Bottrill v Graham & Anor (No 4) [2026] NSWDC 169 | Case summary | Zoe

NSWNSWDC

Bottrill v Graham & Anor (No 4)

[2026] NSWDC 169

District Court of NSW|2026-05-19|Before: P Wass SC DCJ

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General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2026-05-19

Before

P Wass SC DCJ

Catchwords

DEFAMATION — Publication of serious imputations including of paedophilia — Large audience — Conspiracy broadcasts — Unreliable and incredible rantings — Purpose of the broadcasts — Engage with like-minded participants in a room of mirrors — Rambling, long-winded, frenzied, unrelenting and vicious — Persistent and prolonged — No desire for genuine debate — Encouraged and facilitated — Defences of contextual truth, public interest, honest opinion, qualified privilege, triviality and innocent dissemination failed — Assessment of damages — Aggravated damages — Costs

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Catchwords

DEFAMATION — Publication of serious imputations including of paedophilia — Large audience — Conspiracy broadcasts — Unreliable and incredible rantings — Purpose of the broadcasts — Engage with like-minded participants in a room of mirrors — Rambling, long-winded, frenzied, unrelenting and vicious — Persistent and prolonged — No desire for genuine debate — Encouraged and facilitated — Defences of contextual truth, public interest, honest opinion, qualified privilege, triviality and innocent dissemination failed — Assessment of damages — Aggravated damages — Costs

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Bottrill v Graham & Anor (No 4) [2026] NSWDC 169

Hearing dates: 23 March 2026, 24 March 2026, 25 March 2026, 15 April 2026

Decision date: 19 May 2026

Jurisdiction: Civil

Before: P Wass SC DCJ

Decision: (1) Judgment and verdict for the Plaintiff against both Defendants by way of general compensatory damages in the sum of $235,000
(2) An award of $80,000 in aggravated damages against the First Defendant only
(3) Subject to order (5), the Defendants are to pay pre-judgment interest in accordance with the judgment
(4) Subject to order (5), the Defendants are to pay the Plaintiff’s costs of the proceedings as agreed or assessed
(5) The parties have liberty to apply within seven (7) days in respect of Orders (3) and (4), as to interest or for any special costs order or the revocation of any prior costs orders

Catchwords: DEFAMATION — Publication of serious imputations including of paedophilia — Large audience — Conspiracy broadcasts — Unreliable and incredible rantings — Purpose of the broadcasts — Engage with like-minded participants in a room of mirrors — Rambling, long-winded, frenzied, unrelenting and vicious — Persistent and prolonged — No desire for genuine debate — Encouraged and facilitated — Defences of contextual truth, public interest, honest opinion, qualified privilege, triviality and innocent dissemination failed — Assessment of damages — Aggravated damages — Costs

Cases Cited: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
Atholwood v Barrett [2004] QDC 505
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Bertwhistle v Conquest [2015] QDC 211
Besser v Kermode [2011] NSWCA 174
Bleyer v Google Inc [2014] NSWSC 897
Bottrill v Graham [2024] NSWDC 566
Bottrill v Graham & Anor (No 2) [2025] NSWCC 221
Bottrill v Graham & Anor (No 3) [2025] NSWDC 306
Bristow v Adams [2012] NSWCA 166
Carson v John Fairfax & The Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cerutti v Crestside Pty Ltd [2014] QCA 33
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176
Crookes v Newton [2011] 3 SCR 269
Deeming v Pesutto (No 3) [2024] FCA 1430
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Eppinga v Kalil [2023] NSWCA 287
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
French v Fraser [2015] NSWSC 1807
Grattan v Porter [2016] QDC 202
Griniezakis v Morelas [2026] FCA 156
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [385]
Hoser v Pelley [No 3] [2023] VSCA 257
KSMC Holdings Pty Ltd v Bowden [2020] NSWCA 28
Lamb v Cotogno [1987] HCA 47
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lee v Wilson & Mackinnon [1934] HCA 60
Martin v Najem [2022] NSWDC 479
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54
Mickle v Farley [2013] NSWDC 295
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Murdoch v Private Media Pty Ltd [2022] FCA 1275
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 43
Newman v Whittington [2025] NSWSC 275
Northcoast Childrens Home Incorporated Trading as Child and Adolescent Specialist Programs and Accommodation (CASPA) v Martin [2014] NSWDC 125
Nowak v Putland [2011] QDC 259
O’Reilly v Edgar [2019] QSC 24
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Roberts v Bass (2002) 212 CLR 1
Rodgers & Anor v Gooding [2023] QDC 115
Rogers v Nationwide News Pty Limited [2003] HCA 52
Rothe v Scott (No 4) [2016] NSWDC 160
Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223
Ryan v Premachandran [2009] NSWSC 1186
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276
Slipper v British Broadcasting Corporation [1991] 1 QB 283
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Trkulja v Google LLC [2018] HCA 25
Uren v John Fairfax [1966] HCA 40
Webb v Bloch (1928) 41 CLR 331

The Plaintiff filed his statement of claim on 10 September 2024.
The Second Defendant filed an Amended Defence on 28 April 2025.
The Plaintiff filed a Reply on 19 May 2025.
The First Defendant filed an Amended Defence on 2 February 2026.
The Defendants were initially self-represented. Gibson DCJ made several interlocutory rulings: Bottrill v Graham [2024] NSWDC 566, Bottrill v Graham & Anor (No 2) [2025] NSWCC 221 and Bottrill v Graham & Anor (No 3) [2025] NSWDC 306.
Gibson DCJ facilitated access to the Defendants to the District Court’s pro bono panel. Whilst initially self-represented, the First Defendant was represented by pro bono lawyers up until shortly before the hearing. The Second Defendant has at all times been self-represented.
On 20 June 2025, Gibson DCJ determined, pursuant to s 10A of the Act, that the Plaintiff had established serious harm to his reputation and that the action should proceed to trial.
The trial was listed to commence on 23 March 2026.
On 13 March 2026, the Court wrote to the parties asking for confirmation that the trial was ready to proceed.
On 16 March 2026, the First Defendant’s solicitors filed a Notice of Ceasing to Act.
On 17 March 2026, the First Defendant’s solicitors informed the Court that they had ceased to act in the proceedings.
On 23 March 2026, the First Defendant appeared in the trial self-represented, his pro bono lawyers having withdrawn with his consent. I refused his application for an adjournment for reasons set out in an ex tempore judgment given that day.
Accordingly, both Defendants were self-represented in the trial.
Both Defendants were granted leave to appear by Audio Visual Link (‘AVL’) due to the First Defendant’s health concerns and the Second Defendant’s distance from Sydney.
On 24 March 2026, the Second Defendant, at a time when the Plaintiff had called his publication witness Rodney Swift, absented herself from the proceedings due to asserted family issues. She had similar issues the day before and the matter was accommodated by allowing her to appear via AVL from another location.
At 10.56am on 24 March 2026, my Associate sent the Second Defendant an email indicating that I wished for her to appear and set out the matters that had been set out in her email, as the Plaintiff resisted an adjournment and was concerned that the hearing would not be completed in the time allocated. The First Defendant’s position was that the Second Defendant should be ready to resume the trial the following day.
I made clear that I had no way of knowing whether the Second Defendant’s situation was only in respect of that day or whether it was ongoing. The Second Defendant was informed that it had been proposed by the Plaintiff that the First Defendant at least complete his cross-examination of Mr Swift.
The Second Defendant was informed that I needed to know what she proposed in respect of her cross-examination of Mr Swift.
I adjourned the hearing for a short period of time so that the Second Defendant could appear via AVL and provide the information needed to make an appropriate determination as to any adjournment.
It was made clear to the Second Defendant that I was concerned about her non-response to the email, sent asking her to come on screen at 11.00am and her unexplained non-appearance at that time. The Second Defendant was informed: that unless she appeared by 12.00pm on the screen, that the proceedings may continue in her absence, in circumstances where she had unilaterally determined not to appear that day (and perhaps the following day) without having first obtained an adjournment; and that it was imperative that she appear at that time.
The Second Defendant did not appear. She was informed by email that I had not allowed the adjournment due to her lack of communication with the Court. She was informed that she could rejoin the proceedings by AVL at any time, but that the proceedings would continue. She was told that the First Defendant was likely to complete his cross-examination of Mr Swift by about 1.00pm and that if she wished to cross-examine Mr Swift, she would need to appear in Court promptly at 2.00pm. She did not appear at 2.00pm and the evidence was completed in her absence.
The Second Defendant reappeared on 15 April 2026 when the matter was next listed to provide written and oral submissions. The Second Defendant made submissions and also tendered further evidence in her case.
In respect of the Second Defendant’s absence at times during the proceedings, I was mindful to honour my obligations to her notwithstanding her non- appearance, in accordance with the principles disclosed in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 (‘Satz’). I was satisfied that I gave the Second Defendant every opportunity to appear or at least to explain her non-appearance, neither of which she did. She did not later apply to recall any witness. She was allowed to tender evidence after the evidence had closed. Ultimately, as Barrett J noted at [64] in Satz, in an adversarial system, the responsibility for conduct of a case rests with the party concerned.

The transcript of the broadcast clearly shows that Mr McKee telegraphed to the Defendants that he may again talk about the Plaintiff. He discussed, at length, OTO, Aleister Crowley, and “the Masonic, Satanic, Ordo Templi Orientis — which really is the world’s first gay rights organisation if you look up what Master of the Hermit Triad XI° is, the highest level in their cult, which is gay anal sex magic rituals” (CB194).
Mr McKee was described as the Second Broadcast’s special guest. The episode was titled “Guru n Crew… Whistle Blowing Folks... Don’t miss this…” (CB155).
Relevant to any “grapevine effect” relied on by the Plaintiff, the First Defendant encouraged listeners to “hit it, retweet it” and share widely (CB155). The Defendants thereby expose themselves to liability for any foreseeable republication by that person to others: Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 300.2.
The First Defendant introduced Mr McKee, telling the audience that he had given him material that was “pretty hot” and that there were “a few things in it that we need to know” (CB155).
The Second Defendant, at approximately 0:06:00 stated, “Hi everyone, nice to see everyone here and I’m looking forward to this conversation tonight with Luke” (CB155).
The Second Defendant endorsed Mr McKee’s statements (whatever they might be) knowing the content of the First Broadcast, having assisted the First Defendant in it.
Mr McKee delivered, for more than two hours, defamatory statements about the Plaintiff (CB166-168) and, more generally about OTO (which Mr McKee says the Plaintiff is a leader of) (CB164, CB178, CB181-2, and CB194).
Mr Swift heard Mr McKee state that “Mr Bottrill is the leader of a child abuse cult, that Mr Bottrill is a perjurer, that Mr Bottrill is a member of a satanic cult, and that Mr Bottrill’s religious observance involves drinking blood and molesting children” (Affidavit of Mr Swift paragraph [31], CB444).
The Plaintiff relies on the fact that the First Defendant actively endorsed Mr McKee’s material during the Second Broadcast relying on the following matters:
At about 2:11:55, the First Defendant said, “Look, he’s got great information.”
Mr McKee states that “it’s all true”. The First Defendant responds, “I’m not saying it’s not. I check you out before I got you on here, mate.”
I find that the First Defendant endorsed the statements made by Mr McKee, defaming the Plaintiff. The First Defendant lent his credibility, as the main host of the broadcast and the “Guru”, suggesting to his audience that they should accept Mr McKee’s statements as being true.
I find that the First Defendant invited Mr McKee onto the broadcast as his guest, knowing that statements of this kind might be made.
The Plaintiff relies on the fact that at approximately 2:30:00, after hearing Mr McKee’s OTO conspiracy theories, the First Defendant stated, “Look, Luke, you’ve got brilliant information, mate. You’re… you’re… obviously got a… a Rain Man sort of brain for this stuff, mate” (CB194). At approximately 2:37:31, the First Defendant also stated, “Luke’s certainly got a talent… talent for dropping it out, that’s for sure” (CB197). At approximately 2:51:42, the First Defendant announced, “We’re gonna have to get… you’ve obviously got a shitload more information, and I’m going to start sharing all your stuff out on Twitter, mate, and banging it out for you” (CB203). The First Defendant also said, “It’s been a great Space. Luke, we’ll be in touch, mate” and “Luke, brilliant stuff, mate. That was great… a lot of info…” (CB206).
I find that the Second Defendant acted as a co-host during the Second Broadcast. The Plaintiff relies on the First Defendant asking her to “take over for a sec”. Most relevant however, is the fact that the Second Defendant had the ability to, and did, exercise that right to block and unblock callers (CB170).
The Second Broadcast had a total audience of about 3,300 persons, with 1,389 live listeners at its peak (Affidavit of Mr Swift paragraphs [51], [55], CB446 and Exhibit C pp 6 and 11).

Again, Mr McKee telegraphed that he might speak about the Plaintiff. He claimed OTO “is a cult that’s getting free lawyers with taxpayers’ money that has a doctrine of child abuse, Gnostic Catholic Mass with two real kids” (CB214).
Indeed, the First Defendant encouraged such statements. He supported and encouraged Mr McKee’s diligence, said that he had done “a lot of research” and stated, “again, that’s just confirmation, guys” (CB211), in circumstances where both Defendants were aware of the likely topic, given their presence during the First and Second Broadcasts.
Mr McKee’s defamatory statements concerning the Plaintiff commence at about 1:00:00 into the Third Broadcast (CB224-5). The Plaintiff is referred to at 1:10:00 (CB227) and is named again at about 2:14:00 (CB244).
Mr Swift heard Mr McKee state that “Mr Bottrill is the head of the OTO, and that the OTO is a child abuse cult with a doctrine of child abuse” (Affidavit of Mr Swift paragraph [41], CB445).
The First Defendant encouraged Mr McKee to speak on the topic. He said to Mr McKee “I love you in here. I love your info” (CB207).
After the Second Defendant described an encounter with a “full-on bloody Mason”, the First Defendant invited Mr McKee to speak (CB210). Mr McKee then discussed OTO, concluding “they’re all Masons” (CB211).
The Plaintiff relies on the First Defendant’s further endorsement of Mr McKee’s allegations. He stated, “…Luke, thanks. All right, again that’s just confirmation, guys. You know, Luke’s done a lot of research, okay?”
At 0:22:20 (CB213), the First Defendant again endorsed Mr McKee’s information.
The Plaintiff also relies on the discussion of OTO’s doctrine of ritual child abuse (CB214); and which it is submitted, properly in my view, was the First Defendant’s call to arms on the issue (CB245).
The First Defendant demonstrated his control of the Third Broadcast by muting a speaker at 0:31:00 (CB215).
The Third Broadcast had a total audience of about 1,900 persons, with 864 live listeners at its peak (Affidavit of Rodney Swift paragraphs [52], [56], CB446, Exhibit C pp 7 and 14).

The First Defendant attempted by his cross-examination of the Plaintiff to elicit evidence from the Plaintiff that the imputations were, to some extent at least, true. The questions were designed to elicit evidence that:
the Plaintiff was at some stage the treasurer of the Australian chapter of OTO;
OTO was a religious organisation;
OTO was taken over by Aleister Crowley who changed the belief structure;
OTO was a satanic religion (a matter the Plaintiff rejected);
Crowley was “satanic” and formed a secret society that worshipped the devil, and Crowley has admitted in three books (the Book of Law, the Book of Lies, and Magik in Theory and Practice) that he did this; and
OTO is a satanic “cult”, a secret society who keep all their doings secret.
The First Defendant sought to undermine the Plaintiff’s damages case by his questions, suggesting to the Plaintiff that:
it was inconsistent that he would become the Treasurer of OTO if he was so worried about what people might think;
it was inconsistent that he was not worried about being in OTO but was worried about accusations that he was a paedophile;
he had overstated his concern about his personal safety;
there is no serious harm and no hurt to his feelings;
prior to the broadcasts, he had already been already involved in “public controversy”, a reference to the Plaintiff’s prosecution of various defamation and religious vilification claims in the past;
the 3000 or so listeners was a “very low percentage” in a worldwide population of 7 billion, and where X had a billion subscribers; and
Mr Swift may get a financial benefit by garnering information so that the Plaintiff can sue.
The Plaintiff was asked to deny involvement by him or OTO in paedophilia, satanic rituals, or drinking babies’ blood. It was suggested that he was not seriously harmed by the broadcasts, in being called a paedophile and an abuser of children, matters the Plaintiff rejected.
The First Defendant invited the Plaintiff to identify anyone that believed the allegations. The Plaintiff pointed to his impression that the members of the First Defendant’s audience accepted uncritically Mr Mckee’s comments and later one said, “let’s go get them”. I also concluded that it was likely that at least parts of the audience, and most critically encouraged by the First Defendant as the main host, believed the allegations. The First Defendant referred to Mr McKee’s speech in positive terms and to the fact of Mr McKee’s research into the subject.
The First Defendant’s suggestion, that the Plaintiff had not lost any employment or suffered financial loss (suggesting that this would be a necessary indicium of harm), was irrelevant and unnecessary given that the Plaintiff was known to be a retired public servant.
The First Defendant asked if the Plaintiff had been “socially excluded” due to the broadcasts. He said that he had recently entered into a relationship with a woman and she was reluctant to reveal his full name to her daughter because if you search the internet, it is associated with paedophilia and this litigation. The Plaintiff accepted, in a way that reflected well on him, that the references to previous defamation cases in which he won on unsubstantiated claims were also on the internet and that she did not get that information from the broadcasts.
The First Defendant challenged the Plaintiff as to the appropriateness of his response to the broadcasts and asked why the Plaintiff did not reach out to him on the live broadcast given that it was “an open discussion for people to talk about what they want”. The suggestion that this would have been a reasonable and appropriate response, given the Defendants’ control of the speakers and the ridicule they had subjected the Plaintiff to, is in my view untenable. My overall impression of the broadcasts is that serious contrary voices (such as @Cookerwatch) are either ridiculed or excluded.
The Plaintiff responded that he had sent concerns notices and did not form the impression that the First Defendant would be receptive to the suggested approach, given the First Defendant’s refusal to respond to the notice. That is a reasonable response in my view, and one provided for by the Act.
The First Defendant, at that time, engaged in submissions and said, “I get plenty of people coming at me, as soon as I was hit with a service of notice, a statement of claim, I immediately reacted, took down the broadcast and got in touch with the lawyers.” This has provided a clear admission by the First Defendant that he deliberately did not respond to the concerns notice and that he had complete control over the publication of the broadcasts on X.
The First Defendant challenged the Plaintiff’s evidence that he genuinely felt threatened by the broadcasts, given he was “not threatened by other spaces [on X] (2000) of them”. The Plaintiff responded that he had not viewed or heard them.
The First Defendant challenged the Plaintiff’s choice of party to sue and asked why he had not tried to sue X for the publication of what the First Defendant admitted were “the lies”. The Plaintiff responded that this was because the First Defendant was a publisher on X, a matter I have accepted.
The First Defendant suggested by the questions, that the concerns notice suggesting a payment of $25K for pain and suffering was somehow inappropriate. The Plaintiff said that it was derived in consultation on advice from his solicitor. Given the assessment of damages that I have made, it was, in my view, a very generous offer on the part of the Plaintiff.
The First Defendant, despite earlier findings by Gibson DCJ to the contrary (and which the First Defendant still does not accept), challenged the Plaintiff as to whether he had been seriously harmed. The First Defendant asserted that the Plaintiff had not lost employment, and asked, perhaps rhetorically, “how was this serious?” The Plaintiff responded, “you broadcast that I was a paedophile to 3000 plus people, it seriously damaged my reputation, they hear you label me as a ‘pedo’ and an abuser of children, I don’t know where they are, where they live” describing them, as his “psychopathic followers”. The Plaintiff said he was concerned that one might be psychopathic and might take actions. He relied on the general tenor of the broadcast; that it was to hunt down and kill paedophiles. The First Defendant said that he thought that this was funny.
Finally, the First Defendant sought to undermine the Plaintiff’s decision not to sue Mr McKee, who lives in Vietnam, beyond the jurisdiction of the Court. He suggested again that the Plaintiff did not in fact feel threatened by the statements.
The content and manner of the First Defendant’s cross-examination of the Plaintiff has caused further harm and has resulted in an award of aggravated damages.

The First Defendant called Geoffrey McKee, Mr McKee’s father. He did so, I had anticipated, to prove some part of the First Defendant’s defence. The First Defendant had informed the Court that Mr McKee Snr had seen things first-hand that showed the Plaintiff to be the leader of OTO.
Somewhat surprisingly therefore, Mr McKee Snr gave evidence of the complete unreliability of the allegations that were made by his son against the Plaintiff. He described his son’s characteristics and attributes. His son had been diagnosed when he was young with behavioural issues. At the age of 12, he had been referred to a psychologist who was unable to make a formal diagnosis, although by the time he was 13, Aspergers Syndrome was suspected.
Mr McKee Snr said that his son “ran away from Australia in 2007 and never returned”.
Mr McKee Snr described his son’s obsession with OTO and the Plaintiff, and other conspiracy theories regarding the police. He said that those obsessions became extreme at times. For example in China in 2010, he conducted a one-man protest outside the Australian embassy in Beijing, making a speech and burning his passport.
Mr McKee Snr said that the obsession with the Plaintiff occurred, in part, in about 2014, when he learned that someone had been sued by him. He said that his son called the Plaintiff at his place of work and the Plaintiff wrote to his employer in Hanoi and got his son sacked. According to Mr McKee Snr, the Plaintiff complained that he had to put up with a homophobic tirade.
Whilst there is no evidence that this ever occurred, according to Mr McKee Snr, since that time, his son had been obsessed with fighting OTO and the Plaintiff, and putting out “knowledge”. His father said that he was in 2000 spaces “spruiking the same narrative” and that he is fixated.
The First Defendant attempted to prove that the imputations were substantially true by inviting Mr McKee Snr to give evidence of the research that he, Mr McKee Snr, had done and his “findings”, and to give his opinion as to what those findings show. Mr McKee Snr referred to his presence in ACAT hearings involving the Plaintiff and references to Wikipedia, and said that in respect of OTO, that “nobody knows” about it because it is secret. He said, “We don’t even know what Bottrill knows about. I don’t know what level he is at. We don’t know why he is a member.”
It was clear that Mr McKee Snr could give no reliable or admissible evidence going to the First Defendant’s contextual truth defence.
Notwithstanding, the First Defendant continued to elicit evidence from Mr McKee Snr as to a number of irrelevant, at times arguably defamatory, and largely unrelated topics; seeing the Plaintiff ’s “unusual” behaviour in ACAT, the fact that the Plaintiff was an “agent of the Attorney-General in the Australian Capital Territory (‘ACT’)”, that he did not know why the Plaintiff had gone to New South Wales (‘NSW’) when he could have done “it” (which I assumed was a reference to commencing proceedings) in the ACT; that (despite his stated lack of knowledge on the topic) he believed that the Plaintiff was going into the court system in NSW to create greater damages or stronger legal precedent; that the Plaintiff was shutting down free speech on X; and that after this case, nobody can express their opinion because of government people (a clear reference to the Plaintiff) and because of spies like Mr Swift listening and going off. The decision by the First Defendant to lead this evidence has also contributed to an award of aggravated damages.

As to publication:
the Plaintiff has failed in proving that a “legally sufficient act of publication” by the Second Defendant occurred;
the First Defendant alone created, hosted, controlled, and recorded all three broadcasts;
the Second Defendant’s involvement was brief, voluntary and peripheral;
The Second Defendant joined each broadcast after it had commenced and accepted a co-host position via an in-app invitation;
the Second Defendant had no role in planning or content, exercised no real control over the broadcasts, and made no statements conveying any pleaded imputation; and
the Plaintiff identifies no specific act of the Second Defendant that communicated any defamatory matter and that omission is fatal to the claim against her.
The Second Defendant further submitted:
the Plaintiff must establish that the Second Defendant engaged in conduct that communicated the defamatory matter, not merely been associated with the platform on which it was published;
incidental use of platform functions as a co-host does not amount to publication;
permitting a person to speak is not the same as communicating what they say;
participation requires involvement in the communication of the defamatory matter itself; and
the “co-host” label on the X platform is not determinative of publication.
The Second Defendant submitted that in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (‘Voller’), the High Court held that media companies were publishers of third-party comments posted on Facebook pages they had created and controlled. The companies were liable because they had set up the forum, invited public comments, and retained the power to moderate or delete them. The present case is materially different. The First Defendant alone created and administered the forum on X using his own account. The Second Defendant was invited only after each broadcast had already commenced and had no power to initiate, record, retain, or control the content of the broadcasts. The Second Defendant’s limited technical functions fell well short of the level of control that attracted liability in Voller.
The Second Defendant further submitted that her role was limited and peripheral. The evidence shows the First Defendant was the sole originator and controller who initiated, scheduled, recorded and retained the X broadcasts. The Second Defendant was invited as a voluntary co-host after each broadcast had commenced. Across approximately ten hours of broadcasts, her total speaking time was only eleven minutes, or approximately 1.9% of the broadcasts’ times. This limited speaking time is consistent with the absence of any real control or moderation over the broadcasts. The Second Defendant made no statements about the Plaintiff and did not endorse or adopt any defamatory allegations.
The Second Defendant submitted that whilst she performed routine platform interactions, such as thanking speakers and managing the hands queue (which allowed speakers onto the broadcasts), they were not “facilitative acts” sufficient for publication. They were, rather “ordinary, incidental functions available to any co-host”.
The Second Defendant further submitted that in the First Broadcast, Mr McKee was not introduced by the host or co-host. He began speaking by unmuting his own microphone without any introduction or invitation. The Second Defendant had no control over his participation.
The Second Defendant submitted that her role was limited to acknowledging or responding to participants as they indicated they wished to speak. That did not involve any selection or endorsement of content.
The Second Defendant submitted that her screenshots for the Second Broadcast (CB66, Exhibits E and F), together with the screen recording and screenshots for the Third Broadcast (Exhibits 2D1 and 2D2), show her status at the relevant times and contradict the Plaintiff’s assertion that she remained a co-host throughout the broadcasts.
The Second Defendant submitted that the audio recordings show that she was not participating at the times the alleged defamatory matter was communicated.
The Second Defendant drew my attention to the Plaintiff’s written submissions (at paragraphs [47]–[48]) which identifies the First Defendant as the host, account holder, the person who invited Mr McKee, and the person who controlled and endorsed the content. By contrast, the case against the Second Defendant rests only on her appearance as co-host and the performance of incidental procedural functions, insufficient to prove publication.
As to the Second Defendant not exercising any control, she submitted:
she had no administrative access, no account credentials, and no capacity to remove or edit recordings;
The Plaintiff’s solicitor’s screenshots (CB409–411), taken at early timestamps in each broadcast (1:00 in the First Broadcast, 0:09 in the Second Broadcast, and 0:18 in the Third Broadcast), show that the First Defendant was the sole host at the commencement of the broadcasts and that she was not present in any hosting capacity when each live broadcast had already commenced;
as the creator and administrator of the relevant X space, only the First Defendant had the power to start each broadcast and to invite co-hosts; and
she was invited only after each broadcast had already commenced and played no part in initiating or controlling them.
The Second Defendant submitted that her involvement was limited to basic moderating functions, such as welcoming speakers who were already queued to speak and monitoring for trolls. There was no expectation that she would remain for the full duration of the broadcasts.
As to the Second Defendant’s lack of knowledge and awareness of the defamatory matter, she submitted that she had never heard of the Plaintiff or of Mr McKee and had no reason to anticipate that any speaker would make defamatory statements about the Plaintiff during the broadcasts.
For the First Broadcast, the Second Defendant submitted:
she was disengaged for over 14 minutes from 0:15:40 to 0:30:26;
the audio recording shows a distinct six second gap before she responded to Mr McKee in a hesitant, distracted tone, consistent with her not having heard the preceding conversation; and
she had not been actively participating and did not hear the alleged defamatory statements made approximately four minutes earlier.
For the Second Broadcast, the Second Defendant submitted:
the host had told her that Mr McKee would speak about “Cookerwatch”;
at approximately 0:06:00, she said she was “looking forward to this conversation with Luke”;
she had not heard Mr McKee in the First Broadcast and did not recognise his name (I pause to interpolate that there is no evidence of this matter, where the Second Defendant did not give evidence);
she left the broadcast at approximately 0:10:20, well before the alleged defamatory remarks were made at approximately 0:54:00;
before exiting, she made a brief personal comment about returning a phone call and confirmed “yes, we have you” to Mr McKee, then left the space;
she did not hear any of the subsequent discussion (again, a matter about which there is no direct evidence); and
the screenshots at 0:26:42 and 0:55:10 (CB66, Exhibits E and F) confirm that X did not label the Second Defendant as a co-host before or after the relevant period.
For the Third Broadcast, the Second Defendant submitted:
the transcript records that she had already been disconnected from the broadcast well before 0:57:50, with the host noting at that time, “Catherine’s gone, they took her out”;
the audio recordings, transcripts, screen recording and the PDF of screenshots derived from that recording consistently demonstrate that she was not participating prior to, at the time of, or after the alleged defamatory matter; and
the screen recording, and screenshots (Exhibits 2D1 and 2D2) demonstrate that she was not a co-host at the relevant time and was not re-invited to that role for the remainder of the broadcast.
The Second Defendant further submitted that neither the Plaintiff nor Mr Swift gave evidence as to any act by the Second Defendant that communicated any defamatory matter.

In addition to the written submissions which I have taken into account, the Plaintiff made oral submissions as to the Defendants’ liability.
The Plaintiff relied on CB59 in which the Second Defendant made admissions as to her facilitative role in the broadcasts in her Amended Defence under the heading "Facts" at paragraph 2.1 as follows:
that she acted as a volunteer co-host in three broadcasts; and
that her role included tasks such as welcoming speakers, monitoring for disruptive participants and trolls.
As to the First Broadcast, the Plaintiff relied on the following matters:
at the commencement of the broadcast, at 00:05:36, the Second Defendant was invited by the First Defendant to “throw some mics around”, being a reference to inviting speakers to be able to comment, and to “co-host, darling" (CB100) to which the Second Defendant responded, "hello everyone, the co-host came up and I accepted it, and here it comes again", commencing her participation in that broadcast;
at CB102, the Second Defendant contributed at 0:12:25, prior to the relevant matter complained of in the First Broadcast at 0:26:40 (CB106);
the Second Defendant had last spoken at CB103;
the Second Defendant’s submission (unsupported by any evidence) that she had not heard Mr McKee in the First Broadcast, that she did not recognise his name, and that she left the broadcast at approximately 0:10:20, does not sit comfortably with her statement at 0:30:26 when she says, "thanks Luke";
there is no evidence that the Second Defendant was distracted and the transcript shows that she was not disengaged from 0:15:39 where she showed engagement and interest with the question, "what happened with your court case?"; and
the fact that the Second Defendant did not speak for those preceding 15 minutes is not evidence of disengagement.
Accordingly, it is submitted, there is no evidence that the Second Defendant did not hear Mr McKee make allegations against the Plaintiff and the inference from the content of the broadcast is that she did.
It is submitted on behalf of the Plaintiff that, in any event, whether the Second Defendant was engaged or not is not relevant to her role as a publisher. Her facilitative role makes her a publisher of the first matter complained of, and it does not matter if she left the room, notionally or virtually, at the time that the defamatory material was spoken. There is no need to establish any intention to defame. Liability is grounded in the facilitative act of publication.
As to further evidence of the Defendants’ collaborative involvement in the First Broadcast, the Plaintiff relied on the following matters in the broadcast:
At 0:30.26 (CB107), after the defamatory matters were uttered by Mr McKee, the Second Defendant thanked him and then “throws the mic” to the next speaker, still acting in her facilitative role.
At 0:32:16 (CB108) and at 0:36:21 (CB109), where it is stated, “[l]et's go into Shary and then Glen Patriot, Sydney, and then back to Luke", the Second Defendant responded, "hey Shary", showing that at this time, the Second Defendant was managing the speaker queue.
At 0:47.40 (CB113), the Second Defendant thanked another speaker and then handed over to the First Defendant, and Mr McKee spoke again.
At about the time Mr McKee was speaking (CB114), the First Defendant exercised his control of the broadcast and thereafter the Second Defendant continued her co-hosting role, giving the mic to another person, and the Plaintiff relies on this as an “evocative demonstration” of the control that could have been exercised by the Defendants over Mr McKee.
At 1:02:00 (CB118), the First Defendant handed over to the Second Defendant to take over primary control of the broadcast.
At CB126, the Second Defendant welcomed Mr McKee back into the broadcast saying, "Thanks, Coco. Let's go over to Luke… Come on in, Luke."
At CB143, the Second Defendant still controlled the speaker queue, and invited speakers to come in, letting them know when it was their turn, functionally performing her role as a co-host.
At 2:31:27 (CB144) and at 2:37:31 (CB146), the Second Defendant said in response to a speaker, "That was a real eye-opener, absolutely. Okay, let's go back. Was it Rick and then Glenn?" and the Plaintiff submitted that she was unarguably acting as a co-host.
As to the Defendants’ combined facilitation of the Second Broadcast, the Plaintiff relied on the following:
At 0:06:00 (CB155), the Second Defendant said, "Nice to see everyone here, really looking forward to this conversation tonight, with Luke I think he's (not transcribable)... Guru so hi Mel, nice to see you… Okay, let's go for it, Luke."
At about 0:10:00 (CB156), the Second Defendant said "Anyway, let's get Luke up, when he can get back in", and Mr McKee returned at 0:10:32 with the words "Working this time?" to which the Second Defendant said, "Yes, we have you.”
At CB160, the First Defendant invited Mr McKee to tell his story saying, “so, yeah, let's get a bit on you, Luke, where did you grow up?”
At 0:46:37, OTO is first mentioned by Mr McKee.
At 0:47:54, the First Defendant said, “I don't mind you coming back in, but I'm controlling it, mate, and I want to get some info out", demonstrating both the First Defendant’s control and that the information he wanted out was about OTO, the gnostic Catholic Mass, the infiltration and the mandate of child orgies referred to immediately beforehand.
In another example of the First Defendant’s control of Mr McKee at 0:50:58 (CB165), he said, "I mean, what we're trying to do here is gather all the information, I just want to know how these things work".
At 0:53:20 (CB166), Mr McKee referred to the Plaintiff.
At 0:56:27 (CB167), the First Defendant interrupted Mr McKee, and said "All right, Luke, hang on, let's just give you - you're going well, man, just give you a breath, Luke."
Further references to the Plaintiff are made at 1:00:00 (CB168).
At CB169-170, the First Defendant asked for Mr McKee’s permission to allow a person from @cookerwatch onto the broadcast.
At CB170-171, the Second Defendant had been following along, and she agreed to unblock the @cookerwatch speaker. A person advised at about 1:10:55 (CB171) how to unblock the caller. At 1:10:55, the Second Defendant said "Yeah, and check with both your account and Guru's as well. I'll just click unblock, I've unblocked her."
At CB171, the First Defendant endorsed Mr McKee saying, "This is what it's all about, guys, all right, gathering the information."
At CB172, the First Defendant said, "You've got the mic. I've usually got you barred. Yeah, I'll give you the first question at Luke, and then we'll get a response", and then, "Yeah, I'll control it, so come in Cookerwatch."
Mr McKee’s serious allegations against the Plaintiff follow thereafter. At CB178, he referred to "the devil" and "the great beast" and "Cookerwatch reported me yesterday, a couple of days ago, for talking shit about this cult and their doctrine of child abuse"; a reference to OTO. He went on, "I mean, the writing's on the wall. Who, who's the paedo is here", statements directed at members of OTO more generally, and criticising Cookerwatch for defending them.
The Second Defendant spoke again at 2:24:49 (CB193).
At CB194, Mr McKee returned to the topic of OTO. At 2:27:23, he said, “the world's first gay rights organisation, the Masonic satanic Ordo Templi Orientis, which", and goes on.
At 2:30:00, the First Defendant thanked Mr McKee for his contribution and said, “Look, Luke, you've got brilliant information, mate. You've, you've obviously got a Rain Man sort of brain for this stuff".
At 2:50:00 (CB202), the Second Defendant brought “Coco” into the broadcast. It is clear from the exchange that the Second Defendant had been absent from the debate for a time. She last spoke at 2:24:49. It is not clear how long she had been away from her microphone as she did not give evidence. She resumed co-hosting.
At 2:51:42 (CB203), the First Defendant again endorsed Mr McKee’s content. He said, "So Luke we’re gonna have to get - you’ve obviously got a shitload more information. I'm gunna [sic] have to start sharing all your stuff on Twitter and banging it out for you. Haven't had a chance to do that.”
At CB206, at the end of the broadcast, both Defendants are present. The First Defendant said at 3:03:07, “It’s been a great space. Luke, we’ll be in touch mate. We’ll talk again”, and later, “Luke, brilliant stuff, mate. That was great. A lot of info. People are gunna [sic] have to go back through this and pick the guts out of it if they want and go looking. Everything's up in the jumbotron up there, guys, so get into it. Happy digging and, yeah."
Someone said, "Thank you, Cathryn", and the Second Defendant wished everyone a good night.
As to the Defendants’ facilitation of the Third Broadcast, the Plaintiff relies on the following:
The Defendants both contributed to the commencement of the broadcast (CB207).
At 0:04:54 (CB207), the First Defendant invited Mr McKee into the broadcast, with conditions that he not make it all about himself, and that it is “topic-related”, not “Luke-related”. He said to Mr McKee, “I love you in here. I love your info.”
From 0:27:17 (CB208-214), the Second Defendant rejoined the conversation, importantly prior to the third matter complained of. She made a contribution to the topic of Masons in Launceston, showing engagement with the topic generally. At about 0:13:02 (CB210), she said that in Davenport she found a "full on bloody Mason".
At that point, and with the Second Defendant clearly present and contributing, the First Defendant brought Mr McKee back into the conversation. He said, “Luke, let's bring you in for a minute because what I want to do, Luke, is ask you, with all the research that you've done on these different topics, you've given us the stuff to - I want to quickly ask what you've - have you found? Which you have in a couple of things but is there a big Mason, you know, resemblance with all the research that you've done, Luke".
At CB211, Mr McKee clearly telegraphed that he was returning to the topic of OTO, bringing children to the gnostic Catholic mass ritual, and that “all of them were high level Masons". At 0:16:28, he said that OTO claims to be a Masonic organisation. The Second Defendant is present at that time (CB212).
The Second Defendant contributed to the conversation at CB212 when Mr McKee returned to the topic of OTO.
The Second Defendant’s last statement before Mr McKee’s first statements on defamatory topics is at 0:21:37 when the First Defendant, to deal with technical issues, proposed dropping the Second Defendant out so that Mr McKee could join. The First Defendant said, “Luke, give me a minute. Cathryn, I'm gunna drop you out. Pull the (not transcribable)… I'm gunna [sic] drop you off as to - as listening. I'm gunna bring Mel in as co-host and then bring you back in as a co-host. Remember that worked the other night?" The Second Defendant responded, "Absolutely, yep, go for it". The First Defendant said to Mr McKee, "Luke, you've got the floor."
From 0:25:34 (CB214), Mr McKee returned to the topic of OTO, “child abuse, gnostic Catholic mass with two real kids”. He said the woman they put in charge of the Anti-Discrimination Board of Tasmania “has a history of fighting for satanic child abuse cults” and cases are dropped. The First Defendant responded at about 0:27:17, “This is what happens buys, Yep True. Yeah. Thanks, Luke. That’s exactly right mate” and suggested the need to “get a strategy out there against Freemasons”. The Second Defendant agreed that the prevalence of Masons is an issue to be responded to.
By 0:32:10 (CB216), the Second Defendant returned to her co-hosting role. At CB215, she was asked by the First Defendant to unmute a participant. At CB216, she directed those wanting to speak to “put up your hands”. At 0:35:25 (CB217), she said, "Excellent. Come in Aussie chick, good evening."
At 0:56:35 (CB223), the Second Defendant again stepped away from her co-hosting role. The First Defendant said, “Luke, at the moment mate, take the floor if you want it okay.” Mr McKee continued speaking.
At about 0:59:20 (CB224), there is a reference to “Cathryn’s back”. It is not clear whether or not this is the Second Defendant as neither Defendant gave evidence, including about this issue.
At 0:59:20 (CB224) and at 1:09:56 (CB227), Mr McKee said the words relied on for the Third Broadcast, most notably that:

The Second Defendant is clearly present at 01:17:00 (CB229). She said in her co-host role, “Go ahead Coc**o”. As neither Defendant gave evidence, it is not clear when she returned.
Generally, as to whether the Second Defendant is a publisher of the Third Broadcast, the Plaintiff submitted that, in any event, her presence and lack of presence at times is irrelevant. It is submitted that she has been shown to have been instrumental as a co-host by her conduct overall. It was submitted that she clearly played a facilitative role in this tort of strict liability. In addition, it was submitted, the Second Defendant was present when Mr McKee started talking, and contributed to the discussion, at least in respect of the related topic of the Masons.
The Plaintiff relied on the following further matters:
At CB231, the Second Defendant’s co-hosting role is confirmed. At 1:24:43, the First Defendant said, "Cathryn's had her hand up, she's a co-host, she goes first, Crikey". The Second Defendant said, "Actually, no, I didn't have my hand up, it just went on by itself, so keep going." At 1:46:20 (CB236), the First Defendant said, "Who is watching hands? Cathryn? I hope so. Coco was next, Mel was just telling me". At 1:50:30 (CB237), the Second Defendant said, "And all else will come. Go Coco."
At about 2:13:57 (CB244), Mel Graham asks in relation to Coco coming back in, "I can't accept her request. Cathryn, can you?" It is apparent, and absent any evidence to the contrary, that the Second Defendant is still co-hosting.
Mel Graham said, "Luke's done well". The First Defendant said, "Thank you, Luke".
Mr McKee returned to talking about the Plaintiff and the sexual practices of OTO members. He said, “Remember what I said about the OTO and their doctrine of magical masturbation?” The First Defendant endorsed him saying, “Thanks Buddy”.
It was submitted by the Plaintiff that CB146 provided further evidence that the Second Defendant continued to perform her co-hosting duties. Just before 2:19:57, she said “Franco, yep keep going. Um, Guru hopefully will come back in”, and later “perhaps Coco, Coco could answer”.
At 2:23:28 (CB247), the First Defendant invited Mr McKee back to the microphone saying, “Right, back to Luke. You’ve been very well-behaved Luke”, endorsing the matter complained of. Mr McKee embarked on a further long speech, including about OTO. He finished talking more than 10 minutes later, at which time the First Defendant said “All right. Thanks Luke”.
At 2:48:02 (CB254), the Second Defendant continued in her co-host role saying, "Yeah, who's next?" and later at CB257, “Aussie chick, let's go to you Janice. Good evening. Good morning".
The Second Defendant’s co-hosting role continued throughout the balance of the broadcast. At CB267 and CB268, just before 3:32:00, the First Defendant said, "All right, Cathryn, you want to come in? We're going to wrap this up, because I got to get some sleep, man, I really do".
The Second Defendant, at 3:34:29 (CB268), wraps up the broadcast and said thanks to all the “other wonderful speakers tonight” (which must include Mr Mckee) and “We look forward to our space in the morning Guru. I’ll put a link out into the community as well.”

There is no doubt that the First Defendant aided and abetted Mr McKee in publishing his words. The Second Defendant also encouraged and facilitated such publication in all three broadcasts, albeit to a much lesser degree.
Although neither Defendant gave evidence that this was the case, it does not matter if no injury to reputation was intended or that they acted with reasonable care. However, I find that they did not. Both were aware of the nature of the long speeches given by Mr McKee. Indeed, the broadcasters encouraged them. I find that the Defendants had an ability to block or mute Mr McKee but chose not to. This was the very kind of material the broadcasts were intended to encourage, and both Defendants did so in the case of Mr McKee.
As submitted by the Plaintiff, a publisher's liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it. The liability of a person as a publisher "depends upon mere communication of the defamatory matter to a third person": Lee v Wilson & Mackinnon [1934] HCA 60 (‘Lee’).
The Plaintiff relies on Dixon J’s statement in Lee that "[t]he communication may be quite unintentional, and the publisher may be unaware of the defamatory matter", but the person communicating the defamatory matter will nevertheless be liable.
Trkulja v Google LLC [2018] HCA 25 confirms that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher.
The Plaintiff relies on Crookes v Newton [2011] 3 SCR 269, a decision of the Supreme Court of Canada, in which Abella J held that "the breadth of activity captured by the traditional publication rule is vast". Her Honour gave, as an example, a case in which a printer's employee, whose only role in a publication was to "clap down" the printing press, was held liable for the libels contained in the publication even though he was unaware of its contents.

This includes consideration of whether the First Defendant had an honest and reasonable belief in the truth of what is published: Russell at [339].
The knowing publication of misinformation has never found protection in Australia (except on occasions of absolute privilege): Russell at [340].
Section 29A(3) of the Act sets out a non-exhaustive list of factors that the Court may take into account to the extent that the Court considers them applicable in the circumstances.
Taking into account those matters that are relevant and known:
The broadcasts were not reporting on matters of government, public health, or civic concern. The were unverified allegations about a private citizen.
Proper investigation of powerful child abusers in our society may be in the public interest. As set out in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 per Dawson, McHugh and Gummow JJ at 221–222, it may involve the discussion of the conduct of some person or institution that invites public criticism or discussion. However, peddling incoherent, unfounded accusations is not, objectively, in the public interest. I accept the Plaintiff’s characterisation that the broadcasts provided “simply a platform for regurgitating unvetted conspiracy theories, without any regard for proof, particulars or circumspection”.
Any subjective belief that the First Defendant may have held (about which there was no evidence as the First Defendant did not give evidence), that the subject matter was on an issue of public interest, was not reasonably held.
Having regard to the factors set out in section 29A(3), I find as follows:
The imputations are extremely serious (s 29A(3)(a));
There is no attempt to distinguish between suspicions, allegations, theories and proven facts (s 29A(3)(b));
The broadcasts do not relate to the performance of the public functions or activities of the Plaintiff (s 29A(3)(c));
There is no evidence that there was a public interest in the circumstances for the matter to be published expeditiously (s 29A(3)(d));
The source of the information in the broadcast, Mr McKee, has been established on the First Defendant’s own evidence from Mr McKee’s father, to be of no integrity whatsoever (s 29A(3)(e));
There was no attempt to gain the Plaintiff’s side of the story and, indeed any counter voices were blocked from the debate. There was no attempt made by the First Defendant to obtain and publish a response from the Plaintiff (s 29A(3)(g)); and
No steps were taken to verify the information in the broadcasts, particularly after the First Broadcast, when it was known to the First Defendant the likely topic on which Mr McKee might speak: (s 29A(3)(h)).
The First Defendant could not have reasonably believed that publication of Mr McKee’s rambling and unverified allegations of paedophilia against the Plaintiff was in the public interest.
The public interest defence fails.

Section 30(1) of the Act provides that the First Defendant must prove that:
the consumers of the broadcast have an interest or apparent interest in having information on the subject;
the broadcast was published to the recipients in the course of giving to them the recipient information on that subject; and
the conduct of the First Defendant in broadcasting the information from Mr McKee was reasonable in the circumstances.
I have taken into account the following matters set out in section 30(3) in determining whether the First Defendant’s conduct was reasonable:
The matter was not of public interest.
It did not relate to the performance of any public functions or activities of the Plaintiff.
The defamatory imputations are extremely serious.
The Plaintiff’s side of the story was not sought, and the First Defendant took no step to at least state (by reason of the earlier litigation) that the Plaintiff denies the allegations.
The First Defendant took no steps to verify Mr McKee’s statements before publication and concluded with no factual basis that they had been “researched” by Mr McKee.
As was made clear in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’), the High Court at 574 stated that the rationale for the defence is the furtherance of a legitimate interest or duty. It exists to protect publishers acting reasonably and in good faith and without malice, who publish material that serves a legitimate interest.
The question of reasonableness involves consideration of all the circumstances that are relevant and known: Roberts v Bass (2002) 212 CLR 1 at [15], [39], and [75]–[76].
Where the allegations are so serious, the standard of conduct required of the First Defendant is high.
Abraham J in Griniezakis v Morelas [2026] FCA 156 (‘Griniezakis v Morelas’) at [136]–[143] held that the respondent’s failure to contact the applicant before publication, failure to verify the allegations from reliable sources, and failure to have any proper factual basis for the defamatory imputations were fatal to a claim of reasonableness under s 30(3). So too in this case.
The First Defendant had no reasonable grounds for believing the imputations to be true, he took no proper steps reasonably open to him to verify the accuracy of the statements made by Mr McKee and there is no evidence that he did not believe the imputation to be untrue: Lange at 574.
The First Defendant did not seek a response from the Plaintiff. There was no evidence to suggest that this might not have been practicable, or that it was unnecessary to give the applicant an opportunity to respond: Lange at 574. Indeed, the entire purpose of the broadcasts was to engage only with like-minded participants in a room of mirrors, in a rambling, long-winded and, at times, frenzied fashion, without desire for genuine debate.
I accept the Plaintiff’s submission that no reasonable publisher, having heard Mr McKee’s allegations of paedophilia against the Plaintiff given in the First Broadcast, would invite him to return, to give him mostly a free rein and without taking any steps to verify the allegations or seek the Plaintiff’s response.
The qualified privilege defence fails.

The First Defendant pleads this defence in respect of Mr McKee’s statements (Amended Defence, paragraph [45]).
Section 31(3) of the Act provides a defence where the defamatory matter was published as the opinion of a commentator other than the Defendant. The First Defendant must prove that:
the matter was an expression of opinion of Mr McKee rather than a statement of fact; and
the opinion related to a matter of public interest; and
the opinion is based on proper material.
I find that the statements were not expressions of opinion. They were clearly assertions of fact that the Plaintiff is a paedophile and that he leads a paedophile cult. At the time, Mr McKee stated that it was true. There is, in my view, no unclear line between the two.
The statements did not relate to matters of public interest.
The statements were not apparently based on any nominated material, other than Mr McKee’s research, which is unknown, much less “proper material” as defined in s 31(5)-(6) of the Act.
The material on which Mr McKee’s statements were said to be based was not set out in specific or general terms in the broadcasts, nor was it notorious, and was not accessible from a reference, link or other access point included in the broadcast (for example, a hyperlink on a web page). It was not otherwise apparent from the context in which the broadcasts were made. The facts on which the comments were based were not stated or indicated with any clarity in the broadcasts. There was no information that what was being said was a comment or based on what facts.
Finally and relevant to the First Defendant’s pleading, the matter was not substantially true.
There was no attempt by the First Defendant to show that any material upon which any opinion might be based, was based on proper material. To the contrary, the First Defendant called Mr McKee’s father whose evidence was to the effect that the material was utterly unreliable.
The defence of honest opinion fails.

An award of damages for non-economic loss in defamation proceedings serves three purposes: Carson v John Fairfax & The Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (‘Carson’) at 60-6. That is, to provide:
consolation for the personal distress and hurt caused to the person defamed;
reparation for the harm done to those persons both personally and (if relevant) to their business reputation; and
to provide vindication of their reputation.
The purposes overlap and the first two are often considered together. Vindication looks to the attitude of others to the applicant. The sum awarded must be at least the minimum necessary to signal to the public the vindication of the Plaintiff’s reputation.
The Court is to ensure there is an appropriate and rational relationship between the harm sustained by the applicant and amount awarded: s 34 of the Act.
The maximum amount that may be awarded for non-economic loss is presently $500,000 per s 35(1) of the Act, and the declaration of the Attorney General in NSW Gazette No 224 published on 6 June 2025.
The maximum damages amount is only to be awarded in a most serious case: s 35(2) of the Act.
If a Court finds for a Plaintiff in relation to more than one cause of action, damages may be assessed “in a single sum”: s 39 of the Act.
The Court is to disregard the malice or other state of mind of the Defendants at the time of publication except to the extent that it affects the harm sustained by the Plaintiff: s 36 of the Act.
The assessment of damages “involves an understanding of the nature and seriousness of the imputations and the [defendant’s] conduct”: Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, 241. To that end, relevant considerations to the assessment of damages include “the gravity of the libel, the social standing of the parties and the availability of alternative remedies” (Carson at 60), as well as the extent of the publication. As to that last matter, and the conduct of the defendant, a court may also take into account the fact that the defamatory statement “was never retracted, that no apology was ever offered to the [plaintiff], and that the statement had been persisted in to the end”: Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254, 263; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (‘Ali’) at [76].
Damage to the reputation of the defamed person need not be proved; rather, it is presumed: “the law presumes that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff’s right and calls it general damage”: Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225, 258; Bristow v Adams [2012] NSWCA 166 at [20]-[31]. Notwithstanding the presumption that some damage will flow, evidence may be given of actual damage to the Plaintiff, undoubtedly that is because although some harm is presumed, “the extent of that harm is not”: Eppinga v Kalil [2023] NSWCA 287 at [100]. Of course, since changes to the Act in 2021, there is a need to consider the “serious harm” threshold: s 10A of the Act.
The award of damages must reflect the effect that the particular defamation had on the plaintiff: Rogers v Nationwide News Pty Limited [2003] HCA 52 at [69]. Further, it has been recognised that a person publishing defamatory material must take the plaintiff as they find them, with the consequence that it is appropriate to have regard to any particular sensitivities of the plaintiff: Ali at [77].

I have had regard to the gravity of the imputations. There is no doubt that to allege that a person is a paedophile, and runs an organisation in which it is a practice, is an extremely serious criminal allegation. It was presented in a way that was unrelenting and vicious.
In French, McCallum J (as her Honour was then) took into account the likelihood that the tone and content of the publications was such that some might have dismissed them as irrational rants. The profanity, aggressive language and at times incoherent presentation used by Mr McKee is such that some people would have dismissed it as ranting. However, the imputations of paedophilia and child abuse are clear and repeated. They were not dismissed by the Defendants as unreliable rants. Indeed, the First Defendant commended Mr McKee’s research. As a broadcast, they could not be scrolled away from and they remained on the X space for more than seven months.
As McCallum J observed in French, the sheer brazenness of the allegations and the invocation of social obligations, of trying to weed out malevolent forces in the community, may have sounded compelling to some listeners, particularly with the endorsement of the First Defendant.
It is clear that allegations of paedophilia are the most serious allegation that can be made: Rodgers & Anor v Gooding [2023] QDC 115 (‘Rodgers v Gooding’); Grattan v Porter [2016] QDC 202 (‘Grattan v Porter’). In the present case, they were persistent and prolonged. It is a serious defamation alleging serious criminal conduct.
To be labelled a child abuser or paedophile is one of the worst possible things that could be said about someone. It is one of those statements which, despite denial, may have a tendency to persist and leave a lingering and permanent mark on a person’s reputation. It is extremely difficult, if not impossible to dispel this: Atholwood v Barrett [2004] QDC 505 (‘Atholwood v Barrett’).
In a similar vein, Gibson DCJ said in Northcoast Childrens Home Incorporated Trading as Child and Adolescent Specialist Programs and Accommodation (CASPA) v Martin [2014] NSWDC 125,

The “grapevine effect” is a metaphor to help explain the basis upon which general damages may be covered in defamation actions: Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388.
This is done because it is impossible to ascertain and establish the real damage caused by defamatory publications. It is impossible to track the scandal to know what quarters the poison may reach. It is impossible to weigh at all closely the compensation which will recompense any plaintiff for the insult offered or the pain of a false accusation.
The grapevine effect recognises that “the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published” and that the “‘poison’ of a libel may spread beyond the immediate recipients of the initial publication”: Hoser v Pelley [No 3] [2023] VSCA 257 at [221]; Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176, 194-195.
Accordingly, the assessment of compensatory damages must include consideration of the extent of the publication and the possibility of spreading along “the grapevine” and to appear at other places that might be unknown to the Plaintiff.
Where defamatory statements are published on the internet, the spread of information occurs easily and secretly. The distress that results when defamatory publications are made on social media, is because it is common knowledge that they spread easily, by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from this kind of communication: Mickle v Farley [2013] NSWDC 295.
In O’Reilly v Edgar [2019] QSC 24, Justice Bradley noted, “The so called “grapevine” effect recognises that the dissemination of defamatory material is rarely confined to those to whom it is immediately published. The harm caused to reputation does not come to an end with the publication. Past observations that it is “impossible to track the scandal, to know what quarters the poison may reach” are apt to describe the effect of publication of defamatory matter on social media, where the defamation tends to spread very rapidly and might emerge “from its lurking place at some future date”, when again it has a “tendency to spread”.
A simple search term may revive a long dead publication.
What is emphasised particularly in that regard is that the award of damages must be sufficient not only to vindicate the Plaintiff at the time of publication and at the time of judgment but also into the future.

The Plaintiff makes a claim for aggravated damages, in accordance with the principles set out in Cerutti v Crestside Pty Ltd [2014] QCA 33 at [37]-[42] and Griniezakis v Morelas at [215]-[217].
The Plaintiff relies on:
the First Defendant’s failure and refusal to take down the broadcasts despite demand;
closely aligned to that, the First Defendant’s ongoing reticence to take responsibility for the broadcasts;
the First Defendants’ failure and refusal to apologise to the Plaintiff;
the First Defendant’s defence of contextual truth, which repeats the sting of the defamatory allegations;
the tone of the First Defendant’s cross-examination of the Plaintiff, including affected incredulity and mocking with respect to the Plaintiff’s evidence that he made calls to police because of fears about his safety; and
the First Defendant’s, albeit ineffective, efforts to prove the imputations to be substantially true.
As to the First Defendant’s failure to take responsibility, the First Defendant continues to blame those who run X for producing the broadcasts. He says this from the bar table. He did not give evidence. In any event, I do not accept his explanation. It is, as the Plaintiff submitted, inconsistent with his removal of the broadcasts from public view on X soon after being served with the Statement of Claim. I find that the First Defendant had control over the material remaining on X for the period that it did.
Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31]. They are awarded for injury to the Plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47. Aggravated damages are compensatory to the Plaintiff where the First Defendant’s conduct was improper, unjustifiable or lacking in bona fides and aggravates the Plaintiff’s hurt feelings: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514.
They are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40.
Relevant conduct includes that of the First Defendant after publication (for example his conduct during litigation, his failure to apologise, and his failure to take down the broadcasts on request): KSMC Holdings Pty Ltd v Bowden [2020] NSWCA 28.
The “conventional approach” has been to not award a separate sum because “it is not a discrete head of damage”: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [385]; Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 (‘Rush’) at [380] and, further, a separate award “would usually be difficult to assess”: Rush at [380] and the authorities there cited. However, in light of the statutory amendment, it is now the case that any award of aggravated damages is to be made separate to an award of damages for non-economic loss: s 36(2B) of the Act.
The maximum damages amount pursuant to s 35(1) of the Act may be exceeded where aggravated damages are warranted: s 36(2A) of the Act.
The Court must take care not to ‘double-count’ in compensating the Plaintiff. An award of aggravated damages must only be for the difference justified by the added conduct: State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96].
In this case, in consideration of s 36(2B) of the Act, and where aggravated damages are sought only against the First Defendant, but where non-economic loss damages are otherwise jointly and severally attributed to both Defendants, it is appropriate to make a separate award of aggravated damages against the First Defendant only.
It has been notable in this case that, unlike some of the cases to which I will come, for example French, there has been no admission of liability or concessions made about any appropriate award of damages. Indeed, the First Defendant unreasonably and without foundation contended that $25,000 in damages was beyond the pale, and no one spared the Plaintiff the “unhappy prospect” of facing the Defendants in Court.
The Plaintiff has had to obtain his vindication recorded in this judgment, but only with further aggravation. The First Defendant challenged all aspects of the Plaintiff’s case; the serious harm done by the broadcasts, the plaintiff’s evidence of harm, and he sought to propound useless defences. He was discourteous in his presentation and further sought to belittle the Plaintiff. This kind of “internet road rage” is an unfortunately common theme in cases of this kind.

In Martin v Najem, the matters complained of were so “sensational, abusive and profane” that they were not reproduced in the judgment. Similarly, the publishers were internet commentators. The defendant published a video about the plaintiff on Instagram, calling him a paedophile and a racist. The video contained abusive and profane language and an almost visceral hatred in the defendant’s tone of voice. The following day the defendant had published a second video repeating the imputations that the plaintiff was a paedophile by calling him a “pedo dog” and by calling him a racist. The defendant said that the plaintiff was the most hated person in the industry. At the end of this second video, the defendant posted a photoshopped picture of the plaintiff at Bondi Beach with the word “RACIST” superimposed over him.
Compelling evidence was given of the great harm done to the plaintiff. As a result, the defendant was deluged by posts from other Instagram users. The defendant began to publish a series of abusive messages about the plaintiff and his wife. Those further publications are relied upon for aggravated damages only. The defendant published a fourth video the following day. It was derogatory and highly offensive towards the plaintiff’s wife. Seeing her distress increased his hurt. The defendant also sent a direct message to the plaintiff saying he was “going to end [him]” and that he was a “racist dog” and that he was “going to destroy” him, such that he started to feel concerned about his safety. A further video was published which included a screenshot of that message. The plaintiff reported the publications to the police and sought to apply for an apprehended violence order against the defendant. He was deeply distressed and sought medical assistance. Since the plaintiff commenced the proceedings, he continued to receive negative and derogatory comments on his own Instagram account, repeating the allegations and attacking the plaintiff for having sued the defendant.
One Instagram account had around 20,000 followers. The second Instagram account had almost 1400 followers. The publications were available to a substantial audience.
The plaintiff relied upon the grapevine effect for both publications, a matter that may be inferred as the typical result of serious allegations made on social media, where the reach of a defamatory imputation is not limited to the immediate readership. The graver the imputation, the more likely it is to spread and to cause serious harm.
The matters remained on the site for perhaps only about 24 hours, although they “[P]ercolated and spread to a wide group of publishees that included friends of the plaintiff. There was direct evidence, in the form of posts, that persons not known to the plaintiff trolled and abused him as a result.”
As her Honour observed in the context of considering serious harm,

In Rodgers v Gooding, the defendant published Facebook posts which called two plaintiffs “paedophiles”. It was visible for 90 minutes. The Court awarded $100,000 to each plaintiff in compensatory damages, and $40,000 and $25,000 respectively by way of aggravated damages.
Admissions were made by the defendant, default judgment on liability was entered and damages were assessed. The defendant did not engage with the damages assessment.
The parties were neighbours and were once friends. The neighbouring area set up a community safety Facebook page with a membership of between 4800 and 4900 people. Its primary purpose was to alert the residents to possible crimes in the neighbourhood.
The defendant posted the plaintiffs’ address and said they were paedophiles, that their child had been “touched” and that the plaintiffs had tried to get her six year old to go with them multiple times. The obvious outraged responses ensued.
About 90 minutes later, the defendant said her Facebook page had been hacked. Other members of the Facebook group, perhaps showing some incredulity at such a suggestion responded, including one post which said, “You put a post up about a paedophile and their apparent address. Gonna [sic] need a bit more explaining than “we got hacked”.” The statement that she had been hacked was demonstrably false. The post had already been saved as a screenshot reproduced, republished and disseminated to other members of the public, in a clear example of the grapevine effect in motion.
The consequences for the first and second plaintiffs were significant, being defamed so seriously in their local neighbourhood. The imputations were similarly serious.
The claim in that case for $100,000 reflected the seriousness of the defamatory imputations and the harm caused, and to vindicate each of the plaintiffs reputations, to compensate them for the hurt, distress and embarrassment that was caused as a result of the posts being made, to reflect the natural and probable extent of publication in the local area and finally, to convince any person to whom the defamatory imputations were published or republished of the baselessness of them.
Some other similar cases were referred to in Rodgers v Gooding. I have set them out for ease of reference.

Bottrill v Graham & Anor (No 4)

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Introduction

Procedural History

Proof of Publication

The Context of the Defamatory Statements

The First Broadcast – 24 January 2024

The Second Broadcast – 29 January 2024

The Third Broadcast – 3 February 2024

The Plaintiff’s Evidence

The Plaintiff’s Awareness of the Broadcasts

The Effects of the Broadcasts on the Plaintiff

Concerns Notices

Effects on the Plaintiff in the Longer Term

Cross-Examination of the Plaintiff by the First Defendant

The First Defendant’s Case

The Evidence of Geoffrey McKee, Mr McKee’s Father

The Second Defendant’s Case

The First Defendant’s Oral Closing Submissions

Second Defendant’s Submissions

Publication

Innocent Dissemination

Joint and Several Liability

The Plaintiff’s Oral Submissions

The Role of the Second Defendant as Publisher

Damages

The First Defendant’s Reply

The Second Defendant’s Reply

Determination of the Issues

Publication

Findings regarding the First Defendant as a Publisher

Findings regarding the Second Defendant as a Publisher

Identification of the Plaintiff

Defamatory Meaning Conveyed

The Defences – Introduction

Contextual Truth – Section 26

Public Interest – Section 29A

Qualified Privilege – Section 30

Honest Opinion – Section 31(3)

Innocent Dissemination – Section 32

Triviality – Section 33

Damages

General Principles

Audience and Reach

The Gravity of the Imputations and the Style of the Broadcasts

The Grapevine Effect

Aggravated Damages

Comparative Cases

Martin v Najem

Rodgers v Gooding

Atholwood v Barrett

Nowak v Putland [2011] QDC 259 (‘Nowak v Putland’)

Bertwhistle v Conquest [2015] QDC 211 (‘Bertwhistle v Conquest’)

Gratten v Porter

Rothe v Scott (No 4) [2016] NSWDC 160 (‘Rothe v Scott’)

Newman v Whittington [2025] NSWSC 275 (‘Newman v Whittington’)

Griniezakis v Morelas

Damages Conclusion

Interest

Conclusion and Orders

Endnotes

Parties

Legislation Cited (1)

Cases Cited (67)