Ashworth aka Otto v Nine Network Australia Pty Ltd - [2019] NSWDC 188 - NSWDC 2019 case summary — Zoe

NSWNSWDC

Ashworth aka Otto v Nine Network Australia Pty Ltd

[2019] NSWDC 188

District Court of NSW|2019-02-28

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At a glance

Source facts

Court

District Court of NSW

Decision date

2019-02-28

Catchwords

Otto (aka Ashworth) v Gold Coast Publications Pty Limited
Gayle v The Age Company Pty Ltd (No 2)
Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828)

Source

Original judgment source is linked above.

Catchwords

Otto (aka Ashworth) v Gold Coast Publications Pty LimitedGayle v The Age Company Pty Ltd (No 2)Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828)

Judgment (87 paragraphs)

[1]

1 CLR 298 Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 Maisel v Financial Times Ltd [1915] 3 KB 336 Mallegowda v Sood [2019] NSWCA 37 Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 520 Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375 Mizikovsky v Queensland Television Limited [2013] QCA 68 Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 Monir v Wood [2018] EWHC 3525 (QB) Monroe v Hopkins [2017] EWHC 433 (QB) Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465); Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828); Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (ACN 065 986 987) (No. 2) [2016] NSWDC 357 Nanji v National Geographic Society 403 F Supp 2d 425 (D. Md., 2005) National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101 Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308 PW v MS (No 3) [2014] WASC 202 R v Cooke [2004] NSWCCA 52 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Reid v Brett [2005] VSC 18 Russin v Wesson, 183 Vt 301, 949 A. 2d 1019 (2008) Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Smith v New South Wales Bar Association (1992) 176 CLR 256 Stocker v Stocker [2019] UKSC 17 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 Webb v Bloch (1928) 41 CLR 331 Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253 Wilson v Bauer Media Pty Ltd [2017] VSC 521 Wing v Australian Broadcasting Corporation [2018] FCA 1340 Wootten v Sievier [1912] 3 KB 499 Texts Cited: Professor R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (2nd ed., Thomson Reuters) Professor D. Rolph, "Reputation, Celebrity and Defamation Law" (1st ed., Sydney, 2008) The Honourable Justice Dowsett, "Prejudice: the Judicial Virus", 7 February 2009 Category: Principal judgment Parties: Plaintiff in proceedings 2016/221796: David Ashworth aka David Otto Defendant in proceedings 2016/221796: Nine Network Australia Pty Ltd (ACN 008 685 407)

[5]

The plaintiff's claims for defamation

The plaintiff brings proceedings for defamation for the following four publications: 1. David Ashworth (a.k.a. David Otto) v Nine Network Australia Pty Ltd (2016/221796): This is an action for the broadcast and online version of the programme A Current Affair first made on 24 July 2015. I note that, in Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308, I granted leave nunc pro tunc for the plaintiff to continue these proceedings pursuant to s 23 Defamation Act 2005 (NSW) ("the uniform legislation") notwithstanding proceedings having been commenced (and abandoned) in Queensland prior to commencement of these proceedings in this court. 2. David Ashworth (a.k.a. David Otto) v Gold Coast Publications Pty Limited and Queensland Newspapers Pty Ltd trading as News Queensland (2016/338258): This is an action for two largely identical articles. The first, published on the website of the Gold Coast Bulletin, is entitled "Island playboy's indecent proposal: Gold Coast woman falls victim to a con". The second is an article available on the website of the Courier Mail entitled "Island playboy's indecent proposal: Gold Coast woman falls victim to a con". The extent of publication in these claims is limited to online access to the website for each of these publications occurring after 9 December 2015, by reason of the circumstances in which this claim was not brought until shortly after the expiry of the limitation period for these newspaper online publications: see Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101. 3. David Ashworth (a.k.a. David Otto) v Dailymail.com Australia Pty Ltd (2016/338264). This is an action for a publication in the Daily Mail, "Young woman, 21, stunned after applying for a receptionist position only to be told it was 'group romance as an island girlfriend'", published on 15 November 2015. This Daily Mail is only published online in Australia.
The text of each of the matters complained of is set out (as Schedules A to D respectively) at the end of this judgment.

[6]

The issues in the proceedings

The issues in these proceedings were substantially narrowed in the course of the trial. I note the following: 1. Proceedings arising from the four publications were consolidated: Ashworth aka Otto v Nine Network Australia Pty Ltd (ACN 008 685 407); Otto (aka Ashworth) v Gold Coast Publications Pty Limited; Otto v Dailymail.com Australia Pty Ltd [2018] NSWDC 13. The evidence in one proceeding is the evidence in the others. 2. Challenges to the plaintiff's imputations by the defendants are limited to the following imputations: 1. Imputations (l), (m) and (r) in the A Current Affair broadcast; 2. Imputation (c) in the Gold Coast Bulletin and Courier Mail publications; 3. Imputation (f) in the Daily Mail publication. 1. The plaintiff brought an application during closing submissions for rulings as to the capacity and defamatory meaning (thereby challenging the principles set out in Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230 at [6] and [14] - [17]) of contextual imputations 6(a)(i)/8(a)(i) and 6(a)(ii)/ 8(a)(ii) (T 1282, 1285). 2. The defence pleaded to each of the publications is only that of justification (to all of the plaintiff's imputations pursuant to ss 25 and 26 Defamation Act 2005 (NSW) ("the Act")). A defence of honest opinion was abandoned. A plea of contextual justification arises in relation to each of the three online newspaper publications, where two contextual imputations have been pleaded. In the course of closing submissions, Mr Rollinson made concessions as to the truth of one of the two contextual imputations (namely those pleaded at paragraphs 6(ii) and 8(ii) in each of the respective defences). The only submission made was that this contextual imputation, in relation to the second and third publications, was "just weightless in comparison with the plaintiff's imputations which are conveyed" (T 1349). Although Mr Rollinson made no such concession in relation to contextual imputations 6(i) and 8(i), as the relevant section of his written submissions confirms, the plaintiff's challenge was essentially to the capacity and form of this imputation. 3. Much of the factual evidence is documentary (for example, material on websites, emails and videos on YouTube) and neither the factual matrix this material discloses nor its authenticity are in dispute. 4. There is no claim for aggravated damages and the plaintiff called no reputation witnesses.
Although these proceedings were completed well within the allotted time, some interruptions occurred by reason of the following events: 1. On 27 January 2019, four weeks before the hearing, the plaintiff sent an email (addressed to me as the trial judge) to my associate asking for "a kind of witness protection" on the basis that the defendants were "trying to have me falsely incarcerated to stop me appearing because they'll lose if I turn up there next month" (Exhibit 1, tab 1). He went on to say that he was "a good boy with respect for others and no criminal convictions and if I'm not there on the day it is because they have put something nasty on me right before the case" and that "I will sleep on the steps of the court if it means me safely being there on the day". The plaintiff added that "since your order to keep reserved the particulars of the case" he had written "a 500-page book/biography" and that he would like to provide a copy "as part of my testimony as to my character." As a result, when shown this email, the defendants called for production of this "book/biography" (later tendered by the defendants, on a restricted basis, as Exhibit 9). This required additional reading time. 2. In the course of cross-examination, answers given by the plaintiff resulted in calls for undiscovered documents to which he had referred. The plaintiff's evidence in relation to many of these calls was that he had left the documents in a red Barina motor vehicle left in a car park and later towed away (T 49 - 51, 640 - 646). A limited number of documents were produced. The late production of those documents resulted in some delays. 3. As is often the case with longer hearings, the court and the parties were involved in other matters which required time out of court. The parties' legal representatives greatly assisted the smooth conduct of these proceedings by adapting the conduct of the case to minimise the impact of these interruptions. 4. On the day that I reserved judgment (20 March 2019) the plaintiff sent nine emails to my associate which resulted in an application by the plaintiff for leave to reopen his case to adduce further evidence. This judgment includes my reasons for refusal of that application in relation to all but two of the documents (where leave to reopen was consented to by the defendants). This added a further two days of hearing time and delayed the termination of the trial.

[7]

A brief overview of the claims

The plaintiff, who is now 40 years old, had been an aspiring musician, guitar and music teacher, singer and bandleader since his early teenage years. His success as a musician has, however, been limited, in that, apart from some brief success in about 1999 - 2000, his music has not been professionally recorded or played on radio stations. Nor has it been performed at concerts or on concert tours attended by paying members of the public. On occasion, the plaintiff has participated in bands playing in hotels for the benefit of patrons and in "open mic [microphone]" evenings where members of the public may perform for free. However, the vast bulk of the musical events at which the plaintiff has performed over the past two decades have been organised by the plaintiff himself, frequently in his own home.
As is set out in more detail below, the plaintiff made the most determined efforts to bring himself to public attention by advertising his proposed activities on his own websites and on social media platforms such as Facebook. Those efforts included setting up Facebook pages and websites with alluring names such as "Girl Club", illustrated by photographs of girls in bikinis and luxury accommodation that the plaintiff had copied from other internet sources, and descriptions of concerts and jobs which the defendants say were not merely "aspirational" (to use the description preferred by the plaintiff: T 167, 250, 272, 382, 396, 418, 470, 476, 500, 709), but fake.
The plaintiff's unsuccessful attempts in 2015 to organise a series of musical events, most of which were aimed at featuring women under the age of 23 wearing bikinis and lingerie, came to the attention of the defendants in two quite separate circumstances: 1. The plaintiff promoted, on websites and social media posts set up by himself or others at his behest, concerts at which he and his band would be the sole performers. These promotions included advertising for sales girls for events such as a "Bikini Concert" at the Metricon Stadium and at the Marriott Hotel, Surfers Paradise. A reporter from A Current Affair interviewed four young women and the plaintiff about these activities and on 24 July 2015 the first matter complained of was broadcast. It remained accessible thereafter online where, the plaintiff alleged, it was viewed by many persons who refused to have dealings with him as a result. 2. The remaining three publications, published in November 2015 and thereafter also accessible online, describe separate but similar activities of the plaintiff. They described how a Ms Shayla Chandler had responded to the plaintiff's Facebook post for a position of receptionist at an island resort and subsequently fled hotel premises asserting that the plaintiff and his girlfriend in fact wanted her to join in a sexual ménage à trois, as opposed to offering receptionist employment.
Although there is a substratum of common fact between them (in that these activities relate to the plaintiff's musical career and sexual proclivities, as is reflected in the imputations pleaded), none of the matters complained of refer to the others.
As evidence going to the defences of justification and contextual justification need not be limited to the factual circumstances set out in each of the matters complained of, in addition to evidence based on events described in the matters complained of, the defendants led evidence concerning other activities of the plaintiff in organising other events and concerts. These include: 1. Additional examples of concerts which were described in submissions as "fake events", such as promotions for events to be held at Auchenflower Scout Hall, the Royal Exchange Hotel, the Marriott Hotel and various Girl Club concerts. 2. Additional evidence of events the defendants submitted were "scams" created by the plaintiff falling within the terms of the imputations pleaded, including advertising holiday packages and jobs at islands and resorts, such as the "Whitsunday Music Festival Island Holiday Stays", the "Secret Love Country Party Resort", and additional evidence concerning the events at Tangalooma Island Resort involving Ms Chandler such as an attempt to drug her drink. 3. Evidence of the plaintiff's "creepy" (imputation (d) in the A Current Affair broadcast), "sleazy" or "deluded" (imputation (p) in the A Current Affair broadcast) conduct towards other young women who participated in these events, such as the "House Agreement" the plaintiff was asserted to have used as part of his attempts to prevent girls leaving (Exhibit 3, Tab 68). 4. The circumstances of the plaintiff's asserted ownership of property known as Temple Island (also called "Girl City Island" and "Whitsunday Music Festival Island"). 5. Advertisements in which the plaintiff sought to engage young women for the purpose of entering into what are called "polyamorous" relationships with the plaintiff, namely relationships in which there is more than one woman and where those women perform sexual acts on each other as well as on the plaintiff. This conduct is relevant to imputations of conduct of the plaintiff which is asserted to be "creepy" and "sleazy" and also as to whether the plaintiff is a liar and has lied about his age.

[15]

The relevant principles of law

The relevant principles are set out in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5]-[6] and John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [26]. Both these decisions deal with perverse answers to questions on defamatory meaning returned by juries in the course of the now repealed s 7A jury trial procedure under the Defamation Act 1974 (NSW) as to defamatory meaning, at a time when the imputations was the cause of action, a procedure now discarded. However, the basic principle remains the same, namely whether the ordinary reasonable reader would have understood the matters complained of in the defamatory sense distilled within each imputation. This will include the inferences and conclusions such as an ordinary reasonable person may draw from the words used, particularly where the matter complained of is of a sensational nature (as is the case here), when a reader may engage in a certain degree of "loose thinking" (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245). This is all the more the case where a publication is on the internet, for the reasons explained by the Supreme Court in Stocker v Stocker [2019] UKSC 17 ("Stocker v Stocker").
Where a judge, as opposed to member of a jury, performs such a task, it must be taken into account that ordinary reasonable readers or viewers of the broadcast are persons of ordinary intelligence, experience and education, who are neither naturally suspicious of mind nor avid for scandal. In particular, the ordinary reasonable readers or viewers are not lawyers and their capacity for implication may be greater than that of a lawyer.
The ordinary reasonable reader/viewer is taken to have read/viewed the whole of the newspaper article/television programme, and not merely the headline or a particular portion, although the reader/viewer of a sensational publication may not read/view it as carefully as may be the case with a serious publication.
In the present case, care must be taken to determine the imputations as arising solely from each matter complained of and not to have regard to, or to be subconsciously influenced by, imputations pleaded concerning the other publications.

[21]

Imputation (c): "The plaintiff tried to have sexual relations with Shayla Chandler against her will."

The key to this imputation is the reference to "Indecent Proposal" in the headings of both the Gold Coast Bulletin and the Courier Mail. This phrase is one of several film titles which have become part of the lexicon and thus come to have a special meaning. Other examples are "Sophie's Choice" (according to Urban Dictionary, an impossible choice), "Bucket List" (according to Wiktionary, a list of things to do before one's death), "The Full Monty" (according to the Cambridge Online Dictionary, to get everything you need) and "Gaslight" (according to Wikipedia, to cause a person to doubt his or her sanity through the use of psychological manipulation). In "11 Movie Titles That Became Part of the Lexicon", journalist Eric D Snider ('Mental Floss', 25 July 2014) relates that the phrase "indecent proposal' has "showed up occasionally in court documents and case files as a legalese euphemism for any sort of obscene suggestion allegedly made by a defendant".
Not only the heading but the content of the matter complained of makes it clear that Ms Chandler was being asked to perform "extra duties" in the form of sexual favours. The description of how the offer is put to her is as an offer to "jump in bed with us and cuddle". There is no suggestion of force or even verbal persuasion being used to persuade her to perform these acts against her will.
While Ms Chandler is quoted as saying that "all he wants us to do is book 10 girls into a hotel and keep them there for a month", there is no suggestion that those young women will be kept there against their will, any more than is the case with Ms Chandler. Her position is that she "had no idea he wanted some sort of relationship".
Even the suggestion that it was the plaintiff who tried to have sexual relations with her as part of the ménage à trois is difficult to make out, in circumstances where all that is described is the plaintiff and Kittie whispering to each other and then Kittie inviting Ms Chandler to jump into bed with them. Apart from following her "everywhere" (line 19), there is no conduct described of the plaintiff, let alone forceful conduct, upon which such an imputation could be based.
While I have considered each publication separately, in practical terms, the very minor differences of numbering are the only different factual issues. The very minor change in the Courier Mail headline is not relevant to the meaning and was not referred to in argument.
This imputation is not conveyed in either of these publications.

[22]

Form and capacity issues in the contextual imputations

The plaintiff in closing submissions raised issues in relation to form and capacity of the contextual imputations pleaded in Exhibits B, C and D, namely: 1. The plaintiff is a sleaze. 2. The plaintiff posted advertisements seeking to engage young women for the purpose of entering into polyamorous relationships with him.
In his written submissions, Mr Rollinson submits that contextual imputation (i) does not arise in addition to the plaintiff's imputations, although conceding that a requirement for differing in kind is no longer the law: Fairfax Media Publications v Zeccola [2015] NSWCA 329.
I accept this, but I should additionally note that, if it were necessary, I would be satisfied that the imputation clearly arises. First, it is the "condition" for which the imputations pleaded by the plaintiff are the acts, and the entitlement to plead imputations of both act and condition has been well established since Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980). Second, the circumstances in which the plaintiff advertised an employment position but then expected the successful applicant to perform "extra duties" in the form of a ménage à trois is conduct which is not acceptable and which relates to sexual matters, which is the dictionary definition of "sleazy".
Mr Rollinson also objects to the form of this imputation, on the basis that an imputation of being a "sleaze" is a generalisation, "almost devoid of content, inspired by accumulating the meanings in the plaintiff's imputations" (written submissions, p 10).
This challenge to form is bad by reason of the test set out by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 where Gleeson CJ, endorsing the availability of the imputation "X is disgusting" in an appropriate case, explains that the degree of specificity for an imputation should not need to be greater than that demonstrated in the matter complained of. The publications here are a good example of the application of those principles. The conduct of the plaintiff in expecting his employee to perform extra duties in the form of sex with himself and his female companion is conduct most aptly described as "sleazy". It would be hard to find a more apt description.
As the objections to this imputation are limited to its form as a contextual imputation rather than amounting to a challenge to capacity, it is not necessary for me to determine whether the imputation arises in relation to each of the three publications. I formally note my finding, however, that I am satisfied that each of the three matters complained of, by reason of their respective content, carries this imputation.
The plaintiff's objection to contextual imputation (ii) is that "if this imputation is conveyed, it is not defamatory, according to contemporary standards". If this is a challenge to capacity (which is unclear), I formally note my finding in relation to the context of each of the three matters complained of, considered separately, that this imputation is capable of arising.
As to defamatory meaning, the question of whether a contextual imputation need be defamatory has been the subject of consideration in recent decisions in New South Wales (Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230 at [6] and [13] - [17]]) and Queensland (Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375; Mizikovsky v Queensland Television Limited [2013] QCA 68). The rationale for these findings is the language of s 26 of the uniform legislation.
While the conclusions expressed in these judgments render this question otiose, the logic of a contextual imputation which is not defamatory is difficult to comprehend, as how else would the force of the contextual imputation be set against the plaintiff's imputations? This may be an appropriate issue for consideration in current law reform initiatives, particularly since a similar problem arises in relation to injurious falsehood imputations, where the requirement for an imputation to be defamatory is the subject of conflicting authority: see PW v MS (No 3) [2014] WASC 202 and Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] All ER (D) 03 (Jun).
Independently of that issue, I note my finding that the imputation is capable of defamatory meaning. It is no answer to say that members of the community today have more enlightened views about "polyamorous" sex. To say of a person that they advertise for young women to engage in group sex would be considered defamatory for the reasons explained by Hutley JA in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 (in relation to an imputations that a doctor was an "abortionist").

[28]

The plaintiff's music career

The plaintiff, who was born in 1979, in Brisbane and who received his High School Senior Certificate in 1996, has been interested in music from a very early age. He applied himself diligently to the study of music and was awarded an AMEB grade 6 in classical guitar in 1994. Between 1997 and 2000, he attended the Australian Catholic University (later Griffith University) where, receiving credit for courses at the Queensland Institute of Technology and Queensland Conservatorium, he was awarded a Bachelor of Arts with majors in music and screen production.
The plaintiff also obtained a certificate in event management from the Coorparoo TAFE in 2000, as well as a certificate in small business management at Sarina Russo College in 2001. He told the court that he had been a guitar and voice teacher as well as a performer (both in bands and solo) since his teenage years, as well as carrying on business as an event organiser. That means that he has been involved in the music industry for over a quarter of a century.
The plaintiff has provided to the court a lengthy summary of the many concerts, rehearsals, guitar classes and other musical activities in which he has participated over a period of approximately 27 years (Exhibit 3, Tab 14). He also wrote a 420-page autobiography, in which he outlined many of the events the subject of these proceedings (Exhibit 3, Tab 1). He was cross-examined on its contents by senior counsel for the defendant, Mr Dawson SC, and the document was admitted on a restricted basis in relation to that cross-examination (Exhibit 11).
The first 15 pages of Exhibit 3, Tab 14 cover his high school activities such as band practice. The plaintiff briefly belonged to a band; a newspaper item, tendered in the course of his application to reopen, shows him in a photograph of this band, active between 1997 to 1998 (Exhibit L). The plaintiff also participated in a radio interview on Brisbane radio station 4ZZZ in 1997 and on another radio station in 2000. However, the plaintiff acknowledged that he had few engagements prior to 2000: "Q. Well, are there any other for example, I note that pages 1 to 15 relate to events up to 1997, and then there appear only to be a small number in 1998. Then there are only three in 1999. A. That's because I was spending time writing music and teaching guitar." (T 22)
The plaintiff described, with some emotion, participating in an event on 19 April 2000 called "Molly Meldrum's House of Hits", where he performed with others in a musical segment that was televised: "A. … Let's put it this way: in the year 2000, I left my home, I went to Channel 10 studios. I played on TV with Molly Meldrum interviewing a singer of my band. I then flew to Mackay and played in [sic, probably 'front of' is omitted] 2,500 people. People wanted my autograph when I came into the city. We did an in store in that store because the single was an Aria nominated single. Then I was a little hung over, with my guitar, with wild withered(?) pants and this crazy shirt and a $200 haircut with a guitar in my hand walking from a plane down on the tarmac. Then the next gig we had, 20 people followed us back to the hotel room. I felt like a rock star. Q. And that's what I was about to say to you. You felt like one - A. I might actually be also - Q. but you've never been one, have you? A. On that occasion, absolutely. Q. But in no sense has that taste of being a rock star, as it might be called, translated into actual status as one. Would you agree with that? A. At that moment, most definitely." (T 166)
However, the plaintiff's list of music activities in Exhibit 3, Tab 14 shows that for the following year, 2001, he was inactive. For the next 7 years, between 2002 and 2009, he was giving guitar classes to learner students, usually at his home.
The plaintiff's "Girl Club" activities commenced at about this time. These activities consisted of playing his music in his front lounge room to any persons who dialled in for free on Ustream, the precursor to IBM Cloud Video, which was set up in 2006. The plaintiff estimated that between 10 and 30 people would have tuned in to these performances, which he was "really excited" (T 393) about, but these performances were few and far between: "Q. On page 58, there's only one entry for Girl Club and you just say, "In 2008 sometime" you don't actually put a month or a day on it; correct? A. That's correct, but it wasn't the only one Q. And it was at some community event, was it? A. Yes. It was called Big Night Out, I think it was a community event. Q. You played one song. A. No, we played a whole set. Q. Then on page 59 in 2009 there were some Dahlia Street performances as you call them, which were upstream performances? I'm sorry, Ustream performances, thank you. A. That's correct, with the camera that would stream it through to people that could log in on their computer. I don't think phones were there yet." (T 393)
"Dahlia Street" was where the plaintiff lived at the time. The plaintiff also commenced posting recordings of live concerts onto YouTube in about 2005. One of his songs, featuring young women in bikinis smearing themselves with chocolate, attracted 10,000 views.
The plaintiff's only other musical activity was to continue to give guitar classes at his home up until an unspecified date in 2011. Although there is a "ticketed concert" in a scout hall on Tuesdays during that year referred to in the plaintiff's schedule, attendance appears to have been for free and there were at most three such concerts (T 394).
In May and June 2012, the plaintiff embarked upon a series of nine concerts at the Royal Exchange Hotel, Toowong, which Mr Rollinson indicated was one of the highlights of his career (T 1329). However, according to the plaintiff's schedule, these concerts had, at most, six persons present; on three occasions there was nobody present: "Q. Yes, and in relation to the RE Hotel, Mr Otto, you have recorded as performances events where you have recorded zero audience members, haven't you? A. Sometimes, yeah. Q. That's under the heading from page 1 of this document which is page 38 of the tender bundle, the first page behind tab 14, you describe this as crowd. A crowd of zero is not a crowd, is it? A. Well crowd of zero is a crowd that has zero numbers, so it's not an inaccurate number. Q. It means there was no one there, correct? A. For that particular one, yes. I think it might have been that rainy night. Q. There are three of them though, aren't there? A. Yeah." (T 394)
The plaintiff returned to performances in his front lounge room in the Bonton Street house where he now lived (T 394) for the balance of 2012 to 2014. Although there were performances in a park during 2015, these were acknowledged to have been attended by less than five persons.
The plaintiff's methods of doing business seem to have changed in 2013, at about which time he entered into a relationship with a Ms Kittie Lee. She would contact members of the public to interest them in participating in music or social functions with the plaintiff. It was after contact from Kittie Lee that a young woman, Witness A, began to associate with them by visiting them on the weekends from March to August 2013. Witness A set up the Girl Club Facebook page and, on 25 August 2013, was one of two girls selling tickets to a Girl Club event in Brisbane that night. She was unable to sell any tickets to this event, which did not occur, and she terminated her association with the plaintiff shortly afterwards.
The plaintiff described Witness A as being one of his "entourage" (T 395): "Q. When you say entourage, Mr Otto, that's a word that is often used to describe the group of staff and other attendants that travel with an internationally renowned band as they move their way from venue to venue playing performances, isn't it? A. It's not. I use it in the reference to Mark Wahlberg who had an entourage of people, he actually had a TV show and then a movie made about him in that with that name as the title and then when they moved I think from New York to Los Angeles, there were a group of friends who moved out there and supported each other as they got more successful. So entourage is in the sense that it's a supportive group that follows around with the band to make them more successful. You don't have to be successful to have one. Q. Is that what you were trying to create? A. That's what I was trying to create, like Mark Wahlberg but for our band. Q. Yes. The thing about that program, Entourage, and the movie made from it, is that the entourage is able to be funded by the success of the person whose entourage they are, correct? A. That's right, in the case of the Grateful Dead it was the opposite. Q. The problem with you having hey? The problem with your entourage set up was that you became resentful that you were funding the entourage, didn't you? A. Entourage also refers to - Q. Didn't you? A. the Grateful Dead Q. Didn't you, Mr Otto? A. Yes, because Q. You decided to start charging the entourage to be the entourage, correct? A. Because the entourage had become - Q. Correct? A. - mainly customers. Q. Correct? A. Correct. Q. The problem with doing that is that it can't be an entourage after that point if you have to pay your own way to be in the entourage, correct? A. Because the entourage didn't behave as an entourage in the manner of the Grateful Dead who people did follow along with them and make meals for them and support them. Q. Comparing yourself to - A. That's also an entourage. Q. - the Grateful Dead and to Mark Wahlberg is delusional, isn't it, Mr Otto? A. No, it's aspirational as you said. For a guy who paid too many people it's not even -" (T 395 - 6)
Exchanges such as these, in the course of cross-examination, indicate some of the plaintiff's thinking behind his schemes. He considered that the persons he involved in his schemes should not only "follow along" and "make meals" or provide other forms of assistance but also "support" (T 395) him.
This passage is also a good example of the plaintiff's use of the "aspirational" explanation for making grandiose statements about himself. Shortly afterwards, while Mr Dawson SC was engaged in setting up the playing of a 2009 YouTube performance by three Girl Band members, the plaintiff volunteered an observation apparently designed to explain why he needed to make false statements about his activities: "WITNESS: Somebody give me a record deal, I guess, and then I wouldn't have the money problem, somebody else could book the events and all that." (T 397)
The video in question referred in the end credits to "sold out" concerts for the Girl Club. It was put to the plaintiff that there were no such "sold out" concerts and in some cases no concerts at all: "Q. The cities were Sydney, for example. You never had a sold out Girl Club concert in Sydney, did you? A. No. Q. And to the extent that it suggests that there were sold out concerts in Brisbane on 16 October 2009, you didn't have a sold out concert for Girl Club in Brisbane on that date, did you? A. 2009. Q. Wasn't that the date you told her Honour this video was made? A. No, no, well this is end of July/August 2009. Q. Right, but you never had a sold out event in Brisbane, did you? A. No. I probably got bad advice from somebody saying that it creates hype to say that; unavailability makes the other ones, you know, want more. Q. So it's always someone else's fault for anything misleading on the website again, is it? A. In that particular case, I was given that advice. Q. Who gave you that advice? A. It would have been an event promoter. Q. We're just making this up, are we, as we go along, Mr Otto? A. No, no. Q. An event promoter? Are you suggesting that an event promoter suggested to you that you should lie to the public about whether or not an event was sold out? A. Yep, yep. Q. And it didn't occur to you there was something wrong with that? A. It was just advice I was given." (T 398)
The plaintiff acknowledged that he knew it was wrong but said he had to create interest "because I had to organise all this myself" (T 399). It was put to him that this was his modus operandi from that time onwards: "Q. So you are prepared, aren't you, Mr Otto, to say whatever it takes to be able to sell tickets to events that you want to put on, but don't necessarily have a booking for? A. I can't say yes to that; you said whatever it takes. Q. You are prepared to say things that are not true to the public to generate ticket sales, aren't you? A. No in that particular instance, but no. Q. Your modus operandi is, isn't it, to say that there is an upcoming event before you have a booking, and to try to sell tickets to it, so that you can make that event happen? A. No. Q. Do you agree that is what you were doing with Metricon and the Marriott? A. No, we were preparing to make a proposal to secure the event, and then sell it out, so I could play my songs at it and have a worldwide following, like people would inspire me to practise." (T 399)
Whether or not the plaintiff was prepared to admit it, the pattern of advertising concerts which had not in fact been booked became marked from about early 2014. In July 2014 he bought the domain for the "Be Our Girlfriend" website (Exhibit 3, Tabs 29 - 34) as well as using the "David Otto Music" Facebook page, where he described himself as "Australia's greatest up and coming songwriter offering a great night every week on the Gold Coast playing his latest music", when the only place he was playing this music was in his home. Additionally, he advertised that he was playing in concerts, and sold tickets to these concerts. The first of these was at a scout hall in Auchenflower on 3 February 2016, for which he sold at least one ticket, albeit to a very disgruntled concertgoer who later demanded his money back.

[29]

The Auchenflower concert

The plaintiff advertised a concert in a scout hall in Auchenflower for 3 February 2015 on the "Bands in Town" website. He sold one ticket to a Mr Dario Western, who complained to the plaintiff that when he arrived at the venue, there was no one there and no concert.
The plaintiff initially told the court that this concert took place, although he claimed it had taken place on 2 and not 3 February 2015: "Q. Now, you promoted, didn't you, a gig at Auchenflower; correct? A. Whereabouts? Q. Well, for example, you can see it on page 8 at the bottom there? A. Mm. Q. February the 3rd, 2015, Auchenflower, Australia, Park Lane. A. It must be an error because the performance that night was on the 2nd. Q. Well, in any event, you promoted a gig in early February at the Auchenflower Hall in Park Lane A. Which I was at and performed at." (T 183)
As the plaintiff later conceded (T 185), and as the schedule of events confirms (Exhibit 3, Tab 14 p. 65), the concert did not take place on either date, or at all.
After Mr Western contacted the plaintiff on arrival at this non-event, the plaintiff sent emails containing explanations of the reason. He was asked: "Q. You know that Mr Weston bought a ticket for the gig in early February at the scouts hall, don't you? A. Yes. Q. And you know that he went to Park Lane at Auchenflower to the scouts' hall on 3 February to attend that gig, correct? A. That's correct. Q. And you know that he was told that he got the wrong date? A. He had communicated with, and I let him know it was the previous night, yes, he'd gone the wrong night. Q. So you are the one who told him that he got the wrong date? A. Yes. Q. And you did that, didn't you, on Facebook? A. Yes. Q. And you used the name Tyson to do that, didn't you? A. The first thing that he wrong to me, yes. Q. Why did you use the name Tyson? A. He proposed I give him advice on a concept that seemed illegal to me." (T 189)
The plaintiff's explanation is that the website he used to advertise the gig, "Bands in Town" must have put the "wrong" (T 190) date, although acknowledging that he had provided that information himself. He was then asked: "Q. All right. Turn to the next page, and then you, trying to mask your identity but perhaps not very successfully, given that he identifies you with a photo with your name David Otto, even though this is from Tyson, you say, "Hey, Buddy, this is David's account but he doesn't manage it," this is actually you writing this, isn't it? A. Yes, cause I didn't want to be involved in what he said first. Q. "Looks like you've got a ticket to the 1 March event in Brisbane. Tonight was in Toowoomba. Tickets closed for this month's tours back in mid-January, so feel free to rock up at 7.30pm on 1 March and join us for a great night. David likes to have the event there at his old music teaching studio in Brisbane because it has some nostalgia as it's where he used to teach guitar. Look forward to seeing you there, Tyson." A. So it explains that that is the venue for him to be at, yeah. Q. But there is nothing in there, Mr Otto, about, "Sorry, mate, we put the wrong date on to Bandsintown, it was wrong on the Bandsintown website, but that's our fault, sorry about that," you don't say that, do you? A. I wasn't aware of that till- Q. You don't say that, do you? A. No, cause I wasn't aware until you just showed me that. I didn't really use Bandsintown; I don't know where he's looking it up, but anyway. Q. But hang on, Mr Otto, you had put the detail onto Bandsintown. He specifically asked you, "Did Bandsintown get it wrong?" And you don't deal with that question, do you? A. I do deal with it, I just credit him for access to the March event, so I've understood the matter to be finalised with him, he comes to the next one. Q. No, you suggest that he actually bought the wrong ticket? A. Well, at that point, that's what I thought he'd done, and until you showed me the Bandsintown. Q. And you don't say that in fact the event at Auchenflower was last night, 2 February, as you have suggested to her Honour in this case, do you? A. I thought I actually to him it was on the previous night, but anyway." (T 191)
The plaintiff's Answers to Interrogatories aver that Mr Western's refund had been donated to the Salvation Army but, when shown the records for this donation (in December 2018) post-dated this answer, explained this as being his intention. However, even the plaintiff's schedule of events (Exhibit 3, Tab 14, which also post-dates the answers to interrogatories) sets out that the $80 remaining in an account for this concert included this sum (the remaining monies apparently relate to the sale of tickets to the "2 male roommates" of "Andi": Exhibit 3, Tab 14 p. 65).
The plaintiff's explanations to Mr Western are inconsistent with contemporaneous documents (including the documents produced by the scout organisation and the "Bands in Town" page (Exhibit 3, Tab 5) which promotes a gig in Toowoomba on 5 February 2015, not on 3 February or March 1 2015), as well as the plaintiff's own schedule (Exhibit 3, Tab 14: there is no gig in Toowoomba on 3 February 2015 recorded). The plaintiff's schedule does claim that there was an event booked for "1st Mon in March" (which would have been 2 March 2015). The gig at the Auchenflower Hall is listed in this schedule as occurring on 3 March 2015, accompanied by a long explanation about the event not taking place because the venue was "too small" and the plaintiff needed "a huge launch event to put us on the map" (Exhibit 3, Tab 14 p. 65).
I do not accept any of the plaintiff's explanations. Not only is his evidence internally inconsistent, but it is inconsistent with the documents tendered. I am satisfied that no concert was scheduled to take place at Auchenflower on 3 February 2015 or on any other date in February or March 2015, and that the plaintiff's promotion of the event on the Bands in Town website was a scam to obtain money from members of the public. This inference is supported by the letter from Scouts Australia stating they have no documents to produce in response to the defendants' subpoena for documents relating to any concert or other event of this kind at the Auchenflower Hall in the period 1 July 2014 to 31 December 2015 (Ex 3, Tabs 12 and 13).
I am also satisfied that the plaintiff never refunded the $35 to Mr Western (T 186) and that the purported donation made in December 2018 was made for the purpose of falsely claiming to the contrary.

[31]

The "Bikini Concert 2015"

The plaintiff began promoting the "Bikini Concert 2015" in March 2015, claiming that tickets were available for a concert on 16 October at the Metricon Stadium. The ticket for the concert, showing a girl losing her bikini top, speaks for itself.
Patricia Higgins (an aspiring model with a page on the model/actress website "StarNow", where the plaintiff also advertised) applied for the position of "Promotional Model" for the Bikini concert. She and another young woman had a meeting with the plaintiff on 9 and 17 March 2015. In between these meetings, the Metricon Stadium staff contacted the plaintiff and told him to remove the Metricon Stadium reference as there was no contract. Despite this, the concert details remain online to this day (T 252 - 253).
The plaintiff denies that he had actually asked Ms Higgins to sell tickets, indicating that his intention was to see if he could obtain the numbers and that he would then book the event. However, Ms Higgins' evidence at T 1077 lines 7-12 is as follows: "Q. In relation to the tickets, did he say anything to you about those and what you should do with them? A. He told me at this stage I was welcome to go ahead and try and sell them if I wish. But in terms of what would happen in the future, he would be coaching us, so we would be able to learn more and be able to sell though to a greater extent."
In cross-examination, Ms Higgins was asked at T 1088 lines 20-43 the following: "Q. The deal was, wasn't it, as explained to you that there would be a series of meetings between Mr Otto and people like you over several months at training to ultimately sell these tickets, correct? A. Not to ultimately sell the tickets. There would be training, but I was giving the tickets to sell, at the first meeting. Q. I suggest that you were not told in the first meeting that you were to go out immediately and selling tickets? A. I would sell ‑ I was told I had the option to if I wish. Q. The option to do so? A. Yes. Q. You were told, is this correct, that if you sold any tickets you would get 35% of the revenue of the tickets you sold? A. I can't recall the financials. Q. Well, you were quite interested in the financials, weren't you, that was what it was all about as far as you were concerned? A. Not really. Q. You understood this to be‑‑ A. Not to that extent. I was just after a site rate, not making a huge amount of money. In fact, I found the financials a bit overblown." (T 1088)
She was not challenged on her evidence that she was told to sell tickets; it was just put to her that this was an "option". Her evidence in cross-examination was thus the same as her evidence in chief.
The plaintiff initially denied making the black and white flyers (T 219) (he acknowledged making the colour flyers and tickets); the only explanation he offers for the existence of tickets is that the pack the trainees were given were in fact a sales pack, not a training pack.
The plaintiff provided unconvincing explanations (T 252-253) as to why the material was still online. To the ordinary person reading about these events on Facebook, it would appear that the plaintiff actually did participate in some kind of event at the Metricon Stadium. The real explanation for the plaintiff's failure to take this event down from the internet is, on the evidence before me, in the hope of promoting the illusion that he is a performer who has engaged in concerts of significance at venues such as the Metricon Stadium. As is clear from Exhibit 3, Tab 16, the plaintiff never had any booking with Metricon Stadium for any event, let alone this event, at any time or at all. He had never even spoken to anyone at Metricon Stadium about the event, as he eventually conceded at T 230, lines 40-48 as follows: "Q. Well, you hadn't spoken to anyone at Metricon, had you? A. Because it wouldn't have been smart to until I had a team that I could demonstrate that I could sell the event. Q. But you had had tickets printed? A. Yeah. Q. Flyers printed? A. To show what it would look like to the stadium." (T 230)
The exchange of SMS messages between a representative from the Metricon Stadium, Mr Dan Smith, and the plaintiff, which is set out at pp 76-79 of the defendant's tender bundle, shows the plaintiff's response to being caught out advertising a fake event: Mr Smith: "Please call Dan Smith from Metricon Stadium [mobile number redacted]." Missed Call Service is free. Call 159 to opt out Mr Otto: Hi Dan. Do you have an email address? Mr Smith: Who is this? Mr Otto: I'll explain in the email proposal. Mr Smith: I am not sending you my work email address without knowing who you are. Is this regarding a bikini concert which lists Metricon Stadium as the venue? If so, a phone call would be appreciated. Mr Otto: I'd rather come in if that's okay? Mr Smith: You have missed calls from [mobile number redacted]. Missed Call Service is free. Call 159 to opt out. Mr Smith: You can come in if you answer my call or call me back, and tell me who you are. Further to this you will need to remove Metricon Stadium as the venue as you have no event contract with us, no discussions have been held to date, and you are simply assuming the stadium is available despite our current event calendar having tentative official event bookings throughout October. It would be appreciated if you call me back to discuss further. Cheers
The plaintiff never replied and never took down the advertised concert material.
The plaintiff's evasive responses to the attempts of the Metricon Stadium staff to get in touch with him to require that this function no longer be advertised is consistent with being caught out in a lie. His claim that he was endeavouring to train Ms Higgins and Ms Sharp and to present the function to Metricon Stadium after he had sold tickets is contradicted by Ms Higgins' evidence (at T 1088). Her evidence was that the plaintiff told her she could start selling the tickets immediately. The tickets cost $89. While there is no evidence that any tickets was sold, this is fortuitous.
This was a scam of some significance, given the plausibility of the advertising material. The professionalism of the website advertisements and the tickets was of a high order and would have been convincing to many members of the public. I am comfortably satisfied that the concert in question was a scam and that the whole activity was designed to scam not only members of the public but the Metricon Stadium itself.
As noted above, despite the stern request from Metricon Stadium to take the material offline, the advertising of this concert remains online today (T 252-253). The Metricon Stadium staff's experience with the plaintiff is another example of respectable business operators in the entertainment industry having contact with the plaintiff in relation to a "scam" or shonky business proposal.
On 20 and 22 March 2015 Patricia Higgins began a series of posts on Facebook warning about the plaintiff being a "creep" and running a "scam" and a "fraud" (Exhibit 3, Tab 14B). She also contacted StarNow to have the advertisement taken down, which they did. Again, these social media posts and the circumstances in which StarNow took down the plaintiff's advertisement are relevant to the defence of justification concerning whether the plaintiff is "notorious" and "famous" for his sleazy scams and shonky business.

[34]

The plaintiff's activities between the A Current Affair broadcast and the November 2015 publications

The plaintiff's list of concerts refers to several concerts in Southport Community Hall. He complains that these were dropped after "severe sabotage by 9" (Exhibit 3, Tab 14), namely the defendant in the A Current Affair proceedings on or about 7 July 2015.
Although not referred to in the plaintiff's schedule of his concerts, throughout August 2015, the plaintiff continued to promote his "Whitsunday Music Festival" activities on Facebook (Exhibit 3, Tab 39), including a "September Grand Opening Deal" and a $799 holiday package as well as jet ski races and live music. On 18 August 2015 he posted a 5-star "review" on the Girl City Island Facebook page, calling it the "best place on earth" although he had yet to visit the island for which he had paid only a fraction of the initial deposit.
On 26 August 2015, the plaintiff posted a "Staff wanted" advertisement which was seen by both Ms Thomson and Ms Chandler (T 884, T 994).
The next concert on the plaintiff's schedule in Exhibit 3, Tab 14 is the Whitsunday Music Festival Island "visit" in September 2015, which the plaintiff says in his "biography" was "sabotaged by island vendor showing article [i.e. the A Current Affair broadcast] to fans/guests" (at p. 67). The "road trip" taken by Monique Thomson and another young applicant, Maha Villanueva, took place from 17 to 21 September 2015. They were accompanied by Mr Bill Collyer, one of the owners of the island. They left at the earliest opportunity, with the help or Mr Collyer. Monique Thomson and Mr Collyer's evidence about this trip is set out in more detail below.
Undeterred by the failure of this "road trip", on 26 September 2015, the plaintiff posted another "Staff Wanted" advertisement on the Whitsunday Music Festival Island Holiday Stays Facebook page (Exhibit 3, Tab 39). It was following this that Ms Chandler had an interview by phone with the plaintiff on 27 September 2015 about having a work trial as a receptionist.
Although on 29 September 2015 Mrs Barbara Collyer, on behalf of the other owners, advised the plaintiff that the contract for Temple Island was considered by them to be null and void, he posted another advertisement for his island activities. Apparently aware of adverse online publicity about the island, he stated that one of the girls on the recent trip had been fired for raising her voice and pointing a finger at the organisers, and claimed that there would be a security guard on future trips (Exhibit A, Tab 39).
Unaware of these events, a Ms Shayla Chandler paid $200 for her receptionist job trial, at about the same time. The circumstances of her involvement in the plaintiff's activities are set out separately in relation to the proof of justification for the imputations for the three online newspaper publications.
The plaintiff's schedule of concerts refers to the Whitsunday Music Festival Island hopping visit in October 2015 at Tangalooma Island Resort as a concert, although that was not the case. This is in fact the events the subject of the matters complained of in Schedules B, C and D, which were published on 13 November 2015. This function is described by the plaintiff in his book as resulting from "sabotage by Patricia [Higgins]" in the plaintiff's biography.
These are the main events referred to in relation to the particulars of justification for the three online newspaper publications. However, one of the documents tendered, an internal email from the manager of the Tangalooma Island Resort, Ashleigh Patch, is of particular importance and is set out here as an indication of the plaintiff's reputation at the time, in that it describes the plaintiff as "a notorious con man including appearances on A Current Affair". This description of the circumstances in which Ms Shayla Chandler fled from a hotel room and sought assistance from the hotel staff management after coming to the hotel with the plaintiff and his partner Kittie Lee was as follows: "Illy (F&B) advised that a young female was outside the beach café and was concerned about her safety when she realised that the couple that she arrived with after responding to an advertisement on Facebook actually had indecent intentions. It appears the girl had been scammed by David Otto, (B14 A:324077) whom appeared on A Current Affair recently, labelled as Australia's biggest con artist. DM advised Normie, who had already flagged him as a potential problem guest prior to his arrival and advised reception to contact him if there were any issues. Sarah (rec) booked the female into K26 (Shailer Chandler A:324691) and she will be leaving on the 0830 launch. DM & Illy assisted Shailer to gather her belongings from B15 and ensured she made it to her room safely. OTTO and his partner will be leaving on the 1530 Micat. It is alleged that OTTO posed as a Tangalooma resort manager during negotiations with Shailer and promised her employment as part of his scam. We are also advised that he intends to book here again from the 6trh November until the 8th of December and has already begun recruiting girls for this event. We understand the girl contacted Police Link at the time. Brett has also mentioned that one of the staff from the bar had befriended this girl and later spoke to our staff after the incident and David Otto and company, went to her house and started harassing her for footage she had taken whilst on the trip. She refused and has contacted the police again to update them on this info. From what we've been told, she has taken out a restraining order and is looking to go back to A Current Affair. Mel has done some rather thorough investigating on Facebook and to put it mildly, what is being advertised is quite concerning. It's cleverly constructed in that it doesn't mention Tangalooma and only appears to mention Moreton Island the once I could find. There's a video that looks to be taken at Tangalooma given the backdrop and that it features recognisable staff (one in Quads and the other recently left TT but is still on island). Their voices are blocked out with music but if you were to look at the page, you'll get the gist of why we're concerned. Normie had bought it to our attention that David Otto/David Ackerman is a notorious con man including appearances on A Current Affair. It was also noted in the booking from Friday that he couldn't pay in full until he arrived at the island. If there is a booking due to be made in November, our strong suggestion is that it should be refused. I understand this is difficult given he'll probably give us a different name but at least we can be on the look out." (Exhibit 3, Tab 58)

[36]

The plaintiff's activities following the publication of the Gold Coast Bulletin, Courier Mail and Daily Mail articles

The plaintiff was undeterred by this incident or the publications of the three online newspaper articles, which he saw or heard about at the time of publication. He was back advertising for a "band girlfriend" on the David Otto Music Facebook page on 19 December 2015 (Exhibit 3, Tab 78) and he continued to make further posts in February and March 2016.
On 5 December 2016, the plaintiff advertised as follows on the Secret Love Facebook page: "Staff Wanted!! Want some extra $$$ these holidays? Our country party resort's 1 or 2 month working holiday stay is a great way to save for a car, holiday or new wardrobe! Live in tropical Queensland and help confirm bookings for our country party resort stays from 9am to 12pm each day, then relax by the pool and mountains in the afternoon!! You cover your living for the first weekend while you complete training - $200 covers living, food and accommodation and full access around the property just one and a half hours behind the Gold Coast. - Easy to follow systems provided for all duties- Paid Weekly- Amazing fun work environment- Upbeat supportive team of 5 already working- Exciting new weekend theme events coming up on our calendar you can be a part of Interested? Send your resume with contact phone number to our email address and we'll get back to you for our next callback interview times in to look at when you'd come up for your trial. Applications welcome from anywhere in Australia as we are holding interviews over skype with people in other areas. Looking for upbeat, courteous supportive people with a love of music and leisure. Suitable for people who are looking for a great lifestyle or just a working holiday away, loves the holiday party life and pet stays available on application. bookings@secretloveband.com"
The plaintiff's next venture was the "Secret Love Country Party Resort". He had purchased land at 39 Coxen Street, Maryvale, Queensland which, as the photographs show, is an isolated block of land situated in a residential area a long way away from holiday resorts. From December 2016 onwards, the plaintiff promoted his "Secret Love Country Party Resort" on the "Secret Love" Facebook page (Exhibit 3, Tab 66). The representations for this property as being a lavish resort are wholly at variance from the photographs tendered. These representations included: 1. that the "resort" was located in "tropical Queensland" (Exhibit 3, Tab 66) and that it looked like the photographs shown at pp 439A-439I of Tab 66, when in fact these are photographs of other premises; 2. that the premises had a pool and "gorgeous bright coloured" beach style cabins (p 439A of Tab 66), when the cabins shown were in fact cabins on other premises. The premises did not even have one pool, let alone the three referred to at p 439A of Exhibit 3); 3. that there was "amazing scenery" and beautiful gardens on the property, as well as amusement sites such as a mud pit and twice weekly boating trips on a nearby river. There was a river, but there were no boat trips; 4. that the "resort" was operational, in that "past guests all said they felt completely energised from their visit and can't wait to come back" (p 439C).
In his written submissions, Mr Dawson SC submitted that the reality of the property meant that the premises advertised online and the property at Maryvale "exist in parallel universes" (written submissions, paragraph 102). Having examined the photographs, I have to concur. Rather than set out a written description of the property, I simply invite examination of the photograph at Exhibit 3, Tab 74, showing a tin shed surrounded by large fence enclosing a timber cabin and small garden shed, as well as an outhouse-styled toilet. The interior is similarly primitive, consisting of a bathroom area with a camp shower, a bed and a couple of couches. I note the absence of a kitchen sink. Of particular concern are the locks seen on the gate in the fence fencing off the smaller cabin and shed (T 1108).
This was the premises concerning which the plaintiff had advertised for staff as a luxury resort for a one to two month working holiday. That advertisement followed the same pattern as before, in that applicants would work from 9:00am to 12:00pm and then "relax by the pool and mountains in the afternoon" if they paid $200 to cover living, food and accommodation expenses during their training. The final line in the advertisement claimed that there was already a team of five working at the premises (Exhibit 3, Tab 66, p 440).
According to the evidence, at least three young women answered this advertisement. The first of these was Witness B, whose evidence is set out below. The second person was a 20 year old young woman who left immediately (at T 738). The third was another young woman of the same age (namely about 20 years old) from whom the plaintiff also received $200. (Although their names are set out in the transcript, I do not propose to identify these young women.)
The plaintiff continued to advertise these activities throughout 2017. Advertisements dated 12 July 2017 and 22 July 2017 repeat the completely untruthful description of these primitive premises.
During December 2016, Witness B came for a job trial. This is perhaps the most disturbing of all of the evidence in these proceedings occurs. I also note similar evidence from an email exchange between the plaintiff and the other young woman who came to the Secret Love Country Party Resort (Exhibit 3, Tab 72). What makes these activities so disturbing is that the plaintiff had twice been exposed, in an extensive fashion, on television and in the print media, as well as online due to the activities of both Ms Higgins and Mrs Collyer. Instead of being deterred by being exposed, the plaintiff simply found a new scam and use even stronger methods of coercion in relation to the vulnerable young women who were attracted by his misleading advertisements.
During this time, there were proceedings in the Federal Circuit Court of Australia. The plaintiff prepared a tax invoice to Channel Nine for "voice and acting work on 7 July 2015" in the sum of $16,500. This was for the purpose of presenting to the Federal Circuit Court Judge hearing his challenge to the bankruptcy notice, in order to demonstrate a set-off claim. As a misleading document tendered to a court, this is a matter of some seriousness.
The plaintiff also continued to look for band members on his Secret Love Facebook page. For example, a post on 14 September 2017 stated: "Wanna be famous?Wanna be trained to play an instrument and go on tour?Wanna model?Also:Wanna put in the work to make it happen for you?Willing to do it anyway even if your parents say no?Willing to put the rest of your life on hold for 12 months to take up an opportunity?Now for the 1 or 2 of you out of the whole internet still reading:.Secret Love is offering 7 positions to be in the 'pussy cat dolls of rock' - a revolving set of band members who play Secret Love's music and model their outrageously cool fashions onstage at their concerts twice a month.It's a big commitment and you will need to sign a binding agreement with our lawyers, but it will be the best and coolest experience of your life!We have the music, we have the fashion. we have the instruments, we can show you how to play if you've never played before, we have the tours planned and we even have a cool home base to run everything from, we just need the models/band members to join in and get trained on how to play our songs on guitar, bass or synth.Looking for up to 7 band members so we can rotate and shuffle them between songs on the night to keep it interesting for the audience.2 gigs a month in Brisbane already booked.What happens next?1) Join us in the city after our next gig for an info session about it.2) Visit the band property for the weekend to try playing a song.3) Sign on for practise, training and performances over the next 12 months.Send your number to our page to be involved."
This is relevant to proof of justification of several of the imputations set out below. The reference to "pussy cat dolls" is a reference to a successful rock band. The advertisement included a statement that this was "a big commitment and you will need to sign a binding agreement with our lawyers", which is of particular concern given the way in which the plaintiff sought to use these "house agreements" as a form of coercion which was intimidating even to relatively experienced women such as Ms Higgins.
Although the plaintiff went bankrupt, he continued his activities nonetheless. He continued to attempt to put on performances, and took rejection badly.
A typical example of one of such transaction is a series of emails between the staff at the Royal Exchange Hotel and the plaintiff following the cancellation of an event in December 2017. There is an exchange of emails between the Entertaining and Marketing Coordinator of the ALH Group about what is called a "fake" event and the issuing of "fraudulent tickets" after a ticket is put on Oztix. This results in the directors of the company having a discussion which is outlined by the Client Services Consultant as follows: "DEC 29, 2017 | 04:07PM AEST Hi Sarah, I have discussed this with the directors and internally we will take measures to discuss a process to ensure this is 100% avoided in the future. Due to the event not existing - and therefore not being scanned by Oztix - there is no way for us to invalidate the hard tickets. Yes you are correct, he is able to sell the hard tickets that he requested to be printed. We do however have his contact details and can communicate with him that we are aware of the illegitmate [sic] event and the course of action Oztix will take if any of his fraudulent tickets are sold. We will be in touch with more on this next week. Have a great weekend and happy new year Sullivan Sullivan Patten Client Services Consultant"
This was replied to as follows: "JAN 02, 2018 | 11:41AM AEST Stuart Hi Sarah, Just want to follow up on this one. Is the event actually booked to happen at the venue? It is listed on the artists website http://www.davidottomusic.com/ We are reviewing internally how the new venue set up was not flagged as an ALH venue and passed on for your approval. No one other than internal staff can set up venues themselves, which is by design to prevent duplicate venues or shows like this being set up In regards to how we move forward from here, from our other aside from the internal issue of this being at an ALH venue without your approval, we don't have any previous issues with this promoter. We have done 3 previous shows for the artist and this contact before. We have taken the event off sale, but are yet to communicate this to the event promoter as to why. Do you have any other information from the venue, about him and the police investigation or how you would like to proceed. Happy to jump on the phone and discuss Stu"
The reply was: "JAN 02, 2018 | 12:17PM AEST Ian Hi Stu, thanks for following up. We don't have any more information I'm afraid. The venue found out about it by the phone call from the police. Which could have been fake as well to be honest. But they (the venue) have confirmed that he is definitely not playing at the RE Hotel (Royal Exchange Hotel). Cheers Ian"
This resulted in a further email: "JAN 02, 2018 | 12:37PM AEST Stuart No worries thanks Ian. We will contact the client, let them know the venue contacted us and advised that he [sic] event is not happening and requested it be removed from sale. If you do hear anything else regarding this person, please keep us in the loop Stu"
The plaintiff then contacted them to complain: "JAN 03, 2018 | 04:13PM AEST Hi all, We were contacted by very irate David today. I explained the situation to him and how the venue confirmed his event was not taking place. He was resoundingly furious at the cancellation of the event and claimed he had a 'recorded phone conversation' with Julia (?) confirming the event was to take place and that he would involve lawyers. Despite his dramatic behaviour, I told him we won't be proceeding without a contract from ALH. You may hear from him soon. Thanks kindly Sullivan Sullivan Patten Client Services Consultant"
Meanwhile, the plaintiff continued to have trouble with Mr Western over his outstanding deposit for the Auchenflower concert and, on 29 December 2017, demanding a location to forward the funds within seven days or "the amount will be forwarded to charity so your account can be finalised" (Exhibit 3, Tab 7). The money was not, however, donated to charity until 24 December 2018, one year later.
The plaintiff had a new venture in January 2018. He posted on the Secret Love Facebook page an advertisement for what he called "Bedroom Tours" for the plaintiff and his band to perform in band's bedrooms (Exhibit 3, Tab 66).
These proceedings were set down for hearing on 22 February 2018. The plaintiff does not provide particulars of any musical activities of significance during 2018.

[38]

Applying these background facts to the defences of justification and contextual truth

The above history demonstrates that, independently of any credit findings in relation to any witness, and on the basis of the plaintiff's evidence and admissions alone, he has clearly promoted events which did not exist, "ripped off" other persons' photographs to illustrate his own activities, asked young women to pay for their work experience, hired young women for minimal or no pay to sell tickets or bookings, tried to encourage young girls to engage in group sex and lied on many occasions. Findings for imputations to this effect can be made on the basis of the plaintiff's admissions alone. There is, however, more difficulty with imputations that the plaintiff was notorious or famous for these activities. There is, in addition, the question of how to approach imputations concerning the plaintiff's personality, such as that he is a sleaze, a fool, creepy and mysteriously deluded.
The plaintiff's lack of success, and his response to this, is central to the fact finding exercise in relation to these particular imputations, for two reasons.
The first relates to the manner in which he presented and his advertising material himself in the course of these purported business transactions. The plaintiff was described in the evidence (T 951, 1077) as well as by complainants online as being "a creep" (Exhibit 3, Tab 14B). The attribution of this characteristic is part of the first matter complained of, and imputation (d) is in fact that "the plaintiff is a creep", so this material goes to the justification of this imputation.
The second is that the plaintiff claimed that certain events (and thus his career) failed not because of his staging fake events or a lack of talent, but were "sabotaged", for example, by Ms Higgins' Facebook criticism (which he acknowledged was widely known), by the A Current Affair broadcast and by members of his family (Exhibit 3, Tab 14). Evidence of the extent to which the plaintiff's conduct is discussed online is relevant to the justification of imputations that the plaintiff is "famous" or "notorious" for his sleazy scams and shonky business activities (imputations (a), (e) and (f) in Exhibit A).

[40]

The defence of justification

Where a defence of justification is pleaded, the defence must be established in relation to every injurious imputation (Herald & Weekly Times Pty Ltd v Popovic (2003) 9 VR 1 at [306(i)]) and the justification must be as broad as the charge "in substance and effect" (Webb v Bloch (1928) 41 CLR 331 at 366 per Isaac J). However, it is not necessary to prove the literal truth of every detail (Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 at [220], Bryce v Rusden (1886) 2 TLR 435 at 439); the requirement is instead to meet "the sting of the charge" (Webb v Bloch, per Isaacs J). The application of this principle is clear from the facts in Wootten v Sievier [1912] 3 KB 499 where the court, while acknowledging (at 503) that the particulars of justification must have "the same precision as an indictment", nevertheless concurred with the trial judge's refusal to require the defendants to disclose the amounts of the racing bets that the plaintiff was alleged to have improperly placed, as it was "quite possible that there might be evidence of a bet upon which the defendants might properly rely" where the actual amount might not be known (at 506). The oft-repeated stipulation for particulars of justification to have "the precision" of an indictment needs to be seen in light of how that principle was applied to the facts of that case.
A good example of the correct application of these principles is that courts have long recognised that lay persons may be technically incorrect in their descriptions of criminal activities, and that it should be sufficient if the term used to describe the crime was substantially similar to the one which was committed. Professor Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (2nd ed., Thomson Reuters) ("Brown on Defamation") at [10-83], notes this principle in a series of cases in many common law jurisdictions, and the most recent application of it can be seen in Stocker v Stocker at [61], where Lord Kerr (delivering the judgment of the Court) applied this flexibility to a statement that the plaintiff "tried to strangle" his wife. Lord Kerr stressed the broadness of the requirement for the sting of the libel, as opposed to having to established "to the letter" the truth of the imputation: "[61] In light of my conclusion as to the correct meaning to be given to the words, "tried to strangle me", section 5 of the Defamation Act 1952 must occupy centre stage. It is beyond dispute that Mr Stocker grasped his wife by the throat so tightly as to leave red marks on her neck visible to police officers two hours after the attack on her took place. It is not disputed that he breached a non-molestation order. Nor has it been asserted that he did not utter threats to Mrs Stocker. Many would consider these to be sufficient to establish that he was a dangerous and disreputable man, which is the justification which Mrs Stocker sought to establish. Mitting J considered that the meaning of the statement that the claimant was arrested on numerous occasions, in the context of the other statements, was that he represented a danger to any woman with whom he might live. I see no warrant for adding that dimension to the actual words used by Mrs Stocker in her various Facebook postings. [62] Even if all her allegations were considered not to have been established to the letter, there is more than enough to satisfy the provision in section 5 of the 1952 Act that her defence of justification should not fail by reason only that the truth of every charge is not proved, having regard to the truth of what has been proved."
Despite apparent statements to the contrary in judgments such as Wing v Australian Broadcasting Corporation [2018] FCA 1340 at [79], the evidence relied upon should not be restricted to the evidence known to the defendant at the time of publication. The facts of this case are a good example of the injustice that would occur if this was the case. Part of the reason for this is that the evidence relied to be relied upon is not restricted to the contents of the matter complained of. Where the defamatory imputation is one imputing a character likely to engage in illegal or unlawful acts, such as being a con-man, a voyeur or a sleaze, it is not necessary that the facts upon which the defendants seek to justify his remarks be known or even in existence at the time the publication took place, as evidence occurring both after and before the publication may be adduced Brown on Defamation at [10-82], citing Maisel v Financial Times Ltd [1915] 3 KB 336 at 342 and Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 at [53]). As Lord Denning MR stated in Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 at 919, "if a libel accuses a man of being a 'scoundrel', the particulars of justification can include facts which show him to be a scoundrel, whether they occurred before or after the publication."
A defendant may establish the truth of the sting of the libel through his own witnesses, but it is sometimes the case that the most damaging evidence can come from the plaintiff or his or her witnesses or evidence. In Li v The Herald & Weekly Times Pty Ltd, Gillard J explained the importance of this kind of evidence as follows: "[226] A matter of some importance in the present proceeding was the effect of the cross-examination of Ms Li. She was cross-examined on a number of matters which suggested, among other things, that she was conducting a brothel at her premises. The thrust of most of the articles was that she was in fact conducting a brothel at her premises and the particulars given in the defence in support of the pleading of justification revealed a number of specific matters relied upon. However, her answers in cross-examination led to the conclusion that there was other evidence supporting the allegation. In my opinion, the defendants were not confined to the particulars of justification pleaded in their defence. They were confined in relation to calling evidence relating to those particulars but were entitled to cross-examine to elicit other evidence in support of their plea of justification. Once the plaintiff gets into the witness box and is cross-examined, the evidence adduced is admitted for all purposes, unless the Court directs otherwise."
A number of the imputations involve the exercise of an evaluative process in terms of what "right-thinking persons" may consider amounts to proof of a particular kind of conduct.

[41]

"Right-thinking persons" and proof of imputations where this is a criterion

There are two aspects to the question of the proof of imputations such as the plaintiff being a con-man or a sleaze. The first of these is the criterion to apply and the second is the question of extent (in that more than one specific act may be necessary to be established).
As to the question of what "right-thinking" persons would make of conduct of the kind attributed to the plaintiff, in Harbour Radio Pty Ltd v Trad [2012] HCA 44 at [54]-[56], Gummow, Hayne and Bell J observed: "[54] The invocation of "right-thinking" persons as a criterion of the defamatory nature of the matter in question was doubted by Griffith CJ in Slatyer v The Daily Telegraph Newspaper Co Ltd if it identified anything other than "a man of fair average intelligence". More recently, in Radio 2UE Sydney Pty Ltd v Chesterton, French CJ, Gummow, Kiefel and Bell JJ disfavoured any additional requirement of "right-thinking" and preferred, as the referee of the issue of whether a person had been defamed, an audience composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs. Their Honours added that such a criterion "may be seen as a benchmark by which some views would be excluded from consideration as unacceptable". [55] A legislative objective of the procedures under s 7A of the 1974 Act was to overcome the complexities said to arise from the common law division of functions between judge and jury. Chesterton concerned the alleged inadequacy of jury directions at the second stage, under s 7A(3), when the jury determined whether the matter complained of carried the imputations and, if so, whether they were defamatory. Under s 7A(4) McClellan CJ at CL alone was required to determine all issues of fact and law relating to 2GB's defences. [56] Issues of fact upon which a defence of substantial truth turns may present a ready choice for decision by the judge sitting, as did McClellan CJ at CL, at the s 7A(4) stage. But in other cases the imputation may depend upon more than primary fact finding. Upon that factual substratum an assessment of an evaluative nature may be required by the terms in which the imputation is expressed. Imputation (g) is of that character. In such a case the judge should look to the reaction of an audience composed in the manner as described above by reference to Chesterton."
In taking the evaluative approach explained by the High Court, I have considered how such a right-thinking person would make an assessment of an evaluative nature in relation to the facts asserted to give rise to the truth of each such imputation.
Another relevant factor is whether one specific act will be sufficient, or whether more than one is necessary. This point is helpfully explained by Gillard J in Li v The Herald & Weekly Times Pty Ltd as follows: "[229] Another matter of importance is that if the published charge be understood by the reasonable reader as asserting that a plaintiff is of general bad conduct, the defence will fail if the defendant does not prove the truth that that person bears that general reputation. Proof of a single act of, say, dishonesty, would not be sufficient. The point was made in Penton v Calwell where Latham CJ and Williams J said, after noting that the judge at first instance had held that the defamatory imputation was that the plaintiff was an habitual liar: Such a charge can be established only by an accumulation of instances. [230] The older cases support that approach. In Wakley v Cooke, it was held that one instance of a plaintiff recovering damages for libel against a newspaper was no justification of the publication of words that the proprietor of a newspaper was a "libellous journalist". Parke B noted that the phrase conveyed the view that the proprietor had been guilty of gross misconduct as a journalist by the habit of libelling others. Proof of one finding that the journalist had been held liable for the publication of a libel was not a defence to the defamatory imputation." [Citations omitted]
The question of whether one such act is sufficient leads to the question of how many acts would be sufficient. This is an issue best left to the determination of the disputed facts in each case.
Finally, I note that, in the present case, the determination of disputed issues of fact requires findings concerning allegations of sexual harassment or other asserted misconduct. With one exception, the witnesses called by the defendant on these issues were either teenagers or just out of their teens and several were clearly distressed while giving their evidence.
Allegations of this nature in criminal proceedings are dealt with by courts (and juries) within a framework of carefully drafted legislative and procedural protections, ranging from the anonymization of the asserted victim to special arrangements for the giving of evidence and limits on cross-examination topics. These legislative and procedural protections are not available in defamation proceedings, and the potential for judicial error is accordingly magnified.
I wish to thank the legal representatives for both parties for the assistance they have given concerning the presentation of this evidence. Without being too specific, steps were taken to ensure that the welfare of these witnesses was accommodated without depriving the plaintiff of his entitlement to challenge the evidence. I am particularly grateful to Mr Rollinson in this regard.

[43]

Evidentiary issues: lies and the Jones v Dunkel inference

As well as relying upon their own evidence and admissions by the plaintiff in cross-examination, the defendants also rely upon inferences to be drawn from the plaintiff's asserted lies in his evidence and from his failure to call Kittie Lee, a witness acknowledged to be available to attend but not called because of Mr Rollinson's concerns about her general wellbeing.
In Edwards v R (1993) 178 CLR 193 at 210, Deane, Dawson and Gaudron JJ explained the relevance of lies as admissions against interest as follows: "A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest."
In R v Cooke [2004] NSWCCA 52 at [21] and [50], speaking in the context of the drawing of such inferences in criminal proceedings, Ipp JA referred to the considerable body of law with respect to the circumstances in which such evidence may be admitted and the way that it may be treated. Where a litigant deliberately gives false evidence in relation to an important issue in a proceeding, it is cogent evidence of an admission by that litigant that the truth would not assist his or her cause and indeed would damage it.
One of the issues before me for determination is whether the plaintiff is a compulsive liar (imputation (s) in the A Current Affair broadcast). I have been careful not to conflate the findings of fact necessary for making that finding with evidentiary issues in these proceedings but, as a matter of practicality, if a witness who complains of being called a liar is also proved to have lied in the course of giving evidence, it is a relevant factor in relation to justification of an imputation to this effect.
As is set out in more detail below, I am satisfied that the plaintiff was repeatedly caught out in a series of lies about all the transactions the subject of particularisation in support of the plea of justification. I have approached the issue of evidentiary value of lies in accordance with the principles set out above.
Ms Kittie Lee was in Sydney during the trial and her absence was not explained other than by Mr Rollinson's statement that he did not consider it would be good for her health to call her.
Ms Lee was a joint participant in the plaintiff's activities and was present when most of the events the subject of particularisation occurred. She felt sufficiently strongly about what occurred to send communications to certain witnesses shortly before the hearing, which resulted in restraining orders being made, but was not prepared to attend for cross-examination. Taking these issues into account, I am satisfied that a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) should be drawn.

[44]

The plaintiff's credit and the evidence of justification

In Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB), Tugendhat J observed at [73]-[74]: "[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1-27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not. (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. [74] Lord Bingham then added these observations: "In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.... ... so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.""
The following may be observed concerning the plaintiff's credit. 1. Three of the imputations in relation to the A Current Affair broadcast are challenges to the plaintiff's honesty. As is set out in more detail below, I am satisfied that he is indeed a compulsive liar and that truth has been established to the claim that he is so dishonest about his events that police should be contacted. Those findings of fact, which arise largely from contemporaneous documentation, constitute a significant blow to the plaintiff's credit. 2. Although demeanour in the witness box is not generally an issue which should be at the forefront of credit issues, the plaintiff's repeated failure to answer questions, as well as his angry responses to cross-examination, required several adjournments so that his counsel, at the invitation of the court, could discuss with him the appropriate manner to give evidence. Occasionally the plaintiff had what Mr Dawson SC called "small moments of truth" when he would make concessions (T 70, 325, 382, 397 and 417-418), but in general his response to questioning was to give irrelevant and discursive answers which smeared the reputation of other witnesses by allegations of sexual misconduct (see for example, T 545-547, 568, 569, 573-575 and 609). 3. There were a number of specific instances of false evidence such as the plaintiff's claim in his answers to interrogatories that he had donated $35 to the Salvation Army when in fact that sum was donated six months after he swore the answers to interrogatories. While the plaintiff on occasion ultimately admitted conduct had occurred in a manner he initially denied (see for example T 723-727), it was generally only after repeated questioning that he was prepared to do so. 4. The circumstances in which the plaintiff prepared a false invoice to defeat a bankruptcy petition is of particular concern (Exhibit 3, Tab 85, T 805-805). 5. Although the plaintiff in his letter to my associate asserted that he was a "good boy" (Exhibit 3, Tab 1), his general conduct in relation to the vulnerable young women whom he pursued is such as to cause concern. In particular, the escalation of his conduct from promoting bikini concerts to arranging trips away where young women were effectively within his power in remote locations is a blow to his credit. The plaintiff's conduct towards Ms Chandler and Witnesses A and B is of particular concern. 6. Some of the plaintiff's evidence was frankly implausible, such as his attempts to explain how it was that he had a function arranged at the Marriott Hotel and the Metricon Stadium, his inconsistent explanations about his emails with Mr Western (Exhibit 3, Tab 7) and his claims that Temple Island was being renovated, made after the date the agreement to purchase had been terminated, were in fact references to "renovating" the agreement (T 570 and 591).
The plaintiff's explanation for making statements that were obviously at the very least incorrect and at the worst outright dishonesty was that his approach to life was one of being "aspirational". He described things as he wanted them to be rather than as they were.
I also note the plaintiff's failure to give proper discovery. His explanation for many of the documents missing was that these had been left in Ms Lee's abandoned red Holden Barina, and because he was unable to conduct a "deep search" (T 478) of his computer email records. It was never clear how many red Barinas there were, and I note at one stage when he was confronted with inconsistent evidence about there being two red Barinas (T 622), he claimed there was a third red Barina (T 636).
The plaintiff's answers to questions on occasion included remarks of a demeaning nature in relation to the young women who gave evidence for the defendants. The plaintiff considered he was irresistible to these women, whom he portrayed as both crazy about him and sexually voracious: "Q. - she was offended? A. But not for the reason of the photo shoot. [Suppressed Name C] had the hots for me apparently, wanted to know how much money I made Q. Do you accept that you asked her to come over for a photo shoot? A. Correct, but the offence was at the thought that the sister might like me more than because [Suppressed Name D] had showed interest in me and it was unrequited love and Q. I see? A. Yeah, and she it was more to do with her sister not upstaging her yet again. If you've seen the two side by side you'll know what I mean. Q. Right, so what you're saying is, the offence that [Suppressed Name D] A. Be a jealousy. Q. felt was why would he be inviting [Suppressed Name 1] over and not me? A. That's it, because she thought of herself as a model also. Q. You knew, didn't you, that [Suppressed Name C] was vulnerable? A. No. Q. Kittie had had a number of text message exchanges with [Suppressed Name C], hadn't she, which disclosed vulnerability? You knew that, didn't you? A. I don't know if I'd call it vulnerable. Q. What would you call it, that may be the wrong word? A. [Suppressed Name D] was pimping her out because her mother [Suppressed Name E] was the most known prostitute in the Gold Coast and that was the problem. Q. Oh my God. A. Another smear, I'm sure, but that's. Q. You just can't help yourself, can you? A. I'm just saying what people tell me, no, I can't. Q. What relevance does [Suppressed Name D]'s mother's occupation have to the question I asked you? A. Because she taught [Suppressed Name D] how to do it to her younger sister. Q. You thought you'd get [Suppressed Name C] over and see if you could become a client, didn't you? A. How about no, no. I don't need to pay for that sort of thing, thanks. Q. But you were interested in her sexually, weren't you? A. No. No. A punk band shoot and that was arranged between them beforehand. Q. What you were really doing was inviting another teenager over for sex, weren't you? A. No. Stop accusing me of things like that. Q. Mr Otto, are you asking me to stop accusing you of what I just put to you in circumstances where you have used, sitting in the witness box, to offer an unprovoked unnecessary slur on both [Suppressed Name D] and her mother? A. You accused me of yeah, you proposed Q. Correct? Correct? A. paying for sex is what you just proposed Q. Correct? A. and I that's what I'm not Q. Mr Otto, you are suggesting that [Suppressed Name E] and [Suppressed Name D] were A. [Suppressed Name E]. Q. pimping [Suppressed Name C] out as a prostitute? A. Because they were." (T 800-801)
This was one of several occasions when I considered it necessary to close the court. Not only was the conduct of these young women being impugned, but the plaintiff's conduct in the witness box was volatile. The transcript demonstrates the degree to which the plaintiff was interrupting Mr Dawson SC, but does not do justice to his volatile demeanour in the witness box.
The same combative approach was taken in correspondence by both the plaintiff and his partner Kittie Lee to those whom they involved in their activities. As is set out in more detail below, I am satisfied that this included sending vituperative correspondence, making threats in the course of telephone calls, stalking Ms Chandler's family and using bullying conduct to persuade others to do their bidding. Much of the offensive correspondence came from the plaintiff's partner, Kittie Lee, rather than from the plaintiff, but the plaintiff was content for her to send offensive correspondence which was upsetting even for a woman of mature years such as Mrs Barbara Collyer, who described being reduced to tears by the vengeful conducts of one such missive: "Q. After you sent this letter, on 29 September, did you have any further communications with anybody about Mr Otto? A. I because there was so much about Temple Island on Facebook I did start looking at, you know, what was being posted there. And when people started to like what was happening, that there was going to be a music festival there then I would go onto private messenger on Facebook and tell them that there was no music festival at Temple Island and, you know, that it wasn't true what was being put on Facebook. Q. And did you at some point receive a communication by text message from somebody about those messages you were sending to people on private messenger? A. Yes, I did. EXHIBIT 2 SHOWN TO WITNESS Q. Is that the message you received? A. Yes. Q. And who do you understand sent you that message? A. That message was sent by David Otto's partner Kittie. I only ever knew her as Kittie, I don't know what your last name was, but she had this was one of the messages she sent me. Q. And how did you feel receiving that text message? A. I think I cried. I was shocked, I was shocked. Q. There is a reference at the end of that, you'll see, to an illness? A. I had just finished lung cancer treatment which had gone through most of June and early July, so I think the day, around the time the contract was signed was around the time I had had my last treatment so I had lost all my hair, it wasn't a very good time in my life. And when, you know, that was said to me in September, whatever date it was, October, it was just horrendous." (T 1016)
While the email comes from Ms Lee, it uses the plural to conclude that "we can only hope that your cancer comes back and actually kills you this time!" (Exhibit 2), suggestive of the plaintiff having a greater involvement with the sending of this email than he cared to admit. Similar statements were made by Ms Lee on the plaintiff's behalf, if not his actual behest, concerning Ms Chandler's mother, who passed away from cancer (T 966). While the plaintiff sought to hide behind Ms Lee's apparently ungovernable temper, the contents of most of the correspondence tendered in these proceedings that he did author was not only frequently abusive but, I am satisfied, knowingly dishonest (as opposed to "aspirational"), which puts him in the poorest light as a witness of truth.
Another explanation for the many obviously false statements in his social media posts about concerts and job offers was that exaggeration went with the territory of being a star in the modern music industry (T 94). The plaintiff displayed a contemptuous attitude to women generally in his evidence, and this is also of relevance to his credit. He took the opportunity to volunteer non-responsive derogatory remarks about women generally, not merely the witnesses in this case, as the following answers to cross-examination reveal: "Q. I want to take you back to the Tangalooma visit and we're at the point where I was suggesting to you that you and Kittie had put something in Shayla's wine so you could take advantage of her sexually? A. That was your suggestion. Q. Yes, and you deny that, don't you? A. Wholeheartedly. Girls aren't that difficult to obtain the affections of, you just buy a $3.50 nail polish and they swarm [sic] want to talk to you. Q. I beg your pardon? A. I said girls aren't all that difficult to obtain the interest and affection of, you just buy a cheap nail polish and they want to talk to you about where you got it from and but life's, you know, it's not as difficult as you were proposing. Q. I'll resist the temptation to explore that. A. Yeah, whenever you want to try, maybe that's what she's getting at. So." (T 647)
The young woman referred to at T 647 was Ms Shayla Chandler, whose evidence went principally to the defence of justification in relation to the three online newspaper publications, although her evidence was also admissible in relation to the broadcast by reason of the rulings I made prior to the trial. By contrast to the plaintiff, I considered her a witness of credit, as was the case with the other young women called as witnesses in the defendants' case, and I will briefly note my reasons for preferring their evidence to that of the plaintiff wherever there was an issue of fact in dispute.

[45]

The credit of the defendants' witnesses

The defendants called a series of young women who had encountered the plaintiff through his internet activities. All but one of these did so at a time when they were teenagers or barely out of their teens. These witnesses were: 1. Monique Thompson (T 829-884), who was 19 years old at the time of the relevant events. 2. Shayla Chandler (T 942-1005), who was 20 years old (T 942) at the time of the relevant events. Her stepfather, Michael Ward, also gave evidence (T 1006-1011). 3. Patricia Higgins (T 1068-1096), who was 29 years old (T 1075). 4. Witness A (T 890-924), who was 18 years old at the time of the relevant events. 5. Witness B (T 1098-1165), who was 19 years old at the time of the relevant events.
In addition, although not called in evidence, there were references to other young women who had come into contact with the plaintiff. These included: 1. Suppressed Name C, who was 16 or 17 at the time the plaintiff asked her to his home for a photo shoot in skimpy or no clothing (T 803). 2. The sister of Suppressed Name C (Suppressed Name D), who was a year or two older. 3. Maha Villanueva, who accompanied Monique Thomson to the Secret Love Country Party Resort, and who was approximately the same age as Monique, who was 19 at the time. 4. Katie Sharp, who saw the StarNow advertisement for the Bikini Concert and who went to the same meeting as Patricia Higgins. She went to the police station with Patricia Higgins (T 1092 - 3). She was 19 at the time (T 1093). 5. The plaintiff was cross-examined about the second person (whom the plaintiff conceded was 20 years old: T 738) who had responded to the plaintiff's post of 5 December 2016, for "staff" to work at his "Country Party Resort" (Exhibit 3, Tab 66). He agreed that she was told it would be a reception/bookings role (T 739) and that she would need to pay money to hold her spot, as a result of which she paid $150 by credit card (Exhibit 3, Tab 71) after being given a $50 "discount". When she arrived, she found a tin shack rather than the resort she expected. After she refused to stay in the tin shack, she was offered alternative accommodation but instead she left the same day (T 751-757), as did another girl (T 718) of a similar age.
While I have been careful to differentiate, in terms of evidentiary value, between evidence given by witnesses who were available for cross-examination and witnesses whose names were mentioned but who were not called, there is sufficient evidence to confirm statements made by the witnesses who were called that the plaintiff was interested in making contact with girls between 18 and 26 (T 1075). I have not, however, relied upon the evidence of those young women shown on the A Current Affair broadcast who have not been called, and about whom the plaintiff has not been cross-examined, as Mr Dawson SC expressly does not rely on this evidence.
Mrs Barbara Collyer (T 1012 - 1027) and her husband, Mr Charles ("Bill") Collyer (T 1028 - 1064), who were two members of the consortium which owned Temple Island, were also called.
While the individual circumstances involving these young women were different, there is a marked similarity in the manner in which the plaintiff tricked them into putting themselves under his control in terms of staying at locations where he was effectively the person in charge. Their encounters with the plaintiff may briefly be summarised as follows: 1. Monique Thomson: Ms Thomson saw the 26 August 2015 advertisement for the Whitsunday Music Festival Island Holiday Stays Facebook Page (Exhibit 3, Tab 39, an advertisement the defendants' submissions correctly call "a work of pure fiction": paragraph 78) as well as follow-up posts (T 830). This was the same as the advertisement Kittie Lee sent to Ms Chandler (T 994). The plaintiff asked her for a $100 deposit for a spot on the road trip to the island and that more than 10 other girls were going (T 832). She and a Ms Villanueva were, however, the only two girls who went. Instead of an island holiday resort the two girls found only rudimentary accommodation (T 845). After a heated discussion about ownership of footage on Ms Thompson's Go Pro camera, Kittie Lee threatened to chop their heads off and send them to their families, a threat they took seriously because she was holding scissors. They asked Mr Collyer, the consortium representative who had brought the group to the island, if he could take them home, but due to the tides he could not do so until the following day (T 852). When the group arrived on the mainland, Kittie Lee grabbed Ms Thompson around the throat, saying she would kill her, and then picked up a rock and threatened to throw it (T 857 - 858). Mr Collyer took the girls to safety, for which they gave him a thank you card. Ms Thompson later received a series of threatening messages from the plaintiff (Exhibit 3, Tab 43A). Ms Thompson's evidence is corroborated by Mr Collyer. 2. Shayla Chandler: Ms Chandler had just resigned from a job at Vodaphone and was looking for reception work (T 942) when she saw the plaintiff's advertisement for Festival Island Holiday Stays after Kittie Lee sent it to her (T 944). Kittie Lee told Ms Chandler the plaintiff was her boss (T 945). The plaintiff said he was the owner of Temple Island (T 945), that there were multiple girls trialling for the job and that trial would take place at the Tangalooma Island Resort. Ms Chandler paid $200 through PayPal to start the trial (Exhibit 3, Tab 51). She found out, in the late afternoon of the day of her arrival, that no other girls were coming for the trial (T 955) and, becoming suspicious, contacted her mother, who had expressed reservations about the plaintiff because he was "creepy". She became nervous after an invitation from Kittie to join them on the bed for a "cuddle" and then overheard Kittie say "it's in her drink, she needs to drink it" (T 958). Fearing the drink she had been offered was spiked, she climbed over the balcony and sought refuge with resort workers. Her account is corroborated by the Tangalooma Island Resort log and by her stepfather. She obtained a refund of her $200 by lodging a complaint with PayPal (Exhibit 3, Tab 63). 3. Patricia Higgins: Ms Higgins was 29 years at the time when she contacted the plaintiff about his Bikini Concert at the Metricon Stadium. She considered his business proposal, promoting a solo concert where he was surrounded by bikini-clad girls, to be "almost laughable" (T 1075). As he was giving off "creepy" vibes (T 1078) she contacted the Metricon Stadium, which meant she discovered there was no such concert (T 1079). She rang the plaintiff, said she was "not coming back" and when he made her feel "coerced" by saying she had signed a contract, told him "I know what you're up to" (T 1080). She contacted StarNow, who took down the advertisement, and also Scam Watch (T 1080). She wrote about her experience on Facebook and was contacted by others who had had similar experiences. The plaintiff threatened her with legal action if she did not take down her posts (T 1081). She and Katie Sharp, another young woman who answered the same advertisement, went to the police (T 1092 - 3) in response to the plaintiff's threats, and "to protect myself" (T 1094). After going to the police, as she was receiving messages from others who had had similar experiences with the plaintiff, she contacted A Current Affair. 4. Witness A: Witness A was brought into the plaintiff's circle in 2013 by Kittie Lee, so this is the earliest of the transactions involving the plaintiff. Having few friends in the city, she spent her weekends with the plaintiff and Kittie Lee in activities which appear to have been drinking alcohol and sitting around in lingerie while the plaintiff photographed or filmed them. She set up a Facebook page for the plaintiff's Girl Club activities and on 25 August 2013 went around Brisbane trying to sell tickets for $20 for a concert that same night in a hotel room (T 903 - 905). She reported that she had been unable to sell any and the plaintiff said that "we are not playing anymore" (T 904). Witness A stopped associating with the plaintiff shortly afterwards. 5. Witness B: Witness B was one of three young women who responded to the plaintiff's post-dated 5 December 2016 for "staff" to work at his "Country Party Resort" (Exhibit 3, Tab 66). She emailed her resume and paid $200 to secure her position in a "job trial" (T 1102) at what she thought was a resort (T 1100) but which turned out to be a tin shack in a remote region where the room had a padlock on the outside. Another young woman, whom I do not propose to name, who answered the advertisement, took a quick look and left in her own car, but Witness B had no transport and remained. That night the plaintiff and Kittie Lee played a sex game which required her to lick and touch their private parts (T 1116). On the day Witness B told the plaintiff she intended to leave, she was required to sign a "house agreement" (Exhibit 3, Tab 68) and at one stage the plaintiff's conduct towards her made her fear he was going to kill her (T 1128). She never recovered her "job trial" $200 (T 1132).
In summary, each of these girls tells a story of some similarity: 1. Each of the girls is drawn into the plaintiff's schemes by a job trial advertisement, either on social media, or on a reputable business site such as StarNow. 2. The enticing concert/holiday-resort-based job trial (although in Witness A's case, several years earlier in time, the offer was one of friendship followed by a request to sell tickets) was at best misleading or at worst fake, in that there were no holiday resorts or actual concerts, and what was really on offer (except to Ms Higgins, probably because she was too old) was a polyamorous sexual experience with the plaintiff and Kittie Lee. 3. Apart from Ms Higgins, these young girls paid money for a job trial experience and (apart from one sum recoverable on PayPal) that money was not returned. 4. Apart from Ms Higgins, the locations at which these "job trials" occurred were remote and the accommodation crude (Ms Chandler's stay at Tangalooma Island Resort was not intended to be her place of work). 5. When each of these the girls resisted the offers of group sex and/or attempted to get away, they were met with threats which caused two of them to fear for their lives and one to be assaulted. These included threats of legal action, in particular in relation to both Ms Higgins and Ms Chandler.
In each case, all of the contemporaneous records support these witnesses' accounts of what occurred. As the defendants' written submissions note, a significant part of the factual evidence was not challenged (written submissions, paragraphs 96). In his closing submissions, Mr Rollinson effectively conceded this.
However, not all of the evidence of these witnesses went unchallenged: 1. Ms Chandler's evidence about Kittie Lee saying something was "in her drink" was challenged in cross-examination. This evidence was, however, corroborated by her stepfather's account of having seen Ms Chandler's contemporaneous text message recording this information, and Ms Lee was not called by the plaintiff. 2. I also note that Ms Higgins' evidence was challenged on the basis that, as a professional copywriter, she had allegedly contributed to the Gold Coast Bulletin and/or the Courier Mail and/or a television station (T 1085-1087). I accept Ms Higgins' denial of this and her explanation that, as a copywriter, she sells her work to an agency which onsells that work to third parties. Even if she had written material for publication for these organisations, the link between any such employment and the veracity of her complaints about the plaintiff's conduct was never identified. 3. The plaintiff volunteered some scurrilous observations about Ms Thomson and Mr Collyer in the course of cross-examination. These allegations were not put to these witnesses and I am satisfied that the plaintiff's claims were, as Mr Dawson SC characterised them, baseless smears.
Perhaps the most telling evidence against the plaintiff consisted of the photographs of the "resorts" the subject of some of these activities. As the photographs of the site so graphically demonstrate, the plaintiff's advertised description of a tin shack on a relatively isolated block in Maryvale, Queensland as the "Secret Love Country Party Resort", with its reference to 3 pools, cabins, a garden and highly satisfied former guests, is completely dishonest. As Mr Collyer confirmed, the plaintiff's description of the similarly modest accommodation on Temple Island as a luxury resort with a pool is equally dishonest. The photographic evidence all supports the evidence of the defendants' witnesses.
Great care must be exercised in making demeanour findings, particularly where a witness is from a different cultural or ethnic background to that with which the trial judge is familiar: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186; Arsic v Goodrich Aerospace Pty Limited [2007] HCATrans 68. It has become apparent, from the many studies into the giving of evidence in criminal and sexual harassment proceedings, that similar care must be exercised in making demeanour findings where a witness is vulnerable in that the protections that would be available in, for example, criminal jurisdictions to ensure the best evidence is given are not part of the court procedure in civil jurisdictions. This should be particularly the case where the witness in question is a minor or teenager, or where there is a significant power imbalance between the parties (as, for example, when the person against whom the evidence is given is in an imbalance of power, such as a parent or a Svengali-style figure), especially where the conduct to be described is distressing or shameful in nature.
Courts should be reluctant to disbelieve a party on their oath and should approach the making of such a finding with care. When making demeanour findings, trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. In particular, courts should not apply value findings such as that one witness is a "good" or "impressive" witness while another is a "bad" witness, for to do so may give rise to concerns that "the judicial virus" of subconscious preference has infected the reasoning process (the Honourable Justice Dowsett, "Prejudice: the Judicial Virus", 7 February 2009).
In the present case, however, the evidence of the plaintiff's dishonesty, not only in his evidence to this court, but in all of the transactions he has entered into, is overwhelming. As is set out in more detail below, there is a lengthy history of conduct warranting the finding that every imputation pleaded has been amply justified.
For all of the above reasons, where the evidence of any of these witnesses is in conflict with that of the plaintiff, I propose to reject the evidence of the plaintiff unless it goes against his interest. In those rare cases where the plaintiff's evidence appears to be corroborated, I shall give greater scrutiny to that corroborating evidence than might otherwise be the case.
The onus of proof in relation to the defence of justification lies upon the defendants. I was not addressed as to whether the level of proof required is that of the balance of probabilities or to the s 140 Evidence Act 1995 (NSW) standard. I am aware of conflicting authority on this issue: Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 520; Fleming v Advertiser News-Weekend Publishing Company Pty Ltd [2016] SASCFC 109. While I have applied the civil onus of proof, I note that I would also be comfortably satisfied in relation to all of my findings of fact.

[47]

Proof of imputation (a): "The plaintiff is one of Australia's most notorious con-men."

The elements necessary to establish the plea of this imputation requires the defendants to establish: 1. that the plaintiff is a con-man; and 2. that he is not merely a con-man, but also that he is one of Australia's most notorious.
It is not necessary for the defendants to establish the reputation of other con-men in Australia in order to demonstrate that the plaintiff is the most notorious among them (as to which, see Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 at [21]-[22] and [27]). Nor is it necessary to demonstrate that the plaintiff is a successful con-man; contrary to the plaintiff's submissions (paragraph 10), the word "notorious" does not connote "successful" but rather that the plaintiff is one of the most notorious, in the sense of "reprehensible" or "a particularly bad example".
The phrase "Australia's most" (or its alternative in this imputation, namely "one of Australia's most") is a common term in modern parlance. This phrase places a qualitative character on the plaintiff's dishonest activities in connoting that they are serious, repetitive and of the kind that right-thinking persons would consider to be such as to make the plaintiff one of Australia's most notorious con-men, as opposed to a con-man of the less ordinary kind.
As is set out in more detail below, the evidence in support of justification of the elements of fact in this imputation falls into the following categories: 1. The plaintiff's activities in selling tickets (or attempting to sell tickets) to members of the public for events that do not exist. There are two elements to this "con", the first being that persons who will buy tickets for an event which is not in fact going to occur, and the second is to "con" young women into working for the plaintiff for little or no money to sell tickets to these events; 2. The plaintiff's "con" in offering holiday packages and jobs at locations which either do not exist at all or are grossly misdescribed. This "con" contains the elements of defrauding those members of the public who contact the plaintiff for a holiday package and/or conning young women into working for him not only for little or no money, but also in circumstances where he can prey on them sexually. 3. Other aspects of the plaintiff's conduct, including his attempts to cover up these activities by dishonest or evasive action by online postings or other forms of self-promotion designed to draw attention to his "con" activities.
In terms of qualitative degree or being one of Australia's most notorious con-men, the following aspects of the evidence are relevant: 1. Evidence that the plaintiff was known to a number of persons as being notorious, such as the observations contained in the Tangalooma Island Resort log set out earlier in this judgment, where the word "notorious" is in fact used. 2. Evidence that the plaintiff had been reported to "Scam Watch" by Ms Higgins (T 1082), messages on the plaintiff's Facebook page to this effect in relation to Mr Western (Exhibit F) and the evidence of Mrs Collyer (T 1016 and 1048); 3. Evidence that the Royal Exchange Hotel understood that the Australian Federal Police had been investigating the plaintiff for putting on fake concerts (Exhibit 3, Tab 23, p 2124); see the correspondence set out earlier in this judgment.
In summary, what evidence there was concerning the plaintiff's reputation (and in this regard it must be noted that there was no evidence called by the plaintiff on this issue), his reputation was as a person who was known for scams or cons.
As to the seriousness of his activities warranting him being called "most notorious", the following should be noted: 1. The degree of danger to young women falling into his schemes, notably the evidence of Ms Chandler that she was scared for her life after hearing the plaintiff and Ms Lee had to put a drug into her drink. 2. The impact of the plaintiff's conduct upon his victims, such as the evidence of Ms Thomson that she was scared to go to work or be at home alone and slept in her parent's bed for six months, although she was 19 years old at the time (T 859). 3. Witness B and Ms Chandler both said they feared that the plaintiff was going to kill them (T 1133-1134). 4. The attempted restrictions on movement placed on these young women by the plaintiff in written agreements, the use of outside locks on part of the premises in the Country Party Resort and the stalking behaviour and threats employed by the plaintiff when women sought to escape his clutches. This was some of the most concerning evidence in the case. 5. The number of transactions involving "fake" or non-existent events in which the plaintiff was involved. The plaintiff was the subject of not one but a series of complaints, two of which are the principal subject of the matters complained of. The evidence reveals a series of fake events over a period of years ranging from the Bikini Concert at Metricon Stadium to the Whitsunday Music Festival Island Holiday Stays to the Royal Exchange Hotel. The degree of planning, the length of time over which this series of scams was conducted and the potential harm in which young women could find themselves as a result, all of which are set out below, constitutes significant evidence of the plaintiff being one of Australia's most notorious con-men.
There is no evidence that the plaintiff had any reputation as a musician or was known for anything other than his scams or cons. In particular: 1. StarNow is a website widely used for modelling jobs. Ms Higgins' evidence (T 1081-1082) was that she contacted StarNow to have the plaintiff's behaviour reported and the advertisement taken down. There were warnings on social media published by Ms Higgins such as her Facebook post of 22 March 2015 (Exhibit 3, Tab 14B) to the effect that the plaintiff was running a "scam". The plaintiff's business is described as "pyramid scheme and a massive scam to rip off the public. If you are involved in this already, cut contact and go to police". This is followed by a number of likes (Exhibit 3, p 73H). It is to be inferred that these views were shared by the Metricon Stadium staff, given the observations made in their exchange of text messages with the plaintiff. 2. Ms Higgins contacted Scam Watch about the plaintiff's activities (T 1082). This evidence was not the subject of challenge. Any person the subject of an adverse reference to Scam Watch would be entitled to complain of being regarded as a con man and, given the purpose of a website called Scam Watch, as being "notorious" as well. 3. Both Ms Higgins and Ms Sharp reported the plaintiff to police some time prior to the A Current Affair broadcast (T 1092 - 5). The plaintiff himself complained of being harassed by police and blamed Ms Higgins for "sabotage". 4. During early to mid-2015, there was a considerable amount of material on social media about the plaintiff. This included Facebook messages sent to Ms Higgins about other activities involving the plaintiff (T 1083) and posts made by Mr Western stating that the plaintiff was a fraud, which he put on the plaintiff's Easy Guitar Facebook page (Exhibit F). 5. The plaintiff was adversely known to Bands In Town in relation to the transaction involving Mr Western.
At the time of the A Current Affair broadcast, the plaintiff clearly had a reputation of being a con man. He appears to have been known to the police, according to his own evidence, and he was certainly considered "notorious" by the staff at Tangalooma. What was it about his con man activities that would warrant the description of his being "one of Australia's most notorious con man"?
As is noted in the discussion of Stocker v Stocker above, concepts of fame and notoriety in an internet age, where everyone's history can be looked up online, have profoundly changed. In the sense of being easily traceable on the internet, everyone has a reputation of the "famous" or "notorious" kind. In the plaintiff's case, anyone searching his activities online would have quickly come to the many posts concerning his activities. The plaintiff has also set up websites promoting his activities. These were not merely scams, but attempts to obtain sexual favours from impressionable young women in circumstances where, if they were reluctant, he would become angry and threatening, as would Ms Lee.
All of the evidence points to the plaintiff not only being a con-man, but a notorious one, in that he is not simply seeking to trick people out of their money for fake concerts, but to coerce young girls into having sex with him, using the internet and social media to do so. The combination of sex, money and threats for non-compliance makes his activities of particular concern.
Whether the plaintiff is one of the most notorious con-men is the kind of value judgment that right-thinking members of the community would make based on the combination of these factors. The term "one of the most" implies that there are a number, but that the plaintiff's activities warrant inclusion. Taking the facts proved in relation to the plaintiff's "con-man" financial activities and manipulative behaviour towards vulnerable young women, the truth of this imputation is established.

[48]

Proof of imputation (c): "The plaintiff asks women to work for him in return for minimal or no pay."

The plaintiff's submission is that when he has approached young women to invite them to join or take part in his activities, the capacity of employee, worker, band member and the like has not always been clearly defined or explained in his promotions. Any element of job or job trial has been "decidedly minor compared with what is in effect the holiday or recreational aspect" of staying in a holiday resort, learning the guitar and aspiring to join his band (written submissions, p 3).
It is submitted that there is no evidence of the performance of any substantial physical or mental work such as cleaning the floor or using the computer. The trips and stays included food and drink at the plaintiff's expense and any monies that any of them were called upon to contribute (for example, "Witness B's $150, or even as she asserts $200, or Monique Thomson's $200, or Maha Villanueva's $20" (plaintiff's written submissions, p 3)) is trivial by comparison. Ms Chandler's $200 payment for the job trial covered travel to and from the Tangalooma Island Resort, accommodation and meals. She in fact received her money back from PayPal (Exhibit 3, Tab 63). Similarly, in relation to the Metricon Stadium Bikini Concert, participants such as Ms Higgins were to receive 35% of the ticket sales. While these women may be disappointed with their experiences, Mr Rollinson submits that they were not exploited in terms of being asked to work long hours in return for minimal or no pay.
This is an overly legalistic approach to the elements of an imputation that the plaintiff asked women to work for him in return for minimal or no pay. The plaintiff never in fact "paid" for the performance of any work in any traditional sense. What the evidence establishes is that the plaintiff was seeking out young and vulnerable women and offering them a form of "incentive" (T 916) of the kind explained by Witness A. While he may have given Witness A $20 on one occasion, she appears to have spent quite a few hours going out into the streets of Brisbane attempting to sell tickets (T 921). In circumstances where expecting Witness A to walk the streets of Brisbane for a day in return for $20, this would fall within the description of "minimal" pay.
Information about the scheme involving Ms Higgins is set out in Exhibit 3, Tab 14A, p 73B. That pay is commission-based and depends on a number of team members. If promoters are not able to sell more than a few tickets to the performance, they will only be paid a small amount. Mr Dawson SC sets out in his submissions (paragraph 202) that if the promoter was only able to sell one ticket despite many hours of work, they would receive only 20% of the ticket price ($17.80) plus a Ben & Jerry's ice cream.
However, in practical terms, the young women who answered the plaintiff's advertisement were not paid at all. Ms Thomson was never paid (T 860) and neither was Ms Chandler (T 624).
Witness B did some work promoting the resort and messaging people to get them interested. This included telephoning her own friends as she set out at T 1120 lines 1-36: "Q. So, I want to come now, if I may, to day 2 of when you were at the country resort as Mr Otto called it. Did you do some work the next day on the computers in the tin shed that you referred to? A. Yes. Q. And what was the nature of that work? A. Just trying to promote basically and‑‑ Q. Promote the resort? A. Yeah, just promote, yeah, the resort and have a look at who's liked the posts and who's put down that they're interested or tagged people and basically like send them a message and try to get them onboard and, so, yeah. Q. As guests of the resort, or staff? A. Yes, some of it was for guests and some of it was for staff. Q. And were you directed to do this by someone? A. Yes, that was, you know, the nature of the admin side I believe. Q. And who told you that? A. David. Q. Did you use Facebook to do that? A. Yes. Q. And in terms of working out who to contact, I think you said you used people who'd liked the Facebook page? A. Like it, people had tagged friends and said it sounded good, and yeah. I even ‑ I messages some of my own friends as well. Q. And had other people sent their resume in the way that you had, in response to the staff wanted post? A. Yes. Q. And so, they were some of the people you were messaging as well? A. Yeah."
She also started digging a hole for a post to be put in (T 1120 lines 42-47): "Q. What other sort of work did you do, if you can remember? A. Yeah, well it was ‑ I wasn't getting anywhere with the other stuff because there wasn't really much to promote, so yeah, I was getting nowhere with that and getting frustrated with feeling like, you know, well this isn't working and I felt like I needed to do something, and yes, seeing it as a job at that point. And so, he was in the process, he had a concrete slab there and was in the process of making that into another wooden cabin and building onto the fence, so yeah, I was like okay so what needs to be done outside, and yeah, he said that, so I literally started digging a hole."
She was not paid any money for this work and she was not refunded the $200 payment (see T 777 and 1132).
Where an advertisement of the "staff wanted" kind is placed, the expectation is that this will be for financial reward, and not as some kind of business partner or soulmate in a hopeful business venture. The plaintiff's advertisements clearly convey that he was seeking women to work for him in return for some form of financial reward. In fact, he neither paid no money at all or minimal pay. On some occasions, the young women were asked to pay sums such as $150 or $200 to participate in a "work trial".
The defendant in these proceedings has established that this imputation is substantially true.

[49]

Proof of imputation (d): "The plaintiff is creepy."

Mr Rollinson helpfully notes, in his written submissions, that this must mean that the plaintiff is unpleasant or obnoxious in his social interactions and that the word is particularly applied to men's interactions with women. He submits the plaintiff's interactions are not of this kind.
"Creepy" does not mean that the conduct in question need be overtly sexual. Ms Chandler's mother considered the plaintiff was creepy (T 951 and 976), and the word "creepy" was used by Ms Higgins in her evidence to describe the vibes given out by the plaintiff (T 1078). The term "creepy" is generally defined as conduct which causes an unpleasant feeling of fear or unease, as opposed to solely inappropriate sexual conduct.
The defendants (at paragraph 170) points to a wide variety of evidence as amounting to conduct which is "creepy". I have considered those particulars, the plaintiff's response and the other evidence, and would summarise evidence establishing the truth of the plaintiff's "creepy" conduct as follows: 1. The 2015 Bikini Concert concept and advertising: On 5 March 2015 the plaintiff posted a promotion for "Bikini Concert 2015" on the Bikini Concert Facebook page (Exhibit 3, Tab 15). "Bikini Concert" was to consist of 20,000 women in bikinis watching the plaintiff play music in a large public stadium. The flyer showed an image of a young woman with her bikini top coming off and there is a competition for the "best undressed'". This kind of mass female nudity, directed to the plaintiff in a public place, falls so far outside societal norms of male/female conduct as to warrant being called "creepy". 2. The "Girl Club" band activities: "Girl Club" was the plaintiff's rock band in 2006 (according to the plaintiff: Exhibit 3, Tab 24), although there is no evidence of its existence prior to 2009. A photograph of the Girl Club band in about 2009 is at Exhibit 3, Tab 25, and a video of the band uploaded to YouTube is on the USB which is Exhibit 4. Witness A's evidence demonstrates that, contrary to the way it was portrayed by the plaintiff, "Girl Club" consisted of the plaintiff, his partner Kittie Lee, and a few girls sitting around in the plaintiff's lounge room, "mucking around on the guitar" (to use the description in the defendants' submissions). Most of the time was spent, according to Witness A, in trying to encourage other girls to join "Girl Club", dressing in lingerie and being photographed by the plaintiff (T 893 line 39 - T894 line 45; T 896 lines 9-27; T 899 lines 16 - T 900 line 8). Most of the time Witness A was the only one there, and the biggest number of visitors (excluding the plaintiff and his partner) was three (T 898 lines 34-37). Witness A never learned the guitar herself, and the whole exercise appears to have been to pander to the plaintiff's wish to photograph young women in lingerie and drink alcohol. The pretence that this was a genuine music band, when the real purpose was otherwise, is conduct capable, in the eyes of the right-thinking person, of the description "creepy". 3. Obtaining personal photographs of young women surreptitiously: During a meeting with Ms Thomson, the plaintiff downloaded photos from Ms Thomson's mobile phone on to his computer. Ms Thomson later realised that the plaintiff downloaded all of her personal photos, not just the ones of the "Road Trip" (T 849 lines 32-49). This is conduct of the kind that right-thinking persons would describe as "creepy". As is noted elsewhere, it would go to the truth of the imputation that the plaintiff is a voyeur, in that he was surreptitiously seeking personal photographs of a young woman without her knowledge. The same is the case in relation to the plaintiff filming Ms Chandler as she got out of the car (T 951) and the video "Road Trip 2.1" the plaintiff posted on his Facebook page (Exhibit 4); Ms Chandler said in her evidence that there was a lot of focus on her breasts in this (T 970), which is a fair description of the way the camera lingers on that part of her anatomy. 4. Photographs of naked women on the walls of rooms which were lockable from the outside: In one of the smaller cabins there was a bunk bed with a double bed on the bottom, a futon and some décor such as "sparkly ball pillows" (T 1107-1108). There were pictures on the walls of naked women posing like what would be found in a nudie magazine (T 1108). The cabin and the gate in the fence which fenced off the smaller cabin and shed both had bolt locks on the outside of the door/gate (T 1108). Independently either of these features of the premises would be of concern but when put together this is conduct capable of being regarded by right-thinking persons as "creepy". 5. The board game the plaintiff and his girlfriend played with witness B: The plaintiff, Ms Lee and Witness B played a "game" which started when the plaintiff or Ms Lee pulled back a black cloth to reveal a homemade wooden board that had been sitting on a mattress leaning against the shed wall. The board had an arrow that spinning to parts of the body as well as to actions such as "touch" or "rub" (T 1115). After a time, a second version of the game, which Witness B had not seen initially and which was sexual in nature, was initiated (T 1116-1117). Witness B's turn at the game required her to lick Ms Lee's genitalia and touch the plaintiff on his penis (T 1117 lines 11-38). Ms Lee pulled her pants down a little bit and Witness B licked her briefly at the top of her genitalia, and the plaintiff pulled his penis out of his pants for Witness B to touch. Witness B did not want to do this; she said she was "grossed out", but she felt she had to go along with it (T 1117). It was her first night there and she did not feel that she had a choice (T 1118) or that she could safely leave (T 1118). She had already started drinking alcohol and continued to do so to try to get through it (T 1117 - 1118). Witness B's distress was evident from the emotions that overcame her when she was recounting this incident in the witness box. She presented as a young and vulnerable woman who was being preyed upon without prior warning by the plaintiff. The combination of Witness B's reluctance, youth and vulnerability with the attempts made by the plaintiff to persuade her to embark upon a sexual encounter is conduct that right-thinking persons would consider "creepy". Continued attentions from a much older man towards a reluctant woman in a vulnerable position (particularly of an employment nature) is conduct which has been the subject of widespread public concern in very recent times. 6. Invitations to obviously reluctant young women to participate in group sex: I accept Witness B's evidence that the plaintiff and Ms Lee expected Witness B to sleep in the same bed with them, (T 1118). On either that and/or subsequent nights Witness B tried to slip her way on to the mattress on the floor. Ms Lee said to her "Oh, why don't you want to sleep with us and cuddle with us?" (T 1118-1119). The phrase "cuddle with us" was also used by Ms Lee to Shayla Chandler. In both cases, these young women had put themselves into the plaintiff's power by going with him to places far from their home, for the purposes of employment, not for group sex. For the same reasons as (e) above, this is evidence that the plaintiff is "creepy". 7. The whole of the plaintiff's conduct towards Ms Chandler: Ms Chandler's mother's impression of the plaintiff's demeanour and presentation was that he was "creepy" and this was born out by his conduct to Ms Chandler throughout her contact with him. She thought she was going to a job where there were other girls and became concerned when the plaintiff's true plans came to light. I am satisfied that the plaintiff said to Ms Chandler "If you commit to us for two years we'll give you a trust fund of $400,000" (T 954), which alarmed Ms Chandler because it was so implausible (T 954 lines 38-42). At this point Ms Chandler asked the plaintiff where the others girls were, and was told no-one else was coming, which alarmed her further (T 955). (Her stepfather, Mr Ward, confirmed this in his evidence (T 1007 lines 26-33).) 8. The attempt to drug Ms Chandler: When the plaintiff and Ms Lee were on the bed together and Ms Lee told Ms Chandler to "come and cuddle" (T 957), she became alarmed. They poured her a glass from which she had a sip before going to the bathroom (T 958). Whilst she was in there, she overheard Ms Lee, who was in the kitchen adjacent to the bathroom, say to the plaintiff: "It's in her drink, she needs to drink it" (T 958). This was what caused Ms Chandler, who understood this to refer to some type of drug and knew she had to get out of there (T 958), to get over the balcony and flee without even her handbag. This is strong evidence of conduct that would be regarded by right-thinking members of the community as "creepy". 9. The plaintiff's conduct when he visited Ms Chandler's family home after she fled: The plaintiff and Ms Lee attended Ms Chandler's house late at night. Mr Ward opened the door and the plaintiff said, "We have a liability/duty of care to inform you that Shayla is still on the island and has run off with boys". Mr Ward replied that he knew where Shayla was and that she was safe, and told the plaintiff to leave. Ms Chandler then came out herself, which exposed the lie that the plaintiff had used to frighten her parents; if Ms Chandler had not been able to return home safely the anxiety the plaintiff's words would have caused them would have been considerable. As it was, her appearance and safety had such an adverse impact on Ms Lee (despite their "duty of care") that she began swearing at Ms Chandler, following which she and the plaintiff left (T 963-965; T 1008-1009). However, they then added to the family's concern by their conduct over the following week, when the plaintiff drove past Ms Chandler's house at night on multiple occasions (T 965-966; T 1009-1010), conduct readily attributable to him because the car he was driving had a defective muffler and made a distinctive sound, according to Mr Ward. This is bizarre conduct and capable of being regarded as evidence of being 'creepy'. 10. The house agreement: The circumstances in which the plaintiff specifically sought out very young women who were clearly vulnerable and who were just starting out in their working lives, and then sought to force constraints upon them of the kind described in the first matter complained of. In this regard, the house agreement signed by Witness B is particularly instructive. The section of the house agreement relating to the exit procedure, which only permitted her to exit the property at 11:00am on a Monday, Tuesday, Thursday or Saturday following a review meeting, a bag check and a threatened fine of $1,000 for any breach, as well as the limitations on mobile phone use, is one of several examples of the plaintiff seeking to impose physical restrictions on movement of the young women who sought to control. 11. The plaintiff's lies about his age: The age gap between the plaintiff, who was in his late 30s and women who were up to 20 years younger than him, in circumstances where he sought to prevail upon these young women to engage in group sex would be conduct of the kind that right-thinking members of the community would consider creepy, especially where (as in the case of Ms Chandler) this would be achieved by drugging her. 12. The whole of the plaintiff's conduct towards Witness B: The conduct of a sexual nature which took place on two occasions between the plaintiff and Witness B occurred in a situation where Witness B was trapped and frightened. This was particularly the case as she had responded to a job advertisement, and not embarked on any kind of sexual adventure, in circumstances where it was clear there would be difficulty in her leaving (T 1103-1118). 13. Putting vulnerable young women in his clutches in fear of their lives: Both Witness B (T 1133-1134) and Ms Chandler said they feared for their lives. Both were deeply traumatised and displayed a range of trauma responses such as sleeping in the same bed as parents and being afraid to go to work. 14. Bizarre threats: As noted above, the plaintiff's conduct in driving past Ms Chandler's house at night on multiple occasions has the appearance of stalking and would be regarded by right-thinking members of the community as being "creepy" (T 965 and 1009). There are a number of occasions where the plaintiff's response to disappointment has been by making threats, leaving threatening voicemails and sending angry and offensive emails (see for example, Exhibit 3, Tab 62). 15. The conduct described in A Current Affair the truth of which has been established for this trial: Finally and most importantly, there is the conduct described in the A Current Affair broadcast in the course of which the word "creepy" is used. Those parts of the broadcast, the contents of which, I am satisfied, has been established by the evidence before me, would of itself be sufficient to establish the truth of this imputation.
Any one or a combination of the above would be sufficient evidence to establish that the defence of justification is made out to this imputation. By establishing all of the above evidence, the defendant responsible for this publication has clearly discharged the onus of proof.

[50]

Proof of imputation (e): "The plaintiff is famous for his sleazy scams."

There are two elements for this imputation. The first, and most difficult, is whether the plaintiff is "famous" for these activities.
At first blush, an imputation that the plaintiff is "famous" for his sleazy scams appears difficult for a defendant to justify unless the plaintiff is famous in the traditional, dictionary-based meaning of the word, namely well-known to the public, which he clearly is not.
However, as previously adverted to, the profound changes to the structure of modern society are now being recognised by courts at the highest level. It was considerations of this kind which led the Supreme Court of the United Kingdom to set aside dictionary definitions in relation to meaning and justification in Stocker v Stocker. The Supreme Court encouraged judges and practitioners to return to the explanation of principles of Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and approve statements made in relation to social media publications in decisions such as Monroe v Hopkins [2017] EWHC 433 (QB) and Monir v Wood [2018] EWHC 3525 (QB). Where readers "skim" their feeds or draw fast inferences and move on, the law can and should approach the meaning of the words complained of from that "impressionistic" perspective.
The ratio in Stocker v Stocker is particularly relevant to the determination of issues in this case, as the issue was not one of determination of defamatory meaning but concerning whether the elements were made out when a defence of justification was pleaded, as is the case here. Proof of an imputation that the plaintiff was "famous" for his activities.
What does being "famous" mean in an online society where everyone's reputation is very often what is produced in response to an online search? As long ago as 1968, artist/celebrity Andy Warhol is said to have warned that "in the future, everyone will be famous for 15 minutes". This farsighted prognostication, two decades prior to the advent of the internet (generally agreed to be in 1989) and the establishment of search engines in the 1990s, has now become a reality. Mr Warhol was not the first to note this phenomenon; in 1967 Malcolm Muggeridge, describing the impact of television, stated that "Today one is famous for being famous" ("Muggeridge through the Microphone", p. 7, London, 1967). Thanks to the internet and social media, fame can just as easily overtake a teenager photographed because of his quirky haircut (Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465); Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828); Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (ACN 065 986 987) (No. 2) [2016] NSWDC 357) as the most distinguished member of the community. Fame is no longer "greatness" or the province only of the rich or powerful.
Applying the principles set out by the Supreme Court in Stocker v Stocker, there would be few clearer examples of the impact of tabloid/social media changes to social structure than the concept of "fame". As Professor David Rolph explains in "Reputation, Celebrity and Defamation Law" (1st ed., Sydney, 2008), concepts of reputation and fame have profoundly changed to reflect the social, political, and cultural changes arising from online communication, where reputation becomes a "media construct" reflecting a stream of online exchanges with others.
The plaintiff's "fame" (or lack thereof) consists largely of his social media persona. Traditional ideas of fame in those circumstances, like the trial judge's dictionary definition of "strangle" in Stocker v Stocker, should be, if not discarded, at least read down in the light of these changes to the notion of fame. Thanks to search engines, fame (in the reputational sense) is available at the click of a button.
The extensive social media tendered in these proceedings show that few were more aware of this phenomenon than the plaintiff himself. He wanted to be famous. He assiduously sought to cultivate an online image of himself as a rich, funny boyfriend with a string of bikini-clad girlfriends. He actively sought that fame by the many colourful photographs posted on websites and social media of girls in bikinis, tropical settings, alluring job offers and promises of idyllic lifestyle. When this online reputation was threatened by complaints about his activities from Ms Higgins, Mrs Collier and Mr Western, he responded with threats to commence litigation if these activities continued and posts not taken down.
The question which next arises is whether the plaintiff is famous for his scams and whether these were "sleazy" scams.
There is no evidence that the plaintiff had any reputation, on the internet or otherwise, or was known for anything other than his proffered holiday/employment activities which were being attacked as scams. This online reputation information was as follows: 1. Mr Higgins' evidence that she contacted StarNow and reported the plaintiff's conduct to StarNow's administration (T 1081-1082). 2. Ms Higgins' evidence that she contacted ScamWatch about the plaintiff (T 1082). The fact that an organisation such as "ScamWatch" had received and accepted a complaint about the plaintiff is particularly persuasive. 3. Ms Higgins also made extensive comments on Facebook (see Exhibit 3, Tab 14). The plaintiff's own evidence suggests that Ms Higgins' Facebook post played a part in the events at Metricon Stadium, no doubt as a result of inquiries made by the Metricon Stadium staff after seeing the advertisement or seeing the concert advertised at the Metricon Stadium by the plaintiff. 4. Ms Higgins said that she received Facebook messages about other activities involving the plaintiff and those persons who contacted her (T 1083). 5. Mr Western considered the plaintiff a fraud and he made a post to this effect on the plaintiff's Easy Guitar Facebook page.
All of the above fall within the temporal period prior to the broadcast. There is further evidence about the plaintiff having such a reputation after the broadcast, independently of the broadcast. This evidence includes: 1. The material set out in the Royal Exchange Hotel emails, in that they understood the plaintiff was being investigated by the Australia Federal Police in relation to concert ticket sales. 2. The staff at Tangalooma Island Resort noted that they considered the plaintiff was "notorious". While there is a specific reference to A Current Affair (namely the matter complained of), the phrase used is that the plaintiff, who appears to be known to them under another name "David Ackerman", was "a notorious con man including appearances on A Current Affair" (Exhibit 3, Tab 58 - final paragraph). In other words, the plaintiff's notoriety was not simply as a result of the matter complained of (which would not be permission, in my view, as evidence of the fact), but that this was only one of the many factors known to Tangalooma Island Resort. They noted him as someone that they should look out for not only in future but by past experiences. 3. Ms Chandler's evidence was that after her experience became known, she had people message her reporting similar experiences. She said at T 968-969: "Q. Did you hear from anybody else about David? A. I had multiple girls message me on Facebook with very similar stories, or that they were going to an island as well. Q. And was that in response to a post that you'd made on Facebook about David? A. Yes. Q. And was that a post that, what, warned people or something? A. Yep."
All of the above evidence indicates that, independently of the A Current Affair broadcast, the plaintiff had a reputation, including an online reputation, which would warrant him being called "famous", in terms of his internet reputation, for scams.
As to whether or not these activities were in fact scams, I note my findings in relation to imputation (a) above.
Were these scams "sleazy"? The sleaze factor in the plaintiff's activities is readily apparent from the nature of the proposals, which involve either sitting on a lounge dressed only in underwear, or being invited (indeed pressured) to join a sexual threesome with the plaintiff and his lesbian girlfriend. The sleazy nature is for those portions of the broadcast concerning which evidence has been led, and by the plaintiff's conduct towards the very young girls involved in his schemes. That was the case in relation to Shayla Chandler.
In summary, the selling of tickets to events which did not in fact exist, in offering holiday packages at luxurious resorts where the resorts were either did not exist or were shacks all constituted scams. These were the scams that the plaintiff was known on the internet for and they were sleazy in content.
I am satisfied that the defence of justification is made out as to the truth of this imputation.

[51]

Proof of imputation (f): "The plaintiff is famous for his shonky businesses."

This imputation is similar in content to the previous imputation, save for the use of the word "shonky".
A business which is "shonky" is one of dubious integrity or honesty, where business methods are unreliable or underhand. There is an extensive discussion of the meaning of the word "shonky" in Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 at [5]-[7]. The business in question may be a legitimate one, but one which is conducted in a dishonest fashion, as opposed to a scam, which is dishonest from the beginning. There must be more than one "shonky" business because of the use of the plural.
The plaintiff's activities relating to the selling of tickets to events that do not exist is a good example of a business which is "shonky". First of all, members of the public who buy a ticket are buying a ticket to an event which does not exist. Second, the young women who endeavoured to sell the tickets were doing so in circumstances where they are being paid little or no money. Witness A is one of these young women.
The plaintiff's offer of luxury holidays at his country resort and on a luxury island are self-evidently shonky, as the photographs of these locales so graphically demonstrates. In addition, the same evidence which establish the plaintiff's businesses to be scams would readily apply to proof of the truth of this imputation.
An additional form of evidence relevant to the proof of an imputation that the plaintiff is conducting a shonky business is the plaintiff's reaction to being exposed on the internet by persons unhappy with their treatment by him. I particularly note the following: 1. The plaintiff threatened Ms Higgins with legal action including defamation unless she took down the material she had posted on Facebook (T 1082-1083). The plaintiff went as far as having Ms Lee send Ms Higgins what appeared to be court forms and asserting that she had been served with court proceedings (T 1085). 2. Although the plaintiff did not send the text messages to Mrs Collyer that was sent by Ms Lee, he knew that he was contacting her, even if he was not aware of the contents (see Exhibit 2). 3. The plaintiff threatened Ms Wilson with defamation proceedings and said he would report her to the police if she did not take down the comments she had posted online (Exhibit 3, Tab 72).
As noted above, a request to take these online comments offline is evidence that the plaintiff was aware that his reputation (i.e. his fame) was damaged by them.
Taking all of the above into account, I am satisfied that the defence of justification has been made out to this imputation.

[52]

Proof of imputation (g): "The plaintiff preys on young models that are just starting out."

Mr Rollinson submits that none of the witnesses (or the other young women to whom they referred) were either models or aspiring models. Mr Rollinson submits that the evidence at its highest was that Ms Higgins was doing some modelling and promotion work in 2015. The plaintiff did not present himself as running a model agency and no evidence was called from any person as to the contrary.
However, the plaintiff admitted using websites such as StarNow, a well-known modelling website, to advertise for young women to be a "promotional model"; these words actually appear in the material he provided to StarNow, as the StarNow material shows (Exhibit 7).
The way the placement business known as StarNow works is demonstrated by the contents of Exhibit 7. StarNow specialises in jobs in the acting, modelling and "talent" businesses, as its homepage, which contains headings for "Auditions and Jobs", "Talent Directory" and "My Profile", demonstrates. Each application by a person seeking such employment is placed on the "My Profile" website and when a person's profile is clicked on, this is noted as a "view".
Underneath the masthead of the website homepage is the warning: "Stay safe online by following our trust and safety tips."
Ms Higgins had a total of 579 people viewing her profile as at the date of Sunday 8 March 2015, when the plaintiff viewed her profile and expressed interest. StarNow sent her a standardised message saying: "Great news. Your profile had just been viewed by the owner of the following casting: >> Bikini Concert 2015 Promotional Model What does this mean? You're being considered for the role, and if you're successful they'll be in touch. To increase your chances of being cast, make your profile look amazing." (Exhibit 7)
The following may be gleaned from this advertising website and from the plaintiff's use of the word "promotional model" and from Ms Higgins description of her meeting with the plaintiff and another young woman who had also applied: 1. The plaintiff was in fact looking for models. 2. Ms Higgins, who had a profile on the StarNow modelling website, was accordingly approached by the plaintiff for his Bikini Concert 2015 Promotional Model role. 3. Another young woman whom Ms Higgins met when she went to the meeting with the plaintiff, and who had also applied for this job, had a profile on StarNow and was contacted by the plaintiff in the same way. 4. In addition, the plaintiff acknowledged that work which involved standing around in a bikini was of a promotional nature (T 216).
Were these young models "just starting out"? Ms Higgins was 29 years of age. However, Ms Higgins said in her evidence that the other young woman she met at the job interview was around 20 years old. That young woman also brought a friend (T 30). I am satisfied that the plaintiff was in fact looking for young girls (as he admitted at T 177 - 8, T 231 and T 318) and I accept Ms Higgins' evidence that her age (29 years) was looked upon askance by the plaintiff (T 1075).
Does the plaintiff's conduct amount to "preying" on these young women? Ms Chandler was never paid for the time she devoted towards the job trial and training, and neither apparently was Ms Grace, as she accompanied Ms Chandler to the police to report the plaintiff.
The word "prey" is conduct which involves the luring of impressionable young women into a situation of danger. I apprehend from the "trust and safety tips" referred to on the StarNow homepage that this is a significant issue of concern to the website. I also note, in the standard inclusion in the "thanks for applying", StarNow gives the following additional warning: "Before attending an audition, please make sure you read our online safety & audition tips." (Exhibit 7)
These kinds of warnings are aimed at preventing just the sort of conduct in which the plaintiff participated.
Finally, I note StarNow's response to the complaint made by Ms Higgins was to withdraw the plaintiff's advertisement. He did not place any further advertisements on this website. The swift response of StarNow is indicative of that organisation's attitude towards the reports of the plaintiff's conduct.
I am satisfied that the defence of justification has been made out in relation to this imputation.

[54]

Proof of imputation (i): "The plaintiff is a fool"

Mr Rollinson submits that this cannot be true if he is in fact a liar and confidence trickster, although somewhat inconsistently submitting he is neither the former nor the latter (written submissions, p. 5).
I do not accept this submission. Much of the plaintiff's evidence made him look foolish. One such example was his claim to be a cross between David Grohl, Hugh Hefner and John Howard (Exhibit 3, Tab 81; T 695-696).
However, the best example is the whole of the plaintiff's book, as Mr Dawson SC points out in his written submissions at paragraph 211. Examples of statements made by the plaintiff in his book which are relied upon to demonstrate that he is a fool, as opposed to being a dishonest person, are as follows: 1. The plaintiff's claim that his "Girl Club" activities could help solve serious social issues such as illicit drug use, suicide, domestic violence and unsupported teen pregnancy (Exhibit 9, p. 105). He asserts that his activities would have a widespread positive societal impact and describes his guitar lessons as "therapy" to cure these problems (Exhibit 9, p. 108). His description of the social benefits of concerts where he is the only performer to a girl-only bikini-clad audience (Exhibit 9, p. 105) is of particular note: "Girls love admiring each others' bodies and fashion choices especially if we could do it in a safe environment. Would there be enough people? Well Myspace was littered with tens of millions of girls parading in their underwear across Australia, USA, UK/Europe and Japan so this meant surely they both existed and were willing and already wanted the attention. I'd also figured out that the high of a few drinks dancing around in lingerie and all this socialising was an alternative night option to drinking in the street, illicit drug use overdose and drug related suicide so we had inadvertently fixed a much larger problem. Well 4 problems actually because the 4 biggest life ruiners for girls in this demographic were illicit drug use/overdose, suicide, domestic violence and unsupported teen pregnancy. This would not only keep families together but would reduce premature deaths in a high risk segment of the population." 1. The plaintiff's explanation of his rationale for writing the book, set out at end (page 411) is foolish in the sense that it is incomprehensible: "My love of people is what makes me wanna push on through with this and make it all happen anyway no matter what anyone ever did to stop it on the way to show you that nothing can stop you on the way to your dream and that if it is your true dream from deep in your soul, it will be good for people so you should go for it. If anyone gets in your way, burn them to the ground as soon as possible. Or someone else may start living your dream while you face false accusations. There are already many copycats trying to do what I do and not getting into any trouble with police or channel 9, some of them are even helping channel 9. But that's intention 1 of 3. Payout by hell or high water, 9 pays or they take everything and I teach perform and sell to save up the difference from any damages payout to cover the gap up to $3 million in the bank to get the.. let's get to number 2."
I am satisfied that the defence of justification has been made out in relation to this imputation.

[55]

Proof of imputation (k): "The plaintiff promotes and sells tickets to events that don't even exist."

Mr Rollinson's submission is that any ticket is by definition to attend an event that is yet to take place "and may possibly not take place" (written submissions, p. 5). This imputation, Mr Rollinson acknowledges, means that tickets are sold to events that are not bona fide taking place and that the plaintiff knows that this is the case, but he submits that this is not what occurred.
As to the Metricon Stadium and Marriott Hotel 2015 concerts, Mr Rollinson's explanation is that the plaintiff expected that the concert would take place if there was a determined effort by him and his team to promote it. While his expectations may appear in hindsight to be unrealistic, they were "genuine" (written submissions, p. 5). Mr Rollinson submits that I should reject Ms Higgins' evidence that she was told to start selling tickets immediately.
The evidence of Ms Higgins and other witnesses such as Witness A could not be clearly. The plaintiff gave both Ms Higgins and another girl, Ms Sharpe, a package of documents which included flyers and tickets (T 1075-1076) but also a sales script (T 1078) and told her that she was welcome to try to sell the tickets if she wished (T 1077). It was only because Ms Higgins was suspicious of the plaintiff's unconvincing description of the event that she contacted the Metricon Stadium and found out the event was in fact not going to take place.
Mr Rollinson submits that it was reasonable for the plaintiff not to regard the text message from Metricon of 12 March 2015 as a final rejection by Metricon Stadium of any such concert, especially since the plaintiff had not managed to speak to Mr Smith. The outraged tones of the messages left by Mr Smith for the plaintiff could not be clearer. The fact that no tickets were sold and innocent members of the public defrauded has much to do with the sound instincts of Ms Higgins and the other young model she met at the interview with the plaintiff (Ms Sharpe).
As to the Auchenflower Scouts Hall concert in 2015, Mr Western did indeed buy a ticket and was never reimbursed. There was no mistake as claimed by Mr Rollinson in relation to the event; there never was an event in the first place.
The concert at the Royal Exchange Hotel at Toowong was listed with Oztix on the basis of a claimed conversation between the plaintiff and a hotel staff member for a concert on 15 February 2018. Mr Rollinson claims that the plaintiff was not privy to any requirement whereby only management could make such arrangement, as opposed to the hotel staff member who, he claims, did so.
Once again, the text of the emails from the Royal Exchange Hotel staff members makes it clear that they regard the event as a "fake event" and the staff were concerned that such an event had been set up on Oztix without the venue's approval (see Exhibit 3, Tab 23).
Even after the event was removed from Oztix (T 286), the plaintiff continued to advertise the event on his own website. The plaintiff acknowledged that any member of the public who saw the event at the hotel advertised on his website would have been misled: "Q. So any member of the public who saw it there would be misled, wouldn't they, about whether or not you were playing at an event at the Royal Exchange Hotel on 15 February? Do you agree? A. But I'd know if they bought a ticket, yeah. Q. Do you agree? A. Yes."
A whole series of fake concerts for Girl Club were advertised each month for the following cities (Exhibit 3 tab 30): 1. Brisbane; 2. Toowoomba; 3. The Gold Coast; 4. Mooloolaba; 5. Noosa; 6. Hervey Bay; 7. Sydney; 8. Melbourne; 9. Adelaide; 10. Townsville; 11. The Whitsunday Islands; and 12. Mackay.
The plaintiff acknowledged that there were not month events in these places (T 349) and indeed there had never been any Girl Club event in most of them (see T 350). Even where these events were held they were essentially what he acknowledged were "lounge room gigs". Nevertheless, a Girl Club girl "package", which included entry to these events, was on sale for $34.95 (see Exhibit 3, Tab 30).
All of these events were fake events for which tickets were available to be sold. The fact that no tickets were sold to anyone except Mr Western, to the knowledge to the defendants, says much for the ineptness of the schemes, but does not mean that these schemes cannot be said to have been embarked upon by the plaintiff.
I am satisfied that the defence of justification has been made out to this imputation.

[56]

Proof of imputation (l): "The plaintiff has lied about his age."

Mr Rollinson submits that the plaintiff did not so much lie about his age as merely diverted conversation to the topic, out of embarrassment that being older than those with whom he was having dealings. He submits that this is not lying, in that a lie would require his assigning an age or range of ages to himself that are untrue.
The plaintiff was born on in February 1979 and is now 40 years old. When he made contact with Witness A in 2013, he was 34 years old. At the time, Witness A was only 20 years old herself. In the matter complained of, Witness A is heard as saying that the plaintiff "portrays himself as a 20 year old man on the internet when in fact he is not that age".
That was not her evidence in the witness box. Witness A said that she asked the plaintiff how old he was and he told her he was 28 or 29 years old: "Q. Did you at some stage ask David how old he was? A. Yeah. Q. What did he say? A. I think he said he was either 28 or 29." (T 894)
This was not challenged in cross-examination. Nor did the plaintiff deny either allegation (T 366). Mr Rollinson simply asks me not to accept what he calls Witness A's "uncertain recollection".
However, whether the plaintiff portrayed himself as being the same age as Witness A or as being 28 or 29, he nevertheless lied about his age to a young woman of 20 years of age. The expectation Witness A felt in relation to his age arose from the use of a photograph taken when the plaintiff was in fact much younger as his internet photograph. It was because of the discrepancy between that photograph and his actual physical appearance that she asked the question.
I am satisfied that the plaintiff lied about his age to Witness A. I am also satisfied that the plaintiff deliberately portrayed himself by using photographs which were at least a decade old in order to induce the very young women he was seeking to contact him in the belief that he was of a similar age.
Witness B gave similar evidence. In December 2016 when the plaintiff was in contact with Witness B he was 37 years old. Witness B noted the discrepancy between his online photographs and his actual appearance and asked him his age. While she was unable to recall the precise answer, she recall later reading his real age in media articles and realising that there was a large difference between the two (T 1140 and T 1161). It was not put to Witness B that her evidence in this regard was mistaken and I do not regard this evidence as "insufficient" in the manner described by Mr Rollinson in his submissions (written submissions, p. 6).
All of the above evidence, and in particular the plaintiff's continued use of photographs demonstrating him to be much younger than he was, are evidence that he lied about his age to the young women that he wished to attract. His claim that he sought to deflect the question out of insecurity (T 366) is fanciful. The plaintiff's desire to be attracted to and admired by the very young women he sought meant that he was prepared to lie about his age to do so.

[57]

Proof of imputation (m): "The plaintiff is a pervert who films young women in underwear."

This imputation arises from the portion of the matter complained of where the young woman who was identified in these proceedings as Witness A first identifies the plaintiff as "a 20 year old man on the internet when in fact he is not that age" and said she was expected to "sit on a lounge and you talk about stuff and you sit there in underwear and he films you". This was described as living in a cult in that, in the words of Witness A, "the eating, the not having a boyfriend, oh we could not leave the house without someone else."
Witness A's evidence about this is set out on T 899 as follows: "Q. You mentioned lingerie, was that something that you wore when you were there on the weekends? A. Yes. Q. Did Kittie do the same? A. Yes. Q. The other girls who attended from time to time when you were there, did they do the same as well? A. Once. Once. I think a couple of the times I only met a few of the girls and a couple of the times it was their first time, so I don't think they were really encouraged to just strip down to their lingerie after meeting them. Q. Did David sometimes comment on what you were wearing or suggest something else to wear? A. Yeah. Yeah. Q. Can you give us an example of that? A. That looks nice, maybe put a belt with it. Q. Did he give you a belt to put on? A. Yeah, actually I think he did at one stage when I was wearing fishnets and some lingerie."
Witness A said that the plaintiff told her he wanted her to recruit other girls who were willing to wear lingerie in this fashion: "Q. Can I ask you what sort of girl he told you he'd like to recruit? A. Just like outgoing, flamboyant, young, pretty, fun loving, a girl that seems I guess care free and willing to hop in lingerie and play in a band I guess. Q. Anything about their sexual orientation? A. Yeah, yeah, it would be good if they would be a bisexual, so they could preferably date members within the band. Q. Anything about their relationship status? A. Single." (T 896)
She recalled an occasion where other girls who attended also wore lingerie: "Q. The other girls who attended from time to time when you were there, did they do the same as well? A. Once. Once. I think a couple of the times I only met a few of the girls and a couple of the times it was their first time, so I don't think they were really encouraged to just strip down to their lingerie after meeting them." (T 899)
This is consistent with website promotions on Girl Club of "Lingerie Party Rock Concert" (Exhibit 3, Tab 29) and "roof-raising Girl Club Rock Lingerie party event" (Exhibit 3, Tab 30).
Witness A said that some of the young girls involved were very young. He encouraged girls as young as 16 to attend (Exhibit 3, Tab 30) and Witness A said one girl told her she was 17 (T 912). Another young woman was either 16 or 17 when she attended (T 912) and was in fact a few years below Witness A at school (T 916). None of this evidence was challenged in cross-examination.
There was evidence that a witness described as Suppressed Name D who was 16 or 17 at the time (T 797) was asked by the plaintiff to come to his apartment on her own for a photo shoot.
There is evidence of the plaintiff photographing and filming young women in lingerie style clothing on the website of Girl Club (Exhibit 3, Tab 29), in the YouTube video (Exhibit 4) and the plaintiff's preoccupation with young women in bikinis, especially where the bikini top is about to fall off, is apparent from some of the ticketing for his events. While a brief bikini does not amount to lingerie, it is much the same thing.
Is this conduct sufficient to amount to being a "pervert"? The perverted nature of the conduct in question comes from the age gap between a much older man and very young girls who are minors, who are in the plaintiff's home in their underwear being filmed or photographed as some form of sexual gratification to the plaintiff. I note that the country resort premises had walls decorated with photographs of this nature and that the nature of these photographs was described by Witness B as being semi-pornographic. I accept and prefer the evidence of Witness A.
I am satisfied, on the basis of this evidence, that the defence of justification is made out to this imputation.

[58]

Proof of imputation (n): "The plaintiff rips off photos of products from other business websites around the globe."

Mr Rollinson's submission is that the plaintiff has downloaded from the internet, and included in his own material, "attractive images of anonymous place, people and things" which have been "not shown" to be products from other businesses. He has not claimed any affiliation with any other business and there is thus no "rip off".
The term "rip off" is one of very broad connotation. The allegation is that the plaintiff has taken photographs of products from other businesses, whether they are recognisable or not, and that these businesses are to be found around the globe. The sting is the taking of the photographs, not the association of those photographs with other businesses.
The plaintiff acknowledged that he had sourced nearly all his images on his website from Google Images: "Q. Would you go to page 204 please? Are you there? A. Yep. Q. This is a picture of a bonfire with a woman standing in front of it, correct? A. Yes. Q. Then a picture of a woman on swinging on some sort of rope or something like that, yes? A. Yes. Q. Then there's a picture of some women coming out of the water? A. Yes. Q. All this you've posted this under the statement, "Want pictures", correct? A. Yes. Q. What you're saying is you want to see what you're getting for your $800? A. That's not what I meant, I was painting the picture of what it would look like." (T 464)
He made similar admissions at T 471 and T 675-678. In addition, it is clear that at least some of those images are subject to copyright (see for example, the images set out at Tabs 88, 89, 90, 91 and 92 of Exhibit 3). The plaintiff admitted he had taken images from his local real estate website (T 466). Two of these had been marked as Exhibit 5 and were the subject of evidence to this effect by Mrs Collyer (T 1029-1030). She said that the plaintiff was never authorised to use those photographs (T 1049).
Perhaps the most flagrant example of this kind of "rip off" was the taking of photographs from the large internet real estate information site "realestate.com.au" of interiors to promote his Girl Club website (Exhibit 3, Tab 92). The luxurious premises shown in those photographs could not be more at variance from the tin shack which in fact existed on the site.
I am satisfied that the plaintiff has "ripped off" (in the commonly used sense of this word) photographs of products from other business websites, such as real estate agents and other businesses, that these are businesses "around the globe" in that they come from different locations in Australia and overseas, and that the defence of justification has been made out to this imputation.

[59]

Proof of imputation (o): "The plaintiff stole photos from his local real estate website."

Mr Rollinson's submission is that the plaintiff reproduced these photographs without permission, which might infringe copyright, but that his use of these photographs is not "stealing" in the sense of deliberate wrongdoing.
As noted earlier, in Stocker v Stocker at [61] - [62], where the word in question was "strangle", Lord Kerr emphasized that allegations of conduct of this nature do not need to be proved "to the letter" (at [62]). Similarly, in the United States, Williams DJ held (Nanji v National Geographic Society 403 F Supp 2d 425 (D. Md., 2005)) that the use of the term "rape" rather than "sexual assault" (the crime for which the plaintiffs had been convicted) was of no legal consequence and that the courts must make some allowance in these technical terms to describe criminal offences, adding: "In this vein it is worth noting that a long line of cases holds that "technical errors in legal nomenclature in reports on matters involving violation of the law are of no legal consequence." See Seymour v. A.S. Abell Co., 557 F. Supp. 951, 956 (D.Md.1983); see e.g., Simonson v. United Press, Intern., Inc., 654 F.2d 478, 482 (7th Cir.1981) (defendant substituted the word "rape for the technically correct term sexual assault"); Orr v. Argus Press Co., 586 F.2d 1108, 1112 (6th Cir.198), cert denied, 440 U.S. 960, 99 S. Ct. 1502, 59 L. Ed. 2d 773 (1979) ("swindle" substituted for "defraud"); Lambert v. Providence Journal Co., 508 F.2d 656, 659 (1st Cir.1975); cert denied, 423 U.S. 828, 96 S. Ct. 45, 46 L. Ed. 2d 45 (1975); Dostert v. Washington Post, 531 F. Supp. 165 (N.D.W.Va.1982) ("guilty" substituted for "nolo contendere"); Piracci v. Hearst Corp., 263 F. Supp. 511, 515 (D.Md.1966), aff'd, 371 F.2d 1016 (4th Cir.1967) ("possession of marijuana" substituted for "delinquency due to the act of possessing marijuana"); Read v. Phoenix Newspapers, Inc., 169 Ariz. 353, 819 *433 P.2d 939 (1991) ("firing a gun" substituted for "exhibiting a gun.")."
The same principles have been applied where the conduct is not of a strictly criminal nature. In Russin v Wesson, 183 Vt 301, 949 A. 2d 1019 (2008), where the defendant called the plaintiff a thief and said she had "ripped off" his property, the Court held that this could be justified where the plaintiff had in fact "converted" more than $45,000 of his property. Reiber CJ went on to explain the frequency with which courts took into account statements that were legally mistaken but substantially factually accurate: "¶ 9. A common factual predicate in defamation cases is a legally mistaken but substantially accurate statement. "For example, where the defendant newspaper reported that the plaintiff was convicted of stalking, rather than [the actual conviction for] harassment, the report was held to be substantially true." Id. at 36-38 (citing Barnett v. Denver Pub. Co., 36 P.3d 145, 148-49 (Colo.Ct.App.2001)). Similarly, a leading treatise has this to say: "Statements about crimes are often technically incorrect but substantially true. To laypersons, 'theft' may mean any wrongful taking, including such distinct crimes as embezzlement." 2 D. Dobbs, The Law of Torts s 410, at 1148 (2001). The common thread in these examples is that the mistaken statement has the same effect as a perfectly accurate statement of the true facts. ¶ 10. Although among legal practitioners the terms "steal," "thief," and "theft" have unambiguously criminal connotations, they are more broadly defined in lay usage. Compare Black's Law Dictionary 1453, 1516, 1517 (8th ed.2004), with Webster's New University Dictionary 1134, 1202 (2d ed.1984) (defining "steal" as "to take (the property of another) without right or permission" and "thief" as "[o]ne who steals"). Webster's also defines "rip-off" as a "theft." Id. at 1013. These lay definitions are quite similar to the definition of tortious conversion employed by the trial court: "that [a party] has appropriated ․ property to that party's own use and beneficial enjoyment, has exercised dominion over it in exclusion and defiance of the owner's right, or has withheld possession from the owner under a claim of title inconsistent with the owner's title." ¶ 11. Under similar circumstances, other courts have concluded that the "sting" of an imputation of a crime was no worse than the sting of the civil truth. See, e.g., Sivulich v. Howard Publ'ns, Inc., 126 Ill.App.3d 129, 81 Ill.Dec. 416, 466 N.E.2d 1218, 1220 (1984) (statement in newspaper that "[c]harges of aggravated battery have been filed" was substantially true although in fact only a civil suit had been instituted); see also Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1073-74 (5th Cir.1987) (collecting cases). Similarly, some courts have simply applied the generic substantial-truth rule to statements imputing one crime, when the truth was that a different but similar crime was committed or charged. See, e.g., Barnett, 36 P.3d at 148 ("Although there is a distinction between harassment, which is a misdemeanor, and stalking, which is now a felony, both terms describe similar repeated, unsolicited behavior.")."
While I note that the requirement for the precision of an indictment in particulars has led to a harsher view being taken to particulars of justification in recent Australian decisions (see for example Wing v Australian Broadcasting Corporation [2018] FCA 1340), there is much to commend the taking of a more flexible direction here. The plaintiff does not dispute the factual basis upon which the allegation is made and in those circumstances, conformably with the approach taken by the Supreme Court in Stocker v Stocker, I am satisfied that the defendants have established the truth of this imputation.
I add, however, that this is another example, from the evidentiary issues in this case, of the dangers of taking too didactic an approach to the requirement for precision concerning the proof of justification which seems to be increasingly adopted in decisions such as Wing v Australian Broadcasting Corporation, as it may lead to results which are not in accord with justice on the facts of the case.

[60]

Proof of imputation (p): "The plaintiff is mysteriously deluded."

Mr Rollinson submits that the plaintiff "believes in the power of positive thinking and has had considerable success"; accordingly, "he is not deluded" (written submissions concerning imputation (p)).
The inability of the plaintiff to accept his failure to achieve any success in his music career is only one of the delusions sheeted home to him by the evidence in the course of these proceedings. Other evidence of his delusions includes: 1. His claim in his book that "Girl Club" helped young girls solve serious problems such as drug use, suicide, domestic violence and unwanted teen pregnancy (Exhibit 9 p. 105; T 342). 2. His belief that up to 20,000 women would not only come to hear him play at the Metricon Stadium wearing their bikinis but might even take them off (T 33-34; Exhibit 3, Tab 15). 3. His statements concerning his financial assets to Mr Vanhoff in 2013, when he said he had between $2.2 and $3 million (Exhibit 3, Tab 44) and the circumstances in which he entered into the purchase of Temple Island for $950,000 where he never even had enough for the $5,000 deposit (T 424-425). 4. His plans to hold "mega-guitar classes" (T 418-424) for up to 6,000 people at the same time. 5. His representation of a tin shack which was not suitable for habitation as a "Country Party Resort" and his representation of the relatively primitive accommodation on Temple Island as being a luxury holiday getaway complete with swimming pool, performance stage and jet skis (none of which existed). 6. The plaintiff's continued self-praise as Australia's greatest rock star and a cross between Hugh Hefner, former Prime Minister John Howard and Dave Grohl (the best evidence of this comes from the A Current Affair broadcast, but he makes similar statements in Exhibit 9 as well as in cross-examination at T 695 - 696).
I was not addressed by counsel as to what to make of the word "mysterious", which is the word used in the matter complained of to describe the nature of the plaintiff's delusion. Viewed in the context of the broadcast, the word conveys that there is no ready explanation for these delusions.
Looking at the list of behaviours of the plaintiff which I am satisfied establish that he is deluded, no ready explanation comes to hand to explain the plaintiff holding these beliefs or acting in this fashion. While some of his conduct (such as advertising non-existent concerts) is attributable to the desire to obtain money and other conduct (such as wanting to photograph teenage girls in lingerie) relates to his sexual propensities, the reasons for the kinds of behaviour listed above are simply inexplicable. In those circumstances, the truth of this imputation has been established.

[61]

Proof of imputation (r): "The plaintiff is a voyeur."

These findings are noted in the event that I have erred in holding that this imputation is not conveyed.
Mr Rollinson acknowledges that the word "voyeur" is not, in current usage, confined to cases where the subject is completely unaware of being spied upon (see his written submissions concerning paragraph (l)). He makes the same submission in relation to this imputation that he does in relation to imputation (m), namely that the plaintiff openly advertised "legitimate activities for the women to take part in or not, as they chose".
The evidence of Witness A, who was 18 at the time, is that she wore lingerie on request during her visits at the plaintiff's home (T 901). The plaintiff was actively seeking girls as young as 16 to come to his home, and for girls of this kind to be "willing to hop in lingerie" (T 896). At least one girl known to Witness A to be 16 or 17 attended (T 912) and another girl who came while Witness A was there told Witness A that she was 17. Witness A was not challenged on any of this evidence.
Contrary to Mr Rollinson's submissions, the photographing of teenage girls in lingerie was not a "legitimate" activity in any sense, such as putting together a modelling portfolio or even having attractive photographs taken for the young women's benefit, but for the plaintiff's own personal satisfaction.
However, if the term "voyeur" does require that the victim is unaware, there is evidence that the plaintiff surreptitiously filmed or took photographs without the knowledge of these young women: 1. Using a pretext, the plaintiff downloaded photos from Ms Thomson's mobile phone on to his computer. Ms Thomson later realised that the plaintiff downloaded all of her personal photos, not just the ones of the "Road Trip" (T 849). He was surreptitiously seeking personal photographs of a young woman without her knowledge. 2. The plaintiff filming Ms Chandler as she got out of the car (T 951) and the video "Road Trip 2.1" the plaintiff posted on his Facebook page (Exhibit 4); Ms Chandler said in her evidence that there was a lot of focus on her breasts in this (T 970), which is a fair description of the way the camera lingers on that part of her anatomy. She was unaware of this and that would make the plaintiff a voyeur in the traditional sense of the word.
I am satisfied that the defence of justification has been made out to this imputation.

[62]

Proof of imputation (s): "The plaintiff is a compulsive liar."

I first note my finding that the plaintiff has lied about his age (imputation (l)).
I next note that I am satisfied that the plaintiff has lied on many occasions in these proceedings.
Mr Rollinson submitted that the plaintiff had not been shown to have lied about any matter, let alone to lie compulsively. In addition to the lies about the plaintiff's age, I invited Mr Rollinson to address me on a number of topics raised by the broadcaster's written submissions on this issue. These include: 1. The invoice the plaintiff presented to the Federal Circuit Court as "an attempt to defeat the bankruptcy" (T 806). He agreed that he intended to use this document to persuade a judge determining the issue that the broadcaster in these proceedings (Channel Nine), which had instituted the bankruptcy proceedings, in fact owed the plaintiff money (T 806-807). He was asked at T 806: "Q. Did you present this document‑‑ A. This is entertainment, not news. Q. Did you present this document to the Court? A. I think so, yes, because I should be paid to entertain. It's not news. Q. And you are willing to mislead Courts, aren't you, to get the result you want in litigation? A. No. You owe me money for using me." 1. In addition, the plaintiff swore an answer to interrogatories stating that he had donated the $35 paid by Mr Western to the Salvation Army. In closing submissions, Mr Rollinson submitted that this was "not true" (T 1339).
The circumstances in which a person would swear a false answer to interrogatory and seek to mislead a judge by making statements which are not true are of concern. However, knowing false statements of this kind (which I am satisfied are lies) considered to be compulsive requires a pattern of behaviour.
The whole of the plaintiff's promotional activities, as conducted on publicly accessible websites described as "country party resort" or "holiday island" show a consistent pattern of total misrepresentation. While the plaintiff calls his claims of luxury accommodation and employment opportunities "aspirational" and suggests that this is an integral part of show business (as was his explanation in relation to the false documents submitted to the Federal Circuit Court), this is misrepresentation on a massive scale, in circumstances where the plaintiff well knows the falsity of his statements.
I accept Mr Dawson SC's submission that the documentary evidence, the admissions from the plaintiff adduced in cross-examination and the evidence of the witnesses called by the defendants all establish that the plaintiff is not merely a liar but a compulsive liar.
The defence of justification has been made out in relation to this imputation.

[63]

Proof of imputation (t): "The plaintiff is so dishonest about his events that the police should be contacted."

Mr Rollinson provides only a one-sentence written submission, namely that the plaintiff "has not acted dishonestly about any planned event". He elaborated in his oral submissions: "ROLLINSON: I can't say that he hasn't puffed up, perhaps to the extent of forcefully, his description of the planned events, but it's not enough that looking at it objectively he might have puffed up all of this to an unacceptable degree. One has to draw the inference that he's been dishonest about it. The defendants can't have it both ways, namely, number 1, that he's an absurdly deluded or mysteriously deluded person who has a completely false concept of himself as Australia's greatest recollect [sic] musician - " (T 1341)
Essentially Mr Rollinson's submission is that a person cannot at the same time be a deluded or foolish person who has a completely false concept of himself as Australia's greatest musician, while at the same time being a person so dishonest about his events that the police should be contacted.
However, what the matter complained of makes clear is that the plaintiff is not merely deluded or foolish, but also dangerous. Some of the evidence for this can be seen in the matter complained of, where Witness A said she felt that it was like living in a cult where she was unable to leave the house, in circumstances where Ms Higgins said it was "just appalling that someone thinks he can keep doing this as well." Both Witness A and Ms Higgins gave compelling evidence about the degree of danger. In the case of Ms Higgins, it was not having her coming and going restricted, but because he asked for all her details, including her bank account details (T 1090). It was by reason of the statements made by Witness A and Ms Higgins that the anchor says at the end of the matter complained of "[h]e's got a lot of tricks, doesn't he? And if you've been approached by David Otto in relation to his various events please contact police" (Exhibit A, line 67). That was in fact what some of the young women, such as Ms Chandler did. Ms Higgins also contacted ScamWatch.
How dangerous was the plaintiff? There appears to have been an escalation in his conduct from the simple oral request to Witness A in 2013 not to leave the house to requiring Witness B to sign a house agreement (Exhibit 3, Tab 68). The terms of this agreement are as follows: "House Agreement I _______________ of _______________ (address) in return for access to stay at the Secret Love band property, agree to remain active completing the assigned jobs checklists for period of _______________ (wks/month) and exit at 11am on _______________ (day) _______________ (date) of _______________ (month) and hereby agree to the following 4 [sic] terms during that time: 1) Payment for Access □ If all primary and secondary spaces are taken, I will pay $200, today and on each Friday via automatic online transfer to the following account: BSB 014305 Account [Redacted] OR □ Where a primary "Base rate, plus living and bonuses" space is available, I will be paid a $200 base plus bonuses as per my checklists, starting next Friday and on each Friday in cash until conclusion of my agreement unless my role is terminated. OR □ Where only a secondary "Living plus bonus" space is available I will be paid bonuses as per my checklists, the first $200 of which will go towards my living costs then the rest in cash, starting next Friday and on each Friday in cash until conclusion of my agreement unless my role is terminated. 2) Exit Procedure I will only exit the property at 11am on either a Monday, Tuesday, Thursday or Saturday following the normal review meeting, at which time a bag check may be conducted if required which I hereby consent to, I will be dropped by private vehicle at the local bus terminal once a seat booking has been made or escorted to my vehcicle [sic] if I got my own way. I understand that violation of this term and not exiting in the proper manner will result in a fine of $1,000 for breach of agreement, disruptions and possible unnecessary trigger of our security system if after hours. Where not paid within 7 days, court application may be made for that amount. 3) Guest Rules For everyone's comfort, guests not qualified and booked through our normal vetting process [illegible] permitted to access the property nor attend the perimeter of the property or else I agree to a further $1,000 fine for breach of agreement. 4) Designated Phone Area When not in use I will leave switched off and when in use only operate my mobile phone in the designated mobile phone area only using text message in respect of everyone's privacy inside of and to enable quiet, liberal enjoyment of the property without public posting of private matter within the property. A further $1,000 fine applies where this is not adhered to. 5) Systems confidentiality I agree that no systems or processes used on the property may be copied adapted or otherwise used for any purpose and that legal action will ensue against me if these relfect [sic] outsaide [sic] the property for any reason including fines for breach of confidence in excess of $100,000. To assist witht [sic] his [sic] I will not participate in any online based music or any event based activity whether free or paid to prevent accidental use of systems for personal use for period of 12 months following exit and applicable in all world territories. 6) Waiver I agree to access the property at my own risk in its current condition and will take full responsibility for any actions and the actions or neglect of others and due care and attention to being a productive and positive influence to the properties goals and vision while I am here and afterwards. 7) Christmas Bonus As a broken agreement through the December month because of Christmas can be dusruptive [sic] and give us a slow start to the new year, we offer a $200 xmas bonus, skype with your family on the day, a huge xmas lunch with santa and presents and a dress up party for those who can keep a full month commitment starting anytime after December 10th. This allows us to keep our team strong to optimise the opportunities in the leadup [sic] to christmas [sic] for late gift purchases through us and from boxing day onwards for us of xmas money for 'end of year sale' purchases. Concurrently we are obliged to put in place an additional fine of $1,000 to any broken agreements in this period because of the loss of commercial opportunity. □ Tick box to participate in xmas bonus Print Name: Signed: Date: Preserve my cabin space for: □ 3 months □ 6 months □ 12 months (Your space will be preserved and you will be liable for costs related to your cabin space for this period, without this protection your space may be reallocated.)"
This agreement restricts the free movement of the person who signs it, restricts who may attend the property, restricts contact with persons outside the resort and contains threats of financial fines.
However, perhaps the best example of the dangerousness of the plaintiff's conduct can be seen from the evidence of the witnesses as to the effect these incidents had on them. I particularly note: 1. Ms Thomson gave evidence that after the trip to Temple Island she had to sleep in her parents' bed for six months even though she was aged 19. She was scared to go to work and to be at home alone (T 859). 2. Ms Chandler said she was scared for her life and had no idea what could happen to her when she found herself in a hotel room with the defendant and Kittie Lee (T 957). She appears to have jumped over the balcony in her desire to flee from the premises, running so fast that she broke her thong. She ran for help, telling staff "help me, save me, I need help" (T 958). She said that she was not making much sense at the time and was crying and was a "mess" (T 959). This is borne out by the notes in the log book completed by the hotel staff. 3. Witness B, who had sold her belongings and given up the lease on her house to join the plaintiff's team, was in a position where she did not feel that she could leave if she wanted to (T 1103-1118). She not only had to suffer sexual contact so bad that she said she did not want to remember it, but she feared that the plaintiff was going to kill her (T 1133-1134). 4. Although the plaintiff was not responsible for the disgusting text messages sent to Mrs Collyer in response to her warning young women of the plaintiff's scam (Exhibit 2), he knew that she had taken steps of this kind. I am satisfied of this by reason of the plaintiff's own conduct in threatening one witness with being reported to the police herself (Exhibit 3, Tab 72), as well as by his threats to Ms Higgins of legal action including court forms which she said she had been served (T 1085).
The dishonesty is that the plaintiff represents himself as someone who is advertising for promotional models, receptionists and the like, when in fact he has no work to offer, no money to pay them and he is expecting a ménage à trois with the young women concerned. The combination of false promises, threats and intimidatory treatment are dangerous to the young women and could result in criminal activities about which police should be contacted.
I am satisfied that the defence of justification has been made out to this imputation.

[65]

Justification - Imputations in the GOLD COast bulletin and courier mail Proceedings

The findings I have made in relation to the imputations pleaded in the proceedings against Nine Network Australia Pty Ltd will apply in relation to the findings of justification in relation to each of these three remaining publications, and vice versa. The principal difference between the A Current Affair broadcast and the remaining three publications is that the remaining three publications deal almost exclusively with the claims made by Ms Chandler against the plaintiff. I will first set out some brief observations in relation to Ms Chandler's evidence, portions of which had been referred to in relation to my findings of justification above.
The events involving Ms Chandler occurred in 2015 when Ms Chandler was 20 years old. She had just resigned from a job at Vodafone and was looking for a receptionist type job (T 942). She was approached by the plaintiff's partner, Ms Kittie Lee, who, on 27 September 2015, sent her a Facebook message with a link to the post on the Whitsunday Music Festival Island Holiday Stay Facebook page dated 26 August 2015. The text of that document is set out elsewhere in this judgment but essentially it offered a highly attractive role as a part time receptionist in a luxury holiday island resort. Ms Chandler thought Ms Lee was a staff member and asked her for more information (T 945). In reply to which, Ms Lee told her that the plaintiff was her boss (T 945).
Ms Chandler then had a telephone interview with the plaintiff, in the course of which he discussed the receptionist job and said there were many other girls trialling for the job and that he was the owner of the island where the luxury resort is situation. Ms Chandler was told she would have to pay $200 to cover the cost of the trial and that there were four positions available. The trial would take place at the Tangalooma Island Resort because the Temple Island residential premises were being renovated (T 946). Ms Chandler attended the plaintiff's apartment for a meeting, where there was another girl named Taryn (T 946).
Ms Chandler paid the $200 to secure her place for the job trial on 2 October 2015 (Exhibit 3, Tab 51). She also attended a function at Movie World with the plaintiff and Kittie Lee. The plaintiff told her that Kittie Lee was a co-worker; Ms Chandler said she would not have attended the job trial if she had known that there was a sexual relationship and certainly not if she was expected to join it.
Although at that time of being about to leave for the job, Ms Chandler understood there were 10 other girls coming, she discovered in the afternoon that the other girls she had expected were not coming.
Ms Chandler spent the day with the plaintiff and Kittie Lee in the expectation that there would be others coming. She had not thought anything of the fact that there was only one room and she expected that when the others came she would be moving her belongings to join them in other rooms (T 1005). However, when they arrived back in the hotel room in the late afternoon, the plaintiff said to Ms Chandler: "If you commit to us for two years we'll give you a trust fund of $400,000" (T 954).
Ms Chandler thought that did not sound right and started to get worried (T 954). At this point Ms Chandler asked the plaintiff where the others girls were, and was told no-one else was coming (T 955). Ms Chandler's evidence that she found out that the other girls were not coming at this time is corroborated by the evidence of her step father, Mick Ward. Mr Ward recalls receiving a call whilst he was at work from Jackie Chandler, Shayla's mum, expressing concern that it was only Shayla (T 1007). This is consistent with Shayla texting this to her mother when she found out.
Ms Chandler texted her mother to "Get me out of here" (T 955). Ms Chandler knew that this was definitely not a receptionist job, and the request that she "commit to us" led her to believe the plaintiff and Ms Lee were looking for a third person in their relationship. Ms Chandler was not interested in that (T 955). The plaintiff and Ms Lee were on the bed together. Ms Lee told Ms Chandler to "come and cuddle". Ms Chandler responded "I don't cuddle" (T 957).
At this stage, events took an abrupt turn for the worse. After Ms Chandler came in from the second trip out for a cigarette, the plaintiff and Ms Lee were in the kitchen with wine (T 957-958). They offered and poured her a glass (T 958). Ms Chandler then went to the bathroom. Whilst she was in there she heard Ms Lee say to the plaintiff "it's in her drink, she needs to drink it" (T 958). Ms Chandler understood this to refer to some type of drug and knew she had to get out of there (T 958). Ms Chandler felt unsafe and was scared for her life (T 957). She left her luggage and ran so fast to the bar area of the hotel that she broke one of her thongs. It is not in dispute that Ms Chandler's mother paid for another room, the security guard recovered her possessions, that she slept in the other room and that she left the hotel on the first available barge the following morning.
I now turn to the question of the proof of the imputations pleaded.

[67]

Proof of imputation (c): "The plaintiff tried to have sexual relations with Shayla Chandler against her will."

These are alternate findings, as I have determined that this imputation is not conveyed.
As is set out in the summary of material above, Ms Chandler was already uncomfortable in her dealings with the plaintiff when she realised other girls were not coming and that the accommodation she thought would be booked for those other girls (and herself) would not eventuate (T 954). Her stepfather, Mr Ward, confirmed that Ms Chandler texted her mother "Get me out of here" (T 955). She had realised from the amount of money offered and the requirement for her to "commit to us" that what was on offer was a group sex relationship which she had no intention of taking part in (T 955). She was offered a drink and took a sip but felt unsafe and scared for her life (T 957), a fear that crystallised when she went to the bathroom, where she was able to overhear Kittie Lee, outside the door, say to the plaintiff "it's in her drink, she needs to drink it" (T 958). She went straight outside from the bathroom to the veranda and texted her mother. Mr Ward heard his wife say "oh no" and, when she read the aloud, he grabbed his wife's phone and texted her to leave immediately and go to the hotel management. Mr Ward was not challenged on his evidence, which is corroborative of the plaintiff contemporaneously reporting the information.
Ms Chandler, apparently after getting over the balcony, ran to the bar area calling for help (T 958). The hotel staff recorded all that then occurred. It is not in dispute that Ms Chandler's mother paid for a room in the hotel and that the staff escorted Ms Chandler onto the 8.30 am boat the next morning, having helped her to retrieve her luggage once she was settled into another room. She then went to the police station to report the plaintiff's conduct (T 962).
The circumstances of the plaintiff and Kittie Lee's visit to the Chandler home are not relevant to the truth of this imputation, but the lies they told her parents about Ms Chandler running off with a group of boys are self-evidently false. These lies further undermine any attempt by the plaintiff to deny that he and Kittie Lee had the exchange about something "in her drink" partly overheard by Ms Chandler.
I am satisfied that the plaintiff was aware of Ms Chandler's reluctance to have sex with him and Kittie Lee and that, to overcome this reluctance, he and Kittie Lee had drugs with them for the purpose of overcoming that reluctance, and in fact used them.
Accordingly, if I have erred in holding that this imputation is not conveyed, I am satisfied that the defendants have established the truth of this imputation.

[79]

Contextual justification

The plaintiff's written submissions essentially were that "if [either of the contextual imputations] were true, which it is not, it could not conceivably weigh in the balance against any or all of the plaintiff's imputations".
However, calling a person a "sleaze", if true, is just as serious as the imputations pleaded by the plaintiff, the more so in relation to imputations of actions involving Ms Chandler where only one person is involved, whereas an imputation of being a sleaze is of a more general nature. It should not be necessary to provide further actual evidence in order to demonstrate the truth of this imputation other than to refer to the substratum of findings of fact for any one of the imputations pleaded in any individual imputation in relation to each of the three publications for which this contextual imputation is pleaded. I do not need to enter into this exercise at all in relation to contextual imputation (ii), as justification is conceded.
The relevant principles for establishing whether the plaintiff has suffered any further harm as a result of the publications of which the plaintiff complains which are not found to be true do not need repetition. Taking into account that balancing exercise, I am satisfied from the evidence in support of these contextual imputations, particularly in relation to the plaintiff's conduct to Ms Chandler, that the proof of justification in relation to each single imputation for which I have found justification to succeed is so serious that there is no capacity for any further damage to the plaintiff's reputation arising from any imputations in relation to any of those imputations where my findings should be set aside.
If I have erred in relation to the balancing exercise by using only the imputation to which the plaintiff has conceded justification is made out, then I would rely also upon such imputations for which the defence of justification has been made out, using the approach taken by Beech-Jones J in Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230, and preferring this approach to that advocated by the Court of Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77. I consider Fairfax Digital Australia & New Zealand Pty Ltd v Kazal to be plainly wrong, in that McColl JA accepted that the truth of a plaintiff's imputation must be "given effect" to, not only for the purposes of mitigation of damages, but also because of the substantial truth of the contextual imputations as set out in section 26(b). To fail to do so creates tension in the legislation because it is acknowledged that the use of the truth findings of the plaintiff's imputations is permissible for the purpose of mitigation.
Accordingly, in the event that I have erred in finding in favour of the defendants on the defence of justification in relation to any of the imputations, I am satisfied that the imputation for which the plaintiff admits the truth alone would be sufficient for the defence under s 26 Defamation Act 2005 (NSW) to succeed and additionally that the truth of contextual imputation (i) (which I have found to be true) would similarly outweigh the imputation for which the defence of justification fails. The truth of the plaintiff's imputations, if taken into account, would further weigh against any imputation for which the defence of justification fails. Given the strength of the evidence against the plaintiff, and the fact that this is an alternative finding, it is unnecessary to enter into any further consideration of this defence.
I set out below, as alternative findings, some brief observations in relation to the issue of damages.

[81]

Damages for the three publications where contextual imputation (i) is acknowledged to be true

The plaintiff faces extraordinary hurdles in getting to any damages award in relation to these three publications. 1. First, the plaintiff would have to be successful in relation not only to my findings as to the defence of justification in each case but also my alternate finding that, if the defence of justification failed in relation to any imputations, the truth of both contextual imputations (or, alternate to that, only the contextual imputation he acknowledges) is such that the contextual truth defence under s 26 of the uniform legislation would succeed. 2. Second, the acknowledged truth of the contextual imputation (ii) pleaded by the Gold Coast Bulletin, Courier Mail and Daily Mail, namely that the plaintiff posted advertisements seeking to engage young women for the purpose of entering polyamorous relationships with him, would amount to a substantially mitigating circumstance. (It is unclear to me why the plaintiff would not also be obliged to admit the truth of imputation (h) in the Nine proceedings, namely that "The plaintiff tries to encourage young girls to engage in group sex", but I was not addressed on this issue). This means that, in relation to each of these three publications, even if the plaintiff were successful on all issues, there is already an acknowledgement of the truth of an imputation of significance, given the community standards applicable not only to group sex but to the fact that young women (such as teenagers). That would have a very significant impact on any damages awarded. 3. Third, whereas the A Current Affair broadcast was widely viewed, the plaintiff is only entitled to sue upon evidence of downloading of the three newspaper online publications and, in the case of the Gold Coast Bulletin and the Courier Mail, to those persons who downloaded the publication after the date on which the plaintiff was granted leave to commence proceedings. These figures are very small. Mr Rollinson acknowledges that "possibly as many as 163 persons" downloaded the Gold Coast Bulletin (submissions, page 10) while the number for the Courier Mail was 30 and for the Daily Mail a mere 9. No comments were posted. The identity of the persons who downloaded the material is unknown and Mr Rollinson acknowledged that some of the downloading could have been by legal representatives of the parties (which is not actionable: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 293; Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253.
The plaintiff's admissions in cross-examination and his admissions, in three of the publications, as to the truth of one contextual imputation, make it difficult to see how the plaintiff could hope to receive any award in the three online publications.
However, as to the A Current Affair broadcast, it may be that an appellate court would consider that I have erred in accepting submissions that the plaintiff is "famous" and "notorious" for his conduct, or that the defendants have not established that the plaintiff is creepy and/or a voyeur or pervert.

[85]

The relevant principles of law

The principles relevant to applications to reopen a case, recall a witness or seek leave to adduce further evidence are set out in Reid v Brett [2005] VSC 18 at [41] as follows: "[41] The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows: (a) the further evidence is so material that the interests of justice require its admission; (b) the further evidence, if accepted, would most probably affect the result of the case; (c) the further evidence could not by reasonable diligence have been discovered earlier; and (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence. In Smith v New South Wales Bar Assn., the High Court of Australia stated that in such a situation it was difficult to see why "the primary consideration should not be that of embarrassment or prejudice to the other side."" (Citations omitted)
In Smith v New South Wales Bar Association (1992) 176 CLR 256, the High Court noted at [27] the entitlement of a party to apply to the court to "review, correct or alter its judgment at any time until its order has been perfected", subject to principles such as the public interest in the finality of litigation. However, since that time, ss 56-62 Civil Procedure Act 2005 (NSW) have materially impacted upon applications of this nature. In particular, s 60 concerning the proportionality of costs issues is of relevance to applications such as the present.
Mr Rollinson conceded that none of the documents proposed to be tendered were documents falling into the categories in Reid v Brett at [41]. These documents were: 1. submissions to the court by the plaintiff (documents 1, 2 and 18); 2. documents which had been discovered by the plaintiff or produced in answer to subpoena, but which had not been deployed by his counsel; 3. documents which had not been discovered by the plaintiff (which is in itself a difficulty) and which had been available for use during the trial but which had not been deployed by counsel for the plaintiff; 4. photographs taken of the plaintiff during his participation in a musical event which occurred while the trial was in progress and a photograph of the plaintiff as a member of a band in 1997 or 1998. No objection was taken to the tender of these documents.
The plaintiff did not adduce any evidence explaining the delay in seeking to adduce this material or to explain the departure from forensic decisions taken by his experienced counsel and solicitor during the trial.
In addition to the plaintiff's failure to satisfy any of the criteria identified in Reid v Brett or to proffer any such explanation, the defendants point to the significant prejudice of being provided with a bundle of documents, many of which (notably documents 4, 5, 6, 7, 8, 9, 13, 14, 17 and 18) appear to be extracts from other documents of uncertain provenance (National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309). One of the documents, document 16, is an 11-minute audio recording of conversation between the plaintiff and a person named "Ariel" which Ms Barnett told me she had been unable to understand because Ariel's voice was so indistinct. While Mr Rollinson said that he was able to hear it, no transcript has been provided. It would appear likely from Mr Rollinson's description of the contents that "Ariel" was unaware that she was being recorded. The objections based on National Australia Bank Ltd v Rusu include challenges as to when and in what circumstances the recording was made and whether the person in question is in fact "Ariel". These challenges to the tender of this material must therefore succeed.
Although Mr Rollinson's submissions suggest that these documents could be rendered admissible in the course of re-examination of the plaintiff, the issues in cross-examination to which they went are difficult to identify. Both parties agree that not only would there be a necessity for the proceedings to be listed for hearing for at least one day for such a purpose, but that other witnesses would need to be called and the failure to put material to Shayla Chandler, Mr Collyer and Witness B would give rise to Browne v Dunn issues (Browne v Dunn (1893) 6 R 67).
I am particularly concerned about the document asserted to be "Chapter 16" of the plaintiff's autobiography which was tendered by the defendants and is Exhibit 9. Exhibit 9 was tendered by the defendants for a non-hearsay purpose to establish material that the plaintiff wrote principally for the purpose of cross-examination of him in relation to inconsistent evidence in the witness box. Not only is the purported "Chapter 16" tendered for a hearsay purpose with no equivalent relevance, but it is not in fact "Chapter 16" at all, but a letter addressed to myself, composed during the trial, after Mr Rollinson has, in the words of the plaintiff in this document, "advised there is no way to get this final evidence to use so I am left with no other option than to just hand it up - perhaps as the remaining chapter of my book".
The guiding principles set out in s 56 Civil Procedure Act 2005 (NSW) and the trial management rules set out in ss 57-62 (in particular s 60 as to costs), emphasise both the desirability of finality to litigation and the need for proportionality in relation to costs issues.
As to s 60, Ms Barnett drew to my attention the fact that the plaintiff is bankrupt. Unfortunately, the provisions of s 60(4) Bankruptcy Act 1966 (Cth) permit bankrupts to commence and continue defamation proceedings, so I do not consider that this is a factor that I should take into account. I note that McCallum J took a similar approach to the bankruptcy of Dr Toben in Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784. However, the other factors referred to in ss 56-62 as relied upon by the defendants are more than enough to warrant the refusal of this application.

Ashworth aka Otto v Nine Network Australia Pty Ltd

At a glance

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Judgment (87 paragraphs)

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Legislation Cited (5)

Cases Cited (39)

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