Prouten v Buxton

Solicitors: Matrix Legal (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2020/00192782 Publication restriction: Nil

Introduction

1. The plaintiff brings proceedings for defamation for the publication of a Facebook post on 24 April 2020. The defendant denies being the publisher of the pleaded publication and, in the alternative, relies upon the defences of justification pursuant to s 25 of the Defamation Act 2005 (NSW) ("the Act"), honest opinion (s 31) and offer to make amends (s 18) (a defence of innocent dissemination was abandoned at the hearing). As the publication was made prior to 1 July 2021, the Act as it was at that time is the applicable legislation. There is no evidence of publication in jurisdictions other than New South Wales.

The matter complained of

1. The matter complained of consisted of a photograph of the plaintiff carrying a stick while walking along a shared pathway in a Warners Bay public reserve used by pedestrians and cyclists:
2. The heading for the article appearing with this photograph is "The Warners Bay Vigilante".
3. The text of the matter complained of (to which line numbers have been attached for the purpose of these proceedings) is as follows: "The Warners Bay Vigilante 2. This is my second encounter with this poor excuse for a senior citizen 3. today. Lynne and I ride each day from home to Eleebana along the 4. wonderful pedestrian/cycle way. Obviously with the current crisis there 5. are a large number of people using this outside facility to keep fit and 6. just escape from home! Last week whilst riding over the metal section 7. of the cycle way just prior to Eleebana park I was struck on the leg by 8. something which scared the hell out of me and I nearly hit the guide [sic] 9. rail. Looking back I saw this lady walking in the opposite direction with 10. a small stick and she was deliberately hitting any bike rider that passed 11. in the opposite direction. It is only a small hit and if you knew of her 12. existence then it would most likely not worry you. We try to vary our 13. ride each day looking for times that have the least traffic, and to date 14. all times are busy. Today on our return ride I saw this woman walking 15. down the path coming towards me. .... I was ready this time and as she 16. "stuck" her stick out to hit me I swerved and she missed! I stopped and 17. turned around and spoke to her indicating that was she was doing 18. could actually be constituted as assault and her reply was "GOOD", I 19. asked her to stop doing this and she basically told me where to get 20. off! Naturally this did not impress me so I got off my bike walked past 21. her and took the above photo. Once she saw me she moved further to 22. the left hand side of her lane (she usually walks down her lane close to 23. the middle divider to ensure she has a good reach to the opposite 24. lane) still with the stick extended from her body. 25. The thing that struck me most was that her "weapon of choice" has 26. increased in size from a small twig to a more substantial stick which 27. has the potential to really hurt or worse still get stuck in the wheel of a 28. cyclist and cause serious harm. Not to mention hat [sic] she could do to a 29. small child. 30. I had not [sic] intention of doing any more if she apologised and indicated 31. she will stop using the stick. However her refusal told me she clearly 32. has no intention and I consider her to be a serious risk to the 33. community. 34. It is obvious she does not like cyclists but as long as we are respectful 35. and careful, like most pedestrians, we have as much right to use this 36. path as her. 37. Yes social distancing is important and in my option [sic] well practiced by 38. most people using the facility BUT this does not mean you are 39. permitted to assault people to keep them away from you. If she is so 40. concerned about social distancing either walk on the grass or my 41. preference for her down the road! 42. I have reported this woman to the police and indicated if identified I 43. would be willing to press assault changes [sic] against her. I strongly advise 44. anyone else who has had a similar encounter with her to do the same. 45. Unless we do something soon she will cause either a serious accident 46. or someone (certainly NOT me) will remove the stick from her and 47. possibly injure her in the process, potentially placing the stick in 48. another location on her body rather than her right hand!"

The circumstances leading to publication

1. Australia had just begun a series of Covid-19 lockdowns in April 2020, when the relevant events set out in this judgment occurred. Many shops, businesses and other facilities were closed, residents were warned to remain 1.5 metres from each other and travel was restricted. Fortunately, at Warners Bay on the Central Coast, local residents wanting to spend time out of their homes without breaching these restrictions were able to enjoy fresh air and exercise by walking and riding bicycles in public parks, including a shared pedestrian and cycle path ("the shared path") which wound through the local park area, where users could take in the bushland and water views as they walked or cycled along.
2. As set out in the matter complained of, on 18 April 2020, the defendant and his partner, Ms Williams, were cycling along the shared path for bicyclists and pedestrians which ran through the public park areas. The defendant suddenly felt a stinging sensation on his leg. There were a lot of people around so he did not stop until further along, when he observed a red mark on his right calf (CB 103). He turned around and could not see anything to account for his injury except an older lady "with peaked at [sic; should be "hat"]" (CB 100), who was carrying a twig with leaves on the end in her right hand. He did not know if this was an accident (CB 101), so he continued on his ride. The plaintiff acknowledges seeing both the defendant and Ms Williams, but says that the defendant was struck because he ran into her stick.
3. Six days later, on 24 April 2020, the defendant and Ms Williams were again cycling along the shared path, although they were further along. He saw Ms Williams, who was ahead of him, swerving off the track to the left and then back on again. He then saw the same lady walking in the area in front of him, and holding a stick larger than the twig he had previously seen. By reason of his previous encounter and his observation of Ms Williams' response, he was immediately alert to the plaintiff's presence and to her stick. He says that, as he rode by, she pushed out her stick towards his wheel and he had to swerve to avoid being hit, in the same way Ms Williams had swerved. The plaintiff denies that she held out her stick and says she was waving her stick as a salute to each of them, for their considerate bicycling etiquette in moving away.
4. The defendant stopped his bicycle further on and went back to speak to the plaintiff. There is a dispute as to what was said. The defendant, who did not know who the plaintiff was, took a photograph of her carrying her stick, telling her he would contact the police. He then caught up to Ms Williams and they discussed what had occurred. When they got home, he made a complaint to police, giving them his photograph of the plaintiff.
5. After his return home from the police station, the defendant posted an account of what happened on his own Facebook page ("Anthony J Buxton"). This post was not only visible to his Facebook friends but to a wider group of people because he had not set up the necessary privacy restrictions to cover groups as well as Facebook followers. As a result, his post was quickly "shared" on many other Facebook pages.
6. One of the Facebook pages on which the defendant's post appeared was the "Warners Bay People and Friends Facebook Group" ("the Warners Bay Facebook Group page"). The statement of claim pleads that the defendant personally lodged his post on this page. The defendant, who is not a member of this Facebook group, denies this.
7. It is not in dispute that only members of the Warners Bay Facebook Group could put posts onto their Facebook page, but this restriction did not prevent members of the group "sharing" posts made by non-members such as the defendant (who was not, and never had been, a member). This is because "sharing" is a simple matter of pressing Facebook's "share" button, which meant the defendant's post then appeared on the Warners Bay Facebook Group's page as a contribution from the person who had pressed the "share" button, but with the identity of the defendant as the originator of the story being "shared" preserved.
8. Shared copies of the defendant's post first started to appear on the Warners Bay Facebook Group page at 2:32 pm. By 7:37 PM on 24 April 2020, one of the page administrators, Ms Winney, concerned by the number of posts concerning what she called "the stick lady story", took action to prevent any further publication without prior approval. She turned on the "post approval" function, which prevented anyone from posting on the page unless each such post was approved by the site administrator. She told the court she also posted a notice on the front of the Group's Facebook page, saying "Due to the stick woman ongoing problem, I have turned [sic] post approval."
9. Prior to the post approval being activated, the Warners Bay Facebook Group page had begun to receive a number of requests to join the group from outsiders, as well as attempts to post "the stick woman story". Further posts were no longer possible on the Warners Bay Facebook Group after 7:37 PM, thanks to the quick actions of Ms Winney.
10. Ms Winney and the other administrators also went through the posts for that afternoon and deleted all twelve "stick woman story" posts. None of these had been posted by the defendant himself; to ascertain his identity, she had to trace back to the plaintiff's original post by accessing the post "shared" by a Ms Peta Thomas but. As the defendant had posted this on his own private page, over which she had no control, she took no further action.
11. The plaintiff and her daughter had also contacted the local police that day. On the evening of 24 April 2020, the plaintiff and her daughter participated in an electronically recorded interview with police, which commenced with a caution to the plaintiff.
12. After speaking to police, the defendant took down and removed the post on his own Facebook page on late on 25 April 2020; Senior Constable Birch confirmed this in a message he sent to the plaintiff's daughter some hours later.

Defamation proceedings are commenced and criminal charges are laid

1. The plaintiff consulted solicitors who sent a concerns notice on 14 May 2020 and proceedings for defamation were commenced on 30 June 2020. Two defendants were named: Liz Bowden (described in the statement of claim as "the first defendant") and Anthony Buxton ("the second defendant"). Two publications and a republication were identified: 1. The first matter complained of (Mr Buxton's post): This was a publication stated to have been made "between 1 and 24 April 2020" by Mr Buxton "on the Facebook group page Warner Bay People and Friends" (paragraph 4 of the current pleading, the fourth further amended statement of claim ("4FASOC")). No URL is given. 2. Republication of the first matter complained of (Mr Buxton's liability as a republisher of his own post by Ms Bowden on her own Facebook page): The first matter complained of was, in paragraph 7(a) of the statement of claim, asserted to have been republished by Ms Bowden on or around 24 April 2020 (paragraph 7(a) of the statement of claim) upon her own Facebook page "with the authority of the second defendant or alternatively the republication was the natural and probable result" of his post (paragraph 7). This claim for republication is relied upon only as to damages (paragraph 7(d) of the statement of claim). As is set out in more detail below, this claim for republication was not pursued at the hearing. 3. The second matter complained of (Ms Bowden's post): The second matter complained of is a publication by Ms Bowden of Mr Buxton's post (to which she has appended the words "DO YOU KNOW THIS WOMAN PLEASE SHARE"), on her own Facebook page, for which a URL is given (paragraph 8(a) of the 4FASOC). Ms Bowden was never served and proceedings against her were discontinued.
2. The result of the dropping of the claim against Ms Bowden is that the plaintiff's claim at the hearing is now limited to the first matter complained of, and the claim is brought solely against Mr Buxton (hereafter "the defendant") for this publication.
3. There is, however, a dispute between the parties as to whether this permits the plaintiff to argue that publication as pleaded is sufficiently wide to include publication on the defendant's Facebook page. To determine this, it is necessary to look at the procedural history concerning the pleading of publication.

The procedural history of the claim

1. The parties provided the court on 29 May 2024 with a schedule of relevant dates and orders in relation to the procedural history. This was helpful because it clarified when and in what circumstances the statement of claim had been amended in response to challenges from the defendant as to publication and other issues. It also casts light upon the status of the republication claim made against the defendant in paragraph 7 of the statement of claim.
2. The place of publication as pleaded in the statement of claim has undergone a series of changes as follows: 1. In the original pleading, publication was pleaded as occurring "via the Facebook social media platform which was visible throughout New South Wales and Australia and internationally". 2. A challenge by the defendant resulted in the filing of an amended statement of claim on 16 February 2021, which nominated the Warners Bay Facebook Group's page (and not the defendant's own Facebook page) as the page on which the defendant posted the matter complained of. 3. On 18 November 2021, I struck out paragraphs 4, 6 and 12 of the matter complained of and gave leave to replead, noting the plaintiff should specify how the first matter complained of was constructed and where the photograph came from. I also invited reconsideration of the republication claim. 4. On 3 February 2022, the plaintiff filed the Second Further Amended Statement of Claim, which identified the place of publication by the defendant as "the Facebook group page Warners Bay People and Friends". The solicitors for the defendant wrote to the solicitors for the plaintiff on 23 February 2022, reminding them that the defendant denied publication on that page, adding that it was "not clear" from the pleading how the defendant was said to be publisher of the matter on that page. 5. The plaintiff had been charged with criminal offences arising out of her conduct on 18 and 24 April 2020 and there was a stay in place until the plaintiff was acquitted on 5 October 2022. I accordingly uplifted the stay but, because of the delays, ordered the parties to provide an outline of outstanding issues before setting the matter down for hearing. Neither the defendant nor the plaintiff raised any issue about the pleading of publication in the submissions they provided. On 6 April 2023 I made orders for the plaintiff to make the alterations agreed on in correspondence, to provide the name of the Facebook administrator of the Warners Bay Facebook Group in paragraph 4 and to delete paragraph 4(j). (I note that, in addition, the defendant's challenge to the second matter complained of as a republication was dismissed; at all relevant times this has been set out in paragraph 7 of the statement of claim). 6. On 17 April 2023 the plaintiff filed the Third Further Amended Statement of Claim particularising publication at paragraph 4 in the manner presently pleaded. The Fourth Further Amended Statement of Claim, which is the current pleading, was filed on 20 June 2023; paragraph 4 is unchanged.
3. The hearing of these defamation proceedings did not take place until 11 March 2024. As noted above, this was because the plaintiff was charged with assault (2 counts) and behaving in an offensive manner in a public place on 5 September 2020. The defamation proceedings were stayed until after 5 October 2022, when the charges were dismissed. The plaintiff resumed conduct of the defamation proceedings, resulting in further case management as set out above, following which a hearing date of 11 March 2024 was allocated.

The issues

1. The principal issues for determination are: 1. Identification, publication and defamatory meaning. 2. Determination of the defences pleaded. 3. Damages.

The imputations pleaded

1. The imputations pleaded are: 1. The Plaintiff is a vigilante in that she purports to undertake law enforcement in her community without any legal authority (whole publication but especially Lines 2-30). 2. The Plaintiff deliberately assaulted a cyclist because she does not like cyclists (whole publication but especially Lines 2-30). 3. The Plaintiff is a serious threat to the local community by her conduct in striking passing cyclists with a stick (whole publication but especially Lines 2-30 and 33-49).

Content of the matter complained of

1. The fluid nature of social media commentary and the ease with which posts can be altered, commented upon or removed require a careful consideration of the contents of the publication sued on.
2. Social media posts often generate comments by third parties for which the publisher of a social media post may be liable: Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 ("Voller"). These proceedings were commenced shortly after Voller was handed down but Mr Levine has confirmed that no Voller issue arises.
3. Paragraph 5C of the 4FASOC states that the defendant removed the matter complained of "from Facebook" on 25 April 2020. Paragraph 5D recites that the plaintiff "did not realise the importance" of seeking a copy of this document and that "she has not been able to obtain a download thereof" for this reason. The plaintiff thus does not have a copy of the original post made by the defendant on his own Facebook page and the matter complained of has had to be reconstructed.
4. Where the text of the matter complained of is unknown, the plaintiff may use his or her best endeavours to recreate what was said. Where there is a dispute as to content, a party may seek leave to interrogate early in the proceedings as to the contents of the publication: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [90] - [96]. A publication may be found to have been made even where the contents turn out to be worse than what was pleaded: Brien v Mrad [2020] NSWCA 259 at [23] - [25].

Identification

1. Although a photograph of the plaintiff was published, she was not named in the matter complained of. The plaintiff must establish that the matter complained of was downloaded by persons who identified the plaintiff in relation to each of the imputations pleaded.
2. The plaintiff called witnesses who provided statements setting out how they had identified the plaintiff from the photograph. These included Ms Barrie, who was sufficiently concerned by the post on the Warners Bay Facebook Group page to contact the plaintiff and send her a copy, and who also showed the post to her husband, and Ms Prince, a member of the plaintiff's walking group. The plaintiff's daughter, Michelle Prouten, saw the post after the plaintiff drew it to her attention.
3. Ms Cowden submits that identification by persons such as the plaintiff's daughter and Senior Constable Birch does not count as identification as the plaintiff asked them to look at the matter complained of (Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at [293]). Refusal to permit such evidence should only be permissible in very clear cases of the reader having a litigation-related purpose for reading the matter complained of, such as a party's legal representatives (Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253). In Defteros v Google LLC [2021] VSCA 167 at [245] - [257], the very few persons who read the matter complained of seem to have been the plaintiff's legal team, but identification was still taken to have been established.
4. I am satisfied, from the evidence of Ms Barrie and Ms Prince, that the plaintiff is recognisable from the photograph, sufficient for there to be more than one person in this small country town who was able to identify her, and did identify her, as the person about whom the imputations were conveyed. I am also satisfied by the evidence of these witnesses that she continues to be recognised as "the stick lady". Identification is thus established.

Defamatory meaning

1. The capacity of the matter complained of to convey imputation (a) is challenged by the defendant.
2. Ms Cowden submits that the ordinary reasonable reader would not understand the use of the word "vigilante" in its rigid dictionary definition as this would be devoid of context and thus an inappropriate means of determining the meaning of a publication (Bazzi v Dutton [2022] FCAFC 84 at [65] - [66] per Wigney J). Determination of meaning without reference to context would not take into account that the plaintiff's motives appeared to include her dislike of bicyclists rather than enforcement of a legal right. In those circumstances, the ordinary reasonable reader would see the use of the word "vigilante" as an exaggeration to emphasize the unreasonableness of the plaintiff's conduct.
3. Mr Levine asks me to follow the approach taken by White J in Dutton v Bazzi [2021] FCA 1474 (submissions, paragraph 4 - 6), where his Honour found that imputations pleaded by the applicant were conveyed. Since this decision was overruled on appeal (Bazzi v Dutton), this may seem surprising, but some courts continue to prefer the traditional approach to publication as remaining applicable to social media. The most recent of these is Hoser v Harrison [2024] FedCFamC2G 436, where Manousaridis J does not refer to either Stocker v Stocker [2020] AC 593; [2019] UKSC 17 or to Bazzi v Dutton.
4. I rely upon the reasoning set out in Bazzi v Dutton, the correctness of which, with its careful analysis of the principles in Stocker v Stocker, is clear. The restatement of the traditional "ordinary reasonable reader" test by the Supreme Court in Stocker v Stocker as "the ordinary reasonable reader of social media" should therefore be applied.
5. However, there is no "one size fits all" way to interpret all social media posts. Different platforms have different features which will affect meaning, such as length, informal conversational exchanges such as Facebook Wall, and privacy restrictions. For example, in Stocker v Stocker, the Facebook Wall was an informal conversation-style exchange, as opposed to the more structured narrative Facebook posts such as the defendant's post employ (some of these issues are touched on in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the matters complained of arose out of hundreds of pages of short Weixin text conversations over a 24-hour period). These factors must be taken into account when determining meaning.
6. Are there other factors to take into account? Judgments often refer to "context" but, as is noted in O'Donnell v Lloyd [2020] NSWDC 787, courts have never used philological tools to analyse or interpret any pre-internet publications, let alone social media. In a rare case where expert evidence was provided (Rid Novaya Gazeta and Zao Novaya Gazeta v Russia (App. No. 44561/11) [2021] ECHR 44561/11), the main features examined by the expert philologists were genre, functional purpose and context, including consideration of the use of photographs and key phrases. Factors such as genre (Hoser v Harrison at [9]; Korolak v Bauer Media Pty Ltd [2016] NSWDC 98 at [27]), purpose (such as a complaint or warning), and in particular context (Stocker v Stocker at [4] - [8] and [20] - [26]) can have a role to play in the determination of meaning.
7. Social media posts' subject matter falls into many categories. One of these is the relating of a personal experience with a third party of some kind (usually of an unpleasant nature but sometimes showing a heartwarming or unexpected good deed), followed by warnings, advice and opinions as to what should (or did) happen. Some of these categories have morphed into particular story genres. This particular post has some features common to stories of one person confronted by another in circumstances where the intervention is asserted to be officious. These stories, sometimes referred to as "Karen" stories, are not restricted to social media. The common theme of such posts is that the "Karen" who is the subject of complaint is asserting legal rights that do not exist, in circumstances where the functional purpose is to complain or warn others about her ("Karen" has now become part of the academic landscape: Raven Maragh-Lord, "From 'Permit Patty' to 'Karen'", 2021 American Journal of Play, 253).
8. The ordinary reasonable reader of social media would be familiar with this kind of story when seeing the word "vigilante" in a headline. An imputation of the 'Karen' asserting legal rights in a vigilante style would readily spring to the mind of the ordinary reasonable reader of social media. It encapsulates the purpose of the story. Applying the principles set out in Bazzi v Dutton, and taking into account these additional features, I am satisfied that imputation (a) is conveyed.
9. I would add that, although not put in argument, the complaint, sometimes made, that a word used in the matter complained of cannot distil the imputation, is not necessarily a bar; see the authorities set out in Baker v Nightingale [2008] NSWDC 103.
10. I accordingly hold that all imputations are conveyed. There is no challenge to their defamatory meaning.
11. The remaining preliminary issue is whether the place of publication has been sufficiently identified.

Proof of publication and downloading

1. Social media's publication methods have completely changed traditional principles for liability for publication. Professor Brown, in Brown on Defamation (2nd ed, 1994, Carswell) at 7.12(7)(a), citing Dr M Collins, The Law of Defamation and the Internet (3rd ed, 2010, Oxford University Press), describes the internet as a communications revolution that has resulted in it becoming "potentially a medium of virtually limitless defamation" (referred to with approval in Jeffrey v Giles [2015] VSCA 70 at fn 69). These proceedings are a good example of this change.
2. The onus of proof of publication lies on the plaintiff. Where a publication is made online, unlike print publications, there must be evidence of downloading by a third party who is additionally able to identify the plaintiff if (as is the case here) the plaintiff is unnamed. As is noted above, the plaintiff did not download or make a copy of the post the defendant agrees that he published on his own Facebook page but denies publishing elsewhere. It is for the plaintiff to establish, as part of the onus of proof of publication, exactly where (for example, the URL) the matter complained of was published.
3. Where did the defendant publish the matter complained of? The plaintiff puts two factual scenarios to the Court, asserted to arise from the way that the claim is pleaded: 1. The defendant did in fact post the matter complained of on a Facebook page named "Warners Bay Facebook Group" on 24 April 2020 in addition to (or instead of) on his own Facebook page. 2. If the location on which the defendant posted the matter complained of was not this Facebook group's page but his own Facebook page, the wording of paragraphs 4 - 6 of the 4FASOC is sufficiently broad to assert that this is the location at which publication is asserted to have occurred.
4. Part of the problem is that the matter complained of attached to the statement of claim has been reconstructed, in the sense that the defendant's actual post (whatever location it appeared on) has been extracted from the third party publications such as a screenshot, in a "cut and paste" exercise.
5. The first question to determine is whether the matter complained of was published on the defendant's own page (as asserted by the defendant) or on the Warners Bay Facebook Group (as asserted by the plaintiff).
6. Ms Cowden submits that the plaintiff is circumscribed by her pleadings and cannot attribute liability to the defendant for other Facebook users using the "share" function to publish what the defendant put on his own Facebook page.
7. Mr Levine, for the plaintiff, responds that the defendant did in fact post his comments on the Warners Bay Facebook Group page as pleaded, and that I should reject evidence to the contrary, including that of the site administrator, Ms Winney. Alternatively, he sets out an analysis of the 4FASOC which he says demonstrates that the defendant must be liable as a publisher or republisher of the Warners Bay Facebook Group page posted by others.
8. There are two questions for determination: 1. Did the defendant in fact publish (in any sense of the word) the matter complained of as pleaded by the plaintiff, namely on the Warners Bay Facebook Group page, as opposed to (or in addition to) his own Facebook page? 2. If the defendant did only publish the matter complained of on his own Facebook page and others with access to this post "shared" it on other Facebook locations (in particular the Warners Bay Facebook Group page), is the defendant liable for publication and/or for republication by these third parties?
9. The first question is whether the defendant did in fact publish on the Warners Bay Facebook Group page. The Warners Bay Facebook Group page site administrator, Ms Winney, gave evidence that the defendant did not publish on that site and furthermore that he could not, as he was not a Group member.

Ms Winney's evidence

1. At the time of publication, Ms Winney, her sister and two friends were the administrators of the Warners Bay People and Friends Facebook Group page. As part of their administrative functions, these administrators set up their own private chat page so that "all the administrators could easily connect with each other and possibly discuss things as they arose" (Tcpt 223).
2. At all relevant times, members of the public wishing to post on this particular page of Facebook had to apply to become Group members. Approval of those persons, as well as removal of posts considered objectionable, were two of the tasks carried out by the administrators, using the chat page to discuss any problems. Until 24 April 2020, once a person was a member, they could post freely. Nevertheless, the administrators monitored the page closely, and this was how they became aware almost immediately, from about 2:32 pm on 24 April 2020, that a number of what Ms Winney termed "the stick lady posts" were being made, as well as of a sudden increase in applications to become members of the Warners Bay Facebook Group page (this being a prerequisite to post anything).
3. A decision was made to turn on the "post approval" function, which meant that merely being a member was no longer enough; each post had to be approved. Ms Winney explained how turning on the post approval filter worked: "A. Yep, this should have read, "I have turned on post approval." So on our page prior to that, members could put a new post up on the site without the administrators having to approve it. But after the - this sort of barrage of posts, decided that it would be just easier to avoid having to take them down by approving them for the admins to read them first, and then approve them if they, you know, weren't going to have to be taken down. Initially - sorry, sorry, I should just add, hopefully just for a couple of weeks or days. But in fact, we found that was very useful, so we've kept that post approval on all posts." (Tcpt 224)
4. It is interesting to compare Ms Winney's endorsement of the post approval function as being easy to use, comparing it to the descriptions of how social media worked in Voller (at [7] and [148]), where "post approval" was not identified as the simple solution Ms Winney describes (no challenge was, however, made to the accuracy of this part of her evidence by Mr Levine). In fact, the administrators initially only intended to use the post approval for a short period of time but found the function so easy to use that they have continued it to this day (Tcpt 224).
5. As well as requiring post approval and deleting existing posts, the administrators refused all applications to join the Warners Bay Facebook Group page unless they came from persons known to them (Tcpt 225). In this fashion, the administrators were able to remove every upload of "the stick woman posts" between 2:32 pm and 7:36 pm, none of which had been posted by the defendant (who was not a member of the Warners Bay Facebook Group page) and thereafter prevent any posts going onto this site by use of the "post approval" function.
6. Ms Winney's evidence confirms that the defendant could not have posted anything on any topic onto this Facebook page at any time. I summarise this evidence as follows: 1. The defendant had never been a member of the Warners Bay Facebook Group page (Tcpt 241). His name was not on the members' list. 2. No person could automatically become a member of the Warners Bay Facebook Group page at any time. A person wishing to post had to apply to the administrators to become a member (Tcpt 224 - 225). This is supported by the Activity Log for 24 and 25 April 2020, which records requests by Facebook users to become members, giving their names and accounts. His name was not one of those.
7. In fact, in order to discover the original post of the defendant, Ms Winney was obliged (at 4:54 pm: Exhibit A, p. 26) to restore Peta Thomas's post so that she could check its origin, and this confirmed that the defendant did not post the matters complained of onto the Warners Bay Facebook Group's page: "Q. There's an entry at the top, "Jennifer Ingham Winney restored a post by Peter [sic]; should be Peta] Thomas". Why did you restore that post? A. I've made a note to, "See name on original post". So what that tells me is that Anthony J Buxton didn't post on our site. Peter Thomas had shared something and I wanted - because it was becoming obvious that there was a barrage of requests and posts about the stick problem, and I wanted to see who the original poster was. You - back then, on the admin page, you weren't able to just bring it back up, bring the post back up and see what it was, and, and then read it there. I had to restore it, look for the name, and then take it down again." (Tcpt 230 - 1)
8. Ms Winney went on to confirm this: "Q. When you said, "Stick woman," why did you include that in your notation? A. So that I'd have a reference to why I'd, I'd looked at Peter [sic] Thomas's post again, and I'm saying here, "The original post is not a member of Warners Bay People and Friends, Anthony Buxton". So what it - what I guess I'm saying is she had - I think that Peter [sic] Thomas is a woman - had put up a post that she'd shared from somewhere else, another Facebook page maybe or possibly from Anthony J Buxton's own personal Facebook page. So it wasn't from him as I understand it, it was, she had possibly made a screenshot or - yeah, I'd say it would have to have been a screenshot, because that's how I would have seen his, been able to see his name as the original poster. Q. Do you recall ever seeing Anthony J Buxton personally and directly himself posting on the Warners Bay People and Friends Facebook page? A. No. And I say it there, "Original post not a member of Warners Bay People and Friends."
9. Ms Winney was cross-examined as to whether the Warners Bay Facebook Group page was public or private. She said that the restrictions requiring a party to apply to join the Warners Bay Facebook Group before posting made it private. Mr Levine relied upon statements by the Facebook Help Centre that, for all "public" pages for groups, a person can be a member without administrator approval. Ms Cowden submits that, if it is necessary to find whether it is public or private, then the page must have been private, because pre-approval was required.
10. Ultimately, it makes no difference whether the Warners Bay Facebook Group was public or private. Ms Winney was able to document every single post going onto this site before she switched on the "post approval" function, and every single attempt to become a member and/or post "the stick lady story" thereafter. The evidence that the defendant was not a member of the Warners Bay Facebook Group prior to 24 April 2020 is also clear from the Facebook records. Finally, and most conclusively, in the list of post taken down prior to the "post approval" function being switched on, not one post for this period (2:23 pm - 7:36 pm) is capable of being posted by the defendant, including the matters complained of. In those circumstances, I am satisfied that the defendant did not, and in fact could not, have published the matter complained of on the Warners Bay Facebook Group's page.

The challenges to Ms Winney's evidence

1. Mr Levine submits that Ms Winney's evidence should be "rejected" (submissions, paragraph 27) on a number of grounds. The first of these was because she was not an expert witness.
2. As previously noted, neither party in these proceedings called expert evidence on the issue of publication or any aspect of computer technology. This is quite common, as judgments at first instance (Eshow v Bishop Mar Meelis Zaia [2019] VSC 465 at [3]) and on appeal (Selkirk v Wyatt [2024] FCAFC 48; Stoltenberg v Bolton; Loder v Bolton at [99]); Stocker v Stocker at [27]) demonstrate. In proceedings to which social media platforms are a party, such evidence is often given by an employee, although whether this is independent expert evidence may not be clear (Hoser v Harrison at [11]). Some judges consider no expert is necessary; in Pritchard v Van Nes [2016] BCJ No 781 at [80], A Saunders J took the view that "social media platforms and applications, Facebook in particular, are so ubiquitous that the court is able to take judicial notice of some aspects of their nature and operation". Other judges (such as the first instance judge in Stocker v Stocker) express dismay at not having assistance about technology about which they have limited understanding and/or experience.
3. Even where an expert is called, the court may find the evidence unsatisfactory (Defteros v Google LLC (Costs) [2020] VSC 324 at [23]) or of no assistance, as occurred in Howe v Zuchowski [2024] VSCA 56 at [162], where the Court went on to make its own findings about Facebook (at [163] - [165]) based on the evidence before the court, which included evidence as to how a site administrator carries out his or her functions. There are no hard and fast rules about this, and claims that expert evidence is required should be viewed with caution, particularly if no objection to the evidence in question was taken at the time, as was the case in these proceedings.
4. If a witness gives evidence that amounts to expert evidence, the proper course to take is to take objection at the time and seek a ruling. No such objection was taken. A similar submission, about similar evidence, was made in Selkirk v Wyatt which the Full Court rejected, for the following reasons: "[60] It is asserted by the appellant under the heading of "Procedural Fairness" in her written submissions in reply that the evidence of the fifth respondent (Mr Wyatt) was not lay evidence and was in the nature of opinion evidence within a specialised field of knowledge. The appellant points out that the fifth respondent described himself to the Court as being "an expert" in digital marketing while giving evidence on the first day of the hearing. Furthermore, the appellant asserts that the Rules of Court governing expert evidence were not complied with. [61] There are two answers to these submissions. First, I do not consider that the fifth respondent's evidence was expert evidence. As the respondents pointed out, it was lay evidence of observed facts as to how the MyLocalPages website worked (Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 490-491 per Dixon CJ; Matthews v SPI Electricity Pty Ltd (Ruling No 9) [2012] VSC 340 at [35]-[43] per J Forrest J; Heydon JD, Cross on Evidence (14th ed, LexisNexis, 2023-2024) at [29025]). Secondly, insofar as the appellant complains of a lack of notice or that she was taken by surprise by the evidence, that is not the case as the appellant was given adequate notice of the issue by Mr Wyatt's sworn affidavits on 30 October 2022 and 14 August 2023 respectively."
5. As to the last point, Ms Winney's evidence should have come as no surprise to Mr Levine as she was a witness to be called by the plaintiff as late as the second day of the hearing (Tcpt 121). As I understood it, she was to give the same evidence for the plaintiff as she ended up giving for the defendant.
6. The second reason given for rejecting her evidence was that she could not give evidence of what the other administrators did.
7. It is correct to say that not all of the posts were removed by Ms Winney and that others were removed by other administrators. It was not necessary to call them all to give evidence; each removal and/or refusal of membership generated its own electronic trial, which meant that Ms Winney read them. I am satisfied that the Facebook records retained by Ms Winney confirm that all "stick lady posts" prior to 7:36 pm were manually removed and all after that time were prevented from being posted by the requirement of prior approval.
8. The third basis put forward by Mr Levine for rejecting her evidence was that her evidence was "contradictory", "vague" and wrong, to use the description in his submissions. The "wrong" evidence she is asserted to have given concerns whether the Warners Bay Facebook Group was private or public. She stated that it was private and I have accepted that evidence. Whether the page was public or private is of little relevance; the administrators were carefully monitoring the Facebook page on the day in question and removing any and all posts of "the Warners Bay stick lady", so either she or the other site administrator would have seen any posts on this site by the defendant if one had been posted, identified him as the poster, and removed it. Mr Levine's submission that it was "implausible" that she would have seen each and every post (submissions, paragraph 29) overlooks the fact that four persons spent much of their afternoon removing all of these posts.

Ms Prince's evidence

1. Only one witness called by the plaintiff claimed to have seen the post actually authored by the defendant on the Warners Bay Facebook page.
2. Ms Melinda Prince gave evidence that she had consulted the Warners Bay Facebook page and seen a post in the defendant's name there. When asked how she had seen his name, she explained that she had clicked onto the button of the sharer of the post to discover where it came from: "A. I then clicked onto the post, and onto the post - the author was Anthony J Buxton, and when I clicked on the author of that post, it took me directly to his page. Q. Are you able to say who posted that Facebook post? A. Anthony J Buxton. Q. Why do you say that? A. Because when I clicked on the author, it took me directly to his page" (Tcpt 215).
3. Ms Prince said she was not looking at Mr Buxton's own Facebook page, but at the post she saw on the Warners Bay Facebook Group page: "Q. Do you recognise that document? A. Yes, that was a document that I saw on the Warners Bay Family and People page, and the author of that post was Anthony J Buxton. Q. In relation to the post, did you see any comments that were being made in relation to that post? A. Yes, there were comments such as, "Let's bash her. I know where she lives. I'll get my dog" - excuse the French, your Honour - "to rape her." Q. When you saw it, how many comments would you estimate were being made, or? A. There were well over a thousand, and there were in excess of 7,000 shares. Q. When you say that there were 7,000 shares, what is a share? A. It's where you click on the post and you share it. Q. In relation to when you saw the comments, and after looking at the Facebook post, what happened after that? A. When I looked at the Facebook post, I commented that it was inappropriate, and it should be taken down. HER HONOUR Q. Sorry, when you say you commented, you mean you actually wrote - you actually contributed a comment? A. Yes, and said it should be taken down, and then I also reported it to Facebook, and I also reported Mr Buxton's page to Facebook. LEVINE Q. When you made the comment that it should be taken down, did anything happen? A. I seemed to be blocked from pages. Q. What pages did you think you were blocked from? A. The Warners Bay People and Friends, and Mr Buxton's." (Tcpt 216)
4. Ms Prince explained that she saw the post on this site for what she thought were "a couple of days" before she was blocked by the Warners Bay Facebook Group: "Q. The Facebook post that you saw on 24 April, did you continue to see that post over the course of several days? A. It was there, I, look it was a couple of years ago, I saw it over a couple of days and then I was blocked from the post, as I mentioned before. Q. Was this the post that, as I understand your evidence, ended up accruing several thousand shares? A. The post that I saw on Warners Bay Family and Friends, the author of that post was Mr J Buxton and then when you look down there you can see little emojis that's like "Likes, Dislikes" and then it also has how many shares, but the author of that post on that page was Mr J Buxton. Q. When you say "the author", I'd just like to explore with you what you're referring to. Am I right in understanding this: when you went to the community page, the Warners Bay People and Friends Facebook page, you saw a post, and I think your evidence was you clicked on it and it took you to Mr Buxton's page, is that correct? A. That's correct. Q. That's because Mr Buxton had written a post and someone had shared it on the Warners Bay People and Friends Facebook page? A. No, that's incorrect. Q. How do you distinctly recall that Mr Buxton himself directly posted on the Warners Bay People and Friends Facebook page, as distinct from someone sharing his original post on the Warners Bay People and Friends Facebook page? A. Because the author of that post was Mr J Buxton. Q. Do you understand - and I'm not being critical of this - do you understand what happens when a post is shared on a community group? A. Yes. Q. Can you describe to me what occurs? A. Mr J Buxton put that post on the Family - the Warners Bay Family Friends and People page, and people can then share it, but the author of that post, if you click on the author, it takes you to their page, and when I clicked on the author, it took me to Mr Buxton's page." (Tcpt 219 - 220)
5. Ms Prince gives an account of being able to identify the defendant as the original author of a Warners Bay Facebook Group post that is based on her having clicked on the author button (see the transcript extract set out in paragraph 67 above). If so, this is not evidence that the defendant posted the matter complained of, but evidence that it had been shared to the Warners Bay Facebook Group site, and this was why she had to click on the share button.
6. Thus Ms Prince's evidence is in fact consistent with the evidence of Ms Winney, who similarly clicked on the share button for the post from Peta Thomas so that she could identify the original poster of the post shared on the Warners Bay Facebook Group.
7. Ms Prince's evidence confirms Ms Winney's evidence, as well as the Facebook records she provided. The defendant's post was shared to the Warners Bay Facebook Group, as members of the Group could, once approved, post from other Facebook pages and the Facebook feed.
8. I accept that the defendant only posted the matter complained of on his own Facebook page. The submission by the plaintiff that he published on the Warners Bay Facebook Group and not on his own Facebook page fails.
9. The next question is whether the defendant is nevertheless a "publisher" (or alternatively a republisher) of third party posts by reason of the share button, or whether Ms Cowden's submission that the plaintiff has made a "fatal error" (submissions, paragraph 20) in identifying the wrong Facebook address site should be accepted.

Is the defendant liable for publications by others using Facebook's "share" button?

1. Liability for publication (and republication) is very broad, as was noted in Bolton v Stoltenberg [2018] NSWSC 1518 at [165] (appeal dismissed: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45). Liability depends on the degree of endorsement; Payne J at [171] differentiates between pressing the "like" button (which is not an endorsement of this kind) and a publication "drawing the attention of another to defamatory words" such as a hyperlink (which may amount to a publication). Although the question of publication by the asserted endorser was the issue in those proceedings, the same principles apply to the liability of the original publisher, which is not replaced by these further acts. The question is the degree to which the existence of the share button means, as Ms Cowden noted in relation to recent High Court decisions and as Professor Brown explains in his comprehensive coverage of electronic publication (at 7.12(7) ff), that republication on social media has largely been rendered superfluous by the very nature of the retweet (now called "repost" in X) or share facility technology provided for users.
2. The first point to note is that there is no "one size fits all" rule for liability for all electronic publishers, as the principles for liability for a site host or internet service provider are not the same as those applicable where the person sued as publisher is the original poster or someone who has "shared", liked, included a hyperlink, or a third party commenting. However, whatever kind of publication or author there may be, a specific feature of social media which must be noted from the outset is that unless there are privacy restrictions, posts in social media such as Facebook and X do not just stay on the poster's page, but may go into not only that poster's "friends" but also into the social media "news feed", who could read it there "without visiting" the relevant Facebook page (Bolton v Stoltenberg at [146]). In other words, the publication passes outside the page on which it is posted and goes into the streams of posts flowing through the social media service provider. This means that publication has already occurred outside the page (and even the country) almost immediately after the original post is made. Whether as a result of viewing the post on the original site or in the "feed", other social media users then read, like, comment upon or simply share the post.
3. Liability of the originator for these further activities depends on how the reader of the post uses the material. This is similar to liability for non-electronic publications; in Dank v Cronulla Sutherland District Rugby League Football Club Ltd the Court at [137] held that the principles in Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 applied in straightforward cases where there was no change of substance from the original publication, and that problems only arose where the defendant had contributed only some material, or there was a difference in substance, as McCallum J noted in her helpful summary of the law in Noble v Phillips (No 3) [2019] NSWSC 110 at [43] - [60].
4. However, there is no such difference in content where the "share" button is used. The share function in Facebook is a simple process of passing on the original publication. While some social media functions, including Facebook, permit additional comments (such as choosing "quote tweet" instead of "retweet", to use the pre-X terms for sharing X posts), these have not been used in the publications the subject of these proceedings. Nor were these posts which featured a "like" (by pressing the heart shape underneath the post), which would not amount to a publication (Bolton v Stoltenberg at [171]). They used the "share" button to replicate the whole of the original post.
5. When the post goes into the social media "feed", the defendant's role as publisher goes with it. What is more, the defendant's identity as the original poster, and his post, are available in the shared post at the click of a button, particularly where the sharing is of the original text (which the post sued upon is). In those circumstances, on Webb v Bloch principles, the defendant is liable as a publisher because he has consented to publication to Facebook at large, by posting on his own page where it can be shared beyond that site into the social media "feed" where it goes to innumerable others.
6. In such circumstances, where the matter complained of is "shared", putting the question of the internet service provider to one side, both the sharer and the original publisher will be liable. Is the defendant's liability for these shared posts as a publisher or republisher?
7. This issue was comprehensively addressed in Stocker v Stocker [2018] EWCA Civ 170 by Lady Justice Sharp at [27] - [36]. Although the Court of Appeal's findings as to meaning and justification were set aside on appeal, no differing views of the issue of liability for publication were expressed; in fact, the Supreme Court proceeded as if these were correct.
8. The facts were as follows. Ms Stocker, the defendant, was exchanging comments on a third party's Facebook Wall where they were accessible or visible to all that third party's Facebook friends. This was common ground at trial. What was not common ground was whether the appellant was thereby responsible in law for her publication to those third parties who had read them on the third party's Facebook page. The trial judge held that any person posting a comment on the Facebook Wall was publishing it to any "friend" who could access it electronically, in much the same way as a notice on a bulletin board. On appeal, Ms Stocker argued that, to found liability for publication (or alternatively republication), there had to be a knowledge-based test (or alternatively a negligence-based test), with the burden of proof on Mr Stocker (the plaintiff), in order to be fair to defendants (citing Terluk v Berezovsky [2011] EWCA Civ 1534 at [27] - [28]).
9. Lady Justice Sharp rejected this submission, holding that the publications were not republications requiring the claimant to prove the natural and probable consequence, saying at [35] - [36]: "35. I do not accept that the publications with this case was concerned were republications. As earlier indicated, the evidence about the workings of Facebook before the judge was extremely limited. Without venturing further than the evidence heard below permits, in my view, as the judge found, the posting of the Comments on Ms Bligh's Facebook Wall was in reality no different in substance or in principle to the putting up of a notice on a conventional notice board, accessible to third parties. When the appellant posted her Comments on Ms Bligh's Facebook Wall, they were instantly accessible to all of Ms Bligh's Facebook Friends; and the appellant published her Comments (in the legal sense) directly to every third party who read on the Facebook Wall what she had posted there. There was no repetition of the Comments (by intervening third parties, to others) involved. The fact that the 'notice board' was an electronic, rather than a physical, one did not call for some fundamental realignment of the well-settled common law approach to this issue. 36. Nor do I accept that there is any reason to 'rebalance' the law, along the lines advocated before us. No authority other than Terluk was relied on by Mr Price during the course of his opening submissions in this appeal. The reliance on Terluk however seems to me to be inapt for a number of reasons. Terluk was a republication case and as I have said, this one is not. Moreover the particular observations of Lord Justice Laws (in the last part of para 28) on which Mr Price relies, were obiter and did not have the benefit of fuller argument, which Lord Justice Laws considered the matter in issue required. There is no basis therefore to contend that what was said represents the law with regard to republication, still less that it should apply more broadly. I should add that the distinction drawn by the law between publication and republication properly reflects the difference between the two situations: an original publisher is directly responsible for his or her own actions; in contrast, in a republication case there are threshold requirements, authorisation for example, for holding that the original publisher (not ordinarily responsible for the voluntary act of a free agent) should be held liable for the repetition of his or her publication by others. I do not accept therefore the bold submission that there is no principled reason why the test for publication should be a common one "across the board."
10. Although cases citing Stocker v Stocker treat its principles as if they apply to all forms of Facebook communications, I should stress that the "Facebook Wall", which was the publication in question in Stocker v Stocker, is not the same as using a Facebook share button to share the Facebook post made by another Facebook user. The Facebook Wall is the space on a Facebook user's profile where other users can post messages, pictures, videos and other digital content for their friends or the public to see.
11. However, the factors relevant to sharing a post are even stronger for a social media post than for a conversation on the Facebook Wall. First of all, publications on the Facebook Wall do not pass into the general "feed". Second, a post or a photograph that the person sharing has taken from another site still retains the link to the original poster. It gives specific attribution to the owner, or the person who first shared it, namely the defendant. It is a shared publication in the same way as the material logged on a Facebook Wall, in terms of the role played by the person making the original publication unless (and this is the case with a shared post as well) there are privacy restrictions of some kind. It is common ground in these proceedings that this is not the case.
12. How, then, can the form and content of a Facebook post be identified if all these other publications are matters for which the defendant is a publisher? In the present case, that is not a difficult task, because the defendant's post, and not the comments it generated (or any change to the text), are sued upon. It is a simple case of reproduction of the defendant's posts by those sharing the post in circumstances where the link is retained (for those sharing direct with the post on the defendant's Facebook page) giving attribution to the defendant as the original poster. It was to obtain information about who the original poster (and thus the publisher) was that Ms Winney briefly restored Peta Thomas's post to the Warners Bay Facebook Group page.
13. The "relatively recent development" of social media posts of the "bulletin board" kind is referred to by Lord Kerr on appeal in Stocker v Stocker at [46]. Although his Lordship's remarks are directed at analysis of defamatory meaning, he emphasises the porous and strand-like nature of social media posts, borrowing the description given by Sir David Eady J (in Smith v ADVFN plc [2008] EWHC 1797 (QB) at [13] - [16]) of being "rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on", noting that readers "do not often take a 'thread' and go through it as a whole like a newspaper article", and sometimes may add to the publication themselves. Where a defamatory meaning is conveyed, the borders of that publication thus will not stop at the end of the act of publication of the original post, but may include reposts made by others in much the same way that liability is attracted to third party posts: Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346; [2021] HCA 27.
14. For the above reasons, I am satisfied that the defendant is liable as a publisher of his post on the Warners Bay Facebook Group page when it was shared by third parties posting on that site, even though he did not post it there himself.

Publication or republication?

1. If I am in error in holding that the defendant was a publisher for posts outside his Facebook page, was he a republisher, in the sense of the natural and probable consequence of the defendant publishing the post on his own Facebook page was that others should share in the story?
2. This is a difficult area of the law, as McCallum J (as her Honour the Chief Justice of the Supreme Court of the ACT then was) noted in Mohareb v Fairfax Publications Pty Ltd (No 3) [2017] NSWSC 645 at [31] - [32]: "[31] As I have indicated, in my view the distinction often drawn between, on the one hand, liability as a principal in the publication of defamatory matter in accordance with the principles stated in Webb v Bloch and, on the other hand, the liability of an original publisher for the republication of his or her defamatory statement by a third person is difficult. Liability on either basis could arguably be reduced to a single statement of principle that recognises each as an example of participation in the act of publication through control or assent. The "sense and substance" requirement (considered below) is logically seen as an aspect of assent; permission to republish a statement would not be understood to extend to publication of any matter that departed from the sense and substance of the original statement or to publication of any additional, unseen matter. [32] The use of the term "republication" in this context is apt to confuse. If a defamatory statement is repeated verbatim at the request or with the authority of the original publisher, or in circumstances where that is the natural and probable consequence of making the original statement, the original publisher will be liable for the repetition as a separate cause of action. More difficult questions arise when the original statement is altered in the re-telling. The term "republication" is ambiguous in that context and so tends to obscure the importance of that issue. It could refer to the act of repeating a statement verbatim but is often used, rather, to refer to the matter complained of as the republication (which may or may not be a verbatim repetition of the original publication)."
3. The publication in those circumstances was not a social media publication, but the statements of principle correctly identify the difficulty in distinguishing between liability for publication and republication.
4. These issues have arisen for consideration in a number of judgments concerning social media publications, such Bolton v Stoltenberg at [167] - [169] (where Payne JA cites Kourakis CJ in Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130 at [133]; see also Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766 at [19] - [38] and [145] - [153] as to Google searches and hyperlinks). A common feature in these judgments is the question of whether there is some form of act on the part of the publisher capable of triggering liability for republication.
5. There has been consideration of "repetition" publications of a non-media nature in non-internet claims, where the view has been taken that these are publications, not republications. In Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 (at 366 - 7), Hunt J held that "the case which the plaintiff seeks to bring… is one of an original publication for which the defendants are responsible, not one of republication".
6. Can the defendant be liable if the claim amounts to a republication rather than an original publication? Ms Cowden submits that this is a whole new case and should not be permitted (submissions, 23 May 2024). She asks rhetorically what kind of republications, and where have these been pleaded and particularised. Examination of the Statement of Issues filed by the plaintiff confirms that this is indeed a new case, as the only publication issue referred to is whether the publication was made on the Warners Bay Facebook Group page.
7. As is set out in the procedural history of this claim, the plaintiff did in fact plead, in paragraph 7 of the 4FASOC (and previous versions), that the matter complained of was republished by Ms Bowden (the first defendant, who was never served and against whom proceedings were dropped) "with the authority" of the remaining defendant (Mr Buxton) "or alternatively the republication was the natural and probable result of the original publication by [him] on Facebook". The particulars given assert that they are "partners" and that the authorisation to republish "can be inferred from the nature of their relationship".
8. If this plea of liability for this joint republication had been pursued against the defendant, the plaintiff could have led evidence concerning republications of the matter complained of on Ms Bowden's Facebook page. For example, Ms Prince said she saw the matter complained of on Ms Bowden's Facebook page as late as September 2023 (Tcpt 219).
9. The claim against the defendant was not, unfortunately, a claim of republication in terms of liability, as it was expressly limited in the 4FASOC to a claim for damages only (as to the dangers of which, see Habib v Radio 2UE Sydney [2009] NSWCA 231), so it is no help to the plaintiff on liability issues. Even as to quantum, any republication plea was not the subject of evidence or submissions, and it is too late to raise it now.

The plaintiff's alternate submissions on liability for publication

1. Mr Levine puts forward a series of alternative submissions in relation to publication, in the event that his argument that the defendant posted the matter complained of on the Warners Bay Facebook Group page was rejected. These are: 1. If the Court holds that the defendant did not upload the post on the Warners Bay Facebook Page as pleaded in the statement of claim, "a publisher may be liable if they perform no acts of publication, but become aware of the Post, but promote and associate themselves with the continuance of the publication of the Post, when they had the power to remove the Post" (submissions, paragraph 22), citing Fairfax Media Publications Pty Ltd v Voller at [52] - [54] and Bishop v New South Wales [2000] NSWSC 1042. 2. Even if the defendant "had no participation in the process" (submissions, paragraph 24) when others shared his post on the Warners Bay Facebook Page, he is still liable as a publisher "as he had control of his own post and it was on a global setting", which meant that the post was "publicly viewable and able to be shared." 3. The particulars of publication do not refer to the defendant's Facebook page in the particulars of publication but they do refer (at paragraph 4(a)) to "Facebook". The mere mention of "Facebook" is enough to ensure that publication is not only made to the Warners Bay Facebook Page but to any publication on Facebook (submissions, paragraph 25).
2. In support of the last of these three submissions, Mr Levine carefully analysed the language of paragraphs 4 - 6 of the 4FASOC. He drew my attention to the following: 1. Paragraph 4 of the 4FASOC uses the word "published" and not "posted", which is set out in particular 4(a). (I note, however, that the words "on the Facebook group page Warners Bay People and Friends" have been added as the Facebook page of publication's address). 2. Persons listed in paragraphs 4(b) and 5B who identified the plaintiff were (apart from Ms Barrie) persons who also saw the original post on the defendant's Facebook page. 3. Alternatively, according to paragraph 5E, the first matter complained of was republished in Schedule B to the statement of claim (which is the second matter complained of, namely the claim against Ms Bowden that was abandoned as she was never served) and as Ms Bowden's post appeared on the Warners Bay Facebook Group, this means the plaintiff can bring a republication claim based on the posts on this Group's Facebook page. Ms Cowden points out, however, that paragraph 5F states that the second matter complained of (namely Ms Bowden's post) was made on her own personal website, not on the Warners Bay Facebook Group page, in that paragraph 5F states that in May 2020 "Michelle Prouten downloaded the Second Matter Complained of from the Facebook Page of the First Defendant's Facebook page of Facebook [sic]".
3. The first two submissions are of no assistance to the plaintiff for the following reasons: 1. As to the first submission, Mr Levine refers to the power of removing posts (which the defendant had no power to do in any event) and his asserted promotion of the post. There is no evidence of this. The defendant was not cross-examined about any such conduct. 2. As to the second submission, the defendant had no control over posts on the Warners Bay Facebook page; this was controlled by the site administrators. The defendant was not cross-examined about any such conduct.
4. As to the third submission, nothing in the pleading enables the plaintiff to pick out of these internet addresses for the Warners Bay Facebook Group and/or Ms Bowden any reference to the plaintiff's own Facebook page. Nor is it possible for the plaintiff to simply fail to nominate a precise location where publication is asserted to have occurred. Failure to identify the relevant place on the internet where the publication was made is not only contrary to pleading requirements (El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990 at [8] - [10]) but would be insufficient to establish publication has occurred. A party cannot establish liability merely by referring to "Facebook"; the plaintiff acknowledged as much by repleading the global reference to "Facebook" in the first statement of claim by specifying (wrongly) in the later versions that the defendant published on the Warners Bay Facebook Group page. I would add that it will not be possible for publications occurring after 1 July 2021 (for those jurisdictions which have amended their legislation to include s 12A(a)(a)(ii)) to simply refer to "Facebook", as lack of a precise address could invalidate the concerns notice.
5. There is, however, a much simpler argument, namely that the defendant is liable under Webb v Bloch principles for the publications on the Warners Bay Facebook Group page because they arrived there via the share button, and it is thus possible to read the defendant's post on this site, as Ms Winney did when she pressed the share button for the post by Peta Thomas to see who the original poster had been.
6. Ms Cowden complains that, in raising these issues, the plaintiff brings new claims of liability for publication. She submits that it will be "an appellable error for the Court to enter into a consideration of the principles of Webb v Bloch and Speight v Gosnay (1891) 60 LJQB 231 and allow the plaintiff to fundamentally depart from the pleading and sue upon new causes of action, whether by seeking to sue upon the Original Post, or to sue upon republications by third parties of the Original Post on the Warners Bay People and Friends Facebook Page" (submissions, 23 May 2024, paragraph 8). To do so, she argues, would be prejudicial to the defendant, who would otherwise have pleaded a defence of qualified privilege at common law.
7. Ms Cowden referred me to Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20, where the plaintiff brought proceedings for three publications between October and December 2011 but not for a fourth (dated 27 October 2011). The plaintiff brought an application in 2014 to include the 27 October 2011; it was conceded (at [10]) that this additional publication was out of time. Beech-Jones J also noted that the new publication "involves a different publication to a different person" (at [23]), adding: "[24] Questions as to whether the new cause of action arises from the same or substantially the same facts as those giving rise to the existing causes of action are always matters of fact and degree. However, at least in the context of defamation, the authorities indicate that the fact of a different publication to a different person tells, apparently decisively, against any favourable conclusion for the plaintiff (see Rossen v Airey [2012] WASCA 26 at [31] ff)."
8. This is not a different publication to a different person; the question is whether, independently of the defendant's original post on his own site, he can be taken to be a publisher of subsequent shared posts of his material. Nor is it a case of suing the wrong defendant. The plaintiff's entitlement to sue the defendant is not restricted to his original post; he can be sued as the publisher for any repetition by those who pressed the share button to publish it on the Warners Bay Facebook Group site.

Conclusions concerning publication

1. I have set out the parties' submissions in detail in deference to the parties' extensive analysis as to the issues involved, but the issue is in fact a simple one. The matter complained of was published by the defendant on the Warners Bay Facebook Group page by reason of the "share" button use by third parties; technology must trump traditional publication principles. No matter how badly drafted the pleading of publication may be, the literal assertion in the 4FASOC of publication on this site (albeit for reasons different to those argued) stumbles across the finishing line.
2. I agree with Ms Cowden's criticisms of the way in which publication is pleaded and I accept her submission that she was not required to help her opponent out by redrafting it. I would not, however, accept Ms Cowden's submission that the plaintiff should not be given the benefit of having the court give a kinder interpretation to the pleading of the publication claim than it deserves, on the basis that the plaintiff would have pleaded qualified privilege if publication had been properly pleaded or argued. Lost opportunities to plead other defences are not a basis for rejection of liability for publication if it is otherwise made out: Brien v Mrad at [23] - [25].
3. The plaintiff has succeeded in relation to the issues of identification, defamatory meaning and publication. This leads to a consideration of the defences pleaded.

Onus and standard of proof and approach to fact-finding

1. The relevant principles as to onus and standard of proof are set out in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 ("Lehrmann") at [91] - [103] and [105] - [111].
2. Where the allegations are of criminal conduct, the standard remains that of the balance of probabilities, but in the context of s 140(2) of the Evidence Act 1995 (NSW), referred to as the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361 - 2 per Dixon J), in that the weight to be given to the presumption of innocence and the level of proof required adjustment accordingly: Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 at [100] - [110]. Given that the plaintiff was in fact charged with criminal offences for which she was found not guilty, arising out of the events described in the matter complained of, it is appropriate for the truth of the imputations to be established to this level. I also note the observations of Lee J in Lehrmann at [126] - [135].
3. As to assessment of credit, I note the observations in Lehrmann at [112] - [121]. I have been guided by observations on how to determine credit issues in appellate judgments in the United Kingdom as well as by appellate explanations in New South Wales (McGlen-McLeod v Galloway [2012] NSWCA 368 at [87]).
4. Neither party addressed me on the degree of weight to be put onto the acquittal of the plaintiff in the criminal proceedings. Whereas evidence of conviction would have been persuasive because of the provisions of s 42 of the Act, no such inference arises where there is an acquittal. In Poniatowska v Channel Seven Sydney Pty Ltd (2019) 136 SASR 1; [2019] SASCFC 111, Blue J stated at [340] - [341]: "[340] It is not uncommon for both criminal and civil proceedings to be brought against a defendant. In such cases, the civil proceeding is often temporarily stayed pending the determination of the criminal proceeding so as not to prejudice the defendant's defence of the criminal proceeding. However, once the criminal proceeding has been determined, it has never been held to be an abuse of process for the plaintiff to prosecute a civil proceeding alleging the same matters notwithstanding that the defendant was acquitted in the criminal proceeding. As a matter of principle, without more, this would not amount to an abuse of process. [341] In the present case, the fact that Channel Seven in relying on the defence of justification alleged that Ms Poniatowska was guilty of fraud when she had been found not guilty of breaches of section 135.2 of the Criminal Code in the criminal proceedings did not render their defence of justification an abuse of process."
5. However, there is an important distinction to draw between justification of the imputations pleaded by the plaintiff in these proceedings and the issues for determination by the magistrate. In the judgments referred to above, the criminal proceedings focussed on whether the plaintiff had in fact raped a colleague (Lehrmann) or was guilty of war crimes (Roberts-Smith v Australian Fairfax Media Publications Pty Ltd (No 41)). The question here is whether the defendant can prove the truth of each of the imputations individually; for example, whether the plaintiff's response was motivated by her dislike of cyclists.
6. Another matter to take into account on credit issues is the impact of time on the recollections of the parties and their family members. Due to the lengthy period during which these proceedings were stayed to enable the criminal proceedings to be completed, the events in question occurred almost four years ago. The plaintiff explained her difficulties in evidence at times by reference to these events having occurred long ago. I have taken into account the observations of Lee J in Lehrmann at [122] - [126] concerning the importance of contemporaneous documents such as, in this case, the police record of interview participated in by the plaintiff and her daughter on the evening of the second incident the subject of these proceedings.
7. As to falsity, admissions (implied or express) and "consciousness of guilt", I have taken into account the principles set out in Lehrmann at [136] - [145].
8. In relation to the burden of proof for justification, as is set out below, I have taken into account the observations of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) at [92] ff and have paid particular attention to [105] - [108] (concerning the presumption of innocence) and to the requirements of s 140 of the Evidence Act 1995 (NSW).

Justification

1. As is set out in s 25 of the Act, the defendant must prove the substantial truth of each of the imputations conveyed. Section 4 of the Act defines "substantially true" as "true in substance or not materially different from the truth".
2. It is not necessary to prove the literal truth of every detail of the imputation (Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 at [220]; Bryce v Rusden (1886) 2 TLR 435 at 439); the requirement is instead to meet the sting of the charge in substance and effect (Webb v Bloch (1928) 41 CLR 331 at 366 per Isaacs J).
3. A factor of importance in these proceedings is that statutory or legal definitions of words such as "assault" or "strangle" should not be determinative or conclusive: Massoud v Nationwide News Pty Ltd at [162], citing Stocker v Stocker [2020] AC 593; [2019] UKSC 19. This is particularly the case where the matter complained of is a social media publication. While a statutory or legal definition may be a useful starting point (Haddon v Forsyth [2011] NSWSC 123 at [241]), the elements of proof for justification, for the reasons set out in Stocker v Stocker at [61] and [62], should factor in the layperson's understanding of such matters.
4. Where a defence of justification is pleaded, the defendant is not limited to the evidence available at the time of the publication: Maisel v Financial Times Ltd [1915] 3 KB 336 at 342; Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 at [53].
5. A defendant may establish the truth of the sting of the libel through his or her own witnesses. As recent defamation judgments in the Federal Court have demonstrated, it is sometimes the case that the most damaging evidence can come from the plaintiff, or from his or her witnesses or evidence: Li v The Herald & Weekly Times Pty Ltd at [226]; Lehrmann at [149] - [153].

The plaintiff's evidence

1. The plaintiff gave evidence in these proceedings as well as in the criminal proceedings. In addition, on the same day as the second incident, the plaintiff gave a comprehensive account of her encounter with the defendant in a police record of interview, the text of which is set out in Exhibit 10. The contents of that record of interview differ significantly from her court evidence.
2. The plaintiff was told very clearly by the police officers on 24 April 2020 that they had come in response to the defendant's complaint to them about her conduct earlier that day. Although the plaintiff and her daughter had also contacted police, the officers who came to the plaintiff's home that evening made it plain that they did not come in response to the calls made by the plaintiff and her daughter. The police at first spoke informally to the plaintiff and her daughter (for about 20 minutes, according to Michelle Prouten) and then advised the plaintiff that they intended to ask her questions in a record of interview (Tcpt 46), which they commenced by administering a caution.
3. The plaintiff provided a great deal of information to the police during the record of interview, much of it different to her evidence in both the criminal proceedings and in this hearing.

The plaintiff's court evidence about the two incidents

1. As to the first incident, the plaintiff's evidence in chief in this court that she was simply walking along, carrying a twig with leaves in her right hand when "two cyclists came on, onto the bridge before I could get off, and, yes, I felt something clip me" (Tcpt 13). She repeated in cross-examination that "I got a fright, and also I was clipped as, as they went past" (Tcpt 80). This paints a strong picture of dangerous riding by both the plaintiff and his fellow rider, Ms Williams. However, in the record of interview, she told police that the defendant "ran into" her stick, which she acknowledged she was holding out in order to prevent bicycles coming close to her.
2. As to the second incident on 24 April 2020, the plaintiff said in evidence in chief that she was simply holding a stick for walking assistance when a person not on a bicycle "just jumped in front of me from out of nowhere", frightening her, and saying he was going to take a photograph", to which she replied "oh good" (Tcpt 19) and kept walking. This was also what she said in her evidence in chief in the criminal proceedings. When asked what was said, she replied she was "not really quite sure. The only thing that I - I do remember is he said - he had a camera and he said, "I want to take a photo of you" (CB 150).
3. The plaintiff's account of the second incident to Ms Melinda Prince, when she met her at the end of her walk on 24 April 2020, was similarly general. Ms Prince, who gave the plaintiff a lift home because of her state of distress, said all that the plaintiff told her was that "there was this man he just jumped in front of me and was taking photos of me" (CB 4; see also Tcpt 214). The same day, the plaintiff's daughter, Michelle, said all that her mother could recall was that "he was saying stuff but I was just determined to, to move," and that he "took a photo of me and he said he was going to go to the police," (Tcpt 135).

What the plaintiff said in the record of interview

1. The plaintiff was, however, well aware of exactly what she had seen and done, and what the defendant had accused her of, in that she was able to give a comprehensive summary of the conversation to police in the record of interview on the evening of 24 April 2020, both fluently and without prompting. Not only did she describe each of her encounters with the defendant in much more detail, but her account of those conversations included, as did the rest of her answers, repeated admissions about using the twig and stick to keep away assertedly dangerous bicyclists such as the defendant and Ms Williams using the share path. The plaintiff said nothing to police about the uses she attributed to these implements in court, namely to swipe away flies and as a walking aid.
2. The relevant parts of the record of interview are as follows: 1. The plaintiff told police during the record of interview that, on the first occasion, this was no accident and that the defendant had "run into" (Exhibit 10) the stick. She made it clear that she was holding the stick out because of her concerns about bicyclists riding too close to her, not to wave away insects or use as a walking aid. For example, in response to a question about what would happen if she were holding the stick in a horizontal position she said "if someone was trying to pass me, they were trying to pass me far too close and therefore if they were doing that, they would run into the stick." (Exhibit 10). She repeated this, adding that "a cyclist still has room to be on their side without hitting anybody or hitting the stick at all" (Exhibit 10). 2. Not only was there no mention of the stick carried on the first occasion as being to wave away insects, but there was no mention of the stick on the second occasion being a walking aid. To the contrary, she told police its use was to enable her to be "right over the side and still not have bicycles banging in to me if they come over" (Exhibit 10). 3. The plaintiff prefaced her conversation with the defendant by saying she had seen him and his companion cycling some distance away (on the second occasion) and that she had waved her stick as a "salute" for safe bicycling. The defendant then suddenly came behind her on foot and said he was going to call the police about "hitting me with the stick" and being "abusive". When she said "I was nowhere near you, I gave you a salute to say …thank you", he replied "well you've done it before". It is clear from the plaintiff's next answer that she knew straight away about the incident to which he was referring, as she replied "I didn't know that you were that person I'm sorry." The defendant repeated that he was going to call the police and said that she replied "right, well, fine, that's your right", following which he took her photo "to take to the police" (Exhibit 10). 4. Another admission as to the purpose of the stick on the second occasion was the plaintiff's account to police of how she had related what the defendant had said to others at the scene. She said in the record of interview that, shortly after the incident, three people had told her "what a good idea" for her to have a stick to use in this fashion because "they had also been very frightened by bike riders that were going to supposedly hit them cutting in front of people and travelling far too fast" (Exhibit 10).
3. The plaintiff knew, when the police came to see her, that the defendant had called the police and she had seen the photo he took as it was on Facebook. She herself had called the police, as had her daughter, but they did so in the knowledge that the defendant had already gone to the police with the photograph he took and that he was the bicyclist in both incidents. She also knew that she had admitted to having a twig which had struck him on the first occasion. The plaintiff knew, when the police came, that this was a serious matter. She and her daughter both heard the police say that the purpose of the interview was to discuss allegations in the defendant's Facebook post, that they were recording the interview, that she was being questioned under caution and that anything recorded may be used in evidence.
4. The defendant's explanation to the police for her actions - that she needed the stick because of the danger caused by these cyclists - is repeated and consistent. Ms Cowden sets out seven examples of the plaintiff referring during the record of interview to bicycles "banging into me", "cutting in front of people", "flying" past, "far too close", "force their way through", "they're not going to stop" and people being "too scared of being hit by a bike" to use the shared path (submissions, paragraph 60). She also refers to women who saw what happened making approving comments about the use of her stick because of the dangers caused by bicyclists.
5. Throughout the interview, the plaintiff emphasized that her reason for carrying a stick was to stop these dangerous bicyclists; if they ran into the stick she was holding out (as occurred on 18 April 2020), it was not her fault but theirs. Although the interviewing police came close to inviting the plaintiff to say that what happened on the first occasion was an accident and on the second occasion a misunderstanding, as well as open-ended questions to add anything further, the plaintiff kept returning to her complaints about the dangerous cyclists and making statements such as that her reason for having a stick was to stop them from banging into her.
6. Mr Levine submits that the police interview does not comprise the entire conversation that the plaintiff had at the time and these answers were taken out of context. He points to other statements the plaintiff and Michelle Prouten said were made during the discussion before the record of interview commenced, which he submits the evidence shows were consistent with what both said in their evidence before the magistrate and in this court. Moreover, the plaintiff was "distraught and upset at the time of the police interview" (submissions paragraph 10, citing Tcpt 24, 46, 61 and 75 - 76), had suffered a shock and could not fully participate in the interview. Mr Levine also submitted that the plaintiff was a very frail elderly lady whose account that she needed a walking stick (and used the stick as such on the second occasion) should be accepted as there was no expert evidence to the contrary (submissions, paragraphs 7 and 14).
7. The interview was visually recorded. The plaintiff can be seen sitting a lounge, in her own home, next to her daughter. Each of the police officers asked the plaintiff questions in a gentle and friendly fashion and she gave responsive and full answers without difficulty. At times her daughter Michelle added comments. Both the plaintiff and her daughter displayed indignation rather than distress; for example Michelle blames the defendant and other bicyclists, saying that "it's like Jesus, you know, for them to be hitting you and clipping you that's dam [sic] fast they're going", the inference being that this was why her mother needed a stick.
8. By contrast, the plaintiff's answers in examination-in-chief and cross-examination in these proceedings were much less fluent. In particular, I observed: 1. At times the plaintiff appeared confused (Tcpt 89, 96) and had trouble recalling when events occurred, responding that events had happened a long time ago (Tcpt 39, 109), although she considered her recollection now was better than at the time, because she had been upset by the defendant's conduct on the day of the incident (Tcpt 46). The disparity between her answers to police and evidence in the criminal proceedings was noted by the magistrate and was even more noticeable in these proceedings, nearly four years after the events in question. 2. Whereas in the record of interview the plaintiff stated that she used both stick and twig because of how dangerous bicyclists were, her evidence in these proceedings was that she needed a walking stick because of her vision problems. Her explanation for not having a walking stick on both occasions was that on the first occasion there were so many people on the walkway that she could not really move ("absolutely full", Tcpt 12; 13; "so many people" Tcpt 26, 39, 43) and on the second occasion she forgot. She said the crowds were so great on the first occasion that it had been reported in the news, and that her daughter had decided not to walk with her on both days, because of these crowds (Tcpt 44 - 45). On 18 April 2020, the crowds were so large that the police were there to manage them (Tcpt 40), and "you couldn't have your stick and walk with it like that, the people were so close" (Tcpt 40 - 41, 42). 3. These explanations are implausible. Although Mr Levine said I could not take judicial notice of the fact that the social distancing rule of 1.5 metres was in force or being complied with, the witnesses referred to social distancing and the lockdown. While there certainly were crowds in some places on the first occasion, how this prevented the plaintiff from using a walking stick was not explained. The photograph of the plaintiff taken on 24 April showed no one else the area adjacent to where the second incident occurred and thus no reason for the plaintiff to wave a stick to force the defendant and Ms Williams off the path. 4. The plaintiff's claims that on the first occasion, the crowd was "so close" that a walking stick could not be used at all (a fact she claims she knew because of what her daughter told her about the crowds) and that she forgot to bring her own on the second occasion are reconstructions to excuse her conduct in holding and waving these items, namely to warn away bicycle riders who, she complained, were not merely whizzing past but banging into her. There is no evidence any bike rider ever banged into the plaintiff. 5. The plaintiff's explanation of waving her stick on the second occasion as a "salute" to thank each of the defendant and Ms Williams for riding around her is similarly implausible. By the time they had ridden around her and were riding away, they would have had their backs to her. This claim is a reconstruction to explain why the plaintiff was waving a stick at both these bicycle riders.
9. The plaintiff's daughter, Michelle Prouten, gave evidence supporting her mother's claim that she had told police, before the record of interview commenced, about using the twig for insects and the larger stick as a walking stick. Even if this were the case, the plaintiff was unequivocal in her explanation for the reason for having these sticks, and Michelle Prouten supported her mother's explanation for having the stick and twig as being the dangerous conduct of bicycle riders.
10. As Lee J explains in Lehrmann at [122] - [125], contemporaneous records are a far surer guide as to what happened than ex post facto accounts or rationalisations, or unverifiable assertions as to what witnesses assert is the reason why events occurred.
11. All of the evidence points to the much greater likelihood of the plaintiff's explanation for her conduct on both occasions as being the one she gave to police on 24 April 2020. I am comfortably satisfied that, on 18 April 2020, the plaintiff was carrying these sticks to ward away cyclists, not insects, and that the twig came into contact with the defendant when she held it out with the result that he ran into it. I am also comfortably satisfied that, on 24 April 2020, she was carrying the stick for the same purpose and again sought to use it in the same way.

The defendant's evidence on justification issues

1. The defendant gave answers in cross-examination in both the criminal proceedings and in this hearing which are inconsistent and which contain admissions of factual errors and exaggeration. That evidence is summarised in the findings of fact set out in more detail below. In general terms, however, I consider him to be a truthful witness, if prone to exaggeration.
2. Mr Levine emphasized the acquittal of the plaintiff in the criminal proceedings as being strongly persuasive that the magistrate had accepted the plaintiff's evidence (although the magistrate did state that the record of interview was more accurate than her evidence) over the evidence of the defendant. The findings in the criminal proceedings are of limited assistance for the following reasons: 1. A different and more stringent burden of proof, namely beyond reasonable doubt, applies. 2. As a witness in the criminal proceedings, the defendant had no control over what documents were tendered or what other witnesses were called. That is one of the reasons why evidence of criminal findings (other than a conviction, which may be tendered under s 42 of the Act) need to be viewed with some caution in defamation proceedings, as the magistrate noted in relation to comments by Mr Levine (who appeared in those proceedings as well) as to the absence of Ms Williams as a witness in the criminal proceedings (CB 122). 3. The criminal proceedings related to whether or not the elements of the criminal charges had been established and not to the justification of imputations that the plaintiff was causing serious harm, or was acting as a vigilante, or was motivated by a dislike of cyclists.
3. In addition, I have more information than was made available to the magistrate. The defendant called his partner, Ms Williams, who had been present on both occasions. She did not give evidence in the criminal proceedings. Her credit as a witness is not challenged. The defendant also provided data from his Garmin watch and Google maps of the sites where these incidents occurred. The defendant pointed to these records as enabling him to confirm the date of the first incident, whereas he had told police he could not pinpoint the date at the time. This evidence was not available in the criminal proceedings, although the defendant offered to provide it (CB 127).
4. Mr Levine submitted that the defendant lied in these proceedings and in the criminal proceedings, and that his evidence was "unreliable" and/or varied in the criminal proceedings (submissions, paragraphs 10 - 17), pointing to the following: 1. The defendant had been unable to pinpoint the date of the first incident in his police statement, estimating it as having been 14 - 16 April and gave similarly unsatisfactory evidence at the criminal proceedings in relation to this date. However, the defendant explained that in these proceedings, he had been able to confirm the date in these proceedings when he checked his Garmin records. He had offered, while in the witness box in the criminal proceedings, to check these Garmin records, but this had not been taken up as necessary (CB 127). Ultimately, the precise date of the first incident was not determinative; the plaintiff herself did not volunteer a date for the first incident during the record of interview or in her evidence in the criminal proceedings. 2. The defendant is asserted to have given inconsistent evidence about the amount of traffic on the bridge. I am satisfied that he described the number of persons as varying from place to place; for example, there was not a lot of traffic on the second occasion when he passed her (Tcpt 311, 314 - 315). The photograph in the matter complained of confirms this. 3. The defendant's asserted inability to explain how the post came to be on a particular Facebook page ("Unleashed") is not evidence of his evidence being unreliable. That is how Facebook works. The visibly embedded characteristics of the defendant's original post in this document identify it as a shared post and not as a fresh post put there by the defendant. It would have been one of thousands of shared posts on this story. The principal record of these posts that Facebook shares with its users is that, when their post is shared, the number connected to the originator's (and later the sharer's) share button rises. Finding out more about these posts requires investigation. 4. Mr Levine submits that the defendant was "not honest" about when he first saw the Warners Bay Facebook Group posts, in that he was aware of the posts on this Facebook page "in April 2020" (submissions, paragraph 12) and would have seen these before the concerns notice was served. The defendant, on reflection, said he probably did look at the Warners Bay Facebook Group posts earlier (Tcpt 349). However, it should be recalled that "the stick lady" posts were only visible on 24 April 2020 for about five hours before all were removed by the site administrators, so unless the defendant looked at the Warners Bay Facebook Group posts during those five hours, there would have been nothing to see. This is not evidence of dishonesty but the kind of minor inconsistency that often occurs in oral testimony. Mr Levine is, it should be noted, submitting that the defendant was not merely looking at the Warners Bay Facebook Group Page on 24 April 2020 but actually posting the matter complained of there, a submission not borne out by the Facebook evidence. The defendant's evidence on what he posted, when and where, was consistent throughout; he said he only posted on his own Facebook page. 5. Mr Levine's submissions about the defendant not supplying his Activity Log are incorrect. He produced this on discovery, as his List of Documents showed, and it is now Exhibit F. As Ms Cowden notes in her submissions, the reason the posting of the matter complained of does not show up on that log is that the defendant deleted it on 26 April 2020, which permanently deleted the post from his Page, including the Activity Log, which was not printed off and provided on discovery until much later. In response to Mr Levine's request that I draw a Jones v Dunkel (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9) inference, I do not propose to do so given that the document was not only produced on discovery but is in evidence. If what Mr Levine is saying is that the document has somehow been tampered with, there is a procedure set out in Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 17.5 to challenge the authenticity of documents which, if not taken, results in a presumption that the document(s) in question are authentic (r 17.2). 6. In the course of his evidence in the criminal proceedings, the defendant used the words "left" and "right" when describing how he passed the plaintiff on his bicycle in relation to the first incident (Tcpt 383 - 4) in a manner that is back to front. He said that the police officer drafting the statement corrected him on this. Mr Levine submits (paragraph 17 of his submissions) that this is "untrue evidence" and amounted to lying in a criminal proceeding to "obtain a conviction". Whatever side of the plaintiff the defendant was on, the defendant consistently spoke of a red mark on his right calf and the plaintiff has always acknowledged that her stick made contact with the defendant, so contact of some kind and a minor injury (a red mark) were never challenged. 7. In the course of oral submissions, Mr Levine additionally pointed to the defendant's acknowledgement that he had not seen the plaintiff waving her stick at other persons on either occasion and that his statement to this effect in the social media post was without substance. I agree that this is an example of the defendant exaggerating or embellishing his story and that this must reflect on his credit. 8. I do not accept claims (put to the defendant in cross-examination) that police "coached" him in his evidence, and that he had some kind of secret relationship with them because he had carried out radiography work for NSW Police (Tcpt 384 - 385).
5. Notwithstanding reservations about the defendant's tendency to exaggerate, I accept his evidence of what occurred, in large part because it is corroborated by the evidence of Ms Williams.

Ms Williams' evidence

1. The defendant's partner, Ms Williams, also gave evidence. She gave evidence in a frank and straightforward way, making concessions where appropriate. For example, she agreed that she had had only a brief chance to see the plaintiff on the first occasion (Tcpt 411), but she went on to describe having a "much clearer recollection" of events on 24 April 2024: "Q. What do you recall from the second time you noticed the person you now understand to be the plaintiff? A. That's a much clearer recollection, and she was - we'd come around from Eleebana, and we were heading from Eleebana back to Warners Bay and Speers Point, and we were close to - there's a roundabout at the corner of Warners Bay Road and the Esplanade. Warners Bay Road comes down from a suburb called Mount Hutton, and there's a roundabout, and she was coming around that area, and she was walking southbound, and I was riding northbound, and I saw her walking with a stick. It was clearly out, and I saw her in enough time to swerve off the path and go around her, and then I reconnected with the path and kept going." (Tcpt 401)
2. She was asked what her response was: "Q. What, if anything, did you think to yourself when you saw the plaintiff? A. I was mortified. I thought the behaviour was very reckless, given the number of people that were on the path at the time. There were a lot of children on bikes, there were a lot of joggers, there were a lot of pedestrians and other cyclists, and I can remember being quite alarmed that someone would behave in such a reckless manner. Q. Why do you say it was reckless? A. Because if you're walking on a - on a shared path with a stick held out, there's every likelihood you're going to connect with somebody. Q. What did you do after you saw the plaintiff on that second occasion? A. I swerved off the path, and then I - to avoid her, and then I reconnected with the path, and I kept going and waited at Speers Point for Tony." (Tcpt 402)
3. The defendant told her about his conversation with the plaintiff, that he had taken a photograph and that he intended to go to the police, which he did after they arrived home.
4. After his return from the police station, she said he told her that he would put a post onto Facebook, which he did. During the afternoon, Ms Williams noted how the number of posts started to escalate quickly; when she looked, there were over 3,500 shares, some with angry comments and wanting to contact the defendant. One of the persons who contacted her was "Meeshra", the name used by Michelle Prouten, but as they did not know who Mrs Prouten was, they did not appreciate this connection.
5. In cross-examination, Ms Williams was firm in her recollection that, on both occasions, the plaintiff was carrying the stick or branch held out in front, not using to swipe insects or as a walking aid. She denied that on 24 April 2020 the plaintiff waved the stick at her as a salute (Tcpt 415). It was put to her that she never saw anything, which she denied (Tcpt 415). She did not suggest that she had seen the incidents involving the defendant, as she was ahead of him on both rides.
6. Ms Williams' evidence is not only corroborative of the defendant, but evidence that the plaintiff attempted to use her twig and later her stick against Ms Williams as well. If her evidence is accepted, it is evidence that the plaintiff's response to the defendant was not an isolated occurrence, but one which the plaintiff was using in relation to other cyclists.
7. The plaintiff acknowledged that on each occasion she had seen the defendant with a woman and that the motions for the twig and stick were aimed at both (Tcpt 411 and 415). I am comfortably satisfied that the plaintiff pointed her twig (and later her stick) at both of them and not just at the defendant. I note Ms Williams described the twig on the first occasion as being larger than that described by the plaintiff or the defendant, but note her acknowledgement that she saw very little of what happened on the first occasion.
8. Mr Levine submits that "Ms Williams was not called in the criminal hearing because she had nothing to offer and did not see anything (p 96 - 97 Exhibit A)", and makes the global submission that her evidence should be rejected out of hand for these reasons. As the magistrate noted, when Mr Levine was cross-examining the defendant about why Ms Williams had not been called in the criminal proceedings, neither the defendant nor Ms Williams had any input as to how the prosecution conducted its case.
9. Ms Williams was an impressive witness who gave careful and clear descriptions of the events. She corroborates the defendant's evidence.
10. During oral submissions on 24 May 2024, Mr Levine submitted that Ms Williams' evidence fell outside the particulars of justification and that Browne v Dunn questions (Browne v Dunn (1894) 6 R 67) were not put to the plaintiff about what Ms Williams said that she saw. He drew my attention to the particulars set out in the defence of justification and there is some merit in this criticism. However, no objection was raised at the time to her giving this evidence on either of those bases or indeed at all, beyond the submission that she had not given evidence in the criminal proceedings. It would not be appropriate for the court to check the defence filed.
11. Ms Williams was barely mentioned in the written submissions; it was only when I commented on this and referred to her as "the forgotten witness" (Tcpt 452) during oral submissions, in case some issue had been overlooked, that these issues arose. It is too late now for Mr Levine to make the objections he now raises. That does not mean, however, that I should reject her evidence: Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578 at [25].

Findings of fact concerning justification

1. The defendant asks the court to make the following findings of fact in relation to the plaintiff's conduct: 1. On 18 April 2020, the plaintiff carried a stick of approximately 1 m in length, and approximately 1 cm in diameter, while walking along the shared path (Fact 1). 2. On 24 April 2020, the plaintiff carried a stick of approximately 1 - 1.5 m in length and at least 2 cm in diameter, while walking on the shared path (Fact 2). 3. On both 18 and 24 April 2020 the plaintiff held the stick out as an approximately 45° angle from her right side while she walked along the shared path (Fact 3). 4. A purpose of the plaintiff carrying the stick referred to in Facts 1 - 3 was to hit bicyclists as they passed her if she considered they came too close (Fact 4). 5. At all material times, the plaintiff considered bicyclists were a problem on the shared path (Fact 5). 6. On 18 April 2020, the plaintiff deliberately hit the defendant with a stick when he road past on his bike on the shared path (Fact 6). 7. On 24 April 2020, the plaintiff attempted to hit the defendant with a stick when he rode past her on his bike on the shared path (Fact 7). 8. The plaintiff's conduct towards the defendant referred to in Facts 6 and/or 7 constituted an assault (Fact 8). 9. By reason of the plaintiff's conduct referred to in Facts 1 - 8 above, she is a serious threat to the local community (Fact 9). 10. By reason of the plaintiff's conduct referred to in Facts 1 - 8 above, she is a vigilante in that she purports to undertake law enforcement in her community without any legal authority (Fact 10).

Evidence of the journey and terrain

1. Some facts about the shared path, which are not in dispute, are important to set out.
2. The first is that the Garmin records give the precise itinerary and other information about the time taken to travel the distance. The second is that the shared path's clear signage and long use by both cyclists and pedestrians are not in doubt.
3. The shared path had well-recognised markings permitting bicycle use as well as pedestrian use. There is also a dashed white line painted in the middle, so that users of the shared path heading south to Eleebana kept the road to their left, while users heading towards Warners Bay kept the lake to the left (Exhibit 3; Tcpt 12 and 35 (plaintiff); Tcpt 265 (defendant)). It was described by the defendant's partner, Ms Williams, as follows: "Q. The track that you normally would bike ride down, does it have a name? A. It's - I think it's known by - it's known by a different name, but we all call it just the Warners Bay path, but there is - I think there might be an indigenous name, maybe the Watagan Trail or something. Q. I'll refer to it as the Warners Bay track during the course of my questioning so we all know what we're talking about. Who was allowed to use the Warners Bay track in April 2020? A. Cyclists, pedestrians. It's a shared path, so anybody can use it. Q. How did you know it was a shared path? A. There are signs at all entrances and exits, and also long the path, there are signs that indicate that it's shared, and for people to - it has little caricatures that indicate keeping your dog under control, be respectful, keep to your left, indicate if you're overtaking, and if you want to stop and have a chat, you get off the path. Q. Could I ask you to describe what the shared path look like? A. The shared path has - it's not dissimilar to a roadway, it has broken white lines throughout the path, and then on the northbound and the southbound lanes that are clearly identified by the broken white lines, there are clear indications of - it has a little bicycle symbol, and a little walking man symbol." (Tcpt 399)
4. The dashed white line was not painted on the metal bridge (which was the site of the first encounter; instead, there were two lines of rivets which divided the metal path notionally into thirds (Tcpt 130 (Michelle Prouten); Tcpt 267 (defendant)). The route of the shared path (called the "Watagans Cycle Track", according to maps of the area, or alternatively the "Watagan Trail") can be seen in the Garmin documentation and maps forming part of the Court Book.
5. The way in which the shared pathway was constructed was to enable its safe use by pedestrians and cyclists at the same time. Its safe use by the defendant and Ms Williams is confirmed by the Garmin records, in that they used the allotted path at a reasonable speed. The plaintiff's complaints to police about the dangers of cyclists such as the defendant using this shared path in a dangerous fashion by simply riding along it in accordance with its designated use are without substance and have no corroboration.

Facts 1 and 2: the twig and the stick

1. On the first occasion, the plaintiff claimed she was holding "a little twig for the mozzies and flies" which she said was about a foot long, half a centimetre in diameter and had "little leaves" on the end (Tcpt 14). The defendant said the stick was at least a metre long and 1 - 1.5 cm in diameter. The defendant gave similar evidence in the criminal proceedings (CB 152).
2. Whatever the length of this stick, the plaintiff noticed straight away that it had come into contact with the defendant. In the criminal proceedings, she described it as "a little click" which occurred "when they went past" (CB 152). The defendant felt something struck him on the back of his right calf (CB 101, 115). There was a red mark on the left side of his right calf (CB 103, 178).
3. This was a day on which everyone was doing their best to remain 1.5 metres away from everyone else. For the plaintiff to have been able to make contact with the defendant (CB 178) and to be able to strike the defendant on his calf with sufficient force for there to be a red mark, she must have put her arm out sideways. The smaller the stick, the further she had to put out her arm. The plaintiff's claim of waving the branches in front of her face to keep away mosquitoes and flies cannot be accepted. The defendant's right calf was nowhere near her face.
4. There can be no doubt as to the size of the stick on the second occasion, as it is clear from the photograph, in terms of comparison to her height. The manner in which she is holding the stick in the photograph is discussed in more detail below.

Fact 3: Angle

1. As to the incident on 18 April 2020: 1. The plaintiff initially said that, on 18 April, she was holding the twig with her hand close to the waist, on her right hand side, at a 45 degree angle facing outwards and down wards (Tcpt 81). She then said she held the twig facing downwards and inwards (Tcpt 81; Exhibit E). The defendant's consistent evidence was that it was held palm facing towards the front of the body, with the stick being held at about 45 degrees from her right hip (Tcpt 268). 2. While the time the defendant had to see what struck him was a quick flash of a second or two (as the magistrate noted), Ms Williams corroborates that she briefly saw "a stick held out" which, considering its length and use, she though was being used to keep to the social distancing requirement of 1.5 metres.
2. As to the incident on 24 April 2020: 1. The plaintiff said, when shown the photograph the defendant took, that this was how she had held it (Tcpt 47). The defendant consistently described the plaintiff as holding the stick out by her side, palm forward, at a 40 - 45 degree angle. Ms Williams' evidence was similar (Tcpt 401). Although the manner in which the plaintiff is holding the stick shows a different method of holding it, this photograph was taken between three to eight minutes after the incident and after the defendant had said that he would complain about her to the police (Tcpt 39, Tcpt 48). 2. The defendant had slightly longer on this occasion to formulate a view of what was in front of him in that he recalled the event six days beforehand and was able to take evasive action, and because the stick was much bigger. His evidence is corroborated by Ms Williams.
3. I accept the defendant's description of the manner in which the plaintiff was using the stick by reason of the consistency of defendant's evidence, his corroboration by Ms Williams and the admissions made by the plaintiff to police in the record of interview.

Fact 4: The purpose of the sticks

1. The plaintiff told police that her reason for holding a stick on each of the incidents was so that "I can be right over the side and still not have bicycles banging into me if they come over" (Exhibit 10, line 16). Although initially telling the court that the stick was being used on the first occasion for "mozzies and flies" (Tcpt 13) and on the second occasion as a walking aid (Tcpt 16 - 17), she eventually conceded that keeping cyclists away was a purpose for the use of a stick: "Q. Then can you please explain what you meant when you said you would hold the stick so you could walk on the side of the path and not have bicycles banging into you? A. I just told you that, if you look at the photo there where I've got the stick there, the bike riders - some of them, not all of them don't, don't get me wrong - would ride down the middle and therefore, if they saw my stick like that, they would know that they would be running into a stick. Q. So, you say the purpose of the stick was effectively, as a warning to bicyclists that, if they did the wrong thing and were running too close to the middle, they would clip the stick you were holding? A. That's right." (Tcpt 53).
2. The description of "running into" the stick was her explanation for the defendant being struck on the first occasion (Exhibit 10). The plaintiff continued to claim that the sticks were used to repel insects (on the first occasion) and as a walking aid (on the second) but even then conceded that these were not sole-use sticks (Tcpt 53). Once the plaintiff conceded that she had the sticks as a warning to cyclists and was holding them in such a way that they would run into the stick if they came too close, the fact that they could be, or even were, used for other purposes becomes superfluous.
3. The plaintiff was a member of a walking club and owned walking sticks she used on walks (whether as a form of Nordic walking or otherwise was not explained). While I note the medical evidence in the criminal proceedings about the plaintiff having shoulder surgery and being elderly, the absence of a walking stick on 18 April suggest that the plaintiff is not someone who always required a walking stick, especially for a familiar path she had been walking over for nearly a decade. I find that on 24 April, as was the case on 18 April, she neither needed nor used a walking stick when using the shared path.

Fact 5: The plaintiff considered bicyclists were a problem on the shared path

1. The repeated attacks made by the plaintiff on bicyclists during the record of interview, and the circumstances in which Ms Prouten used her twig and later her stick when she saw Ms Williams as well as the defendant, confirm that the plaintiff considered bicyclists in general, and not just the defendant, to be a problem.
2. As to the first incident, all the evidence points to the plaintiff having a twig with leaves on it to wave around because of her opinion of cyclists and her concern for her own safety.
3. The same is the case with the stick used on the second occasion. Ms Cowden (submissions, paragraph 57) submits that the plaintiff has given four qualitatively different explanations for requiring a walking stick. The plaintiff's claim that she was using these sticks for other purposes is not only inconsistent with what she told the police, but also internally inconsistent. Her claim that she had vision problems requiring a large stick (Tcpt 16 - 17, 34) is inconsistent with her not requiring a stick on the first occasion. Her claim of needing a walking stick was also inconsistent with her admission that she had walked along this shared path, for a distance of 7.4 km, five times in the previous fortnight and many other times in the past nine years, and that she was part of a walking club which met every week (Tcpt 116).
4. The plaintiff further contradicted herself by conceding in cross-examination that a reason for holding a stick was to defend herself against bicyclists (Tcpt 53, 63).

Fact 6: Deliberately hitting the defendant on 18 April 2020 and fact 8: assault

1. The following exchange occurred during the record of interview (Exhibit 10): "Senior Constable Taylor: And when you say that you have accidentally him. Plaintiff: "No I didn't accidentally hit him." Senior Constable Taylor: Sorry, sorry, no your stick has made contact with this person. Plaintiff: He ran into it."
2. Although at other times in the record of interview the plaintiff appeared to agree with police that she struck him by accident, I regard her contradiction of Senior Constable Taylor (see above) to be the most accurate statement of what occurred. The circumstances in which the plaintiff held out a stick deliberately, with the result that the defendant "ran into it", constitute assault.

Fact 7: Attempting to hit the defendant on 24 April 2020 and fact 8: assault

1. All of the evidence points to the defendant and Ms Williams using the shared path responsibly when the plaintiff stuck out her stick, forcing them off the path in two separate events. Ms Williams' description of the plaintiff's waving towards her, after which the defendant says she waved it at him (causing him to stop), is corroborated by the defendant's Garmin watch travel record (Tcpt 277 - 81, MFI 13 and Exhibit A). Both had to take evasive action in order to avoid being hit and, by reason of the defendant's prior experience, were put in fear of this by the plaintiff's conduct.

Facts 9 and 10: A serious threat to the local community and a vigilante

1. In April 2020 the shared path was being used by many local residents because of the stressful restrictions of the Covid-19 lockdown. Not only were there more people than usual, but many would have been quite anxious about this significant world event. The potential for misunderstandings and accidents was thereby increased.
2. As to being a threat, the plaintiff did in fact come into contact with the defendant on 18 April 2020 with sufficient force to leave a red mark on his calf. If he had come off the bike, he could have injured not only himself but others, as there were many persons out walking because of the Covid-19 restrictions.
3. The defendant was not the plaintiff's only target. Her conduct towards the defendant is corroborated by her conduct towards Ms Williams as well. The plaintiff used a twig or stick to force two cyclists off the shared path, or at least to go further away from a path they were entitled to use, in order to avoid being hit by her stick.
4. What makes the threat serious is its suddenness and unexpectedness. The plaintiff was not wearing some kind of official uniform to draw attention to her attempts to control bicyclists who came what she considered to be too close to her. There were signs on the shared path indicating its use by bicyclists was permitted. If there were some other reason for her concern, the distance she expected bicyclists to remain away from her was likely to be more than the 1.5 social distancing distance, taking into account the additional length of her arm, which would not have been expected by others using a shared path clearly marked for bicycle use.
5. As to being a vigilante, the plaintiff had no authority to be confronting bicyclists with a stick of any kind, no matter what the reason. This shared path had signs permitting bicycle use and was not in need of traffic control. No evidence of prior bicycle accidents, or even of complaints, was proffered by the plaintiff or her witnesses in their evidence, or the subject of evidence from local police or community organisations. The plaintiff's concerns were largely fantasy as, apart from generalised statements in the police interview about cyclists "banging" into her, she never described any specific prior encounter she had had of this kind.

Findings of fact

1. As is shown in each of the findings of fact set out above, the inconsistencies between the accounts given by the plaintiff to police during the record of interview and her evidence in these proceedings (as well as in the criminal proceedings) are so substantial that one of them must be knowingly false. I take into account the factors identified by Besanko J in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) as necessary to discharge the burden of proof for a defence of justification where the allegation is criminal in nature and also the requirements of s 140 of the Evidence Act.
2. I have examined the facts in question objectively. I do not accept that the events in question happened in the manner claimed by the plaintiff in her sworn evidence. I am comfortably satisfied (with one exception, namely the claim the plaintiff "saluted" the defendant and Ms Williams) that these events occurred in the manner she described to the police in the record of interview. The internal inconsistencies and implausibility in her sworn evidence largely arise from her attempts to tell a different story, in this Court, to that which she told the police. I am comfortably satisfied that when the plaintiff told the police in the police interview that she had merely "saluted" the defendant, this was knowingly untrue at the time of her record of interview as well.
3. The police interviewing the plaintiff did so in a considerate and fair fashion and gave both the plaintiff and her daughter plenty of opportunity to mention why she had been carrying these sticks, even suggesting to her that she must have hit the defendant accidentally on the first occasion.
4. Even if I had accepted evidence from the plaintiff that she had taken the stick and twig out for the nominated purposes and forgotten to remind the police of this during the police interview, the implausibility of her striking the defendant's calf with a small twig and her claim (on the second occasion) that she was waving the stick to thank the defendant and Ms Williams would strain credulity, even without the benefit of her inconsistent admissions in the police interview and in cross-examination.

Relating the findings of fact to the defence of justification

1. As to imputations (b) and (c), Mr Levine submits that the ordinary Facebook reader would interpret the word "assault" to mean that someone was deliberately hit (as opposed to merely being put in fear), and that the evidence does not come up to this level, citing Stocker v Stocker at [34]. He submits that the decision of Simpson J in Haddon v Forsyth at [241] "should no longer be followed".
2. The correct approach to evidence of justification is that taken in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 and, more recently, in the approach of Lee J when determining the meaning of "rape" in Lehrmann at [568], that is, having regard to the "natural and ordinary meaning of the word". Both judgments applied Stocker v Stocker to publications far more carefully written than Ms Stocker's Facebook Wall chat with her friend, which is important when determining the degree of precision required to establish evidence of justification. As a matter of common sense, the natural and ordinary meaning of a word used to define a crime will likely be influenced by its usage in the criminal law (which was the point being made by Simpson J in Haddon v Forsyth), as noted by Lee J in Lehrmann (at [567] and [569]).
3. In the present case, the evidence shows the defendant was struck by the plaintiff's stick on the first occasion and that he avoided being struck on the second occasion (as did Ms Williams) by swerving to avoid the plaintiff. He does not have to have been hit both times. That is sufficient evidence to constitute justification of an imputation of assault, even if he was only hit once.
4. As to imputation (c), which uses "cyclists" in the plural, I am comfortably satisfied that on the second occasion Ms Williams had to swerve as well to avoid being hit, and the use of the plural is justified.
5. I note that "assault" is not an element in imputation (a). As noted in relation to defamatory meaning, a vigilante would be understood by the ordinary reasonable Facebook reader as being a self-appointed enforcer where the existing laws are perceived by that person to be insufficiently applied. The approach to proof of such an imputation should conform with the principles set out in the judgments cited above.

Conclusions concerning the defence of justification to each of the imputations

1. I set out my findings as to each of the imputations: 1. Imputation (a): I am comfortably satisfied that on both 18 and 24 April 2020 the plaintiff used a stick to force both the defendant and Ms Williams to move away, and off the shared path that they were entitled to use, in circumstances where she had neither authority nor reason to do so, and where there was no question of danger to the plaintiff from either of them. That is conduct warranting a description of her as a as a vigilante. 2. Imputation (b): I am comfortably satisfied, particularly from the statements made by the plaintiff in the police interview, that she used a stick against the defendant and Ms Williams because of her dislike of cyclists, even though they were entitled to use the shared path. 3. Imputation (c): I am comfortably satisfied that the conduct in question amounted to a serious threat to the wellbeing of the community in that it was sudden and unexpected conduct which could have caused members of the community using the shared path to have accidents, particularly in the context of the social distancing concerns at the commencement of the Covid-19 pandemic.
2. The principal basis for the defence of this claim, having regard to the manner in which the case was conducted, was justification pursuant to s 25 of the Act. I have made findings for the other defences. I have set out my findings for the defence of honest opinion in some detail but, since these are alternative findings, I have dealt with the defence of offer to make amends in relatively short compass.

The defence of honest opinion

1. Section 31(1) of the Act provides: 31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
2. There are three main elements in the defence: 1. Whether the matter complained of "in its defamatory sense" (Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 at [100]) was an expression of opinion of the defendant rather than a statement of fact (Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035 at [51]). 2. Whether the opinion related to a matter of public interest, a test that has been said to be relatively easy to satisfy (John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [123]ff). Personal and private matters which have a public impact (such as conduct in a public place) may still be in the public interest. 3. Whether the opinion was based on proper material for comment.

Fact or opinion?

1. An opinion is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc" (John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; 2005 ATR 81-789 at [25], citing Gatley on Libel and Slander, paragraph 12.6). This definition has been cited and approved as recently as in Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 at [331]. However, there is no clear line between a comment and statement of fact; many defamatory words contain elements of fact, conclusion from facts and expression of opinion. A characterisation must be made, and the context and circumstances of the use of the words will be important: John Fairfax Publications Pty Ltd v O'Shane at [27]. The characterisation in each case depends on more than the mere words; the question is whether the words would be regarded by the ordinary reasonable reader as comment or statement of fact. All the circumstances are to be taken into account, the more so in cases involving social media, as the ordinary reasonable reader does not parse the publication like a lawyer.
2. The following factors in the publication should be taken into account: 1. The headline "The Warners Bay Vigilante" is clearly a deduction or opinion formed by the defendant after the incidents he describes. The term 'vigilante' is not uncommonly found on social media; in Kumova v Davison (No 3) [2023] FCA 171 at [2], Lee J notes that the respondent is a "self-professed Twitter vigilante"; this is the opinion that person held of herself, and not a factual description. 2. The opening phrase, where the plaintiff is described as a "poor excuse" for a senior citizen. Characterisation of any person's conduct or explanation as a "poor excuse" is a clear statement of opinion. 3. The use of capital letters for "GOOD" in line 18. The defendant describes how he spoke to indicating that what she was doing could be classed as assault and her reply was "GOOD". This is not simply a recounting of what she said but a comment demonstrating her unreasonableness, in that she was saying it was "good" that she had hit him. 4. The conclusion that "I consider her to be a serious risk to the community" in line 33. This is an opinion based on the plaintiff's refusal to apologise and indicate she will stop using the stick. 5. The opinion that "we have as much right to use this path as her" (line 36) which is an example of the defendant giving his opinion as to what he considered were the rights of cyclists, rather than stating a fact as to what those rights were. It also contains a deduction for conclusion as to what the plaintiff thinks, in that he says "it is obvious she does not like cyclists" (line 34). 6. The opinion about social distancing which is expressed: "yes, social distancing is important and in my option [sic] well practised by most people using this facility, but that does not mean you are permitted to assault people to keep them away from you." Although the defendant has accidentally typed the word "option", the ordinary reasonable reader would be aware that, in these days of AutoCorrect, spellcheck and careless typing, social media is full of typographical errors of this kind and would read this phrase as being "in my opinion". It is hard to imagine a clearer example of an opinion than a statement to the effect that it is "my opinion". The same is the case with the following sentence, which states that if the plaintiff is so concerned about social distancing, she should "either walk on the grass or my preference for her down the road!" These are opinions expressed by the defendant as to what the plaintiff "should" have done. 7. The opinion expressed in the sentence "Unless we do something soon she will either cause a serious accident or someone (certainly NOT me) will remove the stick from her and possibly injure her in the process" (lines 45 - 47). This is not a statement of fact that a warning about the future based on the defendant's experience with the plaintiff and understood to be his opinion as to what would occur in the future if something were not done. 8. The use of first person, in a personal Facebook account, the informality of language, the use of capital letters and exclamation marks and the highly personal nature of the defendant's response to what the plaintiff has done are all indications that he is expressing an opinion about her and not making statements of fact. These features, when added to the wording of the matter complained of subtly underline that the defendant is recounting an experience he has had which he wants to share with others because it is his opinion that something must be done "soon" or there will be an accident. 9. There are factual statements in the matter complained of, but these are clearly delineated from the comment. 10. While the defence does not run to the imputations, I note that each of the imputations pleaded essentially amounts to an opinion.
3. The matter complained of thus contains expression of the defendant's opinions.

Public Interest

1. The assessment of public interest is an evaluative one, and will capture comments that invite public criticism or discussion (Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123 at [141]). The question is whether the matter affects people at large who are legitimately interested in what may happen to them or to others (Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468 at [34]-[35]).
2. While it might be said that, in normal times, complaints of criminal conduct should be made to the police and not on social media, that criticism should not be made here. The dramatic circumstances in which Australians found themselves plunged into a country-wide quarantine which resulted in restricted movement outside the home, including restrictions on leisure activities, were of central public interest. The defendant's social media post in such circumstances was made on a subject of public interest.

Proper material for comment

1. "Proper material" is defined in s 31(5) of the Act. The defendant relies upon facts 1 - 10 as set out above in order to establish that the opinion was based on proper material. I am satisfied that each of these facts has been established and accordingly there is proper material for comment.
2. If I have erred in some of my findings on justification, I note the proviso in s 31(6) concerning the circumstances in which an opinion will not cease to be proper material because some part of it is not proper material for comment.

Failure to plead malice

1. No Reply particularising malice was filed.

Conclusions concerning the defence of honest opinion

1. The defence of honest opinion is accordingly made out.

Offer of amends

1. On 14 May 2020, the plaintiff served a concerns notice on the defendant. The concerns notice did not attach the matter complained of (a significant problem, since the defendant had deleted the matter complained of) and pleaded four imputations very different to those now pleaded.
2. On 3 June 2020 the defendant served the plaintiff with an offer of amends. It was not accepted and accordingly the defendant is entitled to rely on a defence of offer to make amends pursuant to s 18 of the Act.
3. The offer of amends must set out a reasonable correction acknowledging that an error has been made and stating what the correct position is. This requires the court to consider the evidence and factual findings in order to determine what aspects of the publication required correction and whether the correction question was reasonable.
4. The first issue is whether the offer of amends complies with s 15 of the Act. The defendant submits that the offer is compliant for the following reasons: 1. It is an offer in writing. 2. It is identifiable has an offer to make amends. 3. It offers a proposed apology (or correction) which is reasonable in the circumstances, taking into account such matters as the fact that the original matter complained of had been removed, the circumstances in which some websites might not accept the proposed publication (Warners Bay Facebook Group, for example, had a two tier approval scheme which restricted publication on its site). 4. It must contain an offer to pay the plaintiff's reasonably incurred expenses. 5. It may, but does not have to, contain an offer to pay damages.
5. The next issue is whether the offer of amends satisfies the following criteria: 1. The offer of amends is made as soon as practicable. In the present case, the offer was made within approximately two weeks of the concerns notice being received. 2. The defendant must be ready and willing to carry out the terms of the offer of amends. Ms Cowden submits that this is the case here. 3. The offer was reasonable in all the circumstances, having regard to the evidence in relation to the defences, the terms of the correction and the provision of any further means of redress.
6. Mr Levine submits that the offer of amends must fail for the following reasons: 1. It does not acknowledge any error but merely offers to state that the defendant accepted the plaintiff's assertion that she had not hit him deliberately, followed by a statement that the plaintiff is a person of good character. However, a correction must contain two elements, one of which is an apology and the other the statement of an acknowledged error and the correct position. The offer of amends in fact confirms the defendant's position that the plaintiff had hit him on the first occasion and attempted to do so on the second but that he was willing to accept her apology (not offer one himself) and to accept the conduct was not deliberate. 2. The terms of the offer of amends would likely further injure the plaintiff, as it called upon her to apologise to the defendant for her actions. 3. No compensation is offered.
7. I agree with Mr Levine's submission that there is no acknowledgement of any error and that the request for an apology from the plaintiff could in fact further injure the plaintiff's reputation, and that the defence of offer to make amends would accordingly fail. It is, however, irrelevant that no compensation is offered, as an offer to make amends may be valid even if no damages are offered.

Damages

1. I make the following alternative findings in relation to the issue of damages.
2. The relevant principles are set out by John Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521 and in Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at [211].
3. There is no doubt the plaintiff enjoyed a good reputation in the community prior to publication of the matters complained of. She was very deeply distressed by publication of the matters, which conveyed serious imputations of criminal conduct. I also take into account that the pervasive effect of the internet means that a publication may come to the attention of a large number of recipients in a large number of places, not only in Australia but around the world. Although still referred to as "the grapevine effect" in legal terms, in practical terms the impact of the Internet is such that publication to members of the public may occur on a scale that was unimaginable even to the learned legislators who drafted the Uniform Legislation under which these proceedings are brought. The responses of those readers, as the facts of this case demonstrate, may be completely out of proportion; there were threats of physical and even sexual violence made to the plaintiff, which was one of the reasons why her daughter contacted the police.
4. The defendant points to the following matters asserted to be relevant as to quantum: 1. Publication on the Warners Bay Facebook Group page was effectively stopped in its tracks by the prompt action of Ms Winney. Ms Cowden notes that it is for publications on this website that these proceedings are brought. While I do not accept this submission, as it is clear there were thousands of posts on other Facebook sites (such as Ms Bowden's), Ms Winney's actions did make a small contribution to reducing the harm. 2. The damage to the plaintiff's reputation and hurt to feelings was caused by the original post and its sharing and/or republications, which have not been sued on. I consider this a trifling point, given the number of posts as well as the principles in Dingle v Associated Newspapers Ltd (1964) AC 371. It is neither necessary nor wise to sue on them all. 3. The plaintiff's hurt to feelings needs to be seen in the context of the criminal proceedings commenced by the police, which took almost two years to finalise. Those criminal proceedings were not commenced by the police after reading the matter complained of, but after their interviews of the plaintiff (and, to a degree, her daughter) and the defendant. The defendant's statements to the police are not sued upon, although they could have been. A defendant can only be held liable for publications which are made by the defendant which are sued upon or pleaded as republication going to damages issues. This complex question may become easier to determine under the amendments to the legislation discussed in Selkirk v Wyatt but, until then, the fact that the plaintiff was prosecuted and acquitted over a long period should not reduce her claim for damages.
5. The defendant relies upon the principles for mitigation of damages and Pamplin v Express Newspapers Ltd [1988] 1 WLR 117. Where one or more of the imputations is found to be substantially true, the evidence before the court in respect of that part of the justification defence may be relied upon.
6. The imputations do not stand or fall together. It is possible, for example, that the plaintiff could be considered to be a serious threat to the community but not a vigilante, or vice versa. If that were to occur, damages would be close to nominal. Considering each of these potential scenarios is of limited assistance, but I am satisfied that, if any one of the three imputations were found to be true, that would reduce the damages very substantially, either by reason of mitigation or for the reasons explained by Lee J in Lehrmann at [1000], namely causation of loss. If two were found true, the damages would be reduced to almost vanishing point.

Likely range of damages

1. The plaintiff was the subject of thousands of posts as well as thousands of comments, many disgusting or offensive, as the defendant's Facebook post percolated through social media in the area. Her level of hurt to feelings was profound. Witnesses called on her behalf referred to her reluctance to go out and to incidents where, even several years later, people identified the plaintiff as the "stick lady".
2. What was the extent of damage to reputation? Ms Barrie, a reputation witness with some experience in social media, proffered the following assessment of how long the harm would last: "Sandy was a friend through the bushwalking club, and I was fearful for her safety. And I felt that if she leaves it for a few weeks, nobody would recognise her, just ignore it; that was my feeling." (Tcpt 44)
3. While the plaintiff suffered deep distress, this remained at all times a local issue where there were strong views on both sides. This is confirmed by the approach taken by the site administrators of the Warners Bay Facebook Group, where steps were immediately taken to remove all posts. Although sensational for a short time, this story was likely to fade away in the usual way of social media and to pass from public discourse, although over a much longer period than that which Ms Barrie suggested.
4. The plaintiff was particularly distressed by the comments on the posts, some of which was disgusting and frightening. The regular presence of offensive and vile material on social media has led to angry responses from its victims whether they are famous (notably Lady Gaga) or simply ordinary members of the community. However, caution should be exercised when considering whether this feature warrants some kind of special loading for damages for social media publications for this reason.

Aggravated damages

1. A claim for aggravated damages is made (paragraph 13 of the 4FASOC) on the basis that the plaintiff's hurt and harm has been increased by the following improper, unjustifiable and/or lacking in bona fides conduct by the defendant: 1. Failure to apologise in response to a request by the plaintiff in the concerns notice sent on 14 May 2020. 2. The making of seriously defamatory statements about the plaintiff in circumstances where the sensational nature of the allegations were such as to make it likely that those allegations would be widely republished. 3. The defendant's refusal to remove the Facebook post on 24 or 25 April despite the plaintiff's daughter making requests to do so. It was only removed after the Toronto police contacted the defendant.
2. Mr Levine has also referred to malice in his submissions.

Failure to apologise

1. Failure to apologise is relevant to the assessment of ordinary compensatory damages, rather than aggravated damages: Clark v Ainsworth (1996) 40 NSWLR 463; Schmidt v Argent [2003] QCA 507. Mere failure to apologise does not result in an award of aggravated damages (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66) unless that failure is shown to be, in the circumstances of the case, improper, unjustifiable or lacking in bona fides (Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33 at [38]). The defendant's failure to apologise does not fall within such a category.

Sensational allegations and language

1. The circumstances in which language is sensational or extreme sufficient to warrant aggravated damages are rare and should be spelled out with some precision. In Harrigan v Jones [2000] NSWSC 814 at [63]-[64], Levine J stated: "[63] "Particular 4: "The excessive language, sensationalism and tone of the matter complained of". [64] What does this particular inform the defendant about in relation to its conduct, the nature of that conduct in the relevant sense and the effect of that conduct upon the "relevant harm"? The answer must be "nothing"."
2. Apart from describing the plaintiff as a "vigilante", there is no "excessive" language used here. In the context of the extreme language often found on social media, the defendant's post is a straightforward setting out of the relevant events, followed by what are obviously his own opinions.
3. No reference is made in this particular to the contents of the opening and closing paragraphs, where the plaintiff is described as a "pathetic excuse" and someone who might expect retaliation in the form of being struck with her own stick. This is certainly hurtful, but I would not have awarded aggravated damages on the basis of language or tone.

Failure to remove the post on 24 or 25 April 2020

1. The plaintiff was entitled to, and did, discuss with police whether taking down the post was an appropriate step to take. He did in fact take the post down on 25 April 2020. This is not conduct of the kind warranting an award of aggravated damages.

Malice

1. In paragraph 40 of his submissions, Mr Levine notes the explanation of Kaye J in Belbin at [332] - [335] as to matters to take into account as a basis for awarding aggravated damages, such as relying upon an unjustified defence of truth, lack of evidence to prove the defence, persisting in making unjustifiable allegations, failure to apologise and malice.
2. As Ms Cowden points out in paragraph 57 of her submissions, there is no particularisation of any claim of malice as no Reply was filed. Nor is there any reference to such a matter in the particulars of aggravated damages provided in the 4FASOC. Mr Levine responds by identifying the defendant's "conduct in this proceeding", namely persisting in maintaining his version of events is correct and that the plaintiff is a liar, should be taken into account in awarding aggravated damages.
3. Even if malice had been particularised, the difficulties of claiming malice as relevant to aggravated damages, as outlined by Simpson J in Holmes v Fraser [2008] NSWSC 570 at [103] - [110], would remain a barrier. I would not be prepared to award aggravated damages on this basis.
4. For the above reasons, I would not have made any award of aggravated damages.

Conclusions as to damages and orders

1. Although on a much larger scale, similar factual issues arose in Lehrmann, where a plaintiff charged with criminal offences which did not result in conviction sought damages for publications which went beyond even description by terms such as "viral", not only across Australia but worldwide. After careful consideration, Lee J considered that an alternative finding of $20,000 should be made.
2. Adapting the principles set out in the consideration of the assessment of damages as discussed in Lehrmann, and applying them to the much more modest parameters of these proceedings, an appropriate sum, if damages were to be awarded, would be $15,000, assuming the plea of justification failed in relation to all three imputations. If it succeeded for any one or more, the sum to be awarded would be $5,000 or less.
3. Regrettably, both parties now face the task of determination of the high legal costs that are such a feature of Australian defamation proceedings (although considerably less in this Court: Greiss v Seven Network Operations Ltd (Costs) [2024] FCA 377 at [48]). I reserve costs and grant liberty to apply.

Orders 1. Judgment for the defendant. 2. Costs reserved, with liberty to apply. 3. Exhibits retained until further order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2024