Harrington v Shoard [2023] QDC 11

Harrington v Shoard [2023] QDC 11 | Case summary | Zoe

[43]

[1] The plaintiff, Joseph Harrington, seeks damages for defamation under the Defamation Act 2005 (Qld) (the Act) against the defendant, Stephen Shoard, in respect of four alleged defamatory statements; the first being contained in a sign erected on the defendant's property and the other three being oral statements alleged to have been made by Stephen Shoard to third parties. Mr Harrington also seeks injunctive relief against Mr Shoard restraining him from publishing further defamatory material.
[2] Joseph Harrington and Stephen Shoard lived on the same street in a cul-de-sac at Logan Village. Their properties were diagonally opposite each other. Both had been living at their current properties in excess of 15 years. Mr Harrington and Mr Shoard were never friends and the two families were constantly feuding.
[3] At the hearing, Mr Harrington gave evidence and called his wife, Carolyn Harrington, and Coralyn Cowin, who was the curator of the Museum at Logan City and to whom the fourth alleged defamatory statement was made. Character evidence was given by long-standing family friends, Andrea Wildin and Vanessa Brunelli.
[4] Mr Shoard gave evidence and called his wife, Annaliza Shoard, and his neighbours, Kim Horne and her daughter, Demi Horne.
[5] Following the close of the plaintiff's case, an application was made by the plaintiff to re-open their case for the purpose of calling Nisse Cavanagh, whose alleged complaint to the Shoards of a 'touching' by Mr Harrington gave rise to Mr Shoard's alleged references to Mr Harrington being a 'paedophile'. The granting of the application to call Nisse Cavanagh resulted in the defendant being permitted to call Katie Shoard, the daughter of Mr Shoard.
[6] In December 2022, following notification to the parties that judgment was to be delivered, the legal representatives for Mr Shoard gave notice of an intention to make an application to re-open. That application was granted and resulted in the admission into evidence of a Titles Office search showing that the plaintiff's property was transferred on 28 February 2022, four days after the conclusion of the initial hearing. The plaintiff was invited to call additional evidence to explain the sale and his earlier evidence but declined to do so.[1]

[48]

[9] It was alleged the words on the signs conveyed that the plaintiff is a paedophile and had been trespassing on to the defendant's property. The focus of the evidence at the trial was on the words, "keep your paedo mate on your side."
[10] Photographs were tendered as to the location of the signs on the Shoards' property. The signs had been placed so as to face the property on the northern boundary of the Shoard's property. The adjoining property was a property rented by Anthony (Tony) and Kim Horne.
[11] There was some dispute as to whether the signs directly faced the adjoining property or were slightly angled towards the street. It was not disputed, however, that the signs were a considerable distance in from the street frontage. Mr Shoard's evidence was that the signs were placed some 36 metres in from the Storey Road boundary of the Shoards' property. Mr Harrington's evidence was that the signs were about 40 metres in from the entrance to the Shoards' property.
[12] In his evidence in chief, Mr Harrington said that the signs were able to be seen at the entrance of the property and were able to be read from the street. Though he conceded that the corrugated iron one was difficult to read, he still maintained that "it was legible." In cross-examination, Mr Harrington insisted that both signs were able to be seen from the street, though he denied that he ever said that he could see the writing on the corrugated sign from the street but rather said only the writing on the cardboard sign. Mrs Harrington maintained throughout her evidence that you could read both signs from the street.
[13] The corrugated sign, containing the words, "paedo mate", was brought into court and viewed by me. The words on that sign would not have been able to be read by anyone using the street, nor anyone walking along the footpath past the properties of the Shoards or the Hornes. Likewise, I consider that it would have been difficult to read the words on the cardboard sign. Indeed, no evidence was led from any independent witnesses. I do not accept the evidence of Mr and Mrs Harrington which suggests otherwise.
[14] The words on the sign would have been able to have been read by the Hornes and any visitors to the Hornes' house if they walked towards that boundary of their property. It is accepted that at most the signs remained erected for two to three days and it is not suggested there were any visitors to the Hornes' house in that period.
[15] Mrs Kim Horne gave evidence of having read the sign the day that it was erected. Kim Horne said she just laughed at it and actually thought Mr Shoard was "calling me a geriatric." When she referred to the words on the sign, "paedo mate", she said it was not until Carolyn came over and Carolyn said to her that the sign was referring to Joe that she realised the contrary. She accepted, however, in cross-examination, that she then subsequently asked Mr Shoard, "Why are you saying those things about Joe"; implicitly accepting, at least at that time, that the sign was a reference to Mr Harrington.
[16] In giving his evidence in court, for the first time, Mr Shoard said that the sign was not intended to refer to Mr Harrington. He said that the sign referred to a male visitor to the Hornes' house, who he subsequently found out was the son of the Hornes, with whom he had had an argument "a night or two before" and he was "trying to provoke him". In evidence in chief, he had then said, "I was scared...I needed everything to end, and I put those signs up because I thought, 'Well, here we go.'"
[17] Mr Shoard also said there was a separate altercation, a day or two before the signs went up, involving Mrs Harrington and Kim Horne slashing a tarp which had been erected on the Shoards' property. Police became involved and Mrs Harrington was prosecuted and required to buy a replacement tarp. Mr Shoard described himself as being scared after that incident.
[18] Mr Shoard said that it was after that incident that the argument had broken out with the male visitor, following which the signs were erected. Mr Shoard said that the argument occurred the night the Hornes' grandson got pricked by the dragon fruit being grown by his wife on the Shoards' property. The dragon fruit was being grown on the boundary of the property adjoining the Hornes' property.
[19] He said his wife went out there and there was a yelling match. He said that he told her to come inside. He said his wife lost it and he said that was when he went out. In the course of the argument, the male visitor had said to him, "Don't go to sleep. We're going to come and knife you." In cross-examination, Mr Shoard said the words used were, "Don't go to sleep. You're going to get cut." Mr Shoard said he had "baseball bats all around the house and hammers around" because he expected to be "knocked over during the night." Mrs Shoard gave evidence to a similar effect.
[20] Mr Shoard said he wanted to inflame the guy. He said, "I just needed to put something on the sign, and that went up." He said he used the word, "paedo", because that "would inflame anybody." He said, "That's why we're here. It's a pretty strong word." He said that he thought the sign "might antagonise" and said that "I was at the end of my tether."
[21] The explanation given by Mr Shoard was inconsistent with the statements made in response to the Concerns' Notice and inconsistent with the defence filed. It was inconsistent with the discussion the day following the erection of the signs, which was recorded on the video footage taken by Mr Harrington on his phone; the subject of the alleged first defamatory statement which is detailed in considering that statement.
[22] The story told by Mr and Mrs Shoard to explain the sign was so bizarre as to be unbelievable. Clearly it was recently invented to justify the sign. Even if I were to accept that these incidents occurred, the placing of the sign is really inexplicable. The manner in which the story unfolded added to my disbelief in the honesty of Mr and Mrs Shoard.
[23] I do not accept the evidence of Mr Shoard of the reference to "paedo mate" being directed towards the son of the Hornes; rather than Mr Harrington.
[24] I do not accept the evidence as to what Kim Horne thought at the time she read the sign. At the time of the erection of the signs in August 2020, Kim and Anthony Horne were friendly with Mr Harrington and his wife, Carolyn. They visited each other on a regular basis. At that time, the Horne family were not friendly with the Shoards. That changed prior to this matter being heard in court. Whilst there is some conflict in the evidence as to when the Hornes and the Shoards became friendly, it is accepted that the Harringtons and the Hornes have not spoken since November 2020. It was clear from the evidence of both Mr and Mrs Shoard and Kim Horne that the Hornes and Shoards are now on very friendly terms. Although the word "paedo" was very difficult to read, it is unlikely that the sign, telling them to keep their mate on their side, could be construed as a reference to Mr and Mrs Horne themselves nor that the word could have been read as referring to a geriatric.
[25] I accept that the reference in the sign to "paedo mate" was intended by Mr Shoard as a reference to Mr Harrington and that when the sign was read by Kim Horne it was understood as that. There is accordingly sufficient publication for the purposes of the claim.
[26] I should make clear, however, at this stage that I do not accept that anyone else read or could read the signs before they were taken down, nor that other persons would have understood the words as referring to Mr Harrington. The sign was clearly directed to the immediate neighbours of Mr Shoard, namely the Hornes, to keep out of the property, and contained a reference to their "mate". There is no identification of their mate. Only those people who knew of the then friendship of the Horne and Harrington families could have considered that the person to whom the sign was directed was Mr Harrington.

[54]

[34] In giving his evidence, having seen the video, Mr Shoard accepted he had said those words. He said he was shocked. He said, "I didn't think that came out of my mouth but the video is irrefutable." He accepted that he had initially denied having said those words.
[35] Mrs Harrington explained that the video footage was taken to be possibly used against Mr Shoard when the opportunity arose. Mrs Harrington accepted she had taken videos of Mr Shoard before and accepted that she had reported Mr Shoard several times to the Logan City Council for illegally parking his trucks and other machinery on his own property. She said she had reported him because he had done the same to them.
[36] After the initial comment captured on video was made, Mrs Harrington told Mr Shoard to say the comment louder. She accepted that she wanted him to "say it louder to all and sundry."
[37] No independent witnesses gave evidence of having heard the exchange between Mr Shoard and Mrs Harrington. It was not suggested by Mrs Harrington that anyone else was present. Mr Shoard's evidence was that there was no-one else present that day.
[38] Mr Harrington gave evidence that his immediate neighbour, Mr Jeremy Carpenter, had called him a paedophile during a heated exchange which occurred whilst Mr Shoard and Mr Carpenter were on a scissor lift on Mr Carpenter's property. Mr Shoard was not asked whether such a statement was made, though he did say there was an exchange between the neighbours as a result of Mr Harrington filming Mr Carpenter's children having a ride on the scissor lift. Mr Carpenter was not called to give evidence either in support or rebuttal of the accusation, or the reasons for his alleged statement. If the statement was in fact made, then it may be inferred that Mr Shoard gave Mr Carpenter cause to make the statement, but there is no reason on the evidence to find that it arose because of the statement made by Mr Shoard which is the subject matter of the second defamatory statement; or, indeed, any of them.

[55]

[39] It is alleged that on 14 April 2021, in a conversation at the museum at Logan Village, Mr Shoard said to Ms Coralyn Cowin, the curator of the museum, that "Joseph Harrington molested his neighbour's 12 year old daughter."
[40] In his defence, Mr Shoard denied saying those words.
[41] Ms Cowin gave evidence of having met Mr Shoard once at the museum. She accepted it could have been 14 April 2021. She said she had just come out of her office and that she met him at the door. She said she couldn't get away. She said she remained in the hallway, facing her office.
[42] She said he was a bit upset. She said he was red in the face. She said he told her who he was. She said she knew the name because he was involved in the election for the council.
[43] She accepted that there was no-one else around. She said the other volunteers were down doing things and accepted that they would not have heard the conversation. She said, "So, I was up there on my own, which, you know, really kind of worried me when you've got someone standing in front of you that's got a red face and cranky."
[44] Ms Cowin said that Mr Shoard had said to her that his boss was not very happy because somebody who volunteered at the museum had said to him that he [Mr Shoard] was not a very nice man. His boss had said her name was Carolyn. She said there was only one Carolyn and so she asked, "Carolyn Harrington?" He said, "That's her." She said that he then went "on a bit of a tirade about Joe and how Carolyn was ruining his life." She said that he told her it had cost him a fortune. She said she thought the figure he had mentioned was something like $10,000.
[45] She said that Mr Shoard told her Joe had molested his 12 and a half year old neighbour and that he [Steve] had fixed it. When questioned in cross-examination, she accepted that he had said Joe had interfered with a 12 and a half year old girl neighbour and that Steve implied that he'd fixed that problem.
[46] Ms Cowin said later that night she told Carolyn Harrington about the conversation but did not talk to anyone else.
[47] Ms Cowin agreed that when she heard the comment about Joe Harrington that she did not believe it. She said when she had met Joe Harrington he was a good helper and a nice person. She said he was "always willing to help people out". When asked whether her opinion of Mr Harrington had changed after hearing the comment from Mr Shoard, she said, "No. Not at all."
[48] In giving evidence, Mr Shoard admitted he had had a conversation with Coralyn Cowin that day. He said he was working down at Logan Village that day doing some work for Hutchinson Builders. He said he was called into the site office by the site foreman. The foreman had said to him that some people had come over from the museum and made some pretty serious complaints about you.
[49] When asked whether he was told what was said, Mr Shoard said the foreman said that a woman came over and said "[you] are not a very nice person and there's not many people in the village that like you." He said the foreman said, "Can you tell me why we should keep you employed?" Mr Shoard said that he replied, "Mate, you've got to make your own decision on that. My work speaks for itself. I've got nothing to add. I really have got nothing to add."
[50] Mr Shoard did not accept that he was angry when talking to Ms Cowin and said "anger's a pretty bad word." He said, "I was just gobsmacked that she could go in there and see this bloke."
[51] Mr Shoard said that he then went over to the museum and had a conversation with Coralyn Cowin. He said he recognised Coralyn as he had seen her around the village. He said that he said to her, "I need to talk to you about an issue I have with Carolyn Harrington." He said Coralyn walked into her office and that he stood in the doorway.
[52] He said, Coralyn "sort of rolled her eyes" and said, "What has she done now?" He said that he said, "Look, she's been causing me a whole heap of grief for a long time." He said, "Can you get her to back off?" He said Coralyn said, "Why would she do that?" He said that he then said, "Well, it's sort of been going on ever since I've called the police over Joe." He then said, "There was a bit of an issue with a little girl next door." In cross-examination, he said that he was not even sure he said "12 year old" and that he thought he just said, "with the next-door neighbour's daughter".
[53] He denied that he ever used the word "molest".
[54] Mrs Harrington accepted that she had told Mr Shoard's boss that he was not a very nice person. She did not accept that she did it to affect his business or to get him sacked.
[55] There is no reason not to accept the evidence of Coralyn Cowin. It is impossible to accept that Mr Shoard, having been called into the site office by the foreman of his employee, irrespective as to what was said to him by the foreman, was not angry. I accept, as described by Ms Cowin, that he would have been red in the face and would have described the incident with the girl next door as it was described by Ms Cowin.

[56]

[56] It is well established that in deciding on the meaning of an imputation of a particular statement, the court has to ask what an ordinary, reasonable reader in the general community would understand the published words to mean. The ordinary reasonable reader is a person of fair, average intelligence who approaches the interpretation of the publication in a fair and objective manner, not overly suspicious, not 'avid for scandal', not searching for forced meanings and not naïve.[2] The person can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs.[3]
[57] The ordinary reasonable reader takes into account the forum in which the statements were published. The mode or manner of publication can affect what imputation is conveyed.[4] It is for the court to decide what meaning or imputation an ordinary, reasonable reader would have attached to the statements.
[58] The pleaded imputations of the defamatory sign and defamatory oral statements are that they convey that the plaintiff is a paedophile. 'Paedophile' is defined in the Oxford dictionary to mean someone who is sexually attracted to children.
[59] In relation to the third oral statement, it is alleged that it also conveyed that the plaintiff had sexually abused his neighbour's 12 year old daughter.
[60] In relation to the sign, it is alleged that it also conveyed that the plaintiff had been trespassing upon the defendant's land.
[61] I find that the sign containing the words, "paedo mate", would have been understood by Kim Horne (and any other member of the Horne house who read the sign) to have been referring to the plaintiff and that it conveyed that the plaintiff was a paedophile.
[62] I find that the imputations conveyed by the first oral statement with the use of the words, "he made me sit on his lap and he was touching me", were that the plaintiff was a paedophile. The statement clearly suggested that the plaintiff had inappropriately dealt with the child, and in so suggesting, would be undoubtedly taken to mean had been sexually inappropriate. If someone is sexually inappropriate with a child, that person is assumed to have a sexual interest in children.
[63] Likewise, I find that the imputation conveyed by the third statement that Joe had "interfered with his neighbour's 12 year old daughter" was both that the plaintiff was a paedophile and that he had sexually abused his neighbour's 12 year old daughter.
[64] The imputations conveyed by the second statement are plainly clear. The words were said to the plaintiff's wife and the wife was told to "get back in there with your paedophile husband."
[65] I do not find that the sign could be said to have conveyed that the plaintiff had been trespassing on the defendant's property. The words used on the sign in relation to "keeping out" were directed to the Hornes. Kim Horne gave evidence as having understood those words as having been directed to them.

[60]

[73] Although the section is headed, triviality, attention is to be directed towards the substantive provision: the section is concerned with the circumstances of the publication and whether the plaintiff was unlikely to sustain any harm. The circumstances to be considered include the context of the publication, the extent of the publication and the nature of the recipients and their relationship with the plaintiff.[10] As to the second element, the court is required to consider prospectively the likelihood of harm arising from those circumstances, and not whether harm did actually arise.[11] The harm element is confined to reputational harm, and does not extend to harm to feelings.[12]
[74] It has been observed that it would be relatively easy to make out the defence in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed.[13]
[75] It has also been observed that the defence is less likely to be made out where the content of the imputation is serious than where the content is trivial,[14] but the question is not whether the defamation is trivial. The task is to evaluate whether the circumstances of the publication have been made out in terms of the section.[15]
[76] In the present case, the second statement was directed to the wife of Mr Harrington, and no one else was present. It was made in the heat of the moment in the context of constant feuding between neighbours. It had no effect on her view of Mr Harrington and she was unlikely to repeat it to anyone by way of extending the accusation. I find the defence made out with respect to this publication.
[77] Both the sign and the first defamatory oral statement were made to the neighbours, Mr and Mrs Horne and their daughter. Mrs Harrington evidently saw and heard the first defamatory statement as she recorded it. I have previously found that the sign was not readily observable to others, so it too was of very limited publication to people at that time friendly with Mr Harrington. There is no evidence and no reason to consider that the allegations made in those publications were repeated by them to anyone.
[78] Mr Harrington gave evidence that the neighbour, Mr Carpenter, called him a paedophile and that he been told by a John Dick that Mr Shoard had called him a paedophile. The circumstances surrounding the alleged statement by Mr Carpenter have already been dealt with. No evidence was given by Mr Harrington as to the circumstances involving the alleged statement by Mr Dick, nor his relationship to the facts or the parties. It is clear that in referring to John Dick, Mr Harrington was deliberately trying to exaggerate the extent and effect of the defamatory statements made by Mr Shoard, and, even if the evidence had been more detailed, I would not have accepted it. In any event, the alleged statement is unrelated to the three defamatory oral statements the subject of the s 33 defence; as was the alleged statement by Mr Carpenter.
[79] Although the contrary was argued, there is no evidence that the friendship between Mr and Mrs Horne and the Harringtons deteriorated as a consequence of the statements, or that they had any effect on the view that Mr and Mrs Horne had of Mr Harrington. Notwithstanding the seriousness of the imputation, I do not consider it likely that Mr Harrington sustained any harm as a consequence of these publications. I find that the defence has established this ground for these two publications as well.

[65]

[87] Mrs Shoard gave similar evidence of the alleged conversation with Nisse; except that, curiously, she says that she walked away after Nisse had told them that Joe touched her and that she did not hear Nisse say Joe makes her sit on his lap.
[88] Katie Shoard gave evidence that she could recall a conversation with Nisse Cavanagh around 2013, when they were in grade 7. She said she could not recall what time of the day it was but it was daytime. She said Nisse had come over and seemed "just generally frazzled". She said that Nisse was frustrated and distraught, and that was out of character, so she knew something was wrong. She said that her mother and herself were present while she was having the conversation with Nisse. She said her father was out the back.
[89] Katie said that Nisse said to them, "Joe touched me", and that Nisse later explained, "he grabbed her bum". She said that her mother then grabbed her father and that Nisse repeated herself in her father's presence. She said her father asked Nisse, "Are you telling the truth?" or words to that effect. She did not make any reference to Nisse saying that Joe made her sit on his lap.
[90] Nisse Cavanagh gave evidence of having made a complaint to Katie Shoard. She said that she complained to Katie about not being comfortable serving the food with being told to get out of the way. She said she spoke to Katie straight after the barbecue. She said she had the discussion with Katie in Katie's bedroom. She said she told Katie that she had placed some food on the table at a family barbecue around lunchtime and that Joe Harrington had told her to move out of the way. She said, "just by a friendly gesture, by whacking me on the bum." She said, "Just to basically say, 'please move out of the way'." She said that Chris and Greg (family relatives), the Harringtons and her mother and father were present at the barbecue.
[91] Later in evidence, she described it as her having "a tantrum because I could not get to the food without feeling like I needed to get out of people's way."
[92] She said that she had never said that "Joe Harrington is a paedophile" nor that she didn't feel safe. She said she had never said that Joe had made me sit on his lap and he was touching me. She said she had never said those words to Katie or Katie's parents. She denied that she had first told Katie and her mother and then repeated the statement to Steve.
[93] She confirmed that the Harringtons were people she sought "refuge in". She said that her relationship with the Harringtons did not change after the barbecue.
[94] She said, "Joe has never touched me inappropriately, other than the slight whack on the bum to get me out of the way." She said that she had no recollection of any sexual intentions towards her from Joe Harrington. She said, "He's always been someone I felt safe with."
[95] Nisse gave evidence of having been recently contacted by Steve at her place of employment. She said she had a conversation in which Steve said to her, "you need to - I helped you, so now you help me, otherwise you'll be putting Katie on the street." She said, "I felt like I was kind of getting used, in a way. Almost manipulated or blackmailed, like if I didn't help Steve somehow, that something bad would happen, ...". She said she had no intention of continuing the phone call and said to Steve, "I'll call you back." She said she never did.
[96] She did not accept that it was a friendly conversation. She said, "I didn't feel comfortable in the conversation at all." She accepted that at the end of the conversation she started to cry. Nisse also accepted that Steve sent her an apology for upsetting her through Facebook Messenger. She said that she did not respond.
[97] She said she could not recall how Steve had helped her; though she could recall a deal between Steve and her father where Steve was going to sell a car to her father for her to drive. She said that was the only occasion she could think of but her father did not purchase the car and she was certainly not involved in the discussions about the purchase.
[98] She accepted that while they were neighbours, Katie and her were good friends. She did not accept that you would call them best friends. She did accept they spent a lot of time at each other's houses.
[99] When it was suggested to her that she was not interested in getting involved in this matter at all, she responded:

[67]

[100] She said that once her Mum told her there was a court case, "that's when I went ahead and I went no, I need to step in and I need to put the record straight for Joe."
[101] She accepted that she had told her mother previously that she wasn't interested in being involved. She agreed that she did not wish to be involved for either Mr Shoard or Mr Harrington but said, "once I heard the false allegations Steve made against Joseph, I could not believe it and I had to set the record straight. So that's why, at first, I did not want to get involved, as I didn't feel any involvement at all. Like I was - I needed to prove anything to Steve - like something happened - to fuel these allegations he had against Joe. But once I heard the lies Steve told in court, I felt the need to step up ... and take justice for Joe, basically."
[102] She accepted that it was a sudden decision on her part to become involved.
[103] Kim Horne also gave evidence of conversations she had with Mr and Mrs Harrington on the topic. She said the first of those conversations occurred the first time she met Carolyn Harrington which was not long after she moved in. She said that was a conversation between her and Carolyn. She said Carolyn asked her whether she had heard her husband was a paedophile. She said Carolyn told her that there was a young girl who had lived in the house we were now living in and the young girl squeezed past Joe and he smacked her on the bum a couple of times.
[104] She said there were quite a few other times it was discussed. She added, "Well, every day she'd come over to my house, it was about paedophile stuff."
[105] She said she recalled one occasion, after she had an argument with the people next door, and she was sitting out the back with both Joe and Carolyn. She said her daughter Demi and her partner were also present. Kim Horne said she said to Joe, "What do you think smacking someone on the bum means?" She said Joe responded that he'd only done it a couple of times as a joke. She said she said to Joe, "Well, that's actually sexual abuse." She said, Carolyn then said, " She was just a little tease, anyway." She said she said to Carolyn, "Well, a 12 year old wouldn't know what that meant."
[106] Demi Horne was called to give evidence. Demi did not give any evidence of having been present when the above conversation occurred between her mother and the Harringtons; though she was not directly asked as to whether she was present.
[107] Mr Harrington denied ever having a conversation with Kim Horne about Nisse. Mr Harrington admitted that he had on one occasion smacked Nisse with the back of his fingers between the hip and the backside. He said it was, "Nisse, get out of here." He said, Nisse had come between him and another chair when she was getting biscuits.
[108] Mrs Harrington admitted to having a number of conversations with Kim and/or Anthony Horne about an interaction between Joe and Nisse. She said that Demi was present for several of those conversations. Mrs Harrington said that her husband was also present for some of those conversations. She said the discussions were about why Steve was accusing Joe of being a paedophile.
[109] She admitted that she had said in those discussions that Joe had flicked Nisse once on the backside. She denied that she had ever said it was just a bit of a joke and denied that she had said the police had been involved and that no charges were to be laid. She denied ever making the comment, "Anyway, Nisse was such a tease."
[110] The way Mr and Mrs Harrington gave this evidence had a greater ring of truth about it than other parts of their evidence, to which I have or will refer. Certainly, Mrs Harrington gave more fulsome answers to the questions being asked on this topic than otherwise was the case.
[111] Given the friendship between the Hornes and the Harringtons at the time of the alleged conversations regarding Nisse, I accept that the issue would have been discussed between them, as suggested by Kim Horne. I accept it is likely that there were frequent conversations between Kim and Carolyn, as suggested by Kim and Carolyn. I do not accept that, however, Mr Harrington would have described any "smacking" of Nisse on her backside as a joke. I also do not accept that Mrs Harrington would have described Nisse "as a tease".
[112] I find the evidence of Kim Horne to have been impacted by her change of allegiance. I consider that Kim Horne would have been a person easily manipulated by others, particularly strong-willed people like Mrs Harrington and Mr Shoard.
[113] Nisse Cavanagh gave her evidence in a forthright, honest manner. It was clear that she felt she needed to correct the record because any statement she had made to Katie had been clearly wrongly interpreted.
[114] I accept that her only conversation that day was with Katie and that she did not have a conversation with Mr Shoard or his wife.
[115] Apart from my acceptance of the evidence of Nisse, I have already indicated that I do not accept that Mr Shoard gave his evidence honestly. His manufacture of an excuse for putting up the sign was telling, but so was the denial of the first and second oral statements; until confronted in court with video evidence.
[116] I do not accept the evidence given by Mrs Shoard and Katie. Mrs Shoard gave the impression of being timid and Katie appeared extremely nervous and hesitant in giving her evidence. Both gave the impression that they were giving the evidence they were required to give in support of Mr Shoard. Where their evidence differed from the evidence of Nisse, I prefer the evidence of Nisse.
[117] In the end there was no admissible evidence that the alleged defamatory statements were true, nor do I accept the evidence of the alleged preliminary complaint said to give rise to the evidence given by Mr and Mrs Shoard and their daughter, Katie, who was friendly at the time with Nisse.
[118] I accept the evidence of Nisse Cavanagh, that the only touching of her by Joe Harrington was a whack on her backside telling her to get out of the way on one occasion. Her evidence was supported by the evidence of Mr Harrington himself, which I also accept in that regard.
[119] Accordingly, I am not satisfied that Joe Harrington has ever dealt with Nisse in a sexually inappropriate way or that there was any inference open that he was sexually attracted to her.
[120] Given the factual findings, the defence of justification fails.

[79]

[140] While the law presumes the plaintiff has a previous good reputation and damage to his reputation follows from a defamatory publication, the plaintiff is entitled to lead evidence of his good reputation and of the actual harm caused by the defendant's defamatory publication.
[141] In support of his reputation, Mr Harrington called two long-standing friends of his now adult children.
[142] Ms Brunelli said that her parents and the Harringtons were best friends and, whilst she had not lived in the area since 2010, she was still best friends with Joe's daughter.
[143] Each gave evidence of him being hard-working, community-minded and dependable. Andrea Wilden said that "he was funny...he loved people and people loved him." Both confirmed that there was never any suggestion of him being a paedophile.
[144] It was clear that neither lived in the local community now and that they did not see the Harringtons very often.
[145] Nevertheless, Ms Wildin gave evidence of Joe having come to her a few years ago, of his having cried about how he was feeling and said that these people were wrecking his life. She gave evidence of him having said that certain people were turning up at his work and at different places and saying that he was a paedophile. She then said she saw him not long ago and he was broken.
[146] She gave no particulars as to the people and precisely where she was told the statements about him had been made. There was no evidence from Mr Harrington that people turned up to his work and at different places saying that he was a paedophile. The most that he said was that statements had been made in his neighbourhood by Mr Shoard and Mr Carpenter, and the vague evidence concerning a statement made by John Dick.
[147] Mr Harrington did not at all give the impression of being a person who would cry or feel that the statements made by Mr Shoard were wrecking his life. I do not find the evidence of Ms Wildin credible in any respect.
[148] Mr Harrington gave evidence that he was shocked by the accusation that he was a paedophile, but that was not how he sounded on the video footage taken of the first defamatory statement. It would be more accurate to describe that event as simply one that degenerated into a slanging match between him and Mr Shoard. On his version that seemed to also be how the exchange between him and Mr Carpenter should be viewed as well.
[149] In answer to a leading question, Mr Harrington said that he "felt" that people were treating him differently because of the things said by Mr Shoard, and that he was worried about people treating him differently, but he also said nothing had ever been said to him and I am not prepared to accept that evidence on face value. Having had the opportunity to view Mr Harrington in the witness box and re-read objectively the transcript I am not convinced that Mr Harrington was hurt by the statement.
[150] It was specifically submitted that I should infer that as a result of his fear that people had heard the statement, Mr Harrington only rarely went to the RSL to drink, but I am not prepared to draw that inference.
[151] My view that the evidence of Mr Harrington cannot be accepted on these and other matters is reinforced by the evidence relating to the sale of his house. Mr Harrington was cross-examined at the trial on this issue, as was Mrs Harrington. They were both very evasive in any answers given and generally unwilling to answer the questions asked.
[152] At one point, Mr Harrington was asked in apparent exasperation, "Are you selling your house or not?" He answered, "No[t] at the moment."
[153] On the re-opening, evidence was admitted which showed that the property was transferred to another entity, six days after that evidence. In view of the receipt of that evidence, Mr Harrington was invited to give further evidence which may have explained his earlier evidence and the issue generally. He declined to do so, notwithstanding the clear inference that the property must have been subject to an unconditional contract for sale at the time of his giving evidence. The only inference open on the whole of the evidence is that the answer given by Mr Harrington was simply not true.
[154] There was no evidence of there having been any 'grapevine effect' in this case and of the defamatory sign and statements having had any impact on the attitude of the people, who either read the sign or heard the words, towards Mr Harrington.
[155] In the case of the sign and the first statement, the recipients were the neighbours of Mr Shoard, who at the time were close friends of Mr Harrington and his wife.
[156] Whilst I accept it was Mr Shoard who first made a statement to Kim Horne suggesting Mr Harrington was a paedophile, I accept it was frequently the subject of discussion between Mr Harrington's wife and Kim Horne. I do not accept that the further making of the statement by Mr Shoard, at or about the time of the erection of the defamatory signs, had any impact on Kim Horne, or other members of her family. The falling out with the Harringtons was as a result of a subsequent event, some two months later.
[157] The Hornes had lived at the property for over two years. They had been told of the accusations of Mr Shoard shortly after moving in and continued to remain on very friendly terms with the Harringtons for at least another two years.
[158] However, I do accept that Kim Horne was manipulated by Mrs Harrington and that Mrs Harrington encouraged Kim Horne to do things that she knew would provoke Mr Shoard. On the day of the making of the first defamatory statement, I accept that it was Mrs Harrington who encouraged Kim Horne to cut down the dragon fruit, which she knew would upset Mrs Shoard and her husband. The day before she and Kim Horne, using large knives, had slashed a tarp that was on the Shoards' property.
[159] Mrs Harrington had a strong dislike of Mr Shoard, which she admitted. Likewise, I consider that Mr Shoard had a strong dislike of Mrs Harrington and that his dislike of her was such that it extended to Mr Harrington. Whilst he preferred to describe it as they meant nothing in my life at all, it was very clearly a dislike. The actions of each impacted on the other's life.
[160] There was evidence suggesting that each took steps to lodge complaints with the council about activities on the other's property, principally to do with the movement of trucks on each other's property. There was evidence of Mrs Harrington frequently videoing the activities of Mr Shoard. The making of the second defamatory statement occurred on one such occasion. There was evidence of name calling.
[161] There was evidence on the day of the making of the third defamatory statement of Mrs Harrington having complained to the employer of Mr Shoard and of her having said that everyone in the Village considered that he was not a very nice man.
[162] In terms of any impact of the making of the second defamatory statement, the evidence was that no-one else was on the street that day. The only person who had heard Mr Shoard's words was Mrs Harrington and her evidence was that it had no impact at all on her.
[163] The evidence of Ms Cowin in relation to the third defamatory statement was that no-one else was on the floor at the time and so no-one else heard the statement. She said that, apart from texting Carolyn Harrington, she had not mentioned to anyone what Mr Shoard had said to her that day.
[164] Her evidence was that her opinion of Joe Harrington at the time of the making of the statement was that he was a good helper and a nice person. When asked whether her opinion about Joe had changed at all following the making of the statement to her, she said, "No. No. Not at all." She said that she didn't believe it.

[80]

[165] In the written submissions, I was referred to earlier decisions of this court; two in which the plaintiff was awarded $100,000,[41] one in which the plaintiff was awarded $150,000[42] and another in which the plaintiff was awarded $160,000.[43] In determining an appropriate award for damages, it is relevant to take into account comparable cases, but I should exercise caution in doing so.[44] Each case depends on its own facts.
[166] The circumstances of each of the decisions were considerably more serious than the present, with the publications far more widespread and the impact of them on the plaintiffs much more significant.
[167] In Atholwood, the defamatory statements were made to various people, including business competitors of the plaintiff, and there was held to have been a significant grapevine effect. As a result, the plaintiff suffered and was diagnosed as suffering from depression. In Bertwhistle, the defamatory statements were made to a member of the plaintiff's family and were held to have had a serious impact upon the plaintiff, including that he was no longer invited to social functions and gatherings of family members. In Gratton, the defamatory statements were made to the nearby school, police and other people and affected the health of the plaintiff such that he suffered depression. It was also held that he and his wife had to move house to avoid gossip and they stopped going to places and stopped socialising as a result of the statements.
[168] In Gregory, the defendant had published the defamatory statement that the plaintiff was a paedophile to his fiancée (with an effect on that relationship and ultimately led to their separation), his workplace (which resulted in some persons at his place of employment shunning and avoiding him) and a close friend of his mother (which affected that relationship). The plaintiff had to take time off from work as a result of the statement and required treatment for his depression.
[169] There is no evidence here, which I am prepared to accept, that Mr Harrington suffered any distress as a result of the statements. The evidence is that the statements did not have any effect on his wife or Ms Cowan and there is no evidence that anyone else in the wider community was aware of the statements. Whilst some damage to the reputation of the plaintiff is assumed,[45] there is, accordingly, no need, as there was in the decisions mentioned, for the court to vindicate his reputation to the wider community.
[170] The two latter cases included a component for aggravated damages; in the case of Gratton an amount of $30,000 and in the case of Gregory an amount of $40,000. In Gratton, it was said that the defendant had persisted with a defence of substantial truth and had refused in derogatory terms to mediate or apologise. In referring to the comments by Applegarth J in Cerutti, it was said those scenarios comprised some of the scenarios to which his Honour had referred and which would justify an award of aggravated damages here.
[171] Although the accusation was vile and unsubstantiated, the harm done to the plaintiff was extremely modest and any injury very short lived. The plaintiff is entitled to a small component for aggravated damages, given the unjustifiable nature of the allegation, the persistence with a defence of justification and the failure to admit that the second and third defamatory publications were made as alleged.
[172] Although it is conventional to order a total sum by way of damages for all the publications, that is complicated by the fact that I have found the defence under s 33 established with respect to three of the publications.
[173] The total sum I award, by way of general and aggravated damages, for the third publication is $15,000. If the defence had not been established with respect to the other three publications, the total damages I would have awarded would have been $25,000.

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