Brose v Baluskas & Ors [2020] QDC 15 | Case summary

Brose v Baluskas & Ors [2020] QDC 15 | Case summary | Zoe

[95]

[1] The plaintiff, Tracey Brose, is a teacher and the longstanding principal of Tamborine Mountain High School, the only public high school on Tamborine Mountain. On 15 February 2016, she was suspended from this role pending the outcome of an investigation into alleged inappropriate conduct by her as principal. The School and the broader community were told that the plaintiff was "on leave" but knowledge that she had been suspended filtered out almost immediately. Speculation over the reasons for her absence led to rumour and innuendo within this community.

[2] With the view to garnering support for a speedy resolution to the situation (and unbeknown to the plaintiff) on 7 March 2016, the President of the school's Parents and Citizens association, David Hows, established an online Petition on a Change.org Internet discussion website entitled "A Fast And Fair Resolution for Tracey Brose," calling for the Minister for Education to reinstate the plaintiff. Mr Hows also set up a private Facebook page called 'Support Tracey Brose" which contained a link to the Change.org website. Over the next few days, around 600 people signed the Petition. The accompanying discussions on both forums attracted comments from over 350 individuals. Most were supportive and highly complementary of the plaintiff. Around nine percent of the comments were highly critical and unsupportive of her and many expressed this through emotive, provocative and abusive language.

[3] Both forums were shut down six days later on 13 March 2016.

[4] The plaintiff was reinstated as principal on 25 May 2016 and on 2 June 2016 she commenced legal proceedings against eight of the 34 individuals who had posted criticism of her on the online discussion forums. She claimed $150,000 in damages from each of the defendants for the tort of defamation together with an injunction restraining them from making further defamatory statements. Subsequently the claim for damages increased to $220,000 ($150,000 for general damages and $70,000 for aggravated damages).

[5] All defendants filed defences to the plaintiff's claim raising a variety of defences under the Defamation Act 2005 (Qld) including triviality, justification, honest opinion and contextual truth.

[6] The proceedings played out under the spotlight of keen media interest and culminated in a four week trial heard before me from 7 October 2019 until 1 November 2019. There were a myriad of contested interlocutory applications and cross applications between the plaintiff and various defendants (mainly pleading stoushes) leading up to the trial. These applications left a number of defendants with substantial costs orders against them - which they were unable or refused to pay.

[7] The plaintiff settled with the fourth, fifth and eighth defendants prior to trial, receiving a total amount of $182,500.00 from them.

[8] The plaintiff and seventh defendant were legally represented throughout the proceeding. The first and second defendants were legally represented intermittently but appeared for themselves at trial. The third defendant is a bankrupt and was not an active participant in the trial but orders are sought against her. The sixth defendant represented herself throughout - with some assistance from the pro bono LawRight legal service.

[9] The trial traversed numerous issues of fact and law (including an urgent and partially successful application by the seventh defendant on day three of the trial for further disclosure by the plaintiff).[1] Shortly after, the plaintiff settled with this defendant. The plaintiff's case at trial then centred around six posts she complained were defamatory of her. But at the end of the trial, she conceded that any claim based on two of these posts was statute barred.

[10] It follows that the issues for my determination are whether four posts: one each by the first and second defendants on the Change.org website; and one each by the third and sixth defendants on the Facebook page; are defamatory and if so, the quantum of damages that flow to the plaintiff.

[11] The law of defamation seeks to strike a balance between, on the one hand, society's interest in freedom of speech and the free exchange of information and ideas from all parts of society, and, on the other hand, an individual's interest in maintaining his or her reputation in society free from unwarranted slur or damage.[2] Defamation laws vary from country to country but courts and legal scholars worldwide have recognised the struggle to achieve this balance, and acknowledged that the growing body of case law involving Facebook and other social media platforms "require[s] courts to map existing defamation doctrines onto social media fact patterns in ways that create adequate breathing space for expression without licensing character assassination."[3]

[12] Ultimately, I have determined that the third and sixth defendants' posts are not defamatory but aspects of each of the posts of the first and second defendants are, although not to the extent claimed by the plaintiff. I have assessed damages by ensuring that there is an appropriate and rational relationship between the harm to the plaintiff's reputation and the hurt and distress suffered as a result of each of the defamatory publications, as follows:[4]

(a) The plaintiff's damages against the first defendant are assessed in the sum of $3,000.

(b) The plaintiff's damages against the second defendant are assessed in the sum of $3,000.

[13] The damages I have awarded are modest and well below what the plaintiff has sought. But I consider them sufficient to vindicate the plaintiff in light of the unique contextual features of social media forums[5]. I am satisfied that there is a real risk of further publication of the defamatory comments made by the first and second defendants, so I have ordered that they be permanently restrained from making them again.

[14] In delivering the 2019 Spigelman Public Law Oration, Justice Keane of the High Court of Australia focussed on the constitutional concept of "the people" and the idea that freedom of speech in Australia is to be understood as an incident of the relationship between government institution and the people who sustain those institutions. In doing so, his Honour made the following observations which in my respectful view are most apposite to the present case:[6]

[104]

[23] Upon receiving the suspension notice, the plaintiff said she was initially shocked. She received a phone call to come to a meeting at district office two hours later. The plaintiff said she was worried for her family's financial stability as she was unaware as to whether her suspension was with or without pay (although I note the letter expressly states the suspension is with remuneration). The plaintiff showed this letter to her legal counsel, husband and a person she described as "the Queensland Teachers Credit Union support person". It later transpired this person was Ms Falconer, one of the deputy principals, and a close personal friend of the plaintiff who was present in court with the plaintiff on many of the interlocutory applications and during most days of the trial. She also gave evidence at trial. Ms Falconer's evidence, which I accept, was that she spoke to the Plaintiff on 15 February 2016 and that the Plaintiff sounded shocked and was crying.

[24] The plaintiff's evidence was that while she was under investigation she was "very confident, functioning normally" and "was preparing my responses".[14] She said that she did not feel like something was wrong because she felt suspensions were not punitive; rather, they were administrative actions taken to ensure investigations happen transparently.[15]

[25] On 16 February 2016 Mr Hows, the President of the School P&C association from March 2012 until March 2019, was contacted by Ms Falconer and told that the plaintiff had been suspended from her role as principal. Up to that point Mr Hows had regular contact with the plaintiff in his role as President of the P&C and enjoyed a good working relationship with her. He considered the plaintiff a wonderful principal.[16]

[26] Prior to being told formally of her suspension Mr Hows had heard this news from a parent from another school at Beaudesert. He began screening enquiries from parents about the plaintiff's suspension. Between 16 and 18 February 2016 he received more than 30 phone calls or emails from parents at the School wanting to know what had happened to the plaintiff. These enquiries were laced with rumour and innuendo and included "speculation around conduct that would have broken school rules or codes of ethics or operating procedures."[17]

[27] The letters were not produced at trial but I accept that Mr Hows wrote to the relevant representatives of the Education Department over this time and expressed his concern about the lack of information coming from them. In doing so I also accept that he highlighted his concerns about the plaintiff's distress and the need to communicate to the parents and the community about when the issue would be resolved.

[28] This correspondence fell on deaf ears and the rumours continued. Consequently, on 2 March 2016, Mr Hows again wrote to the Education Department about the speculation in the community surrounding the plaintiff's absence. Mr Hows' evidence about this speculation at this point, which I accept, was that:

[120]

[38] In order to give context to the plaintiff's case it is necessary to consider generally all of the posts about the plaintiff - not only the ones she ultimately sued on.

[39] Exhibit 14 is a copy of the Change.org site in the form it existed as downloaded by Mr Hows in June/July 2019 and tendered through him at trial.[25] Mr Hows' evidence, which I accept, is that there were about 34 more posts on this site when he closed the Petition. - including those of the first and second defendants. As discussed in more detail below at [78]-[81] and [86], the contents of the "other" 32 posts is unknown - as is how and when they were removed.

[40] On the face of it, this document shows 609 signatures on the Petition and 266 comments. Objectively most of the comments posted on the Change.org site (as it now exists) were made by those who signed the Petition [some specifically refer to having signed the Petition]. The overwhelming majority speak of the plaintiff in a very positive way: tough but fair - an amazing, fantastic and excellent principal. A considerable number of comments focus on concerns around the lack of transparency and information about the plaintiff's suspension. There are a smattering of other comments (four in all) which are not complimentary of the plaintiff nor relevant to this case.

[41] The Facebook page contains about 92 posts.[26] Of these, 9 are posts made by the page administrator (7 of which encourage visitors to sign the petition and 2 of which are purely administrative). The remaining 83 posts are comments left by page visitors. Of these, 3 are replies which are referenced but not visible on the face of Exhibit 13. The rest can either be categorised as "positive" (ie, indicative of support for the plaintiff), "negative" (ie, critical of the plaintiff or of the efforts to support the plaintiff), or "neutral" (ie, they contain irrelevant commentary, tags of other users, or impartial speculation about the suspension process.) About 11 of the posts could objectively be classified as supporting the plaintiff (five of which were by the same person). Generally speaking these "positive" posts described the plaintiff as: tough but someone who gets you ready for the real world; a very good principal - strict but supportive, encouraging and someone who provides a top notch education to students; being responsible for a number of success stories; and the creator of one of the highest achieving schools in this state if not the country.

[42] About 47 posts are non-supportive of the plaintiff (though some of these posts are authored by the same person). It is not constructive or necessary to repeat these posts word for word but leaving aside the ones that were ultimately sued on as set out below, the "negative" posts described the plaintiff as: a bully; intimidating; narcissistic; manipulative; prone to extremes; abusive; the enforcer of unnecessary rules; and a principal who favoured better performing students. The remainder of the Facebook posts are uncontroversial and fairly neutral.

[122]

[43] The plaintiff was unaware of the establishment of the Petition or of any of the online commentary about her until some unknown time on 7 March 2016 when she received a number of text messages from different people (whose names she cannot recall) stating things such as "Ignore the keyboard warriors; they're cowboys; they're cowards; am I allowed to sign petition; It's yuk.". She assumed there must be something online because of the reference to keyboard warriors. She did not have Facebook so she rang her younger brother Daniel and asked him to have a look online. Daniel was aware of the comments and, at the plaintiff's request, read some of them out to her. He also took screen shots and sent some of them to her. It was not clear whether they were emailed or sent by text to the plaintiff. The plaintiff did not say what comments were read out to her or sent through to her. Daniel did not give evidence at trial. The screenshots he sent were not in evidence.

[44] The plaintiff said that over a three-day period, her brother regularly sent her screenshots "of what was on Facebook". Given the evidence from Mr Hows about the link to the Change.org site being on the Facebook page it is reasonable to infer that the comments on the Change.org site could potentially be accessed from the Facebook page by then going into the Change.org website from that page. Whether or not they were is, of course, a matter of evidence. The plaintiff did not realise she could go directly to the Change.org website without needing to be a Facebook member until about three days after her brother started sending her screen shots.

[45] Approximately two days after the Change.org Petition and Facebook page went live, unbeknown to Mr Hows, the rest of the School and the broader community, the plaintiff received another letter from the Education Department. This letter was dated 8 March 2016 but received on 9 March 2016.[27] The effect of this letter was that four allegations relating to her conduct as principal had been found to have been substantiated on the balance of probabilities. This meant that the plaintiff was to remain suspended.

[46] Three points must be made about this letter. First: this finding was subsequently overturned on 31 May 2016 following a grievance process instigated by the plaintiff;[28] secondly, the plaintiff was reinstated as principal at the School from June 2016;[29] and thirdly, the reasons for the plaintiff's suspension and reinstatement are not under review in this case. The relevance of the letter and its contents lies in its timing. The plaintiff's subjective knowledge at the time is relevant to a number of aspects of her case: the broader issue of how the allegations and suspension subjectively affected her (or moreover did not affect her) at the time is relevant to her credit; and the issue of how the plaintiff felt about the suspension and how it was handled by the Education Department is relevant to the issue of damage to reputation and assessment of the plaintiff's hurt and distress.

[47] The plaintiff explained she commenced proceedings against all of the defendants because "as a Principal, your brand, your uniqueness is your reputation".[30] The plaintiff made a forensic decision about whom she sued. She limited the number of defendants to eight - the ones with "the most likely prospects [of success]" to make the case manageable. Otherwise, defendants were selected if they were not current students or parents at the School and if they owned property. The plaintiff was entitled to make a forensic decision as to who she wanted to sue. But there was no evidence and I find, that none of those who avoided being sued were served with a concerns notice, apologised, removed posts or paid any money to the plaintiff. Many of these posts contained comments similar to those made by the individuals the plaintiff chose to sue. The fact that there were other similar posts to those of the defendants is not relevant to ascertaining whether those posts sued upon are defamatory, but this evidence is relevant in my view to the plaintiff's credibility, particularly in relation to her claim that she only wanted an apology and for people to be held accountable for their actions.[31]

[126]

[49] The onus is on the plaintiff to prove that the alleged imputations are defamatory. It is a question of law as to whether each of the publications are capable of bearing the imputations pleaded by the plaintiff to the ordinary reasonable reader.[32] But this question has a low threshold. As the President of the Queensland Court of Appeal observed relevantly in Queensland Newspapers Pty Ltd v Palmer: "different minds could reasonably reach different conclusions as to whether the pleaded imputations are to be drawn from the article," but "it cannot be said that the ordinary reasonable reader, unequivocally could not draw the pleaded imputations." [33]

[50] In determining whether the words used in the publication are capable of bearing the pleaded imputations, the guiding principle is one of reasonableness.[34] The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is inferred from it. But any strained or forced or utterly unreasonable interpretation must be rejected.[35]

[51] The intention of the defendant is not relevant due to the requirement to apply the reasonableness test.[36] Similarly, the meaning of the words cannot be determined by evidence from the parties, but only by the interpretation reached through the ordinary reasonable person's understanding of the words.

[52] The court is to assume that an ordinary reasonable reader: does not live in an ivory tower, but is a person of "fair, average intelligence who is neither perverse nor morbid nor suspicious of mind or avid of scandal";[37] reads the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning; reads between the lines and has a capacity for implication that is greater than that of a lawyer.[38]

[53] The mode, manner or form of publication is also a material matter in determining what imputation is capable of being conveyed.[39] For example, the case of DG Certifiers Pty Ltd & Anor v Hawksworth [2018] QDC 88 concerned negative reviews published on a website inviting reviews of the plaintiff's business. In that case, Rosengren DCJ relevantly observed:[40]

[135]

[64] Despite the difficulties identified in ascertaining precisely what parts of the larger social media eco-system make up the relevant context, the court in Monroe found that:

"[34] ... A tweet that is said to be libellous... may well need to be read as part of a series of tweets which the ordinary reader will have seen at the same time as the tweet that is complained of, or beforehand, and which form part of what Mr Price has called a "multi-dimensional conversation."

[35] .... [Twitter] is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter."[63]

[65] A comment made as part of a discussion forum such as the Facebook page or the Change.org site in the present case, is clearly analogous to the "multi-dimensional conversation" discussed in Monroe.

[66] It follows and I find that: it is relevant and necessary to examine the posts complained of in this case in the context they were posted; and, as part of the broader conversation that occurred on both sites; and, that such a task is not complete without a discussion and recognition of some of the more general and commonly known characteristics of social media.

[67] The global proliferation of online forums over the last decade have prompted courts both in Australia and in overseas jurisdictions to identify unique contextual features of social media forums which can be used to distinguish modern cases from those that emerge from more traditional mediums. Six general propositions emerge from a consideration of these authorities in the context of this case.

[68] First: in the present case Mr Hows established and administered both sites. As discussed in more detail below, [64] he observed the negative comments coming through particularly on the Facebook page but he did not think to take any steps to remove them or to take down the sites. He closed both sites six days later because he achieved his goal of obtaining a significant number of signatures in support of the plaintiff and he did not have time to keep monitoring the Facebook page. These facts highlight and exemplify what is common knowledge: that social media spaces are relatively unregulated. Whilst broad terms of service may apply to users of particular social networking sites, enforcement of these terms often relies upon other users taking up the role of moderators (for example, users voluntarily assume the role of moderator by managing the visibility of comments and posts on specific Pages or Groups they create, or by reporting other users to user-moderators or to the host website directly). Other Australian jurisdictions[65] have considered how user-moderation practices may impact issues of publication in defamation proceedings. It follows that moderation and regulation is rarely consistent even within particular social media sites.

[69] Secondly: it is also common knowledge that social media sites have become notorious as breeding grounds for false or exaggerated claims, statements made with little or no explanatory context, and spaces where individuals air specific and personal grievances in obnoxious manners. It follows that there is a general acceptance in the community (and of course it will always depend on the circumstances) that online spaces are not the most reliable source of commentary and comments on such forums ought to be taken with a grain of salt - or ignored entirely. Even where online conversations are not inflammatory, the English courts have found that online discussions can be distinguished from more traditional, journalistic outlets because they more closely resemble:

[140]

[73] In the present case, the posts appeared on sites dedicated to achieving a resolution to the uncertainty in the community about the plaintiff's position as principal (whatever that may be) but moreover to elicit support for her. These sites clearly established a platform for those unsupportive of the plaintiff to voice their opinions. The hypothetical reader likely to frequent those specific pages would therefore be a person who had some nexus of connection either to the plaintiff personally, or else to the School more generally.

[74] Fifthly: comments and posts made on social media forums are rarely read in isolation. The interpretation of individual comments can be greatly affected by other comments in the forum. Even comments made later in time. In this sense, it is possible for a post to mean one thing when read in context at one point in time, and something subtly different at a later point in time. The evolving nature of social media forums can make the task of assessing the precise meaning and impact of a particular post even more complex.

[75] In this case, the posts sued upon are part of a long stream of other comments which on their face were made by a range of people, including parents, past students and other individuals with a personal connection to the School. As has been established: the two sites were connected; not all of the posts on the Change.org site are in evidence, and the ones that remain are overwhelming positive; most of the negative posts appeared on the Facebook page, but even still, the majority of comments on the Facebook page spoke positively of the plaintiff. There was obviously enormous support for her. In my view, the thread of posts across both sites must be considered as a whole and this consideration is one of the factors relevant to assessing how the ordinary reasonable reader would read and comprehend an individual post.

[76] Sixthly: There are, as a matter of common sense, a number of unique textual features of social media posts which may impact upon their interpretation. Inclusion of emojis, pictures, and non-standard characters may influence meaning. Similarly, quirks of grammar, syntax and formatting all provide cues as to how the post is ultimately to be interpreted by a reader. For example, posts that contain improper or irregular spelling, capitalisation, grammar and syntax can create a tone of informality which, in conjunction with the presence of characteristics I have outlined above, may ultimately influence how much weight a reader places on a particular comment.

[77] It follows and I find that ordinary reasonable readers of social media are alive to a wide range of cues as identified above which inform both the meaning and quality of the meaning conveyed.

[142]

[78] By their final written submissions, the first and second defendants contend that there is no evidence that their posts were ever published, so it must follow that the plaintiff's case fails at inception.[72] In support of this submission they point to inconsistencies between Exhibits 3, 75 and 14:

(a) Exhibit 3 is a screenshot that shows the first and second defendant's posts appearing on the Change.org website. The origin of this document is confusing. On its face, Exhibit 3 shows both a computer taskbar, which displays the date to be 29 March 2017, and an Internet Explorer window open to a page at the web address of "https://www.change.org..." The screenshot then appears to have been printed out and a handwritten annotation has been added to the print-out stating "change.org post from May 2017." At one point the plaintiff referred to it being: "probably, live Facebook page [sic] .... It's the support Tracey Brose page. I saw it through screenshots,"[73] although later she said it was a screenshot she had taken herself of the Change.org page on 29 March 2017.[74] More confusingly, the webpage depicted refers to there only being "300 signatures" on the petition, so it could not have been representative of the Change.org site in 2017, by which point the petition had been closed and marked 'victorious' for some 12 months, having reached almost 600 signatures. After cross-referencing Exhibit 3 with pages 1 and 2 of Exhibit 13, which contains petition "progress updates" posted to Facebook, I conclude that Exhibit 3 represents the comments of the first and second defendant as they appeared on the Change.org website at a point in time immediately before or shortly after 9.52pm on 7th March 2016, but certainly at no later point in time that 7.45am on 9th March 2016, when the petition had reached almost 500 signatures.

(b) Exhibit 75 is an email received by the plaintiff's solicitors from Change.org in September 2019. It states that whilst Change.org keeps records of all comments posted to their petitions, their records did not include the comments that appear on the face of Exhibit 3.

(c) Exhibit 14 is a printout of the data from the Change.org website. It does not contain any reference to the comments that appear on the face of Exhibit 3.

[79] The first and second defendants submit that the apparent inconsistency between Exhibit 3, and Exhibits 14 and 75 means that I must conclude that the plaintiff has failed to prove publication of their posts.

[80] I reject the first and second defendant's submissions for several reasons:-

(a) First: by their pleadings they admit they published their posts (although I accept that the extent of publication was in issue); and at the time of these admissions they were legally represented; and, the trial was conducted on this basis.

(b) Secondly: they conducted their case at trial on the basis that they had each posted their posts on the Change.org site. For example most if not all of their cross examination or witnesses at trial was premised on their acceptance that they had authored and posted their respective comments on the Change.org site.

(c) Thirdly (and in any event), the discrepancy between Exhibit 3 and Exhibit 75 is not one which inevitably leads to the conclusion that it was impossible for the comments to have been published on Change.org. In fact, the likely reason for the discrepancy is apparent on the face of Exhibit 3:

(i) Firstly, the Facebook logo and the words "Facebook comment plugin" which appear on the face of Exhibit 3 denote that the first and second defendant's comments were posted using a Facebook comment plugin - that is, a tool developed by Facebook which facilitates comments sections on websites other than Facebook.com (in this case, on Change.org). I consider that the question of who developed the comment-facilitating tool is not relevant to the question of where the comments were ultimately published, and that the comments were published to Change.org by virtue of the Facebook plugin.

(ii) The questions of why the staff at Change.org could not find the posts in their records, or why Exhibit 14 appeared to be an incomplete record of the Change.org posts, can then be answered by inference. As the first and second defendant point out in their final submissions, it seems that Change.org had also developed its own comment-facilitating tool aside from the Facebook plugin tool (which is evident from the aesthetic differences between comments made using the Facebook plugin and other comments made on the Change.org page). Again, there is no evidence before me as to whether the records said to have been kept by Change.org included comments posted using the comment tool developed by Facebook as well as the current comment tool, but I conclude that the existence of both the Facebook comment plugin and Change.org's own comment-facilitating tool could explain the discrepancy between Exhibit 3 and 75. This inference could also explain why an estimated 34 comments appear to be "missing" from the face of Exhibit 14.

[81] Taking all of the matters in (a)-(c) above into account, I find, on the balance of probabilities, that the first and second defendants' comments were published on the Change.org website on 7 March 2016.

[146]

[84] After Mr Hows removed the Facebook page he also changed the Change.org and Petition status to complete. The effect of Mr Hows closing down the Facebook page on 13 March 2016 was that although he could still access the page, no one else could view it as it was no longer public. He made no changes to the Facebook page after it was closed. Exhibit 13 is a print out of the Support Tracey Brose Facebook page as it existed when the page was closed on 13 March 2016 but printed by Mr Hows in mid-2019.

[85] I accept Mr Hows evidence at trial that he closed these sites for two reasons. First, because of the number of signatures on the Petition [630] he considered the "job done". Secondly, he did not have time to keep monitoring the Facebook page - which he read and included a number of "really nasty comments."[76]

[86] Mr Hows did not say when he last went to the Change.org site - but I infer from his evidence that after he closed the Petition he did not visit this site until he was asked to print the copy in June/ July 2019 [Exhibit 14]. He did not remove the 34 or so missing posts and was unable to explain how they disappeared. The plaintiff had no knowledge as to why the comments are no longer on the Change.org site but she contacted the site four times in 2016 and three times in 2017 to ask "for the full petition or the comments only that were derogatory to be taken down."[77]. The plaintiff received an automatic, non-substantive response. No document was tendered to support this evidence but as discussed above, a letter from the help desk at the Change.org website to the plaintiff's solicitor dated 14 September 2019 was tendered at trial and this refers to there being no record of the first and second defendant's comments.[78]

[87] The mystery of the removal of the 34 comments from the Change.org site was not solved at trial, though I have noted my inference in this respect at paragraph [80](c) above. In any case, I accept that the first and second defendant's comments were removed at some unknown point after 13 March 2016.

[88] The plaintiff's evidence that she last saw the first and second defendant's posts on the Change.org website on 22 May 2017 after being in court (the plaintiff's pleaded case was that the posts were able to be viewed until June 2017). This evidence was not corroborated. For reasons discussed in more detail under heading '8. Matters of Credit,' without corroboration, I do not accept the plaintiff as a reliable historian. It follows that I reject this evidence.

[89] The evidence from the first and second defendants about when they last saw their posts was difficult to understand.

[90] In her evidence in chief, the first defendant's unchallenged evidence was that, when she received her Concerns Notice (dated 22 April 2016), she went to remove her post but that "it was already gone."[79] Earlier in the proceedings, when cross-examining Mr Hows, she had also suggested to him that when she received her Concerns Notice she went to remove her posts and "they weren't there" and that she could not access or remove them".[80] Similarly, under cross examination, the first defendant said that she went back to remove her comment but there was no comment to remove [it is not specific to the first defendant's Change.org or Facebook comment]:[81]

[154]

[100] This section focusses on the evidence of publication between 7 March 2016 and 13 March 2016. Further publication through the grapevine effect and newspapers articles is dealt with under the heading '9. Damages' below.

[101] In actions for defamation involving online material (and as pleaded by the first and second defendants), publication is ordinarily established through evidence that a third party downloaded and read the material.[90] It follows that there is a distinction between a publication being "seen" or "viewed" and "read and understood". It is not necessary for a plaintiff to call individuals to swear that they downloaded, read and understood the publications if that fact can be inferred from other proven facts. Publication may also be established by proving a platform of facts from which an inference that material has been downloaded can properly be drawn.[91]

[102] The plaintiff relied on the recent Queensland Supreme Court case of O'Reilly v Edgar,[92] which concerned defamatory publications made on a kart racing Facebook page, to support her submission that I ought to find that the extent of the publication in the present case is wide. I accept that the court in O'Reilly was unable to ascertain the full extent of publication with certainty but nevertheless was satisfied there was sufficient evidence to conclude there had been publication to an audience in the thousands.[93] The facts of O'Reilly are distinguishable to the present case because in that case the defamatory posts had been published or republished on the Facebook page for over three years. In the present case, the Facebook page was removed and the Petition closed after 6 days.[94]

[103] The difficulty in the present case, is that the platform of facts the plaintiff relied upon is not a sturdy one. The evidence about what posts were actually read and understood was non-specific and confined. There was a level of contrivance to it.

[104] Ms Falconer (one of the deputy principals at the School) said she visited the Change.org website and Facebook page every day they were up.[95] Her evidence was that she knew of other staff members who had read the comments and that there was some discussion about them. It was not apparent whether she was referring to all of the comments or just the negative ones. She said that staff would contact her if new posts were put up[96] and that she received several phone calls from individuals saying that "I read that your principal's mean, your principal's evil".[97] And that other people would say "they've heard she is a bully. Is there bullying at the School? I heard that you don't take low performing students, is that true?"[98] Ms Falconer said these calls happened after the Facebook site went up and they were not happening before the Facebook site went up. To the extent there is a conflict in the evidence, I prefer the evidence of Mr Hows set out at [26]-[28] of these Reasons: that he was fielding speculative calls from various members of the community from 15 February 2016 and these enquiries included all sorts of scandalous allegations including whether there had been bullying going on.

[105] Hayley Wenke, an administration officer at the School, learned of the Facebook posts because she was on Facebook and staff members had also told her about the site.[99] She looked at the Facebook page for a few days but then work got busy so she stopped checking it daily. She could not recall the exact wording but remember the words "evil" and "bully". She looked at Change.org site briefly - only once or twice. She remembered names of people who posted, in particular the seventh and first and second defendant's names but she did not recall their particular posts - though "they sort of jumped out at me for the nature of the comments, and I had some dealings with those parents over the time."[100] This evidence was unhelpful and contrived. Her evidence was that at the time [the posts were up] she heard people outside the School, including at the local IGA and in various locations including coffee shops, discussing "the Facebook posts". These discussions involved people asking her how the plaintiff was and "was it true, that type of thing".[101]

[106] Rebecca Ireland (a head of department of School) gave evidence that she remembered reading the "judge, jury, executioner, and a comment questioning that the plaintiff favours academic students and does not care about non-academic students".[102]

[107] Jacqueline Anderson (a deputy principal at the School) thought she was shown the Facebook page on another teacher's phone. She remembered reading the word "evil" (given there were at least two posts describing the plaintiff this way, it was not clear which post she was referring to). This evidence and her other evidence that she walked away because she was shocked is indicative of the weight and attention usually given to comments made on online forums.

[108] Zara Murray (a teacher's aide at the School) said that she:[103]

(a) initially saw the Change.org petition when it was shared on her Facebook feed from one of her Facebook friends;

(b) clicked on the link and signed the Petition;

(c) checked the Petition every few days to see how many signatures it had. She checked it quite a few times and read the comments probably three, four times a day;

(d) shared the Petition with her own family and friends;

(e) read "most" of the comments on the Petition;

(f) saw the Facebook page when one of her Facebook friends shared it on Facebook; she then shared the Facebook page herself;

(g) checked the comments quite a few times and specifically remembered reading the first defendant's comment (although she did not identify which comment of the first defendant she was referring to).

[109] Tammy Varley, the plaintiff's sister, gave evidence that she discovered the Facebook page via a friend's Facebook newsfeed.[104] This friend had nothing to do with the School, but had made a comment on a post which linked to the Change.org page. [105] Ms Varley said she read the comments on the websites and she recalled the content of some of the posts included the phrase "judge, jury, executioner."[106]

[110] The plaintiff tendered data from the Change.org site which showed 609 signatures on the petition and 266 comments.[107] In attempting to ascertain how many people read the posts of the remaining defendants it is reasonable to infer that some of those who posted on the Facebook page also read the comments on the Change.org site and, that some who signed the Petition read the accompanying posts and, those who did not sign the Petition but made comments, also read some of the earlier comments.

[111] But the pages were only available for access for a short time. I accept and find that the evidence establishes generally that the Facebook posts and the Change.org comments were being looked at by staff at the school and a number of others in the School community over the six days they were up. It was a close- knit community and there was much speculation and innuendo at the time so it is reasonable to infer there would have been considerable curiosity from those with an interest in the School. There was some other evidence about posts being photographed and distributed (for example the plaintiff's brother sent her screen shots) but no such screen shots were in evidence and there was no evidence that any particular posts (most relevantly of the remaining defendants) were being distributed this way in a broader sense.

[112] As a general proposition, I am satisfied on the balance of probabilities that the Facebook page and the Change.org site were distributed to the School and the broader Tamborine community. It is reasonable to infer and I find that that the websites reached a broader audience than as admitted by the remaining defendants. But there was no cogent evidence to support a specific finding that a minimum of 8,210 people read the Facebook posts or that around 600 people read the first and second defendants' posts on the Change.org website, or even a general finding that they were read widely.

[113] All that was established on the evidence was that a number of the plaintiff's witnesses visited the sites a number of times during the period they were accessible, and could now no longer recall the precise content of those posts with absolute clarity or certainty. The plaintiff's case about the posts being read so widely overlooks many of the issues I have discussed in the at paragraphs [60]-[77] under the heading '3.2.3 Importance of Forum & Context,' and in particular the tendency of other witnesses to skim, ignore, or otherwise move on from the general online conversation on both Facebook and Change.org. It also does not take into account the evidence that a number of witnesses said they revisited the sites. I can also infer that those witnesses called by the plaintiff were likely to have had much more interest or involvement in keeping up to date with the online conversation as it unfolded than the majority of people who visited either Facebook or Change.org. On the evidence, then, I am unwilling to draw the inference that the remaining defendants' posts were read by an audience in the thousands.

[163]

[123] The first defendant has consistently maintained that any claim (including a claim of re-publication) based on the second publication by her is statute barred by virtue of s 10AA of the Limitation of Actions Act 1974.[109] This section states that: "An action on a cause of action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of."

[124] It was not until her written submissions filed at the end of the trial [on Thursday 31 October 2019], that the plaintiff conceded that her claim in relation to the second publication by the first defendant is statute-barred. The explanation for the lateness of this concession was that it was not possible for it to have been made "until the evidence was out." That explanation was unsatisfactory and does not reflect well on the plaintiff. By the time of trial, the plaintiff knew what the evidence was - disclosure was completed, and pleadings were closed. The maintaining of a claim based on this publication did not assist in the just and expeditious resolution of the real issues in dispute between the parties; and could only have diminished any settlement prospects; and moreover fed the hysteria of the first defendant, a woman no longer able to afford legal representation; who had lost her house and car, and was about to be made a bankrupt as a result of an unpaid costs order in the proceeding; and who considered her life had been destroyed by the plaintiff's relentless and persistent pursuit to hold her to account [to the sum of $220,000 plus costs] for the two comments she had made.[110]

[125] The plaintiff relies on the second post as an "aggravating feature" of the first defendant's conduct on the basis that she posted more than one publication containing defamatory matter.[111] I accept that the authorities establish that certain pre- and post-publication conduct of a defendant can be relied upon in limited cases to support a claim for aggravated damages; for example, to prove the existence of a malicious motive or to demonstrate improper or unjustifiable conduct.[112] But I reject the contention that the second post made by the first defendant (a few days after her first post and prior to any Concerns Notice or proceedings being instituted) falls into such a category of conduct, and I find that the first defendant's second post is not relevant to any claim for damages by the plaintiff. This finding does not mean this post is irrelevant to this case. It remains part of the factual matrix.

[126] It follows that the plaintiff's case against the first defendant is confined to one publication on the Change.org website [on 7 March 2016] as follows:[113]

[176]

[143] The plaintiff's pleaded case is that each of the pleaded imputations were false and likely to lead an ordinary reasonable person to think less of her.[125] The first defendant denies that the imputations were false and relies on a defence of justification.[126] The first defendant's defence of justification was struck out in June 2019[127] and a revised pleading was filed on 3 October 2019 which did not take this into account, I infer most likely because the first defendant did not have legal representation at this time.

[144] The first defendant denies the imputations that the plaintiff is "nasty" and "horrible" are defamatory but otherwise admits that the remaining imputations were likely to lead an ordinary reasonable person to think less of the plaintiff and are thus "defamatory in nature". [128] But of course this somewhat qualified pleading does not detract from my obligation as the trial judge to be satisfied that in the circumstances in which it was published, the defamatory imputation is, as a matter of fact, likely to cause an ordinary reasonable person to think less of the plaintiff or to shun or avoid her.[129]

[145] The plaintiff submits that the imputations alleged are defamatory and that "the idea the plaintiff is an evil, horrible, nasty teacher who brings pain and stress on children who do not get A's, and their families, and who mistreats lower performing children, and who does so because they affect her school rating, is destructive of reputation".[130]

[146] The plaintiff's submissions do not address the context of the publication of the post at all. She asks the court to draw the conclusions in one step. But in my view, this submission overlooks that "context counts in deciding whether a publication conveys a defamatory meaning".[131] I have discussed this issue in some detail at paragraphs [60]-[77] of these Reasons. These observations inform part of my present consideration of whether, in the eyes of an ordinary reasonable person, the carried imputations are defamatory.

[147] The first defendant's comment was posted at 8.57pm on 7 March 2016.[132] That is some 5 and a half hours after the Petition on the Change.org website and the Facebook page went live at approximately 3.30pm on 7 March. According to updates on the Facebook page: by 7.33pm that night there were 100 signatures on the Petition; by 8.30pm pm 200 signatures; and by 9.52pm 300 signatures. There were approximately 173 comments posted on the Change.org website on 7 March 2016. About six were negative, (four of these posts remain on the face of the Change.org site[133] and have not been sued on - the other two negative posts are those of the first and second defendants which are the subject of this proceeding). The rest were highly complementary of the plaintiff. It is reasonable to infer (given the time of the posting the first defendants post) and I find, that it appeared somewhere in the second half of these comments posted on 7 March. The balance of the comments posted between 8 March and 13 March (as they appear on Exhibit 14) are nearly all supportive and complimentary of the plaintiff. It follows that the first defendant's post was surrounded by an overwhelming number of glowing reports of the plaintiff, for example:

[186]

[149] Taken on their own, at face value, words such as "evil", "nasty" and "horrible" are on any view very hurtful to the recipient. As Judge Kent QC previously observed in the context of this case, "it is said that a person is evil if she acts in violation of or inconsistent with "the moral law."[135] I accept that the plaintiff's pride would have been injured by these comments. But words can injure pride without damaging reputation. For the reasons discussed below this is such a case.

[150] At the outset it is instructive that the plaintiff concedes elsewhere in this case, that as principal of the School, she had numerous complaints made about her from parents about how she had handled situations with their children and the mere fact of such complaints is not unusual for a principal of 19 years or damaging to reputation. [136] It follows from this concession (which I accept is a reasonable one), that the ordinary reasonable reader would expect that the plaintiff has a difficult role and that she has to make tough decisions, a number of which would leave her open to unreasonable demands and expectations, and heavy criticism by disgruntled parents and their children.

[151] An ordinary reasonable reader of the Change.org website and the Facebook page would consider the highly emotive and general language used by the first defendant as a meaningless and nasty rant by someone with a personal grudge against the plaintiff. Such a person is highly unlikely to have their opinion of the plaintiff lessened by reading such ill-measured and nasty descriptions of the plaintiff, particularly in the context that they were made as part of an online discussion forum. They are more likely to feel some sympathy for the plaintiff at having to be on the receiving end of such a tirade of negative language.

[152] The ordinary reasonable reader would read the online forum discussion as a whole and would take the bane of the emotive and melodramatic expression of the first defendant's description of the plaintiff (as evil, nasty and horrible) with a grain of salt, washed away by the overwhelming sea of complimentary posts about the plaintiff. In other words: the antidote is a complete cure to the bane in the case of these particular imputations.[137]

[153] It follows and I find that the imputations that the plaintiff is evil, nasty and horrible are not defamatory - though I do acknowledge they are highly insulting.

[190]

[157] There is an overlap with these imputations. But the starting point [bearing in mind the principles I have restated in the preceding paragraph] is that the ordinary reasonable reader would reject any interpretation that means that the plaintiff inflicted physical pain or harm or was cruel to lower performing children. Reading between the lines such a person would infer that the plaintiff brought a level of emotional pain and stress on some of the children who did not do really well at school and that she treated some of the lower performing children unfairly mainly because those children affected her school ratings.

[158] These imputations overlap to a great degree but are the real sting in the first defendant's post. Even reading the post in its full context, these imputations are not entirely negated by the positive posts, nor completely diffused by the nature of the forum. In fact, some aspects of the full context of the online conversation on both Facebook and Change.org may lend some persuasive force to them. For example, the first defendant's post may cast a negative pallor over those posts which celebrate the School's high educational performance in the State System by providing a more sinister explanation for its success. There are also a number of other comments on the Facebook page which make reference to the plaintiff's allegedly negative attitude towards poorly performing students (including a fairly lengthy and detailed post from a past "prize" student from the 10th March)[139] - and the plurality of these comments may lead an ordinary reasonable reader to think that there is therefore some credence to these imputations.

[159] Imputations that the plaintiff as a teacher and principal of the School (which accordingly to the preamble to the Petition has high standards of education and discipline upon which "our school reputation and results have been built upon")[140] caused emotional stress and pain to lower performing children and/ or that she treats them unfairly because they affect her school ratings, are likely to cause the ordinary reasonable reader to think less of the plaintiff.

[160] I find that the three pleaded imputations set out in paragraphs [136](f), [136](g) and [136](h) of these Reasons are defamatory.

Conclusion regarding imputations arising from the first defendant's post

[161] It follows from the above analysis that whilst they involve a degree of overlap, I am satisfied that three of the eight pleaded imputations arising from the first defendant's post are defamatory. But given the context in which the post appeared; the defamatory quality of these imputations falls at the lower end of seriousness.

[191]

[162] The only pleaded defence maintained by the first defendant is the defence of triviality under s 33 of the Defamation Act.[141] This section provides that it is a defence to the publication of defamatory matter "if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain harm".

[163] The first defendant alleges that the circumstance of the publication was such that the plaintiff was unlikely to suffer harm, because the opinions of readers would not have been changed by that publication.[142]

[164] By the express words of the section - the onus of proof rests with the first defendant. The bar is set very high.[143]

[165] In Smith v Lucht, the Queensland Court of Appeal set out the following guiding principles about the defence of triviality:[144]

(a) The enquiry as to whether the plaintiff was unlikely to sustain any harm is directed to the time of publication; does not depend on what happened after the publication; and does not depend on whether or not harm in fact resulted from the publication.

(b) The defence depends entirely on the causative potency of the circumstances of the publication.

(c) The expression "unlikely to sustain harm" refers to the absence of a real chance or real possibility of harm.

(d) The main factors the court should consider in deciding whether the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm are: the content of the publication; the extent of the publication and the nature of the recipients and their relationship with the plaintiff. This may include the recipient's knowledge of the plaintiff's reputation.

[166] The first defendant sought to prove the defence by referring to the evidence elicited from most of the plaintiff's witnesses under cross examination that they had a high opinion of the plaintiff before and after reading her post. I accept the evidence adduced from most of the plaintiff's witnesses was that none of the negative posts they read (which included the first defendant's post) led them to think less or made them change their otherwise positive view of the plaintiff.

[167] The plaintiff submitted that this evidence is not probative given the relevant considerations articulated in Smith v Lucht - but submitted that in any event there was evidence to the contrary. For example:

(a) Ms Rebecca Ireland said the posts "did lead me to question, you know, was there truth in those comments, and had she been suspended because of not favouring academic students, or not being fair and equitable in her behaviour management. I - you know, it did - made me question the circumstances of her leaving, her character, and how that school was really run;[145]

(b) Ms Falconer said she received calls from people who have read the posts about the plaintiff and asked whether there was bullying at the school, and whether it was true that the school didn't take low performing students.[146]

(c) Mr Brose said a neighbour asked him whether someone who had enrolled children in the school had made the wrong decision, and whether there was "more to this";[147]

(d) Ms Anderson gave evidence that the plaintiff's reputation was now not as good as it was prior to the publications and there have been questions from people at prospective interviews.

(e) Mr Locastro said parents asked him whether the publications were true.[148]

[168] To the contrary, the evidence relied upon by the plaintiff is of little weight as it is vague and most of it not causatively connected to the first defendant's comments. But I accept the plaintiff's submission that the evidence the first defendant relies upon is not relevant in light of the considerations articulated in Smith v Lucht.[149]

[169] The first defendant also submits that the readers of the publication would have had a pre-existing interest in the matters such that their views would not have changed or have been affected by the publications. I reject this submission. It fails to take into account that the post was made on a forum which at least at the time of publication, had some potential for broad distribution - including to those who may have a potential interest in sending their children to the School in the future.

[170] The onus is on the first defendant to overcome the high bar necessary to succeed on her defence of triviality. I am not satisfied that she has achieved this for two main reasons. First, whilst the first defendant's publication was at the lower end of seriousness, it maintained some potency at the time of publication. Secondly; despite my findings that the websites were only accessible for a relatively short period; and the first defendant's post was not published widely; given the nature of the forum, there was, at the time of publication, some real chance or prospect of the potential for a wider audience of people with some interest in knowing about the plaintiff and some interest in her reputation.

[171] On the above analysis, it cannot be said there was no real chance or real possibility that the post, even to the limited extent I have found it was defamatory, would cause harm to the plaintiff's reputation.

[172] It follows and I find that the defence of triviality is not available to the first defendant.

[211]

[186] The second defendant denies the imputations are defamatory on two bases: first that they are not false, relying on the defence of justification,[165] (which is limited on his pleading to the one imputation that the plaintiff does not handle situations appropriately);[166] and secondly, that none of the imputations were not likely to lead an ordinary reasonable person to think less of the plaintiff because:[167]

(a) The imputations are not, as a question of law, defamatory in nature;[168] and

(b) The imputation that the plaintiff thinks she is an investigator, judge jury and executioner is vague, ambiguous and /or meaningless so as to be embarrassing and is liable to be struck out.

[187] It is submitted on behalf of the plaintiff that "plainly imputations such as the Plaintiff being dictatorial, unjust, not a good Principal and not interested in children that are not high achievers, would cause ordinary people to think less of the Plaintiff particularly given her role as Principal".[169] Again, the plaintiff's submissions do not address the issue of context at all. Given the forum and the context in which the second defendant's publication was made, I reject the submission that these imputations are "plainly" defamatory. The issue of whether these imputations are defamatory cannot be considered in a vacuum. It is a far more complex question and requires considerable analysis.

[188] An imputation is defamatory if it is likely to cause an ordinary reasonable person to think less of the plaintiff or to shun or avoid the plaintiff.[170] As discussed earlier in these Reasons, the context in which the imputation is made is a relevant part of that consideration.[171] Words that are not defamatory in isolation may acquire a different meaning when read in the context of other statements (and vice versa). But of course the mere presence of inconsistent assertions does not necessarily remove the defamatory charge. Context encompasses both form and mode.

[189] In this case the imputations arise from a comment made by the second defendant on a Change.org website where a number people posting statements about the plaintiff. An ordinary reasonable reader would not read the second defendants post in isolation. They would read it in conjunction with the other posts published on the Change.org website and the Facebook page, (given they were interconnected) around the time of publication.

[190] It is admitted by the second defendant and I accept, that his post was published on 7 March 2016 but there is no evidence where his comment sat in terms of the other posts also made on 7 March. But Exhibit 14 shows that 173 posts were made on the Change.org website on 7 March 2016 and the overwhelming majority of these comments have only good things to say about the plaintiff. Without repeating the examples already set out at paragraph [147] of these Reasons, these comments describe the plaintiff in glowing terms: that she was an excellent principal, tough but fair, understanding, hardworking, genuinely interested in her students, and dedicated. There are limited comments about the plaintiff on the Facebook page from 7 March; much of the Facebook discussion occurs on later dates.

[191] With these observation in mind, I find that the context in which the posts were made would lead the ordinary reasonable reader to form the view that:

(a) the post was written by someone with personal dealings with the plaintiff in her capacity as principal at the School;

(b) this person was glad to see the back of the plaintiff;

(c) the writer felt the Education Department's stance to suspend the plaintiff was justified in light of the numerous complaints from parents who have challenged or confronted the plaintiff as principal about the "inappropriate" [reading between the lines] way she has handled situations with their particular child;

(d) that the plaintiff thinks she in sole charge or control of everything and has the final say in terms of the investigations, decisions and outcomes at the School [and that she is not particularly good principal when it some to these things];

(e) as principal, the plaintiff is interested only in the higher achieving students and not students who are lower achieving and who do not fit the norm.

[192] The plaintiff did not advance any argument in written or oral submissions that the pleaded imputations as set out in paragraphs [180](c),(d) and (e) of these Reasons, are defamatory. I do not take this is a concession and I will deal with each of the imputations in turn.

[217]

[198] However, I consider that the imputation that the plaintiff is "unjust" is capable of arising on a reading of the post as a whole so I have dealt with it in my discussion of the last pleaded imputation below.

[199] My earlier remarks in relation to the importance of forum and context have particular relevance to the second defendant's post, in particular the words identified in [196] above. Such a statement is characteristic of the abusive rants, nonsensical style and poor grammar and syntax commonly seen on social media.

[200] In my view the ordinary reasonable person would not take the imputation that "the plaintiff thinks she is an investigator, judge, jury and executioner" literally, but rather see it as exaggerated, illogical language that does not entirely make sense. It would not, on its face, cause the ordinary reasonable person to think less of the plaintiff. It follows and I find that the pleaded imputation set out in [180](d) of these Reasons is not defamatory.

[201] As to imputations [180](e),(g) and (h), again, an ordinary reasonable person would as a start reject any implication that the plaintiff was all or any of these things all of the time as entirely exaggerated. Otherwise, an ordinary reasonable person would take into account that the plaintiff as principal is the head of the school - the ultimate leader and sole decision maker. And it would be expected that this required her to exercise a great deal of authority and control over those under her command. They would consider that she is the person who is ultimately responsible for the investigations that take place at the school, the outcomes of such investigation and the consequences. It follows that the ordinary reasonable person would appreciate that schools are about guidelines, policies and rules being set, followed and enforced. An ordinary reasonable reader would factor in that a principal would be required to make countless tough and difficult judgment calls and decisions about matters that affect a myriad of people and on a variety of issues. Such a person would expect that on occasions, those affected might not like the result or think that the decision or process was not a good one. Further, in this context, an ordinary reasonable person would allow some scope for a person in the role of principal to be criticized, rightly or wrongly by those affected by her judgment.

[202] Again recognising the test is that of the ordinary reasonable reader, the admission by plaintiff that she as principal, has had numerous complaints made about her by parents about how she handles situations with their children, is consistent with my assessment of what a reasonable ordinary reader would have in mind in the context of this case. An ordinary reasonable reader would not expect that a principal of a school would be universally liked, or beyond criticism, and nor would they expect that she would be regarded by everyone as a good principal.

[203] Bearing in mind all of these matters, the imputations that the plaintiff is dictatorial, controlling or not a good principal would not cause an ordinary reasonable reader to think less of her.

[204] Further, the imputation that the plaintiff is dictatorial, controlling are amorphous character traits. The imputation that the plaintiff is not a good principal is a very general and vague one. Any number of positive posts could contradict or remover the "sting" of such general observations of the plaintiff's character. In the circumstances of this case, it follows that to the extent there was the potential for these imputations to lead the ordinary reader to think less of the plaintiff, the sting is removed by the other posts such that none of these imputations would cause an ordinary reasonable reader to think less of the plaintiff.

[205] It follows from the above that I am not satisfied that the imputations pleaded in the statement of claim that: the plaintiff is controlling [180](e); the plaintiff is dictatorial [180](g); and the plaintiff is not a good principal [180](h); are likely to lead an ordinary reasonable reader to think less of the plaintiff. It follows and I find that in the circumstances of this case each of these imputations are not defamatory.

[219]

[206] The imputations that the plaintiff is unjust and not interested in children that are not high achievers are in a slightly different category than the other imputations arising from the second defendant's post.

[207] The imputation that the plaintiff as a principal is unjust is one an ordinarily reasonable reader would consider in a narrower sense and more critically. Such a person would allow some scope for the plaintiff to make mistakes, errors of judgment but that person would expect that at all times a principal would act justly. Whilst there are other posts that speak of the plaintiff as being fair they would not necessarily negate the imputation that she is unjust, particularly when such an allegation may be supported by the additional imputation that she is unjust specifically in relation to lower performing students. Even taking into account the mode and form of publication as discussed above these imputation would likely cause the ordinary reasonable person to think less of the plaintiff.

[208] The imputation at [180](i) that, as principal, the plaintiff is not interested in children that are not high achievers is a specific criticism of the plaintiff's role as the head of a school and her responsibility to educate all young people. The ordinary reasonable person would reach the view that this is the real sting in the post. Whilst the relevant view is that of the ordinary reasonable reader this conclusion is consistent with the plaintiff's evidence when she was taken to the second defendants' post - that it was the suggestion that she didn't support children who didn't fit the norm that hurt her the most.[173] Whilst there are other positive posts negating this imputation (for example one post on 7 March 2016 describes the plaintiff helping her son with severe dyslexia), I am not satisfied that the full context of the online conversation would entirely remove the negative charge of this imputation in the eyes of the ordinary reasonable reader. As discussed at paragraph [157] in relation to the first defendant's post, the sting of this imputation may have a souring effect on some of the other positive posts, and give some force to the other posts that spoke negatively of the plaintiff's treatment of lower performing students. Even taking into account the mode and form of publication, this imputation would be likely to cause the ordinary reasonable person to think less of the plaintiff.

[209] It follows and I find that the imputations that the plaintiff is unjust [180](f) and the plaintiff is not interested in children that are not high achievers [180](i) are defamatory. But given the forum in which they were made, and in the context of the publication as a whole, the quality of each of the imputations is at the very lower end of seriousness.

[225]

[221] In his defence the second defendant particularised in some detail five examples to support the second contextual implication that parents of children at the School had confronted the plaintiff on the way she would handle situations with their child. These examples were of the first and second defendant's experience; the sixth defendant's experience; the eighth defendant's experience; and conduct concerning Cassie McMullen or her son.

[222] The plaintiff admits the second contextual imputation (that parents of the School have confronted her about how she would handle situations with their child) is carried by the second defendant's post and that it is true.[181] But the plaintiff by her Reply to the Defence challenged many aspects of the particulars alleged.[182] Many of these issues were ventilated at trial, particularly the allegations concerning the plaintiff's handling of an investigation into the first and second defendant's son's conduct and his subsequent expulsion in early 2014.

[223] The evidence establishes and I find that the first and second defendants felt that the treatment of their son in 2014 was harsh and unfair and that they were extremely upset, dismayed and disgruntled with the plaintiff's handling of the situation - and that they expressed all of these things to the plaintiff at the time (including that they considered their son had been treated that way due to that fact he was not academic and not a role model student).[183] But there is no necessity for me to make any findings resolving the pleaded factual dispute about each of the specific situations particularised, for four main reasons:

(a) First, the defence of contextual truth is premised on there being an additional defamatory sting not sued on by the plaintiff. For the reasons discussed below under the heading "Further Harm" the additional sting in this case [i.e. the two contextual imputations relied upon] are not defamatory. It follows and I find that there is no reputational harm arising from these contextual imputations. This leaves only the reputational harm of the proved defamatory posts (which in the context of this case I have determined are of low harm in the sense of defamatory quality). But that harm remains as a matter of logic and reasoning more harm than no harm. Put another way, I am left to compare apples and nothing. So the defence of contextual truth must fail.

(b) Secondly: it follows from this finding that a resolution of the factual issues relied upon by the second defendant to support the second contextual imputation is not determinative of the resolution of the issue of whether the contextual truth defence is successful.

(c) Thirdly, the factual circumstances, in particular about the suspension pleaded by the first defendant, are only relied upon by him to sustain the contextual truth defence and not for any other defence. Further, they are not raised or relevant to any defence maintained by the first defendant. [184]

(d) Finally, the role of this court is to determine the real issues in dispute between the parties. The specific examples pleaded involve factual disputes about matters of a sensitive nature about an individual who was a child at the time. The resolution of the dispute on the pleadings about the complaints and confrontations between the plaintiff and particular parents is not probative or relevant to any issue at trial. It follows and I find that the interests of justice do not necessitate any findings need to be made resolving such matters.

[243]

[241] On any view, the third defendant's post is replete with general and pejorative language. It is impossible to ascertain the real sting to this post except to say that it is obviously insulting and abusive of the plaintiff. There is some repetition and overlap to the pleaded imputations. In these circumstances, I consider it more effective to consider the imputations (and the post) as a whole.

[242] The plaintiff submits that having "regard to their terms", the court will conclude that the imputations are defamatory because they were likely to cause ordinary reasonable persons to think less of the plaintiff, or to shun and avoid her.[199]

[243] I reject the plaintiff's submission for a number of reasons.

[244] First, because again it fails to recognise that context counts. This post was made at 1.33am in the early hours of 12 March 2016, within a lengthy, dynamic and multi-faceted Facebook conversation. The ordinary reasonable reader would read this comment as part of that conversation. Relevantly, the next post in that conversation (posted at 4.11 pm on 12 March) says: "To all the critics and the knockers! How do you explain away the fact that this school is one of the highest achieving schools in this state if not the country! Seems that there are some sooks out there that object to discipline!"[200]

[245] Secondly, as I have discussed at paragraphs [60]-[77] of these Reasons, ordinary reasonable readers of such social media forums are alive to a wide range of cues which inform both the meaning and quality of the meaning conveyed.

[246] Thirdly, the ordinary reasonable reader would take an impressionistic approach to their reading of this post,[201] and in doing so would form the immediate view that it should be ignored and disregarded as a baseless, exaggerated, meaningless, emotive rant with no explanatory context, by an ill measured, angry and irrational person with no regard for common decency. The ordinary reasonable reader would not be swayed by such a rant particular given the overwhelming level of support for the plaintiff on both websites.

[247] Fourthly, the ordinary reasonable reader is likely to think that the post is unpleasant and insulting of the plaintiff, and undoubtedly hurtful to her. But that does not mean that person is likely to think less of her as a result of reading it. To the contrary, the ordinary reasonable reader is likely to have some sympathy and understanding for the plaintiff as a longstanding principal of the School, having to be exposed to such unkind and unpleasant abuse. In my view the ordinary reasonable reader is more likely to think less of the third defendant after reading her post than of the plaintiff.

[248] As I established at this outset, the third defendant's post is obviously an unpleasant, abusive and insulting one. But the test for determining whether an insulting or abusive imputation is also defamatory remains a question of whether the insulting words would tend to lower the reputation of the party insulted in the eyes of the ordinary reasonable person. With all of the above considerations in mind, I am not satisfied that the ordinary reasonable reader would think less of or seek to shun or avoid the plaintiff after reading the third defendant's post.

[249] It follows and I find that the third defendant's post is not defamatory of the plaintiff.

[250] The third defendant raises the defences of triviality. Given my findings, it is unnecessary for me to address this defence.

[255]

[262] Under cross examination, the sixth defendant accepted she received the Concerns Notice (although no time frame was suggested) and that she did not publish an apology on her Facebook page or otherwise respond to it.[211] Her evidence at trial was that she considered she had done nothing wrong and she had nothing to apologise for.[212]

[263] The sixth defendant also explained why she put her head in the ground and why she could not afford legal representation to respond to the "claim, emails and letters she was receiving about the case from the plaintiff's lawyers". She said that at the time she received the claim seeking $150,000.00, she was terrified. Her long- term marriage had fallen apart, she was on slow release morphine for her medical condition. She had not worked for six years due to her medical problems and she did not know how to support herself let alone pay someone $150,000.00. I accept her evidence that she hit rock bottom.

[264] The sixth defendant's evidence was that she told the plaintiff's solicitor about her marriage break up and her financial situation and that she had to sell her house because there was no equity in it. She said the response she got was "that she could not sell her house". I accept this evidence as it is consistent with the letter from the plaintiff's solicitors dated 20 February 2018, which states relevantly: "our client is not prepared to allow you to dissipate whatever assets you currently hold so as to render any away of damages that might be made in her favour, worthless."[213] This letter also requested documentation about the sale and a copy of any family law settlement agreement, and threated to apply for a Freezing Order over the assets of the sixth defendant.[214]

[265] The Concerns Notice dated 22 April 2016 identified the above post as the "matter complained of" and alleged it carried the defamatory imputation that "Mrs Brose made your sons lives a nightmare and treated them [sic] badly" and "Mrs Brose mistreated your children."[215] This notice made similar request to the Concerns Notice sent to the first and second defendants (including payment of the plaintiff's reasonable legal costs). Relevantly it sought the removal of the matter complained of the Facebook immediately, and for the sixth defendant to publish an apology on her Facebook page (and to never remove it) as follows: "On 12 March 2016, I published an offensive post about Principal Tracey Brose. I was wrong to make such unpleasant statements. I sincerely apologise to Tracey Brose for my conduct".

[266] The evidence that I accept was that the Facebook page was closed on the same day the sixth defendant post was made - well before the Concerns Notice was issued and the proceedings in this case commenced. There was no evidence that anyone other than Mr Hows had access to the Facebook page or that anyone saw the sixth defendant's post after 13 March 2016. It follows and I find that it was not possible for the sixth defendant to have complied with the first request on the Concerns Notice to remove her post. There is no evidence that the sixth defendant republished her post but there is some evidence that this post has been republished in the newspapers and the sixth defendant has repeated the contents of the post as part of her case at trial.

[257]

[268] The sixth defendant admits that her publication contained the imputations:[217]

(a) the plaintiff made the sixth defendant's son's lives a nightmare [266](b);

(b) the plaintiff treated the sixth defendant's sons badly [266](c); and

(c) the plaintiff mistreated the sixth defendant's children [266](d).

[269] The sixth defendant does not admit the balance of the pleaded imputations are carried on the basis that: [218]

(a) Imputation [266](a), that "the Plaintiff is petty, small minded and spiteful in her enforcement of School rules" is denied because the actual words "petty", "small minded" and "spiteful" did not appear in the publication and she did not mean to imply those words;

(b) Imputation [266](e), that "the Plaintiff mistreated the Sixth Defendant's sons in the way she did, because Ms Lawson challenged the Plaintiff about School rules" is not admitted because the sixth defendant did not challenge the school rules themselves, but rather the way the plaintiff interpreted them; and

(c) Imputation [266](f), that "the Plaintiff deserves to be gotten rid of" is denied because the actual words did not appear in the publication.

[270] The plaintiff submits that the natural and ordinary meaning of the words used in the sixth defendants post convey the imputations pleaded because:

(a) Imputation [266](a) arises inferentially from the publication as a whole. The anecdote related by the sixth defendant in her post plainly suggests:

(i) the plaintiff enforced school rules which were allegedly pointless, because those rules had nothing to do with getting an education, and the sixth defendant points to her own successful employment despite hair colour and piercings;

(ii) the plaintiff was petty and small-minded because she devoted time and effort to enforcing pointless rules;

(iii) the plaintiff was spiteful, because she proceeded to mistreat the sixth defendant's children after the alleged telephone conversation in which the sixth defendant challenged her;

(b) Imputation [266](e) arises directly from the words "My poor kids were treated badly from that day on", which is preceded by the recounting of a conversation where the sixth defendant allegedly challenged the plaintiff about the school rules;

(c) Imputation [266](f) arises directly from the words "Some parents have been trying to get rid of her for years, and I am very glad it has finally happened" in the context of the anecdote that preceded them (which recounts the plaintiffs alleged mistreatment of the sixth defendant's children).

[271] The plaintiff's submission does not take into account that the mode, manner or form of publication is also a material matter in determining what imputation is capable of being conveyed.[219]

[262]

[279] The sixth defendant denies the imputations would lead an ordinary reasonable person to think less of the plaintiff and therefore pleads that they are not defamatory.[220]

[280] The plaintiff submits that she has proven the existence of a defamatory matter but her submissions do not elaborate on this or the issue of the context of the publication of the matter.

[281] The sixth defendant's comment was posted in the early morning of Sunday 13 March 2016 [6.47 am]. It is one of the longer "negative" comments in the online discussion about the plaintiff. By this date the Facebook page contained around 46 negative comments and about 10 positive comments (in addition to 7 positive posts from the page admins)[221] and the Petition, which was linked through the Facebook page, contained over 300 comments, most of them highly complementary of the plaintiff.[222] The nature of the online world is discussed earlier in these reasons [64]-[77] but relevantly to the sixth defendant's post the ordinary reasonable reader looking at these discussion forum would skim through the various comments and would be unlikely to sit down and read each of them carefully.

The plaintiff made the sixth defendants sons lives a nightmare [266](b);The plaintiff treated the sixth defendant's sons badly [266](c); The plaintiff mistreated the plaintiff's children [266](d); The plaintiff treated the sixth defendant's sons badly and mistreated them because the sixth defendant challenged her about the School rules [266](e)

[282] There is some overlap and interaction between these imputations, so I will deal with them together.

[283] The starting point is that ordinary reasonable reader would consider the expression "a nightmare" in [266](b) as an obvious over statement or an exaggeration, by a disgruntled former parent, unhappy about the school rules and, particularly their application to her children. They would not read the reference to "nightmare" literally to mean "a frightening or unpleasant dream" but rather to mean that the sixth defendant's perception was the plaintiff made the sixth defendant's sons experience at school very unpleasant - because of the enforcement of school rules. Reading the post as a whole, the ordinary reasonable reader would infer that the sixth defendant described her sons experience this way in the context of the plaintiff's enforcement of school rules about hair colour and piercing. The ordinary reasonable person would take into account that the plaintiff as principal would be required to enforce rules about clothing and appearance standards and that some parents and students would not like this. The ordinary reasonable reader would expect that those who wish to disobey or who disagreed with such rules might not enjoy their time at school and would find the overall experience unpleasant. In this context and given the post was made as part of an online discussion containing both positive and negative statement about the plaintiff, I am not satisfied that the ordinary reasonable reader would think less of the plaintiff for making the hard decisions to enforce school rules. They would be more likely to think the contrary.

[284] It follows and I find that the pleaded imputation set out in paragraph [266](b) of these Reasons is not of itself defamatory.

[285] Turning to imputations [266](c) and [266](d), as discussed in paragraph [139] of these Reasons, the word "mistreat" means "to treat badly or wrongly," or "to treat (a person or animal) badly, cruelly or unfairly." An ordinary reasonable reader would reject any implication of physical abuse or cruelty and would therefore not distinguish between the imputations in [266](c) and [266](d). An ordinary reasonable reader reading the post would not read the imputations as to the treatment of the sixth defendant's son in isolation. Reading the post as a whole, the ordinary reasonable reader would read between the lines and infer the bad or mistreatment related to the plaintiff's enforcement of school rules about hair colour and piercing. As discussed above when considering the imputation that the plaintiff made the sixth defendant's son a nightmare, an ordinary reasonable reader would not think less of the plaintiff for enforcing school rules. It follows that on a reading of the post as a whole and in the context of the forum in which it was made, an ordinary reasonable reader would not think less of the plaintiff on the basis of the imputed meanings that she mistreated the sixth defendant's sons or treated them badly.

[286] It follows and I find that the pleaded imputations set out at [266](c) and [266](d) of these Reasons are not defamatory.

[287] Finally, as stated above, the real sting in the post is contained within imputation [266](e) - that is, that the plaintiff made the sixth defendant's sons' schooling unpleasant and repeatedly mistreated them all because the sixth defendant challenged her about the School rules. An ordinary reasonable reader of this post in the context of the online discussion forum, (assuming they bothered to read the post in its entirety) would take the negative inference arising as an obviously exaggerated and illogical statement made by a disgruntled former parent, unhappy with her dealings with the plaintiff and wanting to let off steam. Such a person would form the impression from statements such as "I could fill pages with the mistreatments of my children" and "she stuttered a few words, then hung up. My poor kids were treated badly from that that day on" as an absurd and unlikely tale, indicative of the author's one-sided, probably unjustified, opinion about an isolated instance of a principal enforcing standard and common school rules, and nothing more. Having inevitably reached such a view of the post, an ordinary, reasonably reader, not avid for scandal, would not give the post any more thought. The ordinary reasonable reader would also consider the post in the context of its publication as a whole and in doing so would take into account that even on a cursory glance, there were numerous other well-articulated and coherent posts on both Facebook and Change.org which spoke highly of the plaintiff.

[288] In my view the ordinary reasonable reader would not give the sixth defendant's post any weight and would treat it as nothing more than an exaggerated, personal rant, uncorroborated by any other post or any evidence, and obviously based on a specific, one-sided anecdote. Accordingly, I find the ordinary, reasonable reader would not give this post more than a second's thought, let alone think less of the plaintiff as a result of reading it.

[289] It follows and I find that the imputation pleaded at paragraph [266](e) of the statement of the statement of claim is not defamatory.

[273]

[301] There were many aspects of the plaintiff's evidence that I found troubling. At times her responses were less than transparent and beggared belief. Her memory was selective; her evidence often contrived; and she deflected questions when her answers appeared not to suit her case.

[302] For example, despite protesting that the circumstances of her suspension had not impacted upon her in any meaningful way, it came to light during the cross examination of the plaintiff by the unrepresented sixth defendant that around three weeks after the plaintiff commenced the current proceedings [on 2 June 2016] she also commenced proceedings in the District Court at Southport [on 28 June 2016] against the State of Queensland, claiming amongst other things, damages (including aggravated damages) for defamation totalling $260,000 for three matters complained of. Two of the matters complained of related to incidents that occurred in 2015 but more relevantly, the third matter complained of related to the Education Department's handling of her suspension and a publication in the Tamborine Mountain News on 2 May 2016. Most instructively the plaintiff's entitlement to damages was premised on: "the Plaintiff having been brought into hatred, ridicule and contempt and having been gravely injured in her character and reputation, including her professional reputation as a school principal and has suffered hurt and embarrassment and has and will continue to suffer loss and damage."[225]

[303] The plaintiff accepted the proceedings against the Education Department were filed by her [then] solicitors on her instructions but she otherwise deflected the line of questioning on the basis that the claim had gone "stale".

[304] Another example of the plaintiff's evidence that does not reflect well on her is found in the answers she gave after she was recalled by her counsel near the end of the trial to give further evidence, after a letter[226] came to the first and second defendant's attention. This letter contradicted the plaintiff's earlier instructions to her counsel[227] that she had never threatened to sue one of the witnesses called for the second defendant, Mrs Cassie McMullen.

[305] Mrs McMullen was a former parent of the School who gave evidence for the second defendant. She said that in 2017 she had made a comment on the Tamborine Mountain Community Facebook page[228] - along with a lot of other people (in response to a question asked about the School she said she had issues with her youngest child and would not recommend the School). Mrs McMullen said that she and her husband had received a text message from the School asking her to contact the plaintiff urgently.[229] She recalled that the plaintiff then called her directly and told her over the phone that she had lawyers scanning Facebook for the plaintiff's name and that Mrs McMullen's post had been picked up.[230] Mrs McMullen also said that the plaintiff threatened to sue her and to take her house unless she apologised and retracted comments.[231] In cross examination, it was put to Mrs McMullen by counsel for the plaintiff that the plaintiff never threatened to sue her or to take her house and that when the plaintiff called her in 2017 to take down her post and apologise, the plaintiff made no mention of lawyers.[232] Ms Mullen rejected these propositions, and gave evidence that the plaintiff had said to her "that being caught up in this defamation case, herself....it was ugly and not something that you want to get involved in."[233]

[306] Mrs McMullen denied the plaintiff's version and accused the plaintiff of lying about this to her counsel. Mrs McMullen said that she apologised to the plaintiff because she felt that was the only way the plaintiff would not launch a defamation suit against her. Her evidence was that after her apology the plaintiff "emailed me and told me that my apology was not good enough, so she was going to sue me anyway".[234] The plaintiff's counsel called for this email. The email was subsequently produced along with a text message from the school to Mr and Mrs McMullen dated 20 January 2017 and copies of Mrs McMullen's posts (amongst others).[235] This documentation corroborated Mrs McMullen's version, which I accept in its entirety on this issue. These exhibits reveal that Mrs McMullen's post was part of an exchange of comments from past parents voicing their experiences at the School. Most spoke of the plaintiff positively but Mrs McMullen's post qualified her negative post in the exchange as follows: "I have found that it's either her way or the highway! Please bear in mind that this is my opinion only based on our experiences. The last thing I need is her trying to sue me [sic] of voicing my opinion on social media".

[307] The letter from the plaintiff (and her husband) dated 21 January 2017 to Mr and Mrs McMullen stated as follows:[236]

[283]

[308] The plaintiff was recalled by her counsel without objection to explain the obvious inconsistency in the plaintiff's instructions and this evidence. The plaintiff's explanation was that it was the end of the trial and she was stressed.[237] I do not accept this as a satisfactory explanation. The letter the plaintiff sent Mr and Mrs McMullen made serious threats to sue and included personal and emotive statements about the plaintiff needing to seek counselling due to the extreme emotional distress she had suffered as result of Ms McMullen's comments. This evidence reinforces my concerns that the plaintiff is an unreliable historian and supports my finding that I have some hesitation in accepting her evidence unless it is corroborated by independent and objective evidence.

[309] Other examples of matters which I find reflect poorly on the plaintiff's credibility include:

(a) Her refusal to accept that finding out that her suspension had been upheld on 8 March 2016 caused her any distress or harm.

(b) Her refusal to accept that the allegations surrounding her suspension related to her professional conduct.

(c) In the plaintiff's evidence in chief she went to great lengths to emphasize that she had complied with the no contact requirement of the Education Department set out in the letter of 15 February 2016. For example the plaintiff gave evidence about collecting her son from the School gate during her suspension. The lack of transparency became apparent when Ms Wenke, one of the plaintiff's witnesses (whose evidence I accept on this point) and who was not re-examined on this issue, said that during the plaintiff's suspension, she regularly attended the School and would sit in the foyer/office area while waiting to pick up her children.[238] There was no evidence the Education Department having approved this, but when he was asked, Mr Brose said "As a parent, she has the same rights as every parent. She has children at the school." [239]

(d) Under cross examination by the first defendant, the plaintiff vehemently denied on a number of occasions asking her husband to ask Mr Hows to take down the Petition or to delete the comments that were causing her distress. Her reason being: "In the instructions from the Department it very clearly states that I'm to have no contact, and I felt that that would be initiating contact, even though through a third person"[240] and "The terms of my suspension were very clear. There was to be no contact".[241] It was suggested to the plaintiff by the first defendant that one of the plaintiffs own documents contradicted this. Counsel for the plaintiff objected to this question and asked for such document to be produced.[242] It transpired that first defendant was referring to the plaintiff's reply to her defence. By this pleading the plaintiff's case was: she requested the Change.org Petition be taken down on (amongst other, later dates) 10 March 2016; and that on 11 March 2016 her husband contacted Mr Hows and asked that the site be taken down as it was causing the plaintiff and her family stress.[243] Mr Brose's evidence, which I accept, was that he telephoned Mr Hows around this time and left a message for Mr Hows to take down the Facebook page because it was causing his wife distress. But he did not follow up, and in a couple of days the page was taken down so he assumed he either got the message, or for whatever reason he had taken it down. Mr Hows could not recall being asked to take down the post but given the passage of time this is hardly surprising. I prefer and accept Mr Brose's evidence on this point. It is highly plausible that he would have made contact with Mr Hows as he said he did.

(e) I do not accept the plaintiff had no knowledge that her husband had asked Mr Hows to take down the sites. Given their close relationship, it is highly unlikely she did not ask him to do something, or that she did not know he had made the call - particularly given this is part of her pleaded case. I am not suggesting that the plaintiff and her husband ought not to have taken steps to have the Petition taken down - it is understandable they would have. Similarly, I do not suggest that the plaintiff could not pick up her children from School; rather, the relevance of this analysis of the evidence is to exemplify and explain my concern about the reliability of the plaintiff's evidence and her tendency to overlook facts that she perceived did not advance her case.

(f) The plaintiff's insistence that all she wanted was an apology, which is not borne out on the evidence. She reluctantly accepted at one point that the seventh defendant had published an apology on Facebook earlier in time and then conceded that the apology had been made after the plaintiff had commenced proceedings, at which point she had incurred legal costs, which she then wanted paid.[244] The plaintiff then settled with the seventh defendant (on a walk away basis, with no order as to costs) early on in the trial, after disclosure of the document about her suspension had been made.

(g) Under cross examination, the plaintiff denied she had any knowledge of:

(i) Mr Locastro carrying out any investigations on her behalf about the sale of the first and second defendant's Property; or

(ii) that Mr Locastro had made phone calls to the first and second defendant's real estate agent about the sale.

[291]

[318] The authorities provide that, absent a claim for economic loss, an award of damages for defamation serves three overlapping purposes:[256]

(a) to address the need for vindication of the plaintiff's reputation;

(b) to compensate for injury to reputation; and

(c) to assuage the plaintiff's hurt and distress.

[319] It follows that the purpose of an award of damages for defamation is not to punish the defendant but to compensate the plaintiff.

[320] In reality, a single sum is awarded by way of reparation, consolation and vindication.[257] In order to fulfill its social purpose the award must be high enough to assuage the hurt, indignation and desire for retribution which the plaintiff feels.[258]

[321] Where there is no claim for specific economic loss (such as in this case), damages are "at large"; there is no precise application or formula; they are arrived at by "good sense and sound instincts"; and by "what is a fair and reasonable award, having regard to all the circumstances of the case."[259]

[322] Upon publication of defamatory material, damage to reputation is presumed.[260] The sum awarded must demonstrate vindication of the plaintiff's reputation; and reflect the "high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment".[261] The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future.[262]

[323] Ordinarily damage which a defamation produces is psychological rather than material. Injured feelings include the hurt, anxiety, loss of self-esteem and perception, sense of indignity and the sense of outrage of the plaintiff as the person defamed.[263] The plaintiff's hurt feelings "must be established on the evidence and the court's assessment of it."[264] This requires the court to assess the subjective response of the plaintiff.[265]

[324] The extent of the publication and the seriousness of the defamatory sting are pertinent considerations.[266] This is often a question of degree as well as context. Imputations of criminal conduct are at the highest level of seriousness while imputations of personality defects such as selfishness, arrogance or bullying tend to fall at the lower end.[267] The award must be sufficient to convince a bystander of the baselessness of the charge.[268]

[325] The relevance of the extent of publication was identified by Flanagan J in in Wagner as follows:

[295]

[327] The plaintiff pleads that the hurt suffered by her has been aggravated by the following matters:[271]

(a) publishing the defamatory matter;

(b) failing to publish a retraction;

(c) refusing to apologise;

(d) failing to offer to make amends;

(e) in the case of the first, fifth and sixth defendants, each posting more than one publication containing defamatory material;

And that this conduct was malicious, unjustifiable, improper and lacking in bona fides.

[328] By her replies to each of the defences of the first and second defendants, the plaintiff pleads that the injury to her reputation, social damage and hurt and humiliation suffered as a consequence of the defamatory posts, has been further aggravated by their conduct. As against both defendants, she pleads an array of factual conduct which she says give rise to this claim. Two points need to be made about this further pleading: first, that such a claim is not appropriately made in the reply, it ought to have been pleaded in an amended statement of claim;[272]and secondly, for reasons which will emerge shortly, some of the conduct relied upon by the plaintiff was not a proper claim for aggravated damages.

[329] The specific aggravated conduct alleged against the first and second defendants is addressed in the analysis of the separate claims against them below.

[330] Aggravated damages are a form of general damages given by way of compensation for injury to the plaintiff which may be intangible.[273] If the damage is aggravated by the defendant's conduct, damages are correspondingly increased.[274]

[331] The better view is that they are not a separate category or head of damages so the usual course is not to assess general and aggravated damages separately but to include any component for aggravated damages in the award for compensatory damages.[275]

[332] Aggravated damages focus on the subjective experience of the plaintiff. They are awarded for conduct by the defendant which aggravates the injury and increases the harm which the publication of the defamatory material originally caused.[276] In other words, aggravated damages compensate for damage that has been aggravated. They are compensatory in nature for the conduct on the part of the defendant which is improper, unjustified or lacks a bona fides. It need not be malicious (although often malice is present).[277]

[333] Matters that have exacerbated or aggravated the plaintiff's injury may be taken into account in awarding compensatory damages. Recklessness in publishing defamatory matter also may justify an award of aggravated damages.[278] But this does not mean that any conduct of a defendant which increases harm to reputation or hurt feelings should be reflected in an award of aggravated damages. Otherwise legitimate conduct, such as reasonable conduct in defending a defamation claim which delays vindication of reputation or adds to the plaintiff's hurt, might result in an award of aggravated damages.

[334] The aggravating conduct may have occurred in making the publication, or at any time up to the assessment of damages.[279]

[335] Specific examples of where a defendant's conduct towards the plaintiff was found to have been improper, unjustifiable, or lacking in bona fides; and consequently increased the harm suffered by the plaintiff include:-

(a) Where a defendant has repeated, republished or otherwise brought the defamatory publications to the attention of a wider audience;[280]

(b) Where the circumstances of a defendant's initial publication of the defamatory material evidences malicious intent,[281] or a reckless disregard for the factual truth of the allegations published;[282]

(c) Where a defendant has conducted the proceedings in a manner which exacerbated the hurt and distress of the plaintiff, whether by making disingenuous apologies,[283] conducting cross-examination in an inappropriate, mocking, or aggressive manner,[284] or improperly maintaining an entirely untenable case - though it should be noted that a weak case is not necessarily an improper one.[285]

[336] The plaintiff referred to there being a wide breadth of "conduct" which may justify an award of aggravated damages, and pointed to the following cases to support her pleaded claim:

(a) "In Oyston v Reed,[286] the defendant sent an email to the plaintiff's wife which was "offensive and deeply unpleasant." This justified an award of aggravated damages.

(b) In Johnson v Steel,[287] the defendant made false allegations which resulted in the plaintiff being arrested. This contributed to an award of aggravated damages;

(c) In O'Donnell v O'Donnell,[288] the defendant sent an email to the plaintiff (via their respective solicitors) threatening to commence proceedings against him in relation to allegations made by the plaintiff. This founded a claim for aggravated damages because the letter was conduct calculated to deter the Plaintiff;

(d) In Brisciani v Piscioneri (No 4),[289] the defendant had published letters which were held to be a clear indication of his desire to intimidate the plaintiff and dissuade her from pursuing her case against him."[290]

[337] There is no scale of damages. Rather, the court is required to assess harm caused to the plaintiff from the defamatory publication and any qualifying aggravating conduct of the defendant. Compensating in respect of that harm in a case in which an award of aggravated compensatory damages is warranted avoids under-compensation. Attention to the respects in which the plaintiff was harmed avoids double compensation.[291]

[338] It follows that the task in making an award of aggravated (compensatory) damages is to award an appropriate amount to compensate in all of the circumstances, including conduct which has increased the harm to the plaintiff and therefore the level of compensation required.

[296]

[339] The assessment of an appropriate award for damages depends on the facts of the case. Caution must be exercised but the court may benefit from careful selection and citation by counsel of broadly comparable cases.[292] I have considered the cases set out in the useful schedule prepared by counsel for the plaintiff in this case.[293] Two of the cases relied on by the plaintiff are New South Wales decisions[294] which historically have higher awards of damages than other jurisdictions.[295] The plaintiff also referred to the award of $260,000 made in the Queensland Supreme Court by Flanagan J in Sierocki v Klerck [2015] QSC 92. But in that case: judgment was entered by default; the award was made on an assessment of damages; there were two plaintiffs; the amount spread across five defendants; and the highest award was $80,000 and the lowest $5,000.

[340] There are a number of nuances in the present case which make comparison with other cases difficult. Decisions with some comparable relevance are set out below.

[341] In the Western Australian District Court decision of McEloney v Massey [2019] QDC 133, the plaintiff, an accountant, sued a former client who published a number of online posts on a Facebook page critical of the services provided by him. In that case the defendant's statements about the plaintiff were part of a number of posts made that gave rise to the imputation that the plaintiff was unprofessional, rude to clients, did not provide good services, overcharged for his services and had breached his professional obligations. In that case the defendant established the defence of justification and honest opinion but Her Honour Judge Schoombee made an assessment of damages in the event that she was wrong. Her Honour's assessment in my view is apposite to the present case.

[342] In McEloney there were some 9,595 members of the Facebook page and of those 18 people made comments about the defendant's post. Her Honour considered that while more people may have read the post, and it was possible that some who read the post would have then discussed it with others, that discussion was unlikely to have been widespread because the posts were only on the site for some seven to 13 hours. Her Honour also considered it relevant that the ordinary reader of these types of reviews would understand that it involved one person stating their personal opinion about a particular service and that it may be one-sided or exaggerated. The ordinary reasonable reader would also realise the need to treat the post with appropriate caution and scepticism given that different people can have different opinions about an identical experience. In that case the plaintiff gave evidence of the hurt, anxiety and depression experienced by him as a result of the post and damages were assessed at $10,000.

[343] In Queensland, assessments of damages in defamation cases have been similarly modest. For example:

In Hallam v Ross (No 2) [2012] QSC 407, damages were awarded in the sum of $12,500. In that case, the Defendant had sent 37 emails alleging that the Plaintiff was a criminal, dishonest, a liar and that his word wasn't to be trusted - although two of those imputations were found to be substantially true.

In Beynon v Manthey [2015] QDC 252, the Plaintiff was awarded $25,000 damages for comments made by a journalist during a televised interview to the effect that he was an unfit and reckless parent for hosting "debaucherous parties for adults, in his family home, in the presence of children." [296] In that case, the court found that the plaintiff already had a reputation for engaging in something approximating the conduct from which the defamatory imputations arose, and damage to his reputation was therefore considered more limited than it would have been had he not already had such a reputation. The damage to reputation was said to be presumed but nothing much beyond that.[297]

In Bui v Huynh [2011] QDC 239, a medical practitioner of high standing was awarded $20,0000 to compensate him for hurt and distress suffered as a result of an open letter distributed to members of a professional organisation alleging the plaintiff had inappropriately used organisational funds. In this case, the defendant's failure to respond to letters of demand, failure to apologise and prosecution of a counterclaim was not considered conduct sufficient to warrant aggravated damages.[298]

In Hocken v Morris [2011] QDC 115, the defamatory material was posters which falsely implicated the plaintiff in the abduction and presumed murder of a teenage boy. However, despite the imputations being at the highest end of seriousness, the limited area of publication and the defendant's conduct in subsequently attempting to remove the defamatory material resulted in an award of general damages in the sum of only $50,000, with a further $25,000 in aggravated damages.[299]

In DG Certifiers Pty Ltd v Hawksworth [2018] QDC 88, damages were claimed by two plaintiffs in relation to three negative reviews of the first plaintiff's business which were posted on four different websites and which were viewed on around 127 occasions. The defendant succeeded on the defence of honest opinion but Rosengren DCJ proceeded to assess damages in the sum of $10,000 and $15,000 in favour of each plaintiff.

[344] Finally, the following observations of Justice Applegarth in Cerutti on the issue of quantum awards in Queensland are both relevant and instructive:[300]

[300]

(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that -

(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or

(b) the defendant has published a correction of the defamatory matter; or

(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

[348] The matters that can be taken into account are not limited by this section. [302] Some of the factors courts have been found to be relevant include:

(a) The similarity in the defamatory imputations as between the two publications;

(b) How much of the previous settlement of damages award represents compensation for the hurt to the plaintiff's feelings and the damage to her reputation; and

(c) The similarities or differences in the type of publication and the audience.

[349] The court is required to approach the evaluation of the evidence admissible in mitigation of damages in a broad way with the object of preventing a plaintiff from receiving double compensation for the same loss yet ensuring that proper compensation from a defendant is awarded for the defamatory publication sued upon.[303] This section does not: require the court to reduce the amount of damages awarded; or identify precisely how the mitigation of damages, if any is to be effected.

[350] Three matters in mitigation are raised on the evidence and the pleadings in this case:

(a) First, that any damage to reputation was caused by reader knowledge of the plaintiff's suspension rather than the defamatory post;

(b) Secondly, the existence of other defamatory statements made about the plaintiff on the Facebook and Change.org websites by parties who are not defendants to these proceedings; and

(c) Thirdly, that the plaintiff has already recovered damages from other parties to the proceeding in respect of other defamatory publications.

[351] The plaintiff submits that none of the issues raised should be taken into account for the purpose of s 38(1) of the Defamation Act except to a very limited degree the compensation agreed to have been received from the fifth defendant.

[352] I accept that the first and second issues raised are not relevant to the application of s38(1) of the Defamation Act. However, they do contain facts which raise issues of causation which are relevant to, and impact upon, my consideration of what is "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded," under s 34 of the Act.

[353] The third issue is plainly relevant to mitigation of damages under s 38(1)(e).

[301]

[354] The issue of damage to reputation in this case is a layered and vexed one.

[355] The starting point is, and as the plaintiff submits, that damage to reputation is presumed.

[356] The plaintiff relies on three pieces of evidence to support her submission that there has been substantial damage to her reputation in this case.

[357] First: that Ms Anderson said that the plaintiff's reputation was now "not as good as [it was] originally when I started in my position ... when I first started at the school, her reputation ... was a very positive one"[304] and that "there had been some questions from people at prospective interviews regarding the current situation"[305] (which she clarified to mean the current proceedings). This evidence was vague and not probative of anything. The fact that there were questions about the current legal proceeding is not evidence that the posts of the remaining defendants had caused further harm to the plaintiff's reputation. A reasonable inference may be that the enquiries were about the fact of the proceeding and all the publicity about it. The submission also overlooks that Ms Anderson also said that the plaintiff currently (over the year) enjoys a good reputation.[306]

[358] Secondly: that the plaintiff's sister, Ms Varley, said that "I no longer tell people that she's my sister, and she's the principal of Tamborine Mountain High School."[307] But Ms Varley did not elaborate on why. Again, this evidence is not evidence that the posts of the remaining defendants have caused further harm to the plaintiff's reputation.

[359] Thirdly: that Ms Falconer said that within a week after a newspaper publication about these proceedings in January 2019, she received phone calls from prospective parents who asked about the principal being evil, if students would be welcome because of their academic results and if there had been any bullying at the school by the principal.[308] I do not accept this as cogent evidence of any particular post causing further harm to the plaintiff's reputation. There were a number of posts other than those of the remaining defendants along these lines. And in any event, similar questions were being asked of Mr Hows after the plaintiff was suspended and before the online forums were established.[309]

[360] In my view, the remainder of the relevant evidence in this case contradicts the plaintiff's submissions that she suffered substantial damage to reputation as a result of the remaining defendants' posts.

[361] The starting point is that the evidence establishes that the plaintiff was reinstated as principal of the School after these posts were made. It follows that the negative online posts did not affect her ability to re-establish her role. There was also no evidence that the School numbers were down or that people were sending their lower performing children to other schools. There was no cogent evidence that the plaintiff was shunned by parents or teachers or those in the broader community at all - let alone as a result of the online negative posts.

[362] Most of the plaintiff's witnesses were well known members of the School and the broader community. They were asked by one or other of the defendants if they had read their particular comment and if they had changed their view of the plaintiff after reading it. They all said that they still thought highly of the plaintiff.

[363] The sixth defendant tendered a newspaper article from the Tamborine Times dated 31 May 2018 showing the plaintiff receiving an award at an event held at the Tamborine Mountain Showground.[310] A feature of this event was the recognition of "everyday community heroes who volunteer their services to help the less fortunate, both here, at home and overseas." [311]

[364] It follows and I find that there is presumed damage to the reputation of the plaintiff as a result of the posts of the remaining defendant's, but I am not satisfied that the plaintiff has established on the balance of probabilities that there was any substantial further harm to her reputation as a result of the any of the remaining defendant's posts.

[305]

[367] The plaintiff submits that it would be a mistake to interpret Ms Ireland's evidence of the fact that the Petition was calling for reinstatement as probative of the mere fact of suspension having caused the plaintiff's reputation to be damaged. Rather, the plaintiff submits that Ms Ireland's evidence demonstrated how the true cause of reputational damage was the publications - which, in the factual context of the plaintiff's suspension, gained more traction than they might otherwise have done.

[368] I reject this submission.

[369] For a start, this submission overlooks that Ms Ireland's evidence was that the plaintiff's reputation was impeccable in January 2016 (tellingly, not in February 2016). Her evidence is therefore consistent with there being some damage from the suspension once it became known in February 2016.

[370] It is also instructive to observe that the plaintiff's submission that the suspension did not damage her reputation stands in stark contrast to the other case the plaintiff commenced in June 2016, against the Department of Education, seeking damages for defamation arising from the handling of her suspension. In this claim she alleged that she had been gravely injured in her character and reputation, including her professional reputation and that she had incurred $180,000 in legal fees.[315]

[371] The plaintiff submits that in considering whether the bare fact of news of the plaintiff's suspension damaged her reputation, the court must consider what a reasonable person, receiving this information for the first time, would have understood it to mean. I reject that this as the correct test. The 'reasonable person test' is to be used in determining whether the subject material is defamatory, or whether a defence applies.[316] At the stage of assessing the loss suffered by the plaintiff for the purposes of assessing damages, the question is purely one of fact: was the plaintiff's reputation, in fact, damaged (beyond the presumed damage) by something other than the posts or not?

[372] In any event, the evidence established that the community's reaction to the fact of her suspension was not as measured as that of the "hypothetical reasonable person". Rather, the evidence was that despite the party line being that the plaintiff was "on leave", the fact the plaintiff had been suspended started to infiltrate the community almost immediately.[317] This finding is consistent with the plaintiff's pleaded case that on 15 February 2016, the plaintiff was suspended on full pay and that it was widely known by residents of Mount Tamborine that she had been suspended.[318]

[373] The plaintiff refers to Ms Anderson's evidence that when the plaintiff was suspended, there were questions, but they were to the effect of "where's Mrs Brose," and "when will she be back?"[319] I accept this evidence, but the other evidence, which I prefer, as it is more compelling and plausible, was that almost immediately from 15 February 2016, Mr Hows started receiving phone calls (he described 30 phone calls and emails) speculating about the plaintiff's ethics, operating procedures, and whether she had broken school rules. Eventually, he set up the Petition to assist a "community in turmoil" with "Many of our students, teachers and families suffering from uncertainty, distraction and anxiety". The preamble refers to the plaintiff being suspended without notice or explanation to the School community with one of the outcomes sought to be that "if it is found that Tracey Brose is suitable to continue in her role as School Principal that she immediately be re-instated." [320]

[374] It follows that I reject the plaintiff's submission that there was no evidence of damage to reputation prior to the posts being published online. Upon the above analysis, I am satisfied on the balance of probabilities and I find, that there was some evidence of damage to the plaintiff's reputation arising from her suspension prior to the defendants' posts being published online.

[316]

[388] It is relatively uncontroversial that social media posts can easily be disseminated "by the simple manipulation of mobile phones and computers" Their evil lies in the grapevine effect that stems from the use of this type of communication.[328]

[389] The plaintiff submits that there was ample evidence to support an inference that the defendants' publications had become known throughout the Mount Tamborine community via the grapevine effect. She submits there was an overlap between evidence of actual publication and evidence of grapevine effect. The plaintiff submits in addition to this evidence, the court may infer the grapevine effect because of the nature of the social media forum in which the publications were made.

[390] In my view the inference is not as easily drawn as the plaintiff submits.

[391] The grapevine effect does not automatically arise in all cases.[329] It must 'spring from the proven publication",[330] and there must be some evidentiary basis pointing to its existence before it can be taken into account for the assessment of damages.[331]

[392] For example, in Mickle v Farley [2013] NSWDC 295, the mere fact that the publication was made on social media was not an aggravating feature in and of itself.[332] In order to infer the existence of the grapevine effect it is necessary that there be some foundation and not just the fact of the publication having been made on social media. Any finding needs to be founded on some evidentiary basis.

[393] So what was the evidence?

[394] Mr Hows gave evidence of parents ringing him "to clarify what they read... that she'd done some evil things to specific students according to Facebook and... to clarify if that was the real reason why she was suspended".[333] His evidence was that one of the words used was "evil," because "one of the posts that was raised, the tone was that she was an evil bitch".[334] This evidence is obviously a conflation of some of the posts. But it is not evidence of the grapevine effect arising specifically out of any of the remaining defendants' posts. One of the persons not sued used the word "bitch," and the first and fifth defendants used the word "evil," but no post used the expression "evil bitch."

[395] The plaintiff recalled the following encounters which she relies on to support her submission that there was a grapevine effect:

(a) In July 2016 at the monthly principals' alliance meeting of 16 principals, the plaintiff felt that she was treated differently because there was no special effort made to buy the plaintiff a Diet Coke (which was previously done). The plaintiff felt like the others treated her differently and that she was not welcome.

(b) Another principal referred to the Facebook posts in February 2017 during a celebratory dinner ("what I've learned from you Trace is I don't want to be you, especially based on Facebook");[335]

(c) An architect employed by the School had heard about the Facebook posts and raised them with the plaintiff in Term 1 of 2017 ("based on the Facebook raucous, they didn't support the last principal very much");[336]

(d) In early 2018, an ambulance officer who attended the School asked the plaintiff about Facebook ("so, Tracey, what's the goss then? What have you done? The plaintiff said, "Are you talking about Facebook?" The ambulance officer said, "isn't everyone on the mountain?");[337]

(e) In September 2017, the plaintiff had bariatric surgery, and the nurse asked (with reference to Facebook, "what have you done to make that community turn against you?".[338]

[396] The Diet Coke incident is of no evidentiary value. The other examples are general and vague. I accept that they show that there was curiosity in the community about these proceedings. But they are not evidence of there being particular distributions of any particular post or defamatory matter.

[397] Mr Brose was asked about the publications in the local community. His evidence, which I accept, was that:

(a) It was difficult to even go shopping at the local IGA because people would ask about the posts, - his daughter was asked "what's all the stuff I'm reading about your mother online?"

(b) He recalls being asked at the checkout about the publications by a photographer from the local newspaper who said "I see some people are making some pretty serious accusations against your wife online";

(c) He recalled being told by a neighbour in Beaudesert about a person who had just moved his family to Mount Tamborine, who had read online that the plaintiff was a bully, who didn't care about kids who weren't academically gifted and was concerned - has he made the wrong decision. Is there something wrong? Is there more to this?[339]

(d) He "can't count the number of times" he has been stopped by people in the local community who have asked him "how's it going online?" "what's going on with Tracey and the Facebook stuff" etc;[340]

[398] Mr Brose did not give any evidence about the timeframes of these encounters. But I infer that most if not all of these conversations occurred after the Facebook page was removed and the Petition closed.

[399] Mr Locastro, recalled two conversations with parents of the School (on unspecified dates) which the plaintiff relies on as probative of publication and the grapevine effect, namely:[341]

(a) A parent at a P&C meeting asked him had he seen the website and asked if the comments were true;

(b) A parent asked him when he was on his way to bus duty or assembly whether he had seen the site and if the comments were true.

[400] The evidence from the plaintiff, Mr Brose and Mr Locastro does not support a finding that the exact details of any particular posts were being repeated in the community. Indeed, there is other evidence to the contrary. Several witnesses gave evidence they could not specifically recall individual comments, and could only recall the bare fact that there were a number of negative posts. Others said they deliberately disengaged from reading the online discussion, precisely because they were not interested in reading negative comments. For example:

(a) In evidence Sarah Murray said "I don't remember the - the wording of the comment [of the first defendant], just that all the comments on the pages from - from everyone was negative."[342]

(b) Likewise, Ms Anderson stated in cross-examination that she " looked at some [of the comments], and then I walked away."[343] When asked how she could recall which comments she had seen, she answered: "The first few that I saw were the ones I mentioned. Can I remember all of [the comments]? No."[344]

[401] The issue I find with the above evidence, which the plaintiff submits is evidence of the grapevine effect, is the same issue I have previously raised: that is, it is evidence that there was a general awareness in the community of the fact of there being some negative comments on Facebook, but it is not evidence that the specific posts of the first, second, third and sixth defendants were being disseminated by way of the grapevine effect. For one thing, the relevant posts of the first and second defendants were not made on Facebook. But even assuming the references to Facebook included posts on the Change.org website it is impossible to discern whether any of these people actually read or heard of particular comments - and if so which ones. The most reasonable assumption is that each of these people were making broad brush comments about a number of negative posts and perhaps media attention about the litigation generally.

[402] The evidence discussed above does not support a finding that any specific comment made by any of the remaining defendants was in fact being repeated in the community. Rather, I find that all of evidence is better explained as the result of what might colloquially be termed the "pile on" effect, which is subtly different from the "grapevine effect." A "pile on" occurs when the fact that a large volume of negative comments were made becomes more notorious than the content of the comments themselves. When this occurs, the damage caused by the whole of the posts is greater than the sum of its parts.[345] In this case, the evidence reflects that the community was talking about the fact that that a number of negative online comments had been made about the plaintiff by members of the School community, and that she had sued some of these people, rather than repeating the specific imputations themselves.

[403] However, in my view there was some evidence of the 'grapevine effect' on social media in one respect. Several of the witnesses referred to having "shared" links to the Change.org petition or the Facebook page on their own personal profiles in an attempt to boost support for the plaintiff.[346] I accept that one consequence of the witnesses 'sharing' links was that it potentially brought the negative comments on those pages to a wider audience. But, I consider this a relatively minor example of the grapevine effect in action as even the shared links would have only reached a very limited audience.

[317]

[404] In my view, the more serious instance of the grapevine effect occurred as a result of the media coverage of these proceedings. In all, there were four news articles tendered into evidence: one from The Educator dated 15 June 2016 (exhibit 77), one from School Governance dated 16 June 2016 (exhibit 76), one from The Sunday Mail dated 27 January 2019 (exhibit 4), and one from The Sydney Morning Herald's 'Good Weekend' publication dated 20 April 2019 (exhibit 5). These articles contained either full or partial republications of the all of the posts sued upon - although every article did so in the context of reporting the fact of these legal proceedings.

[405] For example, Exhibit 4 is comprised of several photocopies of a series of articles lifted from The Sunday Mail. It is clear that some parts of those articles have been cut off in the photocopying process, which is an unfortunate oversight that makes analysis of the evidence needlessly difficult. Those sections of the articles which are properly copied, contain partial republications of some of the posts the plaintiff sued upon. It is possible that the cut-off sections of the article contain the balance of the posts.

[406] In addition to containing republications, some of the tendered articles pointed to further news coverage of these proceedings in other publications. For example, The Educator article refers to comments made by the Plaintiff's former lawyers to The Courier Mail in 2016 - prior to the publication of The Sunday Mail article which is exhibit 4.

[407] I cannot comment as to the substance of any further coverage not in evidence as I have not read any of it. But I accept, as I stated at the outset, that there has been considerable media coverage of this case, and that there is evidence of republication of the remaining defendants post. That evidence is indicative of the grapevine effect at work.

[408] All of the defendants argued that damage caused by these newspaper articles was in fact the result of the plaintiff's own actions in bringing legal proceedings and creating subsequent media attention, which in turn brought the matters to a wider audience.

[409] In this sense the defendants are comparing the plaintiff's decision to sue as akin "to call[ing] in an airstrike on his own position." [347]

[410] The plaintiff's submission is that this criticism is unfair and legally misconceived and that it is not uncommon for plaintiffs in defamation proceedings to have the defamation for which they seek redressed become more widely known through newspaper reporting of proceedings. The plaintiff points to the defamation plaintiff being in an invidious position whereby to vindicate their reputation they must sometimes commence proceedings, and in doing so they may further publicise the defamation.

[411] The plaintiff relies on the observations of Applegarth J in Cerutti & Anor v Crestside Pty Ltd:[348]

[324]

[419] It was not possible to discern from the evidence as it was lead what posts the plaintiff received on 7 March and therefore what posts she was sobbing uncontrollably about at that point. It may have been that the plaintiff was being texted other posts from the Change.org website, or indeed from Facebook, on 7 March 2016. In weighing up the possibilities, I accept Mr Hows' evidence that the nasty posts were mainly on the Facebook page. I cannot speculate about the 34 posts that were removed from the Change.org site as the plaintiff has not sued on these posts and they are not in evidence.

[420] The timing of the posts is not consistent with the reaction described by the plaintiff having occurred on 7 March 2016. All but three of the Facebook posts are in evidence.[351] Although she was not specifically asked, it is reasonable to infer and I do so in the circumstances of this case, that the plaintiff read all of the comments on the Facebook page and the Change.org site at some point between 7 and 13 March 2016. The tender of the Facebook page (Exhibit 13) was on that basis.[352]

[421] The first negative comment on Facebook appears at 10.16pm on 7 March. It simply records a refusal to sign the petition. Two other such refusals follow, one in stronger language. The negative comments become more specific on 8 March, and include comments such as "Most degrading person I've ever known," and "I hope she stays suspended, for the sake of the kids at the school." Then, on 9 March at 8.32am there is a very offensive post not sued on, and on March 10 at 12.50pm a post that commences "I had a particularly disturbing experience with this headmistress and know of others in the same situation."[353] The plaintiff was not asked how these posts made her feel - nor was she asked about the second post made by the first defendant on 11 March 2016.

[422] It is not until around 3.20 pm on 10 March 2016 that the first Facebook page post sued upon in this proceeding appears - and that is the one by the seventh defendant, Ms Charmaine Proudlock. The plaintiff was taken to this post and she said she read this "in that time period. It was sent as a screenshot by my little brother".[354] The plaintiff said this comment made her feel useless and worthless. She said that she felt "no one would ever trust me in my role again as principal."[355] It is not clear what time period the plaintiff was talking about but given the timing of this post it could not have been one of the posts sent to her as they were coming in "all the night" on 7 March.

[423] On any view, there are only seven comments in evidence that could possibly have been upsetting to the plaintiff on 7 March 2016: three posts made through the Facebook comment plugin on Change.org by the first defendant, second defendant, and a user identified as "Eileen Beer" (who has not been sued),[356] and a further four negative posts apparent on the face of Exhibit 14 posted on 7 March 2016 made by either anonymous authors, or else authors who have not been sued.[357]

[424] The plaintiff was not taken to Ms Beer's post in her examination in chief but under cross examination by the first defendant the plaintiff agreed that she read this comment (although she did not say when) and she thought it was "nasty" and it made her feel awful. She also agreed that she was pursuing the first defendant for those same feelings she experienced when she read the comment of Mrs Beer - but said "everyone needs to be accountable for their own actions". She could not explain why Ms Beer was not part of the proceeding except to say her lawyers had limited the action to the ones with the "most likely prospects".

[425] The plaintiff pointed to the following evidence as corroborating her assertions about her hurt and distress in the immediate aftermath of seeing the comments, and submits that this evidence demonstrates the credibility of the plaintiff's assertions about her hurt and distress in the medium and long term:

(a) Ms Wenke said that the first time she saw the plaintiff after she herself had seen the Facebook and change.org pages, the plaintiff "appeared upset, depressed, didn't look herself".[358]

(b) Ms Anderson said the plaintiff "revealed ... how upset she was, and she - she cried". Ms Anderson said that the plaintiff was upset about "the comments themselves, that they were untrue, and, essentially ... how could this be posted, all the work that she's done, the support she'd shown staff and students ... over the years.[359]

(c) Mr Brose said that in response to the publications, the plaintiff "was devastated, absolutely - having known her for nearly 40 years, I've probably only seen her that grief-stricken once before ... she was inconsolable.[360] The plaintiff conveyed that "she is being attacked, and she could see no end to this. And anyone for the rest of her life can get on the internet and look this up about her and it's not true."[361]

(d) Mr Locastro said once the plaintiff returned from school after the suspension had lifted "she was devastated. Could tell she was broken. She was crying. Just really emotional ... she'd gone through an absolute nightmare based around that".[362]

(e) Ms Falconer also gave evidence about her recollection of the plaintiff's demeanour after the Facebook publications had been made. She said that the plaintiff was "extremely upset ... she said she felt embarrassed. She felt like she was being shamed, that she felt she was being attacked and she didn't have a voice.[363] She too said that the plaintiff was emotional and crying.[364].

[426] The plaintiff's evidence as to the effect of all of the comments on her in the "medium term" was:

(a) She and her husband talked about moving off the mountain but they could not because her daughter is disabled and she could not change schools.[365]

(b) She was suicidal.[366]

(c) She had contacted her solicitors to check that her children were covered in her will.[367]

(d) She contacted her superannuation to make sure that suicide was covered;[368]

(e) On one day when she was dropping her children to school her nine year old son was approached by a lady who wanted to know about the stuff on the internet about her.[369]

(f) She gained over 33 kgs of weight she had previously lost in just over nine weeks.[370] (although she subsequently lost this with bariatric surgery in September 2017).

[427] The plaintiff described the effect on her long-term to be: she does not socialise with people anymore; she is medicated, anxious and does not sleep very well.[371] She was also asked about the effects of the comments on her marriage. Her response was:[372]

[328]

[432] The first second and sixth defendants submitted that part of the plaintiff's hurt and distress was caused by the fact of her suspension. There was no concession by the plaintiff that the suspension had any impact upon her.

[433] In fact, the plaintiff went to great lengths to play down any impact the suspension had upon her. I find she did this because she did not think it suited her case. The plaintiff was unreasonably belligerent in her refusal to accept she experienced any hurt and distress as a result of anything other than the online comments. Her evidence was deliberately selective in that it overlooked that the initial barrage of online commentary coincided with the plaintiff finding out that the investigations into the allegations that lead to her suspension were complete.

[434] The plaintiff's evidence at trial was that the contents of the letter of 8 March 2016 (received on 9 March) did not cause her any hurt and distress. She said she was "angry" about it but she had "been meeting with my lawyers and we had been preparing, for the last 20 days, that that letter would be coming, and we had been preparing a response to that letter."[373] The plaintiff said that at the time the screenshots were being sent to her she was "very confident" that she "would be reinstated."[374] She said she had "no issues" around the suspension. Ms Varley's evidence, which I accept, was that when the plaintiff first learned of her suspension, she told Ms Varley "I'm going to fight it."[375]

[435] There are obvious weaknesses in the plaintiff's evidence. First, it overlooks that by the time she had read all of the screenshots she knew that the majority of the allegations against her had been substantiated and she was to remain suspended. Second, there is a distinction between learning of the allegations, having the opportunity to make a response, and then after making that response, finding out that most of the allegations had been found to have been substantiated, with the latter meaning that she would remain suspended and would have to endure the process and expense of a review.

[436] The plaintiff's evidence that the contents of the 8 March 2016 letter did not upset her beggars belief, as does her refusal (after being asked multiple times under cross examination) to accept that the allegations surrounding her suspension were related to her professional conduct. On any view they were. The seriousness of the allegations having been substantiated was recognised by the Education Department as follows: "I understand that this may be a difficult time for you and wish to advise that free, short-term, confidential, face to face or telephone counselling is available to all departmental employees".[376]

[437] It therefore follows that I reject the plaintiff's evidence that learning the Department had found that some of the allegations relating to her suspension had been substantiated did not cause her any hurt and distress at the time. When she received the letter, the plaintiff had been teaching for over 20 years, and there was no evidence that she had ever been subjected to a suspension or this type of scrutiny in her job previously. The only inference to draw is that up until that point, her record had been exemplary. The consequences were serious and included: a reprimand, a disciplinary transfer to a school to be determined by the regional director, half-yearly performance review reports for one consecutive year attesting to the plaintiff's satisfactory performance as principal and adherence to departmental policies and procedures (including but not limited to, the code of conduct, standard of practice, and financial/human recourse management), and a restriction from applying for promotional principal roles, both permanent and temporary until the receipt of two positive reports from the assistant regional director.[377]

[438] On any view, in the first six months of 2016 the plaintiff was subjected to enormous pressure. She had been suspended in circumstances which created an atmosphere of uncertainty. She was dealing with her lawyers and responding to allegations about her professional conduct and she had incurred $180,000 in legal fees in the process. Around the same time she found out the suspension was upheld, she was drowning in a sea of unconstructive online criticism, and by May 2016, she was concerned that the Education Department's handling of her suspension had damaged her reputation.

[338]

[446] As a consequence of the negative posts on both Facebook and Change.org websites the plaintiff described being upset by the "integrity I'd lost in the community."[382] I accept this evidence, it is understandable and reasonable that the plaintiff would be upset by the barrage of negative abuse directed at her through these social media forums.

[447] Given the volume and content of all of the negative comments about the plaintiff online it was reasonable, rational and indeed understandable that the plaintiff felt both hurt and distress. But I do not accept that her description of the extent of her emotion and the consequences on her life said to be only attributable to the comments is genuine. The plaintiff's evidence about the suspension not having any impact on her was disingenuous, as was what I find to be her endeavours to confine her woes to the online posts.

[448] There were and remain a myriad of issues in the plaintiff's life, including the fact and nature of her suspension, her concern about how the Education Department dealt with her suspension, and as emerged in her evidence, the emotional and financial stress of becoming embroiled in litigation.

[449] It follows that I do not accept that the emotions the plaintiff was describing occurred on 7 March 2016. I am satisfied this incident occurred but more likely on a later date, most likely either 9 or 10 March 2016. I am not satisfied that this reaction was only from reading the negative posts. In my view and I find it was a combination of reading these posts and receiving a letter from the Department of Education (dated 8 March, but received on 9 March) telling her that her suspension had been upheld. I also consider the plaintiff's evidence was contrived because it did not take into account the wealth of glowing comments on the Change.org site and the outpouring of support she simultaneously enjoyed from the community as reflected in the number of people who signed the Petition.

[450] I find that the fact of the suspension, the knowledge of the specific allegations against her, the handling of the suspension by the Education Department and the barrage of negative online comments about her, caused the plaintiff considerable concern, worry, anxiety and distress in the first half of 2016. It follows and I find that the plaintiff was describing the impact of all of these matters when she described how she felt in the "medium term".

[451] In the circumstances outlined above, particularly in light of the diminished credit of the plaintiff, without any corroboration, I am not satisfied on the balance of probabilities that the plaintiff is suffering the devastating long term consequences she described and attributed to the online posts (isolation, lack of sleep: anxiety" and relationship issues). Even if I were to accept her evidence about these matters, I am not satisfied on the evidence that they are caused solely by the posts of the remaining defendants, or even solely by the online comments as a whole.

[349]

[461] In the present case, the plaintiff has received multiple favourable judgments along the way to trial and she has been successful in her claim that some of the imputations made by the first and second defendants are defamatory.

[462] The plaintiff submits that the position of School Principal is a very public role and that a good reputation is essential. The plaintiff also submits that she spent her entire life teaching in the public system to attain the position as Principal and that at the time she was suspended, she had been Principal for 19 years. The plaintiff submits that the requirement for vindication is heightened by the public nature of her position in which her reputation is essential now and in the future. It is submitted that the damages award must be sufficient such that if she were ever to become principal of another school she would take up that role with her reputation vindicated. Given the plaintiff was reinstated almost immediately in May 2016, and the evidence was she has acted in this role ever since, and that she is highly regarded - I do not accept there is any need for further vindication on this issue.

[463] The plaintiff's case that she is entitled to significant damages for vindication is further complicated by a number of other matters which include: my liability findings and that the defamatory imputations of all the defendants are at the lower end of seriousness; that I am not satisfied of any significant damage to reputation; but to the limited extent there is damage to reputation, I must take into account some grapevine effect and some harm from the media exposure; that the hurt and distress attributable to the remaining defendant's post is confined; and there are issues of double compensation and compensation already received (as discussed below).

[464] I must take all of these factors into account to ensure I comply with the legislative requirement that I only award damages which bear a "rational relationship" to the harm suffered.

[355]

[471] There were three publications by the fifth defendant. The first publication was said to carry imputations as follows:[393]

(a) the plaintiff is a bully;

(b) the plaintiff has always done whatever she wanted to do;

(c) the plaintiff does things that are not appropriate or reasonable;

(d) the plaintiff is evil;

(e) the plaintiff tried to destroy people who challenged her as well as their children; and

(f) the plaintiff retaliated against people who challenged her as well as their children.

[472] The second publication by the fifth defendant was said to carry imputations as follows:

(a) the plaintiff runs the school in a capricious fashion;

(b) the plaintiff makes up rules to suit her purposes rather than for legitimate reasons;

(c) the plaintiff is vindictive;

(d) the plaintiff retaliates against children for the actions of their parents;

(e) the plaintiff bullies children; and

(f) the plaintiff tried to destroy people who challenge her, as well as their children.

[473] The third publication was pleaded to be read in the context of another post (not sued upon), which stated "good riddance to a lying, manipulative, deceitful, narcissistic air thief" - was said to carry imputations as follows:

(a) the plaintiff is a liar;

(b) the plaintiff is manipulative;

(c) the plaintiff is deceitful;

(d) the plaintiff is narcissistic; and

(e) the plaintiff is a bad principal.

[474] The plaintiff's case against the fifth defendant settled on 22 November 2018. The plaintiff received the sum of $92,500 as a result of this settlement.[394] The express terms of the Deed of Settlement provided that part of this sum (an amount of $13,949.92) was to be in satisfaction of the fifth defendant's share of a joint and several costs order made against him and the third and seventh defendants after an interlocutory application on 24 May 2018. The Deed provided for each party to bear their own costs.

[475] It follows that the plaintiff received approximately $78,000 for her claim against the fifth defendant. The Deed also provided for a letter of apology to be written and an undertaking not to publish defamatory comments about the plaintiff.

[359]

[481] The plaintiff submits that any compensation agreed to have been paid by the fourth ($20,000) or eighth ($70,000) defendants should not be taken into account for the purposes of s 38(1). And that the compensation agreed to have been received from the fifth defendant ($92,000) is admissible to a limited degree in mitigation, but given the quantum spent on legal fees by the plaintiff, any mitigation effect is marginal.

[482] I accept, as a matter of principle, that prima facie the fact the plaintiff has incurred legal costs in order to obtain compensation can be taken into account.[398] The plaintiff's oral evidence was that she had spent over $600,000 on these legal proceedings to date.[399] I infer that this amount reflects her actual costs to date, as opposed to scale costs. It is not apparent whether the plaintiff was also including the $180,000 she claimed she had expended in relation to her claim against the Department of Education in this figure. Her evidence was not supported by any documentary evidence but I accept that she would have expended considerable amounts in legal fees to date: she lodged writs of execution over properties, brought and threatened applications for freezing orders against a number of defendants; made numerous interlocutory applications; and has been legally represented by a solicitor and counsel throughout the proceeding including the lengthy trial.

[483] But her submission in relation to the costs diminishing the mitigating effect of the compensation received overlooks a number of matters. First, that she has already obtained a number of costs orders along the way against a number of the defendants. Secondly that the fourth defendant agreed to pay nearly $14,000 in costs and the eighth defendant agreed to pay his costs to date. Thirdly, a large quantum of the balance of her costs would be attributable to the costs in the lead up to trial and the conduct of the trial.

[484] It follows that I reject the plaintiffs submission that the plaintiff's cost expenditure makes any mitigation marginal.

[485] Section 38(1) requires the court to consider the imputations carried in the fourth, fifth, seventh and eighth defendant's publications to determine whether or not their publications had "the same meaning or effect" as the defendants publications.

[486] The plaintiff submits that the imputations contained within the fourth defendant's publication do not have the same meaning or effect to those contained in the remaining defendants' publications. I reject this submission.

[487] Imputations such as 'the plaintiff treats children differently depending on what results they achieve,' 'has deprived children of enjoyment,' 'treats children like soldiers,' 'enforces inane rules,' 'destroys young children's souls,' and 'runs the school like a concentration camp' have the same meaning as the imputations I have found defamatory in the first and second defendant's publication. The imputations contained in the fourth defendant's publications have the same meaning or effect as some of the pleaded imputations carried by the third defendant's publication such as 'the plaintiff is a bully,' 'the plaintiff has always done whatever she wanted to do,' 'the plaintiff does things that are not appropriate or reasonable' and 'the plaintiff runs the school in a capricious fashion.' The imputation in the fourth defendant's publication that 'the plaintiff enforces inane rules' is also one of the imputations arising from the sixth defendant's publication. There is also some overlap in the compensation already received to the extent that some of the imputations of the fourth defendant's publication have the same meaning as those in the fifth defendant's publication.

[488] The plaintiff accepts that many of the imputations carried within the fifth defendant's publications have the same meaning or effect as some of the first defendant's publications, in particular the imputations that 'the plaintiff is evil, manipulative and has brought pain and stress to families.' But the plaintiff submits other imputations in the first defendant's publications are also not found in those of the fifth defendant - specifically that 'the plaintiff cares only about the ratings of the school and does not care about students unless they are A students.' I accept this. But a number of imputations from the third defendant's publication ('that the plaintiff is a liar, manipulative, a bully and enjoys belittling people') are all pleaded imputations arising from the fifth defendant's first, second and third publications.

[489] The plaintiff submits that the imputations contained within the eighth defendant's publication were of a significantly differently nature to those contained in the remaining defendant's publications. The publications of the eighth defendant are considered some of the more serious allegations that can be made against a person. But some of the less serious imputations are of a similar effect to some of the meanings in the first defendant's post; and the second defendant's post (that the plaintiff is unjust).

[490] It follows from the above analysis that there can be no exact set off in mitigation. But the particular circumstances of this case justify that a considerable portion (doing my best, around $100,000) of the total sum received by the plaintiff, ought to be taken into account for the purposes of s 38 of the Defamation Act.

[377]

(d) The second defendant's attempt to invade the plaintiff's home at 9.30pm on Sunday 20 May 2018, while she and her husband were at home with their two children, in the course of which he broke through the front security grill and the glass component of her front door and threatened to kill her;

(e) The second defendant's making of an online Facebook post at approximately 12.48pm on 21 May 2018 to the Mt Tamborine Community Message Board (for people in 4272/4271 and surrounds);

(f) The second defendant's making of an online post to the Mount Tamborine Garage Sale website on 21 May 2018;

(g) The second defendant's making of an online Facebook post on 25 May 2018 to the page "Mt Tamborine Community Message Board (for people in 4272/4271 and surrounds)"; and

(h) On 26 May 2018, the second defendant's made a false complaint to police at the Tamborine Mountain Police Station to the effect that the plaintiff had made allegations on Facebook about him;

(i) the second defendant's verbally and physically intimidating the plaintiff in the precincts of the Court as follows:

(i) at various times whilst waiting for the proceedings to be heard on 7 September 2018, whenever he was near the plaintiff the second defendant made snorting noises like a pig;

(ii) following the hearing of the applications listed on 7 September 2018 the plaintiff immediately sought to leave the Court as quickly as possible;

(iii) the plaintiff entered an elevator on the third floor with the intention of proceeding to the ground floor;

(iv) as the elevator doors were closing and were nearly completely closed the second defendant appeared at the elevator door and with both arms pulled open the doors of the elevator occupied by the plaintiff;

(v) the second defendant then entered the lift with the first defendant;

(vi) as the second defendant stood in the elevator he said:

(a) "Hope you enjoyed wasting our time;"

(b) "You better watch your back;" and

(c) "By the way, how is your house;"

(vii) as the said defendants entered the lift the plaintiff immediately tried to exit the elevator which was still located on the third floor of the building however the second defendant blocked the plaintiff's exit;

(viii) the plaintiff had to move around the second defendant to get out of the lift and as she was doing so said words to the effect "You're really going to do this? You are on clear bail conditions so leave me alone"; and

(ix) In response to the statement in [8] above, as the plaintiff sought to leave the elevator the second defendant make loud snorting noises.

(j) Sending a threatening email to the plaintiff's solicitors dated 31 July 2019 stating inter alia:

[379]

(k) on or about the evening of Sunday 11 August or the early morning of Monday 12 August 2019, leaving 6 pieces of A4 size paper in the plaintiff's letterbox, each with the words "WINK WINK" typed on them, which were found by the plaintiff and her 15 year old daughter.[409]

Failure to apologise

[513] The second defendant did not apologise to the plaintiff. But for the same reasons articulated in relation to the first defendant, I am not satisfied that this failure has aggravated the harm to the plaintiff.

Second defendant's pleadings and conduct during trial

[514] For similar reasons as articulated under this heading dealing with the first defendant's conduct, I am satisfied that a very modest award of aggravated damages ought to be awarded to the plaintiff for the harm suffered by the second defendant in maintaining parts of his justification defence; and the plea of mitigation, based on the plaintiff's alleged dishonesty;[410] and for his repetition of defamatory in court, most relevantly she "gets rid of" underachieving students.

[515] Second defendant's attendance at the plaintiff's home on 20 May 2018

[516] The plaintiff relies on the second defendant's attendance at her home on 20 May 2018, during the course of which he broke through the security grill and glass component of her door and made threats of violence to her, as conduct entitling her to an award of aggravated damages. The evidence was that the second defendant was pushed over the edge after a writ of execution was executed over the first and second defendant's home in relation to an unpaid costs order.[411] The schedule of agreed facts for the (then) impending sentence of the second defendant for offences arising from this conduct were tendered into evidence.[412] The plaintiff's evidence was that this incident "made us feel violated and vulnerable in our own home. It terrified my children". She gave other evidence about the ongoing impact on her and her family. I accept that evidence as a genuine reflection of the devastating impact of the second defendant's conduct had upon her and her family.

[517] The second defendant submits that this evidence is not relevant to a claim for aggravated damages. I accept this submission.

[518] There is a relatively wide breadth of conduct which may justify an award of aggravated damages but an award of aggravated damages is intended to compensate for conduct which has increased the harm originally caused by the publication of the defamatory material. The harm suffered by the plaintiff as a result of the second defendant's attendance at her home is separate and distinct harm not causatively connected to the harm suffered by her as a result of the defamatory imputations found in the second defendant's post.

[519] This conduct by the defendant is serious criminal conduct and it has been appropriately dealt with in that jurisdiction. And in any case, the court has no power to award punitive or exemplary damages for defamation.[413]

[520] It follows and I find that this conduct does not support a claim for aggravated damages.

Second defendant's Facebook post on 21 May 2018

[521] The plaintiff relies on a post that the second defendant placed on the online Facebook page entitled "Mt Tamborine Community Message Board" at 12.48 pm on 21 May 2018 and submits that this post identified the plaintiff and was defamatory of her and that it is further aggravating conduct. The version of this post in evidence is very difficult to read but the post appears to attach a photograph of a writ of execution which I assume is the one issued over the first and second defendants' property. Nearly every second word of the post is misspelt, and it does not repeat any of the imputations I have found defamatory in the second defendant's publication, but I accept it is scathing of the plaintiff. Whether it is a separate defamatory publication in its own right is not an issue in these proceedings. I was not referred to any evidence from the plaintiff or anyone else about this post.

[522] It follows that I am not satisfied that that this post justifies an award of aggravated damages.

Second defendant's conduct on 7 September 2018

[523] The final conduct relied upon by the plaintiff to support an award of aggravated damages is the second defendant's alleged conduct in verbally and physically intimidating the plaintiff on 7 September 2018.

[524] The plaintiff makes a number of allegations against the second defendant in her Reply to the effect that he verbally and physically intimidated her in the precincts of the court on 7 September 2016. [414] As in the allegations made against the first defendant, this involved another 'pig snorting' incident and the same lift incident the second defendant was alleged to have been involved in.

[525] In terms of the pig snorting incident, the plaintiff's pleaded case is that "At various times while waiting for the proceedings to be heard on 7 September 2018 whenever he was near the Plaintiff the Second Defendant made snorting noises like a pig."[415] The plaintiff's evidence at trial was that the second defendant snorted once at her during an adjournment or a break.[416] This evidence is a striking departure from her pleaded case. The plaintiff submits that there was an independent witness to the snorting noises and relies on the evidence of Ms Falconer. But Ms Falconer was not present when the second defendant was said to have snorted at the plaintiff, so her evidence does not corroborate the plaintiff's evidence.

[526] The evidence about this incident is unsatisfactory and unreliable.

[527] It follows that I cannot be satisfied on the balance of probabilities that the second defendant's snorted once as alleged by the plaintiff at trial.

[528] There is also a factual dispute about the lift incident. As discussed above, the plaintiff's evidence departed from her pleaded case. By her pleading she alleged it was the first and not second defendant who said "hope you enjoyed wasting our time". The plaintiff referred to the video footage shown at trial. But this footage does not advance the plaintiff's version.

[529] Again, the evidence about this incident is unsatisfactory and unreliable.

[530] It follows, that I cannot be satisfied that the second defendant verbally and physically intimidated the plaintiff on 7 September 2016.

[380]

[531] A brief summary of my findings consistent with both my liability and damages analysis and relevant to my assessment of quantum in relation to the first and second defendants is set out below are as follows.-

(a) The defamatory imputations arising from the first defendant's post are: 'The plaintiff brings pain and stress on children who do not get "A"s'; 'The plaintiff mistreats lower performing children;' and, 'the plaintiff mistreats lower performing children because those children affect her school ratings.' The quality of these imputations falls at the lower end of seriousness. These defamatory imputations were initially published to at least 200 people, and then more broadly by virtue of the grapevine effect and the media coverage of this case.

(b) The defamatory imputation that I have to be defamatory arising from the second defendant's post are: 'the plaintiff is unjust;' and 'the plaintiff is not interested in children that are not high achievers.' The quality of these imputations falls at the lower end of seriousness. These defamatory imputations were initially published to at least 200 people and, then more broadly by virtue of the grapevine effect and the media coverage of this case.

(c) Damage to reputation: There was some damage to the plaintiff's otherwise good reputation arising from the circumstance and knowledge of her suspension prior to the first and second defendants' defamatory publications; but the rational relationship between the first and second defendants' publications and the subsequent damage to her reputation is very confined.

(d) Vindication: There is little need for vindication of the plaintiff's reputation given the less serious nature of the defamatory publications and that to some extent she is vindicated by both this judgment and her reinstatement as principal.

(e) Hurt and distress: A very confined proportion of the hurt and distress suffered by the plaintiff is attributable to defamatory publications of the actions of the first and second defendants.

(f) General Damages must be mitigated to take into account some of the compensation received by the plaintiff.

(g) Aggravated damages: A component of the compensatory damages ought to include a very modest amount for aggravated damages.

Brose v Baluskas & Ors

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