King & Anor v Greenwood - [2022] NSWDC 61 - NSWDC 2022 case summary — Zoe

NSWNSWDC

King & Anor v Greenwood

[2022] NSWDC 61

District Court of NSW|2022-03-10|Before: Samuels JA, Mrs J

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2022-03-10

Before

Samuels JA, Mrs J

Source

Original judgment source is linked above.

Judgment (71 paragraphs)

[1]

Mr A Greenwood (defendant) Representation: Mr C King, in person Mr A Greenwood, in person Mrs J King did not appear File Number(s): 2021/00063201 Publication restriction: Nil

[2]

Introduction

This is a defamation suit commenced by the plaintiffs (a son and his mother who, unless it becomes necessary, I will refer to as the Kings) against the defendant (Mr Greenwood). The Kings (separately) published local newspapers in the locality of the Southern Highlands region: the son (who, for convenience I will describe as 'Mr King') used a corporate vehicle ('King Media') to publish a monthly publication, "LatteLife Wingecarribee" from July 2014 to September 2020; his mother (who I will refer to as Mrs King) used a different corporate vehicle ('Espresso Media') to publish the "Southern Highlands Express" from September 2020. The latter newspaper was essentially a continuation of the former albeit under a different name. The two newspapers were said to be managed jointly as part of a family unit. Mr Greenwood did some work, as an independent contractor, for the son's publication for nearly three years between late 2014 and 2017. This work comprised editorial writing, proofreading and graphic design services.
The defamation suit concerned two publications, both published in February 2021. In the First Matter Complained of, Mr Greenwood used a Facebook page, titled 'Defying Defamation' and posted a screenshot with an accompanying newspaper article. This article was a mock reproduction of the front page of an issue from the real LateLife Wingecarribee newspaper (which was Exhibit A) which had ceased circulation in 2017. For this First Matter Complained of, the plaintiff alleges that it was defamatory against Mr and Mrs King. A large number of imputations were said to arise. At the risk of over-simplification, it suffices for present purposes to say that the imputations fall within the following categories: (a) the Kings each made bribes to a federal politician and Cabinet Minister, the Honourable Angus Taylor, MP for their personal advantage or benefits for their companies; (b) the Kings illegally obtained money from taxpayers; (c) the Kings conspired to influence the election result for the District of Hume at the 2019 Federal Election (in which Mr Taylor was elected).

[4]

The hearing

Mr King and Mr Greenwood represented themselves throughout the proceeding, including the hearing. Mrs King did not attend the hearing. No direct explanation was received by her for why she did not attend (although Mr King cited certain personal matters); notwithstanding that this matter was fixed for hearing last November. I directed, pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), that the hearing proceed in her absence. I also explained to Mr King, in response to the latter's vague suggestion that he appeared for Mrs King that I was unable to proceed on the basis of that assurance. I took him to represent himself. That said, much of what he submitted could be said to be commonly in Mrs King's interest as well.
With no disrespect to any of the parties, the absence of representation presented obvious challenges especially with the pleading and particularisation of allegations in their cases in an area of law rife with an emphasis upon form and characterised by no little technicality.
One consequence of the common absence of representation was that the Court was reluctant to allow the parties to stray from their pleadings. To do so was likely, if not inevitably, to engender complaint about procedural fairness and, in all likelihood, lead to a protracted hearing, two matters which are antithetical to modern case management of civil litigation. If the parties felt constrained by this approach, it is to be noted that this proceeding had previously been closely case-managed: there has been at least one interlocutory motion heard and determined and there have been other directions hearings specifically managed by a Judge of this Court, with vast experience in the case management of defamation suits. In particular, to allow the parties to depart from their pleadings would place their opponents at an immediate disadvantage in a hearing: litigation is hard enough for parties represented at a hearing, but it is especially so for unrepresented parties if they think that they are faced with shifting sands.

[9]

Identification of the plaintiffs

As to the First Matter Complained of, Mr Greenwood contested at the hearing that Mr and Mrs King were identified. He did not put the matter in issue in his Defence, as he was required to do by r 14.14(2) of the UCPR, since if his point was good, it would defeat the action on the basis of the First Matter Complained of: identification being an essential element of the action: Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [126]. Nevertheless, in the statement of claim, there were particulars of identification and at the hearing, Mr King made argument that he and Mrs King were identified, so the issue was fairly joined notwithstanding the omission in Mr Greenwood's Defence.
Mr and Mrs King carry the onus of proof on this issue. Mr King did not call a witness to prove this issue. However, it was inessential for him to do so [2] . As Mason P said in Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [57], identification can be proved indirectly where a plaintiff gives evidence of being contacted by people in circumstances showing that such contact was obviously in response to what they read in the publication, or evidence of talk among readers or viewers indicative of the identification being made.
The test for identification, where the plaintiffs are not specifically named, was set out by the High Court in David Syme & Canavan (1918) 25 CLR 234 per Isaacs J: "The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But 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."
Where a defamatory statement is levelled at multiple persons, a plaintiff may establish that where the group is particularly small, it can be found that the "accusing finger is pointed at every one of them" (Browne v Thompson [1912] SC 359).
I accept, on the probabilities, the plaintiffs' assertions about their identification in the First Matter Complained of. This included the reference to "Mummy and Clyde of LatteLife" in the post. At the time, there was no other 'mother and son' publishing operation in the Southern Highlands region. LatteLife was, in its time, a regional newspaper in the Southern Highlands region.
The doctored version of 'LatteLife' carried the same logo and registered trading name owned by Mr King's company, King Media. To the naked eye there was a strong resemblance between the real version of issue 57 (Exhibit A) and the 'doctored' version prepared by Mr Greenwood. The strength of the resemblance was, in no small part, due to Mr Greenwood's skill set in graphic design.
Mr King was a person of some profile within the Wingecarribee area: in 2016, two years after the inception of the LatteLife Wingecarribee Newspaper, he received an Australia Day award recognising his contribution to the Wingecarribee Shire Community.
In his affidavit of 9 March 2022, Mr King generally deposed to his need to continuously explain and justify himself to advertisers, current and prospective employees and contractors of King Media, community stakeholders and friends that the post was false and gave evidence of their awareness of the article. Under cross-examination, he said that some of these people had told him directly and others had learnt about the matter complained of from other sources. Although, as Mr Greenwood submitted, there may be some doubt whether these communications that Mr King had were at the instigation of others, or at his own instigation, Mr King's evidence, which was unchallenged, at least indicates talk by others about the matter.
In his Defence, Mr Greenwood alleged, with reference to a document annexed to his Defence that the First Matter Complained of was only seen by 7 people. As I understood him, this argument was marshalled in aid of his submissions not only for his triviality defence, but also that the plaintiffs were not identified by the matters complained. The factual argument was the same: the document annexed to his Defence featured a descriptor of "Engagements" with the post. It indicated that there were 7 such engagements, with 2 'likes' and 1 'share'. There was, the Court was invited to infer, no way of knowing whether or not the person to whom the post was shared may have on-sent the post to others or in what quantity. These arguments are considered below when addressing the triviality defence. However, even assuming in Mr Greenwood's favour that only 7 people viewed the First Matter Complained of, Mr Greenwood did not adduce evidence that none of them identified the plaintiffs in the First Matter Complained of.
For the Second Matter Complained of, I did not understand Mr Greenwood's dispute that his message identified the plaintiffs. At any rate, I find that it did. There was explicit identification of the plaintiffs by their first names and then, subsequently, their surnames. Further, in the case of the first plaintiff, express reference was made to King Media.

[27]

Principles

The relevant principles relating to the determination of defamatory meaning were accurately summarised by Wigney J in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70] - [85]; which summary was applied recently by Katzmann J in Taylor v Nationwide News Ltd (No.2) [2022] FCA 149 at [57]-[65]. The following is an adoption of Katzmann J's statement of the principles in Taylor.
First, the question is whether the defamatory meanings were conveyed to an ordinary reasonable reader of the publication (at [73]-[74]).
Second, that is a question of fact on which the applicant carries the burden of proof on the balance of probabilities (at [72]-[73]).
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 (at [74]). 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 (at [83]).
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 (at [84]). Equally, the manner in which the publication was actually understood is also irrelevant (at [85]).
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".
Sixth, the hypothetical ordinary reasonable reader is obviously not a lawyer who examines the publication overzealously and does not live in an ivory tower (at [77]-[78]). Rather, the ordinary reasonable reader is a reader of fair to average intelligence, experience, and education (at [75]). Such readers are taken to be fair-minded and not perverse, morbid, suspicious of mind or "avid for scandal" (at [75]). 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 (at [77]). They can and do read between the lines (at [77]). 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 (at [77]). A headline, for example, might give the reader a predisposition about what follows and so may assume special importance (at [79]).
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 (at [79]). 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") (at [90]- [91]).
Eighth, the manner in which the material is published can be relevant to the approach taken by the ordinary reasonable reader. As his Honour put it (at [78]): "[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."
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".

[34]

The Eighth & Fourteenth Alleged Imputations

These imputations suffer from the same problem as some of the earlier imputations. I do not consider that a reasonable reader would understand that any suggestion was being made that Mr King, and/or Mrs King, had previously engaged in illegal or corrupt actions or business practices. Although there is a reference to past "kickbacks", the reasonable reader would understand that he or she is not being invited to draw a legal conclusion about the character of past dealings. The reasonable reader would understand that in election campaigns, politicians do make promises, sometimes to donors, in exchange for electoral support. That may, or may not, depending on the context, amount to improper conduct, but the corruption would be by the politician, who is empowered or exercises a public function [3] , rather than the donor, who is attempting to have the politician to exercise power for the donor's benefit; implicitly to the exclusion of the public interest. To the extent that a separate suggestion is made about illegal practices, that is avowedly a legal conclusion which is not indicated by the article.
I reject these imputations.
In summary, before addressing the Second Matter Complained of, I have found the following defamatory imputations from the First Matter Complained of: 1. Mr King paid monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor, MP for his personal advantage; 2. Mr King conspired with Mrs King deceptively to influence the election result of the Federal District of Hume, during the 2019 Federal Election; 3. Mr King published a news article on the front page of the LatteLife Wingecarribee newspaper that had fabricated information against a political candidate running for the Federal District of Hume, during the 2019 Federal Election; 4. Mrs King paid monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor, MP for her personal advantage.

[43]

Are the pleaded imputations defamatory?

To be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community.
About the First Matter Complained of, Mr King contends, in effect, that he was a graphic designer, who, 'on the side', had a private Facebook page ('Defying Defamation') with a limited (149) number of 'followers', in which he was free to act as a satirist; and send up other people who he felt deserved to be 'exposed'.
This type of contention was addressed recently in the decision of Lee J, of the Federal Court of Australia, in Stead v Fairfax (2021) 387 ALR 123; admittedly in the context with a publication in the mass media (the Australian Financial Review) by one of its journalists. At paragraph 3 of the judgment, Lee J made the following observations which I consider are apt in this case: "a writer targeting and addressing the perceived folly or sins of others walks a fine line. It is a line which reflects the tension between two important rights which the law of defamation seeks to balance: the right to freedom of expression and the right to reputation. Consistently with protecting the right to expression, which is fundamental to the exchange of ideas, is that liberty is given to express ideas provocatively. As Sir Fredrick Jordan observed in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 (at 174), "a critic is entitled to dip his pen in gall for the purpose of legitimate criticism; and no one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord". But the counterbalance is that for a writer's opinion to attract protection it must, in truth, be an opinion, be related to a matter of public interest, and be properly based - these requirements mean a freedom to express one's views, however foolish or malignant, does not become a licence to defame without lawful excuse. In essence this case is about whether this line the law draws was crossed" (emphasis supplied)
It appeared, in the course of some of his submissions, that Mr Greenwood appeared to treat his 'Defying Defamation' Facebook page as a sanctuary where he would be immune from the laws of defamation. He appeared to suggest that it was not his customary social media site; and that followers could look on, with amusement, (presumably) so long as the 'joke' was not at their expense.
The observations of Sir Frederick Jordan, recited by Lee J, indicate that this view is misconceived. There are few islands of immunity where satirists have a 'license to defame without lawful excuse'. Contrary to Mr Greenwood's belief, manifested in the title of his 'sub-page', it is only in limited circumstances may defamation laws be "defied".
The tort of defamation is concerned with damage to, or disparagement of, reputation. It should go without saying that imputations that the plaintiffs made bribes to an influential politician for the purpose of obtaining taxpayer-funded benefits for their personal or corporate advantage, that both Mr and Mrs King conspired to deceptively influence the result of a seat in a Federal Election or that Mr King, as a publisher of a newspaper, fabricated information on the front page of a newspaper, satisfies the relatively low threshold of whether the plaintiff will be diminished in the eyes of reasonable members of the community. In so concluding, if as McCallum J (as her Honour then was) determined [4] , there is a threshold of "seriousness" when a Court considers whether an imputation is 'defamatory'; then I consider that standard is met here; even in a publication intended to be satirical.
Similarly, the imputations that the Kings had a dreadful history in paying the entitlements of contracted labourers or employees and would falsely or misleadingly continued to obtain labour services resulting in contractors or employees not obtaining their proper entitlements are similarly defamatory.

[45]

The principles applicable to the defence of triviality

The principles for this defence were set out in Barrow v Bolt [2015] VSCA 107 ("Barrow"), as follows (excluding citations): "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."
It is an open question whether 'harm', for the purposes of s 33, extends to the distress occasioned to a plaintiff as a result of the publication of defamatory material about the plaintiff to other persons, or whether that word is confined to injury to the plaintiff's reputation. In Szanto v Melville [2011] VSC 574, Kaye J appeared to suggest that it was confined to harm to reputation. However, when sitting in the Victorian Court of Appeal in Barrow, Kaye JA appeared, with respect, to reconsider whether that view was correct, and left the question open at [43]-[57] (Ashley JA and McLeish JA agreeing with him). The New South Wales Court of Appeal did not decide the matter in Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [6]-[8] and [95]-[105]. It appears that in Queensland, 'harm' is confined to harm to reputation: Smith v Lucht [2016] QCA 267 at [11], [16]. A significant hurdle for a defendant in establishing the defence is the presumption of damage whenever it is proved that a defamatory imputation was published of and concerning the plaintiff: Bristow v Adams [2012] NSWCA 166 per Tobias AJA at [54-56].
In Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 80-691, Moffit P noted (at 68,947-8) that the purpose of the defence (as it was in relation to s 13 of the 1974 Act) was to discourage actions for trivial defamation and observed that this would arise, in particular, in cases of limited publication. That would more often be the case where there was an oral defamation, but it would also extend to written defamation; the latter of which was exemplified by letter or circular to a limited or particular class of persons.
Earlier, in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800 the New South Wales Court of Appeal identified as the 'circumstances of the publication': the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published and the place where it is published. An illustration of the operation of the defence was "a slightly defamatory statement made, in jocular circumstances, to a few people in a private home".
In Perkins v NSW Aboriginal Land Council (Unreported, SCNSW, 15/8/97), Badgery - Parker J, when alluding to the circumstances of the publication for the defence in a context of evidentiary rulings, emphasised:

the extent of the publication of the defamatory material;
the nature of the recipients;
the relationship, if any, between the recipients and the plaintiff.

His Honour then 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."
It was common ground that the Second Matter Complained of was published only the once, in a private communication to Ms Merniecks. Mr King said in his evidence that Ms Merniecks continued to be a friend of himself and Mrs King. Mr Greenwood said that this was sent in his capacity as a journalist.
Most of the evidence and argument centred, in relation to this defence, on the First Matter Complained of.
Unfortunately, much of the 'evidence' on the defence of triviality shaded into argument, or submissions, despite the Court trying to draw that distinction to the two protagonists, Mr King and Mr Greenwood, at the outset and through the hearing. This led to some disruption in the natural sequence of the hearing during the closing addresses. More significantly however, in the absence of other evidence, from witnesses, or in documentary form (such as Facebook or Meta instruction manuals) the Court was left to assess the interpretations of statistical information on document 1 of the Defence (in the schedule to these reasons) unassisted by independent, and objective evidence.

[46]

Evidence/submissions for the defendant

It is an agreed fact that as at the date of the hearing, there are 149 followers on Mr Greenwood's 'Defying Defamation' page. The Court can at least infer that there were no larger group of followers at the dates of the publications of the First and Second Matters Complained of.
Mr Greenwood's argument on triviality was substantially based upon the inferences that could be drawn from document 1 attached to his Defence (Annexure A to these reasons). He was cross-examined on the correctness of the statistical information contained within that document. It was effectively put by Mr King to Mr Greenwood that the Court had no way of accepting his word when he said that he had printed off the document at or about the time the interlocutory injunction was imposed in early July 2021. Mr Greenwood disputed this. His evidence was to the effect that although he accepted manipulating the "LatteLife" masthead, he had left intact the integrity of the statistical information.
As he explained, in submissions (although not when cross-examined), Mr Greenwood indicated his understanding that the statistical information revealed that although 111 people may have had a passing look at the First Matter Complained of, there were only 7 'Engagements' and 1 'share'. He further explained in his submissions (again not whilst giving evidence) that his 'Defying Defamation' post was something like what he called a 'sub-page'. By that, he meant that it was a Facebook page not accessed in other capacities in which he worked (such as a graphic designer), but as an alternative Facebook page in which he was free to adopt a different persona (such as a satirist). He volunteered, although in general terms, that he had been barred from accessing other community social media sites. This meant, so he claimed, that the person who 'shared' the First Matter Complained of could not have transmitted the post through to more communal sites from which he had been barred. It was pointed out, further, that amongst those 'engaged' there were no 'dislikes'.
Mr Greenwood submitted, in effect, that only a very limited class of persons - 7 in number - actually saw the First Matter Complained of. There was no evidence any of those people were offended by what they saw, which would have been indicated by a 'dislike' within the statistical information. The 2 persons who 'liked' the post could well have been the plaintiffs' themselves or their family. He only had 149 'followers' on this Facebook page. These facts had to be seen in the context of many thousands of persons within the Southern Highlands (or Goulburn) community or communities.
With reference to the number 111 on document 1, Mr Greenwood intimated that this signified a 'feed' to certain persons, who might, in the manner akin to a person reading a newspaper article, gloss over an article without taking the trouble to read it closely. That class of persons was distinct from the (7) persons who were 'Engaged'.
He also said that in this day and age, he effectively said, messages on social media are ephemeral: "people aren't going back to see a post".

[47]

Evidence/submissions for the plaintiffs

In his submissions (although again it was more appropriate for this to have been done in evidence), Mr King provided a different interpretation of the significance of the statistical information in certain respects. He indicated that his understanding was that Mr Greenwood was in a position to identify the person who had 'shared' the post and, from there, was also in a position to ascertain who had viewed the post. He further understood that there was a risk that the post could have gotten back to patrons of the Southern Express.
Mr King also explained his understanding that there may not be the clear distinction between the number of "Persons reached" (here 111) and those who were "Engaged" (here 7 in number) that Mr Greenwood sought to draw. It could not be ruled out that those 111 people reached had read the post. Further, he argued (apparently with reference to an unidentified instruction or reference from 'Meta', a successor, in brand name, to Facebook) that those who are 'Engaged' might be doing a variety of things: 'liking' an article, 'sharing' it or 'saving' it. Mr King drew attention to the part in document 1 to the Defence which, above the post and alongside the reference to 'February' there appeared the symbol of a globe. Mr King argued, according to his understanding, that the post was accessible to persons other than the subscribers, or followers to the 'Defying Defamation' Facebook page: if the post was, as Mr Greenwood argued, restricted to subscribers only, it would have been expected that the symbol would have been of a person, not a globe. He further argued that anyone who had googled or performed a Facebook search on 'LatteLife' would have had access to the post as well.
Mr Greenwood, when responding to these last assertions, took issue with what Mr King had said about what a hypothetical person performing a Google or Facebook search would see. Nevertheless, he did not take issue with what Mr King had said about the significance of the symbol of the globe above the post. Nor did he take issue with Mr King's assertion that there was no real way that Mr Greenwood could identify to whom the person 'sharing' the post had conveyed it to - other than Mr Greenwood's own belief that it could not have gone to certain social media sites from which he was barred.

[48]

Consideration

The principles I have referred to sets a high bar for a defendant who relies upon this defence. In particular, an onus falls upon Mr Greenwood to establish in February 2021, when these publications were made, the absence of a real chance of any harm to the plaintiffs.
As to the First Matter Complained of, there is a real risk in my view, that the number of recipients is beyond the 7 in number assumed by the Mr Greenwood. In what I am about to say, I proceed on the basis of accepting the authenticity of the statistical information regarding the post and Mr Greenwood's account of when he put together document 1 (being around 3 June 2021).
Although it may be accepted in Mr Greenwood's favour, for present purposes, that the one person who 'shared' the post may have been blocked from transmitting it to community email sites from which Mr Greenwood was barred, that does not say anything about other social media sites to whom the message was transmitted.
I also regarded it as telling when Mr Greenwood did not contradict Mr King's evidence/submission about the significance of the globe being used on the post (rather than a person); being that it was accessible more broadly than to followers of Mr Greenwood's 'Defying Defamation' webpage.
I did not understand Mr Greenwood as disagreeing with Mr King when the latter argued that he was capable of identifying who the person who had 'shared' the post was, but Mr Greenwood did not adduce evidence from that person to clarify to whom the post had been shared and there was no explanation from him why he could not have. This is an application of the rule in Blatch v Archer [6] : the force of Mr Greenwood's submission - that there was unlikely to have been any materially adverse passing on between the 7 persons engaged - had to be assessed in a context of his capacity to adduce evidence to sustain the submission.
In my view, it cannot be discounted as a real possibility, that there was 'leakage' beyond the limited class of persons to whom Mr Greenwood intended to disseminate the imputations. This means that the case is put beyond the kind of case where a defamation is made to a group of friends in a bar [7] .
As to this last point, I accept Mr King's evidence that he spoke to advertisers, current and prospective employees and contractors of King Media and community stakeholders in an attempt to mitigate harm. Mr Greenwood argued in submissions that it was Mr King who approached these other people. That contention, however, was not put to Mr King in cross-examination, and there was no evidence to sustain the argument. But even if the argument was accepted, Mr King gave unchallenged evidence that some of the people he had spoken to had "seen it already" whilst others had learnt from other sources. Mr King did not say that he, or Mrs King, was the source of the information about the First Matter Complained of and Mr Greenwood never suggested that he, or they, was or were, the source of information about the First Matter Complained of.
In the circumstances, on the probabilities, I find that the class of recipients extended beyond the 7 Mr Greenwood suggested that it was limited to.
But even if Mr Greenwood's submission regarding the limited number of recipients was accepted, there was no evidence to indicate that the 7 'engaged' persons were well-acquainted with Mr King, or Mrs King, and were therefore able to form their own views about whether there was substance in the imputations conveyed. Nothing is known about the knowledge of the 7 engaged persons about the plaintiffs' reputation.
Contrary to Mr Greenwood's submission, the imputations are not, by nature, trivial or the natural stuff of satire, such as making fun of a person's personal qualities, demonstration of their human foibles or perhaps making a mockery of a person's beliefs or (closer to the present context) political or ideological views. They were serious in nature, indicative of bribes made to, and kickbacks received from a Federal Cabinet Minister. So serious, arguably, that if the reference to 'kickbacks' was published about a politician in this state, it might have invited the scrutiny of the Independent Commission Against Corruption.
Another way of expressing the same concern is that the defamatory imputations, insofar as they related to Mr Taylor, was that they related to a very public figure, a member of the Commonwealth Executive Government. I infer from that reason that the matter complained of was inherently likely to be passed on from person to person with a view to collaterally damaging the politician.
The imputation of fabrication of material in a newspaper article was also very serious, striking as it does at the journalistic integrity of the publisher's decision to publish the article. This case does not fall into the category, to adopt the language from Morosi, of only a "slightly defamatory statement made in jocular circumstances".
Although the test is apprehended harm, rather than actual harm, I take into account also Mr King's evidence, which was not seriously challenged, about the inquiries that he had received from advertisers, in which he was placed in the defensive position of providing explanation. Some, albeit limited, inference can be drawn of actual harm to reputation; otherwise, there would be little need for the corrections which Mr King had continuously made.
Accepting, on the basis most favourable to Mr Greenwood, that it is necessary for harm to be 'reputational', rather than a lesser standard of distressed feelings, to enliven the defence, I am unable to accept the absence of a chance of reputational harm. As noted earlier, additionally, I proceed on the basis that harm was presumed for my finding that defamatory imputations arose from the First Matter Complained of.
It follows that Mr Greenwood has not persuaded me that about the absence of a real chance of the plaintiffs suffering any harm. Accordingly, I reject the triviality defence as it applies to the imputations I have found arising from the First Matter Complained of.
As to the Second Matter Complained, there was single recipient. The nature of the publication was a private inquiry, or request for information, from one disgruntled former labourer (acting under the guise of being an investigative journalist) to another person also known to have supplied labouring services. To adopt what Badgery-Parker J said in Perkins, the recipient had a prior relationship with the plaintiffs; and was well capable of forming her own view whether there was substance in the imputation. Mr King indicated that the recipient remained a friend and inferentially, a person with a positive view of the plaintiffs' reputations. I am satisfied that there was no real chance, given the private (and unsolicited) nature of the communication to someone well familiar to the plaintiff, of harm to them.
The statutory defence of triviality is made out in relation to the imputations I have found arise from the Second Matter Complained of.

[50]

Mr Greenwood's procedural complaint and adjournment application

During closing addresses, Mr Greenwood indicated that he expected that the hearing would be sub-divided into separate hearings on liability and relief. He had earlier said during the hearing that he expected that all that would occur on 9 March 2022 was a mention of this matter. Quite how these two assertions could be reconciled was not explained. Be that as it may, there was no indication that he sought to verify that expectation. He said that this was experience from an earlier defamation suit in which he was involved.
On the second day of the hearing, he made a verbal application (without prior notice) for adjournment. That application was refused.
There was no reasonable basis underlying Mr Greenwood's expectation. No application was made, by either party, for a separate hearing, between liability and relief, in the multitude of court appearances before Gibson DCJ.
Further, although the parties represented themselves, they are not, by reason of that status, exempt from the requirement to familiarise themselves with court rules, including r 28.2 of the UCPR, and practice notes, including, in particular, Practice Note DC (Civil) 6 [8] . There was nothing in the latter indicating that the usual practice was division of a defamation suit into separate hearings on liability and relief. The combined effect of the court rule and Practice Note made it incumbent upon parties, if they sought deviation from the general rule of liability and relief being heard together, to seek a separation of the determination of the issues or, at least, raise it for the List Judge before the matter was set down for hearing. Of course, if the parties consensually sought a division in this way, that circumstance may be influential in the Court assessing the desirability of that course.
But Mr King did not accede to deferral of the claim for damages (or for permanent injunction) and was ready to deal with it. Mr Greenwood should have been ready to deal with it as well.
Further, it was apparent that the purpose of an adjournment was to enable Mr Greenwood to amass new evidence or marshal further arguments with a view to contending that Mr King and Mrs King were of bad reputation in mitigation of damages. As explained to him during the course of my (general) rejection of his application to re-open his case to tender documents on the last day of the hearing, if he wanted to contend that the plaintiffs were of bad reputation, r 14.14 of the UCPR required him to notify the plaintiffs of that position in his Defence. Argument on the aspect of damages, at least insofar as it dealt with the aspect of reputational harm, was limited to that extent.
Further, for reasons elaborated in a short time, the plaintiffs' claim for damages is modest in any event and an adjournment of the hearing to a later time, presumably with Mr Greenwood expecting to advance further evidence, in a context where, because of his defence, his position was limited, would likely result in a delay and an inefficiency in the use of this Court's resources (to the deprivation of other litigants' cases); as well as leading to the generally undesirable fragmentation that arises from separate hearings. For these reasons, Mr Greenwood's late application for adjournment was rejected.

[51]

Principles & statutory provisions

The three purposes of an award for compensatory damages are: (a) consolation for the personal distress and hurt caused by the publication; (b) reparation for the harm done to the person's reputation; and (3) vindication of reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; and Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60]. The assessment is an intuitive, evaluative process "at large", but subject to the provisions of Pt 4 Div 3 of the Defamation Act (especially ss 34-36). By s 34, the Court is required to ensure that there is an 'appropriate and rational relationship' between the harm sustained and the amount of damages awarded.
In Rogers, Hayne J (at [66]) observed, in the context of appellate review of damages for non-economic loss: "First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury."
In the same decision, at [69], his Honour cited an earlier decision of the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 where the plurality said at 125: "The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand"
Under s 8, there is only one cause of action for the publication of defamatory matter (regardless of the number of imputations conveyed) and, where there are multiple causes of action, s 39 permits the Court to assess damages in a single sum.
Where, as here, there are multiple plaintiffs, the statutory cap applies individually to any award of damages to each plaintiff or to the damages awarded collectively to all plaintiffs. The preponderance of authority indicates that the cap applies severally to each plaintiff [9] .

[62]

Jurisdiction and principles to order permanent injunctions

There is no provision in the Defamation Act 2005 (NSW) to provide for injunctions to restrain defamatory matters. The jurisdiction in this Court to make an injunction (interlocutory or final) lies in s 46 of the District Court Act 1973 (NSW) [12] . It is auxiliary in nature, intended to restrain the continued, or repeated infringement, of a plaintiff's rights.
The principles applicable to permanent injunctions were set out by Wigney J in Rush v Nationwide News Pty Ltd (No.9) [2019] FCA 1383 ("Rush (No.9)" at [9]-[46]. The cardinal requirement that the Court is satisfied that there is a real apprehension about republication of imputations found to be defamatory.
At [13], Wigney J cited the observations of White J in Hockey v Fairfax Media Publications (No.2) (2015) 237 FCR 127 at [15] (citations omitted) that: "… permanent injunctions restraining a repetition of publication of matters found to be defamatory are not usually issued as a matter of course in this country. The authorities show that injunctions are issued only when some additional factor is evident, usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the Court's judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so."
The relevant considerations to the grant of a permanent injunction were summarised by Wigney J (at [44]) as including: "…. the degree or extent of the risk or apprehension of any republication of the defamatory imputations, the extent of the hardship that would be caused if the plaintiff or applicant was required to resort to new proceedings if the defamatory imputations were to be republished, the nature and seriousness of the defamatory imputations and the general undesirability of a multiplicity of actions between the parties. Reference has also already been made to the possible relevance, as a discretionary consideration, of the risk that the public interest in the right to free speech would be relevantly curtailed by the making of a permanent injunction in the particular circumstances of the case."
Wigney J also alluded (at [45]-[46]) to the typical discretionary considerations which usually apply to the award of equitable remedies, where appropriate, including: any hardship that might be caused to the defendant if an injunction were granted, any inequitable conduct on the part of the plaintiff, the ability of the defendant to comply with the injunction, the prospect that compliance with the order will not ultimately benefit the plaintiff and any acquiescence or delay on the part of the plaintiff.

[63]

Mr King's evidence

Following the grant of the interlocutory injunction, Mr King swore an affidavit (2 November 2021) in support of a contempt application which continues to subsist and will be dealt with subsequent to the delivery of these reasons. Mr King was allowed to rely on the affidavit but with the limitation that it was restricted only to the issue of whether a permanent injunction should lie.
In his closing submissions, Mr Greenwood argued that he opposed this claim for relief. He resisted what he saw was the plaintiffs' attempt to restrain him from generally speaking out against them. It appears from one of the messages that Mr Greenwood sent on social media (p 20 of Mr King's affidavit) that this is a view he has publicly conveyed.
This is an overstatement of the content of a permanent injunction. Such injunction, if imposed, would be limited as to its content: it would be limited to a restraint upon republication of the First Matter Complained of and the defamatory imputations arising from the First Matter Complained of. Further, as I indicated to Mr King, any permanent injunction would not be made to restrain republication of the article published by the defendant on 26 October 2021 (Annexure 'E' to Mr King's affidavit), which was not before the Court in this proceeding.
That is not to say that the content of the article or other social media posts is irrelevant. The context for the article was that around the time of its publication there was a Public Inquiry into the actions of the Wingecarribee Shire Council and a group of concerned citizens bandied together under the slogan 'Let's Get it Right' to participate in that inquiry. It also appears that the Southern Highlands Express, the newspaper operated by Mrs King, had an interest in that local campaign. This seemed to pique the concern of Mr Greenwood. He took the opportunity, in his article to express what he regarded as the 'irony' of this newspaper being used as a platform for the local campaign involving the Council.
In the course of the article, Mr Greenwood expressed a negative view about Angus Taylor and, in that connection, stated that the publishers of the Southern Highlands Express were only suing him for having "pointed out the unhealthy relationship they have with the Federal Minister". He then stated that the owners of that newspaper were "two of the most duplicitous people I've ever encountered."
In accompanying social media posts, he mentioned that the local campaign were using Southern Highlands Express, as a "platform which is duplicitous and disreputable" (pp 17 & 18). In a later post (p 19 of Mr King's affidavit), he attached an article (what Mr Greenwood described as another 'satirical piece') on the subject matter of the Express' purchase of a competitor; the circumstances of which he described as "disgraceful". Then (at p 20), Mr Greenwood referred, in a separate post, to the defamation action against him. He asserted that the publishers were using monies from a Federal grant of money to sue him for his exposure of "their dodgy business practices".

[65]

Consideration

In my view, Mr Greenwood's offer of an undertaking to the Court is significant: if it is infringed, he will be in contempt of Court. It is unnecessary to speculate on the value of such undertaking given the circumstance that there is also on foot another application for contempt in relation to breach of the interim injunction ordered by Gibson DCJ. Whether the Court dismisses the application for permanent injunction on the basis of Mr Greenwood's undertaking to the Court, or goes on to make the injunction in the same terms, the same functional result will be achieved: if he republishes the defamatory imputations I have found, Mr Greenwood will be exposed to the same sanction as he would if he was in breach of a permanent injunction.
Mr Greenwood's offer of an undertaking makes it unnecessary, in my opinion, to determine whether Mr Greenwood had earlier breached the interlocutory injunction ordered by Gibson DCJ.
As a second matter, it seems to me that the content of the undertaking may fairly be narrowed from that which featured in Gibson DCJ's order for the interim injunction. It should be confined to preventing republishing of the First Matter Complained of and only so much of the pleaded imputations that I have found to be defamatory. Further, in my view, it should also be confined in a way that will not put Mr Greenwood in peril of a finding of breach if he was to express fair comment or even if he decides to exercise rights of appeal. As to the aspect of fair comment, it appears that Mr Greenwood is, at least partly, engaged in journalistic endeavours and has a right under s 29 of the Defamation Act relating to the fair report of proceedings of public concern. As noted in Rush (No.9), any permanent injunction should ordinarily be crafted in a way that acknowledges the right to fair reporting and expression of honest opinion. An undertaking given in lieu of permanent injunction need not be any broader.
In view of these matters, I propose to craft an undertaking for the consideration of the parties and give them an opportunity to apply to make further submissions about it before making the final determination on the application for the permanent injunction if there is continuing dispute. If, however, no application is advanced, than the order I make will be self-executing.

[69]

Orders

The orders are as follows: 1. Judgment for the first plaintiff for the sum of $31,294.03 (inclusive of interest); 2. Judgment for the second plaintiff for the sum of $15,647.01 (inclusive of interest); 3. In the absence of any application by the parties to the contrary made with written notice to my Associate, within 7 days of this order, the plaintiffs' application for a permanent injunction is dismissed in lieu of the defendant's undertaking to the Court that: "Upon the defendant's undertaking, by himself, his servants and agents, 1. not to publish, or cause to be published the Facebook post 'Tayloring Your Political Bribes' or matters substantially to the same effect as such mater on the worldwide web (including Facebook and YouTube) or otherwise; 2. subject to (c), not to publish on the worldwide web or otherwise any matter of and concerning the plaintiffs to the same effect as the following imputations below: 1. the first plaintiff has made monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor MP, for the first plaintiff's own personal advantage; 2. the first plaintiff conspired with the second plaintiff to deceptively attempt to influence the election result of the Federal District of Hume, during 2019 Federal Election; 3. the first plaintiff published a news article on the front page of LatteLife Wingecarribee newspaper that had fabricated information against a political candidate running for the Federal District of Hume, during the 2019 Federal Election; 4. the second plaintiff has made monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor MP, for the second plaintiff's own personal advantage 1. The undertaking as to the restraint in (b) is subject to and without derogation from the defendant's rights to publish a fair report of these proceedings, any appeal from these proceedings, and any comment or opinion about the liability judgment or appeal (if the latter is brought)." 1. If either party wishes to vary the form of the undertaking, they should do so by brief written submission as to the appropriate form of the undertaking and the reasons for it (with such submissions not exceeding 3 pages); 2. The plaintiffs' motion for contempt is referred to Gibson DCJ for mention by 29 March 2022 or such other date as notified by Her Honour to the parties; 3. Costs of the hearing are reserved; 4. Within 7 days of determination of the plaintiffs' motion for contempt, the parties are to send short submissions (not exceeding 3 pages, excluding any relevant evidentiary attachments) to my Associate as to the costs of the proceedings and any dispute will be determined on the papers.

King & Anor v Greenwood

At a glance

Court

Decision date

Before

Source

Judgment (71 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (29)

Cited By (2)