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[2025] NSWDC 221
General information, not legal advice.
District Court of NSW
2025-06-20
Gibson DCJ
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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 2) [2025] NSWDC 221
Hearing dates: 22, 29 May, 5 June and 12 June 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Jurisdiction: Civil
Before: Gibson DCJ
Decision: 1. The second defendant’s Notice of Motion for summary dismissal of the plaintiff’s claim dismissed, with costs reserved to the trial judge for the hearing referred to in order 3 below.
2. Pursuant to Uniform Civil Procedure Rules r 28.2 and s 10A of the Defamation Act 2005 (NSW), a finding that the plaintiff has established serious harm and that the plaintiff’s action for defamation should proceed to trial.
3. These proceedings listed for trial on all issues as a four day plus hearing to commence on Monday 2, 9 or 16 February or Monday 16 or 23 March 2026, with the parties to determine the most convenient of those dates. If the parties are unable to agree upon a suitable commencement date, the Court will allocate one.
4. The defendants are to nominate categories of documents for discovery within 14 days and all parties are to file and serve verified Lists of Documents 14 days thereafter.
5. Expert reports (if any) to be served 28 days after the plaintiff’s List of Documents is filed and served.
6. These proceedings are listed for directions in the Defamation List on 4 September 2025.
7. All applications for interlocutory relief (including timetable defaults) must be brought by Notice of Motion in the Defamation List with three (3) clear days’ notice or, if a Trial Judge is appointed by the Court, to that Trial Judge.
Catchwords: DEFAMATION – three lengthy social media podcasts and X posts over a 10-day period – imputations that the plaintiff engaged in criminal activity including paedophilia and abuse of children, was the leader of an international criminal and paedophile cult and had perjured himself in legal proceedings – application by second defendant for preliminary rulings on serious harm – evidence of thousands of listeners and readers – matters remained on the social media site for an extended period – evidence of grapevine effect in the form of publications on other podcast and social media sites – whether serious harm findings should be the subject of a ruling now, at a later interlocutory stage, or at the trial – parties with limited financial means – desirability of early trial – serious harm findings made in the context of an early trial hearing date being set
PRACTICE AND PROCEDURE – impact on case management of second defendant’s submissions referring to non-existent and/or misstated judgments and legal principles, in breach of District Court General Practice Note 2 Generative AI Practice Note
Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), s 122A;
Defamation Act 2005 (NSW) s 32
Defamation Act 2005 (NSW), s 10A
Defamation Act 2005 (Qld) s 10A
Defamation Act 2005 (SA), s 10A
Defamation Act 2005 (Tas), s 10A
Defamation Act 2005 (Vic), s 10A
Defamation Legislation Amendment Bill 2025 (NT)
Mental Health (Forensic Provisions) Act 1990 (NSW), cl 2
Migration Act 1958 (Cth) s 91R(1)(b)
Online Safety Act 2021 (Cth) s 5
Uniform Civil Procedure Rules 2005 (NSW) r 28.2.
Cases Cited: Amersi v Leslie & Anor [2023] EWHC 1368
Bata v Bata [1948] WN 366; Ramsey & Ors v Vogler [2000] NSWCA 260
Bottrill v Graham [2024] NSWDC 566
Bottrill v Sunol [2018] ACAT 21
Bridgen v Hancock [2025] EWHC 926 (KB)
Brown v Bower & Anor [2017] EWHC 1388 (QB)
Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; 77 ALJR 255; 194 ALR 433
DPP v Kan Tim Ho [2009] VSC 394
French v Fraser [2015] NSWSC 1807
Harcombe v Associated Newspapers & Anor; Kendrick v Associated Newspapers & Anor [2022] EWHC 543(QB)
High Quality Jewellers Pty Ltd (ACN 119 428 394) v Ramaihi (Ruling) [2022] VCC 1924
Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27
Luck v Secretary, Services Australia [2025] FCAFC 26
Martin v Najem [2022] NSWDC 479
MG v PJ [2025] QCA 99
Mond v The Age Company Pty Limited [2025] FCA 442
Nash v Director of Public Prosecutions (WA) [2023] WASCA 75
Newman v Whittington [2022] NSWSC 249
Nikolic v Nationwide News Pty Ltd [2025] VSCA 79
Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484
Parsons v Garnett & Anor [2022] EWHC 3017 (KB)
Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192
Qu v Wilks [2023] VSCA 198
Rader v Haines [2022] NSWCA 198
Rothe v Scott (No 4) [2016] NSWDC 160
Selkirk v Wyatt (2024) 302 FCR 541; [2024] FCAFC 48
Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375
Soriano v Societe D'Exploitation De L'Hebdomadaire Le Point SA & Anor [2022] All ER (D) 47
Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95; 386 FLR 365
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1
Texts Cited: Cortelyou C. Kenney, “Defamation 2.0”, 56 Loy. L.A. L. Rev. 1 (2023)
Category: Procedural rulings
Parties: Plaintiff/Respondent:
Mr David Bottrill
First Defendant:
Mr David Michael Graham
Second Defendant/Applicant:
Mrs Cathryn Gale Gibson (Self-represented)
Representation: Counsel:
Plaintiff/Respondent:
Mr N Kirby
First Defendant:
Mr R Armitage
Solicitors:
Plaintiff/Respondent:
O’Connor Legal
First Defendant:
Redline Legal
File Number(s): 2024/00334742
The plaintiff commenced proceedings for defamation on 10 September 2024 for three podcasts livestreamed on X (formerly Twitter) Space and later posted on the first defendant’s X account on 24 and 29 January 2024 and 3 February 2024*.* Each of these publications had the same hosts (the defendants), invitee (a person hereafter referred to as “Luke”) and subject matter (although other topics were also discussed).
The background to the publication is as follows. The plaintiff, a retired public servant, is a member of the Ordo Templi Orientis Australia (“OTO”), an organisation based on Masonic and Christian dogma (Bottrill v Sunol [2018] ACAT 21 at [13] – [38]). The OTO has long been the subject of allegations, all rejected in the courts, of raping and murdering children and drinking their blood (Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484 at [24]). Over the last decade, “Luke”, the invitee for the matters complained of, has provided material to sites generally known as “cookers” (i.e. conspiracy websites) accusing the plaintiff of these crimes and the plaintiff has responded by bringing a series of defamation actions, in all of which he has been successful. The second defendant told the court that the first defendant, who calls himself “Guru” on his “cooker” podsite, invited Luke onto the program because he was keen to obtain information about a podcasting rival called “Cookerwatch”, whose ridicule of Guru is described in the matters complained of, and Luke had promised to do so.
The imputations pleaded for first and second matters complained of are as follows:
That the Plaintiff engages in criminal actives including paedophilia and the abuse, including sexual abuse of children.
That the Plaintiff is the leader of an organisation that engages in criminal activities including paedophilia and abuse, including sexual abuse of children.
That the Plaintiff has committed perjury in legal proceedings.
The imputations pleaded for the third matter complained of are as follows:
That the Plaintiff is the leader of an organisation that engages in criminal activities including paedophilia and abuse, including sexual abuse of children.
That the Plaintiff is the leader of a cult that concerns itself with child abuse.
That the Plaintiff has committed perjury in legal proceedings.
The defendants were initially self-represented and case management from the first return date onwards has required the granting of a series of adjournments. Part of the reason for this was to give the defendants access to the District Court’s pro bono panel. The first defendant is now represented by pro bono lawyers, but the second defendant has continued to act for herself. No timetable could be set until the second defendant’s application for dismissal on the grounds that she had not been properly served (Bottrill v Graham [2024] NSWDC 566) had been determined, and then timetabling orders were made on 21 November 2024 for the filing of defences. When those orders were not complied with, a guillotine order was made on 10 April 2025.
The first defendant pleads substantive defences, including contextual justification, as well as challenging whether the imputations are conveyed and that serious harm is established. The second defendant’s defence denies publication and serious harm as well as pleading a defence of innocent dissemination pursuant to s 32 of the Defamation Act 2005 (NSW) (“the Act”). On 1 May 2025, further timetabling orders were made for the filing and service of a Reply, and for discovery and interrogatories, with a review date of 24 July 2025.
None of the parties made any application for determination of the issue of serious harm pursuant to s 10A of the Act as any part of these (or any earlier) orders. These proceedings were stood over until 25 July 2025 to monitor compliance with the timetable and readiness for a hearing date.
Before the timetable referred to above could come into effect, and without any prior notice, the second defendant, on 12 May 2025, filed a Notice of Motion seeking the following orders:
“A determination under section 10A(3) of the Act that the plaintiff has not established serious harm to his reputation from the alleged defamatory statement [sic] in the X space podcasts on 24 and 29 January, and 3 February 2024.
Dismissal of the plaintiff’s claim against the second defendant, with costs, including expenses and time as a self-represented carer.”
The plaintiff has tendered the full transcripts of the three podcasts from which the matters complained of are drawn and relies upon three affidavits sworn by his solicitor. These relate largely to the extent of the audience for the publications (2.1K for the first matter complained of, 3.3K for the second matter complained of and 1.9K for the third matter complained of).
The first defendant was given the opportunity to file material but despite agreeing to timetables (and seeking adjournments to enable material to be prepared) has not produced any documentation. He submits that, as the burden of proving serious harm lies on the plaintiff, the application should not proceed to be heard until the plaintiff provides direct evidence and the first defendant is afforded sufficient time to issue subpoenae to X (to its headquarters of X in the United States, although this has not been required in other defamation actions) and to other unnamed third parties, in order to establish whether publication has occurred at all and, if so, to what extent. The first defendant denies that any of the imputations are conveyed but has not made any application for a ruling on imputations pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 28.2.
The second defendant provided the court with the following submissions and affidavit material:
(a) Submissions forming part of the Notice of Motion, headed “Grounds for the Application”. (b) An affidavit sworn and filed on 12 May 2025 and information about her financial difficulties. (c) Submissions in reply to the plaintiff’s submissions, filed at 10:10 PM on 21 May 2022. These submissions contained errors due to the use of artificial intelligence sources. (d) Transcripts of three further podcasts by third parties discussing the matters complained of and the evidence before this court for these proceedings. (e) Screenshots asserted to demonstrate that she was not the “co-host” of the matters complained of.
“Serious harm to reputation, or likely serious harm to reputation, are facts that must be proven by evidence. The evidence may include direct evidence, but depending on the circumstances of the particular case, a claim of serious harm need not be supported by direct evidence. That is because like any fact in issue serious harm to reputation may arise as an inference to be drawn from all the circumstances of the case: Lachaux at [21] (Lord Sumption).”
[Emphasis added; citation omitted]
The second defendant’s Notice of Motion was given a first return date of 22 May 2025 in the Defamation List. Prior to that date, at my request, my associate asked the parties to provide an outline, before the first return date of the notice of motion, indicating whether they supported or opposed the second defendant’s application. In response, the second defendant sought a timetable for evidence and exchange of written submissions, and a hearing date for her application. The plaintiff provided submissions to the effect that the issue of serious harm should be determined at the trial; alternatively, he submitted that there was sufficient evidence on the pleadings and matters complained of to determinate serious harm. The first defendant did not reply.
There were problems on the first return date of the second defendant’s Notice of Motion. The second defendant’s submissions consisted largely of inaccurate legal principles as a result of her having drafted them by using artificial intelligence programs. The first defendant initially supported the second defendant’s application, but then sought an adjournment, so the matter was adjourned to 29 May 2025.
On 29 May 2025, both defendants told the court they were not ready to proceed, as they required comprehensive discovery from the plaintiff in order to prove publication, which would take many months. They also needed to issue subpoenae to social media organisations outside Australia. Both were unable to indicate whether the second defendant’s Notice of Motion should be stood over to the trial, adjourned part-heard, or simply deferred in some unspecified way. The matter was stood over to 5 June 2025.
The position of the second defendant changed several times before 5 June 2025. She withdrew her previous request for the application to proceed, saying she now agreed with the first defendant, but then pressed her application for serious harm to be determined. The first defendant then sought an adjournment so that he could participate in that application, and the matter was stood over to 12 June 2025. On 11 June 2025, the first defendant’s legal representatives notified the court that no evidence would be provided.
On 12 June 2025, Mr Armitage made oral submissions to the effect that each matter complained of was published only to 3 or 4 persons (namely those of the dozens of speakers who were Australian, but not to Australian or overseas listeners), and that serious harm could not be established unless the extent of publication was substantial.
(a) Whether serious harm determinations must include rulings on the imputations. (b) Whether evidence must be led as if it were trial evidence, namely affidavit evidence upon which there is cross-examination.
English judgments concerning the interaction between imputations and serious harm must be read with some caution because of the different role the judge takes in relation to the determination of imputations, including imputations pleaded by a defendant: Cooke & Anor v MGN Limited [2014] EWHC 2381 (at [6] – [19]). Despite this difference, as is the case in Australia, the English courts consider serious harm hearings to be a case management tool and proof of serious harm can thus be approached flexibly: Harcombe v Associated Newspapers & Anor*; Kendrick* v Associated Newspapers & Anor [2022] EWHC 543(QB) at [14] – [45]; Brown v Bower & Anor [2017] EWHC 1388 (QB) at [5].
That flexibility extends to considering the evidence to be tendered on such an application. The undesirability of a “mini trial” (Bridgen v Hancock [2025] EWHC 926 (KB) at [34]) on issues such as prospects of success (Soriano v Societe D'Exploitation De L'Hebdomadaire Le Point SA & Anor [2022] All ER (D) 47 at [49]) is a factor to take into account in applications of this kind. This kind of informality of proof extends to other serious harm rulings permitting proof of the harm to be made generally where there is more than one publication. In particular, as is set out in Amersi v Leslie & Anor [2023] EWHC 1368 at [150] – [151], it is not necessary for serious harm to be proved separately for each publication.
The obligation placed on the Court by s 10A is, where necessary, to consider of its “own motion” whether serious harm can be established. (This may result, in future claims, in the Court playing a role in determining imputations for itself, similarly to the procedure explained in Cooke & Anor v MGN Limited, but that need not be addressed here.) A finding of serious harm goes to the publication, not to the imputations, and serious harm may arise from factors outside the imputations pleaded for each article, because serious harm can result from the publications as a whole (Mond v The Age Company Pty Limited at [381]). Determination of the imputations (absent a significant dispute) need not be a prerequisite.
The next issue is when early determination should occur. There are two circumstances where the Court must proceed to an early determination of serious harm, whether or not the wishes of one or more of the parties are to the contrary. These are as follows:
(a) First, independently of the position of the parties, under s 10A(4), a judicial officer may, of his or her own motion, require (or refuse) to determine whether the serious harm element is established: Qu v Wilks [2023] VSCA 198; High Quality Jewellers Pty Ltd *(*ACN 119 428 394) v Ramaihi *(*Ruling) [2022] VCC 1924 at [9] – [12]. (b) Second, under s 10A(5), if “a party” (not “all parties” or “all defendants”) applies for the serious harm element to be determined, the Court is to do so “unless satisfied that there are “special circumstances” for postponement. Those “special circumstances” include, but are not limited to, costs, court resources and overlap with trial issues (s 10A(6)).
The second defendant has triggered the serious harm application identified in s 10A(5) by seeking a serious harm ruling. That in turn requires the Court to consider, if necessary on its own motion if the moving party then withdraws, whether a serious harm ruling should be made now or later, including whether or not such a ruling should form part of the trial, as occurred in Qu v Wilks.
The issue for determination is whether, as the plaintiff and second defendant each assert, the Court has sufficient material before it for the determination of this issue on the information provided and, if not, whether there should be a timetable for such evidence or the application stood over to the trial. All parties acknowledge that this is a “heavily inferential” (Parsons v Garnett & Anor [2022] EWHC 3017 (KB) at [34]) claim of serious harm. Whether serious harm can be established requires careful consideration of the factual material as a whole.
What was the nature of the “Guru ‘n’ Crew” X site and how widely did information about its podcasts and posts on X circulate?
As will be apparent from the summaries of the matters complained of below, the first defendant and his acolytes were conducting lengthy daily podcasts of a highly charged nature, warning about the coming apocalypse caused by inept governments, a corrupt legal system and misconduct by those who were in positions of power, most of whom were addicted to child sex abuse.
They eschew the term “sovereign citizen” (first matter complained of, 15:40 minutes) but accept they are called “cooker” websites. This is not a complimentary term. It is used by their opponents because their lengthy and one-sided commentary system by Guru-approved contributors leads to listeners’ brains being “cooked”. Mrs Gibson explained to the court that her role in the podcast was to ensure that “cooker watchers” would not do the linguistic equivalent of opening the oven door, namely ventilate alternate views.
The term “cooked” appears to have come into wider use following the “Pizzagate” allegations about a Washington pizza parlour being a front for Presidential candidate Hillary Clinton and her associates using this venue for child sex and “spirit-cooking”. (“Cooker” may also refer to “The Twilight Zone” episode where aliens visit Earth, showing humans a book called “To Serve Man” in order to invite them to their planet; the humans learn too late that “it’s a cookbook!” as the anguished heroine screams, and they are the main course.)
These emotional and lengthy diatribes are not sporadic “saloon-bar moanings” (Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 at [17]); they are carefully planned. First, these sessions begin with the Guru’s friendly greetings to his “Family” of listeners and exchanges of personal information, which confirm that, the defendants and their audience knew each other well, as this example from the first matter complained of shows:
“David Graham/[redacted]— All right, guys. Family. How are you? Just come across that track a while ago on YouTube and just went fuck. Is this where we wanna be,guys? Do you feel like you belong in this matrix? Sick of being here? Thought it was a pretty good song to intro with. You know? Just get in a fast car and go, guys. All right. It's time. Right? The fast car's in front of us. It's us people. All right. We're just about in it. Okay. I think we're about to hit the key. I don't know, but, yeah, I hope I'm driving because I hate other people driving. But then I'm a fair man. If a better race car driver comes along than me, you can have the job. That's how we work, guys. Each their own credentials, each to what they can do best. But we gotta get these Spaces moving. We gotta get them broken down into states, guys, because we have to freaking get going. And that's what our song's about tonight. Are you happy where you are? Are you? I think you're happy within yourself where you are, but you're happy where you are in society? And this is what we gotta do, guys. This is what we gotta change. All right? Our society, it's gotta come to the way of our thinking, not the way of the evil thinking.
0:05:36 So good day, everyone. Good evening. Cathryn, come on in. Throw some mics around. I can't... I still haven't got you to... hang on, Cath. Come in anyway while I'm getting you the co-host, darling...
Cathryn Gibson/[redacted] — Hello, everyone. Yeah. No. The co-host came up and I accepted it. Oh, here it comes again. So, cool. Yep. Good evening.”
Next, there is a discussion of their most recent and upcoming community activities. This is relevant to serious harm because the first defendant’s attempts to get into the wider political mainstream occurred at the time of these podcasts, which resulted in his activities being the subject of reporting and comment in the wider community, and not just by those within the narrow confine of the defendants’ acolytes. The two events that put “Guru” in the public spotlight at the time of these publications are referred to in the matters complained of. In the first podcast, the first defendant describes how he forced a Wollongong surf club to shut down a water activities race for small children at the beach because of the risk that paedophiles might take advantage of these activities (12:25 minutes). This is followed by his introduction of Luke, with whom the second defendant has a discussion about corrupt magistrates. This leads Luke to ask about the arrest of the first defendant for harassing a journalist, Ben Fordham, which was coming up for hearing in a few weeks, on 28 February 2024. The first defendant explains that this arrest followed attempts by him to appear on Mr Fordham’s radio show, where the first defendant planned to answer allegations made by an anti-cooker website campaigner whom the first defendant views as his nemesis.
This leads into information about who the guest speaker for the session is and how to be able to be asked to comment or ask questions. The text from the second matter complained of shows the defendants introducing Luke as follows:
“David Graham/[redacted]****— All right, good evening family, how are ya? We've got a couple of co-hosts in, let's see if we can keep them. And yeah, we'll see if we can't look after the room, but how is everyone? We're gonna just hold the mics for a little minute guys, cause we got a little bit of an interesting conversation to go on here and I think you people are gonna like it. So first things first, a bit of housekeeping. Everyone go down to that little share button. Hit it, retweet it, let's get a lot of people in here guys. Cause yeah, we're gonna talk about, I think we're gonna have to have a couple of sessions on this, okay? Because, yeah, we've got a gentleman up here, Luke. Okay, and Luke's, well I know a little bit about Luke, not a great deal, but what he sent me. But, you know, I met Luke in a space and he's got to me with some stuff that, you know, it’s pretty crazy guys. And someone else had the chance — I'll let Luke say that if he wants to, if he doesn't — but someone else had the chance at it, but like most people didn't want to go anywhere with it, guys. It's pretty hot. Okay, but there's a few things in it that we need to know. And I think that this gentleman can certainly educate us all a little bit. So we're gonna have, yeah, the two co-hosts, more or less just scanning the, the chat for idiots and trolls. If you see any guys, put your hand up or something. You know, I mean, ask for a speaker, even whilst me and Luke are talking. If you see trolls in, put your hand up for a speaker. I know exactly why you're doing it. The co-host will sort you out. Name them. Name them guys, shame them. All right. And then we boot them out. So that's the way it's going to run.
0:06:00 David Graham/[redacted]****— So, all right. So let's introduce Luke. Luke, how are you buddy? All right, hit, try your speaker again, Luke. Hit it once.
Cathryn Gibson[redacted]****— Hi everyone, nice to see everyone here and I'm looking forward to this conversation tonight with Luke. I think he's on now, Guru, so... Hi,
Mel. Nice to see you…
Unidentified speaker — How are you going, guys?
Cathryn Gibson/ [redacted]****— Yeah, good, good. Okay. Okay, let's go for it, Luke.
David Graham/[redacted]****— All right, Luke, you all right, mate?”
These introductions quickly lead into allegations of paedophilia, not only about the OTO and the plaintiff, but also the judges, magistrates, police, politicians and other authority figures who share their perverted sexual drives and help their comrades (such as the plaintiff) to win cases in court.
Although the defendants told the court they deny playing any role in the publication of the imputations, the following features are evident from the text of what was said (as set out in the full transcripts tendered by the plaintiff):
(a) The format of the publications: All three publications were podcasts streamed live on X Space and then placed on the X page run by the first defendant. The structure of these podcasts was designed to limit participants’ ability to express their views about political and social events to those acceptable to the hosts. (b) How the defendants controlled the content**:** Persons wishing to participate in the discussion would have to wait until their bona fides had been checked by members of the first defendant’s “crew”, which on the dates in question here was the second defendant. The second defendant checked each person’s X profile on social media before permitting each such checked-out applicant to “come in” to hear the debate. There was a further checking process before any persons hearing the debate were given a “mic”, namely a microphone. The purpose of this careful procedure was, as the second defendant explained in her oral submissions, to ensure that only persons whose views accorded with the Guru and his crew were permitted to enter into the debate. Those who held contrary views, whom the second defendant described as being “cooker watchers” or “trolls”, had to be excluded as they could undermine the defendants’ messages and warnings to listeners by introducing contrary views. With one exception (a person designated as “@Cookerwatch”, whose contribution was swiftly terminated), their views are homogenous. (c) Place of publication: Publication extended beyond New South Wales and Australia in that some of the participants (notably many of the invited speakers, who referred to American political issues), such as Luke, were outside the jurisdiction (his words were, nevertheless, published in Australia: Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; 77 ALJR 255; 194 ALR 433 at [4], citing Bata v Bata [1948] WN 366; Ramsey & Ors v Vogler [2000] NSWCA 260 at [36]). As is set out in more detail below, I have rejected the first defendant’s submission that the plaintiff can only rely upon publication to Australians within Australia. (d) Identification: The plaintiff is named in each of the matters complained of (at lines 26 - 44 in the first publication, lines 54 – 55 in the second and repeatedly in the third), which were podcast live on X Space and then posted on X. (e) Extent of publication: The affidavit of Mr Connor of 11 June 2025 sets out the number of persons accessing the site as at the time the statement of claim was filed as 2.1K, 3.3K and 1.9K listeners respectively. The first plaintiff’s X account has over 8,500 followers. There is evidence of republication on the Cookerwatch website from the third party podcast transcripts tendered by the second defendant. (f) The grapevine effect: During the matters complained of, the first defendant urged listeners to retweet and share the contents of the matters complained of. The transcripts of podcasts tendered by the second defendant demonstrate that extracts from these “Guru ‘n’ Crew” podcasts relating to the plaintiff were picked up by other podcasts such as “Cooker Watch” at the time of podcast and were still being discussed as recently as May 2025. (g) : The three live podcasts, published over a period of about ten days, were repetitive in content as well as referring to each other. The three podcasts totalled 9 hours and 46 minutes. (h) : The plaintiff sent a concerns notice to the first defendant on 25 March 2024 and to the second defendant on April 18, 2024. These requests to take down the podcasts published on X following the live discussion were ignored until some time after the plaintiff commenced proceedings on 10 September 2024, which is about 8 months. (i) All three publications asserted that the plaintiff was the leader of an international organisation engaged in criminal activities including paedophilia and child abuse, that he was the leader of a cult concerning itself with child abuse and that he had committed perjury. His leadership role in OTO, which Luke claims had taken over other organisations such as Freemasons, Rotary and the Catholic Church, is portrayed as part of a vast paedophile conspiracy. Named judges, courts and tribunals, members of the Royal family and politicians are all said to have actively colluded with the OTO (and thus the plaintiff) to promote and enjoy child rape and murder, the drinking of children’s blood and were prepared to commit perjury to cover this up. Each of the podcasts describes a world coming to an apocalyptic nightmare end unless, in a “Night of the Long Knives” or “St Valentine’s Day Massacre”, these “satanists” were removed from power. These would be a war involving all countries, for which the listeners must be prepared, including having sufficient rations and ways to meet up after the conflagration occurs. (j) As is set out above, this is a “cooker” website but, thanks to the first defendant’s letter to the surfclub and the imminent hearing of the criminal charges for the Guru harassing journalist Ben Fordham (discussed at some length with Luke in the second matter complained of), he attracted wider public interest than was otherwise the case, which may account for the higher number of listeners to the second matter complained of and the first defendant’s justification for his conduct, some of which is referred to in the transcripts tendered by the second defendant. (k) : The contents of the publications show that both the first and second defendants had the ability to cancel, mute or switch off Luke’s audio privileges in the same way that they cut off any listeners “named and shamed” as trolls or cooker watchers. (l) : The first defendant introduced Luke in the first matter complained of as being a guest speaker who would be exciting to listen to. Similarly, at the commencement of the second matter complained of, the first defendant expressed pleasure in the second podcast’s contribution at the commencement (lines 12 – 13) that Luke was back to tell more, and added that he would be following Luke’s “hot” (line 21) revelations in future podcasts (lines 15 – 16). The reference to “publications” in the future is particularly telling as the third matter complained of was podcast 5 days later.
(a) The first matter complained of: After explaining how the audience call-in system works and an outline of other topics on the podcast’s agenda, the first defendant says, at line 74 of the first matter complained of: “[T]hey’re going to try and take you out guys. All right, we are in a war”, referring to “shooting people in the head with bullets” (lines 73-74). He then introduces Luke as a speaker (“Come on in”) (line 196). Luke’s opening words identify the plaintiff, Mr Bottrill, as an example of “this system in Australia” (lines 80 – 82), in that he was the “leader of a paedophile cult” (at line 84) namely OTO. Luke says that Mr Bottrill, this cult’s leader, had been captured “on camera admitting to a doctrine of drinking human blood and orgies with children” (lines 87 – 88), a claim which listeners could verify “if you go to the Age newspaper” (lines 88 – 90). The plaintiff and his fellow members had the support of fellow “satanists” in a number of law enforcement and judicial positions, so there was great danger to those who chose to oppress them. Luke, the listeners and the first defendant refer to being followed, threatened and in danger of being targeted and “taken down” (line 145). The second defendant thanks Luke at line 127 and explains to the listeners what to do if they wish to comment. There is then a discussion of s 60 of the Crimes Act 1900 (NSW) and the second defendant invites further comments about “the Israel-Palestine conflict”. The session ends with the second defendant inviting Luke to join in (line 182), following which Luke tells the first defendant that they are friends because “we have a common enemy” (lines 194 – 195). (b) The second matter complained of: The first defendant explains that there are “a couple of co-hosts” who would “look after the room” (lines 10 – 12). The first defendant starts by referring to the need for everyone to “hit that share button”, “hit it, retweet it, let’s get a lot of people in here guys” (lines 14 – 15) because the first topic was going to be the return of Luke to continue from the previous session. The first defendant complains he is being followed 24 hours a day. At lines 33 – 34, the second defendant says she is “looking forward to this conversation tonight with Luke”. The first defendant tells the listeners that Luke is overseas and a “political refugee” because of the danger he faces from those he is trying to expose, a sentiment with which the second defendant concurs, referring to “BS” that was “unbelievable” (lines 66 – 68), following which she sends messages to listeners and then says she has “a whole lot of shit going on at home at the moment” and has to leave (lines 89 – 90). At lines 101 – 105, the first defendant provides encouragement to Luke and when a listener expresses critical views, he is criticised and told to “knock it off”. The discussion about child porn spammers and paedophiles continues up to line 165, where there is discussion of proceedings brought by the plaintiff against Katrina Bailey. The plaintiff is named at line 185 as having commenced proceedings and as having falsely testified under oath “we in the OTO don’t drink blood and we don’t do stuff with kids” (lines 189 – 190). These proceedings are discussed at length and include allegations of systemic judicial corruption (Luke says, “what will happen to all these judges?” at line 208). There is discussion of a decision in the High Court of Australia and allegations are made about judicial officers and the Victorian Human Rights Commission. The allegation is that innocent persons were arrested because “if you disrespect Aleister Crowley – the great beast, 666, who wrote the poem Ballad to Passive Pederasty about the joy of boy sexual abuse – you have tangentially defamed a state-recognised religion of Satanism in Australia” (lines 250 – 253). There are then more references to named judicial officers connected to the “satanic cult” (line 267). This leads to the identification of the plaintiff, who is named at lines 277 – 278 as “David Bot[t]rill, leader of this cult, who has got a federal government position – I believe to be intelligence, but officially it’s immigration with stations…positions overseas – according to court records” (lines 277 – 280). Other speakers then come on to refer to other paedophiles, one of whom is named and said to be “treated with kid gloves” (line 293). The first defendant says that Luke has “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, all right?” (lines 363 – 364). A speaker thanks “Guru” and “Cath”, the defendants. Another speaker, Rick Lamsted, says he is “so excited” that Luke is “adamant to get this shit out” because he had never been able to talk about “this sort of stuff” to other people without their looking at him as if he was “an alien with the third eye in the middle of my head, you know?” (lines 385 – 388). This vivid illustration of the emotional vulnerability of at least one of the listeners is of significance to a serious harm finding. (c) : This runs for just over three and a half hours. Luke is introduced as the guest by the first defendant, who says “I love you in here. I love your info” (4:54 minutes) but adding “I don’t want you overtaking…every chat”. He tells the second defendant “get the mic going darling”, reminding listeners to “see if we can get as many people” on the podcast the following day, which will be “pretty huge” as there will be speakers from Texas. Listeners are warned that there are opponents “out there everywhere” who “are trying to stop us” just as there had been in the United States. This podcast devotes considerable time to the asserted collapse of the Masons, an organisation that is said to have been taken over by OTO, the international paedophile ring of which the plaintiff is the leader. The second defendant contributes that Masons were indeed being “captured” which was “fantastic” (11:47 minutes) as a mason had attempted to recruit her. This prompts the first defendant to bring in Luke because “you’ve given us the stuff” on Masons. Luke immediately attacks the OTO and there is a lengthy discussion of the corruption in courts in Australia for which these organisations are responsible as well as the “satanic child abuse” these people are all practising. An American Caller, “Maj Freddy” warns that the “St Valentine’s Day Massacre” is going to come for “the enemy” (51:25 minutes). This will include the Monarchy although 5 members of the Royal Family are already dead and have been replaced by fakes. At 59:20 minutes, the plaintiff is named as a perjurer. The first defendant had earlier said that “I want to be able to give you something to give you legal insurance against the OTO on this podcast, a strategy to protect you, a gem. Is that okay, because they’re hammering me, Luke, at the moment. Take the floor if you want it. Okay, for a minute. Who’s in there? Crikey, pull him up when you need to, mate. I’m just trying to work out who’s smashing this thing in the background, all right” (lines 9 – 13). This “legal insurance” is that Mr Bottrill is a perjurer helping “David Shriven, the global head of the cult, who [sic] David Bottrill on his submissions [to the Australian Charities and Not-For-Profit Commission]” (lines 38 – 40). He is described as “David Bottrill, you know, who sues everyone, says we don’t have these abuse rituals and sends people to gaol for it. But his own documents say the global head is the guy that I’ve got on camera that does say that these abuse rituals are mandated. So he’s done for perjury and this guy is an intelligence officer. Anyway, you’ve got that angle to which you talked about last time to shut them down” (lines 44 – 48). This shutting-down process is also part of the “strategy” or “gem” that the first defendant promised to the listeners who were concerned about being sued for participating. At line 97 of the transcript attached to the statement of claim, a user named BoJo says “thanks Guru and Catherine and Mel and everyone that joins us every night”. BoJo expresses concern about how they will continue to meet if the “they happen to shut everything down” (line 104). This is not simply a concern about this program being shut down; they are talking about social overthrow by “the deep State” (line 122) where “you’ve got no food, you’ve got no water, you’ve got no nothing” (lines 119 –120). The first defendant replies that it is good that “we have a commander in chief, a wartime commander in chief” although “at the same time [y]ou’ve got a president who is not” (lines 131 – 132), as “there’s one leading us up into a [sic] brink of World War III” (line 135) who is “illegitimate” because “the election was rigged” (lines 135 – 136). The speaker, who has identified himself as a retired army veteran calling into the podcast from the United States, Major Freddy adds that that “Donald Trump is in charge, guys”(line 154) and that those who are “dead asleep”, to be “honest”, would “learn the hard way” that “it’s definitely going the way it’s supposed to go” (lines 151 – 152) in “that shaking that’s gonna occur” (lines 153 – 154). The “real life example” of those who would face this retribution was “David Bottrill, that I complain about, head of the OTO and also works for the Australian intelligence services, proven” (lines 157 – 158). He feared, however, that they were too powerful to be overcome and that these names would still be kept secret (line 165). Already, two people had been sent to gaol without trial in Australia. One of these powerful persons was going to “be a witness for David Bot[t]rill” in the Australian Capital Territory (line 175 of the transcript or the third matter complained of as attached to the statement of claim). The rest of this lengthy podcast deals with preparations for the coming apocalypse; the country is already under occupation because 4 million people did not vote and the Australian Government would have to step down (1:13:01 hours), which was just as well because the Government was responsible for the “millions of deaths” caused by the Covid vaccine (1:19:00 hours). The American Government was similarly compromised because “that’s not the real Joe Biden”. All these countries were now preparing for war and were planning to kill teenagers because “they do want these young ones” (1:35:48 hours) as well as transporting food for hundreds of thousands of people (1:56:55 hours). The second defendant concludes by thanking all the “wonderful speakers tonight”.
Section 10A of the Act sits within a national uniform framework (Defamation Act 2005 (NSW), s 10A; Defamation Act 2005 (Vic), s 10A*;* Defamation Act 2005 (Qld) s 10A; Defamation Act 2005 (SA), s 10A; Defamation Act 2005 (Tas), s 10A; Civil Law *(*Wrongs) Act 2002 (ACT), s 122A; the equivalent provision in the Northern Territory, Defamation Legislation Amendment Bill 2025 (NT), is now tabled in the Northern Territory Government. There is no equivalent provision in Western Australia.
The law in this area may now be regarded as settled, in that there is a body of consistent authority at appellate level (MG v PJ [2025] QCA 99; Selkirk v Wyatt (2024) 302 FCR 541; [2024] FCAFC 48; Qu v Wilks [2023] VSCA 198). These judgments are is turn informed by the availability of over a decade of decisions of the courts of England and Wales (the most commonly cited being Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27) and, as a bridge between these two developing lines of authority, a consideration of the relevant principles applicable in England by judges of the New South Wales Court of Appeal (Rader v Haines [2022] NSWCA 198). Even the first instance judgments from which these appeals came were consistent in content and, in addition, it is noteworthy that the judgments appealed from were all upheld. This consistency of opinion is important because challenges to s 10A rulings have at times asserted that the s 10A interlocutory hearing is a complex procedure involving precise particulars of everything from extent of publication to proof of damage and a mini trial where cross-examination is required.
Two aspects of the s 10A hearing should be noted:
(a) The nature of the s 10A hearing, which has now been set out and explained in MG v PJ at [92] – [93]. (b) The nature of the evidence to be led and the degree to which actual evidence, as opposed to inference, is required.
As to the first, I have been guided by the Court of Appeal of the Supreme Court of Queensland’s analysis of the interaction between fact and inference in relation to police conduct and beliefs in circumstances where those officers did not give evidence (at [94] – [124]). As is the case in the courts of England and Wales, it is not the intention of the legislature or the courts to turn serious harm findings into “mini trials”
As to the second, cases such as the present where the evidence is largely inferential need to be determined on their facts, as Wheelahan J explains in Mond v The Age Company Pty at [370].
However, it is necessary to avoid speculation. In Peros v Nationwide News Pty Ltd *(*No 3) [2024] QSC 192, Applegarth J stated at [416]:
“An inference is not to be confused with speculation. To prove serious harm by inference, or almost exclusively by inference, the inference must be more compelling than competing inferences that are reasonably open on the evidence.”
(a) Ground 1: The second defendant states that the plaintiff’s claim of emotional distress or fear of violent acts lacks evidence of reputational loss and is insufficient to cause serious harm. The podcasts were not focused on the plaintiff, who is only mentioned incidentally in circumstances insufficient to cause significant reputational damage. This was because of the niche nature of the audience, most if not all of whom, if they identified the plaintiff at all, would have already held a poor opinion, if not of the plaintiff, then certainly of those with whom he was alleged to have connections. (b) Response: The plaintiff’s emotional distress is irrelevant to serious harm. What the plaintiff must establish is damage to reputation. The plaintiff was indeed a main focus of each publication; the special guest on each program was Luke, and his attacks on the plaintiff formed the central part of his peroration. Serious harm is shown by the plaintiff’s long record of suing publishers of Luke’s grave and untrue allegations; one of the transcripts tendered by the second defendant shows him attempting to confront Luke in a recent podcast. These publications were not just made to a “niche” audience; even for just the live podcasts, there were listeners who had not yet become hardened conspiracy theorists. For example, the response of Rick Lamsted at the end of the second matter complained of shows his enthusiastic reaction to Luke’s description of the plaintiff. (c) Ground 2: The plaintiff’s “calm” statements in the X social media transcripts the second defendant has tendered undermine his distress claims. His history of bringing similar claims where, it is asserted, there was minimal evidence of harm, reinforces this. (d) Response: The plaintiff’s conduct in bringing a series of defamation claims against those who have published Luke’s attacks on him over the past decade is not evidence that the harm was minimal, especially in circumstances where Luke said, during the podcast, that he had won these cases by perjuring himself as he really was a paedophile and the OTO practised and promoted paedophilia. The first defendant endorsed these comments and told listeners that they need not fear the plaintiff would sue them because they could point to this perjury to avoid liability. (e) Ground 3: The second defendant’s “co-host” role, “disconnections” and “absence” during the interviews with Luke and the intervening comments from the audience sever any causation of harm caused by her. (f) Response: As the summary of the matters complained of show, the second defendant in fact welcomed Luke and, at the commencement of the second podcast, said she was looking forward to hearing from him again. (g) Ground 4: The plaintiff’s “long history of litigation over similar matters suggest his reputation is accustomed to such claims”; his use of search engines to find and pursue publications about himself are indicative of his using the court system to obtain damages rather than because of any asserted serious harm to his reputation. (h) Response: See 1 - 3 above. (i) Ground 5: The Court mischaracterised the second defendant’s defence as solely being denial of publication and overlooked her entitlement to raise s 10A. (j) The second defendant’s application has in fact been heard and this judgment is the result. (k) Ground 6: The second defendant’s personal hardship which included caring for her husband, her son and her elderly parents, warranted special consideration by the Court. (l) Response: Personal hardship is irrelevant to a serious harm claim. (m) Ground 7: The second defendant has obtained, and should be permitted to lead, evidence. (n) Response: The second defendant has been encouraged to put before the court any evidence she has. No objection has been taken by the plaintiff. The evidence the second defendant has tendered, in the form of podcast records and transcripts of other podcasts, has been some of the most conclusive evidence of the serious harm inflicted on the plaintiff by these allegations.
“4. In so far as Second Defendant has made an application for determination of the serious harm element by way of Motion filed on 12 May 2025, s.10A(5) is engaged.
5. Both the ‘scale’ of a publication and the identities of the publication’s recipients are relevant to a determination of the serious harm element in Mond v The Age Company Pty [2025] FCA 442, Wheelahan J (at [370] specified a non-exhaustive list of matters relevant to determination of the element, including:
(a) the inherent tendency of the defamatory matter and its actual or probable impact on those to whom it was published, in other words, the gravity of the imputations;
(b) the extent of publication, any likely republication, and any likely “grapevine effect” or “percolation”
…
(d) the reputation of the publisher – a defamatory publication by a generally reputable publisher that is represented as being reliable and the product of research might be more capable of causing serious harm than one by a published that is not so reputable;
(g) the identity of the person”.
6 It is submitted that the authorities – including Mond – do not exclude a requirement, in appropriate circumstances, for a plaintiff to plead and prove establishment of the serious harm element by way of ‘direct evidence’. Indeed, in Mond, Wheelahan J considered various items of direct evidence tendered by the plaintiff (at [389] and [397]-[402]) – and nevertheless resolved the question in the plaintiff’s favour despite the shortcomings in the direct evidence. Whether direct evidence will be required will depend upon all the circumstances including the gravity of the imputations and the scale of publication. It is submitted that as much is confirmed in the Court of Appeal’s observation in *Newman v Whittington [*2024] NSWCA 27 (Per Leeming JA, Stern JA and Simpson AJA at [48]):
“(The serious harm element) may be established by evidence, or by admission. Further, actual serious harm, or the likelihood of serious harm, to the Plaintiff’s reputation, may also be established by inference from other facts, including the nature of the publication and the imputations it contains”
In additional oral submissions made on 12 June, Mr Armitage expanded these comments to assert that Wheelahan J’s observations not only meant that “direct evidence” was required but that the evidence of publication had to be “substantial”. Applying those two requirements to the disclosed names of the speakers, only 4 of the speakers for the first matter complained of, 3 for the second matter complained of and 8 for the third matter complained of were Australians, with the balance being from overseas countries such as the United States of America. Those speakers would already have had a poor view of the plaintiff, whether they had heard of him or not.
I have rejected the submission that the plaintiff can only rely on publication to Australians in Australia who were invited to speak; he is entitled to rely upon all listeners and all speakers who participated as well as those who later listened on X and those to whom these podcasts were shared or otherwise forwarded on.
It is often stated that the determination of serious harm is “not a numbers game”. Even if only a small number of persons heard these publications, damage amounting to serious harm could still be done.
However, I am satisfied that, in addition to direct evidence pleaded and particularised, the “platform of facts” evidence points to an audience of thousands, over a period of more than eight months.
“This case provides a distressing illustration of the devastating harm that can be caused by the mischievous use of the internet as a medium for defamatory publications.”
Publication of extreme allegations of the kind seen in these matters complained of, especially on the internet and in social media, have changed the nature of public discourse from a forum of debate to the language of a lynch mob. The so-called “blood libel” allegation (rape and murder of children and the drinking of their blood) featured here is a particularly serious charge. Persons under attack for paedophile activity have told the courts they have had to move home or work for safety reasons (Rothe v Scott *(*No 4) [2016] NSWDC 160; Martin v Najem [2022] NSWDC 479; Newman v Whittington [2022] NSWSC 249). In Rothe v Scott (**No 4), where similar allegations were made on social media, there were two attempts on the plaintiff’s life and his wife had to move interstate. Mr Rothe took steps similar to Mr Bottrill to try to stop these allegations; for example, he wrote 10 letters to the defendant pleading with him to withdraw the allegations, and asked a friend tried to speak on his behalf at a meeting of business persons of which the plaintiff had previously been the president. The defendant responded with more abuse and the friend was howled down at the meeting by those present.
In the United States, the increasingly serious impact of internet attacks, especially allegations of paedophilia, has been the subject of academic commentary (Cortelyou C. Kenney, “Defamation 2.0”, 56 Loy. L.A. L. Rev. 1 (2023)).
Similarly, in the United Kingdom, courts have shown a greater readiness to accept serious harm has occurred where the evidence was largely inferential in nature if allegations of this kind are made. In Parsons v Garnett & Anor, the plaintiffs sought not only a ruling on serious harm but also default judgment even though (as is the case with the second defendant in these proceedings) publication by one defendant was denied. The matters complained of were “poison pen” allegations which included association with convicted child-abusers. These were circulated in the small village where the plaintiffs lived and then republished on a Facebook page with over 2,000 members.
In acceding to an application for default judgment, Collins Rice J identified her reasons for finding serious harm at [33]-[37]. Her Honour gave four factors at [34] for holding that serious harm was established:
34. The defendants take issue however, encouraged by Charakida v Jackson, with the pleaded case on serious harm. The case against Mr and Mrs Garnett relies on a combination of (a) the gravity of the pleaded (and not extravagant) meanings, (b) the anonymous poison-pen format and the village context, calculated to, and likely to, fuel gossip, (c) the salacious and tendentious content, including a reference to a well-known public figure to whom rumours of links to a convicted child-abuser have persistently attached – also calculated to fuel gossip and (d) specified cases of onward publication, including to a local community Facebook group of around 2,000 members.
35. In my view, this is a soundly pleaded case of serious harm, properly particularised in accordance with the decided authorities. It is heavily inferential, but the facts from which inference is invited are set out, and an inference of the causation or likely causation of serious reputational harm in the local community based on those facts is not on the face of it unreal. It is classically what anonymous poison pen letters have a propensity to do, in a village context. It is their whole point.
36. The case against Ms Armistead differs only in relation to the much more limited category of immediate publishees. But again, anonymous letters are purpose-built engines of local gossip. That, and the content of this letter, gets a case of serious harm off to a sound start, even where the initial publishees are few ('it is not a numbers game'). The strength of the ultimate case against Ms Armistead might well have depended on the evidence of those immediate publishees, their personal propensity for onward dissemination of the allegations, and/or the claimant's ability to establish causation of serious harm by means of this particular act of publication rather than any of the other acts also sued upon. But I am not persuaded that 'at least some consideration of the merits' requires or enables me to speculate about that.
37. So I am satisfied this is a claim which, as pleaded, sets out a functioning case of serious harm which it not 'unreal' and is capable of sustaining default judgment.”
Those four factors are readily identifiable here.
It used to be said that the damage done by print publications such as a book or newspaper could be expected to "fade with time", to use the phrase often employed in contempt publications (DPP v Kan Tim Ho [2009] VSC 394 at [5]), but the concept of reputation as geographically limited where the publication is made internationally on the internet (particularly social media) has long gone, and is now replaced by what the eSafety Commissioner calls “digital reputation”. The eSafety Commissioner website explains: “Your digital reputation can affect your friendships, relationships and even your job prospects for the rest of your life, so it is important to be careful about how you are seen online” (https://www.esafety.gov.au/key-topics/staying-safe/digital-reputation#:~:text=Your%20digital%20reputation%2 0can%20affect,how%20you%20are%20seen%20online). It is not difficult to think of examples of how damage to this digital reputation by allegations of heading a paedophile cult and/or committing perjury could, if seen by the appropriate authorities, lead to a wide range of punitive actions ranging from denial of visas to refusal of employment. As the eSafety Commissioner warns, that damage can be lifelong (“God forgives and forgets, but the Internet never does”: Viviane Reding, Vice-President of the European Commission, European Data Protection and Privacy Conference, 30 November 2010).
I next note the defendants’ submissions that serious harm is a complex issue because it is not defined in the Act and because any such hearing must proceed by way of formal evidence as a sort of mini-trial.
“Serious harm” is not defined in the Act, but it is a term commonly used in legislation at State (e.g. Mental Health *(*Forensic Provisions) Act 1990 (NSW), cl 2) and at Commonwealth level. Unless otherwise defined, this commonly used legislative term has an ordinary English meaning which depends on and is construed in relation to the context in which the expression is used, such as the kind of harm to which it is addressed. In VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1, the High Court noted and applied the “serious harm” test set out in s 91R(1)(b) of the Migration Act 1958 (Cth). If the appropriate kind of harm identified in the statute, that must be relied upon; for example, the statutory definition of “serious harm” in s 5 of the Online Safety Act 2021 (Cth) warns that that mere “distress, grief, fear or anger” will not be sufficient particularisation. No special meaning is accorded to “serious harm” in defamation, and it should be construed conformably with the approach taken in the appellate courts.
(a) The cost implications for the parties. (b) The resources available to the court at the time. (c) The extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.
No submissions were made by the defendants in relation to any of these three categories.
The main complaint the defendants made was that they could not obtain documents from X. The basis for their complaints is difficult to understand, as they have been supplied by the plaintiff’s solicitors with complete transcripts (audio and print), X-generated information and extensive affidavits from Mr Connor setting all this information out.
To assist the defendants, I suggested that they serve categories of documents or indicate what documents they needed to subpoena from what persons or organisations. The second defendant provided a list of material which appears to go only to credit and the first defendant has not provided any specifics at all. In the absence of any cogent evidence, a finding of special circumstances should not be made. In fact, all of the factors listed in s 10A(6) favour the plaintiff.
The contents of each of these three lengthy matters complained of are exceptional in terms of the gravity of their allegations and the likelihood of serious harm to the plaintiff’s reputation and even his physical wellbeing. Although the first defendant and his many overseas contributors attack others as well, an important strand of their warnings to the audience is that these paedophiles (the OTO and its “leader”, the plaintiff) are taking over, and what is needed is a Night of the Long Knives “to take them all out” (third matter complained of at 1:09:00 minutes).
These publications remained on X for most of 2024, where they were readily accessible. The extent of worldwide publication could be vast. Many of those who speak or listen have their own podcasts and social media sites with thousands of followers, as Mrs Gibson acknowledged in her oral submissions, and the first plaintiff urged the listeners to share and like the podcasts.
In such circumstances, this is that rare case where inferential evidence alone would succeed. There is, however, also a considerable amount of direct evidence of extensive publication, republication and grapevine material over a long period of time to a large audience and there is direct evidence of the steps the plaintiff has had to take in the past when others have published these allegations. Serious harm is, therefore, established.
All of the parties have financial constraints. The prospect of a mini-trial on serious harm taking place at great expense outside the trial was always undesirable (s 10A(6)), but the second defendant insisted.
The best solution is to allocate the hearing date now. I informed the parties during the hearing of the application that a trial date for these proceedings could be accommodated in February or March of 2026 if the hearing estimate was four days plus. The parties told me that this length estimate was correct and that dates in this period were convenient. I have made orders accordingly.
An additional difficulty that arose during the hearing was the second defendant’s use of Generative AI in one of her submissions. I briefly note what occurred.
On 18 December 2024, the District Court adopted the Supreme Court Practice Note SC Gen 23 – Use of Generative Artificial Intelligence, which sets out, in paragraphs 7 – 25 a series of requirements for both legal practitioners and unrepresented parties to use caution when presenting affidavits, submissions and expert reports to the court as to the use of Gen AI. Paragraph 16 sets out restrictions in relation to written submissions and summaries of argument, to the effect that the author must verify, in the body of the submissions, that all citations, legal and academic authority and case law and legislative references not only exist but are accurately summarised. The District Court General Practice Note 2 commenced 3 February 2025.
The second defendant’s Notice of Motion, affidavit and Amended Defence contain some references to authorities, but the submissions she relies upon are those provided late in the evening of 21 May 2025.
When the parties came before the court on 22 May 2025, there had been little time for the plaintiff, the first defendant and the court to examine the second defendant’s written submissions served late on the night before. It was nevertheless immediately apparent that the second defendant sought to rely upon authority and court rules which were not merely misstated but, in some circumstances, imaginary. I am satisfied that all of the judgments and rules referred to in the submissions of 21 May 2025 were misstated, non-existent, or both, and that Gen AI had been used to prepare these submissions.
An example was the citation of a decision of the Supreme Court of New South Wales described as “Wu v Wilks” (I will not provide the citation given in full, as there is a risk of it being picked up as genuine by other Gen AI: Luck v Secretary, Services Australia [2025] FCAFC 26 at [14]). There is no decision with this name, either in the Supreme Court of New South Wales or in any other jurisdictions. The caselaw citation given for “Wu v Wilks” belonged to a judgment on wholly unrelated material and the principles of law for which it was cited. All of the citations suffered similar problems.
I drew these issues to the attention of the second defendant and enquired whether she had used Gen AI in the preparation of her submissions and, if so, whether she was aware of the Practice Note. She acknowledged that she had done so but said this was because she had very little time to provide submissions in reply and was deeply distressed by these proceedings.
The use by any legal practitioner of Gen AI to generate misleading arguments and/or non-existent caselaw has been viewed seriously by courts in Australia (Valu v Minister for Immigration and Multicultural Affairs *(*No 2) [2025] FedCFamC2G 95; 386 FLR 365 at [14] – [38]) and by other common law jurisdictions.
However, the same approach may not be appropriate where the use of such material by a litigant in person occurs. Beach JA’s response in Nikolic v Nationwide News Pty Ltd [2025] VSCA 79, was to ignore the submissions in question. A similar approach was taken in Nash v Director of Public Prosecutions *(*WA) [2023] WASCA 75 (at [9]) and Luck v Secretary, Services Australia [2025] FCAFC 26 (at [14]).
Both defendants have been afforded every opportunity to present their cases, including pro bono legal assistance, extensions of time to file material and adjournments. They have not been put under pressure from the court in any way, although I have reluctantly imposed guillotine orders where the delays became repeated. No costs orders have been made against them. Much of this forbearance comes from the courteous assistance afforded to the court by the plaintiff’s legal representatives and the pro bono lawyers assisting the first defendant.
Nevertheless, it should be stated that it is not to the credit of the second defendant that she put false AI-generated material before the court, and it must not happen again.
Paragraph [26] - changed "by those of whom" to "by those who".
Bottrill
Graham & Anor
(2024) 302 FCR 541
(2006) 233 CLR 1