Kelly v Davis & Anor - [2022] NSWDC 352 - NSWDC 2022 case summary — Zoe

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Kelly v Davis & Anor

[2022] NSWDC 352

District Court of NSW|2022-08-09|Before: Ms J

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Source facts

Court

District Court of NSW

Decision date

2022-08-09

Before

Ms J

Source

Original judgment source is linked above.

Judgment (84 paragraphs)

[1]

Tobin, T. K. and Sexton, M.G, Australian Defamation Law and Practice (LexisNexis, loose-leaf service) Category: Principal judgment Parties: Mr M Kelly (plaintiff) Mr O Davis (first defendant) Ms J Chan (third defendant) Representation: Mr Kelly represented himself Mr Elachkar (Counsel) for the first defendant Mr Vogel (solicitor) for the third defendant File Number(s): 2020/00272992 Publication restriction: Nil

[2]

Table of contents REASONS FOR JUDGMENT Introduction The nature of the case Other preliminary matters The issues THE FIRST MATTER COMPLAINED OF Identification Pleading and information obtained through court process Evidence in the hearing Mr Kelly Cross-examination of Mr Kelly Screenshots (Exhibit F) Jessica Jessica Exhibits G & H Exhibit I Mr Davis Exhibit 1D1 Principles Submissions Mr Kelly's submissions Mr Davis' submissions Consideration Did the matter convey the pleaded imputation? The alleged imputation Principles Submissions Consideration The pleaded defences Triviality No requirement in Mr Kelly to prove serious reputational harm Mr Davis' pleading Mr Kelly's 'Response' to the triviality defence Evidence Mr Davis' evidence Ms Chan's evidence Principles Submissions Consideration THE SECOND MATTER COMPLAINED OF Identification Evidence Mr Kelly's evidence Principles Submissions Consideration Whether the matter complained of conveyed the pleaded imputations The pleaded imputations Submissions Consideration Qualified privilege The pleading Schedule 2 to Ms Chan's Defence Mr Kelly's 'Responses' Evidence in the hearing Submissions Ms Chan's submissions Mr Kelly's submissions Principles Statutory qualified privilege Common law qualified privilege Consideration Statutory defence of qualified privilege Common law defence of qualified privilege Triviality Pleading and particulars Schedule 3 to Ms Chan's Defence Mr Kelly's responses to the triviality defence Evidence at the hearing Submissions Consideration ISSUES CONCERNING DAMAGES Pleading matters Mr Kelly's pleading Mr Davis' pleaded claim of mitigation of damages Ms Chan's pleaded claim of mitigation of damages Evidence The first matter complained of The second matter complained of Principles Mr Kelly's submissions Actual harm Comparative cases As against Ms Chan Mr Davis' submissions Ms Chan's submissions Consideration Claim against Mr Davis Seriousness of imputation Mitigating circumstances Damage to reputation Injured feelings Extent of publication Conclusion Claim against Ms Chan Number and Seriousness of imputations Mitigating circumstances Harm to reputation Injured feelings Extent of publication Conclusion SUMMARY & ORDERS Conclusions Costs Orders ANNEXURE A - FIRST MATTER COMPLAINED OF ANNEXURE B - SECOND MATTER COMPLAINED OF

[3]

The nature of the case

The plaintiff (Mr Kelly) is a university student. On 20 September 2020 he commenced a defamation suit in this Court against eight defendants. He amended his pleading in February 2021. With the exception of the first (Mr Davis) and third defendant (Ms Chan), both of whom are also university students, the claims against the other defendants were discontinued.
Mr Kelly sues in respect to two publications, both made on social media (Facebook). The first publication was on a Facebook page titled 'UNSW Discussion Group'. The second publication was on the Facebook paged titled 'USYD Love Letters Revived'.
As to the former publication (which I will hereafter refer to as the 'First Matter Complained of') on 28 June 2020, which he admitted publishing, Mr Davis labelled Mr Kelly on the Facebook Page as "the local uni predator". Mr Kelly alleged that the publication conveyed the imputation that he was a sexual predator on the UNSW campus.
In Mr Davis' defence, he originally denied that Mr Kelly was identified, denied the pleaded imputation, and also relied upon the defences of justification, contextual truth, and triviality, as well as offering to make amends. However, Mr Davis no longer presses the defences of justification or contextual truth and offering to make amends. He also pleaded matters in mitigation of damages, although, as will become apparent, that claim was narrowed in the course of the hearing.
As to the second publication (which I will hereafter refer to as the 'Second Matter Complained of'), on 1 December 2020, which she admitted she had published, Ms Chan raised on the second of the Facebook pages the question "hey aren't you that 40 yr old guy who hangs around UNSW creeping on first yrs? don't you have a desk job to go to instead of lurking on uni pages?". Mr Kelly alleged that the publication conveyed the imputations that: 1. Mr Kelly attended campus for an illegitimate (or no legitimate) purpose; 2. Mr Kelly was on campus and/or a webpage for the purpose of sexually propositioning first year students; 3. Mr Kelly spends time on campus actually sexually preying upon first year students.
In Ms Chan's defence, she denied that Mr Kelly had been identified, and denied the pleaded imputations. She also (originally) pleaded defences of justification, contextual truth, qualified privilege and triviality; though, like Mr Davis, at the hearing, she did not press the defences of justification and contextual truth. She also pleaded matters in mitigation of damages; although that was also narrowed during the hearing.
The legal representatives for both defendants each conceded, properly in my view, that if the imputations were made out as they had been alleged by the plaintiff, they would be defamatory.
To assist the reader, I have appended the two matters complained of at the end of these reasons for judgment.

[4]

Other preliminary matters

Before proceeding with substantive analysis, I observe certain procedural matters affecting the progress of the matter to hearing and which, in some cases, had real impact.
As one preliminary matter, I note that on 31 October 2021, Judge Gibson directed Mr Kelly to file any Reply to the defences of the first and third defendants and made a self-executing order to that effect (after he had failed to file a Reply in accordance with earlier directions and the Court rules). As will be noted again later in these reasons, when referring to the third defendant's defence of qualified privilege, this omission had significance as to what, as a matter of procedural fairness, he could fairly say in answer to that particular defence. Mr Kelly had earlier prepared a 'Response to Defences' document (16 September 2021), which was included in the Joint Court Book that had been produced through the cooperation of the parties. Much of that document did not fulfil the function of a Reply (much of it featured argumentative assertions and the inclusion of evidence). Be that as it may, as will be indicated, consistently with my appreciation of the need for procedural fairness to all parties, and mindful of the content of the requirements of Court rules for defamation actions, I have considered the document and, in some instances, made reference to it in these reasons. Neither of the legal representatives for Mr Davis or Ms Chan asked to me to refrain from looking at it.
As a second preliminary matter, Mr Kelly had commenced a different defamation suit in this Court on 28 January 2021 against the University of New South Wales. By order of this Court made on 3 March 2022, it was determined that the hearing of this other proceeding would proceed separately to the hearing of the present proceeding.
As a third preliminary matter, I wish to say something about delay. Although it is unfortunate that a defamation suit commenced in September 2020 has not been heard before now, it is pertinent to note that the proceeding has been beset by some procedural complexity, as indicated, amongst other things, by at least two separate interlocutory judgments on procedural issues by the Defamation List Judge [1] .
As a fourth preliminary matter, I note that Mr Kelly represented himself at the hearing. As I read one of the interlocutory judgments of Gibson DCJ, on 25 February 2021, on the Court's file, steps had been taken by the Court to see that legal advice could be supplied to him, owing to problems that were apparent in the way that he had originally pleaded his claim. The extent of the assistance, if any, which Mr Kelly received is not apparent, but as Gibson DCJ stated on that date, "it is not the Court's duty or responsibility to settle pleadings by persons who cannot afford legal representatives".

[8]

Cross-examination of Mr Kelly

Mr Kelly accepted that many people used the name 'Mike Meyers' as the title for their Facebook profile.
In answer to questioning from Counsel for Mr Davis, Mr Kelly:

said that some of his UNSW friends had met him through face-to-face contact; whilst others met him online;
said that everyone who knew him in 'real life' also knew him for his Facebook profile identity; but the converse position was not true;
said, in response to the proposition that those who had met him online would only have known him as "Mike Meyers", that the answer would depend if he met them in real life. He added that if he met them in person, he would indicate his real name;
said, in response to the proposition that those who had met him in real life, would not know of his Facebook page, that he could not think of anyone who he knew, in real life, who was not on his Facebook page.
was asked about 'pictures 7 & 8' in the material he relied upon as establishing that he had been "rapidly identified" by 2 people "in the same thread as Mr Davis' statement" and that his image on his Facebook profile made him easily recognisable, indicating entries by Darius Dorranian and Simon Marks, respectively. Mr Kelly said that he had never had a discussion with the former about the Facebook profile. As to Mr Marks, Mr Kelly said that he did not know of this person.

Under cross-examination by Ms Chan's solicitor, Mr Kelly said that the answer to the question of how he was commonly known, depended on whether he was online or in person. To take a concrete example, he said that his teachers would not know of his use of 'Mike Meyers'.
Asked why he used an 'alias' or pseudonym at all, Mr Kelly answered that it was privacy and a desire to avoid being harassed.
As to why he chose the alias 'Mike Meyers', Mr Kelly said that he was aware of the Canadian actor (whose surname is spelt 'Myers'), but that was not the reason for his choice; and he added that he did not intend any comic effect (unlike the title that he had used to describe his occupation for a LinkedIn profile he had set up 7 years before, being 'bikini inspector'). He said he had a friend who used a profile with that surname and 'Mike' had letters which also comprised some of the letters in his first (real) name. He said he did not intend the alias as being a real person; but only a Facebook profile.
Asked if his purpose in using the Mike Meyers' pseudonym was to remain anonymous, Mr Kelly did not entirely agree with this. He said that one could not use a different alias on the Facebook platform.

[15]

Principles

It is an essential element of a claim in defamation that the plaintiff prove that the statement was made "of and concerning" the plaintiff: Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [126]. This requires proof that the matter complained of (a) was published to a person (or persons) who knew and believed that the plaintiff had been referred to; and (b) those readers were "ordinary sensible readers" who could reasonably have come to that conclusion: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371; applied in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [14] & [17].
In Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86, Jordan CJ said at 89: "If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it is published, and publication to one person is enough … If, however the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, it would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove the publication, to prove that it was published to a person or persons who had knowledge of those circumstances [2] ."
In Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 ("Channel Seven") Mason P dealt with the situation where a plaintiff goes by some other name, but the publication did not refer to the plaintiff by his, her or its actual or 'real' name. His Honour said (at [45]-[51], citations omitted): "..If the matter complained of does not refer to the plaintiff by name, it is not enough that the plaintiff proves that someone who read or saw it linked the publication and the business. The plaintiff must prove that the link was drawn between the publication and the plaintiff. 46 Does this mean that the viewer or reader must know the plaintiff's name? In my opinion, no. It is sufficient to prove publication to persons who … "would know who the owners were". This requires identification of ownership and the plaintiff, but does not require knowledge of the plaintiff's name. 47 In the reasons of Simpson J … the example is given of a statement "The man who lives in that house is a paedophile" made of a reclusive person whose name was not even known to people living in his street. Would the evidence of a neighbour who heard that remark and realised that it referred to the plaintiff prove identification? I think so. It would not matter that the man whom he now thought less of remained the nameless occupant of No X, Smith Street. 48 This hypothetical situation falls within the principle illustrated by Owen J in Cross. Owen J recognised that identification of an unnamed person by a small percentage of the community would suffice, provided "some one or more of those to whom the pamphlet was published had that special knowledge". The "special knowledge" required in these circumstances was not knowledge of the plaintiff's name, but of the plaintiff's identity with the matter complained of. In Cross it would have been enough if a witness happened to know that the plaintiff was the printer who used the imprint "X-press Printery". 49 Naturally, it will be an unusual case in which evidence tending to identify the plaintiff with the defamatory publication would not also link the plaintiff's name. But, like the rose which by any other name would smell as sweet, a person's reputation adheres to more than his, her or its name. It is an attribute of (legal) personality itself. It would be anomalous that, if it were said falsely that a David Jones store was riddled with cockroaches, David Jones Pty Ltd could recover substantial damages in defamation (if it were the owner) but ACN 346 Pty Ltd could not (if it were the owner) absent evidence that a reader knew the obscure name of the corporate owner of the well known business.

[16]

50 These principles can be illustrated and (I think) their cogency demonstrated by two further examples. The first is where the identifying witness is slightly mistaken as to the plaintiff's name, believing him to be "Peter Smith" when in truth he is "Peter Smythe". This should make no difference. 51 The second example involves a famous personage who is known by a stage name but who retains a family name for private purposes. If defamatory matter was published of and concerning the plaintiff by his stage name then he should be able to recover damages without calling witnesses who know his private name. Equally, the damages recoverable should not be confined to loss of esteem and consequential financial loss derived from the small group of insiders who know his family name.

As was said by Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 at 238: "..although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of 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 alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him."
Further, as Mason P explained in Channel Seven (at [52]-[58]), where the plaintiff is not named, identification is made mainly in any of the following alternative ways. First, it is common, though not essential that witnesses are called who say that they made the requisite link between the defamatory material and the plaintiff. Secondly, it is proved by inference from all of the evidence (including that of witnesses) that there was a person or persons who probably took the words as referring to the plaintiff. Thirdly, the plaintiff might give evidence of being contacted by people in circumstances showing that such contact was obviously a response to what they read in the publication which did not, ex hypothesi, expressly refer to the plaintiff. A variant is evidence of talk amongst readers or viewers that is indicative of the identification having been made.

[19]

Consideration

I accept that there is one or more persons who both: (a) know who Mr Kelly looks like and (b) know that he uses on his Facebook profile the alias 'Mike Meyers'. These are 'special circumstances', to adopt the expression of Jordan CJ in Consolidated Trust Company, known to those persons.
The trouble for the plaintiff, in my opinion, in relation to both matters complained of, is that even though he established that there was at least one person, indeed more than one, with knowledge of those 'special circumstances', it remained necessary for him to prove that such person or persons had read the Matters Complained Of.
Addressing each of the ways of proving identification articulated by Mason P in Channel Seven: 1. no witnesses were called, with knowledge of those 'special circumstances', who say that they made the requisite link between either of the Matters Complained Of and the plaintiff; 2. there was no evidence of another person or persons to indicate that they probably took the words in either Matter Complained of as referring to the plaintiff; 3. the plaintiff did not give evidence of being contacted by a person or persons in circumstances showing that such contact was obviously a response to what they read in the publication which did not, ex hypothesi, expressly refer to the plaintiff. I take into account Mr Kelly's submission that it might be inferred that persons might want to shun someone who was outed for being a predator, or someone outed as acting in a creeping fashion; but the submission fails to take an equally available inference that the plaintiff may have obtained a number of Facebook friends who might have made inquiry of the Mike Meyers that he, she or they knew to ascertain whether there was any substance to what had been published about their Facebook friend; 4. there was no evidence of talk amongst readers or viewers that was indicative of the identification having been made.
It is not enough, in short, that there are some people who know what Milton Kelly looks like and that Milton Kelly uses the Mike Meyers alias on his Facebook page.
For the First Matter Complained of, although Mr Kelly argued that there were posts, from Simon Marks and Darius Dorranian, but he did not establish that either of them had seen the impugned post. To the extent that there were others, in Exhibit F, who may have seen the thread, and the impugned post, Mr Kelly did not establish that they were aware of the 'special circumstances' of his using the alias on his Facebook page.
Without proof of this element Mr Kelly's claim against Mr Davis must fail.
On the contingency that I am wrong in this conclusion, I now consider other issues affecting Mr Kelly's claim against Mr Davis.

[21]

Principles

In King v Greenwood [2022] NSWDC 61 ("King") at [47], I recently set out my understanding of the principles; with reference to earlier statements of authority. For convenience, I reproduce that summary of the principles (omitting citations): "[48] First, the question is whether the defamatory meanings were conveyed to an ordinary reasonable reader of the publication. [49] Second, that is a question of fact on which the applicant carries the burden of proof on the balance of probabilities. [50] Third, it is for the tribunal of fact (here the Court) to determine whether the natural and ordinary meaning of the words in question conveys any or all of the alleged meanings. Although some publications may be reasonably capable of bearing more than one meaning, the Court must ultimately determine whether the alleged meaning was the natural and ordinary meaning of the words complained of [3] . [51] Fourth, the natural and ordinary meaning of the words may be their literal meaning or an implied, inferred, or indirect meaning (at [81]). In considering whether the alleged meaning is implied or inferred the ordinary reasonable reader will draw on their general knowledge. General knowledge in this context includes "matters of universal notoriety", namely, "matters which any intelligent viewer or reader may be expected to know": Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775-1802] All ER Rep 390 at 393E). The meaning the publisher may have intended is irrelevant. Equally, the manner in which the publication was actually understood is also irrelevant. [52] Fifth, the Court does not approach the matter in the way it would interpret a statute or a contract or other legal instrument. Rather, the Court must consider the meaning of the words in question as the ordinary reasonable reader or, as Wigney J put it in Rush at [74], "[t]he Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader". [53] Sixth, the hypothetical ordinary reasonable reader is obviously not a lawyer who examines the publication overzealously and does not live in an ivory tower. Rather, the ordinary reasonable reader is a reader of fair to average intelligence, experience, and education . Such readers are taken to be fair-minded and not perverse, morbid, suspicious of mind or "avid for scandal" . They do not search for hidden meanings or adopt strained or forced interpretations, but they do draw implications, particularly derogatory ones, more freely than do lawyers [4] . They can and do read between the lines. They read the publication in its entirety and the words in question in context but take into account emphasis given by conspicuous headlines or captions. A headline, for example, might give the reader a predisposition about what follows and so may assume special importance. [54] Seventh, a defamatory statement in one part of an article will not necessarily be negated by a contrary statement in another part of the article. But an allegation of disreputable conduct may be removed by another statement or other statements in the publication (commonly referred to as the "bane and antidote"). [55] Eighth, the manner in which the material is published can be relevant to the approach taken by the ordinary reasonable reader….: "[T]he mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual." [56] Ninth, the meaning the ordinary reasonable reader would attribute to an article may also be influenced by its overall tone or tenor (at [80]). Thus, the article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137: "It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong".
It will be immediately plain that the construct of the ordinary and reasonable reader indicates an objective standard of meaning. Just as the defendant cannot answer that he, she or they did not intend to convey a defamatory meaning [5] , so too, the plaintiff's understanding of what a matter meant is irrelevant.
Since that statement of principles, in Bazzi v Dutton [2022] FCAFC 84 ("Bazzi"), the Full Federal Court considered the eighth of these principles in connection with defamatory publications on social media. In the joint judgment of Rares and Rangiah JJ, their Honours (at [29] & [47]) approvingly quoted observations from Lord Kerr SC in Stocker v Stocker [2020] AC 593 ("Stocker") at [41]-[43] being: "[41] The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.

[22]

[42] In Monroe v Hopkins [2017] EWHC 433; [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter: "The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter." [43] I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on. (emphasis added)" Lord Kerr JSC also went on (at [47]) to say that: "Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post." and, at [49], said: ".. the ordinary reader of the Facebook post .. does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance."

Where a plaintiff relies on an 'innuendo' meaning (that is a meaning other than the ordinary meaning of the matter complained of), he, she or they must plead the facts to support such meaning, including the extrinsic facts known by the reader which gives the publication a special or secondary meaning: Lewis v Daily Telegraph Ltd [1964] AC 234 at 280-81; followed in Bazzi at [38]; and see also r 15.19(1)(c) of the UCPR.

[24]

Consideration

I do not accept that the ordinary meaning of the First Matter Complained of carries the alleged imputation. In the context in which the first matter was complained of, including the original post to which Mr Davis' comment responded, and the responses that it engendered before Mr Davis posted his comment, there was nothing to suggest that an invitation was extended by the author of the original post to make any reference to the personal characteristics, including reputation, of the person who appeared to go by the alias 'Mike Myers'.
In the conversational medium that the Facebook exchanges occurred, in which participants engage in snappy, and often humorous exchanges, the ordinary reader might have understood that Mr Davis' reference to a person with the alias 'Mike Meyers' as someone who habitually engages in actual or potentially harmful conduct towards vulnerable people at the University of New South Wales, but there was nothing in the wording or context of the publication to indicate that this was conduct of a sexual nature, or character.
The word 'predatory' is protean; it takes its meaning from its context. On a university campus, the term could be applied to someone who snatches bags or other items of property, or is a pick-pocket. It could be applied to someone who supplies drugs, or to a person who randomly and violently attacks others who have a particular characteristic (such as race, colour or gender). I do not accept that the ordinary and reasonable reader would, without more in the matter complained of, associate it with a sexual connotation.
The ordinary and reasonable reader is to be taken as not being avid for scandal and is not prone to select the worst meaning of a word, where some other non-defamatory meaning is available. It is not enough to say that someone might have understood the word predator in the sense alleged. A bare reference to someone being a predator is bad enough. That the person is a sexual predator is much worse and to read that word into the publication would be to attribute to the ordinary and reasonable reader the adoption of a strained interpretation.
Mr Kelly did not allege that there was a special meaning to the publication, making it a true innuendo. But Mr Kelly submitted in reply, with reference to Exhibit I, that persons reading the post would have associated the reference to being a predator to being a paedophile.
However, the document that comprises Exhibit I, which was the only document he relied upon to ground the submission, was in no way incorporated into Mr Davis' post, or even in the lead up to it, in earlier posts as part of the 'thread'. He did not, for example, prove other posts by Mr Davis that referred to Mr Hansen, or his television show. Nor did he call any witness to prove the existence of this extrinsic fact, as at the date of the publication to say that he, she or they understood the word predator in that sense; from which the Court might reason to the conclusion that the ordinary and reasonable reader, with knowledge of the facts, would conclude that the matter complained of had that meaning.
I am not persuaded that the First Matter Complained of carries the imputation as alleged. This is an alternative and additional basis for rejection of Mr Kelly's claim against Mr Davis.
Again, acting on the contingency I am wrong on this basis, I will consider other issues arising from Mr Kelly's claim.

[31]

Principles

In King at [100]-[105], I also set out my understanding of the principles concerning this defence, substantially, but not entirely, constituted by my application of the observations of the Victorian Court of Appeal in Barrow v Bolt [2015] VSCA 107, as follows: "34 First, the inquiry, whether the publication was likely to cause harm to the applicant, is directed to the time of publication. The issue, at that time, concerns '... the quality of the publication in respect of its proneness to cause harm.' 35 Secondly, the focus of the inquiry is on the 'circumstances of the publication'. The critical test is whether those circumstances were such, at the time of publication, that it was unlikely that the applicant would suffer harm. The circumstances include (inter alia) the content of the publication, the extent of the publication, the nature of the recipients and their relationship with the applicant. However, the phrase 'circumstances of the publication' is not sufficiently wide to encompass the previous bad reputation of a plaintiff. 36 Thirdly, the phrase 'unlikely to sustain any harm' does not mean that it is sufficient for the defendant to establish that it is 'more probable than not' that the plaintiff will not suffer harm. Rather, the defendant must demonstrate that there is 'the absence of a real chance', or the 'absence of a real possibility', of harm. 37 Fourthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer 'any' harm. Accordingly, the onus, on the defendant, to prove that matter, is high. 38 Fifthly, the defence, provided by s 33, applies to the publication of 'defamatory matter'. Thus, s 33 provides a defence where matter, that has been published, is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the 'circumstances of publication' were such that the plaintiff was unlikely to sustain any harm as a result."
As was said in Perkins v New South Wales Aboriginal Land Council (unreported, NSWSC, 15 August 1997) Badgery-Parker J: "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."(cited approvingly in Jones v Sutton (2004) 61 NSWLR 614 at [15])
One matter which I adverted to in King (at [101]) as an 'open' question, is whether 'harm', within the meaning of s 33 of the Defamation Act 2005 (NSW) ('the Act') extends beyond reputational harm to injured feelings. There are decisions of different intermediate appellate courts across the country that point in different directions: see Tobin, T. K. and Sexton, M.G, Australian Defamation Law and Practice (LexisNexis, loose-leaf service), at [16,011]). After referring to the New South Wales Court of Appeal's decision in Jones v Sutton, the learned authors of that service wrote: 'It might .. be inferred from the judgment of the Court of Appeal that its members took the view that the defence was concerned with hurt to feelings as well as damage to reputation because the judgment quoted an earlier decision of the Court of Appeal in Morosi v Mirror Newspapers Ltd [6] where the defence was considered: The subsequent acts or statements of persons from which it appears, or may be inferred, that the person defamed was or was not upset by the defamatory publication can have only a limited bearing on whether that person's reputation was likely to be damaged or his feelings were likely to be hurt."
I agree. I respectfully consider myself bound by authority in the Court of Appeal indicating that, for the purpose of the triviality defence under s 33, harm may include injured feelings.

[33]

Consideration

Proof that there is an absence of any real chance of harm is a notoriously high bar for a defendant in a circumstance that reputational harm is presumed to flow from a defamatory publication (and Mr Davis ultimately abandoned an attempt to rebut the presumption).
There is an obvious artificiality in considering the issue where, as I have found, the plaintiff has failed to prove either (a) identification or (b) the imputation he alleged. It is only on the contrary premises, that he was identified, and the alleged imputation was made out, the analysis can proceed.
I do not find convincing Mr Davis suggestion that there was no proof that more than 7 people saw the publication even if it was fleeting; i.e. taken down the next day simply because there were manifest or tangible indications that 7 people had 'liked' or 'reacted' to it. The membership of the Facebook page was large in number: Mr Davis admitted that on the date of the publication, it had 31,792 members. Its very title indicated the generality of topics that members may have wanted to have exchanged posts about. One imagines that in a spare moment on campus, many students might be tempted to go to the site on their iPhones. The defamatory imputation was not made in circumstances analogous to a verbal conversation between a small group of people at a moment in time. It remained on the Facebook page until the step was taken to remove it. Until removal, the digital imprint is made.
In terms of the nature of the relationship between the plaintiff and the recipients, the only connection, designedly, was an online connection. Mr Kelly made it very clear that he tried to compartmentalise his life into discrete identities, between his Facebook identity (using an alias) and also his engagement in what some might describe as the real world; featuring personal interactions, in the flesh, with lecturers, or students in classes, or perhaps other social, sporting or other cultural activities at the university campus (in which he used his real name). The likely damage here, in terms of reputational harm, would generally be expected to have occurred only in his interactions with Facebook recipients. However, that is not to underestimate the potential harm in the sense of hurt to his feelings. It is a fact of modern life that many people place a great deal of importance and take significant steps to cultivate their image or identity on forms of social media. Some place great pride in quantifying the number of their Facebook (or Instagram) 'friends'; even if they never meet those friends in person. One might think that the feelings of a person are indivisible whether the injury is inflicted to one part of a person's (social media) identity, as distinct from damage inflicted to another part of the person's identity (in physical dealings with others). There is every prospect that a person who saw themselves labelled, in effect, as a sexual predator within a discrete, but still large, community would have injured feelings.
The content of the defamatory imputation, for the first matter complained of, is serious even if some of the recipients of this Facebook page might use it as a platform for light-hearted banter.
I take into account the nature of the medium, which is conversational and, more often then not, transitory, as recipients flit from one topic to another Stocker at [44]). However, this particular post was likely to stick out. To describe and identify someone as a sexual predator on a university campus is a serious thing. Moreover, I do not accept Mr Davis' argument that users of the Facebook page would have had firm opinions about the plaintiff which would have meant that it was likely that they would have been swayed by what they saw; which amounted to bare assertion.
In the circumstances, on the stated premises (contrary to what I have earlier found), I am not persuaded that the triviality defence would have been established for the first matter complained of.
I will defer consideration of damages (also performed contingently) until after my consideration of the case against Ms Chan.

[42]

Schedule 2 to Ms Chan's Defence

The facts and circumstances which Ms Chan relied upon to sustain the defence of qualified privilege were set out in Schedule 2 to her Defence. No distinction was drawn, in the pleading of the facts in Schedule 2, between the statutory defence and the defence under the common law.
In the initial part of Schedule 2, under the sub-heading 'Background context to the comment' Ms Chan started by noting that her comment was the third, in sequence, to the original post that had asked users for their comments on the subject 'Asians who don't want to date other Asians'. The actual post was: "What is your impression on Asians who don't want to date other Asians? Am I being self-hating or it is just a preference?"
Mr Kelly, using his alter ego 'Mike Meyers', responded: "Your dating life is for you and only you to figure out. There's no right or wrong if you wanna or don't wanna date someone for any reason."
Another post was made (by a different person) before Ms Chan entered the fray. In her first comment, Ms Chan expressed her view that racial preferences were rooted in racial prejudice and questioned whether racial preferences might arise from white supremacy or other institutionalised racism. That first comment generated reaction. Ms Chan asserted that she was qualified to express the comments, amongst other places, writing an opinion piece ('Peril') in the Asian-Australian Arts and Culture Journal. She had expressed another comment on the other post, but that did not elicit reaction. The first comment drew Mr Kelly's attention. He interpreted Ms Chan's view as criticising white people and belittling her by suggesting that she "line up for (her) Woke award". To this post, Ms Chan responded sarcastically, referring to his appearance (as an Anglo-Australian) and implicitly casting doubt upon his qualification. That only provoked Mr Kelly to comment again, describing her as "just very woke".
Ms Chan then set out her view about stereotyping of the Asian-Australian section of the community, and hate crimes and asserted that issues about race and social justice were 'hot button' issues at University. Further, it was asserted that Mr Kelly himself had entered the fray when, according to Ms Chan, he had, by a separate post, defended a person accused of being 'exposed' to a history of racist and transphobic social media posts. I interpolate here that it was not apparent in the evidence, or the written or verbal argument raised on Ms Chan's behalf, what this was a reference to.
Continuing with Schedule 2, Ms Chan asserted further that the Second Matter Complained of related to the subjects of (a) dating-related behaviour that Mr Kelly had engaged in, or was known to have engaged in; and (b) Mr Kelly's expression of his attitudes towards vulnerable women.
Ms Chan further asserted that any recipients of the Second Matter Complained of had an interest in receiving information on these 'subjects' as they supplied details about Mr Kelly's background, context, attitude, potential biases and motives in asserting opinions in his argument with her and, more broadly, to Asian-Australian dating habits. These details were of public interest since it enabled readers of his comments to understand relevant circumstances in which Mr Kelly had expressed his views: the details might suggest whether his contributions were coloured and could illuminate how they should be received.
Her comment was published to any (alleged) recipients in the course of giving them this information.
Her conduct in publishing the Second Matter Complained of was, she asserted, reasonable in all the circumstances, including the nature of Facebook communications, which featured characteristics of being a 'fast-moving medium' (where conversations were often 'ill-thought-out'), where arguments were often heated; where they do not lend themselves to verification (to the same extent as other media reporting) and the subjects provided important context which readers should know before viewing Mr Kelly's contributions to his argument with Ms Chan.

[44]

Evidence in the hearing

In her evidence, Ms Chan said that she was currently enrolled as a student, but was also a teacher. She said that she had previously made several writings on the dating preferences of other Asians.
She complained that Mr Kelly had previously belittled her contribution to the discussion, dismissing it as a 'criticism of white people' and telling her to 'line up for (her) Woke award'.
In cross-examination by Mr Kelly, Ms Chan was asked what the relevance of the Second Matter Complained of had to interracial dating. Ms Chan said that her post was a response to other posts that Mr Kelly had made. Asked further why she made the post, Ms Chan said that she had felt "insulted" by Mr Kelly's responses to her earlier contribution. She said that the source of what she wrote in the second matter complained of comprised her impressions from reading other posts from friends which were on the internet. It was suggested that she had not referred to the posts of other friends in the Defence. Ms Chan indicated that she was unsure whether or not that was the case.
But she was directed, specifically, to Mr Davis' post, which formed the subject matter of the First Matter Complained of. She said she did not know of Mr Davis before her post [8] . In re-examination, she said she only saw this post at the time she was served with Mr Kelly's pleading. She was also directed to the Reddit post (this appeared to be a reference to the matters referred to in paragraphs 5-8 of Schedule 1 to her Defence). Schedule 1 was directed to the defences of truth and contextual truth which Ms Chan abandoned at the hearing. She said she did not think that the matters referred to were untrue.
Ms Chan was referred to the reference that she made as to her Sociocultural background. She explained that when she referred to 'hot button issues' (paragraph 13 of Schedule 2 to the Defence) she meant 'culturally relevant'.
Ms Chan was asked about her reference to 'dating-related behaviour' (paragraph 14.1 of Schedule 2). Ms Chan said that this was a reference to comments that Mr Kelly had made online about women; which she characterised as the 'objectification of women'. Later, she said that Mr Kelly's posts followed a 'thread of creepiness'. She indicated her view was sourced in her reading of Mr Kelly's posts and comments, as well as Reddit.
Questioned whether she had relied upon posts that were dated (going back 4 years, apparently, before the Second Matter Complained Of) she said that it was after her comment was published that she had reviewed them.
Ms Chan was asked about her assertion (paragraph 20.3 of her Defence) that she had a 'duty' to publish the comment. She said that Mr Kelly had said irrelevant things and had insulted her.
She was challenged upon her reliance of what others had said about him. She acknowledged (hardly surprisingly) that she had no personal knowledge of what he had done.
She said that she did not consider the effect of her comment upon Mr Kelly.

[47]

Statutory qualified privilege

Section 30(1) of the Act provides a defence to a publisher if: 1. the recipient had an actual or apparent interest (i.e. where the publisher believes on reasonable grounds that the recipient of the material had an apparent interest in it at the time of publication) in having information on some subject; 2. the matter is published to the recipient in the course of giving to him or her information on that subject; and 3. the conduct of the publisher in publishing the matter is reasonable in the circumstances.
The 'reasonableness' referred to in s 30(1)(c) is, under s 30(3), the subject of a discretionary and non-exhaustive list of considerations, including: 1. the extent to which the matter published is of public interest; 2. the extent to which the matter published relates to the performance of the public functions or activities of the person; 3. the seriousness of any defamatory imputation carried by the matter published; 4. the extent to which the matter published distinguishes between suspicions, allegations and proven facts; 5. whether it was in the public interest in the circumstances of the matter published to be published expeditiously; 6. the nature of the business environment in which the defendant operates; 7. the sources of information and the matter published and the integrity of those sources; 8. whether the matter published contain the substance of the person's side of the story and; 9. any other steps taken to verify the information about that published; and 10. any other circumstances that the court considers relevant.
In Palmer v McGowan (No.5) [2022] FCA 893 at [184], Lee J adopted but also supplemented the statement of principles articulated by Wigney J in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [109]-[116] [9] on the requirement of 'reasonableness' in s 30(1)(c), as follows: "(1) in most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure its conduct in relation to the publication was reasonable; (2) a respondent who intended to convey an imputation that was in fact conveyed must generally establish that they believed in the truth of that imputation and that the imputation conveyed was relevant to the subject; (3) the fact that the respondent may not have intended to convey the imputation that was in fact conveyed does not necessarily mean that their conduct in publishing was unreasonable. In such a case, the respondent must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation which they did not intend to convey, but which was in fact conveyed. In this regard, it may be relevant to consider whether it was reasonably foreseeable that the publication might convey the unintended imputation and, if so, whether the respondent considered that possibility and took appropriate steps to prevent that imputation being conveyed; (4) the respondent must generally establish that reasonable steps were taken before publishing to ensure that the facts and conclusions stated in the publication were accurate. That generally involves making proper or reasonable inquiries, checking the accuracy and reliability of sources of information and ensuring that the conclusions follow logically, fairly and reasonably from the information. Where serious allegations of fact have been published about a person without the publisher having taken steps to check with the person concerned, it is the publisher (and not the person defamed) who takes the risk that the allegations cannot be justified; (5) a respondent must show that the manner and extent of the publication did not exceed what was reasonably required in the circumstances and each imputation intended to be conveyed was relevant to the subject about which information was published; (6) the respondent must also usually establish that the respondent gave the person defamed an opportunity to make a reasonable response to the defamatory imputation; and (7) the objective truth of the published statements is not relevant to the defence, and does not bear on the s 30(3) factors."
The publisher bears the onus of proving the reasonableness of his conduct in relation to the matters: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 (at [30] per Handley JA, with whom Spigelman CJ and McColl JA agreed).

[48]

Common law qualified privilege

In Stoltenberg v Bolton (2020) 380 ALR 145 ("Stoltenberg") the New South Wales Court of Appeal identified the principles relating to the defence of common law qualified privilege as follows: "[139] In Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57, Gaudron, McHugh and Gummow JJ described the defence of qualified privilege arising out of a reciprocal duty or interest in the following terms at [62]: The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. (Citations omitted) [140] In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5, Gleeson CJ, Hayne and Heydon JJ acknowledged at [10] that the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact, and noted that "a close scrutiny of the circumstances of each case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication is required to be undertaken". [141] In Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30, French CJ, Crennan and Kiefel JJ at [11]-[12] observed that the requirement of reciprocity of duty and interest is the hallmark of the common law defence of qualified privilege, although not a feature of the statutory defence, and continued: [11] ... As Parke B explained in Toogood v Spyring (1834) 1 C M & R 181 at 193; 149 ER 1044), the law regards the publication of a false statement which is injurious to the reputation of a person as malicious: unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. [12] The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light. [142] The joint judgment in Cush v Dillon emphasised at [18] the further requirement spoken of by Parke B in Toogood v Spyring (1834) 1 C M & R 181 at 193; 149 ER 1044 for statements to attract the qualified privilege: If fairlywarranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. [143] In Papaconstantinos v Holmes 'A Court (2012) 249 CLR 534; [2012] HCA 53 at [8], French CJ, Crennan, Kiefel and Bell JJ spoke of the required interest to attract the defence of common law qualified privilege in the following terms: [8] The defence of qualified privilege at common law has been held to require that both the maker and the recipient of a defamatory statement have an interest in what is conveyed. This is often referred to as a reciprocity of interest, although "community of interest" has been considered a more accurate term because it does not suggest as necessary a perfect correspondence of interest. The interest spoken of may also be founded in a duty to speak and to listen to what is conveyed. (Citations omitted.)"
The requirements for this defence were succinctly set out by Simpson J (as her Honour then was) in Megna v Marshall [2010] NSWSC 686 at [175] [10] , as follows (citations omitted): "● were the circumstances in which the communication was published (including, importantly, the subject matter of the communication and the identity of the publisher and the recipients) such as to give rise to the requisite duty or interest in the publisher, and the reciprocal interest in the recipient in receiving the publication, thus creating an occasion of qualified privilege? ● if the answer to the first question is in the affirmative, was the particular statement of which complaint is made germane or did it have sufficient connection to that occasion? (if the answer to either of the preceding questions is in the negative, then there is no call to proceed further. There is no defence of qualified privilege.) ● if the answer to both preceding questions is in the affirmative, was the publisher actuated by express malice?"
As to the second requirement identified by Simpson J for common law qualified privilege, that of connection between the matter that defames a plaintiff and the privilege occasion attracting the defence, it was observed by Kirby J (in a concurring judgment) in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 ("Bashford") at [192] that for the imputation to receive protection, it cannot be "tenuous, remote or contrived". The test has alternatively been described as to whether the imputation was unconnected with and irrelevant to the main statement (Adam v Ward [1917] AC 309 at 327).

[49]

Statutory defence of qualified privilege

Mr Kelly's submissions did not address the matters referred to in ss 30(1)(a) and (b). Rather, his submissions were directed to the question raised by s 30(1)(c) as that question is affected by the discretionary (and non-exhaustive) list of considerations in s 30(3) of the Act.
I find that Ms Chan believed, on reasonable grounds, that recipients on the 'USYD Love letters' Facebook page had an apparent interest in having information about the dating preferences of Asians specifically and the general subject of interracial dating. These were intrinsically interesting (if fraught) subjects for discussion and were naturally apt for discussion on this particular Facebook page. As is plain from on the face of the publication, the original post attracted the commentary of others (including Mr Kelly) before Ms Chan expressed her view. I also find that the matter complained of was published in the course of giving the recipients on that particular platform information on that subject. Thus, the requirements of ss 30(1)(a) and (b) of the Act were both fulfilled.
That leaves the issue of reasonableness, in s 30(1)(c). Many of the considerations in s 30(3) are targeted at journalists in publications about 'public' figures and mass media more generally. Thus, in my view, none of the matters in s 30(3)(a), (b), (e) - (g) have any relevant application.
I accept Mr Kelly's submission that the 'propositioning imputation' I have found was serious to a degree; though I consider that the 'attendance at campus' imputation made out was trivial. Although these provisions might also be more applicable to journalists than Facebook posts on social media sites, having regard to the differing forms of media, I further find that Ms Chan relied entirely upon the accounts of others to raise the second imputation without inquiry made directly from Mike Meyers. She had no actual belief in the truth, or accuracy, of that reputation. She had no correspondence with Mr Kelly before making the defamatory statement. She only looked at posts about him after posting her comment. In these respects, she acted unfairly towards him. She exercised no care, or balance when purporting to say anything about the reputation of Mr Kelly. Contrary to Ms Chan's submission, the fact that the imputation was published on the Facebook medium does not effectively provide a safe harbour for a publisher in relation to the expectations of reasonable conduct identifiable in s 30(3).
On balance, I am not persuaded that her conduct in publishing the matter complained of was reasonable in the circumstances.
That being so, Ms Chan's defence of statutory privilege under s 30 of the Act fails.

[50]

Common law defence of qualified privilege

I referred earlier to the Court of Appeal's decision in Stoltenberg. That was a case concerning a publication on a Facebook page where a defence of common law qualified privilege failed.
I do not accept that there was any 'duty' in Ms Chan to publish the statement. Mr Kelly expressed a view on the original post. Ms Chan expressed a viewpoint on a topic of interest to her without reference to Mr Kelly's first post. Mr Kelly criticised the view. Ms Chan not only disagreed with the criticism, but considered that Mr Kelly's view was blinkered, by his not being Asian. Mr Kelly returned fire by suggesting that Ms Chan's view was itself blinkered. Ms Chan doubtless had her own view about both Mr Kelly's qualifications to express a view on the subject, given what she perceived about his background, and the merits of his views. It was obvious to recipients that her view was very distinct to Mr Kelly's view. I am unable to accept, however, that she was under any duty to attack Mr Kelly's reputation.
On the other hand, it may be accepted that Ms Chan had an interest in defending herself, by repelling or responding to Mr Kelly's attack on her as someone whose perspective was 'woke', and/or who therefore had brought to bear a biased or distorted perspective on the subject that was being discussed. A defendant who responds to a plaintiff's attack may be able to establish the requisite 'interest' in making the statement [11] .
What is more challenging, to my mind, is the question of whether there was the 'community of interest' on the part of the recipients in learning of Mr Kelly's reputation, as conveyed by the defamatory imputation. As noted, the High Court in Papaconstuntinos preferred that expression to the traditional concept of a 'reciprocity of interest' since it indicated that there did not need to be exact correspondence of the publisher's interest and the recipient's interest.
This clarification has importance in the present context. Onlooking recipients on this Facebook page had observed a disagreement between two participants; in an agreement which had escalated to the point where insults had been exchanged. But all recipients would have understood that viewpoints on 'hot button issues', being the dating practices of Asian students (or the associated or ancillary issue of interracial dating practices) were solicited and recipients were generally free to form and express own views. Nevertheless, in my view, it would be naïve to think that an important function of the discussion group, in the Facebook medium, is limited only to the free expression of views. The forum carried an integral function of enabling contributors to attempt to influence the views of recipients. In these ways, contributors opened themselves up to criticism by others. Where, as was the case here, Mr Kelly and Ms Chan were jousting in the expression of views, and had then escalated matters, they were influencing the views of the recipients.
Onlooking recipients of this Facebook page at the relevant time would have seen Mr Kelly throw out a challenge to Ms Chan; to the correctness of her view which he regarded had come from a distorted perspective. By the impugned post, Ms Chan was throwing back at Mr Kelly a matter - his reputation for propositioning young students - which, aside from being a defence of herself and her own views, also bore upon the question whether Mr Kelly's own contributions were the product of a distorted perspective shaped by his experience. In my view, recipients who followed the debate on this platform had an interest in receiving information as it might influence their assessments of the (divergent) views that both Mr Kelly and Ms Chan had expressed. In such way, in my view, there was a community of interest between Ms Chan's interest in defending own perspective and repelling Mr Kelly's attack on it, and the interest of recipients in receiving information about circumstances that may have coloured Mr Kelly's perspective. To round off my consideration on this point, I note that in Mowlds v Fergusson (1940) 64 CLR 206 at [214-15], Dixon J said: "Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be widely interpreted."
The occasion for privilege is established.
The next question is whether the matter complained of was connected with that occasion. I find that there was a connection between the propositioning imputation and the occasion for privilege. In a context where both Mr Kelly and Ms Chan were challenging each other's perspectives, it was relevant to Ms Chan's challenge of Mr Kelly's credentials to opine, on the subject at hand, that he was reputed to have propositioned first year students. A person, understood to be middle-age and with a reputation for propositioning first year university students, might be thought to have beliefs about love, sex and dating coloured by such conduct. That was relevant to recipients' assessment of Mr Kelly's views or opinions on the subject of dating patterns of Asians (more narrowly) or interracial dating (more generally). What could be considered as Ms Chan's exposure of Mr Kelly's reputation could help or enable readers or recipients to consider the weight that should be given to Mr Kelly's views on dating (and love and sex) generally, which had a connection with the subject matter of discussion about dating between persons of the same race (different to Mr Kelly's) in particular. The defamatory matter was also relevant to the recipients' assessment of Mr Kelly's own challenge to Ms Chan's earlier posts. I am persuaded that the connection between the matter complained of and the privileged occasion is established.
There is no answer of malice in response to the defence. The defence of common law qualified privilege is therefore made out.

[55]

Consideration

As was the case with the first matter complained of, consideration of the triviality defence must proceed on the premise of identification of the plaintiff by the second matter complained of (contrary to what I have found).
Some of the matters I referred to in the corresponding triviality defence relating to the first matter complained of arise in the case against Ms Chan; though there are differences in degree. For example, the USYD Love Letters Revived Facebook page was probably apt to attract a narrower composition of members than the Facebook page in question relating to the first matter complained of: it was more specific in its essential subject matter, directing to dating. Nevertheless, as Ms Chan admitted, as at 11 December 2020, there were over 23,000 people who followed the page.
It is pertinent first, to address the imputations separately. I find that the 'attendance on campus imputation' was so trivial that there was no real chance that it was likely to cause harm. A university campus is by nature, a prominent community. It is a matter of common knowledge that the UNSW campus occupies a large amount of physical space in the South- East of Sydney. Many, but not all people are there for study, teaching or researching purposes. Others are of course, administrators. But the community is not entirely 'academic', given the scope of social, sporting and cultural activities that may occur on campus at any one time. To impute that someone may be present there for illegitimate reasons is vague and, at any rate, is a long way short of saying that they are there, say, for malevolent reasons or worse. The triviality defence is established in relation to the attendance on campus imputation
What is really in question is whether there was a real chance of an absence of harm arising from the 'propositioning imputation'. The imputation itself is, to my mind, serious to a degree, striking as it does at the reputation and character of Mr Kelly. The imputation did not convey any isolated instance of Mr Kelly propositioning a single student, but rather a discernible tendency sufficient to burnish a reputation.
However, the seriousness of this imputation cannot be isolated from contextual matters. I agree with Ms Chan that the defamatory imputation was made in a context where barbs (or insults) were publicly being exchanged between herself and Mr Kelly; in a fluid conversational medium, where new feeds and subsequent posts are made. I consider it likely that its gravity was not such that it may not have stuck in the mind of many recipients for very long and I accept Mr Vogel's point that an indication of this was Mr Kelly's own delay in checking that it had been deleted; albeit that he had requested Ms Chan to remove it the next day. That said, the fact that he did request her to remove it was an indication of the affront to his feelings and I cannot discount the possibility that to members of this Facebook page, some were likely to look upon Mr Kelly adversely in the light of what Ms Chan posted about him.
I do not place weight on the circumstance that Mr Kelly was a student of the University of New South Wales and the publication occurred on a Facebook page affiliated with Sydney University. In the online world of Facebook friends, the physical place from where Facebook members or friends communicate is irrelevant.
I do not place too much weight on the proposition that only one person had, through a post, manifestly indicated that they had read the second matter complained of; that there was only one "known" recipient; for the purpose of this defence. What is of greater weight, for the purpose of this defence, is the potential base of recipients.
The extent of publication is, of course, relevant to the assessment of damages issues, considered later in these reasons, and it is something that it would be expected that would be in a plaintiff's interest to prove. In the present context, however, the triviality defence is a matter for Ms Chan to prove. If she wanted to rely upon a narrow class of actual recipients who saw the post as grounding the defence, this was a matter upon which she bore the onus.
To my mind, comparatively, the matters are more finely balanced for the triviality defence for the second matter complained of than the first. Nevertheless, as indicated, the relevant test is whether Mr Kelly is likely to have suffered any harm. On the stated premise, on balance, I am not persuaded that he would not have suffered any harm.
If it was necessary to find, I would have rejected Ms Chan's triviality defence.

[64]

Comparative cases

In his written argument (MFI 1), Mr Kelly drew the Court's attention to three decisions of this Court indicating damages awards in defamation suits which, he argued, would assist the Court to quantify damages in this case against both matters complained of. He referred to Mickle v Farley [2013] NSWDC 295, Raynor v Murray [2019] NSWDC 18 and Goldberg v Voigt [2020] NSWDC 174.
About Mickle, Mr Kelly emphasised the limited value of the publisher's apology in the circumstances of that case where it was said that the "apparent" sincerity of the defence was undermined by later events, including the publisher's reliance upon a truth defence in the defence as initially filed.
About Raynor, Mr Kelly pointed to a damages award of $120,000 for what he submitted was a publication addressed to a very small audience.
About Goldberg, Mr Kelly identified that the damages award was $35,000 for what he argued was a very similar claim, where there a potential audience of 1,200 people. Mr Kelly submitted that it was likely that, having regard to the membership of the UNSW Discussion Group forum, many thousands would have read the post.
Both defendants sought to distinguish these cases as not providing meaningful assistance.
In supplementary written submissions (MFI 4) Ms Chan said that Mickle was a poor comparator. The case concerned only an assessment of damages, so the content of the defamation was not known. There was evidence of actual physical harm to the plaintiff in that case: she had to take sick leave and returned to work part-time.
I would interpolate here to add that the passage in Mickle referred to by Mr Kelly concerned an award of aggravated damages. Mr Kelly has not made that claim in this case.
The decision at first instance in Raynor was overturned on appeal on liability (Murray v Raynor [2019] NSWCA 274) so the decision at first instance on the damages award is stripped of whatever precedential value it otherwise had, and what was said on the subject of damages in the appellate court was only obiter. But Payne JA (Macfarlan JA and Emmett AJA agreeing) observed (at [96]-[97]) that there was no finding at first instance of damage to reputation and no need for a damages award to vindicate that reputation. To vindicate hurt feelings, no more than $25,000 should have been awarded (and there was no basis for an award of aggravated damages). The defamation in that case was in an extensive email (comprising 15 paragraphs); not a fleeting comment on a social media post. There was much evidence to establish the claimant's distress and an aggravated award was made.
Goldberg comprised a damages award for 13 separate imputations, some of which were so serious as to convey that the claimant was mentally unstable and likely to kill women. Further, the post by the defendant in that case was a 'News Feed'; not a comment, such as the one published by Ms Chan. It was much less prominent, and likely to be viewed than the defendant's post in Goldberg. There was a deal of 'chatter' in the community in that decision which was not apparent in this case.

[68]

Seriousness of imputation

This analysis proceeds, of course, on the premises (contrary to what I have found) that Mr Kelly was identified in a publication containing the defamatory imputation that he was a sexual predator.
I have, already, rejected the triviality defence. I necessarily accept that the imputation is serious. Nevertheless, a question remains how serious. Part of the answer to that question involves consideration of context; which, in turn, is affected by the medium.
There is force to the view that university publications, made by and disseminated to what is predominantly a student base, often feature a degree of irreverence, satire, gossip, mockery and light - hearted banter. For example, the Sydney University's Honi Soit (originally published in 1929) and the UNSW's Tharunka (established in 1953) are known to be replete with contributions of that character. It is not hard to see why. Many university students have only recently finished school and are liberated from the shackles of their school experience. Further, for many, it is also a time of exploration in an intellectual sense. Although there was little evidence about the publication (other than its membership) I do not regard the 'UNSW Discussion Group' Facebook page as being quite in the same light. By the same token, it is not a forum soliciting scholarly contributions on topical issues either.
The nature of the Facebook forum, as touched upon earlier, lends itself to breezy, pithy and perhaps even superficial expression of views. But there is no natural limitation on subject matter. Conceivably, there are likely to be a large number of contributions, by new feeds and by responsive posts, on any given day from a potentially wide membership base. In such a case, to anyone 'glued' to the particular Facebook page in question, contributions on any particular subject may likely be rapidly displaced by new feeds on different subject matter. In other words, most feeds and posts would not be expected to linger in the memory.
What is being engaged in on Facebook is conversation between people (who, as was the case here, may not personally have encountered each other in 'real life') which, on any particular matter, is likely to be of fleeting duration; in other words, ordinarily ephemeral. The medium may be contrasted, say, with weekly publications such as The Monthly, or Quadrant; featuring serious articles on matters of public interest; in which a contributor will likely need to exercise some effort in exposition and, of course, the recipient will need to exert effort in understanding. In short, the forum here was not geared to, nor likely to give rise, to deep consideration or reflection.
In his materials he used in his argument (MFI 1), Mr Kelly placed before the Court a stream of other posts on the 'UNSW Love Letters' Facebook page. But this proceeding did not involve any defamation of him on that page, and other than the posts on that particular Facebook page themselves, there was no evidence to indicate how it was connected to the Facebook pages that were in issue in this proceeding. I regarded the reference to this page, and the posts from it which Mr Kelly had produced as being an irrelevant distraction.
As indicated in my rejection of the triviality defence, the imputation was exceptional and, indeed, it went beyond the pale. It was not part of any contribution to a topic of interest, in the sense of political, cultural, social affairs. It was simply a targeted, ad hominem attack. Even so, given the nature of the medium, directed to a large but still segment of the community, it was by no means the worst context in which the imputation was conveyed.

Kelly v Davis & Anor

At a glance

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Judgment (84 paragraphs)

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Legislation Cited (2)

Cases Cited (38)

Cited By (2)