Bolton v Stoltenberg - [2018] NSWSC 1518 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Bolton v Stoltenberg

[2018] NSWSC 1518

Supreme Court of NSW|2018-04-16|Before: Payne J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-04-16

Before

Payne J

Catchwords

DEFAMATION - imputations - whether imputations made out from matters complained of

Source

Original judgment source is linked above.

Catchwords

DEFAMATION - imputations - whether imputations made out from matters complained of

Judgment (29 paragraphs)

[1]

sion Services Pty Ltd (1991) 23 NSWLR 364 Kenyon v Sabatino [2013] WASC 76 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 2 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514 Marshall v Smith [2013] WASC 452 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3 Morgan v John Fairfax & Sons (No 2) (1991) 23 NSWLR 374 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69 Polias v Ryall [2014] NSWSC 1692 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 Rana v Google Australia [2013] FCA 60 Randwick Labor Club v Amalgamated Television Services (2000) NSWSC 906 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; [1982] HCA 4 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 Sierocki v Klerek (No 2) [2015] QSC Sims v Jooste (No 2) [2016] WASCA 83 Slatyer v Daily Telegraph Newspaper Co (1908) 6 CLR 1; [1908] HCA 22 Theodore Skalkos v Joseph Assaf [2002] NSWCA 14 Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23 Trumm v Norman [2008] EWHC 116 Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118; [1966] HCA 40 Vakras v Cripps [2015] VSCA 193 Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428 Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 Watts v Times Newspapers Ltd [1997] QB 650 Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 Wishart v Murray [2013] 3 NZLR 246; [2013] NZHC 540 Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 Texts Cited: Brown on Defamation (2nd ed, 1994, Thomson Reuters) NSW Government Gazette No. 56 of 25 May 2017 Category: Principal judgment Parties: Conrad Moran Bolton (Plaintiff) Stephen Robert Stoltenberg (First Defendant) Ann Loder (Second Defendant) Representation: Counsel:

[4]

Judgment

PAYNE J: This case involves events which occurred in 2015 and 2016 in Narrabri. The key players are Mr Conrad Bolton, the Plaintiff, who is the former Mayor of the Narrabri Shire Council, Mr Stephen Stoltenberg, the First Defendant, who is the operator of a public Facebook page known as "Narri Leaks" and Ms Ann Loder, the Second Defendant and a current Narrabri Shire Councillor, who was at most relevant times the head of the Narrabri Ratepayers and Residents Association, and alleged in a variety of ways also to be a publisher of "Narri Leaks".
Mr Bolton was represented by Mr Richardson with Ms Rabsch, Mr Stoltenberg by Ms Chrysanthou and Mr Dean, and Ms Loder by Mr Potter and Ms Angelman. Each capably presented the case of their respective clients and the Court is grateful for their assistance. INDEX Credit of witnesses who gave evidence - paragraph 19 Findings of fact - paragraph 27 Posts relevant to the claim for aggravated damages - paragraph 64 The pleaded imputations - relevant law - paragraph 69 First matter complained of - paragraph 75 Second matter complained of - paragraph 81 Third matter complained of - paragraph 86 Fourth matter complained of - paragraph 92 Fifth matter complained of - paragraph 99 Sixth matter complained of - paragraph 108 Rulings about evidence allowed on the voir dire - paragraph 113 Publication Publication by Mr Stoltenberg - paragraph 117 Publication by Ms Loder - paragraph 161 Identification - paragraph 188 Qualified privilege - paragraph 192 Malice - paragraph 217 Statutory Qualified Privilege - paragraph 223 Conclusion on statutory qualified privilege - paragraph 227 Damages - paragraph 236 Effect of Narri Leaks posts on Mr Bolton and his family - paragraph 244 Conclusion on damages - paragraph 258 Injunctive Relief - paragraph 265 Costs - paragraph 269 Conclusion and orders - paragraph 274 Annexure A - First Matter Complained Of Annexure B - Second Matter Complained Of Annexure C - Third Matter Complained Of Annexure D - Fourth Matter Complained Of Annexure E - Fifth Matter Complained Of Annexure F - Sixth Matter Complained Of
Mr Bolton has had a long and distinguished history of service in the Narrabri Shire. Mr Bolton was a councillor of the Narrabri Shire Council from 2004 to 2016 and Mayor from September 2012 to September 2016. He did not stand for re-election after that date, as a result of the conduct the subject of these proceedings. Mr Bolton's record of public service was recognised in 2009 when he received an Australia Day award for his service to the community, and again in 2016 when he received an award from the Minister for Local Government for his work as Mayor of Narrabri Shire Council.
Prior to December 2013, Mr Bolton and Mr Stoltenberg, who was a former Town Clerk of various municipal councils, had a professional relationship and discussed (principally via e-mail and text) various issues relating to the Narrabri Shire Council. In about December 2013, Mr Bolton and Mr Stoltenberg fell out over the appointment of Ms Diane Hood to the role of General Manager of the Narrabri Shire Council. This was, in part, motivated by Mr Stoltenberg's apparent belief that Ms Hood's gender made it somehow less likely that she could fix the "shitfight" that the previous General Manager had created. In an e-mail Mr Stoltenberg sent to Mr Bolton the following appears (spelling and capitalisation as in original): "A women !!! Your been around too many strong chemicals in the spraying game. National party placement , you have made a grave mistake , Even if she is reasonable , Marshall left a complete shitfight that only a truly experienced BLOKE could fix."…
The relationship between the two men deteriorated thereafter. Essentially Mr Bolton first selectively responded and then ceased responding to Mr Stoltenberg's increasingly strident electronic communications.
On 13 June 2015, Ms Rook at Mr Stoltenberg's request created a new Facebook page called "Narri Leaks". Mr Bolton relies on five allegedly defamatory posts published on "Narri Leaks" in 2015 and one in early 2016, after these proceedings had been commenced. The essential subject matter of the imputations allegedly arising from the allegedly defamatory posts may be summarised as comprising: 1. deliberate breaches by Mr Bolton of the Local Government Act; 2. deliberate corruption by Mr Bolton of the selection process for the General Manager of the Council (the replacement for Ms Hood); 3. deliberate lies, coercion and intimidation of employees, contractors, residents and elected councillors by Mr Bolton to suppress the views of others on Council matters; 4. Mr Bolton's corrupt, dishonest and intimidatory actions as Mayor of Narrabri Shire Council, warranting a full ICAC inquiry; 5. deliberate engagement in corrupt conduct by providing the Independent Regulatory and Pricing Tribunal ("IPART") with information Mr Bolton knew to be false; 6. an allegation that Mr Bolton acquired millions of dollars through dishonest means.
Mr Bolton seeks damages, including aggravated damages, and injunctive relief. The aggravated damages arise from a number of Narri Leaks posts created by Mr Stoltenberg which referred to these proceedings and compared Mr Bolton and his conduct to that alleged by various other media outlets against Mr Don Burke, Mr Craig McLachlan and Mr Harvey Weinstein.
From August 2016 until March 2018, Mr Stoltenberg relied on the defences of truth, honest opinion and fair report. Ms Loder adopted those defences from 1 November 2016.
On 29 March 2018, Mr Stoltenberg abandoned the defences of truth, honest opinion and fair report. All defences other than publication were abandoned by Ms Loder on 18 March 2018.
The remaining issues in the case are nevertheless legion. Mr Stoltenberg's case may be described thus. First, with very few exceptions, the imputations pleaded by Mr Bolton were said not to be made out as they had been "pitched too high". Upon analysis, Mr Stoltenberg submitted, in all bar one of the matters complained of, he was essentially asking questions about Mr Bolton's behaviour rather than making accusations. Ms Loder essentially adopted Mr Stoltenberg's submissions about the pleaded imputations.
Mr Stoltenberg next submitted that Mr Bolton had not proved that any of the matters complained of were published. Publication on the internet requires proof that the matter complained of had been downloaded and viewed by at least one person, other than the plaintiff and his or her agents. Mr Stoltenberg submitted that the considerable evidence of posts by him to the Narri Leaks site boasting about the number of "hits" on the Facebook page during the weeks when each of the matters complained of were posted were insufficiently specific and should not give rise to inferences that any of the matters the subject of complaint were actually downloaded, even by one person. Mr Stoltenberg next submitted that by reason of some particulars of identification said to be given prior to the trial, Mr Bolton was precluded from relying upon the oral evidence given at the trial, including by Mrs Bolton, about the publication of each of the posts. Mr Stoltenberg also submitted that the business records of Facebook which were tendered were essentially unexplained in the evidence and that the Court should not infer that any of the matters complained of were in fact downloaded and read by anybody other than Mrs Bolton who, it was submitted, was Mr Bolton's agent. Mr Stoltenberg also submitted that the Court should not infer that Mr Bolton had been identified in any of the matters complained of. As will become clear, I have concluded that each of the matters complained of was published.
A principal focus of Mr Stoltenberg's defence was a reliance on common law qualified privilege and an analogy sought to be drawn with the decision of the High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5. Mr Stoltenberg's argument was labyrinthine.
The foundational proposition was that the particulars of identification allegedly given by Mr Bolton prior to the trial identified a limited community of readership of Narri Leaks. As I will explain, that proposition is untenable. Assuming that the subject matter of the request and answer was relevant to this issue, which I doubt, Mr Bolton plainly rejected the need to further particularise the pleading in his answer. No submission was advanced that Mr Bolton's pleading was so limited. Mr Stoltenberg submitted, by reference to remarks of Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188, that the Court should conclude that as Mr Bolton would have been required to provide such particulars had they been sought, it should therefore be concluded that he had described a limited audience of readers sharing a special interest for the internet posts in his answer to particulars wherein he explained why he was refusing to provide further particulars.
Mr Stoltenberg identified the special interest of readers as being Narrabri residents and ratepayers concerned about Narrabri Shire Council finances and perhaps the appointment of General Managers of the Narrabri Shire Council. It was submitted that by reason of the particularisation of Mr Bolton's case the Court should not take into account the considerable evidence of readership of Narri Leaks outside the Narrabri Shire. In oral submissions it was suggested, as a fall-back, that the special interest of readers may extend beyond Narrabri residents and ratepayers and encompass all people with an interest in local government.
Mr Stoltenberg recognised that the decision of Beech-Jones J in a similar context in Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 posed a considerable hurdle to acceptance of this part of his argument. It was submitted that his Honour's decision was wrong. It was submitted that Beech-Jones J had given insufficient attention to the internet context of the publication. As will become apparent, I do not agree that Beech-Jones J's decision was wrong. The decisions relied upon by Mr Stoltenberg, being some first instance decisions of the High Court of England and Wales, and the Victorian Court of Appeal in Vakras v Cripps [2015] VSCA 193, are clearly distinguishable. As will become apparent I reject Mr Stoltenberg's defence of common law qualified privilege.
Mr Stoltenberg next relied upon statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW), although in a much more muted way. It was submitted that I should find that the publication of each of the matters complained of was protected by statutory qualified privilege and that Mr Stoltenberg's conduct in publishing each of the matters complained of was reasonable. As will become clear, I reject the submission that Mr Stoltenberg's conduct in publishing each of the matters complained of was reasonable. He is not entitled to rely on s 30 of the Defamation Act.
There was little by way of submission by the Defendants about damages, nor any complaint about the helpful schedule of damages awarded in other cases prepared for Mr Bolton. The parties were at odds about whether the Court should grant injunctive relief, and if so, the breadth of that relief.

[5]

Credit of witnesses who gave evidence

In accordance with the usual practice in defamation matters in this Court no witness statements were exchanged prior to the trial. Viva voce evidence was given by seven witnesses.
Mr Conrad Bolton was an impressive witness. I accept his evidence in whole. The challenge to his credit in cross-examination, limited though it was, failed. Other than a variety of unsubstantiated rumours floated with various witnesses, which ultimately went nowhere, the only substantial attack on Mr Bolton's credit concerned two Narrabri Shire Council "Code of Conduct" reports in late 2011 and early 2012 about Mr Bolton. Those reports do not cause me to doubt these credit findings or Mr Bolton's honesty and reliability as a witness. In respect of the first report, a complaint was made by then Mayor Faber in March 2011 about remarks made by Mr Bolton to her. The Council resolved that matter by voting that Mr Bolton should apologise to Mayor Faber, which he did. A recommendation made to censure Mr Bolton was defeated. A second complaint was later made by Mayor Faber relating to a communication Mr Bolton had with the then director of corporate services relating to the Crossing Theatre. That complaint was essentially dismissed, although the Council recommended that the Plaintiff re-read the Code of Conduct about discussion between councillors and contractors.
Mrs Bolton gave evidence in a quiet and thoughtful manner. I accept her evidence. I also accept the evidence of Mr Flower, Ms Booby and Ms Collier who gave evidence in Mr Bolton's case.
Mr Stoltenberg did not give evidence, as was his right. There is, however, an irony in this decision given the repeated public taunting by Mr Stoltenberg in the pages of Narri Leaks about these proceedings and the threats Mr Stoltenberg made to unmask Mr Bolton as a "bully" and a "sleaze" in evidence. Claims were made by Mr Stoltenberg about the content of evidence to be led by him in this case which, on the evidence before me, had no foundation whatsoever. I infer that Mr Stoltenberg's evidence would not have assisted his case.
Mr Stoltenberg's domestic partner, Ms Rook, did give evidence. I accept Ms Rook's evidence with important qualifications. I do not accept Ms Rook's evidence about how Facebook operates, nor her evidence seeking to contradict or explain Mr Stoltenberg's claims on Narri Leaks about the extent of Narri Leaks' readership. In evidence in chief Ms Rook at first claimed to be reasonably knowledgeable about the operation of Facebook and was permitted to give evidence about what she understood to be Mr Stoltenberg's lack of understanding of Facebook and the statistics it collected. In cross-examination, however, I formed the distinct impression that Ms Rook was tailoring her evidence to suit what she perceived to be Mr Stoltenberg's interests in the litigation. I do not accept her evidence where she sought to discredit Mr Stoltenberg's claims about the number of people who had viewed the Narri Leaks site during relevant periods. Because of her protestations in cross-examination of ignorance about the operation of Facebook and the meaning of the statistics collected which she herself produced in discovery, I found her evidence as a whole of little assistance. I would not accept her evidence about any issue concerning the operation of Facebook or Mr Stoltenberg's knowledge without corroboration by other reliable evidence.
I also approach Ms Loder's evidence with care. I was troubled during her evidence about the fact that Ms Loder had apparently willingly lent her name and reputation in the community to Mr Stoltenberg's Narri Leaks website, despite her regarding many things that Mr Stoltenberg said on that site as false in important respects. Ultimately, however, I accept her evidence that she did not raise things she knew to be false with Mr Stoltenberg as he would likely bully her and in any event ignore her wishes. As will become apparent, this finding does not completely exonerate Ms Loder as a publisher of all of the Narri Leaks posts.
It is clear that Mr Stoltenberg had been seeking, since at least 2012, to find a public vehicle to express his own idiosyncratic views about the proper conduct of Narrabri Shire Council. The popularity of Ms Loder (and others) in the Narrabri community was seized upon by Mr Stoltenberg to pass off his own high handed commentary as having been adopted by Ms Loder. I have some doubts about whether Ms Loder's current expressions of regret that she did not disassociate herself from the very many things that Mr Stoltenberg wrote on Narri Leaks which were false was an accurate reflection of her state of mind in 2015 and 2016. Having studied her carefully when giving evidence, however, I find that Ms Loder was being truthful when she said that she knew that Mr Stoltenberg had disseminated false information about her for his own purposes and that she did not remonstrate with him because she was sure that he would ignore her wishes and "do what he want[ed] to do".
I accept Ms Loder's evidence that she did not seek to correct the many things published by Mr Stoltenberg on Narri Leaks that she knew to be false because she knew that Mr Stoltenberg routinely published false information on Narri Leaks and, I infer, he would not listen to reasonable opinions which differed from his, including those of Ms Loder, despite his telling the world that Ms Loder was one of the people principally responsible for the views expressed on Narri Leaks.

[6]

Findings of fact

My principal findings of fact based on the evidence of the witnesses at the trial and the documentary evidence are as follows. I will deal with the facts relevant to Ms Loder's liability as a publisher separately.
Mr Bolton first had dealings with Mr Stoltenberg in 2010 or 2011. Mr Bolton and Mr Stoltenberg had professional and some limited personal dealings in the period 2010 to 2013. Mr Stoltenberg was knowledgeable and helpful about Council finance issues. Mr Bolton accepted the description of Mr Stoltenberg during this period as a "ratepayer activist".
In 2012, Ms Rook at Mr Stoltenberg's request set up a Facebook page titled "Narri Leaks" on behalf of a proposed "Narrabri Ratepayers Association". Nothing apparently became of that entity as Mr Stoltenberg could not get anyone involved in the proposed organisation.
In about December 2013, Mr Bolton and Mr Stoltenberg fell out over the appointment of Ms Diane Hood to the role of General Manager of the Narrabri Shire Council. Mr Stoltenberg was opposed to Ms Hood's appointment based on her gender and what Mr Stoltenberg regarded as a lack of relevant experience. Mr Stoltenberg was seeking the appointment of "a truly experienced bloke" to the role. This was, in part, motivated by Mr Stoltenberg's apparent belief that Ms Hood's gender made it somehow less likely that she could fix the "shitfight" that the previous General Manager had created. Mr Stoltenberg was also apparently motivated by his own financial interests. In e-mails to Mr Bolton, Mr Stoltenberg said (spelling and emphasis as in the original): "A women !!! Your been around too many strong chemicals in the spraying game. National party placement , you have made a grave mistake , Even if she is reasonable , Marshall left a complete shitfight that only a truly experienced BLOKE could fix." "Bottom line is , it's more important to you to have a spineless yes man you can control like a puppet than have a competent properly experienced and qualified GM…" "Make no mistake, I will be more than the average shit stirrer if I see the shires performance continue as it has the last few years & my investments going backwards because of it."
During the period from December 2013 to June 2015, the time that Narri Leaks was created, contact between Mr Bolton and Mr Stoltenberg was limited. Mr Stoltenberg continued to send a stream of electronic communications to Mr Bolton. Mr Bolton eventually ceased to reply. In June 2015, Mr Bolton knew of Ms Loder, the Second Defendant, but had never spoken to her.
On 13 June 2015, Ms Rook at Mr Stoltenberg's request created a new Facebook page called "Narri Leaks". Ms Rook and Mr Stoltenberg were the administrators of the Narri Leaks Facebook page created in 2015, which meant that they could change the photographs, modify the page, post to it and modify the posts, and add links to videos, amongst other things.
Ms Rook created a filter in an attempt to prevent profanity being used in posts or comments, which would hide posts or comments containing profane words from the public (but not from the administrators). Apart from that profanity filter, the Facebook page was open to the world and anyone, anywhere, with access to the internet, could add a comment or a post to the Narri Leaks page. As administrators, Mr Stoltenberg and Ms Rook were each able to remove people's posts by hiding or deleting them. After about a week of operation, Ms Rook added a feature to the Narri Leaks page such that the administrators would have to approve posts before they were allowed to be added to the page. Ms Rook applied a standard for letting posts through which she described as preventing profanity or anything "defaming".
Ms Rook allowed onto the page posts relating to Narrabri Shire Council issues. Mr Stoltenberg, however, allowed posts to be made to Narri Leaks which were not related to the Narrabri Shire Council. Mr Stoltenberg's avowed purpose in making and allowing these posts was to drive traffic to the Narrri Leaks site; that is, to encourage downloads of posts to the site by as many people as possible from as wide a geographic area as possible. Ms Rook and Mr Stoltenberg were unable to stop comments being made before they were posted, although they could delete or hide a comment after it was posted.
In June 2015, the existence of the Narri Leaks Facebook page was brought to Mr Bolton's attention by his wife and daughter. From that time, Mrs Bolton and her daughter would look at the Narri Leaks Facebook page a couple of times a day. Despite occasionally addressing Mr Bolton directly on the Narri Leaks site, Mr Bolton was never contacted by Mr Stoltenberg or Ms Loder or anyone from Narri Leaks or the Narrabri Shire Residents and Ratepayers Association seeking comment in relation to the material that was to be published on the Narri Leaks page. Mr Bolton did not post on the Narri Leaks website or seek to engage with the site. Mr Bolton, who is not a lawyer, formed his own view that the Narri Leaks site was engaged in criminal defamation, and concluded that he was not going to be involved with it.
On 15 June 2015, the first matter complained of, headed "Captain's Call", was uploaded to the Narri Leaks page by Ms Loder at Mr Stoltenberg's request. The first matter complained of is set out in Annexure A to this judgment.
I find that Mr Stoltenberg was the author of this post and responsible for it being uploaded to the Narri Leaks Facebook page. The post was downloaded and read by Mrs Bolton who took a screenshot of it. I find that Mrs Bolton did so because she was upset about the allegations being made on the Narri Leaks page about her husband. I reject the submission that Mrs Bolton acted as Mr Bolton's agent in collecting this (or any other) evidence about Narri Leaks. That screenshot establishes that by the time it was taken the post had attracted two "likes" and two comments. The post was "liked" by Ms Loder and Ms Rook; the comments were made by people described as John Hartford and Andrew Boggabri.
Business records of Facebook tendered, eventually without objection, also established that by 20 January 2016 the "Captain's Call" post had a "reach" of 661 and that 83 likes and comments had been added to the post. A different Facebook business record established that the post was "published 16 June 2015 at 12:51 by Stephen Stoltenberg".
The process in hiring Ms Hood as General Manager in December 2013 involved the Narrabri Shire Council engaging a consulting firm to develop and promote job descriptions, eliminate unsuitable applications and formulate a short list which was then ratified by all councillors of the Narrabri Shire Council. A short list of interviewees for the position was prepared. There was a vote about the appointment of Ms Hood in which each councillor participated. Mr Bolton did not lobby or pressure other councillors to vote for an application for the General Manager position or any council position. Mr Bolton said, and I accept, that he had never ignored the recommendations of experts concerning the hiring of General Managers and did not do so on this occasion.
On about 24 June 2015, Mr Todd was selected as the General Manager of the Narrabri Shire Council to replace Ms Hood. The selection process for Mr Todd was the same as the process for Ms Hood's selection except that a different outside consultancy group was used. Mr Bolton said, and I accept, that he voted for Mr Todd on merit, he did not pressure any other councillors to vote for Mr Todd and the ballot was secret. Mr Todd remains the General Manager of Narrabri Shire Council.
On 27 June 2015, the second matter complained of was uploaded to the Narri Leaks Facebook page beginning with the words "again for the purpose of accurate facts". That post made various allegations concerning the hiring of a Mr Todd as General Manager. The second matter complained of is set out in Annexure B to this judgment.
The post was downloaded and read by Mrs Bolton who took a screenshot of it. Business records tendered, eventually without objection, established that by 20 January 2016 the post had a "reach" of 797 and 124 likes and comments had been added to the post. A separate business record established that the post was "published 28 June 2015 at 00:44 by Stephen Stoltenberg".
On 27 June 2015, the third matter complained of was uploaded to the Narri Leaks Facebook page. It consisted of certain of the comments posted to the second matter complained of, the post beginning with "Again for the purpose of accurate facts…". The third matter complained of is set out in Annexure C to this judgment.
These comments were downloaded and read by Mrs Bolton who took a screenshot of them. An individual named "Jeff Stoltenberg" made one of the comments. Mrs Bolton viewed Jeff Stoltenberg's Facebook profile and found he lived in Queensland. An individual with a Facebook account named "Brad Pascoe" also made a comment on the post. Mrs Bolton viewed his Facebook profile and found that at the time he lived in Wellington and now lives in Junee.
Business records tendered, eventually without objection, also established that by 20 January 2016 these comments were part of the 124 likes and comments which had been added to be post. A separate business record established that the post was "published 28 June 2015 at 00:44 by Stephen Stoltenberg".
I find that there is no evidence that Mr Bolton: 1. had ever silenced the interchange of ideas and diversity of views on the Narrabri Shire Council; 2. had ever breached the Local Government Act 1993 (NSW); 3. had engaged in misleading conduct, coercion and intimidation to suppress a view on Council; 4. had improperly silenced employees, contractors, residents or other elected councillors as Mayor; or 5. had ever been the subject of a complaint to ICAC or an investigation by ICAC.
On 30 June 2015, the fourth matter complained of was uploaded to the Narri Leaks Facebook page. It was headed "The carton [sic] below". The fourth matter complained of is set out in Annexure D to this judgment.
Mrs Bolton downloaded and read the post and took a screenshot of it. That screenshot was taken at 12:38 am on 30 June 2015. The post had been uploaded to Narri Leaks 54 minutes earlier. Shortly afterwards during that night Mr Stoltenberg woke Ms Rook up and asked for her help in deleting the post, which she provided.
On 18 July 2015, the fifth matter complained was uploaded to the Narri Leaks Facebook page. The post is headed "The councils IPART submission…" and has appended comments. The fifth matter complained of is set out in Annexure E to this judgment.
Mrs Bolton downloaded and read the post and attached comments. She took a screenshot of them. Business records tendered, eventually without objection, also established that by 20 January 2016 the post had a "reach" of 1900 and 57 likes and comments had been added. The post was published on 18 July 2015 at 09:43 by Stephen Stoltenberg.
I find that at that time the IPART was conducting an exercise, one aspect of which was known as "Fit for the Future", in which local council finances across NSW were being investigated. The IPART process was a three-stage process. The first stage was analysis using a common benchmark across NSW undertaken by Treasury Corporation which was intended to create a level playing field for the assessment of local council finances. The second stage was a planning and reporting process whereby each council needed to develop one year, four year, and ten year plans. Narrabri Shire Council sought and obtained a 12 month extension and the Council finalised stage two within that further time frame. The third stage was the "Fit for the Future" process which concerned how each council was going to establish its financial controls in the future. Each municipal or shire council was required to demonstrate to IPART that it fully understood the financial impacts of its decisions and the costs of these impacts.
The Narri Leaks post referred to a proposed 30 per cent increase in rates and a $19m difference between budgeted and actual fees in the Narrabri Shire Council accounts. There is no evidence that IPART was provided with figures by Narrabri Shire Council or Mr Bolton which were incorrect, much less is there evidence that any figures were provided by anybody which were knowingly incorrect.
So far as the Narri Leaks post referred to a Narrabri Shire Council proposal for a "30% rate increase", this was a controversial issue arising from the IPART process at the time. A letter from Paul Wern, the director of corporate services at the Council, to Ms Loder stated that "[t]here's a potential special rate variation that may apply, that may be applied" and "[C]ouncil has determined the need to apply for a special rate variation" and that the variation would need to be a 20 per cent rise comprising ten per cent in year one, five per cent in year two and five per cent in year three. The proposed rate rise referred to by Mr Wern was part of the Fit for the Future process. I accept Mr Bolton's evidence that as far as he understood it, the Council did not want such a significant rate rise and that that rate rise was not what the Council decided on at the end of the process. Ms Loder believed that the rate increase could be around 42 per cent in the long term. She was opposed to any such rate rise.
So far as the $19m difference between budgeted and actual fees is concerned, the Narrabri Shire Council typically found there to be a difference between actual and budgeted fees. During some periods, proposed developments, such as mining developments in 2008, 2011, 2012, 2013 and onwards, had the effect that development fees offset the impact on utilities like water and drainage. Mr Bolton said, and I accept, that the $19m figure identified in the Narri Leaks post simply meant that the actual fees received by the Council in a particular year were higher than what had originally been budgeted. There was no evidence before me that such a difference between actual and budgeted fees in 2015 was in any way remarkable or unusual, much less that it had any sinister significance.
Approximately eight community meetings about the Fit for the Future process were arranged by the Council. There was a process of public consultation by the Narrabri Shire Council about the IPART process. An advertisement put in a newspaper by the Council included the following statement: "The community will have the opportunity to make comments on the submission when it is placed on public exhibition for 28 days in May 2015."
During the period 10 June 2015 - 22 June 2015, there was a separate series of meetings, originally organised by "a community minded group of residents" including Mr Stoltenberg and Ms Loder. On 10 June 2015, Mr Stoltenberg attended the meeting. On 18 June 2015, a meeting about the proposed rate increase in Wee Waa was held which approximately 100 people attended. Mr Stoltenberg attended two subsequent meetings, one in Boggabri on 19 June 2015 and one in Narrabri on 22 June 2015.
Mr Bolton did not receive an e-mail invitation to the first meeting, but he became aware after the fact that other councillors had been invited. If Mr Bolton had been invited he probably would not have gone because he believed the Council had its own series of events where questions could be answered properly. Mr Bolton was aware of subsequent meetings of what became the Narrabri Ratepayers and Residents Association, but he did not attend those meetings.
These proceedings were commenced by Statement of Claim on 14 December 2015.
On 7 January 2016, a Narri Leaks post headed "Mayor Bolton read this" was posted which included the text of an article which had earlier been published in the Sydney Morning Herald about pensioners and the high costs of living. The post and an appended comment form the sixth matter complained of, and are set out in Annexure F to this judgment.
Mrs Bolton downloaded and read the post and the comment by Andrew Thaler. She took a screenshot of the post and comment at around 7:07 pm on 7 January. When she checked about an hour to hour and a half later that evening the comment by Mr Thaler was no longer on the page. She viewed Mr Thaler's profile and found he lived in Nimmitabel.
Ms Rook had shared the Sydney Morning Herald article with Mr Stoltenberg on his personal Facebook page. Sometime shortly after the post had been downloaded by Mrs Bolton, Mr Stoltenberg was "yelling out" to Ms Rook about a comment on the page. Ms Rook deleted the comment immediately.
On 7 January 2016, Ms Rook added a disclaimer on the Narri Leaks Facebook page stating that Narri Leaks did not tolerate foul language or misbehaviour or posts which were "defamatory".
In the September 2016 election, Ms Loder was elected as a councillor at Narrabri Shire Council. Mr Bolton did not stand as a candidate in that election.

[7]

Posts relevant to the claim for aggravated damages

It will be recalled that these proceedings were commenced by Mr Bolton in December 2015. Narri Leaks continued to post material about Mr Bolton after the commencement of these proceedings, including about these proceedings. On the evidence, Ms Loder had no involvement with any of these posts. Mr Stoltenberg was the publisher of each. The most important posts relied upon for the purposes of aggravated damages were as follows: 1. on 10 January 2016, Mr Stoltenberg posted to Narri Leaks a copy of an article about World Kidney Day. Mr Bolton, whose daughter suffers from a kidney illness, was quoted in the re-posted article. After a sarcastic reference to Mr Bolton and the Fit for the Future process, Mr Stoltenberg wrote "Pensioners , if you can't cope with the rates after the 26% increase, you could always sell a kidney"; 2. on 3 February 2016, Mr Stoltenberg posted to Narri Leaks an attack on Mr Bolton based on the Code of Conduct matters referred to at [19]; 3. on 7 April 2016, Mr Stoltenberg posted to Narri Leaks an entry which alleged that Mr Bolton had made an uninvited visit through a back door of a local woman's home which resulted in her being "berated" in front of her children. Ten people were alleged to have written statutory declarations about what they heard that night. I find that these allegations by Mr Stoltenberg were false. I accept Mr Bolton's evidence that the woman the subject of Mr Stoltenberg's post had refuted the claims in it. That woman, who Mr Bolton had known all of her life, had posted on the Narrabri Shire Council website thanking Mr Bolton for visiting her and explaining to her the process involved in getting play equipment installed in a local park; 4. on 25 May 2017, Mr Stoltenberg posted to Narri Leaks an entry which contained the following: "…[Mr Bolton has] chosen to drag a young mother of 4 through the courts for 2 years , to stop her speaking out against not the council finances , but due to her involvement with the anti-CSG [coal seam gas] group , "people for the plains."" 1. I accept Mr Bolton's evidence that coal seam gas and issues related to it did not have anything to do with his decision to litigate in these proceedings. 2. on 27 November 2017, Mr Stoltenberg posted to Narri Leaks an entry which contained a re-post of a Sydney Morning Herald article about Mr Don Burke, who was accused in the article of being a "psychotic bully" and a "misogynist". Mr Stoltenberg's post, immediately above a photograph of a smiling Mr Burke, contained the following (spelling and punctuation as in original): "There is a defamation case Cr Ann Loder is involved in next April and all the lawyers say she has nothing to worry about , the plaintiff will lose on the facts before the court, and get a hefty costs order against him. None the less , it's a good opportunity to clear the air a lot of other matters , iv have had numerous women talk to me about what has happened in the past. It would be good to bring it all out in the open , might prevent things like it happening again. Anyone effected , who feels this way might want to contact me or Ann , to just have a talk… A knock out would be nicer than a points decision , that's all". 1. on 28 November 2017, Mr Stoltenberg posted to Narri Leaks an entry with the heading "Is a bully as bad as a sleaze". That post contained the following: "Take away the sexual angle , imagine a person constantly being a bully to women , because he understood the imbalance in power his position and the women , imagine his goal was not sexual favours , but rather to intimidate the women into forcing them to do , or not do , things that helped him build his power base. Imagine a man not strong enough to stand over many other men at power who instead aimed for the more vulnerable in building his power base." 1. on 8 January 2018, Mr Stoltenberg posted to Narri Leaks an entry consisting of a photograph of Craig McLachlan and an article about allegations of sexual harassment allegations which had been made publicly in the Sydney Morning Herald against Mr McLachlan. Mr Stoltenberg also made specific reference to Harvey Weinstein, who was by then notoriously the subject of very serious allegations of sexual assault and abuses of power over a long international career. That post contained the following: "The Harvey Weinstein case shows even the most powerful bully can be brought to account if a handful of people find the courage to say enough and stand up. Are enough people going to stand up to Narrabri's most infamous bully and put an end to his reign ?"
Mr Bolton read all of these posts at or about the time they were posted. Mr Bolton said, and I accept, that these posts collectively made him feel that Narri Leaks was trying to misrepresent him in the community. I accept Mr Bolton's evidence that these Narri Leaks posts were deeply upsetting and affected him and his family in a significant way.
I should make it clear beyond any doubt that despite the confident and dismissive tone of Mr Stoltenberg's Narri Leaks posts, there was absolutely no evidence led before me of any conduct by Mr Bolton which could be described as bullying. I find that the allegations made against Mr Bolton in the posts described above were false.
From August 2016 until March 2018, Mr Stoltenberg relied on the defences of truth, honest opinion and fair report. Ms Loder adopted those defences from 1 November 2016. Mr Bolton said, and I accept, that the impact of knowing that the defence of substantial truth was proposed to be run for this period was significant, despite his knowing that Mr Stoltenberg's allegations were quite false.
I find that until Narri Leaks began Mr Bolton had enjoyed being part of the Narrabri community. He helped with many different things that are important to the community, and he was very proud that as Mayor he was able to get the Council back on to a good track with a solid performance and a good direction for the community. The impact of Narri Leaks was that Mr Bolton is now wondering why he took the trouble to help.

[8]

The pleaded imputations - relevant law

Mr Bolton must satisfy the Court, on the balance of probabilities, that the hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in the pleaded imputations: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [5]-[6]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [26]; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; [1982] HCA 4 at 506. The relevant meaning includes inferences and conclusions which the ordinary reasonable person draws from the words used. The ordinary reasonable reader may engage in a certain amount of "loose thinking": Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245.
Ordinary reasonable readers are persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind, nor avid for scandal. The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published. The context includes all the surrounding circumstances. The ordinary reasonable person is taken to have read the whole of an article and not just the headline or the particular portions of which complaint is made: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3 at 646.
Assertions about conduct which is potentially criminal or unlawful can carry many shades of meaning. At least three potential levels of meaning may be conveyed: that a person is guilty of criminal or unlawful conduct; that there are reasonable grounds to suspect that a person is guilty of criminal or unlawful conduct; and, that there are grounds to investigate whether a person is guilty of criminal or unlawful conduct. An allegation that a person has been charged with an offence or is under investigation does not necessarily impute that the person is guilty of the conduct, only that they are reasonably suspected of it: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50.
In Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1722 at [45] Brooke LJ (Rix LJ and Keene LJ agreeing at [67] and [68]) said: "The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act."
No doubt there are many other shades of meaning capable of being conveyed in a given case.
It must be determined, in respect of any imputation found to have been carried, whether the imputation is defamatory. In order to make a finding that a publication was defamatory a court must consider whether the allegedly defamatory material tends to lower the plaintiff's reputation in the minds of right thinking ordinary members of the community: Slatyer v Daily Telegraph Newspaper Co (1908) 6 CLR 1; [1908] HCA 22 at 7; Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171 at 172; Mirror Newspapers Ltd v World Hosts Pty Ltd at 638; Reader's Digest Services Pty Ltd at 505-506.

[9]

First matter complained of

The first matter complained of consists of a Narri Leaks post headed "Captain's Call" which begins with a link to s 349 of the Local Government Act 1993 (NSW) and excerpts of ss 349(1)(b) and (2)(b) of the Local Government Act, which provide that an appointment will be made with regard to: "The applicant who has the greatest merit." … "The abilities, qualifications, experience and standard of work performance of those persons relevant to those duties." The post subsequently includes the statements: "…to put a person previously in charge of a limited responsibility organisation in the hundreds of millions, does not automatically mean they will cope with a many faceted organisation, as a general purpose Council is." "…the people doing the picking, our Councillors, on the evidence, have not done a very good job of picking the best person on merit." "A view that has been voiced in some Councils , is that a Mayors "Captains Call", is a problem. The suggestion that a strong, long experienced GM who knows the ropes backwards and cannot be prevailed upon, may not be popular with a certain type of Mayor." "It is essential that the GM is picked according to the criteria set out in the act and not some other reason determined by a strong Mayor able to swing other Councillors to his point of view." "…in a close vote a Mayor is able to prevail on enough Councillors so as to pick a person other than the one deemed the best on merit. In other words we get yet another "Captains Call"."
The imputations pleaded about the first matter complained of are: 1. "The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by making a "Captains Call" to hire a weak and inexperienced General Manager that he could control"; 2. "The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by ignoring the recommendations of expert consultants hired by Council and instead prevailing on other councillors to pick a candidate on criteria other than merit"; 3. "The Plaintiff in his role as Mayor of Narrabri Shire Council corruptly favours candidates for the position of General Manager who are weak and inexperienced over those who are strong and experienced so he can engage a candidate he can dominate and exploit".
The hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in each of the first two pleaded imputations. The references to the Mayor's "Captain's Call" and "a certain type of Mayor" would be understood by the hypothetical ordinary reasonable reader to refer to the Mr Bolton. The specific links to the Local Government Act and the provisions about appointment would be understood by the hypothetical ordinary reasonable reader as an accusation that Mr Bolton had breached or was willing to breach the Local Government Act by making an appointment otherwise than on merit so that he could control that person. Each imputation is defamatory as it tends to lower the Plaintiff's reputation in the minds of "right thinking ordinary members of the community".
I reject Mr Stoltenberg's submission that the "Captains Call" refers to some hypothetical Mayor or a Mayor other than Mr Bolton. I reject the submission that an ordinary reasonable reader would not approach this on precisely the basis which is set out, namely, that Mr Bolton was willing to breach the Local Government Act by ignoring recommendations of expert consultants. The references in the post to the Local Government Act are otherwise inexplicable. The submission that Mr Stoltenberg set out the Local Government Act merely to tell readers that this is the standard that needs to be applied and "the standard we hope will be applied" has an air of unreality about it.
I reject the submission that the imputations pleaded are strained or unreasonable. It is not the case that the first and second imputations would only be understood in that way by someone avid for scandal. I reject the submission that the post is limited to a suggestion that information should be provided. The point of the post is that this breach of the Local Government Act is in the process of happening. The whole point of the post is that, present tense, "we get yet another "Captain's Call"".
In relation to the third imputation I do not accept that in the understanding of the hypothetical ordinary reasonable reader corruption is limited necessarily to "dishonesty" or to "personal gain" as was submitted by Mr Stoltenberg. The word "corruption" would be understood by the ordinary reasonable reader to be wide enough to encompass conduct forbidden by an Act of Parliament. In the context of allegations about the conduct of the Mayor it is wide enough to include conduct in breach of the Local Government Act. My reason for rejecting the third imputation is that I do not think that after reading the whole of the post, the hypothetical ordinary reasonable reader would understand that Mr Bolton had selected the new General Manager in order to dominate a weak and inexperienced person.

[10]

Second matter complained of

The second matter complained of consists of a Narri Leaks post headed "Again for the purpose of accurate facts…" which includes the statements: "It would be a fair question the ratepayers to ask, has he [Mr Todd] ever put a set of statements together on his own ? By way of his published resume and the staff structures on the 2 councils he has worked at, not only has he never acted as a GM , he has never been a director. From these documents he has never supervised a significant number of staff. Again, sticking to the facts, could the Mayor point out exactly what made a 36 yr old who had not even ever held the position of Finance Manager stand out ? I know there was at least 1 very experienced GM in the field , but I have heard there may have been more than one experienced GM , and Mr Todd was in fact the least experienced by a long way of the candidates. This last assumption simply due to the fact anyone with such a limited LG experience in councils would almost never apply in the 1st place. My Mayor, like that famous day at Eagle Farm racecourse in August 1984, Fine Cotton, the rate payers are lining the fence yelling, "RING IN"." … "To most readers it would seem the local government act has been breached, in that the job has not been awarded on Merit as required by the act." … "It would seem there should be an independent enquiry by either the ombudsman, the department of local government or ICAC…"
The imputations in the second matter complained of are: 1. "The Plaintiff, in his role of Mayor of Narrabri Shire Council, acted corruptly by favouring a grossly unqualified candidate for the position of General Manager of Council in preference to vastly more experienced candidates"; and 2. "The Plaintiff in his role of Mayor of Narrabri Shire Council, breached the Local Government Act by awarding the position of General Manager of Council on criteria other than merit".
I find that the hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in the second pleaded imputation. The specific assertion that "it would seem the Local Government Act has been breached, in that the job has not been awarded on Merit", despite being couched as appearing "to most readers", would plainly be understood by the hypothetical ordinary reasonable reader as an accusation that the Mayor of Narrabri had breached the Local Government Act by making the appointment of Mr Todd otherwise than on merit. That imputation is defamatory as it tends to lower the Plaintiff's reputation in the minds of "right thinking ordinary members of the community".
I was initially attracted to the proposition that the first imputation had also been established. The hypothetical ordinary reasonable reader would, I had initially thought, have understood the reference to Fine Cotton and "ring in" as referring to the notorious attempt to pass off a better racehorse, Bold Personality, as one known as Fine Cotton. The "Fine Cotton affair" is a phrase associated with corrupt and incompetent conduct. To have switched a racehorse, only to have a large group of punters line the fence yelling "ring in, ring in" as the horse was brought back to scale, bespeaks both fraud and incompetence. Those elements, the seriousness of the crime and the comically ill-conceived conspiracy, whereby punters did indeed line the fence at Eagle Farm yelling "ring in" as Bold Personality was being brought back to scale, were clearly understood by me, and no doubt Mr Stoltenberg, as alleging that Mr Bolton as Mayor acted corruptly in favouring a grossly unqualified candidate for the position of General Manager of Council in preference to vastly more experienced candidates.
I am ultimately persuaded, however, that Ms Chrysanthou was correct when she characterised my knowledge of the Fine Cotton "ring in" as specialised knowledge, not possessed by the hypothetical ordinary reasonable reader. That conclusion is supported by the decision of McCallum J in an earlier phase of this case who concluded that the ordinary reasonable reader would not necessarily know about the Fine Cotton incident.

[11]

Third matter complained of

The third matter complained of consists of the Narri Leaks post headed "Again for the purpose of accurate facts…" (the second matter complained of) together with the comments set out below. The relevant comments made on the post were: Ann Loder: "…Anyone else agree about getting ICAC and The Minister for local government involved need to like this post. We need to let Council know we are serious and are not going to be intimidated by them." NARRI LEAKS: "It looks pretty obvious, council chose the least experienced of those interviewed, the least on merit. Why did they spend all the money on the consultant if they were not going to take any notice of him ? There is no way the consultant would have recommended a person who had not even had prior experience as a director, let alone GM. This man has less experience than many of councils mid level managers." Ann Loder: "Lyn, its not about who didn't get the job, but it is about who did. We know there were 4 candidates interviewed for the position. 1 was the successful applicant, 1 was Greg, another was a guy who is currently employed as a GM and unfortunately I don't know anything about the 4th applicant, so I can't comment about him. If we took Greg out of the equation, there is still at least one other candidate that has more experience as a GM than the one that actually got the job. The complaint here is that the Councillors are required by law to choose the best applicant for the job. There were at least 2 of them that had far more experience than the one chosen, and one of them has a legal background and is strong in finance. To me this sounds like Council was worried that the other two candidates may have too much experience and wanted someone that would have to learn the ropes first before they could get their teeth into the job." Jeff Stoltenberg: "Ring in, Ring in" NARRI LEAKS: "Council has snubbed its nose at the community and put on yet another L plater, to further what ever its secret agenda is." NARRI LEAKS: "In this instance, it looks like rather than properly experienced people giving Narrabri a wide birth for its many problems, it looks like at least 2 and possibly 3 , properly experienced people did apply, but the council managed to find the only applicant who did not have experience as a director." NARRI LEAKS: "A first question at least the Mayor should come out and answer is did all the other applicants have experience as a director at least , and how many had experience as a GM. If the Mayor is not prepared to at least reveal that then alarm bells should be going off."
The imputations in the third matter complained of are: 1. "The Plaintiff, in his role as Mayor of Narrabri Shire Council acted corruptly by favouring a grossly unqualified candidate for the position of General Manager of Council in preference to vastly more experienced candidates"; 2. "The Plaintiff in his role of Mayor of Narrabri Shire Council, breached the Local Government Act by awarding the position of General Manager of Council on criteria other than merit"; 3. "The Plaintiff, in his role as Mayor of Narrabri Shire Council, breached his duties by deliberately rejecting experienced candidates for the position of General Manager of Council in favour of a worse and inexperienced candidate, so that he would not be challenged by a competent General Manager".
I find that the hypothetical ordinary reasonable reader would not understand the matter to have the meaning articulated in the first pleaded imputation. I have earlier explained that I accept that my knowledge of what was no doubt intended by the comment "Ring in, Ring in" would not be understood by the hypothetical ordinary reasonable reader as a reference to the Fine Cotton affair. It is only that link which would lead the hypothetical ordinary reasonable reader to conclude that it was being alleged that Mr Bolton had acted corruptly.
I find that the hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in the second pleaded imputation. The comments about the appointment are made immediately below the post which asserts that "[t]o most readers it would seem the local government act has been breached, in that the job has not been awarded on Merit as required by the act". The commentary plainly flows on from that assertion and would be understood in that way.
I find that the hypothetical ordinary reasonable reader would also understand the matter to have the meaning articulated in the third pleaded imputation. The hypothetical ordinary reasonable reader would understand that by reference to the appointment of an "L plater", the appointed candidate was a worse and less experienced candidate. The reference to a "secret agenda" makes clear that the appointment was a deliberate and potentially sinister act by the Council. The last comment, in context, plainly asserts that the successful candidate does not know what he is doing and that other more experienced candidates missed out on selection. The hypothetical ordinary reasonable reader would understand that it was being asserted that "the Mayor" had deliberately appointed an inexperienced candidate and had rejected experienced candidates so as not to be challenged by those candidates.
Each imputation which is conveyed is defamatory as it tends to lower the Plaintiff's reputation in the minds of "right thinking ordinary members of the community".

[12]

Fourth matter complained of

The fourth matter complained of consists of the Narri Leaks post headed "The carton [sic] below". The post includes the following statements: "Narri Leaks is in possession of information that when put on the table, could only lead a logical reader to believe the process had been deliberately corrupted. We are not going to disclose that here, the ratepayers executive team of 6 is working, with a solicitor, on an ICAC submission, that will present information over a 3 year period, that will show a pattern of leadership style that serves to silence the interchange of ideas and diversity of views, in some instances, the methods used we believe breach a number of laws, not just the local government act. Specifically we want to look into examples of , blurring of facts, misleading statements, coercion and outright intimidation to suppress a plural view of matters of council. We are talking instances were those improperly silenced may have been employees, contractors, residents and even elected councillors. Gloves are off, no claims here, no comments asked for or will be given to this post. The place for that hopefully will be a full ICAC enquiry into the activities of Narrabri Shire Council, the full term of this current council. We already have numerous matters emailed by readers, of alleged improper practice. Rather than a half baked ICAC complaint that leads nowhere , the association intends to put all the pieces of the jigsaw puzzle together so that a single detailed complaint is made to ICAC." "You elected 12 councillors to represent you, not 1."
The imputations arising from the fourth matter complained of are: 1. "The Plaintiff in his role of Mayor of Narrabri Shire Council deliberately corrupted the selection process for the General Manager for Council"; 2. "The Plaintiff in his role of Mayor of Narrabri Shire Council, over a three year period, breached a number of laws including [the] Local Government Act, in his effort to silence the interchange of ideas and the diversity of views on Council"; 3. "The Plaintiff in his role of Mayor of Narrabri Shire Council told deliberate lies and engaged in coercion and intimidation of employees, contractors, residents and elected councillors in his effort to suppress the views of others on Council matters"; and 4. "The Plaintiff's corrupt, dishonest, and intimidatory actions as Mayor of Narrabri Shire Council, warranted a full ICAC inquiry".
I find that the hypothetical ordinary reasonable reader would understand the matter to convey the meaning articulated in the first pleaded imputation. The starting point of the post, that "Narri Leaks is in possession of information that when put on the table, could only lead a logical reader to believe the process had been deliberately corrupted" is an accusation, in terms, that the process of selection of the General Manager of Narrabri Shire Council was corrupt. That it was Mr Bolton who was alleged to be the person who had corrupted the process is clear, particularly from the reference in the second paragraph to "a pattern of leadership style" and in the last line to "you elected 12 councillors to represent you - not 1".
I find that the hypothetical ordinary reasonable reader would understand the matter to convey the meaning articulated in the second pleaded imputation. The post contains specific allegations about breaches of laws, including the Local Government Act. The conduct alleged is said in terms to "show a pattern of leadership style that serves to silence the interchange of ideas and diversity of views". The hypothetical ordinary reasonable reader would understand the imputation to be made out. Plainly, the hypothetical ordinary reasonable reader would understand the allegations to be addressed to the Mayor.
I find that the hypothetical ordinary reasonable reader would understand the matter complained of to convey the meaning articulated in the third pleaded imputation. The imputation would be understood by the hypothetical ordinary reasonable reader to arise from the allegation that there was a "pattern of leadership style that serves to silence the interchange of ideas and diversity of views, in some instances, the methods used we believe breach a number of laws, not just the local government act", together with the allegations of "misleading statements, coercion and outright intimidation to suppress a plural view of matters of council". As I have found, these matters, in context, would be understood by the hypothetical ordinary reasonable reader to relate to the Mayor.
I find that the hypothetical ordinary reasonable reader would understand the matter to convey the meaning articulated in the fourth pleaded imputation. The matter complained of contains allegations which are, almost in terms, allegations in the terms of the pleaded imputations. The hypothetical ordinary reasonable reader would understand those to be allegations that the Mayor had acted in a way which was corrupt, dishonest and intimidatory.
Each imputation is defamatory as it tends to lower the Plaintiff's reputation in the minds of "right thinking ordinary members of the community".

[13]

Fifth matter complained of

The fifth matter complained of consists of the Narri Leaks post headed "The councils IPART submission…" from 18 July 2015 and appended comments. The post includes the following statement: "Ken Flower is the current salaried GM of the LLS board, chosen by the Board Mayor Conrad Bolton is chair of."
Appended to the post are the following comments: NARRI LEAKS: "To save readers the trouble of going to councils website, we have printed the last 5 years here. All figures in Narri Leaks come from councils own published documents. That's why the council remains silent and the shy 7 , that includes Cr Flower and Mayor Bolton, will not meet with the Ratepayers and Residents." Cheryl-Lee Holcombe: "Is it legal to knowingly provide IPART with figures that are wrong?" NARRI LEAKS: "Cheryl-Lee Holcombe hope that makes it clear, just google ICAC, section 8 (1) , I would say putting up information that was knowingly false would be covered by parts a,b,c & d below - the quadrell ! If the Mayor and Chairman of the Finance committee were to claim they didn't know before , perhaps that's true, but they are both known to read Narri Leaks , so they can hardly claim they don't know about the unexplained $19 million now, given we have just posted the councils relevant sections of the last 5 published audited statements obtained from councils own web site. The application for the reduced rates hike is still going to IPART , is still in the councils Fit For Future submission. If they let it go forward from this point, what do the readers think ? Corrupt under the definition below from ICAC or not ? If this is the case, all 11 councillors will be caught up in it, as elsewhere on the ICAC website it states public officials have an obligation to report when they suspect corrupt conduct, if they didn't all know about it before , they will now it's posted on here as they all read Narri Leaks." NARRI LEAKS: "But to answer you question is it illegal to provide false information ? The ICAC section below seems pretty clear."
The imputations said to arise from the fifth matter complained of are: 1. "The Plaintiff, in his role as Mayor of Narrabri Shire Council engaged in corrupt conduct by providing the Independent Regulatory and Pricing Tribunal (IPART) with information he knew to be false"; 2. Alternatively to (1), "The Plaintiff, in his role as Mayor of Narrabri Shire Council engaged in corrupt conduct by failing to correct information he provided to IPART after he knew that information to be false"; 3. "The Plaintiff, in his role as Mayor of Narrabri Shire Council acted illegally by providing the IPART with information he knew to be false"; 4. Alternatively to (3), "The Plaintiff, in his role as Mayor of Narrabri Shire Council acted illegally by failing to correct information he had provided to the IPART after he knew that information to be false; 5. "The Plaintiff in his role as Mayor of Narrabri Shire Council knew and did not reveal that Councillor Ken Flower, the chairman of the finance committee, had falsified the Council's books".
I reject Mr Stoltenberg's reliance upon the New Zealand High Court's description of what "corruption" means: Wishart v Murray [2013] 3 NZLR 246; [2013] NZHC 540 at [24]. The hypothetical ordinary reasonable reader would understand that references to ICAC were references to a standing commission on corruption. Any reader of this post would have understood that corruption did not have the limited meaning attributed to it in New Zealand.
I find that the hypothetical ordinary reasonable reader would understand the matter to convey the meaning articulated in the first pleaded imputation. I find that the hypothetical ordinary reasonable reader would understand the post to convey the meaning that Mr Bolton had knowingly provided false information to IPART, in particular the statement "I would say putting up information that was knowingly false would be covered by parts a,b,c & d below - the quadrell[a]" (being a winning bet which identifies the winner of four separate races). The allegation of falsity of the information provided is explicit. The accusation of knowledge is explicit: by reason of reading Narri Leaks "they can hardly claim they don't know about the unexplained $19 million". The hypothetical ordinary reasonable reader would clearly understand that Mr Bolton was being accused of knowingly providing false information to IPART. This imputation is defamatory as it tends to lower the Plaintiff's reputation in the minds of "right thinking ordinary members of the community".
Given this finding, it is unnecessary to address the alternative imputation, imputation two.
I find that the hypothetical ordinary reasonable reader would understand the matter to convey the meaning articulated in the third pleaded imputation. The hypothetical ordinary reasonable reader would understand that an accusation was being made that Mr Bolton had provided IPART with information he knew to be false. That it was being suggested that the Mayor had acted illegally is inescapable. The reader is asked to "google" the Independent Commission Against Corruption Act 1988 (NSW) and the view is expressed by Mr Stoltenberg that the false provision of information is a breach of each limb of the definition of corrupt conduct. This imputation is defamatory as it tends to lower the Plaintiff's reputation in the minds of "right thinking ordinary members of the community".
Given this finding, it is unnecessary to address the alternative imputation, imputation four.
I find that the hypothetical ordinary reasonable reader would understand the matter to convey the meaning articulated in the fifth pleaded imputation. The essence of the imputation, that Mr Bolton had knowingly provided false financial information to IPART, is conveyed. The allegation that, in effect, Mr Bolton and Mr Flowers are jointly and severally liable for this conduct is explicit. The hypothetical ordinary reasonable reader would understand the pleaded imputation to be conveyed. This imputation is defamatory as it tends to lower the Plaintiff's reputation in the minds of "right thinking ordinary members of the community".

[16]

Publication by Mr Stoltenberg

The tort of defamation requires evidence of publication, or communication, of the defamatory material to a third party who comprehends it, causing harm to the reputation of the defamed: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25]-[26]; Sims v Jooste (No 2) [2016] WASCA 83 at [8]-[12]. In an action for defamation involving online material, publication is established through evidence that a third party downloaded and read the material: Dow Jones & Co Inc v Gutnick at [26] and [44]. Publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference that material has been downloaded can properly be drawn. The mere fact of posting material online does not lead to an inference that it has been downloaded: Sims v Jooste (No 2) at [18]-[20].
Mr Stoltenberg was the author of the first to fifth matters complained of. As I have said, the sixth matter complained of need not be considered further. Mr Stoltenberg submitted that whilst it was clear that he was responsible for uploading each of the matters complained of to the internet via the Narri Leaks Facebook page, Mr Bolton had not proven that any one person had downloaded and read any of the matters complained of.
The conclusion that the mere fact of posting material online does not lead to an inference that it has been downloaded does not avail Mr Stoltenberg in this case.
The first and fundamental building block of Mr Stoltenberg's argument on this issue is found in an exchange of particulars. That exchange does not have the effect contended for by Mr Stoltenberg.
On 25 January 2016, the then-solicitors for Mr Stoltenberg, Newhouse Lawyers, wrote to Mr Bolton's solicitors as follows: "Objections to Statement of Claim … 2. In relation to each of the First, Second, Third and Fourth matters complained of, because the plaintiff is not named, you are required to comply with Rule 15.19(1)(d) UCPR and to provide particulars of the name and address of at least one person who read each matter complained of, in each jurisdiction sued (which is pleaded as each State and Territory) and who identified the plaintiff."
On 1 February 2016, Bell and Johnson Solicitors replied to the letter from Newhouse Lawyers as follows: "As to paragraph 2 we do not agree that such particulars are necessary. In a situation where a Facebook page, set up with the express purpose of exposing misfeasance in a local shire, then refers to the "Mayor" the notion that the plaintiff needs to particularise or call witnesses who read the matters and knew the Mayor's surname, seems to say the least, unnecessary. Indeed, even if such readers didn't know the Mayor's surname (perhaps unlikely amongst the readership of such a page in a small town) the plaintiff would still be defamed."
The critical words in this response seized upon by Mr Stoltenberg are contained in the parenthetical comment that it was "perhaps unlikely amongst the readership of such a page in a small town" that readers of Narri Leaks would not know Mr Bolton's surname. From this parenthetical statement, which is part of an explanation about why Mr Bolton was refusing to provide the particulars which had been sought, Mr Stoltenberg seeks a finding that Mr Bolton has particularised his case as being one which does not rely on the evidence of any person that he or she downloaded and read the matters complained of. A related submission was made that Mrs Bolton could not give evidence that she downloaded and read the matters complained of as she had not been identified in this response to the request for particulars.
I reject these submissions.
UCPR Rule 15.19(1) provides: "(1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following: (a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified…"
UCPR Rule 15.1(1) provides: "(1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet."
Mr Stoltenberg's case in this respect also relied heavily upon the decision of Hunt J in Lazarus at 192. It was submitted that, in cases not involving mass media, a plaintiff must provide particulars of the persons to whom publication was made. What Hunt J actually said was: "(193) … the rule, as I have sought to express it, that, in both oral and written defamation cases, particulars should be supplied of the identity of the persons to whom the publication is alleged to have been made when that identity is relevant to either the plaintiff's or the defendant's case. That identity will usually be relevant in oral defamation cases and in written defamation cases where it is not published in the mass media; but that identity will not usually be relevant in mass media cases."
The next step in the argument is that a publication on a Facebook page is not equivalent to a "mass media" case for the reason given by Hunt J: "(192)-(193) On the other hand, the newspaper defendant in a written defamation case could hardly require the plaintiff to identify the readers of its newspaper. In this category, I include radio and television station defendants and their listeners and viewers respectively. This is not, as is sometimes suggested, because the identity of the readers, listeners or viewers is a matter already within the defendant's knowledge; it is because the defendant does not have to meet any case based upon the precise identity of its readers, nor does it need to know that precise identity for any purpose in relation to its own defence. The plaintiff in his case will be relying upon the width or the unrestricted nature of publication, not upon the precise identity of the persons to whom it was made, and similarly the defendant will stand or fall in relation to his defences upon the width of the publication and not upon the precise identity of the persons to whom it was made… ."
Hunt J made clear in the remainder of that paragraph that the "rule" he was describing about mass media defendants was not a universal one and that particulars in such cases could be ordered on some occasions.
Everything that Hunt J said in Lazarus may readily be accepted. It may be (although there is no issue before me in this case and I do not need to decide the question) that if a request for further and better particulars of identification or publication had been made by Mr Stoltenberg in a timely way a court may have been persuaded to order such particulars. There was no such application.
In the answer relied upon, Mr Bolton's solicitors were refusing to provide the particulars of identification sought. The answer to particulars did not identify the persons to whom the Facebook page had been published, much less identify a community of interest for the purposes of Mr Stoltenberg's common law qualified privilege defence.
Mr Bolton's pleading of publication was, in this respect, unqualified. The pleading was in the Further Amended Statement of Claim filed 3 June 2016. In relation to the first matter complained of, which was relevantly identical to the pleading about the other matters complained of in this respect, the pleading asserted that on or about 15 June 2015 the First and Second Defendants published on the Narri Leaks page a posting of and concerning the Plaintiff in the form of the first matter complained of.
Particulars of publication were given. The First Defendant was identified as the author of the first matter complained of. It was averred that the First and Second Defendants operated the Narri Leaks site and were members of the committee that published Narri Leaks. It was averred that the first matter complained of was made available for download by the First and Second Defendants in each state and territory in Australia from on or about 15 June 2015 on Narri Leaks.
Critically, it was averred that "the first matter complained of was in fact downloaded and read in each of the states and territories of Australia". That averment was never further particularised and no application was made by Mr Stoltenberg for further and better particulars of that issue.
I also reject Mr Stoltenberg's submission that Mr Bolton is precluded from relying upon publication to Mrs Bolton of each of the matters complained of. Such publication was within Mr Bolton's pleading. Publication to the plaintiff is not publication for the purposes of the tort of defamation: Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 367. I accept that this includes publication to an agent of the plaintiff: Sims v Jooste (No 2) at [9].
This conclusion does not avail Mr Stoltenberg here. I find that on the evidence, Mrs Bolton was not "directed to the alleged defamatory material by the Plaintiff". It was she who first drew Mr Bolton's attention to the Narri Leaks site. Far from directing Mrs Bolton to read and download material from Narri Leaks, Mr Bolton was anxious that his wife and daughter spend less time looking at the site, or better still, not engage with it at all. Mrs Bolton was not, on the evidence, the agent of Mr Bolton.
In any event, in cases involving online publication a plaintiff is entitled to rely on a platform of facts from which inferences of downloads can properly be drawn in order to establish publication. There are, in the present case, abundant facts from which the inference that each of the matters complained of was downloaded and read can properly be drawn. I have concluded that each of the matters complained of was published in the sense that it was downloaded and comprehended by a third party (in addition to Mrs Bolton). The evidence I rely upon in particular in reaching this conclusion is as follows.
First, interrogatories provided by Mr Stoltenberg. Interrogatory 95 states: "Question: Look at the document and extend marked "A" being an excerpt of the Narri Leaks Facebook page from 17 June 2015 and in particular the second paragraph commencing with the words "we were at 9800 people". Please state the source for the figures listed in that paragraph. Answer: 9800 was a number of hits the Narri Leaks Facebook page received in the first week."
I infer that Mr Stoltenberg answered this interrogatory with the assistance of his legal advisors. I find that a "hit" is the number of times that the Narri Leaks Facebook page was downloaded and viewed during that week.
Interrogatory 97 relevantly states: "Question: …for the period June 2015 to January 2016 please specify the actual and/or estimated number of readers of the Narri Leaks website, specifying the source of any numbers. Answer: The only indicator is the weekly data report on Facebook and depending on the story shared the number varied between 5000 and up to 35,000."
This answer was an admission as defined in the Dictionary in the Evidence Act 1995 (NSW). It is a previous representation made by a party, Mr Stoltenberg, and it is adverse to Mr Stoltenberg's interest in the outcome of the proceeding. The opinion and hearsay rules do not apply to evidence of an admission: s 81 Evidence Act.
Facebook posts made by Mr Stoltenberg are replete with references to the wide readership of Narri Leaks. Each of those posts contains admissions to which the hearsay and opinion rules do not apply.
On 17 June 2015, Mr Stoltenberg stated "the new Ratepayers assoc has since Monday been running a Facebook page called Narri Leaks…from a zero start, the [Facebook page] has had 10,000 hits in 2 days."
Also on 17 June 2015, Mr Stoltenberg wrote "we are at near 11,000 hits , we're now being watched not just by all over the shire , but all over the country , in our 3rd day of existence" (emphasis added). As will become apparent, this is a significant admission by Mr Stoltenberg in the context of his common law qualified privilege defence.
Also on 17 June 2015, Mr Stoltenberg wrote that: "We were at 9800 people last night , at 11000 by 2 pm , got to 12,000 by 7pm , then the footy buggered us , stalled at 12,258… Thanks to all the people emailing in material Narrileaks@gmail.com… Had 30 emails this afternoon… We are now getting a lot of inboxing people who want to talk not in public on the open page…"
On 2 July 2015, Mr Stoltenberg wrote: "This page had 21,000 hits in its first 10 days, but we were fudging a bit, not only posting all manner of embarrassing dirty laundry of counsel to draw attention, but We did spend about $400 "boosting" posts all over the state for all the second week. Not doing either now, because we really do have 719 locals who hit like page to follow and get each post… In Narrabri Shire, we only have about 6000… So about 12% of all councils ratepayers are actively watching. Our total reach is 2414… They are mostly local… Anyone who has a legitimate complaint, post it here, big chunk of the Shire , nearly every third adult , will see it." (emphasis added)
This post refers to the period during which the second and third matters complained of were uploaded to Facebook by Mr Stoltenberg. The admission contained in the post is that "we" (which I infer is in fact Mr Stoltenberg) paid $400 to promote posts via Facebook's algorithm, making them more visible to a wider audience. Further, Mr Stoltenberg himself states that "719 locals … get each post". I infer that to access the posts made on the Narri Leaks site it was necessary only to like the site and posts by Narri Leaks, which I find were posts under that title uploaded by Mr Stoltenberg, would automatically appear in a Facebook news feed without any separate step being required. I infer that Mr Stoltenberg's reference to 719 locals who get each post is a clear admission that by 2 July 2015 there were 719 people in the position Ms Loder explained she was in who would automatically get each Narri Leaks post in their Facebook news feed without visiting the Narri Leaks Facebook page.
So far as Mr Stoltenberg's reference to reach is concerned, it was submitted that I was unable to take this matter into account as there was no evidence of what "reach" meant. I reject that submission. There is evidence, from Mr Stoltenberg himself, that the "reach" figures provided in the Facebook business records which were tendered, are capable of demonstrating, at least in a broad way, the numbers of people who had access to Narri Leaks posts on the Facebook page.
In any event, I have drawn inferences from the face of the Facebook business records under section 183 of the Evidence Act. Those records lead me to draw the inference that Facebook records separate interactions between a device connected to the internet and posts on the particular Facebook page, here Narri Leaks, and that those figures are reflected in the business records tendered. I infer from the business records tendered that in the context of a post, the "reach" of the post records the number of people Facebook has recorded as having viewed the post.
On 13 January 2016, Mr Stoltenberg posted that "not quite 20,000 people have read Narri Leaks this week… Again we thank our supporters who keep hitting that magic share button to get the message out there". This evidence about the "share button" takes on significance in the context of the business records which show Facebook records "likes… comments and shares" in relation to each of the matters complained of.
On 18 June 2016, Mr Stoltenberg wrote "…I decided to try embarrassing him into positive action… The only way to really hurt was have a lot of readers , so Iv put all sorts of stuff on Narri Leaks… It's worked , we had 25,000 readers last week. That's the only way to make a difference , exposure. It's very embarrassing to the Mayor for thousands to read…" (emphasis added).
The emboldened passage above is relevant as it is an admission in relation to publication and also in relation to Mr Stoltenberg's common law qualified privilege defence.
The Facebook activity logs were eventually tendered without objection. It was submitted that I should give those logs little if any weight because of the absence of expert evidence from Mr Bolton's camp about their meaning. I do not accept that submission. There is evidence, particularly admissions by Mr Stoltenberg himself, that the inference I would otherwise have drawn under s 183 of the Evidence Act about those records is correct. That inference is that each of the matters complained of was downloaded and read by numerous third parties. I have earlier rejected the attempt by Ms Rook and to a lesser extent by Ms Loder to explain or qualify the meaning of those records.
The Facebook activity logs provide cogent evidence of publication of each of the matters complained of. I more comfortably draw that inference in the absence of Mr Stoltenberg being called to give evidence to explain or qualify that evidence. Mr Stoltenberg's evidence could not have assisted his case on this issue.
Those business records establish the following: 1. in respect of the first matter complained of, Facebook recorded a "reach" of 661 and "likes, comments and shares" of 83; 2. in respect of the second and third matters complained of, Facebook recorded a "reach" of 797 and "likes, comments and shares" of 124; 3. in respect of the fourth matter complained of, Facebook business records demonstrate over the relevant week 26 June to 3 July 2015 Narri Leaks having a "total reach" of 2414 and "total page likes" of 719 and 499 described as "people engaged"; 4. in respect of the fifth matter complained of, Facebook records show a "reach" of 1900 and "likes, comments and shares" of 157.
This evidence in and of itself does not prove that a particular person downloaded and read each of the matters complained of, but it is cogent evidence forming part of a platform of facts from which an inference that material has been downloaded and read can properly be drawn.
An additional part of the platform of facts I take into account is evidence of readership of Narri Leaks given by Mrs Bolton that people from Queensland, Wellington, Adelaide and Singleton had spoken to her indicating they had read items on the Narri Leaks website. Mr Webb gave evidence, which I accept, that the Narri Leaks website was discussed at local government conferences outside the Narrabri Shire at a state and national level, including a particular mayoral function on the Gold Coast.
On the basis of the platform of facts I have described, I infer that each of the matters complained of was published by Mr Stoltenberg, in that the material which he admits he uploaded was downloaded and viewed by third parties.
Even without this abundant evidence I would have in any event drawn the conclusion that each of the six matters the subject of complaint were published in the legal sense based on the evidence of Mrs Bolton alone. Mrs Bolton downloaded and read each of the matters the subject of complaint. She did not do so as Mr Bolton's agent. That is enough to prove publication in the legal sense.
I find that each of the six matters complained of was published by Mr Stoltenberg.

[17]

Publication by Ms Loder

The case against Ms Loder is quite different. I have earlier found that Mr Stoltenberg was the author of each of the matters complained of and responsible for uploading the content to Narri Leaks.
The first issue is the breadth of the pleading of publication against Ms Loder. At the trial Mr Bolton relied upon two ways of proving publication against the Second Defendant. The first, which was not controversial, was that Ms Loder was liable for publication by reason of her subsequent endorsement or adoption of the Narri Leaks posts which were published by Mr Stoltenberg.
The second way Ms Loder was alleged to be liable for publication was controversial. This was the allegation that Narri Leaks was operated by the Narrabri Shire Residents and Ratepayers Association of which Ms Loder was the chair. The Narrabri Shire Residents and Ratepayers Association was only incorporated under the Associations Incorporation Act 2009 (NSW) in June 2016. I find that there was an unincorporated association styled the Narrabri Shire Residents and Ratepayers Association as and from June 2015.
My finding is that the second way Mr Bolton put the case before me was within the pleaded case. I have earlier set out the pleading in the further Amended Statement of Claim filed 3 June 2016 on this issue. In relation to the first matter complained of, which was relevantly identical to the pleading about the other matters complained of, the pleading asserted that on or about 15 June 2015 the First and Second Defendants published on the Narri Leaks page a posting of and concerning the Plaintiff in the form of the first matter complained of.
Particulars of publication were given. The First Defendant was identified as the author of the first matter complained of. It was specifically averred that the First and Second Defendants operated the Narri Leaks site and were members of the committee that published Narri Leaks. It was averred that the first matter complained of was made available for download by the First and Second Defendants in each state and territory in Australia from on or about 15 June 2015 on Narri Leaks.
I will first address the claim that Ms Loder is liable for publication of the matters complained of by reason of her subsequent endorsement or adoption of the Narri Leaks posts which were published by Mr Stoltenberg. As Isaacs J stated, "[A]ll who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication": Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 at 364. This principle extends to those who encourage or authorise a primary author: Ives v The State of Western Australia [2010] WASC 339 at [7]; Kenyon v Sabatino [2013] WASC 76 at [14]-[17]; Watts v Times Newspapers Ltd [1997] QB 650 at [60]-[63]; Brown on Defamation (2nd ed) at [7.2].
A party may be a secondary participant and have responsibility for the continued publication of defamatory material where they consented to, approved of, adopted, promoted or ratified the defamatory material: Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 at 69,193; Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130 at [130]-[133]; Rana v Google Australia [2013] FCA 60 at [51]; Visscher v Maritime Union of Australia (No 6) at [20], [22], [29]; Wishart v Murray.
Liability as a secondary publisher for failure to remove defamatory material requires that there be a failure to take advantage of an opportunity to remove the allegedly defamatory material which failure shows consent, approval, adoption or promotion of the presence of the statement: Google Inc v Duffy at [131]; Urbanchich v Drummoyne Municipal Council at [7]; Byrne v Deane [1937] 1 KB 818; Rana v Google Australia at [51]; Visscher v Maritime Union of Australia (No 6) at [29].
This requires proof that the defendant is aware of the existence of the defamatory material, had been requested to remove it, had the ability to remove it and had failed to remove it within a reasonable period, leading to the inference that the defendant accepted responsibility for the continued publication of the defamatory material: Frawley v New South Wales [2006] NSWSC 248 at [15].
If by words or conduct a person draws the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication. In Google Inc v Duffy, Kourakis CJ said: "[133] There is a connection between the concept of consent, approval and adoption postulated in Urbanchich and the concept of authorisation explained by Gaudron J in Thompson. Consent, approval or authorisation to display defamatory material, if given in advance, will generally render the owner or occupier of the property a publisher and primary participant. Positive acts which demonstrate approval, adoption or promotion of the presence of publication, at least if publically communicated, will serve to make the building owner or occupier liable as a participant in the publication. Approval, adoption or promotion cannot practically be given without knowledge of the presence of defamatory material, and by reason of that knowledge the building owner or occupier may be liable either as a publisher depending on the particular act, or as a secondary participant in the publication of another. Adding to the poster in a way which highlights it or points it out may be an act of authorisation which attracts liability. If one by words or conduct draws the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication: Hird v Wood (1894) 38 Sol J 234. Practically, the drawing of attention to a defamatory statement cannot occur without the person knowing, or being in a position to know, of the presence of the defamatory material in what is being pointed out."
Ms Loder was not involved in drafting or posting the first matter complained of. Ms Loder "liked" the post. Ms Loder did not physically visit the Narri Leaks Facebook page to see this post, but it came up in her Facebook news feed. Ms Loder says, and I accept, that she "liked" this post because she was taking an interest in local government.
In the period June and July 2015, Ms Loder "liked" 64 posts on the Narri Leaks site. No authority was drawn to my attention which establishes that clicking the "like" button on a Facebook page constitutes a level of endorsement of the publication to render the person liable as a publisher. I do not regard "liking" a Facebook post, of itself, as analogous to conduct of the kind described by Kourakis CJ of "drawing the attention of another to defamatory words…[resulting in] primary, or at least secondary, participation in the publication". "Liking" a post is not, at least on the limited evidence before me, the same as hyperlinking a defamatory article in the way the operator of the website was found to have done in Visscher v Maritime Union of Australia (No 6).
Ms Loder did not draft or upload to the Facebook page any of the Narri Leaks posts. She was not involved in any matter complained of save in respect of comments added to a post. Ms Loder said, and I accept, that she did not know Mr Stoltenberg was going to post any of the matters the subject of complaint before they were posted.
Ms Loder's comment, which is part of the third matter complained of, is in a different category. On 27 June 2015, Ms Loder wrote: Ann Loder: "…Anyone else agree about getting ICAC and The Minister for local government involved need to like this post. We need to let Council know we are serious and are not going to be intimidated by them." (emphasis added)
The comment is a specific endorsement of the second matter complained of. It is plain that Ms Loder's comment, together with the second matter complained of, was downloaded and read by others. So much is apparent from the comment stream itself which forms part of the third matter complained of. This comment falls squarely within the class of conduct Kourakis CJ described in Google Inc v Duffy as secondary participation in publication.
My finding is that Ms Loder has, by words and conduct in this instance, drawn the attention of another to defamatory words. Adding her comment in the way she did, urging others to express their agreement with the post I have found to convey a defamatory imputation, was an act of authorisation which attracts liability. She thereby is liable for the second matter complained of. There has been participation in the relevant sense in the publication of the second matter complained of by Ms Loder. It is not to the point that Ms Loder did not intend to publish the defamatory material or that her attention was focussed on part only of the second matter complained of.
It may be that there is a way that Mr Bolton could have demonstrated that "liking" a post could amount to publication in the way described by Kourakis CJ in Google Inc v Duffy. If by "liking" a post that matter was forwarded to the Facebook feed of another person it may be that it could be concluded that by words or conduct the "like" has drawn the attention of another to defamatory words, meaning there has been primary, or at least secondary, participation in the publication. There was, however, no sufficiently compelling evidence before me that Ms Loder "liking" a Narri Leaks posts had that effect.
I will next deal with the second way the matter was put, namely that Ms Loder was responsible as publisher, as Narri Leaks was operated by the Narrabri Shire Residents and Ratepayers Association of which Ms Loder was the chair.
Liability as a principal for publication depends on participation in the original publication, which can consist of writing the matter complained of or consenting to its content prior to publication: Habib v Radio 2UE Sydney [2009] NSWCA 231 at [121]. Where a person contributes to the matter complained of but has no control over the final publishing process, they will ordinarily not be liable unless they have assented to the final form of publication: Dank v Whittaker (No 1) [2013] NSWSC 1062 at [22] and [26].
I accept Ms Loder's evidence that she only became the head of the unincorporated Narrabri Shire Residents and Ratepayers Association on 22 June 2015. I also accept her evidence that: 1. the letter to the editor she signed containing the statement "our Face Book page, "Narri Leaks"…" was incorrect. I accept her explanation that there was a difference between the draft of the letter Mr Stoltenberg emailed her and what was published about this issue; 2. Mr Stoltenberg's post of 16 June 2015 entitled "who is Narri Leaks" is false in material respects. Despite Ms Loder reading and "liking" this post, when she gave evidence before me she pointed out a number of factual errors in the post including the fact that at the stage of its publication Ms Loder was not the nominal head of the unincorporated Narrabri Shire Ratepayers and Residents Association, the spelling of her surname was incorrect, and the statement that she was on a committee making the posts on Narri Leaks was incorrect. I accept that she did not raise these issues with Mr Stoltenberg as she believed he would not have listened to her; 3. in her letter to IPART she wrote the cover page and Mr Stoltenberg wrote the attachments. Ms Loder agreed that the letter contained a link to the Narri Leaks Facebook page and said this was because the Narrabri Shire Ratepayers and Residents Association Facebook page did not have any comments from the ratepayers and residents; 4. contrary to the solicitor's letter from Coopers, Ms Loder was not an officer of Narri Leaks. I accept Ms Loder's evidence that Mr Stoltenberg told her to leave it to him, that he would take care of this legal correspondence. I accept Ms Loder's evidence that she did not instruct the solicitor that she was an officer of Narri Leaks nor that the admission made was made with her authority.
Ms Loder's explanation for failing to correct these matters was that it would have been a "waste of time" to ask Mr Stoltenberg to make any corrections. The call would take forever and she believed she would not get a word in edgewise with him as he "will always end up doing what he wants to anyway".
I accept Ms Loder's evidence that Mr Stoltenberg made many false statements on the Narri Leaks pages. It is regrettable that no steps were taken by Ms Loder to correct these statements. I accept the characterisation offered by her counsel, that Ms Loder was "manipulated" by Mr Stoltenberg and that her failure to respond was "naïve".
My finding is that Narri Leaks was not operated by the Narrabri Shire Residents and Ratepayers Association. Nobody, other than Mr Stoltenberg, or Ms Rook who operated at his direction, was capable of exercising control over the content of the Facebook page. The Narrabri Shire Residents and Ratepayers Association, in either its unincorporated or incorporated forms, was not capable of controlling the content of the Narri Leaks site. I find that nothing that Ms Loder could have done in her private capacity or in her capacity as chair of the Narrabri Shire Residents and Ratepayers Association could have affected the content of Narri Leaks. As Ms Loder said, Mr Stoltenberg would do what he wanted to regardless of the views of others.
So far as the screenshot of the Narrabri Shire Residents and Ratepayers Association Facebook pages is concerned, I accept Ms Rook's evidence that this refers to the Facebook page created in 2012 for Mr Stoltenberg which then lay dormant for a number of years. That evidence does not relate to the 2015 Narri Leaks Facebook page upon which were published the six matters complained of.
There is a separate issue arising from the fact that Ms Loder briefly assisted Mr Stoltenberg in removing pornography from the Narri Leaks Facebook page and, in the course of that, temporarily became an administrator of the page. I accept that in the period when she was administrator, she was able to modify or remove posts but that she did not do so. On this issue the remarks of Kenneth Martin J in Douglas v McLernon (No 3) [2016] WASC 319 are apposite: "[41] Even assuming all that, however, a dispatch and receipt of a concerns notice to someone does not give, or complete for, a plaintiff a cause of action in defamation. I remain to be persuaded, on the evidence, that it is open to contend that somebody falls within the Webb v Bloch formulation of providing assistance in tort (or the encouraging, counselling or facilitating of the tort) on the basis of involvement, simply because the person does not, as it is here contended, then act to 'pull the plug' on a website, or act to terminate the capacity of someone to use an acquired website, following the receipt of a concerns notice. That is subject to what I have said about the evidentiary potential for an inference to be drawn in a wider setting, towards an ancillary party's acquiescence in a publication being drawn if a reasonable period of time elapses after the receipt of a concerns notice and a person has taken no action to stop a publication, and there is evidence that the person had power to control publication in a relevant sense."
By analogy, I am not persuaded that Ms Loder is liable in the Webb v Bloch formulation of providing assistance in tort on the basis of involvement, simply because she did not, in the brief period she was administrator for a particular purpose, act to remove the matters complained of from the Narri Leaks page. Nothing that I have found is inconsistent with the decision of Simpson J in Frawley v New South Wales at [15].
My conclusion is that Ms Loder is responsible for publication of the second matter complained of but none of the other matters complained of.

[19]

Qualified privilege

Section 22 of the Defamation Act 2005 (NSW) preserves the defence recognised by the common law of publication on occasion of qualified privilege. The debate between the parties focused on whether Mr Stoltenberg could establish the requisite "reciprocity of duty and interest" between Mr Stoltenberg and the recipients of his publications.
Communications are protected where a person has a legal, social or moral interest or a duty to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty to receive it: Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [9]-[10]. The relevant "sting" must be germane and reasonably appropriate to the occasion: Bashford at [2], adopted by a majority of the High Court on appeal at [27], [193], and [235].
The question of whether the defence of qualified privilege applies depends on a close scrutiny of the circumstances of each case and the facts revolving around the publication. In Bashford the High Court explained: "[10] These principles are stated at a very high level of abstraction and generality. 'The difficulty lies in applying the law to the circumstances of the particular case under consideration'. Concepts which are expressed as 'public or private duty, whether legal or moral' and 'the common convenience and welfare of society' are evidently difficult of application. When it is recognised, as it must be, that 'the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact', it is clear that in order to apply the principles, a court must 'make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication'. " (footnotes omitted)
This issue has been considered by this Court in the relatively recent past. In Visscher v Maritime Union of Australia (No 6) at [199]-[201], Beech-Jones J addressed a submission that readers of a website operated by the Maritime Union of Australia as "recipients of the [MUA article] were, by the nature of the forum, involved directly or indirectly in the maritime industry". Beech-Jones J rejected that submission: "[200] …[It was] submitted that both publications were made to an unrestricted audience and the common law defence can never apply to such publications. Certainly the MUA's attempt to confine the description of the audience to either those who gave evidence or people similar to them, was misconceived (see Daily Examiner Ltd v Mundine [2012] NSWCA 195 at [72] to [73] per McColl JA). Otherwise the analogy with Bashford fails. Both articles were freely available on the internet. There is no basis for concluding that the articles were only downloaded and viewed by a limited class of persons with an interest in maritime safety or maritime affairs. Even though the act of publication of both articles was a "bilateral" act (Dow Jones), there was no reason to conclude that it is anything other than a publication to the general public."
I reject Mr Stoltenberg's submission that Visscher v Maritime Union of Australia (No 6) was incorrectly decided. Mr Stoltenberg's characterisation of Narri Leaks as a "limited website publication" rather begs the question. There must be, as the High Court said in Bashford, a close scrutiny of the circumstances of each case and the facts revolving around the publication. The Court does not conduct the required close scrutiny of the circumstances of each case and the facts revolving around the publication by applying a priori rules which contrast the "mass media" with a "limited website publication". There is no reason to think that Beech-Jones J failed to understand the task identified by Bashford or make factual findings in accordance with that task.
Even in a case where it has been determined that the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter, evidence of publication on the internet to the world is evidence of excessive publication. In Vakras v Cripps the Victorian Court of Appeal held: "[344] It follows from what we have said that it cannot be concluded, only because there was publication to the world at large on general websites, that publication was not done in performance of any relevant duty or interest. The fact, however, that there was publication to the world at large - assuming it to be the case - would be evidence of excessive publication, and thus of publication not protected by qualified privilege."
Mr Stoltenberg relied heavily on a number of first instance decisions here and in England and Wales as establishing the general proposition that "unlike in relation to mass media publications, in the case of a webpage of specialist interest, the publication is [not] considered to be to the world at large" and that the Court should not "without some other evidentiary basis, infer they were read by uninterested parties": Marshall v Smith [2013] WASC 452 at [33], [39]; Brady v Norman [2008] EWHC 2481 at [24]-[26]; Trumm v Norman [2008] EWHC 116 at [33]-[37]; Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428 at [10]; Vakras v Cripps at [341]. I do not regard those cases as establishing any such propositions.
Vassiliev was a case where a specialist journal about intelligence issues, which had 146 subscribers, was published on two university websites. The second of those university websites was devoted to the study of Mr Alger Hiss. Eady J inferred that, in the absence of other evidence, the same small circle of specialist and academic specialist readers downloaded the articles the subject of complaint as had read the hard copy in the journal. I do not regard Eady J as stating or applying any principle relevant to the determination of this case.
Trumm v Norman was a case where Mr Trumm sued the General Secretary of the Associated Society of Locomotive Engineers and Firemen. Mr Trumm, who had been expelled from the Society, described himself as the "most loyal member which the union did not have". The General Secretary of the Society, Mr Norman, published an allegedly defamatory circular to the members of the union, which was re-published in the in-house journal and on the union website. It was common ground that publication of the circular to union members was protected by qualified privilege. Tugendhat J was not, in the absence of any evidence on the subject, prepared to infer that the circular was read by a person who was not a member of the union. As his Honour explained at [38], however, that conclusion was not dispositive in that case. I do not regard Tugendhat J as stating or applying any principle relevant to the determination of this case.
Brady v Norman was a case where the same Mr Norman was sued again in defamation about the affairs of the union. Richard Parkes QC ruled that, in the absence of any other evidence, and in the circumstances of that union and the relevant publication in the "Loco Journal", there was no basis to infer that anybody other than those with a "proper interest" would have read the article. I do not regard Richard Parkes QC as stating or applying any principle relevant to the determination of this case.
Marshall v Smith was a pleading dispute. All that Le Miere J determined was that: "[39] Whether or not the defence of qualified privilege at common law is maintainable should be decided at trial in light of the evidence concerning access to and downloads from the [relevant] website, who read or is likely to have read the material and other circumstances bearing on whether communication to shareholders on the website was reasonably warranted by the exigency of the occasion."
I reject Mr Stoltenberg's reliance on these authorities as establishing any generally applicable statement of principle applicable in this case.
The passages relied upon in Vakras v Cripps (at [337]-[346]) take Mr Stoltenberg no further. In those passages the Victorian Court of Appeal explained that on the facts of that case it could not be concluded, only because there was publication to the world at large on general websites, that publication was not done in performance of any relevant duty or interest. The Court went on to conclude, however, that the fact that there was publication to the world at large would be evidence of excessive publication, and thus of publication not protected by qualified privilege. The conclusion in that case was: "[346] In all the circumstances described, we consider that there was evidence of excessive publication of the first Vakras and the Ms Raymond article, not protected by qualified privilege. The evidence leading to that conclusion was not as strong as the judge perceived it to be, but it justified the conclusion which his Honour reached."
There is, in any event, NSW authority pertinent to this issue. In Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514 the NSW Court of Appeal considered whether articles published in "Cabbie" magazine were protected by qualified privilege. Giles and Basten JJA upheld the trial judge's finding that the appellant publisher was actuated by malice which defeated the defence of qualified privilege. Only McColl JA considered whether or not the articles were published on an occasion of qualified privilege. The appellant claimed that the magazine was targeted at a taxi industry audience who had an interest in the articles. However, at [152], McColl JA found that the magazine, "'while in many respects targeted at a taxi industry audience, was also indiscriminate to the extent that it was left lying around public places where anyone could pick it up … one of the sites at which free copies were distributed was the airport itself". Her Honour held that: "[154] …[o]nce it is established the matter complained of was published to the general public, the publisher has to demonstrate reciprocity of duty and interest with that audience. And, as the majority said in Bashford (at [26]) 'only in exceptional cases has the common law recognised a duty to publish or interest in publishing defamatory matter to the general public'."
Turning then to the facts of the present case, I have already set out my findings about a number of the building blocks of Mr Stoltenberg's case on qualified privilege when addressing the publication issue. Mr Stoltenberg's qualified privilege defence also commenced by reference to the early pleading exchange and the decision of Hunt J in Lazarus.
I have already explained my rejection of Mr Stoltenberg's construction of the exchange concerning the particulars sought of identification. Mr Bolton in his pleading did not identify a limited class of persons to whom Narri Leaks was published. Nothing in what Hunt J said in Lazarus gives rise to any different conclusion. It was a case concerning disputes over particulars and did not concern the appropriate inferences to be drawn from evidence given at a trial. I have earlier accepted that if a request for further and better particulars of identification or publication had been made by Mr Stoltenberg in a timely way a court may have been persuaded to order such particulars. There was no such application.
Mr Bolton's pleading asserted that each matter complained of was in fact downloaded and read in each of the states and territories of Australia. That averment was never further particularised and no application was made by Mr Stoltenberg for further and better particulars of that issue.
The defence of qualified privilege here is based on Mr Stoltenberg's claim that the Narri Leaks Facebook page is "dedicated to dealing with issues of interest to persons within the Narrabri Shire". The defence relies on the claim that each of the readers of the Narri Leaks Facebook page was a resident of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.
A close scrutiny of the circumstances of this case and the facts revolving around the publication of Narri Leaks leads to the conclusion that Mr Stoltenberg has failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, being financial issues relating to the Narrabri Shire Council and/or the appointment of General Managers to the Council.
My reasons for rejecting Mr Stoltenberg's defence on the facts are largely repetitive of the findings I have made in relation to evidence relevant to the question of publication of the matters complained of by Narri Leaks. The facts here establish that Narri Leaks was downloaded and read by a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council. Narri Leaks was in some respects targeted at the audience of those with an interest in the finances of the Narrabri Shire Council, but an avowed, and successful, purpose of the site was to attract readers from far beyond the Narrabri area who did not share the identified interest.
Without repeating each of my findings, I have concluded that Narri Leaks was downloaded and read by a much wider audience than residents of the Narrabri Shire Council interested in the finances of the Council and/or the appointment of General Managers by reason of: 1. interrogatories provided by Mr Stoltenberg, described at [137]-[139]; 2. Facebook posts made by Mr Stoltenberg are replete with references to the wide readership of Narri Leaks. Each of those posts contains admissions to which the hearsay rule and the opinion rule do not apply. In particular, the 17 June 2015 statement that "the new Ratepayers assoc has since Monday been running a Facebook page called Narri Leaks…from a zero start, the [Facebook page] has had 10,000 hits in 2 days"; the 17 June 2015 statement that "we are at near 11,000 hits , we're now being watched not just by all over the shire , but all over the country , in our 3rd day of existence"; the 2 July 2015 statement that This page had 21,000 hits in its first 10 days, but we were fudging a bit, not only posting all manner of embarrassing dirty laundry of counsel to draw attention, but We did spend about $400 "boosting" posts all over the state for all the second week… Not doing either now, because we really do have 719 locals who hit like page to follow and get each post… In Narrabri Shire, we only have about 6000… So about 12% of all councils ratepayers are actively watching. Our total reach is 2414… They are mostly local… Anyone who has a legitimate complaint, post it here, big chunk of the Shire , nearly every third adult , will see it" (emphasis added); the 13 January 2016 statement that "not quite 20,000 people have read Narri Leaks this week… Again we thank our supporters who keep hitting that magic share button to get the message out there"; 3. the Facebook activity logs from which I draw inferences under s 183 of the Evidence Act described at [148]-[155]; 4. the evidence given by Mrs Bolton and Mr Webb referred to at [156].
Even if, contrary to my principal finding, I were to conclude that the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter, evidence of publication of the Narri Leaks Facebook page is evidence of excessive publication. The readership of the Narri Leaks Facebook page reflected its deliberate and successful attempts to garner views and hits "all over the Shire, [and]…over the country". It follows, as the Victorian Court of Appeal found in Vakras v Cripps that publication of each of the matters complained of was not protected by qualified privilege.
I also reject the submission that the matters complained of fell within the special and reciprocal interest identified by Mr Stoltenberg. Whilst the finances of the Narrabri Shire Council and the appointment of General Managers was an important topic in the Narrabri area, Mr Stoltenberg had no duty to attack Mr Bolton's reputation. Whilst the allegations of Mr Bolton acting corruptly or inappropriately may have been of general interest within the Narrabri Shire Community, Mr Stoltenberg failed to demonstrate the existence of a special and reciprocal interest. The position is similar to that described in Daily Examiner Ltd v Mundine. As I have said, Mr Stoltenberg's attempt to distinguish Mundine by applying an a priori rule which sought to contrast the "mass media" with a "limited website publication" rather begged the question.
As to Mr Stoltenberg's fall-back case, that the interest group was all people, wherever situated, with an interest in local government, there is no basis for concluding that the posts were only downloaded and viewed by a limited class of persons with an interest in local government.
I reject the defence of common law qualified privilege.

[21]

Statutory Qualified Privilege

Section 30 of the Defamation Act provides that: "30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward."
The test for statutory qualified privilege involves the same reciprocity of interest as in common law qualified privilege but has an additional requirement that the conduct of the defendant in publishing the matter is reasonable in the circumstances. A finding of malice negates the defence: s 30(4).
In Theodore Skalkos v Joseph Assaf [2002] NSWCA 14 Giles JA said about the question of "reasonableness" in the then existing test for statutory qualified privilege: "135 His Honour held that the conduct of the defendants was not reasonable. The issue in the appeal was whether his Honour was correct in that conclusion. 136 It is a question of fact in the particular circumstances, and that the jury declined to find malice does not mean that the conduct of the defendants was reasonable. I do not canvass the grounds for Carruthers AJ's conclusion, but approach the matter afresh. 137 In my opinion, his Honour's conclusion was plainly correct. The first and third imputations conveyed by the article were significant, indeed inflammatory, criticisms of the plaintiffs, disseminated where they would be likely to have the greatest impact. They were deliberately conveyed - so much was evident from a reading of the article, and Mr Skalkos did not give evidence to the contrary (or at all). There was no evidence of steps taken by Mr Skalkos or anyone else before publication of the article to enquire into or underpin the truth of the criticisms. Mr Skalkos did not give evidence that he believed in their truth, and all the defendants could muster in their favour was evidence of Mr Harvey and Ms Hall of conversations with Mr Skalkos to the effect that cutting out the plaintiffs as middlemen would be cheaper and Mr Harvey's belief that Mr Skalkos was sincere. Whether or not it was essential that the defendants establish Mr Skalkos' belief in the truth of the imputations which he intended to convey, in the circumstances of this case the conclusion that the conduct of the defendants in publishing the defamatory matter was not reasonable was all but inevitable."
As it was understood under s 22 of the now-repealed Defamation Act 1974 (NSW), a defendant's conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of: Morgan v John Fairfax and Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388. That conclusion in my view applies to the existing test in s 30 of the Defamation Act.

[22]

Conclusion on statutory qualified privilege

I find that Mr Stoltenberg has failed to establish that he had an honest belief in the truth of the imputations I have found were conveyed by each of the matters complained of. It is clear from Mr Stoltenberg's answers to interrogatories that he did not intend to convey the imputations pleaded. Mr Stoltenberg did not even give consideration to whether the fourth and fifth matters complained of conveyed the pleaded imputations. I reject Mr Stoltenberg's submission that he has discharged his onus by proving that the imputations he did intend to convey were the subject of reasonable conduct on his part. There was no evidence as to whether Mr Stoltenberg took any steps to prevent the pleaded imputations from being conveyed or was otherwise acting reasonably in publishing any of the matters complained of.
I reject Mr Stoltenberg's submission that the Roberts v Bass presumption of honesty is a matter to be taken into account as an implication from s 30(4) in addressing the matters in s 30(3). That approach is not supported by authority and would in my view lead to an incoherent application of the statute.
Further, I find that Mr Stoltenberg's failure to contact Mr Bolton, or someone else on his behalf, about the issues the subject of the matters complained of, is contrary to notions of reasonableness and independently fatal to Mr Stoltenberg's claim for statutory qualified privilege: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 2 at 574.
Whilst I accept that in cases that do not involve mass media publications, it is not necessarily fatal to a defence under s 30 for the defendant to speak to or contact the plaintiff or a representative of the plaintiff prior to publication, in all the circumstances here, Mr Stoltenberg has failed to prove that he acted reasonably. It is common ground that Mr Stoltenberg made no attempt to contact Mr Bolton. There is no basis in my view for concluding that Mr Stoltenberg is relieved from the usual obligations to check defamatory allegations because he was running a public Facebook page rather than a separate website.
I also find that the language used in the relevant posts was excessive and the publication itself lacked reasonableness. It is not reasonable to make the allegations of unlawful and/or corrupt conduct the subject of this case in a public Facebook page, open to the world, without seeking any comment from Mr Bolton first. In the absence of any evidence from Mr Stoltenberg I am not satisfied that he has discharged his onus of proving that his conduct was reasonable.
I reject Mr Stoltenberg's submission that I would infer from his documentary tender that he acted reasonably within the meaning of s 30. The first volume contained the conduct reports I have addressed at [19], various Narri Leaks posts dealing with miscellaneous issues, press reports, letters and e-mail correspondence. The second volume consisted of a large number of text messages between Mr Stoltenberg and Mr Bolton, which ended prior to the Narri Leaks Facebook page being started. Some selected documents about the Narrabri Shire Council were also included. No evidence was given about what, if any, effect anything in these two large lever arch folders had upon any of Mr Stoltenberg's actions. Little attention was paid in written or oral submissions to any one of these voluminous documents, although some submissions were made about the Narri Leaks posts which had been tendered.
The documentary tender on the First Defendant's part sits without any relevant anchor. I am not satisfied that Mr Stoltenberg had any one or any combination of those documents in his mind when publishing any of the matters complained of.
The whole tenor of Mr Stoltenberg's posts the subject of the 5 matters complained of in content and tone are antithetical to notions of reasonable conduct. The language and extent of the publication was excessive and thus not reasonable.
I reject Mr Stoltenberg's statutory qualified privilege defence.

[23]

Damages

Each matter complained of in an action for defamation constitutes a single cause of action even where each matter contains multiple actionable imputations: s 8 Defamation Act. A court may assess damages for all causes of action in a single award of damages: s 39 Defamation Act. In making an award of damages the court must ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded: s 34 Defamation Act. Section 35(1) provides for the maximum damages amount, which as of 26 May 2017 is $389,500: NSW Government Gazette No. 56 of 25 May 2017, p1782.
Damage to reputation is presumed upon the publication of defamatory material: Bristow v Adams [2012] NSWCA 166 at [20]-[28]. The three purposes of an award of damages are: 1. consolation for hurt to feelings; 2. recompense for damage to reputation (including business reputation); and 3. vindication of the plaintiff's reputation.
The Court may take into account evidence that the making of the defamatory imputation had an especially adverse impact upon Mr Bolton's reputation in the eyes of some group or class in the community: Reader's Digest Services Pty Ltd v Lamb at 507.
The award of damages should be "sufficient to convince a bystander of the baselessness of the charge": Broome v Cassell & Co Ltd [1972] AC 1027 at 1071.
A court may award a "substantial sum" through damages for distress and anguish, inherent in which award is vindication of the plaintiff's reputation: Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 48; [2015] NSWCA 237 at [20].
Damage to reputation still occurs even where persons did not believe allegations made against a plaintiff, or were sympathetic towards the plaintiff: Morgan v Odhams Press Ltd at 1246.
The "grapevine effect" is a concept aimed at explaining the basis on which general damages may be awarded in defamation, conveying the notion that it is difficult to track and fully ascertain the extent of the actual damage involved in defamation beyond those to whom the material was immediately published and allowing the court a means by which to conclude that a given result was "natural and probable": Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [88]-[89]; Cripps v Vakras at [565]. The effectiveness of the concept depends on factors including the nature of the defamatory material and the circumstances of publication: Palmer Bruyn at [89].
The concept is particularly apt in cases involving social and online media: Pedavoli at [20].

[24]

Effect of Narri Leaks posts on Mr Bolton and his family

From June 2015 to early 2016, Narri Leaks was becoming topical in the circles Mr Bolton moved in. Mr Bolton's teenage sons, who were then in their final year of high school, had sought to defend him in the playground from comments made by other children. Ms Jean Coombes, the mother of one of the friends of the Bolton's sons, had been visited by neighbours who said "you hear that the man Bolton's a bit corrupt?" to which she responded "if you're going to keep that up you can leave the house". The wife of an owner of a competing aerial spraying business in Wee Waa was upset about what was being said about Mr Bolton. Mr Bolton's confidence was affected.
Mr Bolton was contacted by the President of the Narrabri Chamber of Commerce, Russell Stewart, at some point during late 2015 to early 2016, who said to him: "Conrad, are you aware of what Narri Leaks has been saying? ...It's hurting you in the community and your reputation."
Mr Bolton had conversations with a former employee named Mr John Tully, a business competitor named Mr Paul Valentine and a worker at a newspaper shop, Ms Roxanne Witham, who were each offended by the content being posted on Narri Leaks. Mr Bolton had conversations with people outside of Narrabri Shire in which Narri Leaks was mentioned including the Mayor of Tamworth, councillors in Gunnedah and people in Gunnedah.
Mrs Bolton was so badly affected by the content of Narri Leaks that she was reluctant to go outside. This was distressing for Mr Bolton. Mr Bolton said, and I accept, that he and his family will probably leave the area they love because of the harm to his reputation he believes he has suffered caused by Narri Leaks.
I accept Mrs Bolton's evidence that: 1. the Bolton's son Kieran was told by his friend that his grandmother had been talking to friends of hers who mentioned that Mr Bolton was a corrupt Mayor and that this was embarrassing for her son; 2. she was told that Roxanne Witham who owns a local paper shop had an unpleasant interaction about Narri Leaks and Mr Bolton with a customer; 3. towards mid-2016, Mr and Mrs Bolton were not invited to events they normally would have previously been invited to; 4. from mid-2015, Mr Bolton stopped being sociable, stopped being involved in the community, has become unhappy, lacking in confidence, does not go out as much as previously and was worried and aware that Narri Leaks had upset and affected his family; 5. Mr Stoltenberg has put up posts on Narri Leaks from 2016 to the present day about the present proceedings and that she has observed that this has been upsetting for her husband; 6. Mrs Bolton now gets anxious about going out into the community, has stopped doing volunteer work at the museum and feels that Narrabri has turned against her and Mr Bolton. She feels that she does not belong in the community anymore.
I accept Mr Bolton's evidence that the continuous attacks by Narri Leaks were effective in turning at least some parts of the community against him. After mid-2015, Mr Bolton noticed a significant drop in the level of invitations that he and his wife were receiving to functions and events. The publication of the matters on which he is suing caused great sadness to Mr Bolton and his family. He believed, I accept sincerely, that a small number of people had conducted a campaign of malicious lies on social media against him which he could not stop. Mr Bolton said, and I accept, that the Narri Leaks page had been devastating and "soul destroying" and he felt under a prolonged attack.
I find that Mr Bolton suffered damage to his reputation by reason of the attacks by Narri Leaks. In addition to the evidence of Mr and Mrs Bolton on this subject, which I accept, I was impressed by the evidence of Ms Collier, Mr Flowers and Ms Booby and accept that evidence.
Ms Collier was a councillor on Narrabri Shire Council from September 2012 to September 2016, and came to know Mr Bolton at that time. Ms Collier saw Mr and Mrs Bolton at Council events and on a social basis regularly. She is still in regular contact with Mr and Mrs Bolton. In the circles in which she mixed in June 2015 Mr Bolton was well respected and most people felt that he was doing a good job as Mayor. There were, at that time, no questions about his honesty or integrity or his dealings with his staff and other councillors.
Ms Collier became aware of Narri Leaks and occasionally read Narri Leaks posts herself. Ms Collier gave evidence, and I accept, that some people in the wider community in Boggabri changed their judgment of the Plaintiff once the Narri Leaks page became active and at times people would ask her "what's all this about?" in respect of Narri Leaks posts.
I find that from June 2015, Mr Bolton became more withdrawn and guarded on matters, his children and wife were also affected and his wife has suffered from weight loss, migraines and stress as a result of Narri Leaks.
Mr Flowers, who was the General Manager of Narrabri Shire Council in the period 1993-1995 and a councillor from 2012-2016, gave evidence that before mid-June 2015 Mr Bolton had a very good reputation throughout the area and was held in high regard by councillors from shires including Tamworth, Moree and Tumbarumba.
Mr Flowers gave evidence, which I accept, that after mid-June 2015 he noticed people in the community questioning Mr Bolton's integrity on the basis of what he considered false stories. After the Narri Leaks page commenced in mid-June 2015, Mr Flowers noted a change in Mr Bolton's behaviour and personality, that he became less confident in public, that he went from being community oriented to spending more time protecting himself and his family and not wanting to continue with public life.
Ms Booby has been a councillor of Narrabri Shire Council since September 2012. She got to know Mr Bolton on a councillor level during this time, saw Mr Bolton two to three times per month while on Council, is friends with Mrs Bolton and has kept in contact with Mr and Mrs Bolton since Mr Bolton left the Council in 2016.
She gave evidence, which I accept, that before Narri Leaks began in June 2015, in local government and community circles Mr Bolton had a good reputation, was community minded, trustworthy, active and was always seen as positive in the way he treated Council staff. Ms Booby became aware of Narri Leaks in June 2015, saw some posts that were nasty and critical of Mr Bolton, and gave evidence that over time some people in the community took the Narri Leaks posts on board and reacted adversely to Mr Bolton. She gave evidence, which I also accept, that there was discussion in the community about Narri Leaks over the 12 months from June 2015 to June 2016 wherein some people in the community were saying that Mr Bolton was not doing a good job. After June 2015, Mr Bolton gradually withdrew from public life and was concerned about the impact of Narri Leaks on his family.

[25]

Conclusion on damages

I have concluded that whilst hurt to feelings and damage to reputation are established on the evidence, this is a case where the damages award should be relatively modest. While I am not in a positon to determine the readership of the defamatory posts, I infer based on the Facebook records in evidence that a significant number of people read each of the matters complained of. I accept, however, Mr Stoltenberg's submission that this is not a case where re-publication was relied upon by Mr Bolton and I should be cautious about the extent to which the various matters complained of were disseminated via "likes" and "re-posts" rather than visits to the Narri Leaks Facebook page. Taking into account the damage to reputation and the evidence of the grapevine effect shown by the matters I have accepted at [241]-[256] above, and having regard to the helpful table of damages award prepared by Mr Richardson, the appropriate award of damages is $80,000.
Aggravated damages are awarded where the defendant's conduct towards the plaintiff was improper, unjustifiable, or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23; Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118; [1966] HCA 40 at 130. Hence, failure to apologise (Clark v Ainsworth (1996) 40 NSWLR 463; Randwick Labor Club v Amalgamated Television Services [2000] NSWSC 906 at [261]-[264]), conducting proceedings in a certain manner (Polias v Ryall [2014] NSWSC 1692 at [80]), and continuing publication (Cantwell v Sinclair [2011] NSWSC 1244 at [17] and [177]) may all result in an award of aggravated damages if such conduct is improper, unjustifiable, or lacking in bona fides.
The attacks constituted by the Facebook posts Mr Stoltenberg published, culminating in the "Harvey Weinstein" post [63(7)], are properly the subject of an award of aggravated damages which I fix at $20,000. Those posts were improper and unjustifiable. I conclude that the posts were lacking in bona fides. They were part of a campaign against Mr Bolton, properly described as bullying or hectoring Mr Bolton by comparing him to public figures who had been accused of serious sexual misconduct and taunting him that such allegations would be aired by Mr Stoltenberg in this case. The Court should mark its disapproval of the conduct by this award of aggravated damages.
Interest is payable up to the date of judgment: Civil Procedure Act 2005 (NSW) s 100. In Davis v Nationwide News Pty Ltd [2008] NSWSC 946, McClellan CJ at CL stated: "[20] The proceedings in this case were not unduly delayed. Because I am satisfied that the majority of the damage was occasioned at or about the time of publication, adequate allowance can be made for continuing damage and for the component of aggravation occasioned by the defendant's conduct at trial by adjusting the conventional rate by a modest amount. Although a rate of 3.5% would not be inappropriate I have determined that interest should be awarded at 3% per annum."
McHugh JA in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 said: "[1551] …But if, as I think is the case, the plaintiff is entitled to at least part of his damages from the date of publication, the choice is between awarding no interest at all or attempting to calculate interest on a basis which, although not mathematically perfect, achieves a measure of justice. Since it is unfair to plaintiffs to deprive them of interest for the period in which they have been deprived of their money, interest ought to be awarded to the extent that it is fair and proper."
I am satisfied that the majority of the damage was occasioned at or about the time of publication. To award interest to the extent that it is fair and proper I have applied a rate of 3 per cent per annum rate and made a rough adjustment for the period covered by the defamatory posts. Without intending to be precise, interest calculated on the entire award at 3 per cent per annum from the date of the publication of the first matter complained of until today is a little over $10,000. I award a sum of $10,000 in interest, which although not mathematically perfect, achieves an appropriate measure of justice.
So far as Ms Loder is concerned, I have found her liable for the publication of one only of the matters complained of. The imputation conveyed by that post is at the lower end of the scale. Doing the best I can properly to compensate Mr Bolton for this publication, and taking into account the damage to reputation and the evidence of the grapevine effect shown by the matters I have accepted above, the appropriate award of damages payable by Ms Loder is $10,000. Given the modesty of that verdict I do not propose to make a separate award of interest in her case.

[28]

Conclusion and orders

For the foregoing reasons the claims against Mr Stoltenberg should be upheld. The following orders are made: 1. Mr Stoltenberg to pay Mr Bolton damages of $100,000 comprising $80,000 in general damages and $20,000 in aggravated damages; 2. Mr Stoltenberg to pay Mr Bolton interest on the award in the amount of $10,000; 3. Mr Stoltenberg to pay Mr Bolton's costs as agreed or assessed; 4. Mr Stoltenberg by his servants or agents, is permanently restrained from publishing or broadcasting any of the following allegations: 1. The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by making a "Captains Call" to hire a weak and inexperienced General Manager that he could control; 2. The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by ignoring the recommendations of expert consultants hired by Council, and instead prevailing on other councillors to pick a candidate on criteria other than merit; 3. The Plaintiff in his role of Mayor of Narrabri Shire Council, breached the Local Government Act by awarding the position of General Manager of Council on criteria other than merit; 4. The Plaintiff, in his role of Mayor of Narrabri Shire Council, breached his duties by deliberately rejecting experienced candidates for the position of General Manager of Council in favour of a worse and inexperienced candidate, so that he would not be challenged by a competent General Manager; 5. The Plaintiff in his role of Mayor of Narrabri Shire Council deliberately corrupted the selection process for the General Manager for Council; 6. The Plaintiff in his role of Mayor of Narrabri Shire Council, over a three year period, breached a number of laws including the Local Government Act, in his effort to silence the interchange of ideas and the diversity of views on Council; 7. The Plaintiff in his role of Mayor of Narrabri Shire Council told deliberate lies and engaged in coercion and intimidation of employees, contractors, residents and elected councillors in his effort to suppress the views of others on council matters; 8. The Plaintiff's corrupt, dishonest and intimidatory actions as Mayor of Narrabri Shire Council, warranted a full ICAC inquiry; 9. The Plaintiff, in his role as Mayor of Narrabri Shire Council engaged in corrupt conduct by providing the Independent Regulatory and Pricing Tribunal (IPART) with information he knew to be false; 10. The Plaintiff in his role as Mayor of Narrabri Shire Council acted illegally by providing the IPART with information he knew to be false; 11. The Plaintiff in his role as Mayor of Narrabri Shire Council knew and did not reveal that Councillor Ken Flower, the chairman of the finance committee, had falsified the Council's books. 1. Ms Loder to pay Mr Bolton damages of $10,000; 2. Mr Bolton's claim against Ms Loder is otherwise dismissed; 3. Each party to pay their own costs of Mr Bolton's claim against Ms Loder; 4. Exhibits to be returned to the parties. Exhibits not to be destroyed until any period for appeal has expired.

Bolton v Stoltenberg

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (29 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (68)