Mitchell v Jobst [2025] QDC 41

Mitchell v Jobst [2025] QDC 41 | Case summary | Zoe

[103]

[1] The plaintiff, William Mitchell III, lives in Florida, United States of America. He has been well known (as Billy Mitchell) among adherents of video and arcade gaming in many countries, including Australia, since about November 1982.
[2] At an arcade and video gaming competition in November 1982 that took place in Ottumwa, Iowa, USA, playing an arcade game called Donkey Kong, Mr Mitchell scored a world record 874,300 points and was the first person ever recorded as reaching the "kill screen" (that is, reaching the end of the game). At the time he was 17 years old.
[3] Mr Mitchell went on to be recognised as having achieved a number of world records and world firsts in video and arcade gaming. They included achieving the first perfect score of 3,333,360 in another game called Pac-Man in 1999, setting a new world record (and the first score of over 1,000,000 points) of 1,047,200 in Donkey Kong in June 2005, another Donkey Kong world record of 1,050,200 in July 2007 and a third Donkey Kong world record of 1,062,800 in July 2010.
[4] The defendant, Karl Jobst, lives in Queensland and describes himself as a "professional YouTuber." Since about the end of 2018, he publishes videos on his own YouTube channel, from which he earns income. He has over 1,000,000 followers on that channel. His videos mostly concern "speed running,"[1] but since about late 2019 he has also covered gaming world records and cheating in arcade and video games. Since about June 2020 he has published many videos about Mr Mitchell (including about this and other litigation). He is also a video game player himself and said that he has earned a large number of world records in certain games.
[5] Twin Galaxies Inc (later Twin Galaxies LLC) is a company incorporated in Florida, USA. It was founded by Walter Day, who sold it to Jace Hall in February 2014. Its role (apparently self-determined) was and remains, in essence, to set rules for video and arcade gaming competitions and records, to organise and hold competitions and to publish the achievements of gamers, including records set by them and recognised by Twin Galaxies as legitimate. Perhaps its role is best described in the following passage taken from its current website:[2]

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[11] At the end of the dispute process, on 12 April 2018 Twin Galaxies announced that it had decided to remove all of Mr Mitchell's scores and to ban him from participating in its competitive leaderboards.[7] The following day, Guinness World Records announced that, based on Twin Galaxies' decision, it would also remove all Mr Mitchell's record scores from its records.[8]
[12] Thereafter, many people in the online "community" maintained that Mr Mitchell was a cheat. Mr Mitchell commenced proceedings for defamation in the USA against Twin Galaxies, as well as against a number of others. One of these lawsuits was against a young man, Benjamin Smith, who was known online as "Apollo Legend".[9] He published videos on YouTube about gaming, including a number in which he accused Mr Mitchell of cheating, falsifying his Donkey Kong scores and not using legitimate gaming hardware.[10]
[13] Mr Mitchell and Apollo Legend settled that proceeding on 22 August 2020.[11] Their agreement provided that Apollo Legend agreed to remove all of his YouTube videos and social media posts that referred to Mr Mitchell, to assign the copyright in those YouTube videos to Mr Mitchell and permanently to cease producing any oral, written or electronic documents or communications that in any way mentioned or referred to Mr Mitchell or his family, apart from an agreed statement in terms provided in the settlement agreement. Any breach by Apollo Legend of the last of these obligations would result in him being liable to Mr Mitchell for US$25,000 in liquidated damages for each breach. Unless he committed such a breach, he did not have to pay Mr Mitchell any money.
[14] Apollo Legend appears to have complied with that agreement. However, on 20 December 2020 he published a video on YouTube (referred to in this proceeding as his "goodbye video"[12]), in which he told viewers that he was recording his final video and "this is the end of my life" and he explained why. Neither in that video nor in the accompanying message did he mention Mr Mitchell, the claim against him or the settlement agreement. Shortly after publishing it, he committed suicide.
[15] On 26 May 2021, Mr Jobst published a YouTube video entitled "The Biggest Conmen in Video Game History Strike Again!"[13] In some detail, he accused Mr Mitchell (and another person, Todd Rogers) of cheating and of pursuing unmerited litigation against people who accused him of cheating. He also said the following about Mr Mitchell:

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[22] His business is known as Rickey's World Famous Sauce, manufacturing and selling hot sauce under that name. Apparently it is very successful. Mr Mitchell claimed, in his statement of claim in a proceeding against Twin Galaxies to which I refer below, that, "He painstakingly built the company into a highly-successful business, in part trading on his fame as a video game record-holder."[16]
[23] It is necessary briefly to trace Mr Mitchell's rise to fame, as disclosed in the evidence, given that his reputation, both before and after the publication by Mr Jobst, is one of the principal issues in this proceeding. It is also relevant to the evidence about his reaction to the publication of Mr Jobst's video.
[24] As I have said in the introduction, Mr Mitchell first rose to prominence in 1982, when he made a world record score in Donkey Kong at an arcade and video gaming convention held by Twin Galaxies. He (and his subsequent rise to fame) was greatly supported by the then owner of Twin Galaxies, Walter Day, who was very impressed by his skill as an arcade gamer and clearly became a good friend.
[25] Over the years since 1982, Mr Mitchell became famous among devotees of arcade and video gaming, due to his skill and success in obtaining high scores, in Donkey Kong in particular but also in Pac-Man. He attended many gaming conventions around the USA where, as well as playing games, he spoke to fans, signed autographs and promoted and sold his company's hot sauce.
[26] Mr Mitchell's first world record at Donkey Kong was obtained at a gaming convention. He said that virtually all of his scores were obtained at Twin Galaxies' premises or at a Twin Galaxies event. His subsequent world records were obtained out of the public glare, with his games recorded on videos that he then submitted to Twin Galaxies for verification. That method - of submitting videos of his games - is common to most gamers, but it seems to have led to the later controversies that arose about his records.
[27] Mr Mitchell gave evidence of a number of tributes, both by awards and in articles in mostly online publications, to his skills in gaming since 1982. It is unnecessary to record them here. It suffices to say that he has been well-recognised over the years as a master player of certain arcade and video games. But is worthwhile quoting from one article, published in 2015,[17] as it demonstrates that his talent and fame were not only about his Donkey Kong scores.

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[42] His first proceeding was against Twin Galaxies. Mr Mitchell said that, following the publication of its decision, "we" (by whom I infer he meant he and lawyers engaged by him) prepared what he referred to as an evidence package containing eye witness and expert testimony and "all the facts we could put together."
[43] On 9 September 2019, Mr Mitchell's lawyers sent a letter to Twin Galaxies and to Guinness World Records,[24] demanding that they both retract their claims against him and restore his records. They attached a link to the "evidence package", contending that it "proves that the claims of Twin Galaxies and Guinness World Records are false."
[44] The nature and extent of the evidence package were described in some detail by the Californian Court of Appeal in the reasons for decision to which I have referred above.[25] It is unnecessary to set out those details here.
[45] Twin Galaxies' "outside general counsel" responded to that letter on 27 September 2019, refusing to reinstate Mr Mitchell's scores and denying (with reasons) that anything said by Twin Galaxies in its announcement of the result of its investigation was defamatory of Mr Mitchell, or that Twin Galaxies would be liable to Mr Mitchell even if anything it had said was prima facie defamatory.[26]
[46] On 11 April 2019, Mr Mitchell commenced a proceeding against Twin Galaxies in the California Superior Court,[27] claiming damages for defamation and "false light."[28] Mr Mitchell contended that he had undertaken the games on original Donkey Kong PCBs that had been verified by independent engineers, he had done so in front of multiple witnesses and the complaint by Mr Young and Twin Galaxies' investigation were biased and inadequate, so Twin Galaxies published its assertions maliciously.
[47] That proceeding lasted for some time and many pre-trial steps were taken, including Mr Mitchell giving deposition evidence (where he was cross-examined by lawyers for Twin Galaxies).
[48] The proceeding settled in January 2024. In accordance with that settlement, on 16 January 2024 Twin Galaxies published a statement on its website,[29] in which it said that:

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[58] Mr Mitchell described David Race as a competitive video game player. Mr Race himself gave evidence and said that he has a few world records on classic arcade games such as various versions of Pac-Man.
[59] Mr Mitchell sued Mr Race in Florida, in a proceeding commenced on 8 April 2021[39] and amended on 11 April 2022.[40] Mr Mitchell claimed that, unknown to him, Mr Race had recorded 27 telephone conversations between them and had provided the recordings and transcripts of them to Twin Galaxies for use by it in its defence of Mr Mitchell's claim against it. Mr Mitchell claimed that, in recording those conversations without his knowledge or consent, Mr Race had breached a Florida statute that made it illegal to record any conversation without the consent of all parties. He claimed a statutory entitlement to an award of damages for those breaches.
[60] What is clear from Mr Race's evidence, is that he feels that Mr Mitchell deceived him and used him to defend Mr Mitchell against the allegations of cheating and then, since Mr Race changed his mind and decided that Mr Mitchell had cheated, Mr Mitchell has victimised him.
[61] What happened to that litigation did not appear in the evidence. However, while not relevant to this proceeding it is of some interest to record that, since the trial in this proceeding finished, I have become aware of two decisions in the United States concerning Mr Mitchell's claim against Mr Race. In the first, in the District Court of Appeal of Florida (Fourth District),[41] Mr Race successfully appealed from a decision of the Circuit Court which had refused his motion to dismiss Mr Mitchell's proceeding against him for lack of personal jurisdiction. The Court of Appeal allowed his appeal and remitted the proceeding to the Circuit Court with a direction to enter an order dismissing the case for lack of jurisdiction. Mr Mitchell sought a review of that decision in the Supreme Court of Florida, which dismissed his proceeding for review in November 2024.[42]

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[85] He went on, among other introductory comments, to say, "The man is trying to ruin lives and I'm now of the opinion he is legitimately evil and hopefully something can be done to stop him soon" (00:55). In the section about Mr Rogers (which began at 01:04), Mr Jobst made some comments comparing him with Mr Mitchell, such as, "Rogers never appeared to be as villainous as Mitchell" (01:50) and "[Rogers] wants to prove to the world that he is just as big a scumbag as Mitchell" (02:00).
[86] The section devoted to Mr Mitchell starts at 11:19. The bulk of it concerns the background to litigation then recently commenced by Mr Mitchell against David Race, which I have briefly described above. He went on (at 16:01) to "do a quick rundown of all of the current legal action Mitchell is taking," referring to his proceedings against Twin Galaxies in California (alleging that he was suing for $1,000,000) and in Florida (allegedly for $10,000,000), against Jeremy Young (allegedly for $1,000,000), against Donkey Kong Forum and Jeff Harrist (allegedly for $2,000,000) and against Apollo Legend (allegedly for $1,000,000). The offending words were at 16:40-17:24. While he related the offending words, he showed an image of Apollo Legend in his goodbye video, some of Mr Mitchell's earlier text messages about Apollo Legend's suspected death and an extract from Mr Mitchell's court proceeding against Apollo Legend. He went on to say that Mr Mitchell had threatened to sue Mr Jobst himself and was trying to extort Mr Jobst for $150,000.
[87] In his evidence, Mr Jobst was asked about his basis for stating that Apollo Legend had paid Mr Mitchell a large sum of money. Apart from Apollo Legend's public statement about his settlement with Mr Mitchell, Mr Jobst said he was also aware of a post on Reddit that had been made several days before the settlement became public, in which the person posting said something to the effect, "Karl's playing a dangerous game. Billy forced Apollo Legend to settle and pay him money."[56]
[88] It is apposite at this stage to set out the evidence about Reddit. Relatively early in the trial, Mr Mitchell referred to Reddit and I, revealing my ignorance about such sites on the internet, asked what is Reddit. Mr Mitchell's description was:[57]

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[111] Where allegedly defamatory material is uploaded to the internet, the act of uploading itself does not constitute "publication" of the material. Publication is a bilateral act, in which the publisher makes the material available and another person takes the necessary steps to comprehend the material. In the context of publication on the internet, ordinarily publication comprises someone "downloading" the material from the internet and reading or watching the material using the recipient's computer. It is only when the material is downloaded in comprehensible form and read or (in the case of a video) watched and heard that it is published by the person who made the material available on the internet by uploading it. The corollary is that such material is published on each separate occasion that a person downloads and reads or watches and hears it and it is published where the person who downloads it is located. If the plaintiff then has a reputation in the place where the publication occurs and the reputation is damaged in that place by that publication, then the person who published it has committed the tort of defamation in that location.[75]
[112] The mere fact of posting material online does not lead to an inference that it has been downloaded. But it is not necessary, in order to prove publication of a defamatory video that was placed online by the defendant, for a plaintiff to call evidence from particular individuals to the effect that they downloaded, watched and understood the video. Publication, in the legal sense, may be established by pleading and proving a "platform of facts" from which an inference that material has been downloaded and viewed can properly be drawn. An inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of "hits" on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet.[76] In one case, screenshots of the defendant's YouTube posts were relied on by the parties and accepted by the judge as accurately demonstrating the number of times the allegedly defamatory videos had been viewed as at the date of the screenshots and therefore as evidence of the fact that the video about which complaints were made had been downloaded and comprehended by third parties.[77] In another case, Bradley J expressed the view that tendered copies of 10 Facebook posts the subject of the defamation allegations before him, together with the surrounding "comments", "likes" and "shares", were evidence, or at least evidence from which it could be inferred, that each of the posts had been downloaded and read. His Honour was also satisfied that the defamatory posts, which had been effectively made available to anyone in the world with access to the internet and a Facebook application, had been published or republished to some thousands of readers.[78]
[113] I shall now consider the evidence before me from which Mr Mitchell seeks to prove, either directly or by inference, the widespread publication of Mr Jobst's video and, in particular, the offending words.

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[114] Ten witnesses (other than Mr Mitchell) gave direct evidence that they saw the video containing the offending words shortly after it was uploaded by Mr Jobst.
[115] Mr Steve Grunberger is a systems engineer residing in Melbourne, Victoria. He is a fan of video gaming and knows Mr Mitchell. He said that he saw Mr Jobst's video, watching the whole of it, following which he sent a text message to Mr Mitchell with the link to the video on 31 May 2021.[79] At that time, he lived on the Gold Coast. He recalled seeing the video then because it concerned Apollo Legend's suicide and linked it to Mr Mitchell, which is why he sent the link to Mr Mitchell.
[116] Isaiah Johnson lives in Jamaica. He creates YouTube videos concerning the gaming culture, industry and community. He said he saw the video when Mr Mitchell showed it to him and talked with him about it. He said that it "blew up the internet because it went outside of the realm of normal gaming."
[117] Other witnesses who said that they had seen the video were Mr Mitchell's son; Charles White (who lives in Florida and described himself as a full-time online content creator and the owner of an e-sports organisation); David Race (a video gamer holding a number of world records who lives in Ohio); Carlos Piñeiro (who lives in Florida and is an information technology engineer with an interest in gaming scores and game players' videos); Jeremy Young (the administrator of the Donkey Kong Forum, who lives in Arizona); Jesse Gravelle (Apollo Legend's brother, who lives in Oregon); James Angliss (known as "Jimmy Nails", who lives in Brisbane, owns a bar in Fortitude Valley, runs competitive pinball tournaments and created the Australian version of a Donkey Kong classic arcade tournament known as the "Kong Off"); and Elliott Watkins (a YouTube content creator and talent manager for on-line content creators, who lives in Tamarama, New South Wales).
[118] Thus, there is direct evidence of the publication of the video in four states of the United States of America, three states of Australia (including Queensland) and Jamaica.
[119] Mr Mitchell also relies on indirect evidence as proving, by inference, that the video was seen by thousands of people before it was taken down by Mr Jobst on the second occasion. That evidence comprised:

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[128] Although Mr de Waard did not refer to it, the fact that the average viewing time for the 20 minute video was only between 10 and 11 minutes might lend some support to his proposition that many viewers would not have watched the full video. However, that does not demonstrate that few or no people watched the full video, or watched only the introduction and the section concerning Todd Rogers. It may be that Mr Jobst could not have produced figures enabling the analysis of views in ways that Rares J described but, even in the introduction, most of Mr Jobst's material concerns Mr Mitchell rather than Mr Rogers. It is also notable that most of the comments on the video concern Mr Mitchell, not Mr Rogers. Many of the commenters expressly or impliedly indicated that they had seen the section concerning Mr Mitchell and, in particular, the offending words. It seems more likely to me that many people who only watched part of the video would have watched the introduction and then skipped to the section concerning Mr Mitchell and watched that. Notably, the combination of those two sections lasts about 9½ minutes: not much less than the average viewing times.
[129] I am satisfied that, during the two periods when the video containing the offending words was available online, over 500,000 people downloaded and (I infer) watched it, of whom over 20,000 were in Australia. It was published in at least 14 countries around the world. Even if those unique numbers were fewer, there is no doubt that some hundreds of thousands of people downloaded the video containing the offending words.
[130] I am also satisfied that most, if not all, of the people who downloaded the video watched the sections concerning Mr Mitchell and would therefore have seen the offending section and heard the offending words. The thumbprint of the video had a photograph of Mr Mitchell and the introduction was mostly about Mr Mitchell, including the statement that Mr Jobst was "now of the opinion that he is legitimately evil." Those characteristics (but especially the introduction) were clear hooks to ensure that viewers initially downloaded the video and, having done so, landed on the section dealing with Mr Mitchell, where a viewer might expect (as was the case) that Mr Jobst would explain that comment. My conclusion is also supported by the analytics and by the number and content of the comments on the video, particularly during the periods when the offending version was available online.
[131] Having regard to all these matters, I am prepared to infer that the vast majority of viewers, if not all, watched those parts of the video relevant to Mr Mitchell.[91]
[132] Consequently, I find that the video containing the offending words was published to and seen and comprehended by several hundred thousand people. Most (if not all) would have had an interest in video gaming and, in that context, in any allegations about Mr Mitchell, as he was then notorious in that community for having been accused of cheating and found to have most likely used MAME software to obtain at least two of his record Donkey Kong scores.

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[137] Whether a publication is capable of bearing the imputations pleaded by the plaintiff is a question of law. Whether it does bear those imputations is a question of fact. The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader or viewer. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it.[94]
[138] In deciding whether the offending words are capable of conveying a defamatory meaning, a court must reject a meaning that can only emerge as a product of some strained or forced or unreasonable interpretation. The test of reasonableness guides and directs the court in deciding whether the words are capable of bearing the meaning for which the plaintiff contends.[95]
[139] The forum, medium and context in which the offending words are published are relevant to the meaning of the publication, as they may affect the nature and understanding of the ordinary reasonable reader or viewer and the mode of publication can affect the way in which the ordinary viewer absorbs the information, including the amount of time the viewer devotes to viewing it.[96] The context of the offending words within the whole of the publication is also relevant to their meaning. They must be considered in that context: that is, within the publication as a whole.[97] The natural and ordinary meaning of words contains "all such insinuations and innuendoes as could reasonably be read into them by the ordinary man".[98]
[140] Where the mode of publication provides an opportunity to review the publication before understanding it, the meaning of the words, or their interpretation, may be different from reading or hearing a more ephemeral mode of publication. Traditionally a distinction might be drawn between, on the one hand, seeing and hearing an article published on television or radio (in the times before viewing or hearing on demand), on the one hand, and on the other reading the publication in a book or a newspaper.

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[155] Mr de Waard conceded that that is a way in which the sentence could be construed, but he referred to the last sentence as supporting the construction for which he contended. As to that, I put to him that it really supported the construction that I had suggested: because of his illness, he couldn't handle the ongoing stress which came from owing a large sum of money, being deeply in debt and being unable to work. Again, Mr de Waard accepted that that is one way it can be viewed.[113]
[156] I also raised with Mr de Waard whether I can take into account, in determining the meaning of the words, the contents of the comments made on the video, or at least some of them. If one takes them into account, they appear to show an immediate construction by the commenters to the effect that Mr Mitchell caused or substantially contributed to Apollo Legend's suicide. I asked whether I should treat all those commenters as unreasonable viewers. He submitted that, while to do that generally would help his case, I might be more discerning and consider whether particular comments (such as "He killed Apollo") were unreasonable. I did not understand Mr de Waard to contend that I should take the comments into account in determining the meaning of the words. As I have said above,[114] the understanding of the words by those to whom they were published is irrelevant in determining the meaning of the words as they would be understood by the ordinary reasonable viewer.
[157] Mr de Waard also submitted that, given the context in which the offending words were situated (at the 16 minute 45 second mark of a 20 minute YouTube video about Mr Mitchell and Mr Rogers being cheats), the ordinary reasonable viewer would be unlikely to attribute any importance (or would attribute less value) to the words and would take into account that the video "was by a disgruntled YouTuber who believed the plaintiff was a cheat and a bully who sues people who call him a cheater and who had just spent the last 16m 45s talking about how he and Mr Rogers were both pathetic cheats." Having regard to the specific wording and structure of the offending words, their placement in the video and the general nature of the video and its forum, the viewer would not consider the words to convey this imputation.[115] He submitted that the important aspects of the video were in the title and the beginning, which concentrated on the allegations of cheating and people were unlikely to watch the video to the end, but merely the introduction.
[158] With respect, this submission does not have any basis in the evidence. The entire video was about two alleged "conmen" who cheated at video and arcade games and who were using litigation to retaliate against anyone who said their scores were fake. While some people may have looked at the introduction and decided not to watch the rest of the video, there is no basis to suggest that that was frequently the case. If Mr de Waard intended to submit that the fact that the video was introduced in that manner weighed against the offending words bearing this imputation, I disagree. The whole tenor of the video was that Mr Mitchell (and Mr Rogers) used litigation to retaliate against others. The segment dealing with the action against Apollo Legend was given as an example of such litigation and the effect it had.
[159] Mr Somers submitted that Mr de Waard's analytical approach to the offending words was not the correct way to determine their meaning. He drew my attention to the words of Lord Devlin quoted by the plurality of the High Court in Favell v Queensland Newspapers Pty Ltd at [11]; in particular that "it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis."[116] He submitted that Mr de Waard's approach conflicts with that requirement and is overly analytical.
[160] With respect, I agree. A viewer of the video, whether watching one time only or repeatedly, would be unlikely to analyse the grammatical structure of the words in the manner suggested by Mr de Waard. Lord Devlin's description of the approach applies. The overall impression on the viewer is how this court must consider what meaning a reasonable viewer would understand from what was said and shown.
[161] Mr Somers also submitted, correctly in my view, that I should not take the comments into account in determining the meaning of the words, as it is a matter for me to determine, although they may make it easier for me to conclude that the words have the meaning for which Mr Mitchell contends.
[162] As I have said, it would not be a correct approach for the court to take into account the comments on the video in determining for itself the meaning of the words. So, ignoring those comments, do the words bear the meaning for which Mr Mitchell contends? In my view, they do. An ordinary reasonable person watching the video for the first time would link the "frivolous" and retaliatory litigation by Mr Mitchell against Apollo Legend and the alleged requirement on settlement of that litigation that Apollo Legend pay Mr Mitchell a large sum of money, with the need to find extra work and, given his health issues, a burden that became too much so that he took his own life. In other words, the requirement, in settlement of the litigation, to pay Mr Mitchell a large sum of money was a substantial contributing factor in Apollo Legend's decision to commit suicide. The background pictures behind the spoken words contribute to this impression, moving as they do from an image of the court claim against Apollo Legend to a picture of Mr Mitchell and Apollo Legend together at a gaming event, to Apollo Legend's announcement of the settlement, to a silent extract from Apollo Legend's final video, to an image of text messages by Mr Mitchell expressing joy at an earlier rumour of Apollo Legend's death, and finally returning to the court claim. All of those facts are linked by the words and the images.
[163] Of course, this mode of publication provided the viewer with an opportunity to review it before reaching a final understanding of it. But in my view an ordinary reasonable viewer who rewatched the video (or only the part containing the offending words), would be unlikely to change her or his understanding of the words. If anything, a review of the video would confirm an understanding that Mr Jobst was asserting that the settlement between Mr Mitchell and Apollo Legend was a significant contributing factor to the latter's decision to commit suicide.
[164] The meaning for which Mr Mitchell contends is not a strained, forced or unreasonable interpretation of the video.[117] I find that the second imputation arises from the video.

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[165] Mr Somers did not expand on the basis for this alleged imputation in his written submissions or his address.
[166] Mr de Waard submitted that the word "hounded" is synonymous with words like pursued, chased, harassed, pestered, hunted, badgered or dogged, which imply aggression and intention of behalf of Mr Mitchell. The ordinary reasonable viewer would not understand the offending words to have this meaning.
[167] The term does infer a substantial degree of deliberate and unjustified repetition, pestering and persistence in making demands, amounting to harassment. There is no suggestion in the offending words, either alone or in the context of the balance of the video, that Mr Mitchell, having settled his defamation case against Apollo Legend, had any further contact with him or pestered him for payment of the alleged large settlement sum. Indeed, the passage expressly says that Apollo Legend had actually paid Mr Mitchell the agreed sum, apparently leaving him in debt to somebody else. It does not suggest that Mr Mitchell knew that the Apollo Legend went into debt to pay the settlement sum. Having been paid, and Apollo Legend having removed the relevant videos from his YouTube channels, Mr Mitchell had no reason to contact Apollo Legend (and there was no suggestion that he did). However, Mr Jobst did conclude this passage by saying that the litigation itself was frivolous and Apollo Legend could not handle the ongoing stress (apparently, the stress caused by the litigation), thus inferring that the litigation itself contributed to Apollo Legend's suicide.
[168] Of course, this passage must be considered in the context of the video as a whole. The whole tenor of the complete video, insofar as it concerned Mr Mitchell, was that he persistently sued anyone who alleged that he had cheated in obtaining his world records, but additionally he had, in suing such people, recently demonstrated a new level of unjustified conduct that meant that he was "legitimately evil." The section about his dealings with Apollo Legend was produced in that context: attempting to demonstrate that Mr Mitchell was evil because he had deliberately commenced frivolous litigation that led to a young man giving in to the litigation pressure, going into considerable debt to settle it and then having an increased level of stress with which he could not cope, leading to his suicide.
[169] In the context of the entire video, I consider that a reasonable viewer could construe the video as meaning or seeking to convey that Mr Mitchell used frivolous litigation and his demands for settlement of that litigation in a way that constituted hounding Apollo Legend and that resulted in his decision to commit suicide. Mr Jobst was clearly intending to imply that Mr Mitchell took these steps knowing that they would cause Apollo Legend considerable stress, even though he may not have thought that Apollo Legend would ultimately commit suicide as a result. In short and colloquial terms, Mr Jobst implied that Mr Mitchell hounded Apollo Legend to death.
[170] Therefore, I find that the third imputation arises from the video.

[257]

There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"),[128] Atkin LJ remarked that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour'. To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same 'infallible' capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption.[129] Lord Devlin in The Judge[130] quoted with approval a remark of MacKenna J: 'I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability ... to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth.' It was a becoming but entirely accurate modesty.

... Fifty years ago, the Supreme Court of Canada[131] wisely declined to offer guidelines about the kinds of demeanour that would afford reliable indicators of the trustworthiness of witnesses. The studies of experimental psychologists since that time have confirmed the danger of placing undue reliance upon appearances in evaluating credibility. ... Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. ...

[261]

[189] Mr de Waard gave some examples of occasions when Mr Mitchell became aggressive during cross-examination, or seemed to evade answering a question. Mr Somers submitted that it was not surprising that, over two days of cross-examination, Mr Mitchell occasionally became aggressive or facetious in his answers to some questions, but overall he was respectful, attempted to answer questions as best he could and appeared mostly to have a good memory of events.
[190] As to these general observations, my impression was that Mr Mitchell attempted to answer the questions as they were asked. On occasions he appeared to be upset. At other times he became a little aggressive or facetious, but those occasions were few and, frankly, were understandable given the long time he spent under cross-examination. For most of his evidence he answered the questions asked of him.
[191] Mr de Waard raised seven matters in particular that he contended cast serious doubt on Mr Mitchell's credit generally and on the truthfulness of certain evidence he gave in particular. I do not propose to consider each of those matters in detail. Rather, I will deal with the principal assertions about Mr Mitchell's evidence in this proceeding.
[192] First, Mr Mitchell does not claim any special damages for loss of income in this proceeding, but he gave evidence - relevant to harm to his reputation caused by the publications - that, after the publications, the number of gaming and other events which he was invited to attend, whether paid or not, reduced substantially. One of those was the Music City Multi-Con in Nashville in October 2021. Mr Mitchell said he attended that event to say hi to some friends who were there, but he was not expected there, he did not issue any invoice for attending and he did not get paid for his attendance, although he did play some games while he was there. He reiterated that he did not get paid, although he been paid to attend the event the previous year. He was then shown an invoice from his manager claiming payment of $4,000 for his appearance at the 2021 event.[133] His response was that he was there one year when he was paid and the second year he did not get paid. He must have mixed up the years.
[193] Mr de Waard submitted that Mr Mitchell was clearly lying in saying that he did not get paid for his appearance in 2021. I do not accept that. Although often he was able to recall dates accurately, I am not surprised that he might mix up the years in which he was paid and when he was not paid for the same event. Also, it is doubtful that the event took place in 2020, at the height of the Covid-19 pandemic. It is more likely that he attended in 2021 (for which he was paid) and again in 2022 (for which he was not paid). Whichever years he did in fact attend, on this issue I consider that he was mistaken rather than deliberately giving false evidence.
[194] Secondly, Mr de Waard questioned Mr Mitchell about evidence that he gave in his litigation against Twin Galaxies. Mr de Waard submitted that he had given false evidence in both that proceeding and this. The first item of allegedly false evidence in the Twin Galaxies proceeding was that Mr Mitchell had lost income for appearances for which he would have been paid in 2018 and 2019, after Twin Galaxies' announcement of its conclusion that he had not used original arcade hardware to achieve his Donkey Kong records. In a "declaration"[134] made by Mr Mitchell in that proceeding, he said that he had lost income of $133,000 in 2018 and $68,000 in 2019. One item of that loss in each of those years was for the Southern Fried Gaming Expo, but in his evidence in chief in this trial he had said that he appeared there "every other year - every third year since 2012."[135] Mr Mitchell's response to Mr de Waard's contention that he had lied in the Twin Galaxies proceeding was that his manager prepared the list of losses, which he believed at the time was correct but he could not remember all the facts some six years later.
[195] Mr de Waard contended that this was evidence of Mr Mitchell having knowingly claimed a loss in the Twin Galaxies proceeding that he knew was false. Again, I am not satisfied that this is the case. Mr Mitchell does not appear to have been challenged on that evidence at the time. It is quite possible that, before the Twin Galaxies announcement, he had been invited to appear at two consecutive expos, even though previously it had been every second or third year. It is speculation, at this stage and without documents, to contend that that had or had not occurred. It is also difficult and somewhat unfair to cross-examine a witness about evidence that he gave four years ago, in another proceeding in another country, about events that may or may not have occurred five or six years ago, particularly without having all the relevant documents available in this proceeding. I do not accept that he gave false evidence in this respect, either in the Twin Galaxies proceeding or in this matter.
[196] Thirdly, Mr de Waard submitted that Mr Mitchell is a dishonest person who plotted to deceive Twin Galaxies by creating a tape of him achieving 1,062,800 points in Donkey Kong and, in effect, pretending that it was a tape of his original achievement of that score (as portrayed in "King of Kong").
[197] This issue is mostly relevant to one aspect of Mr Jobst's contextual truth defence. I shall consider it in detail in that context,[136] but for now I shall simply say that, for the reasons discussed in that context, I do not consider that it demonstrates any dishonesty on Mr Mitchell's part, nor that as a result he lacks credibility generally or in his evidence in this proceeding.
[198] Fourthly, Mr de Waard submitted that Mr Mitchell attributed some of the same economic and health issues to the Twin Galaxies publication in that litigation and to Mr Jobst's video in this litigation, which demonstrated a tendency to be untruthful in either or both proceedings. In economic terms, in a deposition he gave in the Twin Galaxies proceeding on 9 January 2023,[137] he said that John Weeks of the Museum of Pinball had told him that he was cancelling an appearance because of Twin Galaxies' accusations. In this proceeding, he said that Mr Weeks had cancelled his appearance at an auction scheduled for October 2021 because of Mr Jobst's allegations in the offending video.[138] When tested on this apparent inconsistency,[139] Mr Mitchell at first asserted that, in the deposition, he did not identify which publication led to the cancellation of his appearance. However, he was clearly being asked questions about cancellations due to the accusations against him (the only accusations the subject of that litigation being those by Twin Galaxies). Yet Mr Weeks' email to him cancelling his appearance clearly attributed that decision solely to Mr Jobst's accusations.
[199] It does appear that Mr Mitchell's evidence in his deposition was wrong in that respect. But again his evidence was not tested by reference to any document or otherwise. When I questioned him, he accepted that what he had said was wrong. While one might take this as an indication that his evidence should perhaps be treated with some circumspection unless supported by contemporaneous documents or other evidence, on its own it is not sufficient to persuade me that he is a generally untruthful witness rather than one who occasionally makes mistakes.
[200] From the health perspective, in his deposition it was put to Mr Mitchell that, in some document,[140] it was stated that he had been diagnosed with a hernia and atrial fibrillation due to Twin Galaxies' publication. He responded that the atrial fibrillation was directly related to stress and no other reason. In this proceeding, in answer to a question from Mr Somers whether he had had any physical reaction to Mr Jobst's video, he said, among other things, that in September 2021 he was diagnosed with atrial fibrillation caused by stress, resulting in surgery. In cross-examination he said that the major stress in his life at that stage was because of Mr Jobst's video. Mr de Waard submitted that, in effect, Mr Mitchell attributed his atrial fibrillation to the alternative publications to suit his respective cases.
[201] Indeed, in interrogatories in the Twin Galaxies proceeding, Mr Mitchell was asked to identify each injury he attributed to the Twin Galaxies publication and the area of his body affected. His response was, "Responding party attributes atrial fibrillation and inguinal hernia as injuries from [the publication]."[141] When asked about that in this trial, Mr Mitchell said that it was an ongoing condition until surgery in 2021, but what it was caused by was a medical question.
[202] I do not consider Mr Mitchell's answers in each case to be inconsistent. In each case, while answering questions about the effect of the relevant publication, he said that he was diagnosed with atrial fibrillation due to stress. It seems that, in the Twin Galaxies deposition, he was then asked about other causes of stress at the time, but that stream of evidence is not in the tendered extract of his deposition.[142]
[203] Mr Mitchell may well attribute his stress to both publications and their aftermaths. Indeed, that may well be the case. I do not consider his references to that condition to be mutually inconsistent, nor to cast doubt on his credibility.
[204] Fifthly, Mr de Waard referred to Mr Mitchell's evidence in this proceeding and in the Twin Galaxies proceeding in which he appeared to compare the stress of the respective proceedings with other stressors. During cross-examination in this trial about the stress of the two proceedings, Mr Mitchell spontaneously said, "the Twin Galaxies stress is nothing compared to this" and it "does not compare to this."[143] Mr de Waard then showed and tendered a video[144] of part of Mr Mitchell's deposition in the Twin Galaxies proceeding on 9 January 2023 in which, among other things, Mr Mitchell said the Twin Galaxies publication had badly affected him, including causing him to have depression, anxiety and embarrassment that was still ongoing. When asked about alternative stressors he had in his life, he said, "Just this and what is a result of this." He was then asked about other lawsuits, leading to the following exchange:

[263]

[205] Mr de Waard submitted that Mr Mitchell's evidence in the Twin Galaxies deposition that the pain and suffering caused by Mr Jobst and others was minimal compared to that caused by Twin Galaxies was entirely inconsistent with his evidence to this court that the Twin Galaxies stress was nothing compared to that caused by Mr Jobst's video the subject of this proceeding. I understood Mr de Waard's submission to be that this inconsistency indicates that Mr Mitchell will say whatever he thinks he needs to say to support the case in which he is, at a particular time, giving evidence. Therefore, he cannot be considered a credible witness.
[206] In re-examination in this trial, Mr Mitchell said that, in answering those questions in the deposition, he understood them to be about publications concerning game scores, which was the subject of the Twin Galaxies publication and publications by each of the others, including Mr Jobst. They were not discussing Apollo Legend. If they had been talking about Apollo Legend, he would not say it was minimal; it was monumental. What Mr Jobst and the others said about his game scores was minimal compared to Twin Galaxies' publication and "findings" about his records.[145]
[207] I consider Mr Mitchell's explanation in re-examination (which he offered to give during cross-examination but was prevented from giving) to be a reasonable explanation for what otherwise might have seemed to be an important inconsistency, indicative of someone who gives evidence to suit the day. In other words, on consideration, I do not consider that his evidence in these respects was inconsistent or not credible. The Twin Galaxies publication was the beginning of numerous allegations that he had cheated, which included videos published by Mr Jobst and others about his alleged cheating. But it was the Twin Galaxies publication of its findings that led to the others, which really just repeated and built on Twin Galaxies' allegations.
[208] In considering Mr Mitchell's credibility as a witness, obviously I take into account what he and other witnesses (and documents from the time) said. But I also take into account how Mr Mitchell gave his evidence, while conscious of the warnings about judges' fallibility in determining truthfulness or otherwise from a witness's demeanour. Overall I considered him to be attempting to answer questions, while sometimes becoming frustrated or emotional in the light of the questioning. One occasion in particular struck me as unfeigned and indicative of the effect on him of Mr Jobst's actions. In his examination in chief, Mr Somers asked him what was his reaction to seeing the video. That led to the following exchange:[146]

[291]

[232] Thirdly, his "retraction" of his error in stating that Apollo Legend had paid Mr Mitchell a large amount of money was, in my view, deliberately hidden by him at the end of a long video about an irrelevant topic and without any thumbnail or mention in the description of the video that pointed to Mr Mitchell being a subject dealt with in it. He denied that he had deliberately hidden his retraction. Mr Somers asked him questions to the effect that, if he had wanted people to know that this video partly concerned Mr Mitchell, he would have included a photo of Mr Mitchell in the thumbnail, or he would have referred to Mr Mitchell in the title or in the description of the video. In each case, his answer was, "Not necessarily, no." He then explained that YouTube metrics include a "click through" rate and, if the video has a really good thumbnail or title that shows it as interesting, a higher percentage of people will click on it, which will result in YouTube promoting it to more people.[167]
[233] I do not doubt Mr Jobst's evidence about the YouTube metrics, but he did not explain why the inclusion of a picture or reference to Mr Mitchell in the title or thumbnail would not, in fact, increase the click through rate because it would be of interest to more people. Nor did he explain why he chose to put his retraction in (and at the end of) that video, which was otherwise irrelevant to Mr Mitchell and quite possibly of no interest to many viewers who had an interest in Mr Jobst's videos about Mr Mitchell.
[234] I found his evidence to the effect that he did not deliberately hide his retraction within an irrelevant video about another topic not credible.
[235] Fourthly, in that video[168] he said something that was wrong, about which I considered his evidence to be disingenuous and that leads me to have reservations about his credibility on occasions. He said, "nor did [Mr Mitchell] attempt to get in contact with me to clear up any misinformation I may have had." Mr Somers put to him that he had seen Mr Mitchell's response, he had spoken with Keemstar and he had received the concerns notice; Mr Mitchell was attempting to get in contact with him through Keemstar and then through his lawyers and telling him he was wrong. His answers were that Keemstar was "a third party" and he did not consider that a letter from Mr Mitchell's lawyers was Mr Mitchell getting in contact with him. He contended that, when he made that statement in his video, he was referring to Mr Mitchell himself contacting him. Relevantly, the following exchanges took place between him and Mr Somers:[169]

[295]

[240] Mr de Waard submitted that three of the witnesses called by Mr Mitchell were obviously close to and biased in favour of Mr Mitchell, although he conceded that none of the witnesses was not credible.
[241] Mr Somers submitted that the witnesses called by Mr Mitchell comprised a mixture of people who have known him for many years and people who are not friends, but who were independent in their assessment of him - and, in fact, who assessed his reputation in choosing to invite him to appear at events in order to bring in attendees. All of Mr Mitchell's witnesses have directly observed him interacting with people and had first hand insight to how he has been perceived by society generally.
[242] Mr Mitchell Jnr is, of course, his son, who has been involved in the preparation of claims by Mr Mitchell against Mr Jobst and others, in each of which the same or similar damage to Mr Mitchell's reputation has been alleged as in this case. He described the interactions he observed at gaming and other conventions between his father and other attendees at those conventions, both before and after the offending publications. He compared the numbers of such appearances at such gatherings that his father was invited to both before and after the publications. He also gave evidence of Mr Mitchell's reputation, so far as he had heard of it. For example, he said that, when Twin Galaxies published its decision to remove Mr Mitchell's records, people he knew would ask him about it and most told him they thought it was rubbish. He also negotiated the settlement agreement between his father and Apollo Legend. He described the effects he observed that Mr Jobst's publications had on his father, both immediately after they were published and after later appearances were cancelled.[170] He also described the effects on his father, as he observed them, of the Twin Galaxies decision and publication of it, as well as the effects (or lack of them) of publications by other people whom his father had sued.[171]
[243] Mr Mitchell Jnr struck me as an honest witness giving credible evidence. He was responsive to the questions asked of him. He did not appear to exaggerate any part of his evidence. I have no reason to doubt any of it, notwithstanding his relationship to his father.
[244] Walter Day was the creator of Twin Galaxies and its owner when Mr Mitchell set his records.[172] He is clearly a good friend of Mr Mitchell and, since Mr Mitchell became famous, he has frequently attended gaming conventions as a guest along with Mr Mitchell (in his own words, as a side bar and riding on the coat-tails of Mr Mitchell). As Mr de Waard submitted, he has benefitted greatly from his long-term and ongoing association with Mr Mitchell. He gave evidence about Mr Mitchell's interactions with attendees at gaming conventions, both before and after the offending publications. He also described his observations of Mr Mitchell's reactions to the publications.[173]
[245] I have no reason to doubt Mr Day's evidence simply because he is a good friend of, and has benefitted from his association with, Mr Mitchell, although I do take into account his obvious enthusiasm for Mr Mitchell by treating some of his evidence as overly enthusiastic and perhaps unconsciously exaggerated. But he was particularly well-placed to see Mr Mitchell's interactions with members of the public at conventions and other events and his evidence is supported by evidence of other witnesses and by some of the documentary exhibits, such as photographs.[174]
[246] Isaiah Johnson gave evidence by video link from Jamaica. He is clearly another enthusiastic supporter of Mr Mitchell. Mr de Waard submitted that he makes money from Mr Mitchell and gets employment deals as a package with Mr Mitchell, so I should not treat him as an unbiased witness. Mr Johnson said that, between 2008 and 2020, he would go to conventions with Mr Mitchell about four or five times a year. He gave evidence about other attendees' reactions to Mr Mitchell at those conventions. He also gave evidence of his observations of Mr Mitchell after Mr Jobst's videos were published.
[247] Again, while taking account of the enthusiasm with which he gave his evidence, I do not consider there to be any reason for me to doubt any part of Mr Johnson's evidence.
[248] Mr de Waard submitted that there is no reason to doubt the credibility of the other witnesses called by Mr Mitchell, so it is unnecessary to discuss them at this stage.

[299]

[252] David Race first met Mr Mitchell in about 2010. When Mr Mitchell was first accused of having cheated (and then was found by Twin Galaxies to have used MAME software), Mr Race did not believe the allegations. He spent a lot of time defending Mr Mitchell and testing the hardware given to him by Mr Mitchell, who told him that it was the hardware on which he had achieved his first two record scores for Donkey Kong, which led him to believe - and to promote the view publicly - that Mr Mitchell had achieved his scores on original unmodified arcade hardware. He then saw further material that led him to change his mind and to believe that Mr Mitchell had in fact cheated in obtaining those scores. Since then, he has felt that Mr Mitchell deceived him, he has felt embarrassed and that he had been used by Mr Mitchell as a "useful idiot" to support his narrative and he felt hurt by Mr Mitchell's deceit. In his evidence, he described Mr Mitchell as "someone who is a proven cheater, who has been shown to be a compulsive liar and will basically perpetrate a fraud in front of witnesses and still claim that he did something that he didn't."[175] Mr Race has also been sued by Mr Mitchell in a case that was ongoing at the time of the trial, in respect of which Mr Jobst has assisted in raising over $55,000 to help pay Mr Race's legal costs.
[253] Since changing his mind about Mr Mitchell, Mr Race has taken multiple steps to attack him and to affect his interests adversely. He contacted the organiser of a gaming convention which Mr Mitchell had been invited to attend, saying such things as that Mr Mitchell is a cheater, a liar and a fraud.[176] He has made more than 70 posts on Facebook criticising Mr Mitchell since September 2019. He has contacted others accusing Mr Mitchell of lying, cheating and victimizing people.[177] He accused Mr Mitchell of suing Apollo Legend for $1,000,000, Donkey Kong Forum and Jeremy Young for $2,000,000 and Twin Galaxies for $1,000,000. He said that he was giving evidence to help Mr Jobst against Mr Mitchell's attempt to extort and silence him and for justice to be done.
[254] Mr Somers submitted that the Court ought to assess Mr Race's evidence from the point of view that he is intending to hurt Mr Mitchell. It is obvious to me that Mr Race now hates Mr Mitchell and would like Mr Jobst to succeed in defending this action. He strongly believes that Mr Mitchell cheated and that he victimises people who challenge him (including Mr Race himself). He is clearly not an unbiased witness. His evidence about Mr Mitchell's reputation (which I shall describe below) is certainly coloured by his attitude toward him. I consider that I should be careful before accepting his evidence without corroboration.

[309]

[271] Mr Mitchell's wife did not give evidence. She was mentioned, in text messages that Mr Mitchell sent to Mr Hall and Mr Piñeiro in March 2018, as having found two online sources to the effect that Apollo Legend had died.[183] Mr Mitchell Jnr said she mostly controlled Mr Mitchell's social media accounts. Mr Mitchell and other witnesses also gave other evidence about her involvement in some of the relevant events.
[272] In answer to a question from me, Mr de Waard submitted that, as she was not called to give evidence and no explanation was given for her absence, the court should infer that any evidence she might have given would not have assisted Mr Mitchell's case.[184]
[273] Mr Somers, unsurprisingly, submitted that I should not draw any adverse inference from Mrs Mitchell's absence. He submitted that Mr de Waard did not put any questions to Mr Mitchell or Mr Mitchell Jnr about whether or not she could give evidence, so such an inference is not open to be drawn but, when I challenged that proposition as a matter of law, he conceded that an inference could arise.
[274] It seems to me that Mrs Mitchell, if called to give evidence, is likely to have been able to give useful evidence on at least two topics. One would be what her sources were for the rumour of Apollo Legend's death and perhaps Mr Mitchell's reaction when she told him about the rumour. A second - and the more important - would be about her observations of Mr Mitchell's reactions to the video, to Mr Jobst's subsequent conduct and to comments on the video. While Mr Mitchell Jnr gave evidence about his observations, I would expect her observations to be closer and her evidence perhaps more detailed. Indeed, Mr Mitchell himself said that she had insisted on him going to see a doctor due to his condition[185] and also said that his behaviour as a consequence was affecting her and their children.[186]
[275] It would be natural - and to be expected - that Mr Mitchell would call Mrs Mitchell to give evidence, at least on the second issue that I have described. Her evidence would not merely be cumulative on the evidence given by Mr Mitchell and his son, but would likely have resulted in additional observations about the effects on him and the family and could have resulted in better evidence of his appearances at events and whether or not he was paid for them.
[276] The closeness in the relationship of Mrs Mitchell and Mr Mitchell results in the failure to call her being more significant and more open to an adverse inference being drawn than might have been the case with a different witness.[187] The relationship of husband and wife is obviously prima facie close and no explanation has been given for her absence.
[277] Ultimately, to the extent that Mrs Mitchell's evidence, if called, may have been relevant to the determination of some issues (particularly concerning the effect of the video on Mr Mitchell personally and on his invitations to attend events), I am prepared to infer that her evidence would not have assisted Mr Mitchell's case. Of course, that does not rise to an inference that it would have been adverse to his case. But I may take it into account in deciding whether to accept any particular evidence relating to a matter on which she could have given evidence. I may also more readily draw any inference unfavourable to Mr Mitchell where Mr de Waard may have been able to prove a relevant fact in cross-examination of Mrs Mitchell, if she had been called, because she seems have been in a position to cast light on that subject.[188]

[319]

[282] A defendant does not have to establish the substantial truth of all the contextual imputations pleaded in order to succeed.[191]
[283] In raising these alternative imputations, Mr Jobst effectively seeks to establish that Mr Mitchell already had (or was given by the contextual imputations) such a bad reputation that, even if the imputations that he pleads arise, he was not further harmed by them. Similarly, in defence of Mr Mitchell's plea that the video (particularly the offending words) injured his reputation, Mr Jobst has pleaded that Mr Mitchell already had a settled bad reputation, as a cheat in obtaining his records in Donkey Kong, as a person who used litigation to coerce others into recognising his records or to refrain from identifying him as a cheat, and as someone who would ostracise anyone whom he considered a threat to his Donkey Kong records.[192] These allegations are so close to some of the alleged contextual imputations, that they all merit consideration together.
[284] In seeking to prove that the plaintiff already had a bad reputation (whether as a defence to an allegation of harm to reputation or because of substantially true contextual imputations), the allegedly bad reputation must be relevant to that "sector" of the plaintiff's reputation that is, or may be, harmed by the imputations proved by the plaintiff.
[285] A plaintiff may have different reputations in different areas, or sectors, of the plaintiff's life.[193] For example, a doctor may have a good reputation as caring for her or his patients in the course of the doctor's practice. In defending defamatory comments about the doctor in that capacity, it is irrelevant that the doctor also has a reputation as having falsified the results of scientific experiments not conducted in the course of that practice.[194] Another notorious example is where a libel imputes theft: the relevant sector is the person's reputation for honesty, not his reputation as a good motorist.[195]
[286] Perhaps of particular relevance to this proceeding, although not relied on by Mr Somers, is an example given by Levine J:[196]

[331]

[293] I consider that any reasonable viewer of the video would conclude that it made the imputation that Mr Mitchell had been publicly exposed as cheating in obtaining his Donkey Kong scores. Indeed, it actually asserted that he had cheated. The imputation is therefore made in the video.
[294] In determining whether the imputation is substantially true, Mr Somers submits that Mr Jobst is limited to relying on two things, as pleaded in the particulars to paragraph 17(a) of the defence: the statement made on 12 April 2018 by Twin Galaxies[200] and a statement published on the internet by Jeremy Young on 2 February 2018, in which (Mr Jobst pleads) he was "confirming that ... the plaintiff had cheated to attain his scores in the video arcade game, Donkey Kong."
[295] Mr Somers correctly stated that Mr Young's statement is not in evidence, so in fact Mr Jobst cannot rely on it. The only evidence about it was secondary (although no objection was made to the admission into evidence of that secondary material). Mr Mitchell said that, on that date, Mr Young posted a challenge to his records on the Twin Galaxies website, in which he alleged that Mr Mitchell had not used original Donkey Kong hardware in obtaining his world record scores. Mr Race said that, on that date, Donkey Kong Forum removed Mr Mitchell's scores from its website and its evidence was added to the Twin Galaxies dispute thread, which generated a fair bit of attention in the classic gaming "niche community." Mr Racewent on to say that the MAME allegation began to come out on that date on the Donkey Kong Forum and was added to the Twin Galaxies dispute thread.[201] Given the absence of any objection to the secondary evidence of Mr Young's statement, I consider that I can act on that evidence.
[296] Mr Jobst also relies on some of Mr Mitchell's evidence, in which he agreed that in 2018 he had been publicly exposed as having cheated, although he also asserted that the allegations were false and have subsequently been proved to have been false.[202] He also relies on evidence from Mr Burt,[203] that "it was made aware on the internet forums that, um, Twin Galaxies, um, alleged that Mr Mitchell was cheating in the high score of the Donkey Kong,"[204] as well as other evidence from witnesses that the community viewed him as a liar or cheater and many articles reported the allegations.[205]
[297] Mr Somers submitted that Twin Galaxies' statement did not expressly identify Mr Mitchell as a cheater, but only that, in its view, on two occasions he had not used original unmodified Donkey Kong hardware to achieve his scores, while the third was unclear. Mr Somers submitted that to cheat means to gain an unfair advantage by deception or breaking rules and Twin Galaxies did not contend that Mr Mitchell had submitted his scores with the intention to trick or deceive it into recognising them.
[298] It is correct that Twin Galaxies did not expressly say that Mr Mitchell had cheated. But, in addition to its findings that he had not used original Donkey Kong hardware to achieve two of his scores, its statement said:

[343]

[309] Mr Somers submitted that the imputation alleged does not arise from this passage. With respect, I disagree. This passage, but particularly the second sentence, would clearly be understood by the ordinary reasonable viewer of the video as having that imputation.
[310] The real issue is whether this imputation was substantially true. Mr de Waard relies on a transcript of the relevant telephone call as demonstrating its truth.[210] Mr Somers contends that the transcript clearly shows what Mr Mitchell was proposing. That was also explained by Mr Mitchell in his evidence.
[311] Essentially, the substantial truth or otherwise of this imputation depends on an unbiased reading of the transcript, aided by Mr Mitchell's evidence about it.
[312] Mr Mitchell said in evidence[211] that he was, at the time, convinced that the Twin Galaxies investigation was not being conducted properly. He decided to demonstrate that he could still play a Donkey Kong game on unmodified arcade hardware and score 1,062,800 and, at the same time, he would demonstrate that the investigation was shoddy. So he planned to play a game to that score and record it in two different ways. The first would be in the way it was recorded at the time that he first obtained the record scores, by a direct feed from the electronic components of the board, so showing only the gameplay. The second would be a video taken of him playing the game, in which he would show what date he was playing it and that he was playing the exact game that was recorded electronically. He would anonymously send the direct feed tape to Twin Galaxies, which would believe it was of his original game played in 2010.[212] He thought Twin Galaxies and others would criticise it as not having been played on original hardware. He would allow them some time to deal with it and would then release the video online, showing that he was playing the game in 2018 and on original hardware. He hoped by this method to show up Twin Galaxies as biased against him and as fools. In the end he did not execute that plan.
[313] Mr Mitchell's evidence about his intention and what he was explaining to Mr Race in that telephone conversation was not challenged in his cross-examination.[213] It is entirely consistent with what he is recorded in the transcript as having said in the telephone conversation. I accept it as true, not only because I have found him to be a credible witness, but also because it accords with my reading of the transcript. It was clear from that transcript that Mr Mitchell was not proposing to attempt to pass off the tape of the gameplay as that of his 2010 record, because he was proposing to say, in the video of him playing it, that he was playing that game in April 2018. The contention that he was attempting fraudulently to use the tape as evidence of his record gameplay is the product of an overly suspicious mind.
[314] Therefore, this imputation, although made, was not substantially true.

[349]

[317] Mr de Waard submitted that a reasonable viewer would draw the imputation from Mr Jobst's words. He submitted that Mr Mitchell accepted that proposition in his evidence. With respect, that was not so: Mr Mitchell simply accepted that Mr Jobst had said those words.[215]
[318] Mr Mitchell denies that the imputation that he had expressed joy at the thought of Apollo Legend's death arises from these matters. Nor, if it is made, is it defamatory of Mr Mitchell. It is clear, from the words shown on the screen at the same time as Mr Jobst was speaking the words pleaded, that Mr Mitchell was being facetious, or engaging in what Mr Mitchell, in his evidence, described as "dark humour," rather than genuinely expressing joy at the thought of Apollo Legend's death.
[319] Alternatively, Mr Mitchell contends, the imputation is not substantially true, essentially for the same reason: Mr Mitchell was not expressing joy at the thought, but being facetious.
[320] I consider that any reasonable viewer of the video would understand Mr Jobst's statement as meaning that Mr Mitchell had, some time before Apollo Legend's death, expressed joy at the thought of his death. Even with the actual words of Mr Mitchell's messages shown on the screen, a reasonable viewer who read them quickly while listening to Mr Jobst may well consider them to be a genuine expression of Mr Mitchell's thoughts about Apollo Legend's death, rather than simply being facetious. If a genuine expression, they would ordinarily be seen as very callous. Therefore, I do consider that the imputation arose from the video. It is also defamatory, as the fact (if true) that Mr Mitchell had expressed joy at the thought of another person's death would, in my view, lower him in the estimation of ordinary reasonable people.
[321] Mr Jobst contends that the imputation is substantially true. Particularly in the context of the full exchange of text messages between Mr Mitchell and Mr Piñeiro, together with earlier text messages that Mr Mitchell had exchanged with Mr Hall on the subject of Apollo Legend,[216] Mr Mitchell was expressing joy, whether or not facetiously, at the thought of Apollo Legend's death. It was callous of him to do so.
[322] Mr Mitchell contends that the imputation is not substantially true. To demonstrate that proposition, Mr Mitchell pleaded and gave evidence about, and Mr Somers referred to, the background to these comments being made by Mr Mitchell. In short compass:

[359]

[329] The third of these, although actually talking about Mr Rogers suing Guinness World Records for removing one of his records, clearly raises the imputation that Mr Rogers was suing it to force it to reinstate his record. Mr Jobst then applies that imputation directly to Mr Mitchell. That alone raises the imputation. As to the others, I consider that an ordinary reasonable viewer would take from the video as a whole, including those statements, that Mr Mitchell had a tendency to sue anyone of potential influence who said publicly that he did not achieve his record scores legitimately. Therefore, this imputation does arise from the video.
[330] Mr Jobst contends that the imputation is substantially true. He relies on Mr Mitchell's court proceedings against Twin Galaxies in both California and Florida, his proceeding against Jeremy Young, Jeff Harrist and DonkeyKongForum.com in Florida and his proceeding against Apollo Legend in Florida, as well as his threat to sue Guinness World Records.
[331] Mr Mitchell contends that the imputation is not true, because the litigation was, in each case, for defamation, not for an order or other resolution to force the defendants to recognise his scores. That is true, in one sense, but even the outcome of the Twin Galaxies litigation (and, indeed, the threat to sue Guinness World Records) was that those two bodies reinstated his scores as part of their settlements with him.[219]
[332] Although not seeking orders for reinstatement, simply suing (or, in the case of Guinness World Records, threatening to sue) a person for defamation for having alleged that his scores were the product of cheating clearly has the intention of reinstating public recognition of his achievements, at least by a court judgment to the effect that he had been defamed by allegations that he had cheated to obtain them. One of the principal purposes of a proceeding for defamation is to obtain damages and a court judgment that will restore, as best a court can, the plaintiff's reputation by declaring, effectively, that the harm to that reputation caused by the defamatory statement was unjustifiable. The result of such a judgment is, at the least, to attempt to persuade others that his records were achieved legitimately. By May 2021, Mr Mitchell had commenced legal action against a number of people and corporations who had accused him of cheating (or of not using original unmodified arcade hardware) to obtain his world record scores. I am therefore satisfied that the imputation is substantially true.
[333] As I record later,[220] this allegation is relied on by Mr Jobst not only as a substantially true contextual imputation, but also as a pre-existing bad reputation of Mr Mitchell. I am satisfied that Mr Mitchell actually had that reputation before Mr Jobst published the video (in which he made the allegation that Mr Mitchell and Mr Rogers were suing everyone in unmeritorious lawsuits). A number of witnesses gave evidence that they became aware of the proceedings at about the times that Mr Mitchell commenced them, as there were publications about them on electronic media websites, such as Reddit. They referred to online discussions and debate about the proceedings - particularly about the Twin Galaxies litigation - and several witnesses gave evidence to the effect that the general consensus was that the litigation had no merit.
[334] Mr Somers submitted that the imputation is not defamatory of Mr Mitchell, nor was Mr Mitchell's reputation to that effect an existing "bad reputation." A reasonable viewer would not think less of him because he sued people who called him a cheat or who had removed their recognition of his scores on that basis. In doing so, he was entitled to pursue his legal rights and to seek to restore his reputation by that method.
[335] This submission would be correct if the reputation were simply that he sued people to enforce his legal rights in the face of false and defamatory statements. However, in my view the imputation raised by Mr Jobst contains within it an implied assertion that the litigation was without merit and was for illegitimate purposes (just as Mr Jobst expressly asserted). I have no doubt that an ordinary reasonable person who understood that Mr Mitchell sued people who accused him of being a cheat, even though he was in fact (according to his reputation) a cheat, would conclude that his litigation was unmeritorious and would think less of Mr Mitchell as a result.

[384]

[363] Mr Day said that, after the Twin Galaxies announcement that it was removing Mr Mitchell's records, he continued to go to events with Mr Mitchell and observed that he was still very popular, he was asked for his autograph quite a lot and he was approached by a lot of people wanting to be photographed with him.[238]
[364] Michael McNutt was the founder of a convention called "All Star Comic Con." It was a pop culture and comic book convention with a video game element to it. It was held in Virginia in 2018 and 2019 and had about 5,000 attendees each time. Mr McNutt invited Mr Mitchell to attend the 2019 convention as a "celebrity guest," flying him to Virginia and paying him an appearance fee of $5,000. The reactions to Mr McNutt's advertising that Mr Mitchell would appear then was generally very positive, with people expressing excitement at the prospect. He said the effect of Mr Mitchell's attendance and his considerable participation in the event were very positive and attendees mentioned his presence as a highlight of the event.[239]
[365] Preston Burt is a founder and organiser of an annual convention called "Southern-Fried Gaming Expo," which has been an annual event since 2014 and celebrates video gaming, arcade machines and pinball machine culture. He first came to know of Mr Mitchell when he saw the "King of Kong" film, which led him to invite Mr Mitchell to attend the first of these events in 2014. Mr Mitchell agreed, leading to Mr Burt advertising widely that he would be attending. Mr Burt said that Mr Mitchell was very approachable and mingled with the attendees throughout the opening hours. Apart from mingling, he signed autographs, engaged in a panel interview and undertook a "Battle Billy Mitchell" competition with other people. Mr Burt described attendees' interactions with Mr Mitchell as being very excited, taking pictures with him, joking with him and, in feedback from attendees, they were excited and very pleased to have met him and commented that he was totally against the type that he appeared to be in "King of Kong." Mr Mitchell subsequently attended the expo in 2015, 2017, 2018 or 2019 and 2020 (the last virtually) and Mr Burt said he would welcome him there any time and had recommended him to others as a celebrity guest at events.[240]
[366] Mr Burt said Mr Mitchell:[241]

[411]

[389] I have also referred earlier to TB[23] and exhibit 7,[257] in which a large number of comments were made on Mr Jobst's video, including some that mentioned the death of Apollo Legend and appeared to blame Mr Mitchell for it.
[390] Finally, it is necessary to mention again, the film The King of Kong: A Fistful of Quarters. Mr Jobst relied on the film as giving rise to a bad reputation of Mr Mitchell, as a person who ostracises others whom he considers to be a threat to his world record scores.
[391] In cross-examining Mr Mitchell, Mr de Waard showed him two extracts from the film.[258] The first extract shows Mr Wiebe playing Donkey Kong at an arcade (which Mr Mitchell described as having been created in an empty warehouse to look like a Guinness arcade), being watched by a crowd and achieving what a spectator (describing what happens by telephone to Mr Mitchell, who is shown somewhere else) describes as "the first million point game of Donkey Kong" and Mr Day is shown describing Mr Wiebe's final score as "1,047,200 points is the highest I've ever seen."
[392] The second extract shows Mr Wiebe again playing Donkey Kong at an unspecified location. Mr Mitchell enters the game area with his wife, sees Mr Wiebe playing and approaches behind him. Mr Wiebe notices him and says, "Hey Billy." Mr Mitchell does not respond but, after stopping very briefly, walks away. As he leaves, he says to his wife, "There are certain people I don't want to spend too much time with."
[393] Mr Mitchell did not accept that the first extract represented him as shunning Mr Wiebe. He said the scenes, as with other scenes, were cut and edited. Both scenes were part of the narrative of the film, which was to show him as not being prepared to play against Mr Wiebe and demonstrating in public that he could achieve higher scores. He did, however, accept that the film portrayed him as ostracising Mr Wiebe.[259] In his evidence in chief he had said that he did not, in fact, ignore Mr Wiebe, but he stopped and asked him how he was going. What he meant by his comment to his wife was (as I understood his evidence) that, as Mr Wiebe was playing, he did not want to talk to him for too long, which would distract him from his game.[260]

[412]

[394] I have found that all the imputations alleged by Mr Mitchell were made by Mr Jobst in his video.
[395] I have also found that the first and second contextual imputations, that Mr Mitchell had been publicly exposed as a cheater and had been banned from submitting scores to Twin Galaxies, were made in Mr Jobst's video and are substantially true. I am satisfied that a consequence of the truth of those imputations, together with evidence of the defence witnesses and of the comments made since the video was published, is that, when Mr Jobst published his videos, Mr Mitchell already had a reputation, not only as a person who had been publicly exposed as a cheater, but also (if it is different) as a person who had in fact cheated in order to obtain at least some of his record scores, probably by using MAME software instead of original unmodified arcade hardware. That was certainly his reputation after the Twin Galaxies decision and, notwithstanding Mr Mitchell's witnesses' evidence to the effect that he remained a popular attraction at video and arcade gaming events, his reputation in that regard continued to exist at the time of Mr Jobst's video.
[396] Therefore, the first allegation of Mr Mitchell's bad reputation is also proved.
[397] As to the third contextual imputation - that Mr Mitchell had planned to create a fraudulent video - while I have found that it was made, I have not seen (nor has my attention been drawn to) any earlier or later comments or other evidence about it. I am not satisfied that it led to Mr Mitchell having a reputation to that effect, either at the time of Mr Jobst's video or since.
[398] I have found that the fourth contextual imputation - that Mr Mitchell had callously expressed joy at the thought of Apollo Legend's death - was made and was substantially true. However, there is no evidence that, before the publication of Mr Jobst's video, Mr Mitchell had a reputation to that effect. Since his video, the only evidence that anyone was aware of this imputation or the facts on which it is based (the text messages) was the evidence of Mr Watkins to which I referred at [382] above, the comment at page 127 of exhibit 88 and possibly the response to the comment at page 75, both of which I have set out above. I find that he did not have such a reputation at the time of, or after, publication of the video, although no doubt this litigation has led some people in the online gaming community to think of him in this way.
[399] The fifth contextual imputation, concerning Mr Mitchell's alleged use of litigation, was made and was substantially true. I am satisfied that, in the gaming community, he had such a reputation (whether or not it was fair), which has continued since the publication of the video. Indeed, the reputation he had may have been greater than the alleged imputation itself, as it may have been a reputation (however undeserved) for bringing unmeritorious litigation for the purpose alleged.[261]
[400] This reputation is similar to the second allegation of a pre-existing bad reputation. I find that that reputation has also been proved.
[401] Mr Jobst contends that the third alleged bad reputation - that Mr Mitchell ostracised people whom he considered a threat to his world records - arises from the film "King of Kong," particularly the extracts comprising exhibit 44. While the film does, at least in the second extract in that exhibit, portray him as apparently ostracising Mr Wiebe, I am not satisfied that thereafter he had a reputation to the effect alleged. As I have said above,[262] the effect of the film on Mr Mitchell's reputation depends on one's perception of him as shown in it. It was a film (or a "docudrama"), so I consider that most ordinary reasonable people would realise that Mr Mitchell's true character may not have been correctly portrayed in it. There was no other evidence that this was his reputation after the film (let alone at the time of the offending video); just personal opinions such as those set out at [353] to [355] above.

[413]

[402] In his reply, responding to Mr Jobst's allegations of the contextual imputations, Mr Mitchell pleads that any substantially true contextual imputations relate to different, less serious, sectors of his reputation to that to which Mr Mitchell's pleaded imputations relate. He does not plead similarly to the allegations that he had a settled bad reputation, but Mr Somers submitted nonetheless that those allegations (apart from the alleged reputation of using litigation to coerce others into recognising his gaming achievements) also concerned a different sector of his reputation from that the subject of the imputations on which Mr Mitchell relies.
[403] Mr Somers submitted that the relevant sector of Mr Mitchell's reputation affected by the imputations that he pleads is his general reputation and, as a result of the imputation, whether he had a propensity to harm other persons' health and well-being, or whether he exerted such pressure on people that they hurt, injured or killed themselves. It is too narrow a characterisation to say simply that the imputations related to his conduct as, or in the context of him being, a video gamer. The alleged imputations have nothing, or very little, to do with whether he was a video gamer. He could just as well have been a celebrity sportsperson, academic or scientist: the propensity to do harm to others has nothing to do with his occupation as a video gamer. Whether or not he is a video gamer has no impact on the effect of an imputation that he had hounded someone, or he was a major factor in someone's decision, to commit suicide. Mr Somers did accept, however, that the allegation that he had a settled reputation as someone who used litigation to coerce others into recognising his achievements in video games may relate to the same sector of his reputation as the imputations of which Mr Mitchell complains.
[404] Mr de Waard submitted that these propositions are too restrictive and ignore the circumstances in which the imputations were made. The relevant sector of Mr Mitchell's reputation was his conduct in protecting his reputation as a video gamer. As he put it in his address:[263]

[417]

[406] Mr Somers went on to say that the contextual imputations are in different sectors of Mr Mitchell's life to any propensity to harm other persons' health and well-being. The first and second concern alleged cheating, the third involves fraud or dishonesty. The fourth concerns his callousness. The fifth, though, he accepts is in the same sector as the offending imputations.[265]
[407] I put to Mr Somers that perhaps his description ignores the genesis of the dealings between Mr Mitchell and Apollo Legend: namely, Apollo Legend's critical videos leading to a settlement that, according to Mr Jobst, required Apollo Legend to pay Mr Mitchell a substantial sum of money, which at least contributed to his decision to commit suicide. All of it arose from and concerned Mr Mitchell's desire to protect his reputation as an arcade game record holder and it was in that context - that sector of Mr Mitchell's life - that Mr Jobst made the imputations.
[408] Mr Somers submitted that that was the wrong approach. The correct approach is to look at the nature of the relevant imputation and the sector of the plaintiff's life that is affected by that imputation. He compared this case with that of O'Hagan v Nationwide News Pty Ltd,[266] in which the allegation that the plaintiff had arranged to have someone murdered was particularly grave because the plaintiff was a police officer: it went to the essence of, and seriously affected, his reputation as a police officer. But in this case, it would too broad for the court to find that the relevant sector of Mr Mitchell's reputation was his status as a video gamer, as it does not go to the essence of that reputation and has no greater "sting" because of that reputation. The distinguishing factor is whether or not that sting is greater because of the plaintiff's occupation: it was to the policeman because it went to the essence of a policeman's duties. In contrast, in Australian Broadcasting Corporation v McBride[267] the allegation that Dr McBride had a bad reputation as a scientific fraudster was irrelevant to his reputation as a doctor, which was the reputation, or the sector of his life, that was affected by the imputation that he had endangered the lives of his female patients. In Mr Mitchell's case the imputation that he had hounded a person to commit suicide is irrelevant to his occupation as a video gamer and the allegation that he had planned a fraudulent video went to his honesty, not his ability as a gamer.
[409] With respect, I disagree with Mr Somers' submissions. The allegation that Mr Mitchell had contributed to Apollo Legend's decision to commit suicide was in the context of the allegation (indeed, the principal subject matter of the video) that he used litigation to coerce others to recognise his achievements in arcade gaming. His litigation against Apollo Legend was dealt with in Mr Jobst's video as a particularly egregious example of that alleged conduct, which allegedly resulted in Apollo Legend's death. Both Mr Mitchell's and Mr Jobst's imputations concern Mr Mitchell's reputation as an arcade game record holder and his conduct in attempting to defend that reputation. Similarly, the alleged bad reputation (or contextual reputation) as having planned to produce a false video was in the context of him attempting to protect his reputation as such a gamer. Those allegations are irrelevant, for example, to Mr Mitchell's reputation as a hot sauce manufacturer, but they are directly relevant to, and in the context of, his reputation as a gamer. On the other hand, if it had been alleged that his sauces contained poisonous substances or were so hot that they caused physical harm to consumers, those allegations would be relevant to that sector of his reputation but irrelevant to his gaming reputation. Here, one imputation was that, in order to protect his reputation as a gamer, he would litigate against people who claimed he was a cheat at video gaming to the extent of contributing to a person's decision to commit suicide. The other imputation was that he planned a false video as part of his attempting to protect his reputation as a gamer. In both cases, the imputation concerned his reputation as a gamer and affected that reputation. That distinguishes this case from the example of being a murderer given by Levine J.[268]
[410] Therefore, I find that the bad reputation and the contextual imputations that I have found to exist all concern the one sector of Mr Mitchell's life and reputation: that as an arcade gamer with a number of world records.

[419]

[411] To reprise the court's task in assessing the respective effects of a contextual imputation found to be substantially true and an imputation proved by the plaintiff and found not to be true, the court must "weigh and measure holistically the relative worth or value of the several imputations contended for by both parties. The defence will fail if the plaintiff's imputations would still have some effect on the plaintiff's reputation, notwithstanding the effect of the substantial truth of the defendant's contextual imputations."[269]
[412] Mr Jobst contends that Mr Mitchell's reputation was not further harmed by the imputations because he already had such a bad reputation, or because of the contextual imputations raised in the video, that these imputations could not and did not harm it further. The imputations pleaded by the plaintiff are no worse than the characteristics of his pre-existing bad reputation, nor are they worse than the contextual imputations that Mr Jobst contends arose from the publications.
[413] Given that I have found that Mr Mitchell had a prior reputation as having been exposed as a cheat and for using litigation against his detractors, the contextual imputations and the bad reputation to those effects would not have further harmed his reputation. Furthermore, Mr de Waard did not contend with any vigour that these imputations would outweigh (and not cause further harm than) any of the imputations of which Mr Mitchell complains. Regardless of his prior reputation, I cannot see that these imputations would be considered by a reasonable viewer (nor do I consider them) to be equally as serious as, or more serious than, the imputations that I have found to have been made by the publications.
[414] I have found that the contextual imputation that Mr Mitchell planned a fraudulent video was made and was not true, so I need not consider that imputation further.
[415] That leaves the contextual imputation that Mr Mitchell had callously expressed joy at the thought of Apollo Legend's death.
[416] In his submissions, Mr de Waard concentrated on this imputation because, he submitted, this was the most damning and is worse than any of the imputations on which Mr Mitchell relies, especially as Mr Mitchell made these comments twice, to two different people. He submitted that this imputation outweighs even the imputations that Mr Mitchell contributed to Apollo Legend's death, as a person might unintentionally contribute to someone else's stress that leads that person to decide to commit suicide; but to take pleasure and express joy at the thought of a young man's death is intentional and evil. To take joy in another person's death is worse even than if Mr Jobst had asserted that Mr Mitchell had deliberately tried to cause Apollo Legend to commit suicide, or that he was a paedophile.
[417] Mr Somers submitted that none of the contextual imputations "swamped" or "overwhelmed" the effect of the imputations arising from the offending words. The latter imputations still negatively impact and affect Mr Mitchell's reputation. An objective assessment of the nature of the competing imputations supports this view. The offending imputations focus on the plaintiff's conduct in causing Apollo Legend to take his own life as a result of the significant amount the plaintiff allegedly forced Apollo Legend to pay to settle their court proceedings, which is a serious assertion. In comparison, the contextual imputations concern rather trivial matters in the grand scheme of life: whether video game scores were achieved properly or by cheating; the means Mr Mitchell used to substantiate his scores; his thoughts conveyed privately to two individuals; and his proclivity for litigation. The sting of the offending imputations is far more significant than the sting of the contextual imputations.[270]
[418] Considering the two principal imputations, I disagree with Mr de Waard's submission that the imputation that Mr Mitchell expressed joy at the thought of Apollo Legend's death is more serious, and would cause more harm to Mr Mitchell's reputation, than the imputation that Mr Mitchell hounded Apollo Legend to death. The former imports a momentary or short-term emotion, while the latter imports a deliberate course of action intended to cause harm to the other person and that itself is callous. While the former is certainly not honourable, the latter is far worse.
[419] I find that the imputation that Mr Mitchell hounded Apollo Legend to death by itself would harm - and has harmed - his reputation far more than the imputation that he expressed joy at the thought of Apollo Legend's death. I also consider that the imputations that his actions were the main cause or a cause of, or a contributing factor in, Apollo Legend's decision to commit suicide, particularly in the context of the imputation of hounding Apollo Legend, would also cause - and have caused - more harm to his reputation than that contextual imputation. The essence of the harmful imputations is the first of these: that Mr Mitchell hounded Apollo Legend to death. Not only is harm presumed to flow from a false imputation,[271] but in this case there is clear evidence that Mr Mitchell's reputation has been substantially harmed by the publication of Mr Jobst's video.
[420] If confirmation were needed, one need only look to the comments that were made on Mr Jobst's video and on the videos by Mr White. Although the latter were only tendered in relation to the grapevine effect,[272] they indicate that the contention that Mr Mitchell was a substantial contributor to Apollo Legend's decision to commit suicide has persisted for some years. No such assertions were ever made and Mr Mitchell did not have such a reputation before the offending video was published.

[423]

[423] As I have said above, damage is presumed when a person has been defamed. But that does not preclude a plaintiff from calling evidence relevant to the extent of damages that might be awarded. The fact that witnesses may say that the defamation did not alter their opinions (or the plaintiff's reputation, so far as they can tell) does not preclude a court from awarding damages. But the recovery of more than nominal or moderate damages may require proof of harm to reputation.
[424] Factors relevant to the determination of the appropriate amount of damages include the nature of the defamation and the extent of harm to the plaintiff's reputation, as well as the personal effects on the plaintiff. In determining the amount of damages to be awarded, the court must ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.[273] The maximum amount of damages for non-economic loss that may be awarded at present is $478,500.[274] That amount is to be awarded only in a most serious case, but that maximum does not limit the court's power to award aggravated damages if they are warranted and any such award must be made separately to general damages that are subject to the maximum.[275]
[425] Here, Mr Mitchell seeks damages under the maximum, as he claims $400,000 in general damages plus $50,000 in aggravated damages.
[426] Only a single amount of general damages (that is, to use the phrase used in the Act, damages for non-economic loss) can be awarded in respect of a publication even though the court finds that more than one imputation was carried by the publication, as there is only one cause of action arising out of any one publication.[276] But where, as here, there is more than one publication, resulting in more than one cause of action for defamation, the court may nevertheless assess one amount of damages for all the publications.[277]
[427] An award of general damages for defamation serves three overlapping purposes:[278]

[434]

[441] Mr Mitchell Jnr confirmed much of Mr Mitchell's evidence about his reactions to the video and to Mr Jobst's other conduct. He described Mr Mitchell's reaction to seeing the video as shocked, he was very angry to start, followed by sadness and becoming socially withdrawn. He heard him vomit twice. He noticed that Mr Mitchell developed an irregular sleep schedule. He was confused at how it came about and lost about what to do about it. Then he started going to see the pastor, which Mr Mitchell Jnr described as very unusual.
[442] Mr Mitchell Jnr described Mr Mitchell's reaction to seeing Mr Jobst's tweet in response to the rebuttal video (he was baffled and then angry) and to seeing that the original video had been re-posted on 9 June 2021 (primarily anger).
[443] Mr Johnson also observed some of Mr Mitchell's reaction to the video. He said his emotions were "erratic, like paranoid" and he was not his usual joyful, confident self.
[444] Of course, Mrs Mitchell did not give evidence and it would have been natural for Mr Mitchell to call her to do so, particularly about her observations of Mr Mitchell after the publication of the video and Mr Jobst's tweets. As I have discussed earlier,[295] the unexplained absence of Mrs Mitchell permits me to infer that her evidence, if called, would not have assisted Mr Mitchell's case, but any inference cannot operate to infer that her evidence would have damaged his case.
[445] It is surprising that she was not called to give evidence about his reactions to the video. I am prepared to infer that her evidence on that subject would not have assisted his case, but I cannot speculate about what she may have said. Notwithstanding her absence, though, I accept both Mr Mitchell's evidence and that of his son about his reactions to the video and Mr Jobst's later behaviour.
[446] I am satisfied that Mr Mitchell was greatly affected adversely by the publication of the video. Furthermore, as he said, even when Mr Jobst took down the words, he still maintained in a tweet that they were not wrong. Mr Mitchell underwent many emotions, including anger, sadness, helplessness and fear. He felt a loss of any ability to control what was happening or to do anything to stop Mr Jobst's attacks on him. The obvious pleasure that Mr Jobst took in attacking him and his gleeful anticipation of litigation simply added to Mr Mitchell's emotions. He also suffered adverse physical effects in the short term.
[447] While Mr Mitchell gave evidence that he was later diagnosed with atrial fibrillation, for which he underwent surgery, I do not attribute that condition to this video and Mr Jobst's subsequent behaviour. There is no medical evidence about Mr Mitchell's health generally or the causes of his condition.
[448] I find that Mr Mitchell continues to be adversely affected by the results of the video, as he is conscious that people still comment adversely about him and accuse or suspect him of being the cause of Apollo Legend's suicide. It is clear that the ongoing comments upset and anger him and contribute to a feeling of helplessness in being unable to stop them. The necessity of attending and giving evidence at the trial, including listening to Mr Jobst and his witnesses, was also clearly emotionally hard for him.

[439]

[453] Whether or not the reasons given in those emails were true, the withdrawal of the offers demonstrated a harmful effect of the video on Mr Mitchell's reputation and the receipt of the emails affected Mr Mitchell's personal reactions to the video.
[454] Mr Mitchell said that, since June 2021, he had had the opportunity to appear as a paid guest at fewer than half a dozen events, in comparison with 15 or 20 paid appearances before then.
[455] Mr Mitchell Jnr also gave evidence about the effect of Mr Jobst's video on the number of invitations Mr Mitchell received to appear at gaming or other events. He said they decreased, from about 10 to 12 per year in 2018 and 2019 and 9 or 10 in 2020, to two to three after publication of the video, with some pre-booked invitations cancelled.
[456] I accept this evidence. Although there were some discrepancies in the evidence about exactly how many paid and unpaid appearances Mr Mitchell had, both before and after the video, I find that the number of times he was invited to appear at events (whether paid or not) decreased substantially following its publication. I infer that, in cancelling invitations to Mr Mitchell to attend events, Mr Weeks and Mr Burger (and the organisers of other events) were clearly concerned about the possible effects on the popularity and success of their events if they invited such a controversial figure as Mr Mitchell to attend as a guest.
[457] The withdrawal and reduction of invitations to appear at such events is clear evidence of damage to Mr Mitchell's reputation as a consequence of the video. So too is the evidence of the substantial number of adverse comments published online about him (both on Mr Jobst's YouTube channel and on other sources), referring to his having caused or contributed to Apollo Legend's death, both shortly after the video was published and in the years since then. The nature of online comments about him changed after the publication of the video, in that not only did they refer to him as a cheater and an unjustified litigator, but many also referred to him as having driven Apollo Legend to commit suicide and urged others not to forget that. Even recently, a number of comments on YouTube videos concerning Mr Mitchell, or gaming more widely, have raised this allegation.
[458] Mr de Waard submitted that the evidence does not demonstrate any additional harm to Mr Mitchell's reputation having been caused by the video. He supported that submission by his analysis of the evidence of his reputation before and after the video and by a submission that Mr Mitchell appears to have attended just as many exhibitions or other appearances before as after the video.
[459] With respect, I disagree. While Mr Mitchell did continue to be invited to attend some events, the number of invitations dropped considerably. That he continued to receive some invitations is simply representative that not everybody considered him persona non grata thereafter. He was also no doubt of continued interest to members of the public who attended these events, given both his history and the controversy about him, but also because of his pre-existing fame. But that does not mean his reputation was not harmed by the video.
[460] I have already discussed the evidence of witnesses about his reputation. I have also discussed the online comments about him. I am satisfied that Mr Mitchell's reputation has been substantially harmed by the video.

[440]

[461] The gravity of the imputations and the extent of their publication are the most relevant factors to the harm to the plaintiff's reputation. The amount of damages awarded must be sufficient to serve as vindication of the plaintiff's reputation, both up to the time of judgment and in the future. That is, it must be enough to convince any reasonable person who has heard or hears of the defamatory allegations (whether they be the public at large, or those who have heard it through media reports of the proceeding, or by the grapevine) that the allegation is untrue.[299]
[462] Vindication to some extent may be established by the court's reasons for judgment, which demonstrate the falsity of the defamatory publications.[300] But the court must not assume that a member of the public, either now or later, will read the detailed reasons for judgment. The "headline judgment" constituted by the amount of damages awarded is more likely to demonstrate to the ordinary member of the public the vindication of the plaintiff's reputation, both now and in the future.[301]
[463] I mentioned above that members of the public may have heard of the defamatory imputations only through media reports or other publicity about the trial of the proceeding. This trial generated substantial interest and publicity. The public gallery was full and the proceeding was relayed to an overflow court room for several days of the trial. Several media representatives were present throughout the evidence and the trial was widely reported, not only in Brisbane, but Australia-wide. I am also aware that people from other States and several countries (not just the USA) connected to the courtroom to hear the final addresses.[302] I expect that similar wide publicity will attend the occasion of the delivery of this judgment.
[464] This wide publicity of and interest in the trial, as well as the large number of comments on the videos of both Mr Jobst and Mr White, demonstrate the breadth of the audience to whom vindication of Mr Mitchell's reputation needs to be made. It is likely that my judgment will also receive substantial publicity: at least the result and the damages awarded, if not my reasons. Although counsel did not make any submissions about the effect of a potentially widely publicised judgment, I consider it appropriate to record my respectful agreement with White J of the Federal Court of Australia, that it should not affect the amount of an award by reducing the sum to account for that likely publicity.[303] Nor do I consider that it should increase the amount awarded by way of vindication. Wide publicity of the judgment amount and possibly of a summary of the court's reasons for judgment will simply serve better to vindicate the plaintiff's reputation in the eyes of more people than might otherwise be the case.

[447]

[469] The same can be said of many types of publication on the internet, including on such platforms as YouTube.[314]
[470] The obvious effects of the publication have continued, even up to the year of the trial, in which not only were comments made on Mr White's videos attributing Mr Mitchell as the cause of, or a reason for, Apollo Legend's death, but Mr Mitchell Jnr gave evidence that the video containing the offending words is still accessible on the internet, having found it during the trial on the website of another person.[315] The comments on Mr White's videos are indicative of the extent and longevity of ongoing references to, and repeated publication of, the defamatory meanings and, together with the original comments made mostly in the period immediately after the publication,[316] are clear evidence of the substantial and ongoing operation of the grapevine effect in this case.
[471] Mr de Waard submitted that I should find that the comments on Mr White's videos derive, not from Mr Jobst's videos as originally published, but from Mr Mitchell's own video in which he republished the offending words and which is still available on the internet. I understood his submission to be that some of the comments refer to Mr Mitchell as a murderer: a term that was not used in Mr Jobst's videos, but was used by Mr Mitchell in his response.
[472] I do not accept that submission. While Mr Jobst did not use the word "murderer" and Mr Mitchell did, even in the comments made on the day that Mr Jobst's first video was published, many of the comments were that he killed or murdered Apollo Legend. Furthermore, the extent of publication of Mr Jobst's videos (and the comments on them) was vastly greater than the publication of Mr Mitchell's response video. I am satisfied that the recent comments about Mr Mitchell being the cause of Apollo Legend's suicide stem from Mr Jobst's original publications.[317]
[473] I find that the grapevine effect has had - and continues to have - significant and substantial consequences on the extent of publication of the defamatory imputations and on the harm caused to Mr Mitchell's reputation. This ongoing publication of the imputations was a natural and probable consequence of Mr Jobst's publication. The amount of damages that I shall award must take into account the consequential effects on Mr Mitchell's reputation and on him personally and must be sufficient to operate as vindication of him and his reputation in this regard, both immediately and for the future.

[449]

[475] The first and more significant factor, in Mr de Waard's submission, is the publication by Mr Mitchell of his response video, in which he shows and plays the entire part of Mr Jobst's video to which Mr Mitchell objects: that is, the offending words and the associated images. By doing so, Mr Mitchell has himself republished the defamatory words and continues to make them publicly available, given that his response video remains accessible on the internet. This, Mr de Waard submitted, is not the action of a man who has suffered harm from the defamatory words. Alternatively, by doing this, he has exacerbated any damage to his reputation, which should lead to a significant reduction in any damages awarded to him. The comments to the effect that he killed or murdered Apollo Legend derive from Mr Mitchell's own words, not from Mr Jobst's videos.
[476] One might describe this submission as to the alleged effect of the response video, as asserting that Mr Mitchell "called in an airstrike on his own position" by publishing the response video.[318]
[477] Mr Mitchell Jnr said that he controls the response video and he has kept it online because "it goes to show that that claim that has been put out and circulated is false."[319]
[478] Mr Somers submitted that much of the damage caused by Mr Jobst's video was done by the time Mr Mitchell published his response video: by 4 June 2021, there had been 519,800 unique views of Mr Jobst's video, the vast majority of which occurred on 26 May.
[479] As for the response video, Mr Somers submitted that anyone watching it would be under no misapprehension that Mr Mitchell disputed the allegations made by Mr Jobst. Both before and after showing the extract of the video containing the offending words, Mr Mitchell strenuously denied the allegations, calling them "heinous lies" and "demonstrably false." No reasonable person watching this video would conclude that Mr Mitchell damaged his own reputation by publishing the relevant extract and responding to it.
[480] It would have been open to Mr Mitchell to make his response video without showing the extract from Mr Jobst's video. He could, for example, have asserted that Mr Jobst had alleged that Apollo Legend had been obliged to pay Mr Mitchell a large sum of money, which had led to Apollo Legend committing suicide, and then denied those allegations in the manner he did. However, clearly the most accurate way to refer to the allegations that he disputed was to replay the offending words.
[481] Similarly, one might say that, in conducting this very proceeding, Mr Mitchell has caused there to be far wider publication of the defamatory words than would otherwise have been the case. But one cannot effectively refute allegations without referring to them. Far from calling in an airstrike on his own position, it was necessary to identify the enemy's position clearly in order to call in an airstrike on it. These observations of Applegarth J are apposite:[320]

[457]

[485] In my view, the mitigatory effect of a correction and (where relevant) an apology, even where it is not part of an offer to make amends, substantially depends on the extent to which the correction or apology is brought to the attention of the audience of the defamatory statements and, perhaps to a lesser extent, the promptness with which the apology or correction is published. In determining the effect of a correction or apology, the factors referred to in subs 18(2) are obviously relevant. What constitutes a correction turns on substance rather than form and involves two elements: acknowledging that an error has been made and stating what the correct position is.[321]
[486] Mr Jobst relies, in mitigation of damages, on the so-called retraction video.[322] Mr de Waard submitted that it constituted a correction and apology that would provide a mechanism to vindicate Mr Mitchell's reputation. He submitted that the video was effective to reduce any harm to Mr Mitchell from the offending video. In it, Mr Jobst acknowledged and corrected an error that he had made in the original video and this video was viewed by more than twice as many people as the offending video.[323]
[487] Mr Somers submitted that the retraction video had no mitigatory effect. It was published in the final 44 seconds of a 30 minute video that otherwise had nothing to do with arcade games or Mr Mitchell. Neither the thumbnail nor the description of the video showed or mentioned Mr Mitchell or Apollo Legend, whereas when Mr Jobst wanted his audience to know that a video concerned Mr Mitchell, he would include an image of Mr Mitchell in the thumbnail, as he did in 19 videos that he did publish concerning him.[324] Critically, Mr Jobst did not apologise to Mr Mitchell himself, but only to his viewers for providing incorrect information to them[325] and he even again provided false information to his viewers in stating that Mr Mitchell had not attempted to contact him to clear up any misinformation. In fact Mr Mitchell had attempted to contact him through Mr Keem and by his solicitors. Finally, Mr Jobst still insinuated that he maintained the view that Mr Mitchell had been a cause of Apollo Legend's decision, saying:

[466]

[495] However, with respect, his opinion, although referring to subsection (2A), appears to be based on the pre-amendment version of subsection (2).[333] Although referring to subsection (2A) in Queensland and other States that have legislated the amendments, he records that "aggravated damages may be awarded if the court is satisfied that they are warranted in 'the circumstances of publication.'" Subsection (2A), though, in Queensland and most other States, no longer restricts the relevant factors to "the circumstances of publication," but now only refers to "the circumstances." In any event, in Rayney v State of Western Australia (No 9),[334] Chaney J held that the reference to the "circumstances of publication" did not imply a temporal limit on the circumstances to be considered, but referred to circumstances in which, at common law, aggravated damages might be awarded. That appears to have been confirmed by amended wording in subsection (2A).
[496] Therefore, there being no legislative restriction on the circumstances which the court may take into account in considering whether aggravated damages are appropriate, the common law factors remain relevant.
[497] Accordingly, I do not consider that these amendments have effected any real change to the factors relevant to the determination of aggravated damages. I am fortified in this conclusion by decisions of other courts that have briefly discussed the relatively new provisions.[335]
[498] It is therefore necessary to consider, separately from general damages, what if any factors may justify an award of aggravated damages in this case.
[499] Speaking generally, damages may be increased if there is "a lack of bona fides in the defendant's conduct or it is improper or unjustifiable"[336] and if the plaintiff is aware of that conduct, which increases his personal hurt and distress or the damage to his reputation. Relevant aggravating conduct can occur at any time up to judgment in the proceeding.
[500] In this case, Mr Mitchell contends that a number of aspects in Mr Jobst's conduct lacked bona fides and were improper and unjustifiable, aggravating the personal and reputational damage to Mr Mitchell. In paragraph 16 of the statement of claim, Mr Mitchell pleads, among other things, that the publications were made in circumstances where Mr Mitchell apprehended malice or other unjustifiable or improper conduct by Mr Jobst. The statement of claim goes on to plead a number of facts comprising that improper conduct and demonstrating that malice. I shall consider each in turn.
[501] Before I do, I should record that, in my view (which I indicated during the trial[337]), Mr Jobst's defence to the allegations in paragraph 16 of the statement of claim did not give a direct explanation of his denial of the allegations. Therefore, he is deemed to have admitted those allegations.[338] However, Mr Somers submitted that, even if that were not the case, the evidence demonstrates the aggravating circumstances alleged in the statement of claim. It is apposite to review that evidence, in case I am wrong in my view of the defence and also to determine the extent of any conduct that I find to be aggravating and the appropriate amount of any aggravated damages.

[467]

[502] The imputations arising from the video were based on a fallacy: that Mr Mitchell had obliged Apollo Legend to pay him a substantial sum of money as part of the settlement with him. Mr Jobst published that fallacy as fact; in Mr Somers' submission, without checking its truth. That fallacy led to the defamatory imputations being made, none of which Mr Jobst has since sought to prove as true.
[503] In his defence, Mr Jobst did not admit that the settlement with Apollo Legend did not contribute to him committing suicide, because "that allegation is not within his present means of knowledge and he is unsure of the truth or otherwise of that allegation."[339] With respect, that is an astonishing non-admission because, if he presently has no means of such knowledge, how did he have the means of knowledge to the contrary at the time he published the video in which that imputation was made?
[504] Mr Jobst went on to plead that the settlement nonetheless had a negative financial impact on Apollo Legend because he agreed to remove from his YouTube channel, and otherwise not to publish, anything concerning Mr Mitchell or his family, which affected the income he received from YouTube.
[505] Mr Jobst maintained this position during the trial, contending that the settlement had had a negative financial impact on Apollo Legend and saying that he still believed that it was a contributing factor to his decision to commit suicide.[340]
[506] Mr Jobst did not plead any facts or explanation for his denial of Mr Mitchell's allegation that he had not made any, or any proper, pre-publication enquiry as to the true position. He did give some evidence, however, as to a source of his assertion that Apollo Legend had been obliged to pay a large sum to Mr Mitchell, namely a comment on Reddit to the effect that Mr Mitchell had made Apollo Legend pay him $50,000. I have described that evidence at [87] above. As I said then, Mr de Waard sought to tender a copy of that message, but Mr Somers successfully objected to it.
[507] Even if I were to have regard to this evidence and to accept that such a message was the source of his belief that Apollo Legend had been obliged to pay Mr Mitchell a large sum of money, it would not assist Mr Jobst's defence. One person's comment or message, without any proof of the assertion, would not be a reasonable and sufficient basis for the assertion in the video. Mr Jobst made no enquiry of Mr Mitchell or anyone associated with him or with Apollo Legend before first publishing the offending video. He had no reasonable basis for the assertions he made in the offending words. He was, indeed, recklessly indifferent to whether or not those assertions were true.

[468]

[508] Mr Jobst did remove the offending words after Mr Keem contacted him and told him that no money had been paid by Apollo Legend to Mr Mitchell. At that time, Mr Jobst made a reasonable enquiry of Apollo Legend's brother to ascertain whether any money had been paid. He told Mr Keem that, if that assertion was not confirmed, he would leave the video online without the offending words.
[509] Mr de Waard submitted that Mr Jobst's willingness to change his video in the light of what Mr Keem had told him was evidence of his bona fides, rather than any conduct that should give rise to aggravated damages. That may be so, if that were as much as he did. But it is contradicted by the fact that, notwithstanding his assurance to Mr Keem, after seeing Mr Mitchell's video and after receiving the concerns notice from Mr Mitchell's lawyers, both asserting the falsity of the offending words, and before receiving any response from Apollo Legend's brother, Mr Jobst re-posted the full video containing the offending words.
[510] When asked in his evidence why he did that, Mr Jobst said that Mr Mitchell had a reputation for suing people and had threatened to sue Mr Jobst in the past so, on seeing Mr Mitchell's video, in which Mr Mitchell said he would respond to Mr Jobst in the way everyone expected him to do, and after receiving the concerns notice, he felt that there was nothing he could do to stop whatever action Mr Mitchell was about to take. At that time, he still believed what he had said to be true and, if taking down the offending words would not stop Mr Mitchell suing him, he may as well put the video back up until he obtained concrete information whether or not it was true.[341]
[511] Mr Jobst later said that he thought it was appropriate to put the offending words back into the video because he does not believe anything Mr Mitchell says. In particular, he did not believe Mr Mitchell's video, he did not believe the message from Mr Mitchell that he had received from Mr Keem and he did not believe what Mr Mitchell's solicitors had said in the concerns notice.[342]
[512] Mr de Waard also relied on the fact that, when he did get confirmation from Apollo Legend's brother that he had not been required to pay Mr Mitchell any money, Mr Jobst took out the offending words again. He has not republished them since (although he left the remainder online). This was further evidence of his bona fides and the reasonableness of his actions.
[513] I disagree with Mr de Waard's submissions. Notwithstanding that he ultimately removed the offending words, Mr Jobst twice asserted online that he had removed the words, not because they were wrong or he didn't believe them, but because he did not want to be sued by Mr Mitchell over that assertion rather than his allegations that Mr Mitchell had cheated at Donkey Kong.[343] That demonstrates a complete lack of bona fides, in my view.
[514] All of this conduct was even more reckless and in contumelious disregard of the truth than his first publication given that, by the time of his republication, he had been told three times (by Mr Keem, by Mr Mitchell's video and by Mr Mitchell's lawyers) that what he had said in the first publication was false and he had not received any information from Apollo Legend's brother.
[515] It was not until Apollo Legend's brother confirmed that the settlement did not require any payment by Apollo Legend that Mr Jobst again edited out the offending words, but he still implied that he thought they were true anyway.
[516] Mr Jobst's attitude seems to me to have been one of, "Well, if I'm going to be sued, I may as well go for broke and damn the consequences." Far from being evidence of his bona fides, I consider his conduct to be reckless and to show no regard for the truth or for the effect of his video on Mr Mitchell and his reputation.

[474]

[528] A defendant's failure to apologise for and to withdraw a defamatory publication is not always a feature of a proceeding that aggravates the hurt to the plaintiff and consequently can increase damages. However, in some cases, a failure to retract and apologise can be aggravating conduct that justifies an increase in damages. This is especially so where that failure is accompanied by other aggravating conduct (such as maintaining the truth of an allegation without justification). Even where a defendant (as in this case) defends on the basis that the imputations alleged by the plaintiff did not arise from the publication, in some cases the absence of a qualified apology (such as, "If that is how my words were understood, then I apologise") can be an aggravating circumstance.[354]
[529] Mr Jobst made no apology to Mr Mitchell, even in such a qualified way. His retraction video did not retract the imputations at all. It simply retracted the statement that Apollo Legend had paid Mr Mitchell a large sum of money. He did not apologise to Mr Mitchell in any way, rather apologising to his viewers for having made an incorrect statement in the offending video. Furthermore, as I have said earlier, this retraction was not directed to people who were likely to have seen the original video, nor did Mr Jobst in any way draw the attention of people with an interest in videos about Mr Mitchell to the last 45 seconds or so of this video that contained his correction.
[530] Far from retracting any of the imputations and apologising to Mr Mitchell, in that very video Mr Jobst insinuated that he still believed that Mr Mitchell was responsible for Apollo Legend's decision. He also made similar insinuations in his tweet of 4 June 2021 and in his comment of 6 June 2021. In his evidence he accepted that, in the former, he was intending it to be understood by a reader that he still believed what he had said to be true.[355] He also said that, even now, he still believes that the settlement contributed to Apollo Legend's decision.[356] Mr Somers also pointed out that Mr Jobst's solicitors' response to the concerns notice was, in effect, to dismiss the assertions made in that notice; to assert that, even if they were made, they would not have caused any harm to his reputation; and to rely on the retraction video. They said Mr Jobst would not make any offer of amends.
[531] All of this conduct was far from demonstrating a genuine retraction or apology. For the above reasons, I agree with Mr Somers' submission that the conduct was of such a nature as to justify aggravated damages.

[479]

[541] Mr Somers referred to three decisions that he submitted were usefully comparable.
[542] Sirocki v Klerck (No 2)[362] concerned 10 publications, of which two were by email and the rest were published on a range of websites, accusing the natural plaintiff (who was the director of the corporate plaintiff) of being, among other things, a fraudster, a scammer, a conman, a drug user, an adulterer, a thief and a liar, as well as incompetent in business. There were wide ranging effects on the first plaintiff personally and professionally, including being asked to resign from a number of voluntary positions and other businesses cancelling their arrangements with him or the company. There were no mitigating factors and the defendants made no apology. Even after the statement of claim was served, the defendants published a further 24 derogatory articles about the plaintiffs. The defendants did not defend the proceeding. The plaintiffs did not claim any aggravated damages.
[543] On an assessment of damages, after receiving considerable evidence of the harm to the plaintiffs' reputations and the personal effects on the first plaintiff, Flanagan J awarded damages in individual sums against each defendant, having regard to their involvement in the separate publications. Individual sums ranged from $5,000 to $80,000. Between them they totalled $190,000 for the first plaintiff and $70,000 for the corporate plaintiff.
[544] In his reasons, Flanagan J reviewed a number of other awards, several of which involved allegations of paedophilia or child abuse. He agreed with an earlier decision in which Gibson DCJ of the New South Wales District Court described accusations of child abuse as "the most serious imputations capable of being made." Gibson DCJ awarded $100,000 to each individual who had been so accused. But Flanagan J noted that other factors informing an appropriate award of damages include the extent of the publications, including that, in the case before him, "the defamatory statements can never be truly driven underground."[363]
[545] In Rayney v State of Western Australia (No 9),[364] the plaintiff had been accused by police, in each of four press conferences, of being the only suspect in the murder of his wife; an allegation that received wide and repeated publication. As a result, the plaintiff suffered considerable distress, as well as being shunned by former friends and many other people. Chaney J held that the imputation was at the high end of the range of seriousness of defamatory imputations, with a devastating effect on the plaintiff's life and attended by circumstances of aggravation. His Honour awarded general damages, including aggravated damages, of $600,000.
[546] In Wagner v Harbour Radio Pty Ltd,[365] the plaintiffs were businessmen whom Flanagan J described as enjoying an excellent reputation for honesty and integrity, both in business and community circles, before the publications. They had been accused by three defendants, in 32 broadcasts on popular radio stations, of 80 imputations described by Flanagan J as being extremely serious and of the gravest kind, including being responsible for the deaths of 12 people, including two children, being selfish and greedy, covering up their involvement in those deaths and corruption. They each suffered profound personal hurt as well as damage to their reputations.
[547] His Honour found that there were substantial aggravating circumstances. In particular, the radio personality, Alan Jones, had engaged in unjustifiable conduct, particularly repeating the imputations many times, including during his evidence at the trial; and he was motivated by a desire to injure the plaintiffs' reputations. That conduct, especially repeating in evidence that he believed that the plaintiffs were responsible for the deaths of 12 people, meant that a "substantial award of damages is required to represent a full vindication of the innocence of the plaintiffs, and to be sufficient to convince any bystander of the baselessness of the accusations levelled against the plaintiffs."[366] His Honour awarded each defendant general damages, including aggravated damages, of $750,000 against Mr Jones and Harbour Radio in respect of 27 publications and an additional $100,000 against Mr Jones and Radio 4BC in respect of another five publications. It is material to record that, at that time, the statutory cap on general damages (not including aggravated damages) was $398,500.
[548] Mr de Waard also referred to a number of cases and relied on them as being more indicative of the appropriate award. He principally referred to Harrington v Shoard,[367] in which Sheridan DCJ considered four publications accusing the plaintiff of being a paedophile: one on a sign at the boundary of the defendant's home and three in oral statements made to other persons. The publications were not widespread and there was no evidence that they caused the plaintiff any distress. Her Honour found that the harm done to the plaintiff was extremely modest and any injury was short lived. She awarded $15,000 by way of general and aggravated damages for one publication, having upheld a defence for the others. Had that defence not succeeded, she would have awarded a total of $25,000.[368]
[549] Her Honour referred to four earlier decisions of this Court in which allegations of paedophilia had been made: two in which the plaintiff was awarded $100,000, one in which the award was $150,000 (including $30,000 in aggravated damages) and another in which it was $160,000 (including $40,000 in aggravated damages). Her Honour recorded that the circumstances of each of those decisions were considerably more serious than the case before her, with the publications far more widespread and the impact of them on the plaintiffs much more significant.
[550] In my view, a number of other cases are of assistance in determining the appropriate amount of general and aggravated damages in this case. It suffices, without describing each case in these reasons[369] but simply noting the extent of publication and the damages awarded in each, to record that these cases are O'Reilly v Edgar,[370] Hallam v O'Connor[371] and Deeming v Pesutto (No 3)[372].

[480]

[551] In determining the appropriate amount of general damages (not including aggravated damages), I must particularly keep in mind the requirement under s 35(2), that the maximum damages amount is to be awarded only in the most serious case. Apart from such cases, the appropriate award depends on the court's assessment of the scale of seriousness of the relevant imputations (and the extent of their publication) in each case.
[552] Here, the imputations were of varying seriousness, but the most serious and damaging was that Mr Mitchell hounded Apollo Legend to commit suicide. That imputation implied a deliberate and extended course of conduct by Mr Mitchell that caused such stress to Apollo Legend that he decided to end that stress by killing himself. While not directly accusing Mr Mitchell of having murdered Apollo Legend, nor of knowingly encouraging Apollo Legend to kill himself, in one sense it might be seen as almost as serious as such imputations would have been. Those imputations would, in my view, have been among the most serious cases.
[553] Here also, the publications were very widespread and not only in the locations where Mr Mitchell lives and works, but in several countries around the world where he is known. Although the publications themselves were only available on Mr Jobst's YouTube channel for a total of 10 days, during that time they were viewed by over 500,000 people and it is likely that some of those people took a copy and may well have republished it since Mr Jobst took it down.[373]
[554] The publications have led to a considerable number of people forming the view that Mr Mitchell is a murderer, evil and callous, who should be punished. Those views continue to be expressed (although less often) widely and to wide audiences and they continue to cause Mr Mitchell ongoing stress and hurt. The grapevine effect is substantial and is likely to continue, or to spring shoots again in the future.
[555] In the circumstances, only a substantial amount of damages will be sufficient to vindicate Mr Mitchell and to meet all the purposes of such awards.
[556] These imputations are not as serious as being called a paedophile, but they come close to the imputations made against the Wagners and, in my view, they are at least as bad as, if not worse than, those made against Ms Deeming. The extent of publication does not appear to have been as great as those about the Wagners, Mr Rayney or Ms Deeming, but it was substantial. The grapevine effect is also substantial and, even if this award were to prune it to some extent, there is a real risk that it will generate new shoots again in the future.
[557] Mr Mitchell seeks $400,000 in general damages. In my view, that is too high, being too close to the maximum amount. This is not one of the most serious cases, although it is at the higher end, especially given the most damaging imputation and the extent of publication.
[558] I assess the appropriate sum of general damages at $300,000.

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