Gregory v Johnson [2017] QDC 224

Uniform Civil Procedure Rules 1999 (Qld), r 288

Atholwood v Barrett [2004] QDC 505, considered

Bertwhistle v Conquest [2015] QDC 211, considered

Carson v John Fairfax and Sons Limited [1993] HCA 31; [1993] 178 CLR 44, followed

Cassell and Co Limited v Broome [1972] UKHL 3; [1972] AC 1027, considered

Cerutti and Another v Crestside Proprietary Limited and Another [2016] 1 Qd R 89, followed

Channel 7 Sydney Proprietary Limited v Mahommed [2010] NSWCA 335; [2010] 278 ALR 232, considered

Favell v Queensland Newspapers Propriety Limited [2005] HCA 52; [2005] 79 ALJR 1716, considered

Giani v Queensland Television Limited and Others [2015] QDC 286, followed

Grattan v Porter [2016] QDC 202, cited

Hocken v Morris [2011] QDC 115, considered

Jones v Skelton [1964] NSWR 485, considered

Nowak v Putland [2011] QDC 259, considered

Queensland Newspapers Propriety Limited v Palmer [2011] QCA 286; [2012] 2 Qd R 139, followed

Roberts v Prendergast [2013] QCA 47; [2014] 1 Qd R 357, followed

Stevens v Boyle [2012] SASC 232, considered

Woolcott v Seeger [2010] WASC 19, cited

[1] This is a defamation case in which the plaintiff Bruce Alexander Gregory, has sued his former wife, Samantha Johnson, over three publications of defamatory allegations substantively that he is a paedophile, has been charged with sexual offences against children and that he films women in the shower. The plaintiff commenced the current proceedings on 15 April 2016 by way of claim and statement of claim. An amended claim was filed on 25 May 2016 and an amended statement of claim was filed on 8 August 2016. The plaintiff's claim is for a permanent injunction restraining the defendant from making the defamatory allegations I have just outlined, or words to similar effect. The plaintiff also seeks compensatory damages for defamation in the amount of $100,000 pursuant to section 35 of the Defamation Act 2005, and aggravated compensatory damages for defamation in the amount of $50,000, together with interest and costs.

[2] The defendant did not file a notice of appearance and defence to the amended claim and amended statement of claim, and on 18 October 2016 default judgment was entered before the Registrar of the District Court. This judgment was conditional on damages being assessed by the Court. On 25 May 2017 the assessment of damages hearing was listed for two days on 20 and 21 July 2017, and the defendant was told of this on the 4th of June 2017. Prior to the trial, the defendant advised the District Court Registry that she wished to call some 18 or so witnesses at the trial, essentially, to smear the plaintiff's reputation. On 14 July 2017 after a hearing, Judge Jones of this Court ordered that the number of witnesses the defendant may call on the assessment of damages was limited to one person, and that she may not call identified witnesses A through to R on her list. He also ordered the costs of the application be costs in the cause.

[3] The trial of the assessment of damages proceeded before me yesterday. The defendant appeared in person, but shortly afterward told me that she was not going to stay here today, and that, and I quote, "I actually have come as far as I can go, and there is no way, we all know, that I am going to win this, and I have been entertained by these people for as long as I can." The defendant was warned by me of the consequences of abandoning the hearing, including having a permanent injunction made against her and an assessment of damages undertaken without any input from her. Prior to departing the Court the defendant handed me a written document, which I received without objection from the plaintiff, setting out matters which the defendant wanted to bring to my attention but which she told me I could, essentially, take or leave. This eight and a-half page document was marked for identification A.

[4] After the defendant's exit from Court the trial continued before me. The plaintiff was called and gave short, unchallenged oral evidence for about 30 minutes. The plaintiff also called Ms Jodie Lee Price, who gave unchallenged oral evidence for about 18 minutes. Later in the day I received both written and oral submissions from Ms Fitzpatrick, Counsel on behalf of the plaintiff. The written submissions relied upon included those that were before Judge Jones on 14 July 2017. At the end of the hearing, I adjourned the matter overnight to consider the evidence adduced, the submissions made and the relevant authorities. Having now considered this material carefully I am in a position to deliver my judgment. These are my ex tempore reasons for judgment, which I will revise before they are published.

[5] The plaintiff is a man of 47 years of age, who described having lived on the Sunshine Coast for probably 90 per cent of his life. The plaintiff was married to the defendant for approximately 10 years, with the couple splitting in late November 2013. The plaintiff did not give any evidence about why his marriage broke up. There were no children from this marriage, but the defendant's two daughters, Erin and Ellie, who were five and seven when the marriage commenced, were brought up by the plaintiff as his stepdaughters. The family lived in the Buderim, Mountain Creek area, which the plaintiff described as a very large, close-knit community, who shared sporting events, functions, and who often did things like meeting at the local tavern. The plaintiff was involved with his stepchildren on a daily basis, attending their parent/teacher interviews, sporting activities, after-school and school functions.

[6] The plaintiff gave some very general evidence that he was involved in two businesses on the Sunshine Coast over the years. One was a landscaping business in the Buderim, Mountain Creek area, which carried out fencing and built retaining walls, and the other business was a recruitment and training agency called Gold Training. The plaintiff described being the face of Gold Training business. As he was the senior trainer, he facilitated all the training, and met with all the clients, and trained all the students. He also gave evidence that he currently works for an oil and gas transport company as a workplace health and safety trainer and assessor, and that he is based at Maroochydore. The company has offices at Toowoomba, Brisbane, Adelaide, Darwin, Murrumba, Mackay, Bowen, Bundaberg, Gympie, Tin Can Bay, Chinchilla and Roma, amongst other places. There was no evidence about when the plaintiff commenced working with this company.

[7] On 31 July 2015 the plaintiff was charged with an offence of observations or recordings in breach of privacy pursuant to section 227A of the Criminal Code Act 1899. This section provides that:

(1) A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy -

(ii) is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act; commits a misdemeanour.

Examples of circumstances where a reasonable adult would expect to be afforded privacy-

1. A person changing in a communal change room at a swimming pool may expect to be observed by another person who is also changing in the room but may not expect to be visually recorded.

2. A person who needs help to dress or use a toilet may expect to be observed by the person giving the help but may not expect to be observed by another person.

[8] The bench charge sheet which was part of exhibit 1 before me states as follows:

Criminal Code 227A (1) observations or recordings in breach of privacy: that on the 10th day of November 2013 at the Sunshine Coast in the State of Queensland one Bruce Alexander Gregory visually observed another person, namely, Ellie Cardwell, without her consent when she was in a private place and the visual observing was made for the purpose of visually observing the private act in circumstances where a reasonable adult would expect to be afforded privacy.

[9] It is not clear when this occurred, but the words "recorded" have been struck through on the bench charge sheet and replaced with the words that I read out, that is, "observed". The evidence before me was that the complainant in relation to this charge was the plaintiff's stepdaughter, Ellie, who was 17 years of age at the time of the offence. From the evidence of Ms Price, Ellie was finishing year 12 at the time the offence occurred. The verdict and judgment recorded in evidence before me as part of exhibit 1 reveal that on 22 January 2016 the defendant pleaded guilty to the offence of observation or recordings in breach of privacy. He was convicted in the Magistrates Court at Maroochydore on 22 January 2016, but no conviction was recorded. The plaintiff was fined the sum of $1,000.

[10] The plaintiff did not give any direct evidence about the circumstance of the charge to which he pleaded guilty to, but there was some evidence before me from him and also Ms Price, that it was reported in the Sunshine Coast Daily newspaper shortly after he pleaded guilty to the offence, along the lines that it was a breach of privacy charge involving the plaintiff looking through the shower window at his stepdaughter, who was in the shower, and she noticed his reflection. The article said the plaintiff was convicted and fined $1,000 with no conviction recorded.

[11] As I said, the plaintiff did not give any evidence about why his marriage broke up, but from the timeline of the split, on the evidence before me, this occurred shortly after the date of the facts giving rise to the charge.

[13] The first matter complained of occurred prior to the defendant being charged on 31 July 2015, and that is that on or about 14 April 2015 the defendant published, by sending a text message to Justine Potter, the following:

(a) Bruce has a history of crossing boundaries and outright is a paedophile.

(b) Your daughter is at risk and my agenda is to prevent another young girl being the victim of a monster.

(c) By no one's standard is what he did okay. It definitely was not.

(d) It sickens me to think he continues to put himself around young girls. It is disturbing.

(e) She was in the shower and he was using his iPhone to watch her while she was showering.

(f) He should not be around young girls ever, and I don't mind saying it, as my girls were on the receiving end of it and I wish that on no one ever.

(g) He may already seen your daughter getting dressed when she stayed over. It would not surprise me.

[14] The plaintiff pleads that this first publication in its natural and ordinary meaning meant, and was understood to mean, that the plaintiff is a person of bad character, the plaintiff lacks moral probity and the plaintiff is a paedophile. By failing to appear the defendant is taken to have admitted the allegation of fact contained in the statement of claim.[1] Whether a publication is capable of bearing the meanings pleaded by the plaintiff is a question of law for me to determine.[2]

[15] If I determine that the meanings pleaded by the plaintiff are capable of arising from the publication, then it is a question of fact whether the publication bears those meanings.

[16] In my view, each of the pleaded imputations is capable of arising from the first publication. I find that an ordinary reasonable reader who reads between the lines, as well as along them, might reasonably understand the first publication to convey the meaning that the plaintiff is a person of bad character, the plaintiff lacks moral probity and the plaintiff is a paedophile. Having determined that the pleaded imputations are capable of arising it is a question of fact, as I've said, whether they do arise from the first publication. By failing to appear the defendant is taken to have admitted the allegations of fact in the statement of claim, including the allegation of fact that the first publication bears each of the meanings pleaded, so long as they are, as a matter of law, as I've found, capable of arising from the publication. I find that the first publication bears each of the meanings alleged by the plaintiff.

[17] The first defamatory publication was made to Justine Potter, the plaintiff's then fiancé, in April 2015. There was no direct evidence of exactly when this relationship started (although I can assume it was after the plaintiff broke up with the defendant) or exactly when or why it ended, except that it was sometime after Ms Potter received the publications (although certainly not immediately afterwards). The plaintiff's evidence was that he read the messages when Justine received them in April 2015, and responded by telling her "pretty well everything", including that, "You know Sam's agenda and why she would have sent them." There was no evidence about what "pretty well everything" was. Given that one of the statements in the first publication relied upon the plaintiff as being capable of the attribution of bad character, and lacking moral probity, and of the plaintiff being a paedophile is that in 3(e) and I quote: "she was in the shower and he was using his iPhone to watch her while she was showering" and this forms part of the circumstances of the breach of privacy offence which occurred in November 2013, I infer that it must have been about what was then just an allegation for which the plaintiff had not been charged. He was not charged until 31 July 2015. I say "in part", because the evidence before me is that the charge was amended to remove the word "recording", but, as I've said, I have no evidence of when this occurred.

[18] The plaintiff's counsel submits that the plaintiff's evidence was that the first publications were the cause of the break-up of his relationship. As I said, the plaintiff did not give any direct evidence of this, but it can be inferred in the circumstances of the evidence he gave of the spiralling downward effect the first publication had on both himself and his relationship. The plaintiff's evidence was that after every argument, Ms Potter would bring it up and question him, and she would drink and get aggressive, and he would go and hide at home and lock himself at home so he did not have to talk about it. I infer it to be all of the statements contained in the first publication. His evidence was that the first publication caused him to suffer depression, anxiety and distress, and that he became reclusive and felt that he had to explain himself to Ms Potter. The plaintiff said that he saw a doctor for, and was treated for, depression and was not taking calls from friends, and that it, basically, upset and shattered him. The plaintiff did not give evidence of dates or adduce any medical evidence, but, given all of the evidence before me, it is not surprising that he sought treatment and felt as he said he did. I certainly accept that evidence.

[19] The plaintiff gave evidence that Ms Potter had discussed, and I quote, "the matter with other people", and that he knew this because friends of hers had approached him. There was no evidence of when these approaches were made to him, or what was discussed, although I infer it was some or all of the matters set out in the first publication and it was some time from and after April 2015. This is consistent with the plaintiff's evidence in response to the question he was asked about how people treated him at the time of those publications to Justine. The plaintiff's response to the question asked was limited to at the time of the publication was not so limited and extended past this time to after it seems, he was charged and later convicted:[3]

Yes, other people, friends, the community, well, anyone that found out about it, basically, questioned me on it, that's for sure. And then slowly they were different people then. They were - I don't know whether it was me thinking they were like that, or they were like that, but they were different people - the way they treated me and the way they spoke to me, and they were no longer accepting me as, you know, a welcome friend. They were basically tolerating me because I was Justine's partner.

And later he said, when asked, "And did they take any action towards you?" he responded:[4]

No, I wouldn't say any action towards me, other than when Justine and I did split, every single one of her friends took me off their Facebook, and things like that, and have never rung me, or I've tried to contact a few and they don't take my calls, and things like that.

He was then asked about people he saw in the street, to which he responded: [5]

I'd duck into a shop and hide and I've seen them do the same thing.

[20] The second matter complained of occurred after the plaintiff was charged with the offence of observation or recordings in breach of privacy, and that is, on the 25th of August 2015 the defendant telephoned Ms Larissa Fryer, an employee at the Concrete Employment Services Proprietary Limited, and during the telephone call said words to the effect of:

(a) Is Bruce Gregory an employee of Mansell; and

(b) Bruce appeared in Court today charged with sexual offences against children.

[21] The plaintiff pleads that in its natural and ordinary meaning the second publication was understood to mean the plaintiff had been charged with sexual offences against children, the plaintiff is a person of bad character, the plaintiff lacks moral probity and the plaintiff is a paedophile. I find that the second publication, that is: "Bruce appeared in Court today charged with sexual offences against children" is capable of and does give rise to each of the pleaded imputation. The plaintiff gave evidence that he heard about the second publication when the operations manager at Maroochydore said to him, on 26 August, that he had heard from Sally that he had been charged with child sex offences. The plaintiff's evidence was slightly confusing at this point, as he referred to it being the day after he had a summary trial. Given there was no evidence of any summary trial, and in light of the timing of the bench charge sheet, I infer that the plaintiff was talking about the first mention date of the charge of breach of the section 227A(1) of the Criminal Code.

[22] The plaintiff's evidence was he went up to the office, and spoke to the woman who took the call, and she said she had told her manager and her manager told Cameron, whom I can only assume was the operations manager. This woman was apparently the person who told Sally, one of the girls in the office. The plaintiff's evidence was that he ultimately went home, that he could not stand it, that he was under enough pressure. This, of course, is not surprising, given that the first publication had already occurred, that he had been to Court the day before, and of his evidence about what, at that point, was his deteriorating relationship with Ms Potter. The plaintiff's evidence was that when he returned to work a few days later, and his director and general manager called him, as they had heard what was going on and that everyone was talking about it.

[23] The plaintiff's evidence was that they said to him:[6]

You need to tell us the story. What's happened? What's happened there?

So I told them - told them what was happening, and what I'd been charged with, and the whole story about it, and they said, "Well, mate, it's everywhere. Everyone's talking about it. Would you like to - we'll send you west. We'll send you away for a bit to get away from this if you want."

No, I just need some time off. I just need some time to myself to get away from this.

[24] There was ample evidence of the devastating, humiliating and distressing effect the second publication had on the plaintiff in his work environment. The ladies in the office, who were usually jovial toward him, turned their backs on him, and did not include him in anything, or even say hello. A mate in the yard mentioned to him that everyone was running around calling him "the paedophile" in the office, so he had to explain to him his story. His boss, who I must say, on the evidence before me, was very supportive of the plaintiff, sent the plaintiff up to Mackay, and I quote: "to get away from all of this."

[25] It seems, however, that the plaintiff could not escape. There in Mackay he was faced with two men refusing to, and I quote: "stand here and be trained by a paedophile." Later, both men were admonished by the general manager and were instructed to apologise. One refused to and had his employment terminated. In refusing to apologise he said to the plaintiff, "he was not going to even stand in the same room as a paedophile". [7]

[26] After that the plaintiff said that basically everyone knew and there was no hiding from what was going on then. The end result was that despite being in a job he loved and working in a company that he wanted to further himself in, the plaintiff had to take time off because his depression was unbearable and some days he just wanted to stay in bed. When he was at work he lacked concentration and was virtually doing nothing. This meant there was no way a pay rise or a promotion was coming. It was at this point the plaintiff sought legal advice, because he wanted to stop the defendant from, as he described it "doing these publications". Exhibit 2 before me is the letter dated 14 September 2015 from the plaintiff's solicitors to the defendant providing a concerns notice said to be written under section 14(2) of the Defamation Act 2005 in response to the first and second publications. This letter requested that the defendant make a written offer of amends, identifying that the failure to do so may result in the commencement of legal proceedings.

[27] Turning then to the third publication. The third matter complained of occurred after the concerns notice was issued and the plaintiff pleaded guilty to the offence of observation or recordings in breach of privacy, and that is that on the 10th of June 2016 the defendant published, by sending a message to Marilyn Wailing, via Facebook, as follows:

...the monster that I was married to, the monster who was caught viewing my naked daughter in the shower, the monster who has had reports made to the police of doing similar acts to other young girls, the monster who had video imagery on his laptop when police confiscated it, and these young women have suffered enough.

[28] The plaintiff pleads that the natural and ordinary meaning meant and understood to mean is that the plaintiff has had reports made to the police alleging that he has viewed a number of naked children, that the plaintiff is a person of bad character and that the plaintiff lacks moral probity. I find that the third publication is capable, and does, give rise to each of the imputations pleaded in 3(B) of the amended statement of claim.

[29] The third publication was to Marilyn Wailing, a woman in her mid-seventies, who was a very close friend of the plaintiff's mother, and a person the plaintiff described as a close family friend. The plaintiff found out that Ms Wailing had been contacted by the defendant through his mother. The third publication caused the plaintiff particular stress, as a result of the devastation suffered by his mother. His evidence was that he then had to approach Marilyn Wailing and tell her the full story of what happened, because it wasn't something being aired publicly, and that he explained it all to Marilyn, who knows lots of his mother's friends. There was no evidence of what the "full story" was that he told Marilyn. The plaintiff's evidence was that around this time he started getting treated differently by people where his Mum lives, as they stopped waving and talking to him.

[30] Overall, the plaintiff said that all of the publications had left him a different man. He used to be the first person to jump up and do a speech at a wedding or an 18th, and now he is the guy who sits in the corner and won't speak. At work he is the same. If he can avoid talking to people at work, he will. He has a small group of friends whom he trusts and other friends he does not see or hear from. Of all the three children from his first marriage, only one speaks to him.

[31] The plaintiff's written submission submitted that the publications had affected his relationship with his grandchildren, but there was evidence before me that the plaintiff had grandchildren.

[32] The plaintiff's written submissions submit that he is medicated for depression. The highest the evidence is about this is that at the time of the first publication, in April 2015, over two years ago, he was treated for depression. I am however, able to infer, and do so infer, that such treatment included medications and given what is before me, that there would be no reason to think that the plaintiff would be feeling any less depressed and would have ceased taking such medication.

[33] The plaintiff's evidence was that after the newspaper article about his guilty plea was published in January 2016:[8]

Some guys that were not talking to me, that would have nothing to do with me, actually came to me and said, "Mate, we just read what's in the paper and we thought you were a paedophile. We thought you had child sex offences, but now we've read actually what the charges were, we realise now."

[34] He also said that he had had apologies from guys at work since the publication. Others chose to read between the lines and just still continue not to talk to him, but the guys that did read it properly and understood it, came to him and said, "Sorry, mate, we thought you were charged as a paedophile. Now we realise it was just a breach of privacy."[9]

[35] Ms Price gave evidence for the plaintiff. The plaintiff and Ms Price's children had played together in the under 5s soccer, it seems, over 15 years ago. The plaintiff had worked with Ms Price when he had a structural landscaping business and, at that time, whenever it was, clients of the business had considered the plaintiff trustworthy and that they were very happy with his work. She heard nothing adverse about the defendant at the time. She described the Mountain Creek community to be one of 6000 people and a very big school community, one in which the plaintiff was involved, for example, as a chaperone in Melbourne when her son was only 10 or 11. Again, it was not clear when this was.

[36] Ms Price's evidence was that their kids, and by that I infer her son and the plaintiff's stepdaughter Ellie, had finished school in grade 12 in November 2013, and that she knew that the plaintiff and defendant had separated at that time, but they were not part of her circle of friends at that stage. She said that she had noticed a change in the attitude in the community toward the plaintiff since about March 2014. At this time, her son received a call from Ellie and had discussions about the plaintiff, and Ms Price mentioned it to a friend and that friend contacted the defendant who rang Ms Price, who told her that there had been allegations against the plaintiff and that he was a paedophile.

[37] Ms Price's evidence was that, unfortunately, some people have decided that the plaintiff had been tarred with the brush of being a paedophile and will not have anything to do with him. She described having lost friends over it for defending him. She attributes the cause to be the defendant's allegations of the plaintiff being a paedophile. Her evidence was that lots of friends in the community had rung her and contacted her about what was going on, because the word "paedophile" had been used several times when Samantha had given a description of why they broke up.

[38] Ms Price's evidence corroborates the plaintiff's evidence in relation to difficulties he had at work. She said that she spoke to the plaintiff's direct boss at work last year, and that he was quite concerned about the plaintiff's lack of motivation and reliability, to the point where, despite his boss knowing it was not the plaintiff's usual work ethic, he may have to sack the plaintiff because the personal dramas were getting too much and it was affecting staff who needed to respect his position.

[39] Ms Price's evidence was that she saw the article about the plaintiff in the Sunshine Coast Daily, after being told about it by her mother-in-law, who was quite angry because it was quite removed from what the defendant had accused the plaintiff of. Ms Price's evidence was that she was approached by a lot of people, who said they thought the plaintiff was a paedophile, but that breach of privacy is not quite the same thing. She said "that's sort of, been the talk about it."

[40] In the present case, there is no evidence whatsoever, and I find that the plaintiff has not ever been convicted of, a child sex offence. To this end, there is certainly no public information in this regard. I also find that the plaintiff had a good reputation in the community, it seems, prior to March 2014, and up until the first publication, and that he suffered damage to his reputation after all three of the defamatory publications.

[41] The plaintiff urges upon me in this case to consider that the press report did not damage the plaintiff's reputation and that the conviction which is public record is not evidence of general bad evidence. In the decision of Giani v Queensland Television Limited and Others [2015] QDC 286, her Honour, Judge Bowskill QC, as she then was, discussed and referred to the principle that damages for defamation continue to be incurred after the publication of the defamatory material and that, accordingly, evidence referring to a change in the reputation of the plaintiff after the publication date, is relevant.[10] Her Honour referred to the decision of Channel 7 Sydney Proprietary Limited v Mahommed [2010] NSWCA 335; [2010] 278 ALR 232 to support the principle that, as well as convictions, judicial findings in other or unrelated civil litigation made in open court and, therefore, matters of public knowledge, may be admitted as evidence of bad reputation.[11]

[42] In my view, there is force to the plaintiff's submissions, pleaded case and evidence. The offence which the plaintiff pleaded guilty to was a relatively minor one, for which there was no conviction recorded. In my view the defamatory publications are serious and exaggerate to a high degree the events which give rise to the conviction. However, even on the plaintiff's pleaded case, the facts which gave rise to the charge are, at least, in part, said to be capable of meaning the plaintiff is a person of bad character and lacks moral probity. However, I find that the plaintiff has suffered damage and hurt and distress as a result of the defamatory publications.

[43] An award of damages for the defamation of the plaintiff has to provide reparation for the harm done to his personal and business reputation, give consolation for the personal hurt and distress caused by the publications, and vindicate his reputation.[12] Section 34 of the Defamation Act 2005 (Qld) states that,

In determining the amount of damages to be awarded, the Court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

[44] Justice Applegarth, sitting as a Justice of Appeal, conveniently reviewed and sets out the relevant principles for an award of damages in defamation matters in Queensland at some length, at paragraphs 25 to 49 of Cerutti and Another v Crestside Proprietary Limited and Another [2016] 1 Qd R 89. In this case, his Honour identified that, whilst the three purposes overlap, in reality, a single amount is awarded by way of reparation, consolation and vindication and that the first two purposes are frequently considered together.

[45] The theory of vindication is that an award of damages can undo part of the harm done by the defamatory statement. The plaintiff can point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless; the more serious the allegations and the wider the publication, the greater the sum necessary to vindicate the plaintiff. This element of the award cannot restore matters to how they were before.

[46] I accept the summary of the authorities provided and set out usefully by the plaintiff's counsel, at paragraph 14 of the plaintiff's submissions dated 20 July 2017, that the damages should reflect the circumstances, past and present, as well as what is required to vindicate the plaintiff's reputation in the future,[13] and further, that damages may take into account the grapevine effect, that is, the recognition that dissemination of defamatory material may occur between a broader group of people than those to whom the publication was made and that it may continue.[14]

[47] In particular, insofar as the grapevine effect is concerned, as the Court of Appeal set out in Roberts v Prendergast [2013] QCA 47; [2014] 1 Qd R 357, this expression is used metaphorically to describe circumstances of repetition of a defamatory statement by the person who published it originally or by those to whom that person has published it, to others, who repeat it.[15] It is closely similar to the phenomenon of emergence of defamatory matter from its lurking place.[16]

[48] In my view, the "grapevine effect", or the "lurking place" observation, are relevant in this case. The award must be sufficient to ensure that the defamatory publications, having spread along the grapevine, and being apt to emerge from its lurking place at some future date, sufficient to convince a bystander of the baselessness of the allegations. I also accept that the authorities provide that it is not necessary for the plaintiff to prove damage to his reputation; it is presumed once defamatory publication is established and that malice justifies an award of aggravated damages.

[49] I note section 36 of the Defamation Act 2005 provides:

In awarding damages for defamation, the Court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate, or at any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.

[50] I also accept that the Court can take into account, in mitigation of damages, that the defendant has made an apology to the plaintiff. Factors in mitigation of damages are set out in section 38 of the Defamation Act 2005, however, I note, in s38(2), that nothing in 38(1) operates to limit the matters that can be taken into account by a Court in mitigation of damages.

[51] In my view, vindication is very important in the present case. As Justice Applegarth noted in Cerutti and Another v Crestside Proprietary Limited and Another [2016] 1 Qd R 89:

One aspect of vindication by way of damages award is that the plaintiff, in pursuing a remedy through the justice system, takes what may have been a publication to a limited number into the public domain. In such a case, the plaintiff, in pleading and litigating the defamation, necessarily engages in self-publication of what ultimately proves to be an indefeasible defamation. In the meantime, defamatory allegation is the subject of open court proceedings which may be reported in the media or otherwise become known by word of mouth. This is in addition to the ordinary grapevine effect in which the defamation is republished along the "grapevine" in circumstances where that is the natural and probable consequence of the original publication. The fact of a defamation action may become known, particularly in a provincial city or town, and the substance of the defamatory imputations circulate in sections of the community. An award by way of vindication should be effected to convince persons who have heard of the allegation through media reports of the proceedings or otherwise, that the defamatory imputation is untrue.[17]

[52] The plaintiff gave very honest and frank evidence before me yesterday. When asked what he hopes this litigation will achieve, he responded that he hopes it will stop the continuous phone calls and slander he is receiving, that it will, hopefully, stop stirring up the mess that keeps coming forward so he can return back to normal work and normal duties. He said, "that's basically it, yeah, I want normal."[18]

[53] The award of damages, in this case, ought to go in my view in some way to assist the plaintiff back to normal. Judge Samios in Atholwood v Barrett [2004] QDC 505, made some apposite comments to the present case, which I adopt. He said:

To be called a paedophile is one of the worst possible things that could be said about someone if it were untrue. It is one of those statements that, despite denial, has the tendency to persist and leave a lingering and permanent mark on a person's reputation. [19]

[54] I accept it is extremely difficult, if not impossible, to dispel this. In my view, there is a strong evidentiary foundation from which an inference of a grapevine effect is present in this case. As the Court of Appeal identified in the decision of Prendergast, "there is a close link between a grapevine effect and vindication".[20]

[55] The plaintiff seeks compensatory, or general, damages and aggravated damages. I can, but am not compelled to, separately assess aggravated damages. I may assess a single amount which is appropriate to compensate the harm caused by the publication and the additional harm to reputation or injured feelings caused by conduct which is improper, unjustifiable or lacking in bone fides.[21]

[56] In Cerutti, Justice Applegarth also discussed aggravated damages and that they may be awarded if there is a lack of bone fides in the defendant's conduct, or it is improper or unjustifiable. The aggravating conduct may have occurred in making the publication, or at any time up to the assessment of damages. In the present case, there has been no apology by the defendant. In evidence is a letter from the defendant to the plaintiff's solicitor in which she sets out an apology she would present, can only be described as feeding into what I consider are a number of aggravating features of this case.[22] Other aggravating features include what can only be described as grandstanding by the defendant, both in person before the court and as evidenced by the document she handed me yesterday, which I have marked exhibit A. By this document, the defendant told the Court that, despite bringing an application, she was never going to call two witnesses to this trial, not even one, even if she was allowed. Through this document, the defendant says she just thought she would try and push the boundaries as she could. She further stated:

I thought I would just try to push the boundaries as far as I could to spend as much money of his as I could, a little bit for entertainment purposes, but mostly to show the utmost disrespect to him and his friends.

[57] The defendant also said that she had no desire to sit in this courtroom and entertain, or be entertained by, these people who she had no respect for.

[58] The defendant's conduct, in my view, has wasted precious Court time and money and has shown a complete disregard for basic civility and for the needs of the broader community. This is a busy jurisdiction, and we do not sit to entertain people such as the defendant.

[59] In my view, I find that the trigger for the defamatory publication was, and, as the plaintiff has identified, apparently the event the subject of the charge and guilty plea in this case. However, in my view, the repeated publications were actuated by malice with the defendant's proper intent to destroy the plaintiff's personal and work life.

[60] Turning now to quantum. The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendant's conduct. In determining an appropriate award for damages, I can take into account comparable cases, but I must exercise caution in doing so.[23] Each case, of course, depends on its own facts.

[61] I accept that the decision of Judge Robertson in Grattan v Porter [2016] QDC 102, which involved the defendant telephoning a school to allege that the plaintiff was a paedophile, is comparative. In that case, his Honour assessed damages at $150,000 including a component for aggravated damages of $30,000. Other cases where people have been referred to as paedophiles include Atholwood v Barrett [2004] QDC 504, where compensatory damages of $100,000 were allowed; Hocken v Morris [2011] QDC 115, where the total damages, including aggravated damages, was $75,000; Stevens v Boyle [2012] SASC 232, where the plaintiff was awarded the sum of $50,000, including aggravated damages; and Nowak v Putland [2011] QDC 259, where the plaintiff was awarded compensatory damages of $80,000 and aggravated damages of $70,000; and, also, Bertwhistle v Conquest [2015] QDC 211, where the factual allegations were not quite clear, but seemed to concern an allegation of the plaintiff being a paedophile. The judge ordered compensatory damages in the sum of $100,000.

[62] Clearly, in this case, there are serious allegations that have been made and, in the current community climate, to have this sort of allegation, which has been made by the defendant against the plaintiff, is both serious and concerning, particularly given that through the grapevine effect, they have been maintained now for a number of years. Bearing in mind all the matters, and doing the best I can in all of the circumstances, I assess damages at $160,000. This includes an order for aggravated damages in the sum of $40,000.

[63] The plaintiff also seeks an order for a permanent injunction pursuant and says, pursuant to UCPR rule 288, I can grant this. The plaintiff has filed an application and material in support of this application, which has been filed and served on the defendant. I raised the issue with the defendant when she appeared before me yesterday and she did not oppose me making the order; indeed, she accepted that she would be so restrained. I consider, on all the material before me, that there certainly is a basis for an order for a permanent injunction and I consider that one ought to be made.

[64] I also consider, as the plaintiff has submitted, that there is an entitlement to interest at the rate identified in Cerruti of three per cent.[24]

[65] The plaintiff seeks their costs on the indemnity basis. For the reasons that I have set out this afternoon, I consider that this is an appropriate case for an award of indemnity costs. As I have said, the defendant's conduct, both in relation to the defamatory publications and, indeed, her conduct and attitude towards the Court and her overall approach, justifies an award to be made on the indemnity cost basis. This includes, very relevantly, the reserved costs before Judge Jones. The evidence before me was that this was an entirely unnecessary application and a waste of everyone's time, given the defendant's intimations that she was never intending to call any such witnesses.

1. Judgment be entered for the plaintiff in the sum of $170,901.92; comprising:

2. The defendant be restrained, whether by herself, her servants or agents, from publishing matters of and concerning the plaintiff alleging that:

(b) he has been charged with sexual offences against children;

3. The defendant pay the plaintiff's costs of the proceeding, including reserved costs, on the indemnity basis.

[1] See Jones v Skelton [1964] NSWR 485 at 491; see also Favell v Queensland Newspapers Propriety Limited [2005] HCA 52; [2005] 79 ALJR 1716 at paragraph 9.

[2] Queensland Newspapers Propriety Limited v Palmer [2011] QCA 286; [2012] 2 Qd R 139 at 19; see also Woolcott v Seeger [2010] WASC 19 at paragraph 10.

[10] Giani v Queensland Television Limited and Others [2015] QDC 286 at paragraph 65.

[11] Channel 7 Sydney Proprietary Limited v Mahommed [2010] NSWCA 335; [2010] 278 ALR 232 at 162 to 169, 246 and 254.

[12] See the joint reasons of the High Court in Carson v John Fairfax and Sons Limited [1993] HCA 31; [1993] 178 CLR 44 at page 60.

[13] Carson v John Fairfax and Sons [1993] HCA 31; [1993] 178 CLR 44, in particular see paragraph 69-70.

[14] Roberts v Prendergast [2013] QCA 47; [2014] 1 Qd R 357 and Grattan v Porter [2016] QDC 202.

[16] Cassell and Co Limited v Broome [1972] UKHL 3; [1972] AC 1027 at 1071.

[17] Cerutti and Another v Crestside Proprietary Limited and Another [2016] 1 Qd R 89; [2014] QCA 33 at paragraph 35.

[19] Atholwood v Barrett [2004] QDC 505 at paragraph 22.