Brennock & Dixon v Norman

Brennock & Dixon v Norman - [2021] NSWSC 716 - NSWSC 2021 case summary — Zoe

Background

After I reserved for consideration of the matter I directed that a further directions hearing take place in order to seek further submissions and clarification on the question of identification. That directions hearing took place on 8 June 2021.
As a result I was informed that rather than each party making further submissions, a joint position would be presented. That occurred on 15 June.
That agreed position is that there is not any evidence before the Court that Articles 1-10 were accessible online at the same time as Articles 11-15.
The Plaintiffs reconsidered their position in light of that fact, and no longer pressed for a finding that the Defendant is guilty of contempt by reason of contravention of Fagan J's injunctions in publishing the following articles: 1. 16 May 2020 - "Nightcap Nightmare book in progress" (Affidavit of William Timothy Fitzgerald dated 13 July 2020 ("Fitzgerald (13.07.20)"), Ex. WF-1 at 146) ("Article 1"); 2. 24 May 2020 - "Land-share under colour of law" (Fitzgerald (13.07.20), Ex. WF-1 at 142) ("Article 2"); 3. 11 June 2020 - "Nightcap Village: New promises, old lies" (Fitzgerald (13.07.20), Ex. WF-1 at 122) ("Article 4"); 4. 13 June 2020 - "Nightcap Village - The inner circle" (Fitzgerald (13.07.20), Ex. WF-1 at 115) ("Article 5"); 5. 21 June 2020 - "The flight of the phoenix" (Fitzgerald (13.07.20), Ex. WF-1 at 100) ("Article 6"); 6. 21 June 2020 - "Free speech - Conditions apply" (Fitzgerald (13.07.20), WF-1 at 105) ("Article 7"); 7. 26 June 2020 - "Nightcap Village - A communitarian venture" (Fitzgerald (13.07.20), Ex. WF-1 at 92) ("Article 8");
The Plaintiffs still press for a finding of guilt in respect of Article 3 (30 May 2020 - "Activist Max Igan shills Aboriginal sovereignty scheme", Fitzgerald (13.07.20), Ex. WF-1 at 139), on the basis that Mr Dixon is identified by name in that article.
The Plaintiffs also still press for findings of guilt in relation to Article 9 (5 July 2020 - "Legends of curses on blackfella country", Fitzgerald (13.07.20), Ex. WF-1 at 150) and Article 10 (5 July 2020 - "Special offer on tribal title" (Affidavit of William Timothy Fitzgerald dated 2 September 2020 ("Fitzgerald (02.09.20)"), Ex. WF-1 at 156) on the basis that Mr Brennock is identified in those articles by the publication of his photograph.
While there was no evidence before the Court that any particular individual read those articles and recognised the photographs as photographs of Mr Brennock, the Plaintiffs submitted that there is a clear inference to be drawn, having regard to the nature of the articles, that the overwhelming number of readers would have been past, current or prospective investors in the Bhula Bhula or Nightcap Village communities who would have recognised a photograph of Mr Brennock (Plaintiffs' submissions dated 15 June 2021).
The Plaintiffs also pressed for findings of guilt arising from the publication of Article 11 (24 August 2020 - "Nightcap on Minjungbal: Phoenixing in action" (Fitzgerald (02.09.20), Ex. WF-1 at 1), Article 12 (29 August 2020 - "Pete Evans' new life" (Fitzgerald (02.09.20), Ex. WF-1 at 14, Article 13 (29 August 2020 - "Pete Evans promotes Nightcap on Minjungbal" (Fitzgerald (02.09.20), Ex. WF-1 at 16), Article 14 (31 August 2020 - "Pete Evans selling off-matrix tribal experience at Nightcap Village" (Fitzgerald (02.09.20), Ex. WF-1 at 20) and Article 15 (2 September 2020 - "Vincents notice to creditors: Bhula Bhula Intentional Community" (Fitzgerald (02.09.20), Ex. WF-1 at 31).
The Defendant relied on her submissions to the contrary previously made, as outlined below.

[4]

History of the proceedings

On 15 March 2017, the Plaintiffs (with Mark Darwin and Steven McSween, who have subsequently ceased any active role in the litigation) commenced defamation proceedings against the Defendant and the Nimbin Community School Cooperative Ltd trading as The Nimbin Good Times. The Plaintiffs complained of the publication of eight defamatory matters - an article in The Nimbin Good Times (a newspaper), a poster, three articles published on the blog www.thetruthabouttruthology.blogspot.com.au, and three articles on the blog www.mountwarningecovillagescam.blogspot.com.au).
The first and fourth matters complained of were published under the name "Gi Linda" and the others were published under the name "Free Radical". In her Amended Defence dated 23 April 2018, the Defendant admitted that she published each matter complained of.
On 8 April 2020, Fagan J gave judgment for the Plaintiffs in the sum of $200,000 each, and ordered the Defendant to pay their costs of the proceeding (Darwin v Norman [2020] NSWSC 357).
On 6 May, his Honour made permanent injunctions as follows: (1) The Defendant is permanently restrained from publishing or republishing, or causing to be published or republished, the following matters (or any part thereof): [His Honour listed the first, third, fourth, fifth, sixth, seventh, and eighth matters complained of in the proceeding] (2) The Defendant is permanently restrained from publishing or republishing, or causing to be published or republished, any matter which conveys the following imputations, or any imputations which are not substantially different than the following imputations: (a) Adrian Brennock defrauded investors in the Bhula Bhula and Nightcap Village communities. (b) Phillip Dixon defrauded investors in the Bhula Bhula and Nightcap Village communities. (c) Adrian Brennock engaged in misleading or deceptive marketing of residential lots in the Bhula Bhula and Nightcap Village communities. (d) Phillip Dixon engaged in misleading or deceptive marketing of residential lots in the Bhula Bhula and Nightcap Village communities. (e) Adrian Brennock is or was under investigation by the police in relation to the Bhula Bhula or Nightcap Village communities. (f) Phillip Dixon is or was under investigation by the police in relation to the Bhula Bhula or Nightcap Village communities. (g) Adrian Brennock bullied investors in the Bhula Bhula community. (h) Phillip Dixon bullied investors in the Bhula Bhula community. (i) Adrian Brennock stole property belonging to investors in the Bhula Bhula community. (j) Phillip Dixon stole property belonging to investors in the Bhula Bhula community. (k) Adrian Brennock preyed on sick and vulnerable people by falsely advertising medicinal cannabis. (l) Phillip Dixon preyed on sick and vulnerable people by falsely advertising medicinal cannabis.
The Plaintiffs in this hearing relied primarily on a breaches of 2(a), (b), (c) and (d) of the injunction, and to a lesser extent, on breaches of 2(g) and (h) (T.3/30-31).
On or about 6 May 2020, the plaintiffs' solicitor became aware of a blog at the URL address www.nightcapnightmare.com ("the Website") which contained articles concerning the Bhula Bhula and Nightcap Village communities.
The Website is said to be administered by "Free Radical", which is claimed to be "The screen name of an association of authors who are contributors to a book in progress titled Nightcap Nightmare" (Fitzgerald (13.07.20)), Ex. WF-1 at 148). An article on the Website published 16 May 2020 identifies "Gi Linda" as the editor of the "Nightcap Nightmare" book (Fitzgerald (13.07.20), Ex. WF-1 at 146). Gi Linda is the nickname by which the Defendant is usually known (Affidavit of Adrian Peter Brennock (17.07.20) at [7]). In the 2020 proceedings, the Defendant admitted to publishing two of the matters complained of under the name Gi Linda and six under the name Free Radical. In her written submissions, the Defendant accepted responsibility for each of the impugned articles (at [3]).
The articles impugned in the Plaintiffs' Amended Statement of Charge were: 1. 16 May 2020 - "Nightcap Nightmare book in progress" (Fitzgerald (13.07.20), Ex. WF-1 at 146) ("Article 1") (no longer pressed as of 15 June 2021); 2. 24 May 2020 - "Land-share under colour of law" (Fitzgerald (13.07.20), Ex. WF-1 at 142) ("Article 2") (no longer pressed as of 15 June 2021); 3. 30 May 2020 - "Activist Max Igan shills Aboriginal sovereignty scheme" (Fitzgerald (13.07.20), Ex. WF-1 at 139) ("Article 3"); 4. 11 June 2020 - "Nightcap Village: New promises, old lies" (Fitzgerald (13.07.20), Ex. WF-1 at 122) ("Article 4") (no longer pressed as of 15 June 2021); 5. 13 June 2020 - "Nightcap Village - The inner circle" (Fitzgerald (13.07.20), Ex. WF-1 at 115) ("Article 5") (no longer pressed as of 15 June 2021); 6. 21 June 2020 - "The flight of the phoenix" (Fitzgerald (13.07.20), Ex. WF-1 at 100) ("Article 6") (no longer pressed as of 15 June 2021); 7. 21 June 2020 - "Free speech - Conditions apply" (Fitzgerald (13.07.20), WF-1 at 105) ("Article 7") (no longer pressed as of 15 June 2021); 8. 26 June 2020 - "Nightcap Village - A communitarian venture" (Fitzgerald (13.07.20), Ex. WF-1 at 92) ("Article 8") (no longer pressed as of 15 June 2021); 9. 5 July 2020 - "Legends of curses on blackfella country" (Fitzgerald (13.07.20), Ex. WF-1 at 150) ("Article 9"); 10. 5 July 2020 - "Special offer on tribal title" (Affidavit of William Timothy Fitzgerald dated 2 September 2020 ("Fitzgerald (02.09.20)"), Ex. WF-1 at 156) ("Article 10"); 11. 24 August 2020 - "Nightcap on Minjungbal: Phoenixing in action" (Fitzgerald (02.09.20), Ex. WF-1 at 1) ("Article 11"); 12. 29 August 2020 - "Pete Evans' new life" (Fitzgerald (02.09.20), Ex. WF-1 at 14) ("Article 12"); 13. 29 August 2020 - "Pete Evans promotes Nightcap on Minjungbal" (Fitzgerald (02.09.20), Ex. WF-1 at 16) ("Article 13"); 14. 31 August 2020 - "Pete Evans selling off-matrix tribal experience at Nightcap Village" (Fitzgerald (02.09.20), Ex. WF-1 at 20) ("Article 14"); and 15. 2 September 2020 - "Vincents notice to creditors: Bhula Bhula Intentional Community" (Fitzgerald (02.09.20), Ex. WF-1 at 31) ("Article 15").
The Plaintiffs' solicitors wrote to the Defendant on 5 June 2020 to put her on notice of their opinion that the articles published on the Website were contrary to the injunctions, a copy of which he re-served on her (Fitzgerald (13.07.20), Ex. WF-1 at 77-83). The Defendant replied by email on 12 June 2020 (Fitzgerald (13.07.20), Ex. WF-1 at 84), admitting that she was the "editor of the book in progress published at nightcapnightmare.com" and asserted that she was "not solely responsible" for its authorship and "not authorised to remove it". In her affidavit in the proceedings, however, the Defendant has subsequently admitted she is in fact "authorised to edit and/or delete all or any part of the blog" (Affidavit of Gillian Linda Norman dated 1 October 2020 at [2]).
The Defendant's substantive response to the allegation that the content of the Website infringed the injunctions was (Fitzgerald (13.07.20), Ex. WF-1 at 85): To the extent that imputations made by the group of defrauded investors publishing under the screen name "Free Radical" claim that investors in the land-share venture lost life savings when marketing representations were not fulfilled, the alleged fraud is imputed to the "Sovereignty Activists" who have controlled the land-share venture from its inception until the present. Adrian Brennock, as his affidavits and court transcripts clearly state, is not a "Sovereignty Activist" controlling the land-share venture. Therefore the imputations could not apply to him. Phillip Dixon does not publicly claim to be a "Sovereignty Activist" so the imputations do not apply to him. The "Sovereignty Activists" and their associates who we do identify in relation to the alleged scam are not named in the injunctions or the original claim.
Several articles identify the Plaintiffs by their full names. Article 3 directly named Mr Dixon as the Nightcap Village project manager" (Fitzgerald (13.07.20), Ex. WF-1 at 140). Article 11 (Fitzgerald (02.09.20), Ex. WF-1 at 1) refers to Mr Brennock by name numerous times: In 2017, Adrian Brennock drove purchase money creditors off the land without restitution. He then mortgaged the property and pushed for liquidation of the company owning the asset that would potentially divest company liability to creditors of over $2.25 million. At the same time, under the auspices of "Mt Warning Eco Village" and "Nightcap Village", Adrian Brennock continued the business of selling dwelling sites without approval on property where multiple occupancy is currently not permitted.
Mr Brennock is also identified by name in Articles 12, 13, 14 and 15 (Fitzgerald (02.09.20), Ex. WF-1 at 14, 16, 20, 31). Numerous articles also contain photographs of Mr Brennock. Article 9 contains a photo of him captioned as "Mr X" (Fitzgerald (13.07.20), Ex. WF-1 at 151). In Article 10, there is a photograph of him directly above the subheading "The mysterious Mr X" (Fitzgerald (13.07.20), Ex. WF-1 at 157). In Articles 11, 13, 14 and 15, there are numerous photographs of Mr Brennock captioned with his name.

[5]

Contempt

Disobedience to an injunction can constitute contempt of Court (Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 ("Mudginberri Station") at 107 per Gibbs CJ, Mason, Wilson and Deane JJ).
Where the alleged contempt is non-compliance with an order of the Court, it must be proved that the defendant intended to do the act amounting to the breach of the order. It is not, however, necessary to prove that the defendant intended to breach the Court's order, nor that they understood the true meaning of the Court's order, nor that they understood that the conduct constituted a breach of the order (Mudginberri Station at 111 per Gibbs CJ, Mason, Wilson and Deane JJ; Matthews v Australian Securities & Investments Commission [2009] NSWCA 155 at [16] per Tobias JA (Basten and Campbell JJA agreeing); Metcash Trading Ltd v Bunn (No. 5) [2009] FCA 16 at [9] per Finn J; Microsoft Corporation v Marks (No. 1) (1996) 69 FCR 117 at 143 per Lindgren J).
The elements of the offence of contempt of court were summarised by Perram J in Group Pty Ltd v Kazal (No. 4) [2017] FCA 1084 (at [73]) (and adopted by Adams J in Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193 at [38]): In a case of civil contempt, the Plaintiff must prove that: (i) an order was made by a court; (ii) the order was sufficiently clear such that one can be sure beyond reasonable doubt that the order was not complied with; (iii) the order was served on the alleged contemnor or that service was for some reason dispensed with under some lawful order; (iv) the alleged contemnor had knowledge of the terms of the order; (v) the alleged contemnor breached the order; and (vi) the alleged contemnor took a deliberate step which, even if not intended to, breached the order. What is necessary is not that the alleged contemnor intended to breach the order but rather than the order was breached and that the action constituting the breach was intended. Hence, casual, accidental or unintentional acts which breach an order are excluded.
In this case, the issue of the Defendant's potential liability for contempt turns on element (v) of the above, namely whether the injunctions were breached.
The standard of proof is beyond reasonable doubt (Witham v Holloway (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ). Therefore a breach of the injunctions is established only where the Court is satisfied beyond reasonable doubt that the relevant imputations (or ones that do not differ in substance) are carried by the particular publications.
This position appears analogous with that of interlocutory injunctions for defamation in respect of which Walsh J said in Stocker v McElhinney [No 2] (1961) NSWR 1043 (at 1048) that If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused. Indeed, it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.

[6]

Beyond reasonable doubt

There was longstanding authority for the proposition that, except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase "beyond reasonable doubt" (Green v The Queen (1971) 126 CLR 28 at 32-33 ("Green v The Queen"); La Fontaine v R (1976) 136 CLR 62 ("La Fontaine v R") at 71; R v Reeves (1992) 29 NSWLR 109 at 117).
However, most recently in The Queen v Dookheea (2017) 262 CLR 402 ("Dookheea") the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ writing unanimously) has made a number of important statements about the history of the phrase and obligations of a trial judge in directing a jury as to its meaning. These can, by extension, operate to guide a judge-only trial, as is case in these proceedings.
In Dookheea the Court noted that "historically, the notion that it is undesirable for a trial judge to attempt to explain to the jury what is meant by 'beyond reasonable doubt' took root at a time when it was conceived that the expression 'reasonable doubt' was a 'well understood expression'".
The Court then discussed the position in numerous cases on the topic at 416-417. In Thomas v The Queen (1960) 102 CLR 584 (at 595), Kitto J explained that the reason for avoiding explication of "beyond reasonable doubt" was because "whether doubt is reasonable is for the jury to say" and there is danger in attempting to define this by obscuring the "vital point" that the accused be given the benefit of any doubt considered reasonable by the jury. This point was reflected in Green v The Queen (at 33) in which it was stated that it is the jury themselves who decide what is reasonable in the circumstances. Further, in La Fontaine v R, Barwick CJ reiterated (at 71, Mason J agreeing at 87) that "it is both unnecessary and unwise for a trial judge to attempt" to explain a well understood formula.
Following from this, the High Court in Dookheea outlined the history of the development of the criminal standard of proof at 419-422. The Court concluded that the standard of "beyond reasonable doubt" had developed as the result of the English law's rejection of the idea that facts could be established with absolute certainty, beyond any doubt (at 422).
Taking this background into consideration, the High Court further concluded that "a reasonable doubt is not just any doubt that the members of a jury as a reasonable jury might entertain, but is rather what a reasonable jury considers to be a reasonable doubt" (at 425). It was also held that while it is generally unwise for a trial judge to attempt to explain the concept of reasonable doubt "beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt", the common practice in Victoria and New South Wales of contrasting "beyond reasonable doubt" with the lower civil standard "is to be encouraged" (at 426). This contrast demonstrates that what is required is not simply the conclusion that the accused may have committed the offence or it is more likely than not that they did so. Rather, it conveys that "what is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt" (at 426).

[7]

Establishing the imputations

In cases where the alleged contempt involves disobedience to injunctions restraining the publication of matter conveying certain imputations, it is appropriate to assess whether the material does indeed convey those imputations by applying the principles which would be engaged if a fresh defamation action were brought upon the publications (Zaia v Eshow [2019] NSWSC 740 at [26] per Fagan J).
In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, Wigney J (speaking from Australia's defamation hub) summarised the key principles for determining defamatory meaning as: 1. Whether the matter conveys defamatory meanings is determined from the perspective of the "ordinary reasonable reader". This hypothetical individual is a person of fair average intelligence, not avid for scandal, but equally, prone to a degree of loose thinking and capable of reading between the lines (at [74]-[77]). 2. The meaning an ordinary reasonable reader would attribute to the matter may be influenced by its overall tone. A publication which employs loose language or indulges in innuendo or speculation may convey a defamatory imputation more readily than one which is more carefully written and neutral in tone (at [80]). See also Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 per Gleeson CJ. 3. The publisher's intended meaning, and the meaning actually understood by individual readers of the matter complained of, are irrelevant (at [84]-[85]).
The natural and ordinary meaning of defamatory materials includes any implication or inference which an ordinary reasonable reader would derive from the matter, guided by general knowledge and unfettered by strict legal rules of construction (Jones v Skelton [1963] 1 WLR 1362 at 1371 per Lord Morris). The facts of Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 demonstrate how defamatory imputations can arise even from seemingly innocuous words by implication or inference (see [14]-[18] per Gleeson CJ, McHugh, Gummow and Heydon JJ). Defamatory matter must be read as a whole, and the imputations pleaded are to be construed in the context of the entire matter (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [168]-[171]; Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [18]-[27] per Mason P).

[8]

Identification of relevant individuals

For a plaintiff to succeed in an action for defamation or as here, contempt by reason of the publication of defamatory imputations, it must be proved that the publication is one of and concerning the plaintiff. If that onus is not discharged there is no cause of action.
It must be shown that the plaintiff was the subject of the libel. Where a person is named no problem generally arises. No evidence is necessary in that event because the person is identified by the very words of the libel.
But otherwise the plaintiff will need to call evidence to connect him/her with the libel. The plaintiff in those circumstances must adduce evidence from which it would be reasonable to deduce that the defamatory words are of and concerning the plaintiff.
Witnesses can and frequently do give evidence that they read the alleged libel and understood in the light of their knowledge of relevant facts and the plaintiff that he/she was the person referred to.
The test in each case is objective, whether on the evidence an ordinary sensible person would draw to inference that the words referred to the plaintiff. The court is not bound to accept the evidence from witnesses who depose to the fact of identification.
It may also be necessary to prove knowledge of special circumstances and that witnesses with special knowledge will have to be called.
The circumstances that may be admissible on the issue of identification are myriad. But a photograph without more will generally not suffice. A plaintiff can always give evidence of persons who for example made contact with him/her after the publication of the libel to expose the temporal connection between the publication and the plaintiff.
Subsequent publications which name the plaintiff and make a sufficient connection with the prior publication which did not may be admissible as evidence of identification (Hayward v Thompson [1982] 1 QB 47, Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 ("Baltinos")).
In Barbaro v Amalgamated Television Services Ltd (1985) 1 NSWLR 30 at 35, Hunt J held that the publication of the plaintiff's image, without him being named, was insufficient to identify him. Therefore, a plaintiff who is not named but has had their image published must call evidence to establish that the matter complained of was seen by people who knew that the image was an image of the plaintiff.
An unnamed subject can in principle be identified by reference to information imparted by either prior or subsequent publications (Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485 ("Pedavoli") at [71]-[91] per Simpson JA (McColl JA agreeing); Baltinos at 89-97 per Hunt J). In Pedavoli (at [81]), Simpson JA summarised the position as follows: It is not, in my opinion, the law that a publication which does not name the plaintiff conveys defamatory imputations only to those recipients who, at the moment of first receipt of the publication, know the identity of the person referred to. Whether or not the plaintiff has been identified is a matter of fact, and will depend upon the circumstances of each case.
Pedavoli was a case concerning a newspaper article containing allegations that a teacher had had improper sexual relationships with students. The plaintiff was not named in the article, however, it did incorrectly state that she was aged in her late 20s and taught English and Drama. The plaintiff was the only female teacher at the school who was identifiable as a result of those incorrect details. At trial it was revealed in evidence that there had been a spike in the number of people accessing the school's website, suggesting that readers had done their own research to attempt to ascertain the teacher's identity (Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [133]-[134] per McCallum J).
In Pedavoli (at [78]), Simpson JA clarified that it is not necessary in situations where subsequently acquired information leads to identification that the impugned "publication contain within it an express or implied invitation to the recipient to have resort to some particular source of external information" although where that has indeed happened it is not necessary that the later publication be that of the original publisher.
Baltinos concerned an article in a Greek language newspaper which alleged that a group of people had exploited people seeking permanent residence in Australia. No offender was named, but the article recommended readers watch an episode of an upcoming television programme. The plaintiff was named in the programme as a person who had taken money from foreign visitors. This was held to be sufficient to identify the plaintiff (at 98).
The impugned publication in Strasberg v Westfield Ltd [2002] NSWSC 689 was an internal letter from shopping centre management to retailers in the centre. It contained statements defamatory of "Marianne Schwartz", however, the plaintiff's name was "Marie-Ann Strasberg". The letter referred to a television programme to be aired that night, but did not contain an express invitation to watch the programme, has had been the case in Baltinos. That programme identified Marie-Ann Strasberg. Even in the absence of an express invitation to watch the show, Levine J held (at [15]) that it was an inevitable inference that recipients of the letter would watch the show.

[13]

Article 3 (30 May 2020)

This article, under the headline "Nightcap Nightmare" claims that the "true owners" of a development called Nightcap Village are aboriginals from the Minjungbul tribe. It asserts dwelling sites are being offered for sale without Tweed Shire Council's development consent.
The "promotors" (sic) have however "obfuscated" the fact that twenty investors have already lost their "life savings" in the land share project in 2014-2016. In fact they the rightful or "true owners" of the land are those people who paid for the land in 2014-2015.
The defendant is one of those investors from the 2014-2015 era who has lost her money due to misrepresentations made during the marketing of the land at that time.
Defamation proceedings it is asserted have been brought against amongst others, Mr Phillip Dixon (as project manager) for "similar false claims" and litigation is ongoing of "rightful ownership" by those who "provided" the purchase funds for the land. This in my view must logically be a reference to the initial investors including the defendant. Again the "similar false claims" is in my view a reference to the misrepresentations as to ownership which has been the cause of the investors losses.
The current marketing is spurious it is asserted (namely that the current promoters are not the "true owners") because the land has in fact been "stolen from those who purchased it".
Indeed it is plainly asserted the investors have been "defrauded" notwithstanding they are the "legitimate" owners.
And finally the article asserts that the project is being promoted in a way that is bold and "deceptive and illegal".
Mr Dixon is clearly identified only as the Nightcap Village project manager.
There is an express assertion that Mr Dixon is the Nightcap Village project manager, and he has been sued for defamation because he had wrongfully sought to discredit the defendant and her claims that she and other investors had lost money due to misleading marketing. The reader would in my view infer Mr Dixon is singled out because he has played a prominent role in the project and its marketing.
It is submitted that the item conveys imputations 2(b) and (d), namely that Mr Dixon defrauded investors of Bhula Bhula and Nightcap Village communities and engaged in the misleading and deceptive marketing of the land.
There is no doubt the article asserts investors were misled and indeed defrauded by "promotors"(sic) , and that Mr Dixon as the project manager was involved in relation to the project and is aware of the claims of the "defrauded" investors. The main target of this article however is a Mr Max Igan who is said to be the accomplice of those who did defraud or mislead the original investors.
However the dwelling sites do not have development approval and those involved in the marketing have "obfuscated" the truth about ownership. I am satisfied both imputations in 2(b) and 2(d) were conveyed as a matter of fact of and concerning Mr Dixon, beyond reasonable doubt.

[14]

Article 9 (5 July 2020)

This article under the headline "Nightmare on Minjungbal" deals with the promotion of the land share venture and the plight of the earlier investors and how they all lost money. Further the article asserts they were defrauded.
The article also describes the marketing process with prospective investors given a tour of the "secret Eden" called "Nightcap Village" which for a deposit of $100,000 and a promise of "vendor finance".
In the article are photographs one of which is a photograph of three males including it is accepted Mr Brennock but he is not named as such. He is identified however as Mr X at the foot of the photograph. Mr X is said to be involved in the marketing of the land along with a Mr McMurtrie and a Mr Richard Moate.
Under the heading "Living in a Nightmare" the story is told of "trusting investors who in 2014-2016 provided $2 million for the purchase of the properties". The article goes on to describe the investors as having been "defrauded" and that they were seeking vindication through legal process. However they were being threatened with retaliation for "holding up the project".
The "promotors"(sic) do not mention it is said, the fact that the title is void . The original investors it is said are crying "fraud". There is then a photograph of a family said to be victims of the Bhula Bhula land scheme and a further reference to an article previously appearing in the Tweed Coast News in 2017.
Mr X is said to have "evicted" a few of the earlier investors in 2016-2017, but they had been allowed to return to occupy a dwelling site as a reward for "remaining loyal".
There is a final reference to "other defrauded investors" still hoping to claw back a " few crumbs" having had "five years of hearing hollow offers and threats" with trust entirely lost.
As I have already observed although it is accepted that the photograph of Mr X is that of Mr Brennock he is not named in the article. It is said that the reference to the Tweed Coast News was intended as it were to lure the reader to that article. (CB.216-20). The article was published in August 2017 and it does refer to the failed land scheme at Bhula Bhula and does name the second plaintiff in the context of his being one of five directors who "did not respond to phone calls". The article also refers to the defendant and to an action brought by her in the Federal Court.
It may be that access to the Tweed Coast News via the internet would be relatively easy but I am not persuaded that the connection between Mr X in the article published by the defendant and that article published three years earlier would be a connection readily or reasonably made.
More to the point the reference to the earlier article is specifically in relation to the plight of the Kirkwoods who are pictured in the photograph (in the article under consideration) and there is no suggestion that the Tweed Coast News article has anything to do with Mr X.
In addition there is no suggestion in the 2017 article to Mr X being involved with any fraud.
Apart from Mr X having evicted a few of the early investors and by inference he is one of the current "promotors" I am not persuaded that it can reasonably be said of Mr X that he had defrauded one or more of the original investors.
It is true the article asserts the "promotors" know about but do not mention the litigation and the "claims of fraud". It may also be accepted that the article suggests that the persons promoting the scheme have wrongly stated the "angry creditors" will be taken care of when in fact they have not been. I consider the article does give rise to a suggestion the current persons "marketing " the land scheme have failed to be candid about the problems with the title and the previous disaster with the early investors having lost their "life savings".
However I am not persuaded that the article does convey as a fact and beyond reasonable doubt the imputation of fraud about Mr X. There is no doubt he is currently marketing (as one of the promoters), the land but I do not consider the article can reasonably be construed as suggesting he was involved in some earlier or current "fraud".
However I do consider the article does suggest that Mr X has been engaged in misleading or deceptive marketing, because it is to be inferred he knows about the allegations of fraud and has avoided disclosing that fact to prospective investors about the claim by the "true owners" because it would be inconvenient for him to do so.
Equally I do not consider an imputation of bullying reasonably arises so far as Mr X is concerned.
The real problem is that Mr X is not identified in the sense of named as the second plaintiff. Nor do I consider the Tweed Coast News article even if accessed identifies him reasonably as Mr X. The mere publication of his photograph likewise does not sufficiently identify him. No evidence of the conventional kind permissible in these type of cases has been tendered.

[15]

Article 10 (5 July 2020)

This article is again under the headline "Nightmare on Minjungbal" and refers to a Mr X, but again does not name the second plaintiff. It does however contain four photographs of him.
The article provocatively states that the "Mysterious Mr X" cannot be named but that it is a pseudonym "he" used as a presenter in "Freedom Summits 2014".
The reader is told he was in 2016 the sole director of a $1 company which purchased land and took advantage of litigation in the Land and Environment Court "to collapse the community called Bhula Bhula leaving purchase money creditors destitute". It is then asserted he retained legal ownership and personal control of the land.
The reader is also told that in 2017-2020 he used the NSW "Supreme Court of Defamation "as" a bludgeon to silence dissent". It is also stated he obtained the protection of "Court Orders" that prohibit publications imputing dishonourable conduct, to him.
The hearing in the Court, is then described as one that took place against one of the "defrauded investors", the defendant. The judge is then said to have concluded that although the controllers of the scheme had "taken people's money" the "debacle resulted from incompetence, not fraud. However the judge is accused of having "ignored evidence" that "Mr X was running a scam" and awarded damages of $400,000 against the defendant.
Contrary to the facts as it were, the reader is told Mr X "repeatedly affirmed' to the court, that in 2014-2017 he was bankrupted by "Bhula Bhula" and only played a minor role in the scheme. He also assured the judge, so asserts the article, that his only involvement in the scheme was that of a "bankrupt shareholder".
Reference is made to a promotional video from which some of the photographs are taken and in which it is asserted Mr X has made some marketing promises. In conclusion the article asserts the scheme has no compliant development approval contrary to claims of such by marketing manager Mr Richard Moate who is also depicted in one of the photographs.
There are express allegations of fraud in my view and sharp practice in the marketing of the land in relation to Mr X who has the article clearly asserts unjustly succeeded in Supreme Court proceedings.
There is no doubt the article in my view asserts the Bhula Bhula project that Mr X was running was a "scam" and the litigation referred to was one against the defendant described as one of the "defrauded" investors.
In my view I consider an imputation as identified in 2(a) does arise as matter of fact beyond reasonable doubt in relation to Mr X and I consider the article says so quite explicitly, but because he is not identified, it cannot be a publication of and concerning the second plaintiff.
In my view however I am of the view that the imputation in 2(b) does not reasonably arise. The notion that he used proceedings to "bludgeon" one of the "defrauded" investors does not support a suggestion that he "bullied investors" generally.
There is of course no mention of the second plaintiff by name and no evidence linking him to the article or identifying his photograph. Again no evidence of the conventional kind was tendered.
In those circumstances I am not satisfied that the imputations relied upon were in fact conveyed of and concerning the second plaintiff, beyond reasonable doubt.

[16]

Article 11 (24 August 2020)

This article under the familiar headline "Nightmare on Minjungbal" has a sub-headline "Nightcap on Munjungbal: Phoenixing in Action", and is to a large extent about what is described as the illegal act of "phoenixing". This is explained in the article as the deliberate liquidation of a company in order to avoid paying creditors with the rebirth of the company's business through a different entity.
The example of "phoenixing" given is the Bhula Bhula land venture scheme becoming the Nightcap Village venture. One of the "promotors"(sic) is identified as Richard Moate. However although the land scheme is said to be promoted by celebrity chef Pete Evans it "is run by Adrian Brennock" who is said to be one of the partners.
The project is stated to have been the subject of failed "marketing promises" by the "project director" in 2014-2016.
However, it is asserted that in 2017 "Adrian Brennock" drove "purchase money creditors off the land without restitution". He then mortgaged the property and "pushed for liquidation". That had the effect so it is asserted of divesting the company of it's liability to creditors. At the same time "Adrian Brennock" continued the business of selling dwelling sites without development approval.
There is in addition to him being specifically named two photographs where he is specifically identified. There is also a photograph depicting two hands hovering over a stack of coins.
The two imputations relied upon here is that the second plaintiff defrauded investors in the Bhula Bhula and Nightcap Village communities and engaged in misleading and deceptive marketing in relation to both communities.
First there is mention of an allegation of "fraud" in the Federal Court in Queensland, although Mr Brennock is not explicitly named in that context. However the reader is I consider invited to link the proceedings in Queensland with Mr Brennock. Otherwise, the reader must wonder why it was mentioned at all.
He of course is explicitly accused of being involved in "phoenixing" in relation to the Nightcap venture which is said to be "illegal" and he did so in that context with the aim of avoiding paying compensation to creditors hence illegally denying them their money. In that sense he has defrauded them.
The second imputation is one of misleading and deceptive marketing. There is a reference to the "total failure of promises" by the" project director" relating to the period 2014-2016. The scheme is "now" being promoted and "run" by the second plaintiff. And Mr Brennock "drove "persons off the land without compensation. Also the reader is told that Mr Brennock "continued" the business of selling dwelling sites without development approval on property "where multiple occupancy is currently not permitted".
It seems to me that by the use of the words "continued the business" is in part a reference to "phoenixing" but it also supports the suggestion that he has continued to market land without development approval. The failure of "marketing promises" only makes sense in my view if understood in the context that the reason they failed is because they were not accurate or did not adequately disclose the true position about multiple occupancy and did not meet the induced expectations.
In my view therefore I consider both imputations were conveyed as a fact beyond reasonable doubt of and concerning the second plaintiff. This is the first article that specifically names the second plaintiff.

[18]

Article 13 (29 August 2020)

This article (again with the headline, Nightmare on Minjungbal) follows a similar theme of the recent investment of celebrity chef having invested in the Nightcap on Munjngbal project with project director and partner, Adrian Brennock who it is said is protected by "Supreme Court injunctions prohibiting me from publishing perceptions imputing felony to him".
The article goes on to suggest the second plaintiff has initiated contempt "charges" against the defendant in an "attempt to extend the injunctions to a total gag on any unfavourable account of his dealings that might impact his ability to induce new investors to part with life savings".
The article suggests that Mr Evans was informed by "more than a few people" that they had lost their life savings. There is also a reference to whether Mr Evans cares about the "hurt and harm that has been caused by his new partner".
The article further identifies Mr Brennock as having convinced the Supreme Court he was not the "kingpin" and that it was "just incompetence, not fraud", that caused loss to the investors.
A number of comments are made clearly attributing wrongdoing to Mr Brennock including a breach of trust and sharp practice and ends with the; "None dare call it fraud, Pete Evans".
Also published is a photograph of Mr Brennock.
It is submitted this article carries the imputations of fraud and misleading and deceptive conduct. I agree.
As to the fraud imputation I do consider it was conveyed. The article in effect invites the reader to assume that the reason Mr Brennock has brought contempt charges as a means of gagging the defendant to prevent the truth from coming out, the truth being that he had wrongfully induced investors to part with their money, lying to the Supreme Court about his role in the venture, and convincing the court (contrary to the facts) that the losses were caused by incompetence and not his fraud. He also lied to the court the article implies (contrary to his actual knowledge) that he did not know multiple tenancy was not permitted when he was in fact selling land for that purpose and further he used trust funds owned by investors to purchase a property.
The article clearly in my view asserts his conduct was not only "audacious" but should be called out as a "fraud".
In my view an imputation that Mr Brennock defrauded investors clearly arises as a matter of fact, beyond reasonable doubt.
So far as the second imputation is concerned the notion that but for the injunctions Mr Brennock would be shown to have committed a "felony" in connection with a number of investors losing their "life savings" as a result of Mr Brennock's conduct in misleading those persons by the representations concerning the type of title and dwelling the investors would obtain for their investment.
In my view that imputation also clearly arises as a matter of fact beyond reasonable doubt.

[19]

Article 14 (31 August 2020)

This article (with headline Nightmare on Minjungbal) again commences with yet another story of Mr Pete Evans' investment in Nightcap originally Bhula Bhula as a result of a contract he signed with Mr Brennock and others as partners.
Mr Brennock is explicitly identified by his photograph and named as a shareholder who had been involved in soliciting funds in 2014 as co-founder of the Bhula Bhula community. But as a result of litigation brought by Tweed Council against Mr Brennock's company, homes built on the land were said to be illegal and had to be removed. There is also an assertion he was party to selling land he or his company do not actually own and further the land was sold by implication by amongst others Mr Brennock without disclosing Council had not approved the erection of dwellings. More to the point he was purporting to sell land his (Yidaki) company did not even own.
The article asserts the rightful owners are the "disenfranchised investors, "who having paid for the land were "thrown off the properties" by Mr Brennock.
Although Mr Brennock is expressly referred to, fraud per se is not. That of course is not an end to the matter. His conduct in marketing land that his company did not own and representing that dwellings could be built, which could not, was dishonest and hence fraudulent.
In my view the imputation asserting fraud arises as a matter of fact, beyond reasonable doubt.
I also consider an imputation arises to the effect that Mr Brennock has misled investors for example by causing them to believe that at the time of their investment they would acquire title in the land whereas there is a question mark about title and ownership of which he is aware. Further it implies they were lead to believe they could and did erect dwellings when they were not entitled to do so.
On that basis I am satisfied this article also gives rise to an imputation that Mr Brennock engaged in misleading and deceptive conduct in relation to the marketing of Bhula Bhula and Nightcap Village communities as a matter of fact beyond reasonable doubt.

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties

Cases Cited (24)