allegations as to alleged “watching and besetting” of Mr Cossari and his wife by Mrs Wells. Accepting, as I think I must, that either this event did not happen at all or, if it did, the individual involved was someone other than Mrs Wells, the allegation must be regarded as objectively false and therefore capable of aggravating Mr Wells’ damages. I accept that these allegations did in fact have that effect, but again, in accordance with the statement of principle by John Dixon J, these allegations would have to be “lacking in bona fides” to be appropriate aggravating factors. It has not been demonstrated, to my mind, that Mr Cossari’s allegations were made other than bona fide. They may have been simply mistaken, in the sense that the individual involved was somebody other than Mrs Wells.
155 In my view a further $20,000 should be added to the award in favour of Mr Wells for aggravated damages.
Counterclaim
156 My findings on the defence of justification necessarily entail dismissal of Mr Cossari’s counterclaim. Even had his allegations of assault and battery been sustained, the counterclaim would have faced significant difficulty. Part VBA of the Wrongs Act 1958 establishes restrictions on recovery of damages for personal injury. Section 28LE provides that:
“A person is not entitled to recover damages for non-economic loss ... in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.”
157 Significant injury is defined in the following section, 28LF, by reference to a “threshold level” which in the case of spinal and other physical injuries is set at 5 per cent impairment of the whole person and 10 per cent in the case of psychiatric injury (s28LB). These percentage impairments are to be assessed by an approved medical practitioner in accordance with what the Act refers to as “the A.M.A. Guides” which are defined in s28LB as the fourth edition of a publication by the American Medical Association subject to modification relative to chapter 15’s treatment of psychiatric issues. No impairment assessment of this type has been carried out, and therefore, even if Mr Cossari’s account of events were accepted, any claim for non-economic loss would necessarily fail. The restrictions upon the recovery of damages for non-economic loss imposed by Part VBA do not apply where the damages claim results from “an intentional act that is done with intent to cause…injury”. Here, the only intention attributed by Mr Cossari to Mr Wells was an intention to view the reverse side of Mr Cossari’s `how to vote’ cards.
Costs
158 I have heard no submissions on the question of costs and so I will reserve them.
Disposition
159 I will direct the parties within 14 days of the date of these reasons to bring in short Minutes to give effect to them.
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