Hallam v O'Connor and Pyne [2024] QDC 187

Hallam v O'Connor and Pyne [2024] QDC 187 | Case summary | Zoe

[63]

[1] The plaintiff, who was then the Chief Executive Officer of the Local Government Association of Queensland Ltd, was the subject of public reputational damage, hurt and humiliation by multiple publications and being likened to the Star Wars movie character, Jabba the Hutt, on the Facebook social media platform. The plaintiff now sues for damages for defamation by the first defendant in respect of 36 publications, and the fourth defendant in respect of 5 publications.
[2] The first defendant's liability was the subject of default judgments on 18 September 2020 and 30 November 2020. Accordingly, the case against the first defendant involved assessing damages for the adjudged pleaded imputations from the 36 publications made by the first defendant under "Elizabeth Kennedy" for 13 and "Lyn O'Connor" for another 23. The plaintiff also seeks a permanent injunction against the first defendant.
[3] The case against the fourth defendant involved both liability and the assessment of any damages regarding five alleged defamatory publications. I have found the fourth defendant liable in respect of four of the five disputed publications. I further found the fourth defendant published all five publications of and concerning the plaintiff, and all publications had the capacity to convey, and did in fact, convey, all but four of the pleaded imputations.1 I am satisfied that the imputations I found in the 1st, 2nd, 4th and 5th Rob Pyne Publications are defamatory of the plaintiff, but I was not so satisfied with respect to the imputations I found in the 3rd Rob Pyne Publication.
[4] The first and fourth defendants are properly to be classified as several concurrent tortfeasors, each causing indivisible harm through their respective and overlapping publications. While avoiding double recovery, the case warrants separate awards of damages against each defendant, and disparate consideration of aggravated damages.
[5] I assess damages against the first defendant for $283,355.00, comprising non- economic loss damages of $275,000.00 (including $55,000.00 for aggravated damages) and special damages of $8,355. I will award judgment accordingly, together with interest at the rate of 3% per annum from the first publication on 10 June 2017 on general damages of $61,004.79 and special damages from 7 October 2017 of $1771.72. The circumstances also warrant a permanent injunction prohibiting future defamatory publication of and concerning the plaintiff.
[6] I assess damages against the fourth defendant for $128,798.50, comprising non- economic loss of $125,000.00 (including $25,000.00 for aggravated damages) and special damages of $3,798. I will award judgment accordingly, together with interest at the rate of 3% per annum on general damages from the first publication of 21 June 2017 of $27,657.53 and on special damages from 7 October 2017 of $805.38.
[7] I will hear the parties on disposition of costs, which ought to follow the event unless either party seeks a different order within 14 days of this judgment.

[135]

(a) All of the 1st to 5th Rob Pyne publications (including the first Jabba the Hutt caricature) is context for each other: The fourth defendant's Facebook page likely attracted a growing readership who could scroll back to view earlier posts. The publications were contemporaneously available for months.

(b) The earnest political and purportedly factual nature of the fourth defendant's public Facebook page. The fourth defendant's Facebook page is distinct from print, radio, or TV media due to easier access to past posts. The page's name "Rob Pyne: Putting Cairns First" and its presentation resembled an election sign. It was a platform for political communication, promotion, and public interaction.

(c) The politically aware and inquiring nature of the likely readership of the fourth defendant's public Facebook page. Readers were likely interested in politics and possibly supportive of the fourth defendant's political agenda. The page was used to communicate with constituents, supporters, and the media.

(d) The "LGAQ" is a reference to the Local Government Association of Queensland. It is known to the public. Its membership consists of all local governments in Queensland and is broad in its engagement with media, government, and public issues.

(e) The plaintiff was well known to the public as the chief executive officer and public face of the association, having been in that role for 25 years, which involved him in public and media engagement.

(f) The plaintiff's physical appearance, including his obesity was publicly recognisable.

(g) The public discourse between the plaintiff (amongst others) and the fourth defendant is critical of the fourth defendant's use of parliamentary privilege to table documents sensationally asserting local government corruption. The controversy in the public mainstream media was well underway by December 2015.

(h) Whilst the plaintiff, as head of the association, had been criticising the fourth defendant's persistent and repeated use of parliamentary privilege since 2015, it is tolerably clear that the intensity of that criticism and the support it was attracting from others did not occur until on or shortly before 15 June 2017.

(i) The fourth defendant continued to table documents purportedly concerning wrongdoing and corruption in local government on numerous occasions between 11 May 2016 and 24 May 2017.

(j) On 15 June 2017, an LGAQ press release consisting of a statement by the plaintiff indicating that the LGAQ rejected the fourth defendant's allegations and calls for a special inquiry into local government and accusing the fourth defendant of allegations as being made without foundation, though under parliamentary privilege. It was just part of the wider criticism and comments about the fourth defendant's use of parliamentary privilege.

(k) On 14 June 2017, the fourth defendant tabled under privilege in Parliament a document entitled "Ipswich Inc", which marked a high flashpoint in the parliamentary privilege and public discourse.

(l) In the midst of all this, the fourth defendant published the 1st Rob Pyne publication including the Jabba the Hutt caricature his public Facebook page on 21 June 2017.

(m) After 21 June 2017 and throughout the period covering the initial publications of the 2nd, 3rd, 4th and 5th Rob Pyne publications the fourth defendant continued to table documents under privilege in Parliament about purported local government wrongdoing and corruption, which continued to fuel public discourse about his use of parliamentary privilege including criticism from the plaintiff.

(n) The publications and the fourth defendant's actions kept the debate in the public eye up to the November 2017 state election.

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[19] Although the plaintiff is not named in words, he may, nevertheless, be described to be recognised. Whether that description takes the form of a word picture of an individual, a reference to a class of persons of which he is or is believed to be a member or any other form, if in the circumstances the description is such that a person hearing or reading the publication would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.6
[20] The 1stRob Pyne publication containing the words and associated 'Jabba the Hutt' caricature is persuasive evidence of identification. The fourth defendant argues that the caricature depicts a toad and thereby refers to the Queensland local government and that references to "the establishment" were directed at government leaders, not the plaintiff. However, it seems to me that the depiction of the catchy meme is likely to be read and understood by the ordinary reasonable reader to refer to the plaintiff. The caricature visually parodied the plaintiff, who appeared as a witness and exhibited similar physical features. The caricature's physical qualities and contextual elements (like "LGAQ" on the shirt and book) reinforced its connection to the plaintiff and would lead an ordinary reasonable reader to identify the plaintiff as within the class of "those in power" as distinct from "the ordinary decent people in government roles (who are often the victims)".
[21] Witnesses' direct testimony they understood the publication as referring to the plaintiff can also indicate whom the hypothetical ordinary and reasonable reader would understand as being referred to.7 In this case, Mr Jamieson, Ms Browning and Mr Millar testified that they recognised the plaintiff in the caricature.
[22] There is also at least one recipient of the publication who had special knowledge, based on extrinsic facts, to understand it referred to the plaintiff, including prior or contemporaneous third-party publications.8 Even without direct evidence of a witness identifying the plaintiff based on extrinsic facts, identification can be inferred if at least one person would have made the connection. The weight of the evidence depends on the timing of the identifying and sued publications, the relevance of the subject matter, and the interest to the overlapping readership.

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[33] The caricature's physical features and contextual elements (like "LGAQ" on the shirt and book) identified the plaintiff in a controlling role in the Association, and would lead an ordinary reasonable reader to identify the plaintiff in the 1st Rob Pyne Publication as being within the class of "those in power" who "rarely welcome increased scrutiny" as distinct from "the ordinary decent people in government roles (who are often the victims)". In my view, when read with the wording in the publication, in the context of the parliamentary conduct, public debate, and other proximate posts and comments, the caricature goes beyond mere satire or vulgarity that might be considered fair comment or the 'rough and tumble' of political debate.
[34] The asserted imputations (a) and (b) largely depend upon the ordinary and reasonable reader recognising that the plaintiff has attributed to him Jabba the Hutt's essential characteristics of being a corrupt and criminal villain, a 'baddie', and a very negative person.
[35] As to imputation (a) that the plaintiff was a powerful crime boss, the plaintiff argues that he was well known as the CEO of the LGAQ and its public spokesman, and therefore in effect, the boss, and if the ordinary honest and reasonable reader perceives him as doing corrupt criminal and villainess things, then the 1st Rob Pyne publication conveys the meaning that he was a crime boss. It is further argued that the meaning was that of a powerful crime boss since he contemplated speaking to the government and the Speaker and was, after all, one of those "in power".
[36] The plaintiff led no evidence about the role and character of Jabba the Hutt in the movie Star Wars. Instead, he relied upon his presumed public notoriety inferentially known to the ordinary reasonable reader as a criminal figurehead. I am not satisfied on the evidence that there is any such prolific notoriety to safely attribute such the ordinary reasonable reader.
[37] The fourth defendant confirmed that he was "now" aware that the role which Jabba the Hutt played in the Stars Wars movie franchise was as "a corrupt and criminal villain", "a baddie" and a pretty negative person, having learned of such content in this proceeding, and was not otherwise aware by some general notoriety. Instead, he attributed the caricature as depicting a cane toad being a notorious pest in Queensland and associate with representative sporting teams, and other Queensland figures. At

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[38] It seems to me that the alleged imputation (a) that the plaintiff is a powerful crime boss and (b) that the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire, can only emerge as the product of a strained, forced or utterly unreasonable interpretation with knowledge of the character and role of Jabba the Hutt in the movie Star Wars. In my view, without such notoriety, a jury could not find such an interpretation open to the ordinary and reasonable reader as alleged in imputations (a) and (b). Therefore, the 1st Rob Pyne Publications does not have the capacity to convey any of their pleaded imputations (a) and (b).
[39] Even if the 1st Rob Pyne Publications had the capacity to convey any of their pleaded imputations (a) and (b), I do not accept that a jury could find the contended interpretation open to the ordinary and reasonable reader. The 1st Rob Pyne publication will more likely be interpreted as a broad critique of power dynamics and systemic issues between political parties and the LGAQ rather than conveying the specific defamatory imputations of the plaintiff as a crime boss or that he operated a profitable criminal empire as a cartel through the association.
[40] However, the Jabba the Hutt movie role attributes are not necessary to convey imputations (c), (d), (e), (f) and (g).
[41] Imputations (c) and (d) are anchored by the opening sentence, "Thanks to all people supporting a Queensland ICAC," which would be understood by a reasonable reader as referring to the Independent Commission Against Corruption. Corruption in the context of a public commission implies bad or improper behaviour, dishonesty, and a willingness to act without integrity for personal gain or an improper purpose in public office.
[42] The plaintiff argues that imputation (d) is evident from the thought bubble, which shows the plaintiff contemplating influencing public officials, including Queensland Parliament members. The bags of money behind the figure imply ill-gotten gains that would be lost if the plaintiff's meetings with the government and the Speaker failed to silence the fourth defendant. This suggests the plaintiff is acting dishonestly for personal gain. To a reasonable reader, the caricature indicates that the plaintiff is seeking to corruptly influence public officials. This level of corruption justifies the call to "maintain the rage!" The plaintiff also contends that Imputation (c) follows from imputation (d), as it involves covering up unethical actions. The depiction suggests that the plaintiff has benefited from dishonest gains and is trying to protect them.
[43] Whilst it is tolerably clear that imputation (c) draws from the notion that corruption involves covering up improper actions and imputation (d) is derived from the thought bubble's words. I think it is an utterly unreasonable interpretation to attribute a return

[185]

[44] Imputation (d) is derived from the thought bubble's words. The figure depicts the plaintiff contemplating influencing public officials, including Queensland Parliament members, to oppose the creation of such a body at the urging of the fourth defendant lest he "ruin everything" of the status quo. The bags of money behind the figure depicting the acronyms "ALP" for the Australian Labour Party and "LNP" for the Liberal National Party suggest not ill-gotten gains but the political funding protecting the association's interests. Again, I do not accept the plaintiff's contention that it represents personal ill-gotten gain by the plaintiff, but instead, it represents the unscrutinised political relationships and gain of the association. Nor do I accept that it implies to a reasonable reader that the plaintiff intended to act dishonestly and without integrity for personal gain, seeking to corruptly influence public officials. But it highlights the close relationship with, and perceived power and ease of access to, the government and speaker to lobby against the fourth defendant's use of his position and mode for agitating for an anti-corruption commission. It follows that the figure depicts the plaintiff contemplating meeting public officials, including Queensland Parliament members, for an improper purpose to oppose the creation of such a body at the urging of the fourth defendant lest he "ruin everything" of the status quo for an improper purpose of protecting the associations unethical practices. In that sense, I think the publication is capable of conveying imputation (c) and did convey that imputation.
[45] Imputation (e) is based on the caricature of the plaintiff holding a chain restraining the LGAQ Ethics Manual, depicted as a book-like figure. Chains symbolise slavery, leading a reasonable reader to infer that the plaintiff unethically subjugated the ethical standards the LGAQ should have provided to local government.
[46] I accept the plaintiff's argument regarding that imputation (f). It is based on the post's statement, "Those in power rarely welcome increased scrutiny," and the accompanying caricature. The caricature depicts the plaintiff as a powerful figure contemplating silencing "that bloody Rob Pyne" by speaking to the government and the Speaker. References to the LGAQ and the controversy over the plaintiff's criticism of the fourth defendant's use of parliamentary privilege further support this interpretation. Therefore, the publication is capable of conveying imputation (f) and did convey that imputation.
[47] Imputation (g) follows from the words, "... but the ordinary decent people in government roles (who are often the victims) need us to maintain the rage!" The word "victim" means a sufferer from an adverse action or agency. I agree with the plaintiff's submission that an ordinary reasonable reader would have inferred that decent people in government were being adversely affected by "those in power," a class that included the plaintiff as the LGAQ executive head, and that is why they did not welcome increased scrutiny. The accompanying caricature would have reinforced

[196]

[54] Again, context remains important to considering the alleged imputations, including the earlier publications by the fourth defendant, other posts and comments, and the continuing controversy regarding parliamentary privilege.
[55] I have already found that an ordinary reasonable reader would identify the plaintiff in the 3rd Rob Pyne Publication as being within one of "Those in power" who had publicly engaged in criticism of the fourth defendant, and therefore "Rather than attack the cause of systemic corruption, they are attacking and trying to discredit me". He was also the head of one of the "insider groups" that long dominated with "power and privilege" as described in the 3rd Rob Pyne Publication.
[56] The last sentence of this post supports imputation (a), particularly considering the first two sentences. In this context, the LGAQ and its CEO, the plaintiff, could be seen by a hypothetical ordinary and reasonable reader of the Rob Pyne Facebook pages as one of the "insider groups" that have "dominated for too long". Therefore, imputation (a) is capable, and in fact conveyed, by the 3rd Rob Pyne Publication.
[57] As for imputations (b) and (e) the plaintiff argues that, due to the plaintiff's criticism of the fourth defendant in the course of the public controversy, which involves the plaintiff attacking the fourth defendant and necessarily trying to discredit him, these words were previously observed as identifying the plaintiff. However, as the argument goes, in the minds of the ordinary and reasonable reader of the fourth defendant's Facebook page, they also ascribe to the plaintiff in his doing so a desire not to attack the systemic cause of corruption.
[58] I disagree. It seems to me that the alleged imputations (b) and (e) could only arise from a strained, forced, or completely unreasonable interpretation, especially when considering the context of the public discourse, other posts, comments, and the publication itself. In my view, the public discourse, including the plaintiff's criticism, was focused on the fourth defendant's reckless use of parliamentary privilege and not a failure of preparedness to "attack the cause of systemic corruption" and not to somehow facilitate or allow systemic corruption. Therefore, I do not believe that a jury could reasonably interpret the publication as conveying the imputations claimed by the plaintiff in (b) and (e). Consequently, I do not accept that these imputations are capable of being, or were actually, conveyed by the third Rob Pyne publication.
[59] The first sentence of this post clearly supports imputation (c) through its literal wording. The plaintiff is identified as one of "those in power" who collectively form "the problem." Similarly, imputation (d) is derived from the literal words, "it's time

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[72] In my view, each of the imputations found in the 1st, 2nd, 4th and 5th Rob Pyne Publications are likely to make an ordinary, reasonable person think less of the plaintiff, but I do not think so in relation to the imputations found in the 3rd Rob Pyne Publication.
[73] The 1st, 2nd, 4th and 5th Rob Pyne Publications are sensationalist in tone and pregnant with insinuation and suggestion of improper conduct and wrongdoing, which invites readers to adopt a suspicious approach and repeatedly invites conjecture. Whereas, even amidst the negative context surrounding the publications, I think that an ordinary reasonable reader is sufficiently familiar with political workings to see that the imputations derived from the 3rd Rob Pyne Publication use a different tone for statements of broader political application and are unlikely to make an ordinary, reasonable person think less of the plaintiff. This is because: "insider groups" insinuate internal organisations (not individuals) who have an advisory influence on the political workings of government rather than carrying an improperness connotation; "dominated for too long" is an observation about the groups' effective policy influence, again not an implication of wrongdoing, but a desire to disrupt that dominance; "power and privilege" is widely used as a descriptor of those perceived with higher social economic status who gain positions of authority, but without implying misuse of their entitled background; the publication makes general observations about the nature of the groups, to which the LGAQ belongs, without suggesting that the LGAQ or, and even less so the plaintiff, engaged in unethical or improper domination; and it is preferable to the legitimate role in government systems, rather than as a personal indictment of the plaintiff.
[74] Therefore, the imputations in the 3rd Rob Pyne publication would likely be seen as factual observations, rather than defamatory statements that could harm the plaintiff's reputation in the eyes of an ordinary, reasonable reader.
[75] The fourth defendant, having raised no positive defences, is liable for defaming the plaintiff as found in respect of the 1st, 2nd, 4th and 5th Rob Pyne Publications,36 and damages will be assessed based on all of the imputations found for each of those publications.

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[77] Pursuant to s 34 of the Act, the amount of damages must reflect "an appropriate and rational relationship to the harm sustained by the plaintiff". The section reflects the three purposes of compensation at general law.
[78] In Rogers v Nationwide News Pty Ltd [2003] HCA 5238 Hayne J (Gleeson CJ and Gummow J agree) refer to Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44,39 to affirm the three main purposes of damages in defamation: first, they provide consolation to the plaintiff for the personal distress and hurt caused by the publication; secondly (and often considered with the first), they offer reparation for the harm inflicted on the plaintiff's personal and professional reputation; and thirdly, they aim to vindicate the plaintiff's reputation by influencing the opinion of others.
[79] All three purposes of consolation, reparation and vindication are relevant here and a single amount must be awarded to serve each purpose and there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded_._
[80] The recent Court of Appeal decision in _Nine Network Australia Pty Ltd & Ors v Wagner & Ors_40 clarified the principles for awarding damages when multiple defendants are sued for multiple defamatory publications. The principle of indivisible harm was central to this case, as the harm caused by multiple defamatory publications was treated as one.
[81] Here, applying those principles, the respective defendants should be classified as a separate tortfeasor, a joint tortfeasor, or several concurrent tortfeasors. Separate tortfeasors act independently, while joint tortfeasors collaborate in committing the defamatory act, and several concurrent tortfeasors cause indivisible harm through separate but related acts. Indivisible harm occurs when multiple acts contribute to a single, undivided injury that cannot be apportioned among the tortfeasors. In those circumstances, each tortfeasor will be liable for the entire harm if their conduct is a cause of that harm, regardless of whether they acted together or separately. The courts have consistently rejected the need for a global damages approach, instead supporting separate awards for different harms caused by each defendant. But, double recovery is not permitted, ensuring fair compensation for the plaintiff while preventing overlapping compensation for the same harm. Further, separate awards must be made for any aggravated damages (where all defendants do not jointly engage in the aggravating conduct) such that the same amount is not to be assessed against several concurrent tortfeasors for aggravating conduct.
[82] Since the defendants' respective and multiple applications are made in the context of the broader Facebook discourse, I think that the first and fourth defendants are

[254]

[97] The plaintiff was 61 to 62 years old at trial and is now 65. He has had a distinguished career in local government administrative services and holds degrees in business and economics, as well as post-graduate qualifications in strategic corporate communications from the University of Melbourne and political campaign management from George Washington University. Over his extensive career, he held several prominent positions, including as CEO of the LGAQ from 1992 until his retirement in 2021. He also served on various boards, such as the Queensland Treasury Corporation, the Bruce Highway Trust, and the Sporting Wheelies Board for 20 years. He has received several honours, including appointment as a Member of the Order of Australia in 2018 for his significant contributions to local government, disaster recovery, and people with disabilities, a Public Service Medal in 2000 for outstanding service in local government, the Centenary Medal in 2001 in recognition of 500 leaders in Australia at the time the Centenary, National Emergency Management Medal for his efforts in the 2011/2012 natural disasters. He enjoyed coaching athletics and contributed to the community through amateur sports.
[98] Consistent with his professional success and resilience, the plaintiff showed no apparent emotional distress. This is explicable since his evidence over eight days was predominately given by evidence in chief, and he was on his prescribed psychiatric medication. However, he did show some vocal and expressive annoyance when he was confronted by the first and second defendants during cross-examination and he was able to describe the impact he experienced due to defamatory publications.
[99] Throughout his testimony, Mr Hallam recounted numerous instances where the defamatory statements caused him significant emotional turmoil. He felt that the publications, particularly those from the first and fourth defendants, were part of an orchestrated campaign against him, which left him feeling powerless and deeply anxious.
[100] He described feeling angry, bewildered, and deeply hurt by the publications, which he treated as accusatory and damaged his public good reputation, particularly in local government, as follows:

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[101] The plaintiff placed greater weight on the defamatory posts of the first and fourth defendants than on other associated and surrounding comments by other Facebook users, which the plaintiff regarded as inconsequential.
[102] He described how these experiences impacted his personal life. This included, during a holiday in Ireland, he became emotionally overwhelmed while reading a legal document related to the case and broke down in tears in a public garden.
[103] He made claims of significant weight gain and increased alcohol consumption, although these are difficult to gauge against a background of his pre-existing obesity and drinking habits. He testified frankly, even confessing, after being challenged in cross-examination, that he had understated his alcohol consumption to his psychiatrist.
[104] Colleagues, including Ms Hughes, the Human Resources Manager at LGAQ, noticed significant changes in the plaintiff's demeanour and personality, leading to concerns about his mental well-being. This ongoing stress affected his work performance, leading to periods of sick leave and a notable episode where he experienced a severe adverse reaction to medication, causing him to slur his words and struggle to form coherent thoughts during a staff meeting. In late 2017, Ms. Hughes, the LGAQ's Human Resources Manager, noticed a significant decline in the plaintiff's mental health due to online harassment. This led to frequent sick leave and, by September/October 2017, a diagnosis of Major Depression with Anxious Distress. His symptoms included insomnia, agitation, irritability, and severe nightmares, which his partner, Ms. Lee, corroborated. The LGAQ's chairman, Mr. Jamieson, noticed the impact of the defamatory publications on his mental health and insisted that he take time off work on two occasions. In January 2020, a likely medication-induced episode occurred during the staff meeting. In early 2020, during a holiday in Ireland, the plaintiff had an emotional breakdown while reading legal documents, highlighting the ongoing toll on his mental health.
[105] The plaintiff himself perceived a severe decline in his own mental health, believing that he had symptoms of post-traumatic stress disorder. He was the subject of psychiatric diagnosis and treatment for Major Depression with Anxious Distress. His symptoms included insomnia, agitation, anger, irritability, and distressing nightmares, which were so severe that his partner had to sleep in a separate room.
[106] It seems to me that the magnitude of harm, in the sense of personal distress and hurt caused by the publication, may include psychiatric impacts.61 In that regard, as with other torts, the plaintiff relies upon the 'eggshell skull' principle applies such that a defendant is responsible for the full extent of the harm caused by the defamatory statement, regardless of whether the plaintiff was particularly susceptible to harm due to their specific circumstances or sensitivities, provided they are not too remote.62 Furthermore, an award of damages in defamation, similar to other torts, is made "once and for all," encompassing both the loss and damage occurring before the assessment and those likely to occur after the assessment.63
[107] I heard evidence from Dr Greaves regarding the plaintiff's psychiatric health.
[108] The plaintiff saw Dr Greaves, a psychiatrist, on 13 November 2017 after a referral by his General Practitioner doctor. Dr Greaves had previously treated the plaintiff. Following this further referral, the plaintiff had 37 further consultations with Dr. Greaves until the trial commenced. Dr Greaves prescribed medication for his psychiatric condition, which I accept the plaintiff generally followed faithfully with only occasional forgetfulness. The plaintiff affirmed Dr Greaves' notes, including his record of a "crusade about 'council'" as referable to a broader campaign involving councils, the LGAQ, and himself. However, during the trial, the plaintiff

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[109] Having regard to Dr Greaves' evidence, and that of the plaintiff and other observers, the plaintiff's psychiatric condition and mood has fluctuated since 2017, with the commencement of legal proceedings initially giving him hope, but later leading to further distress. In September-October 2017, Dr Greaves diagnosed that the plaintiff began suffering from Major Depression with Anxious Distress, a condition he continues to endure. His prominent symptoms include preoccupation with events, depression, anxiety, agitation, insomnia, and distressing nightmares. Dr Greaves' view is that the plaintiff's depression and psychiatric treatment likely perpetuated his obesity, though she did not suggest that his psychiatric condition caused his obesity. Instead, Dr Greaves opined that the publications contributed to a cycle of obesity and depression. Dr Greaves suggested that the plaintiff's obesity, worsened by depression, may have made biliary colic and cholecystitis more likely, but her opinion was tentative. She linked obesity and poor diet, exacerbated by depression, to the condition and noted that the plaintiff believed desvenlafaxine worsened his diverticulitis, which she considered likely due to the drug's effects on bowel motility. This condition has significantly impacted his daily well-being and enjoyment of life. The plaintiff's physical health has also been affected, with his psychiatric condition and its treatment contributing to issues such as weight management difficulties, exacerbation of sleep apnoea, diverticular disease, high blood pressure, gastroesophageal reflux disease, and leg pain. Additionally, the plaintiff experienced side effects from medication, including nausea, hangover effects, and slurred speech. Dr Greaves spoke of the plaintiff's prior illness, progress of recovery, vulnerability and recurrence. She testified how he recovered well and was discharged from treatment for the second episode on 24 March 2014, which was also followed by a stable recovery as at 23 June 2016. However, due to his history, Dr Greaves considered him vulnerable to a recurrence of his condition, noting that individuals predisposed to depression, likely due to genetic factors, often experience relapses under external stress. Dr Greaves, having treated the two episodes of major depression, attributed the recurrence of the plaintiff's condition to the stress induced by the defamatory publications.
[110] An independent psychiatric review by Dr Garg confirmed Dr Greaves' findings. He agreed that harsh words and false accusations could cause psychiatric illness, particularly when spread through social media literature linking negative comments to anxiety, and how studies show an exacerbation of a victim's sense of powerlessness and helplessness experienced by the plaintiff.
[111] Physician Dr Baboolal also provided a report, acknowledging that the plaintiff's depression likely perpetuated his obesity and impaired his sleep. However, he differed from Dr Greaves on the extent to which depression influenced other conditions, such as gallbladder disease and hernia. I prefer Dr Baboolal's opinions over Dr Greaves, where they are inconsistent since Dr Baboolal was better qualified about physical disorders secondary to the plaintiff's psychiatric state and medication.
[112] Dr Baboolal opined that while the plaintiff's obesity preceded the depressive episode linked to the publications in question, he opined that the depression likely contributed to maintaining excess weight through unhealthy lifestyle choices. Without depression, the plaintiff would have likely made more concerted efforts to lose weight, possibly reducing by 3-4 kilograms, Dr Baboolal opined. Further, regarding obstructive sleep apnoea, Dr Baboolal did not believe the recent diagnosis of depression directly or indirectly caused the condition, as the plaintiff was first diagnosed in 2012. On disturbed sleep, Dr Baboolal opined that depression likely contributed to the plaintiff's impaired sleep, which is consistent with other evidence of the plaintiff's nightmares and psychotic dreams. Regarding diverticular disease, Dr Baboolal did not believe depression contributed to the plaintiff's acute diverticulitis episode. Regarding gallbladder disease, Dr Baboolal did not believe depression contributed to it. Similarly, Dr Baboolal opined that the plaintiff's paraumbilical hernia was unrelated to depression, however, as to the plaintiff's leg pain Dr Baboolal deferred to Dr Greaves expertise on the side effects of psychiatric medications, who opined that Quetiapine likely caused the plaintiff's leg pain.
[113] I also had the advantage of hearing from those who could describe the observations of the plaintiff 'before and after' the publication which is generally consistent with the medical evidence. Before mid-2017, the plaintiff was widely regarded as a highly motivated, energetic, and engaged leader. However, after the onset of defamatory social media posts in mid-2017, those close to the plaintiff showed discernible changes in his behaviour and demeanour.
[114] The LGAQ president Mark Jamieson described that the plaintiff was incredibly active and engaged in his role. But, after July 2017, he noticed that the plaintiff became preoccupied with social media attacks, leading to weight gain, decreased focus, and mental health struggles, eventually requiring him to take time off work.
[115] Sharon Lee, his partner, described him as confident, outgoing, and happy-go-lucky, someone who enjoyed work, social activities, and time with their dog. She witnessed the plaintiff at home, and described how the once outgoing and confident man became increasingly introverted, short-tempered, and focused solely on social media posts after the middle of 2017. He started having severe nightmares and began drinking excessively, and his verbal aggression, which had never been directed at her before, became a new and troubling issue. The ongoing litigation further deepened his observable helplessness and frustration, adding to his already emotional and psychological tension at home. Indeed, by the ninth day of the trial, I saw that the plaintiff appeared exhausted and testified that he experienced dreams the previous night, leading him to take extra medication.
[116] Cara Hughes, who worked with the plaintiff at LGAQ as a Human Resources Officer, described him as an innovative leader with an open-door policy, showing care and compassion toward his staff. In about late 2017, she noticed a decline in the plaintiff's enthusiasm and energy, linking it directly to online harassment. The plaintiff became quieter, more serious, and easily frustrated, eventually stopping his lunchtime exercise routine.
[117] Similarly, Bronwyn Browning, his executive assistant, remembered him as a fun and passionate character who thrived on stress and maintained a personable demeanour with his team. After the Facebook posts commenced to appear Ms Browning described an "absolutely different man". She saw that the plaintiff became frazzled,

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[118] Alan Morton, a longtime friend, recalled that the plaintiff was intellectually astute, energetic, and physically active. After July 2017, he noticed that the plaintiff became less socially engaged, gained weight, and seemed stressed, which concerned him greatly.
[119] A failure to apologise is also relevant in assessing injured feelings or personal hurt and distress for ordinary compensatory damages,64 and such harm is more likely the longer an apology is delayed, if at all by the end of trial.65 By s 20 of the Act, an apology does not affect liability. Compensatory damages consider the perpetuation of defamation during litigation and trial publicity. Failure to apologise before judgment also affects damages.66
[120] Except for the 14th Lyn O'Connor Publication, the first defendant has not apologised for the defamatory publications for which she was found liable in late 2020. The first defendant claims she always intended to apologise, but this was not conveyed through her lawyers. She explains that, as a self-represented party, she became overwhelmed by the proceedings and needed to focus on managing her mental health. During her testimony, she expressed regret but more so for her own predicament rather than true contrition acknowledging the impact of her publications on the plaintiff, whom she views as driven by anger and retribution rather than experiencing genuine personal hurt and distress. While I accept that the first defendant genuinely intended to apologise but for the hindrance of legal deadlines or personal health, those personal barriers are not to the point since they do not change the harm sustained by the plaintiff because he was unaware of her internal struggles until her testimony. Instead, I think the plaintiff's distress is likely worsened by the first defendant's failure to apologise, prolonging his suffering. This is also relevant to aggravated damages.
[121] The fourth defendant has never apologised to the plaintiff. He expresses regret about having to come to court despite removing all his publications under his control shortly after being served with the initiating proceedings. And, even though he initially proffered an apology, he asserted in cross-examination that he was no longer willing to do so. The fourth defendant did his best to manage the proceeding attended by his full-time carers attending to his needs as a wheelchair-bound quadriplegic. He conducted his case during the hearing with a disciplined and narrow focus on his pleaded defence, which has achieved partial success. Although these defences do not preclude an increase in compensatory damages due to the failure to apologise, I do not accept the plaintiff's assertions the first defendant has acted objectively, improperly, unjustifiably and lacking in bona fides. It seems to me that the plaintiff's distress has been worsened by the lack of apology, prolonging his suffering. This is also relevant to aggravated damages.

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[122] The plaintiff also relies upon the anxiety and uncertainty experienced during litigation,67 including media coverage of proceedings.68 The case received significant media attention due to the defamatory "Jabba the Hutt" meme, with articles in various mainstream media like Courier Mail, Brisbane Times, and Cairns Post, which fuelled and amplified the defamatory slurs. This publicity exacerbated the plaintiff's distress by making the defamatory content more widely known and publicising his personal issues, including incorrect accusations of ulterior motives. The pre-trial phase of case management lasted over 3.5 years, including a delay in interlocutory judgments of 8 months before the 30-day trial, which spanned over 12 months, and this judgment took over two years. All of this is longer and more fragmented than typical defamation cases. It was apparent that the delay and extended process increased the plaintiff's stress and uncertainty, especially observable over the broken eight days that the plaintiff testified all while on his prescribed psychiatric medication. Various factors contributed to this length, including unnecessary cross-examinations and witness testimonies, as well as an eight-month delay in a critical judgment. I accept that the prolonged proceedings have added to the plaintiff's distress, warranting increased compensatory damages.
[123] In my view, the plaintiff's psychiatric condition was materially caused by the defamatory publications. The resultant diagnosis of Major Depression with Anxious Distress (Recurrent) was manifested by psychotic dreams, nightmares, and thoughts of death or suicide. This psychiatric harm is not too remote. While his pre-existing vulnerability contributed to the recurrence of his condition, the evidence shows he had fully recovered from previous episodes before these publications triggered its return in about September or October 2017, and it is unlikely to abate until he receives a judgment that vindicates his reputation. Under the eggshell skull rule, the defendants are liable for the damages caused, regardless of the plaintiff's prior susceptibility. Additionally, the plaintiffs also suffered other physical health deficits for at least five years and eight months, for which the defendants are responsible.
[124] Additionally, the plaintiff's prolonged hurt and distress must be evaluated in the context of several factors. These include the lack of a genuine apology from the first defendant, with the inadequate exception of one instance, and the absence of any apology from the fourth defendant. The defamatory imputations, which were false, serious, numerous, and persistent, compounded the plaintiff's distress. The anxiety and uncertainty caused by the lengthy litigation, the substantial media attention, and the plaintiff's concerns about the wide-reaching effects of the defamatory publications all aggravated his suffering.

[338]

[129] The gravity of the allegations against the plaintiff lies in the imputations themselves,79 rather than in the broader context or specific features of the publication. In this case, the imputations attribute serious wrongdoing, misconduct and corruption, with both explicit and implicit suggestions that the plaintiff is unfit to hold the office as CEO of the LGAQ from which he earns his livelihood. This makes the defamatory meanings particularly severe, more so than what might typically be conveyed by a publication.80
[130] It seems to me that the first defendant's defamatory imputations are highly damaging, portraying the plaintiff as a corrupt crime boss who used his position as CEO of the LGAQ to create a cartel and criminal empire. The imputations accuse the plaintiff of manipulating public officials, covering up systemic corruption, and undermining local government integrity. Further, the allegations suggest that the plaintiff's actions were driven by self-interest, greed, and an abuse of power, tarnishing his professional and personal reputation. They also link the plaintiff to serious criminal activities, including influencing investigations and associating with corrupt individuals, ultimately calling for investigations by law enforcement and anti-corruption bodies. These imputations gravely attack the plaintiff's character, integrity, and leadership. The 1st to 13th Elizabeth Kennedy publications and the 1st to 13th Lyn O'Connor publications are seriously defamatory. These imputations portray the plaintiff, in his role as dishonest, immoral, and even corrupt, such that he should be investigated for criminal conduct. They also question his care for Queenslanders, local government staff and ratepayers, attacking his courage by calling him "gutless" and his competence by labelling him "an idiot". These defamatory statements strike at the plaintiff's personal integrity, professional reputation, and honour, affecting the core attributes of his personality and his career-long dedication to local government. The defamatory imputations in the 14th to 23rd Lyn O'Connor publications are less strident than the earlier publications. They imply suspicion about the plaintiff's alleged association with local government officers involved in corruption through shared racehorse ownership; thereby impacting his enjoyment in the racing industry. These publications suggest he should be investigated by law enforcement and a parliamentary committee. The publications do not qualify the accusations, but such loose talk of suspicion erodes their sustainability, which I do not think is affected by the first defendant's wavering apology. The cumulative effect and repetition suggest a sustainable suspicion of the plaintiff's corruption, especially since readers likely saw earlier defamatory publications. Although the 18th Lyn O'Connor publication clarifies that the plaintiff himself is not corrupt, it still implies that the LGAQ

[342]

[131] Collectively, the imputations found against the fourth defendant add little when compared to the gravity of the first defendant's publications. However, they are especially damaging as they come from a state parliamentarian, lending them increased authority and public impact. They accuse the plaintiff of corrupt behaviour, misuse of power, and obstructing proper scrutiny in the stewardship of the LGAQ. The allegations suggest that the plaintiff, as its head, contributed to widespread corruption and victimised decent people in government. These claims imply that the plaintiff, along with others, is deeply entrenched in unethical practices and should face accountability and government action for contributing to systemic corruption. The force of these accusations is amplified by the public call for accountability, reinforcing their commitment and severity of the misconduct.
[132] The falsity of serious defamatory imputations, when known to a plaintiff, amplifies the plaintiff's hurt feelings and distress, and the defendants' respective lack of an adequate public apology or retraction also increases the need for vindication damages to denounce the defamatory statements publicly.81
[133] The extent of a publication is significant because a defamatory statement has a greater potential to cause harm when it reaches a larger or repeated audience. The extent of the first defendant's publications on Facebook depends on the nature and extent of the readership for each specific group or page. However, serious harm can still occur even when the publication is limited to a smaller group, depending on the recipients' identity, circumstances, and relationship with the plaintiff.82
[134] The plaintiff relies on the expert evidence of Dr Satchell to contend for a combined readership of the initial publications within a closed group and a greater passive readership via designated public platforms of public and open groups and public and open pages.
[135] On the contrary, the first defendant argues, exemplified by comment comprising the 17th Lyn O'Connor Publication, that the plaintiff's estimates of publication are erroneous, baseless and overstated despite the evidence available on the face of the publications at the time of the claim and/or deletion screenshots in evidence. The defendants dispute this scope of readership in reliance on expert evidence of Mr Khaliserad. Mr Khaliserad is a "cybercrime expert", who at the time of his evidence, held a diploma in Project Management, was an undergraduate with a Bachelor of Laws and demonstrated 25 years of experience in the technology industry. However, I think his credibility is fatally impacted by his connections to the 'ICAC Now' anti-corruption campaign and his personal social media interactions supporting the defendants' causes and apparent aversion to the plaintiff and the LGAQ. I got the strong impression that he acted more like an advocate for the defendants than an objective, independent, reliable expert witness. Despite assurances of separating these personal matters, they appear to have influenced his

[346]

[136] Dr Satchell's background in human-computer interaction, evidenced by her PhD from RMIT University, made her a credentialed expert on Facebook technology and user interactions. Her reports show a careful and measured approach, appropriate for an independent expert. I accept Dr Satchell as an honest and reliable expert witness and prefer her evidence over that of Mr Khaliserad where their opinions differ. However, I have some reservations of aspects of the report which are less factually founded, by the nature of the subject, and too speculative.
[137] Facebook is a social media platform that connects users online, allowing them to interact individually, in public or in a group. Unlike traditional newspapers, which are printed and distributed physically, Facebook is digital and accessible from anywhere with an internet connection. Traditional newspapers provide curated news and articles on various topics, usually published daily or weekly, while Facebook allows users to interact dynamically, see updates as they happen, and engage with a wide range of content from friends, family, and public figures.
[138] An entire thread comprising the original post, comments, and replies, might not always fit within the scrolling frame. To view additional comments and see the full interaction history, readers must click the "View More Comments" button as they scroll. The rate at which users scroll and their tendency to pause for specific content, including images, can vary. According to Dr Satchell, Facebook users, on average, scroll through a piece of content every 1.7 seconds. The algorithm tracks where users pause and adjust the content shown based on their interests. By default, Facebook's "View Most Relevant" setting displays selected comments and replies that are considered most interesting and relevant to the user. If only part of a longer post or comment is visible, users need to click the "See More" button to read the entire text.
[139] Relevant here, whilst the Council Watcher's Queensland group (or CWQ group) is a closed Facebook group with 235 members as of 27 October 2017, the disputed publications were variously published on the following platform accessible to any internet user.

[358]

[147] Dr Satchell emphasised that the metadata often underestimates true readership on social media, by capturing only user-active interactions, but not passive readers, multiple people sharing a single screen and readers who want to remain anonymous. She also emphasised that replies to posts, whether immediate or delayed, indicate active engagement with the original content and preceding comments, and tagging someone after a post's publication extends its reach, drawing new participants into the conversation. Dr Satchell also pointed to research showing that people are more likely to speak up on social media if they believe others agree, which was fuelled by the first defendant's self-consensus.
[148] I agree with the plaintiff's contention that the readership of the closed group, Council Watcher's Queensland Facebook page must be assessed differently from public groups and pages, as its content is only accessible to its members. It is argued that individuals who join such groups are likely regular readers, akin to regular newspaper subscribers, with the added convenience of mobile alerts. As of 27 October 2017, Council Watcher's Queensland group had 235 members. However, specific posts had varied "seen by" figures, ranging from 100 to 144, indicating different levels of engagement. Dr. Satchell suggested these figures represent the minimum extent of publication, acknowledging that metadata may underestimate passive readership. Therefore, the plaintiff submits that the readership of CWQ posts should be estimated between the "seen by" figures and total membership, with an average readership of 130 persons per post considered fair to both parties. I agree.
[149] In any event, the plaintiff submits that the readership of an open Facebook group is likely to exceed its membership numbers significantly. It is argued that posts and comments can be read without interaction, meaning that traditional data analytics focused on "clicks" do not accurately represent actual readership. It is contended that passive reading is more common than active participation, especially in controversial or political groups. Consequently, the plaintiff asks the court to draw the inference that in open groups, the number of mere readers may be ten times greater than the group's membership. In support of this 'conservative' extrapolation, the plaintiff points to Dr Satchell's collation of metadata for the 3rd Rob Pyne Publication which shows a disparity of 8063 viewing (by clicking) the 3rd Rob Pyne Publication compared to a mere 409 active interactions comprising the 257 Likes, 30 Responses, 30 later Comments on the thread, 85 later Likes on the thread, no Shares, and 3 tags.
[150] Using the 10-fold rationale, the plaintiff submits for the following readership figures for various Facebook groups and pages where the first defendant's publications appeared:

[360]

[151] The first defendant submits that the plaintiff's methodology to determine the publications' reach is misleading, erroneous and unsupported by evidence. She asserts that the plaintiff misdescribes posts and comments and fails to appreciate the treatment posts with comments that are further down in the thread. Furthermore, the first defendant contends that the plaintiff's estimate of the publication's reach is erroneous, exaggerated and unsupported by evidence, as exemplified by the estimated reach of 37,400 attributed to the Gympie Regional Forum. She argues that while the group may be public and discoverable, participation requires membership approval, and the publication in question is a comment, not a post. Comments, unlike posts, are not automatically visible to an ordinary reader unless they specifically choose to view all comments within a thread. The first defendant submits that only one person likely saw such a comment, and therefore, the estimate of its reach should be closer to two views at most, but definitely in the single digits, rather than the 37,400 claimed by the plaintiff.
[152] I do not accept the rationale and analogy used for the first defendant's publications or even the fourth defendant's publications. It seems to me that the plaintiff's contention that the overall readership is likely to be of 10 times greater than the group membership is an overreach and not representative of the likely readership of the open groups because of the political and idiosyncratic nature of those other pages and groups associated with the first defendant's publications. Further, I think 3rd Rob Pyne's publication on the fourth defendant's page is not a useful guide or analogy for the other groups. The fourth defendant's role as a member of the Queensland parliament provides for dedicated political popularism on his page, but even this can be contrasted with the much lower figures for the 2nd, 4th and 5th Rob Pyne Publications. Likewise, there are variable levels of interaction and popularism of the other groups associated with the first defendant's publications. It is apparent that even the like-minded group members, likers or followers do not actively engage with all posts, and the metadata shows a real and significant disinterest in the publications compared to the membership base.
[153] The true extent to which a publication is seen, including any deliberate interactions, is impossible to quantify with any tolerable degree of certainty. There are many variables and uncertainties at play for each separate publication and platform due to the nature, viewability and longevity of the publication, attraction of sensationalist content and memes, nature of the group or page and whether it is public/open or closed, membership of a particular group, notifications and feeds to members, scroll speed, individual user notification settings, the level of actual interaction relative to that membership, allowing for inactive members and passive and casual readership and likely overlap of readership across all publications. And the list can go on.
[154] It seems that extrapolating the metadata with generalised user behaviour to estimate a broader passive readership across various and disparate groups is fraught with guesswork, impermissibly speculative, and not sufficiently supported by Ms Satchell's expert knowledge, which has a limited factual foundation.
[155] Therefore, for the extent of the first defendant's publications on the Council Watcher's Queensland closed group, I will allow the "seen by" numbers for the disputed publication or a related next or later publication. But for public groups and pages the exercise is far more uncertain. However, I think the known human behaviour within a focused and dedicated closed group also provides useful insight into the active and passive readership in open public pages and groups. It seems to me it is unlikely that more than 50% of the mean of the membership of those other public and open groups and pages saw the first defendant's publications.
[156] Therefore, the highest extent of the original publication can be represented as follows:

[366]

[160] The plaintiff also seeks a substantial allowance be made in the assessment of damages for the "grapevine effect".
[161] The "grapevine effect" merely acknowledges that defamatory material often spreads beyond the original audience;83 but it is not a legal doctrine.84 The plaintiff has adduced evidence that further dissemination is a natural and probable result of the original publication,85 and relies upon direct witness testimony and inferences from the nature and context of the defamatory statement. The use of the social media platform of Facebook amplifies this effect, making defamatory content more portable and widely disseminated than traditional forms.86
[162] Dr. Satchell identifies several key features of Facebook that amplify the grapevine effect. She explains that Facebook collapses barriers of time and space, enabling instant content sharing and consumption, especially through mobile devices. This continuous accessibility enhances the rapid spread of information. She highlights the platform's simple, intuitive interface, where users can easily share posts and tag others, creating an ideal environment for accelerating content dissemination. Dr Satchell also emphasises the concept of social proof, where users feel compelled to share posts they believe serve a common good, even if the information is unverified. This psychological effect further drives rapid sharing. Additionally, she notes Facebook's reinforcement algorithm, which promotes content that receives interactions, reinforcing the original message and encouraging further sharing, often creating an echo chamber effect. Anonymous sharing also plays a role, allowing users to distribute content without direct attribution, extending its reach across multiple platforms. Finally, Dr. Satchell observes that Facebook content often extends beyond the platform, persisting online even after deletion, which allows information to resurface and continue circulating. These features make Facebook a potent tool for accelerating the grapevine effect.
[163] It seems to me that the natural and probable result in the circumstances of this case is a significant grapevine, which is spread by sharing and media coverage and continues due to this proceeding.
[164] The original publications occurred in a public context, making it highly likely that the defamatory content would spread widely, unlike in private or confidential situations where the grapevine effect is less probable. All publications took place on Facebook, a platform that inherently enhances the grapevine effect through its design, allowing users to share content easily, especially on open groups and public pages. Although sharing is restricted in closed groups like Council Watcher's Queensland (here with no sharing button), members can still spread content to other platforms, often anonymously through screen captures.

[376]

[167] Once shared, posts and comments can be re-shared instantly, further amplifying their reach. Sensational headlining and memes, like the Jabba the Hutt caricatures, also contributed to the spread of defamatory content. I accept that deleted posts can also resurface online, allowing the content to continue circulating. The public standing of both the fourth defendant (much more so than the first defendant), consistently with the evident interaction, likely increased the grapevine effect of his publications, making them more influential and likely to be repeated. The sharing activity is minor in the context of the overall likely readership of those publications.
[168] In the circumstances of this case, I think the natural and probable result is a relatively minor grapevine effect for the publications, and I do not agree with the plaintiff's contention that it is substantial.
[169] I conclude that the plaintiff had a good, settled reputation established throughout his life, both in public and personal spheres. There are cases where a plaintiff's reputation can be considered as the essence of their life, and this is one of those cases. The plaintiff's reputation for integrity and competence, especially in advancing the interests of local government, was built over many decades. This is reflected in Mr Jamieson's testimony, where he noted that the plaintiff saw his reputation as paramount, emphasizing the trust he had earned from 77 councils, mayors, and other officials over nearly 30 years. This highlights the value the plaintiff placed on his reputation for fairness, equity, and doing the right thing in the context of local government.
[170] The law rightly places a high value on reputation, particularly for those whose work and life depend on their honesty, integrity, and judgment. This observation applies to the plaintiff. A reputation of this calibre, because of its brightness, is more vulnerable to being tarnished. For someone who has worked hard to build such a reputation, any damage to it can cause greater personal hurt and distress, as it leads to constant worries about what others think of him, regardless of whether those thoughts are outwardly expressed.
[171] The gravity of the defamatory imputations in the first defendant's publications (the 1st through 13th Lyn O'Connor publications and the 1st through 13th Elizabeth Kennedy publications) was not at the extreme level of depravity. However, collectively, they were still very serious. These false accusations struck at the core of the plaintiff's persona, which he had legitimately built through his hard work. Similarly, if the defamatory imputations against the fourth defendant are established, they are equally grave and highly damaging to the plaintiff.
[172] As for the 14th to 23rd Lyn O'Connor publications, while the defamatory imputations for which the first defendant has been found liable are not as severe as in her earlier publications, they are still significant. The exception might be the imputations in the 18th Lyn O'Connor publication, which, due to a qualifying statement, should be seen as only moderately serious - indicating incompetence rather than unforgivable corruption.
[173] In the case of the first defendant, the extent of publication, with the exception of the 17th Lyn O'Connor publication, should be considered significant rather than substantial. However, collectively, the common themes across her publications, along with the clever use of memes, increased the reach of the defamatory content, even among the original audience. In contrast, the fourth defendant's publications should be considered to have been substantial, though not overly large, in their reach.
[174] The "grapevine effect" of these publications, given their mode and manner, should be recognised as having amplified the damage to the plaintiff's reputation, spreading the defamatory content beyond its original audience.

[385]

[179] Pursuant to s. 36 of the Act, the court must "disregard the malice or other state of mind of the defendant at the time of publication of the defamatory matter ... or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff". It is in the latter sense that the plaintiff claims that each defendant's conduct has been improper and unjustifiable.92 Even so, it is only to the extent that a plaintiff apprehends a defendant's malice or other state of mind and his awareness that aggravates the sense of hurt for him.93
[180] The first defendant's testimony, while in my view honest, may be unreliable due to her mental health and fatigue throughout the trial. The first defendant voluntarily assists the fourth defendant as a member of the State Parliament in circumstances of his independent candidacy, disability, limited funding and staff. Her conduct, including using a pseudonym online and making derogatory comments, poorly reflected her strong and misguided belief in her anti-corruption cause generally, not merely focused on the plaintiff, and her sense of rectitude influenced her perception and presentation of events. While there was obvious orchestration, it was more so focused on broader local government misconduct and establishing an anti-corruption body, rather than a focus on the plaintiff. Nevertheless, he was the human embodiment of the LGAQ as its head and oversaw its perceived role in local government administration.
[181] The first defendant failed to make inquiries of the plaintiff before publishing defamatory material, which is accurately characterised as malicious, high-handed, oppressive, insulting, and offensive. They were extravagant and sensationalist, forming part of an orchestrated attack aimed at broader unethical and improper conduct within the local government sector, which necessarily included the plaintiff as the chief executive officer and public face of the LGAQ. Furthermore, the defendant's use of a false identity, under the name Elizabeth Kennedy, was improper, unjustifiable, and lacking in good faith. In addition to these actions, the defendant improperly pleaded several defences, including justification, contextual truth, triviality, honest opinion, which defences were later abandoned but not before resistance and latterly a strike-out application. The defendant's apology was

[393]

[186] Like the first defendant, the fourth defendant also failed to make any inquiries with the plaintiff before publishing defamatory material, despite being aware of the potential damage and their personal connection. The publications were high-handed, oppressive, insulting, and offensive, insinuating that the plaintiff was within a class of corruption without explicitly naming him. The defendant further tried to halt or defund the plaintiff's legal proceedings by sending self-serving and manipulative letters to both the plaintiff and a public official. In addition, the defendant mocked the plaintiff through social media posts, which sounded in an interim injunction being made against the fourth defendant. Whilst there was potential for the conduct to impact jury selection, it was, nevertheless, a matter for the plaintiff to elect a trial with or without a jury. However, he continued to breach the court's orders by publishing defamatory material, demonstrating a deliberate disregard for the legal process. The fourth defendant also attributed other motives to the plaintiff for bringing the legal proceedings, which I do not think was improper, but in an effort to comply with the rule in Browne v Dunn to give the opportunity to the plaintiff to respond to the allegations, which were rejected.
[187] While it might be inferred that some or all the aggravating conduct of the first and/or fourth defendant exacerbated the harm inflicted on the plaintiff, it is difficult to discern any increase in his personal hurt and distress or his reputational damage due to his awareness. It seems to me that their respective actions likely worsened his distress by continually intensifying their resistance to any acknowledgment or apology of their folly. In the case of the first defendant, her aggravating conduct formed a continuous stream, leaving the plaintiff with no respite from his psychiatric condition and ongoing hurt. The fourth defendant compounded the hostility and likely impacted the plaintiff by the social media campaign from May 2021.
[188] I will apportion aggravated damage at 20% of the non-economic loss in respect of each defendant.

[398]

[193] Circumstances of individual defamation cases widely vary, however, some careful guidance for awards can still be gleaned from closely comparable cases.96
[194] O'Reilly v Edgar [2019] QSC 024 involved 10 Facebook posts between January 2016 and September 2018, in which the defendant severely criticised the CEO of a karting organisation. The plaintiff, with a good but niche reputation in sports administration, particularly motor sports, was deeply affected emotionally by the posts, especially as a cancer survivor. Despite no recognised psychiatric condition being diagnosed, the plaintiff required several months of psychiatric care. The defendant, self-represented at trial, was aggressive and callous in his conduct. The Court recognised significant publication within the karting community and the grapevine effect, awarding the plaintiff $250,000 for ordinary and aggravated compensatory damages. Bradley J discussed other relevant cases where social media publications led to damages ranging from $150,000 to $480,000, depending on the severity of the defamatory imputations and the extent of publication.
[195] In Oskouie v Maddox [2019] NSWSC 428 the defendant described the plaintiff as an "Islamic hacker" and "international criminal" through emails and website publications, reaching approximately 75,000 people. The grapevine effect was significant, and the plaintiff lost his job as a legal practitioner due to the defamation. The Court awarded $425,000 in ordinary and aggravated damages and $450,000 for economic loss.
[196] In Webster v Brewer (No. 3) [2020] FCA 622, Dr Anne Webster and her husband, Dr Phillip Webster, were defamed in a series of Facebook posts and videos accusing them of heinous criminality. Although many might dismiss the posts as lacking credibility, they were still considered damaging to certain members of the Mildura community. Both plaintiffs suffered intensely, with Dr Phillip Webster experiencing physical symptoms of anxiety. The Court awarded Dr Anne Webster $350,000 and Dr Phillip Webster $225,000 in ordinary and aggravated compensatory damages.
[197] In Nettle v Cruse [2021] FCA 935, a plastic and reconstructive surgeon was defamed on multiple websites, including a false site created in his own name. The defamatory statements accused him of being a fraud, liar, and incompetent doctor. Although no recognised psychiatric condition was diagnosed, the emotional toll on the plaintiff was extreme, warranting an award of $450,000 in damages.
[198] In Colagrande v Kim [2022] FCA 409, a cosmetic doctor practising on the Gold Coast was awarded damages for non-economic loss, including aggravated damages for

[402]

[199] These cases involve a serious level of hurt and distress suffered by the plaintiff, which all except Nettle v Cruse, led to a recognised psychiatric condition, and all involved a significant duration of suffering. It seems to me that the circumstances, in this case, suggest a global award in the order of $400,000 for damages for non-economic loss, including aggravated damages. There is persistent conduct by the first defendant but not so by the fourth defendant; the gravity of the imputations is significant, and there is considerable media attention on the political discourse, which was much broader than the disputed publications. And the publications had a relatively limited reach with an undefinable amplification by the grapevine effect to some degree.
[200] The plaintiff conceded that this case is less serious than Barilaro v Google LLC [2022] FCA 650 where the plaintiff, a former Deputy Premier of New South Wales, was awarded $675,000 for ordinary and aggravated compensatory damages. He was defamed in two YouTube videos produced by an individual and published by Google, who failed to remove the videos despite being notified of their defamatory content. These videos contained severe defamatory accusations, including corruption, perjury, blackmail, and theft. The relentless and abusive nature of the campaign left the plaintiff emotionally broken, leading to his resignation from Parliament. Despite the severe impact, the judgment does not note any medical evidence of a recognised psychiatric condition resulting from the defamation. The period between the first video and the judgment was nearly one year and nine months. While this case involves extensive publication and serious imputations, it is argued that the damages awarded in this case should not exceed the $675,000 awarded in Barilaro v Google LLC for ordinary and aggravated compensatory damages. This case provides no useful comparative value.
[201] Likewise, the first defendant contrasted the circumstances of this case with that of Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; [2018] 56 VR 674, where damages were reduced and released on appeal to $600,000 for non-economic loss. This case also has no comparative value.

[413]

[211] There is a risk that the first defendant will publish similar defamatory material in the future. This risk is evidenced by 38 separate publications, some of which occurred after the proceedings began, and the fact that nine of these publications remain undeleted. This ongoing infringement indicates a likelihood of continued defamation. Additionally, the first defendant has not adequately apologised for the actions, nor has there been an undertaking not to republish defamatory content. The first defendant continued to assert that the plaintiff has engaged in malicious misconduct by bringing this proceeding, suggesting an ongoing risk of defamatory behaviour. The future intentions and capacity to continue using Facebook are also uncertain. The first defendant has expressed a desire to reconfigure the social media presence, but a headstrong nature makes it prone to repeating defamatory actions. The first defendant's mental health issues have further compromised her ability to delete defamatory matters in a timely way. The presence of a permanent injunction could assist in resisting the temptation to defame the plaintiff in the future, even if mental health deteriorates. It is significant that continued defamatory publications would impede the plaintiff's mental health recovery. Without an injunction, the plaintiff would face the burden of pursuing further legal action, which may be unfruitful given the likelihood of future publications and the potential difficulty in obtaining damages.
[212] On the other hand, the first defendant has taken significant steps to change behaviour. Many of the defamatory posts have been deleted amidst complexities, and there has not been any publication related to the plaintiff since late 2019, demonstrating a consistent change in behaviour over the past four years. These proceedings have also been a significant source of strain and restraint. The first defendant misguided herself in her unrepresented capacity but seemed to act on legal advice when available and has made efforts to delete the complained posts. I accept that her continued publications from late 2019 was made under duress and during a period of mental health decline. The first defendant accepts a need to focus on health and personal well-being, about which she has shown genuine commitment during this proceeding, albeit also a period of mental health decline. The first defendant has apologised for the 14th Lyn O'Connor publication and expresses an intent to delete any remaining defamatory material when her health permits. The evidence and conduct since 2019 show a commitment to living a different life, free from the defamatory behaviour that led to the current proceedings.
[213] Weighing up these matters, it seems to me that the risk and gravity of the potential harm to the plaintiff justifies the imposition of an injunction, which would not impose an unfair burden on the first defendant but rather prevent the commission of wrongful acts on their part.
[214] Accordingly, I will allow the plaintiff's claim for a permanent injunction to prohibit future defamatory publication of and concerning the plaintiff.

At a glance

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Judgment (417 paragraphs)

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Legislation Cited (3)

Cases Cited (51)