Rodgers & Anor v Gooding [2023] QDC 115

(3) interest pursuant to section 58 of the Civil Proceedings Act 2011; and

[4] The claim was served upon both the first defendant and the then second defendant on the 28th of February 2022. That becomes obvious from the material contained within the affidavit of Geoffrey Keith Guy, solicitor then on the record for the first and second plaintiff, which affidavit was filed on the 16th of September 2022.

[5] Exhibited to that affidavit is a copy of a letter that was forwarded to the solicitors for the first defendant and the then named second defendant, which included a copy of the claim and statement of claim and requested confirmation of the fact that those solicitors, Connolly Suthers, had instructions to accept service of the process in accordance with the provisions of rule 115 of the Uniform Civil Procedure Rules.

[6] That correspondence specifically made reference to earlier communications between the solicitors for the first and second plaintiffs and the defendants. That correspondence, at least insofar as it is relevant here, was forwarded on the 24th of September 2021, shortly after it was said that defamatory statements were made. That correspondence to Zoe Anne Gooding and Adam William John Gooding indicated that instructions were held with regard to what was said to be the defamatory statements made and the future consequences in relation to proceedings, were they to be instituted.

[7] As a result of that correspondence being forwarded, some three weeks or so later, on the 13th of October 2021, Connolly Suthers lawyers wrote two letters to the solicitors for the first and second plaintiff. The first indicated that they acted on behalf of Adam Gooding and the second that they acted on behalf of Zoe Gooding. The reason for there being two letters sent related to the fact that Adam Gooding denied that he was the publisher of the matters alleged and went on to detail particulars with regards to the Facebook account and its operation. Whilst making reference to him in the name of the account, it was not an account operated by him and that the publications in question were said to have been made, "without the knowledge, consent or authority of Adam Gooding."

[8] The second of the letters forwarded by Connolly Suthers related to them acting on behalf of the defendant Zoe Gooding noted their representation of the defendant, but thereafter were blanked so as to preserve privileged material which was contained within those items of correspondence. It is clear therefore that Connolly Suthers held instructions on behalf of both Zoe Anne Gooding and Adam Gooding.

[9] Turning then again to the correspondence of the 22nd of April 2022, it was noted that both Mr and Mrs Gooding were joined in the proceedings and explained the reasons why the proceedings were commenced, naming both of the defendants. However, the correspondence from the first and second plaintiffs' solicitors included the specific following statement:

We are however instructed to advise you that if the first defendant, Mrs Zoe Gooding, unequivocally and formally admits by written notice served upon the plaintiff that she was solely responsible for the publication as defined in paragraph 5 of the attached statement of claim (the admission) pursuant to rule 187 of the Uniform Civil Procedure Rules, the plaintiffs will discontinue the proceedings as against the second defendant, Mr Adam Gooding.

If the admission is given promptly, there should be no need for the second defendant to prepare and defend or otherwise incur any costs in the proceedings.

[10] What then followed and what shows clearly the instructions held by Connolly Suthers was the fact that a notice of voluntary admission made pursuant to rule 187 of the Uniform Civil Procedure Rules 1999 (Qld) was signed and forwarded to the legal representatives for the first and second plaintiff. The notice of voluntary admission specifically was in these terms:

(1) the first defendant hereby admits that she was the sole publisher of the publication pleaded in paragraph 5 in the statement of claim filed 20 April 2022

[11] That voluntary admission, having been given in the terms described then led to the immediate filing of a notice of discontinuance in relation to the person originally named as the second defendant, Adam William John Gooding. The notice of discontinuance filed on the 29th of April 2022 clearly discontinued the whole of the claim against the second defendant, upon the notice of admission recognising the responsibility of the defendant, Zoe Anne Gooding.

[12] As a result of that discontinuance and of course the notice of voluntary admission, a default judgment was entered on the 19th of July 2022. The default judgment required the first defendant to pay to the plaintiffs, damages to be assessed upon the plaintiffs' statement of claim and that the damages be assessed by this Court. It further went on to specifically recognise that the judgment was conditional upon the damages being assessed and of course that is the process that is now underway.

[13] For the record, it is important to note here that the entry of the judgment by default stands as a determination of all of the elements of the first and second plaintiffs' claim for damages against the defendant. That is, namely that:

(a) the defendant published the matters complained of and,

(b) the publication conveyed the defamatory imputations which were pleaded in the claim.

[14] Thereafter, further steps were taken in relation to the proceedings including specifically orders being obtained in relation to the assessment of damages. The terms of those orders included directions with regard to the plaintiffs filing and serving upon the defendant any affidavits on which they intended to rely and provided a specific opportunity for the defendant to also file affidavits upon which she intended to rely as well as an indication to the defendant of the requirement to notify the plaintiff should she require any person to be available for cross-examination.

[15] Outlines of submissions were also directed to be filed in relation to the proceedings and a specific order was also included that the plaintiffs were to cause a copy of the default judgment and the orders that were made to be served personally upon the defendant, Zoe Anne Gooding. That did occur, noting the contents of the affidavit of service of Kevin Patrick Bradbury, filed on the 16th of September 2022. That affidavit of service specifically confirmed that the defendant was served with a copy of both the default judgment of the 19th of July 2022 and with a copy of the order of the 26th of August 2022.

[16] However, the conduct of the assessment of damages listed for hearing on the 7th of November 2022 did not proceed. Rather on that day, the orders that were made with regard to the filing and service of affidavits and the filing of outlines and the like were amended. The reason for that arose from the fact that the defendant had left the address previously occupied by her and there were difficulties in contacting her and obtaining information with regard to her whereabouts. Her husband did provide some information, which led to the provision of details with regard to both a Facebook address and an email address.

[17] The order of the 7th of November 2022 then dispensed specifically with the rules in relation to service and in substitution thereof included a specific order to the effect:

(8) that service will be deemed effected by forwarding a copy of the documents referred to in order 3 to the defendant's email address: [address redacted] and by private message to the defendant's Facebook address: [address redacted].

[18] The reason for those arrangement being necessary related to what appeared, at least on the face of it, to be difficulties with regard to communicating with the defendant and addressing the issues in contention. However, service was able to be effected but it occurred in a somewhat convoluted and I must say, unusual manner. I say that in the sense that when those orders were made, there had already been an attempt to communicate with the defendant at the email address [address redacted] and a response had been received.

[19] The communication of the 3rd of November 2022 from the legal representatives for the plaintiffs to the defendant were short and to the point. It was to this effect:

We represent Ms Rogers and Mr Usher in this matter. We have been attempting to contact you in this matter. We have now been provided with this email address as a contact address for you. We advise that this matter is before the Court on Monday, 7 November 2022. Would you please contact us urgently to advise:

(1) Whether this is an appropriate email address for us to correspond with you; and

(2) Whether you wish to be heard by the Court in response to our client's claims including regarding the damage they have suffered as a result of defamatory statements made by you about them

[20] On the 8th of November 2022, at 11.06 am a response was received to that email. I should note immediately that the above communication was responded to after the proceedings were to be next before this Court on Monday, the 7th of November 2022, and it was the difficulties that I have made reference to that gave rise to the need for the amendment to the orders previously made. The response from the defendant is in these terms and it is contained on page 108 and 109 of the annexures to the affidavit of Ian Martin Conrad, filed the 8th of December 2022.

Apologies for the late reply; this email went to my Junk Mail.

Unfortunately my current circumstances mean that I cannot proceed with any measures on my own in this matter.

I am currently residing in a Women's shelter in North Brisbane and have no capacity to return to Townsville to attend.

My ex-husband has submitted a statement of financial position on my behalf to the court outlining my current living arrangements and financial position. I have no assets to my name and the money I had from the sale of my previous property which I fled due to Mr Usher's threats of violence went in to consolidating the remaining home loan balance.

The only income I receive is $300 per fortnight through family tax benefit $175 of which goes to paying for my accommodation and food.

I would be willing to submit the remainder of this as a payment plan for the defendants until the court appointed amount is payed.

If this is not suitable I may have to look at bankruptcy as an option in which it is unlikely your firm and clients would receive anything as I have a number of outstanding personal loans.

To be blunt it was foolhardy of your clients to proceed with the matter as it was known to them that I was poor.

Please let me know if your clients find the offer of remittance satisfactory; if not I will await contact from the court.

[21] Thereafter Mr Conrad responded on the same day with communications which specifically attached by way of service the letter and the attachments referred to in that letter. What then confuses but does not complicate the determination in relation to this matter is the last communication received from the defendant, being an email of the 16th of November 2022. There, apparently replying to other correspondence and forwarded to the solicitors for the plaintiffs by mistake is the following:

"am so happy you emailed me back, I was beginning to wonder if you didn't get my first email, I am so sorry that I am bothering with you but I need to get an iTunes gift card for my niece whose birthday is today and I was hoping you could please help me out with this today. I was going to call you but I'm currently in a meeting and it is taking longer than the stipulated time so I cannot take or make calls at the moment. I don't know what time I will be back but it will be later in the day. I tried doing it online but my bank is having issues charging my card. Please let me know if you can handle this. I can tell you how much I want on the gift card, I will definitely have your money back in full to you as the soon as the issue with my bank has been resolve.

[22] As I say, it clearly is not correspondence in respect of that which was forwarded by the legal representatives for the plaintiffs but shows certainly that it is the defendant who is operating that particular email account. What also is troubling in relation to that communication is that it has been addressed by the defendant to specifically the named solicitor for the plaintiffs without there being any apparent error there, and yet the correspondence in no way relates to the communication by the legal representatives. I make reference to that in light of the contents of the earlier communications from the defendant in which she specifically made reference to it being "foolhardy of your clients to proceed with the matter, as it was known to them that I am poor."

[23] I do not know and cannot find whether there is any dissembling of the position in relation to this matter, but I find it 'passing strange' that there has been such correspondence forwarded by the defendant.

[24] In any event, having detailed those particular matters in relation to these proceedings I should indicate that I am satisfied of all requirements with regards to service and notification being given to the defendant in relation to these proceedings, and most particularly that she is aware of the consequences of her failing to engage in the proceedings. What is noteworthy, is that arising from the terms of order 9 of the orders of 7th of November 2022, the assessment of damages on the plaintiff's claim filed the 20th of April 2022 would be determined on the papers.

[25] The defendant has failed to engage, though properly served in relation to the proceedings, and therefore it is appropriate that the assessment of damages should proceed. As I have indicated, therefore it is necessary obviously to deal with the issues that arise in relation to these proceedings.

[26] By way of background, the following should be noted:

(a) the first and second plaintiffs are de facto partners. They own and reside at a residence at [address redacted], Bushland Beach and have done so since November of 2018;

(b) Bushland Beach is a coastal suburb in the Northern Beaches area of Townsville and appears to all intents and purposes to be a close-knit community, noting particularly, as I shall come to, the existence of a neighbourhood Facebook account headed Bushland Beach Crime Alert group.

[27] The first and second plaintiff's immediate neighbours, located adjacent to the residence at [address redacted] on what would be described as the northern side were the defendant and her husband, Mr Gooding. They resided at [address redacted] and prior to the 10th of September 2021, the date when the defamatory statements were said to be made, the families were friendly and in fact the defendant and her husband, along with their child, had attended at the residence of the first and second plaintiffs. Those occasions included neighbourhood social events, as well as Christmas barbeques conducted in both 2018 and 2019 and on other occasions when the defendant and her husband's young son would swim in the first and second plaintiff's swimming pool.

[28] The street in which the first and second plaintiffs and the defendant resided was a cul-de-sac. It comprises 14 homes and there are approximately 40 to 50 residents in the street. Many of those residents had children and it was not uncommon for children to play in the street though the first and second plaintiffs did not have any children of their own, which is another factor to be touched upon in relation to this matter.

[29] Not only had the first and second plaintiff interacted socially with the defendant and her family, it had also been the case that there had been other street-based social functions in [street redacted] including barbeques, parties and other gatherings that had been attended by the first and second plaintiffs as well as there being neighbourhood support provided, particular by the second plaintiff by way of assisting neighbours with house and yard work.

[30] As such, the evidence which is uncontested in this matter is that the first and second plaintiffs were acquainted with and friendly with various of the residents of [street redacted], Bushland Beach, all of whom knew that the first and second plaintiffs resided at [address redacted].

[31] As I previously indicated, there was in operation a Facebook page known as Bushland Beach Crime Alert. It was the case that the defendant controlled and operated an account within that Facebook group with an account name of "[redacted]". The Bushland Beach Crime Alert group was said to have been established by and for the benefit of the residents of Bushland Beach, that on the 10th of September 2021 it had a membership of between 4800 and 4900 and that its primary or dominant purpose was to keep alerted the residents of Bushland Beach as to crimes or possible crimes that had been committed or were being committed in Bushland Beach and its surrounds.

[32] The first plaintiff also was a member of the Bushland Beach Crime Alert group and was aware of the fact that many, if not most, of her neighbours in [street redacted], Bushland Beach were also members of the Bushland Beach Crime Alert group.

[33] On the 10th of September 2021, at approximately 8.54 pm, the defendant published a post to the Bushland Beach Crime Alert group with the text:

[34] Additionally, the defendant posted two comments in relation to queries that were raised in relation to the original post. The first comment was in these terms:

When it's your kid being touched then you wouldn't be saying it's a wild accusation.

[35] The second comment was in response to a question posted by another member of the Bushland Beach Crime Alert group, which was to the effect, "How do you know?" The defendant replied:

We know cos they tried getting our 6 year old to go with them multiple times.

[36] As a result of those entries being posted, they were:

(a) to be read by any member of the Bushland Beach Crime Alert group;

(b) able to be commented on by any member of the Bushland Beach Crime Alert group;

(c) able to be reacted to by any member of the Bushland Beach Crime Alert group, ie with memes or pictures which denoted a thumbs up, a love heart, an angry face, a sad face, a wow face, a laughing face or a hug;

(d) they were able to be shared by members of the Bushland Beach Crime Alert group to their Facebook friends either privately and publicly; and

(e) were able to be saved by way of screenshot and readily were capable of being reproduced or published at will to any member of the public at any time and in any location.

[37] It is clear that the post and subsequent comments were the subject of comment by others who were members of the Bushland Beach Crime Alert group. They included comments by members of that group in the following terms:

"If you don't mind me asking, are the cops doing anything about it?"

[38] With the original post having been published at approximately 8.54 pm and the comments following shortly thereafter, there was no further activity by the defendant in relation to that post until 10.21 pm, approximately one and a-half hours later, when the defendant published another quote in these terms:

"Hi everyone. So looked like my fb had been hacked. Neighbour just went mental and we were wondering why. Have reset my settings. Apologies".

[39] Other members of the Facebook group, perhaps showing some incredulity at such a suggestion responded, including one post which said:

"You put a post up about a paedophile and there apparent address. Gonna need a bit more explaining than "we got hacked"."

[40] It is of course noteworthy that in light of the voluntary admission that was made, the statement by the defendant that she had been hacked was demonstrably false. It is also clear that the consequences for the first and second plaintiffs has been significant.

[41] The second plaintiff became aware of the publication of the post through a friend who was watching television with him at the time that the publication was made. That friend, Richard Jones, received a copy of the publication by text message. In other words, he did not view the publication on the Bushland Beach Crime Alert group but rather received a screenshot of the publication via an alternate method of electronic communication.

[42] That was then shown to the second plaintiff by Mr Jones. What it does emphasise, as I have already noted, is the fact that the post was able to be saved by way of screenshot or otherwise and then able to be reproduced, republished and disseminated to other members of the public. At the time that the second plaintiff became aware of the publication by this means, the first plaintiff was working at Moranbah for ESS Support Services Worldwide. That organisation provides support services at the Moranbah North Coal Mine and there the first plaintiff was employed as a chef, working two weeks on and one week off.

[43] It was only after she finished her shift on the 10th of September 2021 that she saw a copy of the post, which had been sent to her by the second plaintiff. The unchallenged evidence of the first plaintiff is that thereafter she logged onto the Bushland Bush Crime Alert group, personally reading the publication and posted a comment herself to the effect that the publication was not true, that she did not understand why anybody would post such a publication and that she and the second plaintiff would be taking the matter to Court.

[44] It is clear, particularly from the voluntary admissions made, that the posts were made in relation to the Facebook group and that a response by the first plaintiff was included, however that appears to have been deleted from the Facebook page. And it should be noted that the post immediately prior to the post by the defendant to the effect that her Facebook had been hacked relates to the deleting of two posts on that day. It is to be presumed and I do find that one of those posts was the response by the first plaintiff.

[45] The consequences of those defamatory posts generally and in particular with regards to the wellbeing of the first and second plaintiffs is spoken of by them in their affidavits, both filed on the 16th of September 2022. They include, on the part of the first plaintiff, concerns held by her, particularly following what she said were conversations that she held with 30 to 40 persons in or about [street redacted] who all expressed some curiosity about the defamatory posts and what she and the second defendant were intending to do about it.

[46] She said that whilst no one was apparently threatening her, she became tired of answering questions and started therefore to avoid social situations. Additionally, she indicated that the impacts of the defamatory posts were significant for both she and the second plaintiff. At paragraphs 12, 13, 14, 15 and 16 the following is said and that should be inserted from the affidavit of the first plaintiff dated the 16th of September 2022.

12. My life changed following the defamatory post. It had an impact on me immediately and that impact is continuing. From my observations, the defamatory post had an impact on Mick. These impacts are that:

(a) Mick did not want to leave the house. He closed all the curtains and would not go outside to mow the grass. He told me repeatedly that he felt ashamed and embarrassed. He became progressively more withdrawn from communicating with me, his friends and neighbours;

(b) Consequently, I had to mow the grass and look after all of the outside jobs around the house;

(c) Our social life in [street redacted] stopped dead. From my perspective, this had a significant impact on Mick as he is a person who enjoys socialising with his neighbours. I avoided going out in public and stopped going out to exercise the dog at the local dog park;

(d) All interaction with the neighbourhood children stopped and has not resumed to the date of swearing this my affidavit. I used to enjoy interacting with local children;

(e) I changed my shopping habits as I was concerned that I would be recognised at the Coles supermarket at Bushland Beach. For 2 to 3 months I shopped at the Burdell shopping centre a further 10 to 20 kilometres away from my home;

(f) Mick was heartbroken about the poor attendance at his grand final NRL event at our home in October 2021;

(g) It was only in August of this year that I have noticed that Mick is slowly returning to his normal social behaviour with some adult residents of [street redacted]. By this I mean that he has resumed close friends in [street redacted], but he still avoids more general social gatherings with more than a couple of people;

(h) The defamatory post has had significant effect on my relationship with Mick. We now have more arguments, particularly given Mick's avoidance of leaving the house and the burden of legal costs;

(i) I have been under a great deal of stress following the defamatory post and in bringing this proceeding. This is because of financial burden of legal costs. Also I am hesitant about giving people my address for local deliveries. This has caused me to curtail my gardening activities; and

(j) After the defamatory post I stopped running a local gardening page on Facebook, a page that I started.

13. I was extremely stressed due to the defamatory post and also Mick's reaction to it. I should have sought medical assistance, however, I did not do so because I have very little time to attend to my own personal matters given the shift work that I am engaged in and the fact I need to continue doing this shift work given the motor vehicle incident I refer to below.

14. The defamatory post has changed me. Whereas I was previously quite an outgoing person, I am now more shy of social interaction. I don't like telling people about what happened with the defamatory post. Also, I will not touch anybody's child. Due to the impact of the defamatory post Mick and I have abandoned our plans to become foster parents.

15. The defamatory post has also had an impact on my performance at work I noticed that I am more reserved and not as willing to engage in light banter. Also, whilst I am away at work I am distracted because I worry about Mick and how he is getting on alone in the house. I believe all my relationships, whether at work or at home in Bushland Beach, are now more distant. I am more fearful of people since the defamatory post.

16. Mick and I believed it was absolutely necessary that we commence legal proceedings because of the defamatory post. The allegations made against Mick and I are dreadful and have left a terrible stain on our reputations and on our address. In those circumstances we felt that we had no choice but to take steps to try and restore our reputation as best we could in the circumstances. It is important that people understood clearly that Mick and I are not paedophiles. However, I do not believe that whatever we do we will ever be able to wash the stain away entirely. Zoe Gooding has by her conduct detrimentally affected our lives forever."

[47] Similar concerns are expressed by the second plaintiff in his affidavit of that day. He speaks particularly of the change within him and within the small community of [street redacted]. At paragraphs 11, 12 and 13 the following is said by the second plaintiff.

"11. I am well known in [street redacted] because, prior to the defamatory post, I had attended many social functions in the street, such as barbeques, parties and other gatherings. I also enjoyed helping my neighbours with work around their homes and gardens.

12. Prior to the publication of the defamatory post, [street redacted]was a vibrant community with much interaction between the residents. After the defamatory post, the interaction amongst residents quietened significantly. Gatherings of the residents of [street redacted] ceased for some time. Prior to the defamatory post there would have been informal gatherings outside in the street two or three times a week. Even today, 12 months later, the atmosphere in the street is still not what it was prior to the defamatory post.

13. There are 14 homes in [street redacted] and about 50 or more residents. Mia and I were acquainted or friendly with all of them at the time of the defamatory post. All of them knew that Mia and I were the residents of [address redacted]."

[48] Thereafter, the second plaintiff goes on to note the impact of the posts upon him and indicates that there were both immediate and continuing impacts.

"14. The impact of the defamatory post upon me was immediate and continuing, in that:

(a) I avoided going outside of my home for at least three months. For three months I avoided contact with my neighbours in [street redacted]. I was worried that I might be subject to reprisals from neighbours and people within the community. In my view to be called a paedophile is the worst thing that I could be called;

(b) I did not and do not know exactly how many of the almost 5,000 members of the Facebook Group had read the defamatory post, but I was worried that a large number of my local community had read the defamatory post;

(c) I did not and do not know exactly how many of the almost 5,000 members of the Facebook Group had screenshotted or downloaded the defamatory post, but I was worried that a large number of people might have done so;

(d) I did not and do not know exactly how many times the defamatory post had been shared, but I was worried that it may have been shared by a number of people and spread throughout my local community;

(e) I am worried that the defamatory post has left a stain on my reputation. I am also concerned that some people may still believe that Mia and I are paedophiles and that it is a topic of community discussion;

(f) I was and remain concerned and embarrassed about being seen out and about in the street whilst children are present;

(g) Mia, my partner, appeared to me to be extremely upset and stressed by the defamatory post. She became withdrawn and stopped shopping locally. Mia stopped taking our dog to the local dog park;

(h) Soon after publication of the defamatory post a person at my workplace at [redacted] asked me whether I was the person referred to in the defamatory post. I told him I thought so and he just laughed at me saying what a joke;

(i) Persons I knew who had previously indicated they would attend a grand final NRL event at my home now indicated that they would not be able to attend or told me plainly they were hesitant to do so. Out of an expected 20 to 25 people that I had invited, only 5 attended my event on 25 October 2021, some six weeks later. Consequently, I have stopped inviting other persons to my home other than my closest friends;

(j) The defamatory post has had significant effect [sic] on my relationship with Mia. We now argue a lot over finances and even trivial matters; and

(k) I have been under a great deal of stress following the defamatory post and in bringing this proceeding. This is because of financial burden of legal costs. Also I am still hesitant about giving people my address for any reason."

[49] Additionally, from the perspective of the second plaintiff, a further incident occurred, though not one in relation to a defamation but rather one that is indicative of both a lack of remorse on the part of the defendant as well a degree of animosity which for some reason is directed towards both of the plaintiffs but it would appear particularly the second plaintiff. This relates to a motor vehicle incident which occurred on the 17th of June 2022. In his affidavit, at paragraphs 16, 17 and 18 the following is said:

16. On 17 June 2022, after Mia and I had commenced this proceeding, I was struck twice by a motor vehicle driven by Zoe Gooding. As a result I suffered a fractured rotator cuff, three broken ribs and various abrasions including a head injury. I had surgery to repair my rotator cuff on 8 July 2022. The circumstances of this vehicular attack on me are as follows:

(a) I was again watching rugby league at our home with Jeremy Stroud and Richard Jones on Friday night being 17 June 2022. Jeremy's wife telephoned and said that a vehicle outside of her home was revving its motor and had driven into her front garden;

(b) Jeremy and I went down [street redacted] to Jeremy's house, but the vehicle had departed. Jeremy and I remained at Jeremy's home;

(c) About two hours later the vehicle returned driving up [street redacted] slowly without headlights;

(d) When Jeremy and I went out and approached the vehicle I recognised that it was the vehicle usually driven by Zoe Gooding;

(e) Jeremy and I went out to approach the vehicle but it left and pulled into the driveway of the Gooding residence. The car stopped at the top of the driveway with the garage door open;

(f) Jeremy and I walked up to the Gooding residence;

(g) As I approached the vehicle that Zoe Gooding was driving, she put the car in reverse so as to pull back into [street redacted] and in doing so knocked me to the ground whereby I sustained a head injury;

(h) Zoe Gooding then drove her vehicle up towards the dead end [street redacted] and had stopped whilst Jeremy was helping me up. We then proceeded to approach the vehicle again; and

(i) Then the vehicle being driven by Zoe Gooding headed back down [street redacted], swerved towards me and struck me so that I was thrown onto the bonnet and then over the vehicle sustaining the injuries referred to above.

17. As a result of the injuries I have sustained due to the motor vehicle incident I have been off work since the 17 June 2022. I have been told by my doctor that I can resume light duties as from the 12 September 2022. Exhibited hereto and marked "MJU4" is a copy of a bundle of documents including a Claim form and medical certificate.

18. I have been interviewed by the police in respect to the incident and they have advised me that Zoe Gooding has been charged with various offences. I am awaiting further details of those charges."

[50] As is clear, there have therefore been significant consequences for both the first and second plaintiff as a result of the posts made by the defendant. The defamatory imputations which are suggested to arise as a result of the posts in respect of both the first and second plaintiffs are detailed as:

33. The publication conveyed each of the following defamatory imputations:

(ii) had inappropriately touched or molested Ms Gooding's six year old child;

(iii) was intending to touch or molest Ms Gooding's six year old child;

(vii) is sexually attracted to and has a sexual interest in children under the agent [sic] of consent;

(ix) is a person who engages in illegal sexual activities;

(ii) had inappropriately touched or molested Ms Gooding's six year old child;

(iii) was intending to touch or molest Ms Gooding's six year old child;

(vii) is sexually attracted to and has a sexual interest in children under the agent [sic] of consent;

(ix) is a person who engages in illegal sexual activities;

[51] Additionally, the plaintiffs indicate in the claim and certainly inferentially touch upon it in their affidavit evidence, that as a result of the defamatory statements, what is conveyed is a need to ensure that the residents of Bushland Beach do not allow their children to be in the proximity of either of the plaintiffs.

[52] It is clear that the defamatory statements have been made and as a result of those defamatory statement there have been serious consequences for both the first and second plaintiffs. As a result of those defamatory statements and the admissions on the part of the defendant that those statements were made and that they conveyed the defamatory imputations that are pleaded, the first and second plaintiffs seek compensatory damages. Initially, that claim was in the sum of $150,000 in respect of each of the first and second plaintiff, but the outline filed by the first and second plaintiffs now contend that an appropriate award for compensatory damages is $100,000 for each of them.

[53] The claim for $100,000 is said to reflect the seriousness of the defamatory imputations and the harm caused to both the first and second plaintiff as well as being sufficient to vindicate each of the plaintiff's reputations, to compensate them for the hurt, distress and embarrassment that was caused as a result of the posts being made, to reflect the natural and probable extent of publication throughout Bushland Beach and its surrounds and finally to convince any person to whom the defamatory imputations were published or republished of the baselessness of them.

[54] In respect of the award of damages in defamation proceedings, there are three purposes which need to be served. Firstly, it is to:

(a) provide consolation for the personal distress and hurt caused to the person defamed;

(b) reparation for the harm done to those persons both personally and to their business reputation; and

[55] The principles that apply in relation to such matters are well known and the subject of significant commentary by the Courts. More often than not, the first of two those purposes, consolation and reparation, are considered together. They relate to personal distress and hurt and also for harm to reputation, be it personal or professional reputation. The first of the purposes for damages serves to compensate for the harm caused and felt by each of the plaintiffs in this instance and as was observed by Justice Bradley in O'Reilly v Edgar [2019] QSC 24 at 189:

The first purpose may be the most significant element of the damages awarded. This is because the harm caused by the publication of defamatory matter is often more in the injury of the defamed person's own feelings - what they fear others are thinking about them - than any actual change manifested in the attitude or behaviour or others towards the person.

[56] This is exactly a circumstance described in the affidavits of both the first and second plaintiffs, where they express concerns about contact with their neighbours and what they might be thinking about them as well as the ongoing effects of that upon their interactions with their neighbours.

[57] The second purpose, the reparation for the harm done to a person's reputation, has also been the subject of significant commentary, but there is also a need to consider the nature of the defamatory statement, or post, as is the case here, and the gravity of the imputations and the extent that the publication of those imputations has when assessing the harm caused to a person. What is contended in this matter, understandably so, is that the gravity of the imputations arising from an allegation of paedophilia or statements of a similar kind have been the subject of defamation proceedings in Queensland as well as in other States and have been observed by the Courts as being the most serious of imputations that are capable of being made.

[58] Comments relating to the seriousness of such allegations include; in Nowak v Putland [2011] QDC 259, a judgment of his Honour Judge Wall KC as he then was:

This (that one is a paedophile) is a most serious allegation to make against a person. In the present case, it was hurtful, cruel, persistent and prolonged. It was serious defamation. It involved the imputation that the plaintiff was guilty of serious criminal contact.

[59] Similarly, Judge Samios in Atholwood v Barrett [2004] QDC 505 said the following:

...to be called a paedophile is one of the worst possible things that could be said about someone if it were untrue. I accept that it is one of those statements which, despite denial, may have a tendency to persist and leave a lingering and permanent mark on a person's reputation. I accept it is extremely difficult, if not impossible to dispel this.

[60] On a similar basis, Judge Gibson of the New South Wales District Court commented as follows in Northcoast Childrens Home Incorporated Trading as Child and Adolescent Specialist Programs and Accommodation (CASPA) v Martin [2014] NSWDC 125:

Whilst imputations of dishonesty, incompetence and neglect are serious issues, imputations of involvement in child abuse of any kind must be viewed as the most serious imputations capable of being made.

[61] And more recently, Judge Robertson as his Honour was in Grattan v Porter [2016] QDC 202 noted:

To falsely call someone a paedophile has been correctly recognised as one of the worst possible things that can be said about a person.

[62] What is contended on the part of the plaintiffs therefore is that those well established and accepted judicial observations demonstrate that the publication of the post, as it was in this instance, is one of the most serious of the imputations that are capable of being made about a person.

[63] Additionally, there needs also, in relation to the assessment of compensatory damages, to be a consideration of the extent of the publication and the possibility of spread along what is now referred to as a grapevine, and therefore to appear at other places that might be unknown to the plaintiffs. In that regard, defamatory statements published on the internet or social media are cases that show the spread that can occur. Judge Elkaim SC of the New South Wales District in Mickle v Farley [2013] NSWDC 295 said the following:

There is one matter that I omitted in relation to the compensatory damages, and that is distress that when defamatory publications are made on social media it is common knowledge that they spread. They spread easily, by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from this kind of communication.

[64] This was affirmed more recently in this state in O'Reilly v Edgar,[1] to which I have previously made reference, where Justice Bradley noted:

The so called "grapevine" effect recognises that the dissemination of defamatory material is rarely confined to those to whom it is immediately published. The harm caused to reputation does not come to an end with the publication. Past observations that it is "impossible to track the scandal, to know what quarters the poison may reach" are apt to describe the effect of publication of defamatory matter on social media, where the defamation tends to spread very rapidly and might emerge "from its lurking place at some future date", when again it has a "tendency to spread".

[65] As such, what is argued on the part of the first and second plaintiff in relation to the personal distress caused and the possible harm to their reputation is the fact that any award that is made should be sufficient for the plaintiffs to be able to point to it in order to show or convince a bystander of the baselessness of the publication should it emerge at some time in the future. As mentioned, the third of the considerations in relation to compensatory damages relates to the question of vindication and the need for the award to be at least the minimum that would be necessary to signal to the public the vindication of the reputations of the first and second plaintiffs.

[66] What is emphasised particularly in that regard is that the amount of damages must be sufficient not only to vindicate the first and second plaintiffs at the time of publication and at the time of judgment but also into the future. Obviously, the assessment of damages in relation to such matters, though any assessment should reflect the nature particularly of the defamatory statements as well as those factors in relation to compensation to which I have already made reference, including consolation, reparation and vindication.

[67] Helpfully, counsel for the plaintiff has detailed in their outline particulars of what are submitted to be broadly comparable cases that demonstrate a relevant range of damages for the publication. It is submitted that those comparable cases suggest a range of somewhere in the vicinity of $80,000 to $120,000 for compensatory damages in relation to each of the first and second plaintiffs. For the ease of recording that which has been detailed, I include in these reasons the particulars of those cases as detailed in paragraphs 50 through 55 of the outline:

"50. First, Atholwood v Barrett,[2] in which damages were assessed $100,000. In that case, the defendant made defamatory statements about the plaintiff being a paedophile and interfering with the defendant's children to a person on two occasions, to a separate person on one occasion, and to a third person on three occasions. The plaintiff had an excellent reputation prior to being defamed. The plaintiff found discussing the allegations distressing and found it increasingly difficult to regain his concentration and continue working. Psychological evidence established the plaintiff was suffering reactive depression.

51. Second, Nowak v Putland,[3] in which compensatory damages were assessed at $80,000 and aggravated damages at $70,000. In Nowak, the defendant yelled the statement "you're a paedohpile" to the plaintiff about fifteen times in a public surf club in front of about 40 to 50 people. It was found that it would be extremely surprising if the defamatory statement was not later repeated. The plaintiff had been involved in the surf club for about five years and was well known. Following the defamation, he ceased attending the club. The plaintiff also suffered significant personal distress and hurt.

52. Third, Bertwhistle v Conquest,[4] in which compensatory damages were assessed at $100,000. In that case, the defendant sent text messages that the plaintiff had engaged in consensual and non-consensual sex with his sisters. The defamation was considered serious, especially in what was described as the current community climate. The allegations had a serious impact upon the plaintiff and his familial relationships in that he stopped receiving invitations to social functions and gatherings with his family.

53. Fourth, Grattan v Porter,[5] in which compensatory damages were assessed at $120,000 and aggravated damages at $30,000. That was considered by Judge Robertson to be a "modest sum" given the gravity of the defamation. In Grattan, the plaintiff and his wife were close friends of the defendant, her husband, and their daughter. The defendant telephoned a school and alleged that the plaintiff was a paedophile and had acted inappropriately with her daughter.

54. Fifth, Rothe v Scott (No 4),[6] in which compensatory damages were assessed at $100,000 and aggravated damages at $50,000. There, the defendant published a post on his own Facebook page that reported a "pedohpile [sic] warning" at various hotel businesses owned by the plaintiff (although the plaintiff was not expressly named). The publication was found to be limited in that it was realistically only made in one suburb and it remained on Facebook for a comparatively short time. The publication as found to destroy the plaintiff's wellbeing and his peace of mind, and the damage was ongoing."

[68] Having considered those cases then, the basis upon which the assessment of damages should be made needs to be considered. As is acknowledged, assessment of damages for defamation is imprecise. Damages cannot be calculated by a mathematical formula and as noted in Rogers v Nationwide News Pty Ltd [2003] HCA 52; [2003] 216 CLR 327:

Damage to reputation is not a commodity, having a market value.

[69] Rather, as Justice Bradley indicated in O'Reilly v Edgar [2019] QSC 24:

The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendant's conduct.

[70] As such, there needs to be a consideration of the extent of the publication and republication, including there of course the persons who might have read the publication at the first instance, the probable reach of the readership - and in that regard I have already commented upon the fact that the second plaintiff became aware of the publication as the result of information received by a friend, Richard Jones, and not through the Facebook group but by its republication to him via text, as well as the grapevine effect. In that respect, a number of matters need to be considered.

[71] Insofar as the extent of the publication and republication is concerned, there is, as submitted on the part of the plaintiffs, a marked distinction between a verbal publication and written publication, and between a publication made to one personal group of persons and one made to a very large number, if not the world at large.

[72] It is argued here that the extent of publication and republication of the defamatory imputations contained within the posts and comments in this matter is fourfold, in that it is directed: first, to the people who demonstrably read the publication and a number are specifically identified through comments or memes that were entered on the Facebook page; secondly, the people from which it can be reasonably inferred read the publication; thirdly, the spread of the defamatory post by way of the grapevine effect; and finally, as a result of this litigation itself being conducted in open Court

[73] What is then argued in this matter is that it is incontrovertible that the publication was in fact read by at least eight people, because it was, as I have indicated, those eight people who are able to be specifically identified, who commented upon the publication in some way. Additionally, it is submitted however that it is not appropriate for the Court to proceed on the basis that only those eight people read the publication. As I have said, I am certainly mindful of the fact that the information initially passed to the second plaintiff came through Mr Jones, not by perusal of the entry on the Bushland Beach Crime Alert page but rather through another person who had seen the entry and forwarded it to him.

[74] That becomes clear when it is noted that there were, at the time of publication, between 4800 and 4900 people registered as members of the Bushland Beach Crime Alert group and that it was "live" on the Facebook page for a period of at least, it would seem, one and a-half hours. That is further confirmed by the fact that the first plaintiff specifically spoke of speaking with about 30 or 40 people in or about [street redacted] and them having knowledge of the publication and of the fact that it related exactly to them.

[75] Additionally, the grapevine effect is real and is exacerbated by the recent developments in technology. What is contended for the plaintiffs in that regard is that it would be extremely surprising were it not the case that the defamatory imputations were not later repeated by those who had seen them to others or shared amongst both residents of Bushland Beach and to the wider community. In that regard, it is submitted that the evidence shows the 'grapevine' effect of the group, noting the information and how it was received by Mr Jones, the friend of the second plaintiff, the information of the first plaintiff with regards to conversations held with 30 or 40 people in the locality of [street redacted], as well as the evidence particularly relating to a conversation by the second plaintiff with a work colleague.

[76] Additionally, there is the fact that shortly after the publication, the number of persons who were to attend a previously arranged gathering fell off, from 20 - 25 people to five, clearly indicating some concerns on their part as to interaction with the first and second plaintiffs.

[77] As such, it is submitted that those various factors to be considered in relation to the determination of what might appropriately be compensatory damages should reflect the possibility of future knowledge of those defamatory statements, as well as the need to ensure that the award is sufficient to convince any bystander of the baselessness of the allegation.

[78] Finally, there is that consideration of the defamatory imputations that flow simply from the fact that the first and second plaintiffs have engaged, at least to some extent, in self-publication in these proceedings and whilst that is hoped not to be extensive it cannot be excluded as a consideration.

[79] The submission made therefore in relation to compensatory damages is that the reach of the publication is extensive, certainly within the Bushland Beach area and surrounds, and that it is not limited to a small number of people. That it has "infected" those residing in or about [street redacted] in particular, and has likely been read and/or passed through the grapevine to much of Bushland Beach and that it may raise itself again in a future time.

[80] What then needs to be considered is the impact of the defamation upon both the first and second defendants and the unchallenged evidence of the first and second plaintiffs as contained within their affidavits, to which I have already made reference.

[81] It is clear that the consequences, particularly from a personal perspective, has been significant and that both the first plaintiff and the second plaintiff believe that the publication has left a terrible stain on their respective reputations, that has taken a considerable time to even pass. What is also noteworthy here is that with the first and second plaintiffs being a couple, the negative effect upon their relationship cannot be ignored and perhaps most significant, at least from the perspective of the plaintiffs, is the fact that they have abandoned plans to become foster parents, when that was an intention of theirs prior to the publication. Both the first and the second plaintiff express concerns in respect of their relationship as a result of these particular considerations.

[82] There has been no mitigation in relation to this matter. The defendant has made no apology, though the original correspondence forwarded in this matter indicated that the plaintiffs would accept a small cash payment by way of compensation, but with the absolute expectation that there would be a post included on the Bushland Beach Crime Alert Facebook to the effect that the defendant, without reservation, retracted the entirety of the claims, admits that the claims were false, and apologised for the hurt, injury, fear and embarrassment caused by the post and comments.

[83] No such apology has been made and there appears to be no factors that could be taken into account in mitigation of damages. In fact, in my assessment, the email by the defendant to the legal representatives to the plaintiff on the 8th of November 2022, if anything, seems to still lay blame for her circumstances at the feet of the second plaintiff, noting that she:

There is no evidence in relation to that, but it reinforces the concerns with respect to there being no mitigation.

[84] What then needs to be considered is what would be an appropriate award in respect of compensatory damages. What is sought, as I have indicated previously on the part of the plaintiffs, is damages of $100,000 for each of the first and second plaintiffs. The argument in that regard is based upon a number of considerations. The first of those being that defamatory imputations (paedophilia) are of the worst possible kind and as was indicated by Judge Samios in Atholwood v Barrett,[7] it is extremely difficult if not impossible to remove the stain or smear of that kind of statement.

[85] Secondly, the need for vindication, arising as a result of the real probability of there being a permanent stain from the defamatory imputations, reflecting the obvious need through the award made, to convince people that the publication was false. Thirdly, it is contended that the award for both the first and second plaintiff should be sufficient to compensate each of them for the harm that has been caused by the defamatory statements and the imputations that flow from it, including the fears that they hold, as to how they are perceived in the local community, their loss of community and neighbourhood relationships, the feeling of being ostracised within the community, the effect upon their own relationship and the changes in their behaviours and personalities as a result of the posts that were made. That of course, includes particularly the consequences of them abandoning plans to be foster parents.

[86] Submissions are also made relating to the extent of publication being significant and of course, relating to the grapevine effect to which I have already made reference. And finally, an assessment overall of the effect upon the reputations of both the first and second plaintiffs, noting that prior to the 10th of September 2021 they were, to all intents and purposes, held in regard, that they enjoyed a good reputation and social standing, that they were part of a vibrant street community and that after the posts were made, their reputations were gravely injured.

[87] As such, the claim in relation to each is, as I have said, is for $100,000 each. In that respect I have considered the comparable damages awards that have been detailed in this matter and note the consequences here particularly for the first and second plaintiffs. I am satisfied, being mindful of the nature of the allegations and the extremely serious character of them, the breadth of the publication and the unfortunate future prospect of the allegation contained within the post to again rear itself up that it is appropriate that compensatory damages be fixed in the sum of $100,000 to each of the first and second plaintiff.

[88] What then needs to be considered also is the fact that the plaintiffs seek aggravated damages in the sum of $50,000. This arises as a result of what is contended to be circumstances where the conduct of the defendant gives rise to further damages as a result of that conduct being unjustifiable, improper or lacking in bona fides. That includes particularly circumstances where there is a failure to apologise and circumstances where the conduct, at least in some respect, continues up until the time of the verdict.

[89] In that regard, Justice Applegarth in Cerutti v Crestside Pty Ltd [2014] QCA 33 noted:

Conduct which is improper, unjustifiable or lacks bona fides may affect reputation. In such a case, the damage "continues until it is caused to cease" by an avow by the defendant that the defamation is untrue or a judgment in the plaintiffs' favour. Accordingly, damages may be increased by an unjustifiable failure to apologise or retract any unjustifiable persistence in making untrue allegations or by the conduct of the defence in proceedings in manner that is unjustifiable, improper or lacking in bona fides.

[90] In this instance, it is contended that there is properly a basis for awarding of aggravated damages. Firstly, it is submitted that the publication was entirely improper, unjustifiable and lacking in bona fides where the defendant knew that the imputations contained within the post were false and that her clearly untruthful statement with regard to her Facebook account having been hacked and her determination not to defend the proceedings is evidence of the falsehood of the post.

[91] It is hard thereafter to determine what might be the inference that can be drawn from the defendant's conduct but the fact is that the conduct was improper, unjustifiable and lacking in bona fides.

[92] Secondly, the fact that the defendant should have but did not retract the publication, pronouncing its falsity to those members of the group who saw the publication let, as it is put, "the stain of the publication remain". Additionally, the failure by the defendant to retract the publication or to have apologised appears entirely unjustified in the circumstances that exist.

[93] There is therefore the need for a very real penalty to be imposed in relation to the aggravated nature of the publication. Of particular significance here, is that the subsequent conduct of the defendant in running the second plaintiff over in a motor vehicle, following the institution of these proceedings is evidence, or it can be inferred from it, of the defendant's improper motivations and intentions. In that regard, the conduct of the defendant, it is said, simply re-affirms the defamatory statement that she made and her actions.

[94] Again, there is no mathematical formula upon which it could be contended that aggravated damages should be calculated, however in this matter I am satisfied that aggravated damages should be awarded. But in light of the fact that one of the real circumstances of aggravation is the subsequent action in running the second plaintiff over in her motor vehicle there is a distinction to be drawn between the amounts that should be paid. In this instance however I am also mindful of the statement by the first plaintiff that as a result of the motor vehicle incident and the consequences for the second plaintiff in not being able to work for some time, the desire on the part of the first plaintiff to cease shift work at the mines was unable to be acted upon because of the need for higher income. Therefore, her future desires were affected.

[95] Ultimately however, I am of the view that the aggravating conduct involving running over the second plaintiff is such that a greater sum should be awarded in relation to aggravated damage with regard to the second plaintiff.

[96] In relation to the first plaintiff, therefore, I fix aggravated damages in the sum of $25,000 and in relation to the second plaintiff, aggravated damages in the sum of $40,000.

[97] Finally, there is the need to consider interest of any damages awarded from the 10th of September 2021 until the date of judgment in relation to this matter and I intend to fix interest on damages awarded at the rate of three per cent from the 10th of September 2021 to the date of judgment. That accords with an amount of $14, 179.32.

[98] There will also be an order in relation to costs, to be agreed and failing agreement to be taxed.

[1] [2019] QSC 24.

[2] [2004] QDC 505.

[3] [2011] QDC 259.

[4] [2015] QDC 133.

[5] [2016] QDC 202.

[6] [2016] NSWDC 160.

[7] [2004] QDC 543