Stoltenberg v Bolton; Loder v Bolton

Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126 Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 Duke of Brunswick v Harmer (1849) 14 QB 185 Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 Frawley v New South Wales [2006] NSWSC 248 Google Inc v Duffy (2017) 129 SASR 304: [2017] SASFC 130 Hird v Wood (1894) 38 Sol J 234 Jameel v Dow Jones & Co Inc [2005] QB 946 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514 Marshall v Smith [2013] WASC 452 Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Papaconstantinos v Holmes 'A Court (2012) 249 CLR 534; [2012] HCA 53 Payne v Parker [1976] 1 NSWLR 191 Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Sims v Jooste (No 2) [2016] WASCA 83 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Theodore Skalkos v Joseph Assaf [2002] NSWCA 14 Toogood v Spyring (1834) 1 G M & R 181; 149 ER 1044 Trumm v Norman [2008] EWHC 116 Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 Vakras v Cripps [2015] VSCA 193 Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428 Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 Category: Principal judgment Parties: Stephen Robert Stoltenberg (Appellant) Ann Loder (Applicant) Conrad Moran Bolton (Respondent / Cross Applicant) Representation: Counsel: Ms S Chrysanthou / Mr B C Dean (Appellant) Mr R W Potter / Ms L Andelman (Applicant) Mr M Richardson / Ms M Rabsch (Respondent / Cross-Applicant)

Solicitors: Kalantzis Lawyers (Appellant) Peter James Breen (Applicant) Bell & Johnson Solicitors (Respondent / Cross Applicant) File Number(s): 2018/334329 (Stoltenberg v Bolton)2018/324176 (Loder v Bolton) Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2018] NSWSC 1518 Date of Decision: 15 October 2018 Before: Payne J File Number(s): 2015/366431

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the Judgment] In June and July 2015, the appellant Mr Stephen Stoltenberg, made a series of posts on a public Facebook page styled "Narri Leaks", which allegedly conveyed imputations that the respondent, Mr Conrad Bolton, the Mayor of Narrabri Shire Council had been corrupt, dishonest and intimidating in his role as Mayor, and that this conduct warranted an ICAC inquiry. More specifically, the posts allegedly asserted that Mr Bolton had been corrupt in selecting the general manager of the Council in 2015 and that he had provided the Independent Pricing and Regulatory Tribunal with information he knew to be false (IPART post). The applicant, Ms. Ann Loder, made "comments" on posts made to the Narri Leaks page. Mr Stoltenberg was the administrator of, and thus had control over, the content posted to the Narri Leaks page. Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. The trial judge held that the Facebook posts conveyed imputations defamatory of Mr Bolton, and that Mr Stoltenberg had no defence to five of the matters complained of. His Honour also held that the Facebook "comment" made by Ms Loder endorsing one of Mr Stoltenberg's posts had amounted to secondary publication of the defamatory material. Mr Stoltenberg was ordered to pay damages of $100,000 and interest of $10,000, plus costs. Ms Loder was ordered to pay damages of $10,000. Mr Stoltenberg appealed against the judgment and Ms Loder sought leave to appeal. Mr Bolton sought leave to cross-appeal against the rejection of other parts of his claim against Ms Loder. He only pressed his leave application if Ms Loder was granted leave to appeal. The principal issues before the Court were: in relation to publication of the posts, whether evidence outside the particularised case had been erroneously admitted; whether Mr Bolton's wife was acting on his behalf in downloading the posts on the Narri Leaks page; and whether certain answers by Mr Stoltenberg to interrogatories were admissions of the extent of publication; in relation to the imputations conveyed by the posts, whether the trial judge erred in finding that three imputations were conveyed by the IPART post; whether the trial judge erred in rejecting the defences of common law qualified privilege and statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW); and whether there should be a grant of leave to appeal to permit Ms Loder to challenge the trial judge's finding that Ms Loder had engaged in secondary publication. Held, rejecting the appeal and applications for leave to appeal and for leave to cross-appeal (per Gleeson JA; Macfarlan and Brereton JJA agreeing) As to issue (i): The trial judge did not err in the admission of evidence on publication: the evidence of publication was rightfully admitted, Mr Bolton's wife was not acting on his behalf in downloading the posts, and there was no error in the weight given to admissions made by Mr Bolton in answer to interrogatories as proof of the extent of publication: [69]-[76], [78]-[87], [91], [93]-[94], [99]-[102], [104]-[107]. Sims v Jooste (No 2) [2016] WASCA 83; Duke of Brunswick v Harmer (1849) 14 QB 185; and Jameel v Dow Jones & Co Inc [2005] QB 946 considered. As to issue (ii): The trial judge did not err in finding that three imputations were conveyed by the IPART post: [124]-[128]. As to issue (iii): The trial judge did not err in rejecting the defence of common law qualified privilege, chiefly because the matters complained of were published to a much wider audience than those residents of Narrabri Shire Council who were interested in Council finances: [145]-[174]. Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350; Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514; Vakras v Cripps [2015] VSCA 193; Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 considered. The trial judge did not err in rejecting the defence of statutory qualified privilege, chiefly because the conduct of Mr Stoltenberg in publishing the posts was not reasonable in the circumstances: [181]-[210]. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374; Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 considered. As to issue (iv): No question of principle or of public importance was involved in the finding that Ms Loder's endorsement of Mr Stoltenberg's post amounted to secondary publication. Nor was there any injustice shown that was reasonably clear, particularly given the small amount in issue.

Publication by Mr Stoltenberg

1. No complaint is made in relation to his Honour's statement of principles concerning proof of publication. At Judgment [116], his Honour said: The tort of defamation requires evidence of publication, or communication, of the defamatory material to a third party who comprehends it, causing harm to the reputation of the defamed: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25]-[26]; Sims v Jooste (No 2) [2016] WASCA 83 at [8]-[12]. In an action for defamation involving online material, publication is established through evidence that a third party downloaded and read the material: Dow Jones & Co Inc v Gutnick at [26] and [44]. Publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference that material has been downloaded can properly be drawn. The mere fact of posting material online does not lead to an inference that it has been downloaded: Sims v Jooste (No 2) at [18]-[20].
2. His Honour found that Mr Stoltenberg was the author of the first to fifth matters complained of: Judgment at [117]. This finding is not challenged.
3. His Honour gave the following reasons for rejecting Mr Stoltenberg's submission that Mr Bolton had not proven that any one person had downloaded and read any of the matters complained of: Judgment at [117].
4. The first concerned an objection by Mr Stoltenberg at trial that Mr Bolton was seeking to conduct a case outside the particulars he had given. The primary judge rejected this complaint: Judgment at [112]. After reviewing the solicitors' correspondence relating to the request for particulars, and considering the requirements of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 15.1 and 15.19(1) and the remarks of Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-193, his Honour found that Mr Bolton's pleading of publication was not limited by the exchange of particulars, as Mr Bolton's solicitors refused to provide the particulars of identification that had been sought: Judgment at [130].
5. His Honour further found that Mr Bolton was entitled to rely upon publication to Mrs Bolton who gave evidence that she had read each of the matters complained of. As indicated, his Honour found that Mrs Bolton was not the agent of Mr Bolton: Judgment at [134]-[135].
6. Second, and in any event, his Honour held that Mr Bolton was entitled to rely on "a platform of facts" from which inferences of downloads could properly be drawn in order to establish publication and found that there were abundant facts from which the inference that each of the matters complained of was downloaded and read could properly be drawn: Judgment at [136]. Those facts comprised: 1. answers to interrogatories provided by Mr Stoltenberg concerning the number of hits the Narri Leaks Facebook page received in the first week from 17 June 2015, and the number of readers of the Narri Leaks website for the period June 2015 to January 2016; 2. Facebook posts by Mr Stoltenberg referring to the wide readership of Narri Leaks; 3. Facebook activity logs which were eventually tendered without objection; and 4. evidence of the readership of Narri Leaks given by Mrs Bolton that people in Queensland, Wellington, Adelaide and Singleton had spoken to her indicating that they had read items on the Narri leaks website, and evidence given by Mr Webb that the Narri Leaks website was discussed at local government conferences outside the Narrabri Shire at a state and national level, including at a particular mayoral function on the Gold Coast.

Identification

1. No complaint is made in relation to his Honour's statement of principles concerning proof of identification. At Judgment [187], his Honour said: Identification can be proved if the court is satisfied, by inference, that at least one person who read the matter complained of would have identified the plaintiff as the person referred to: Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 at 597. This requires consideration of whether the publication would, reasonably in the circumstances, lead persons acquainted with the plaintiff to believe that he or she was the person referred to: David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at 238.
2. His Honour found that he was comfortably satisfied that at least one person who had read each of the five matters complained of would have identified Mr Bolton as the person referred to. He gave the following reasons at Judgment [189]-[190]: [189] … The matters complained of were all addressed to issues in Narrabri and named the Mayor as a central focus of the matter complained of. The central thesis of each of Mr Stoltenberg's posts was that Mr Bolton was responsible for various ills that Mr Stoltenberg had diagnosed. Many readers, even if only dimly aware of the Narrabri Shire councillors, would clearly have understood Mr Stoltenberg's complaints about the "Mayor" to refer to Mr Bolton. [190] It is clear that each of the publications reasonably in the circumstances would lead persons acquainted with Mr Bolton to believe that he was the person referred to. Identification has been established.

Common law qualified privilege

1. No complaint is made in relation to his Honour's statement of principles concerning common law qualified privilege. At Judgment [192]-[193], his Honour said: [192] Communications are protected where a person has a legal, social or moral interest or a duty to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty to receive it: Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [31]-[32] (sic). The relevant "sting" must be germane and reasonably appropriate to the occasion: Bashford at [2], adopted by a majority of the High Court on appeal at [27], [193] and [235]. [193] The question of whether the defence of qualified privilege applies depends on a close scrutiny of the circumstances of each case and the facts revolving around the publication. In Bashford, the High Court explained: [10] These principles are stated at a very high level of abstraction and generality. 'The difficulty lies in applying the law to the circumstances of the particular case under consideration'. Concepts which are expressed as 'public or private duty, whether legal or moral' and 'the common convenience and welfare of society' are evidently difficult of application. When it is recognised, as it must be, that 'the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact', it is clear that in order to apply the principles, a court must 'make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication'. (Footnotes omitted.)
2. His Honour observed that the debate between the parties, with respect to the defence of common law qualified privilege, focused on whether Mr Stoltenberg could establish the requisite "reciprocity of duty and interest" between Mr Stoltenberg and the recipients of his publications: Judgment at [191].
3. In addressing Mr Stoltenberg's submissions that a distinction is to be drawn between mass media publications and specialist web pages, and that the publication in the present case was not made to an unrestricted audience, his Honour rejected Mr Stoltenberg's submission that Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 was incorrectly decided, noting that Mr Stoltenberg's characterisation of Narri Leaks as a "limited website publication" rather begs the question: Judgment at [195].
4. His Honour also rejected Mr Stoltenberg's submission that the authorities to which he referred established any generally applicable statement of principle for the purposes of the present case: Judgment at [198]-[202]. Reference was made to: Marshall v Smith [2013] WASC 452 at [33], [39]; Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428 at [10]; Trumm v Norman [2008] EWHC 116 at [33]-[37]; and Brady v Norman [2008] EWHC 2481 at [24]-[26].

Statutory qualified privilege

1. After setting out the terms of s 30 of the Defamation Act, his Honour continued at Judgment [223]: The test for statutory qualified privilege involves the same reciprocity of interest as in common law qualified privilege but has an additional requirement that the conduct of the defendant in publishing the matter is reasonable in the circumstances. A finding of malice negates the defence: s 30(4).
2. Mr Stoltenberg challenged the first sentence of this passage as containing error. So much was fairly acknowledged by counsel for Mr Bolton who accepted that the only issue at trial in relation to s 30 was the reasonableness of the conduct of Mr Stoltenberg in publishing the defamatory matters: s 30(1)(c).
3. On the issue of reasonableness, his Honour referred to the observations of Giles JA in Theodore Skalkos v Joseph Assaf [2002] NSWCA 14 at [135]-[137] and Hunt AJA in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388 in relation to the test of reasonableness and the predecessor provision in s 22 of the now repealed Defamation Act 1974 (NSW). His Honour accepted that the same test of reasonableness applies under s 30, as under the former s 22 of the 1974 Act, that is, a defendant's conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of: Judgment at [224]-[225].
4. In rejecting the defence of statutory qualified privilege, his Honour gave the following reasons at Judgment [226]-[233]: [226] I find that Mr Stoltenberg has failed to establish that he had an honest belief in the truth of the imputations I have found were conveyed by each of the matters complained of. It is clear from Mr Stoltenberg's answers to interrogatories that he did not intend to convey the imputations pleaded. Mr Stoltenberg did not even give consideration to whether the fourth and fifth matters complained of conveyed the pleaded imputations. I reject Mr Stoltenberg's submission that he has discharged his onus by proving that the imputations he did intend to convey were the subject of reasonable conduct on his part. There was no evidence as to whether Mr Stoltenberg took any steps to prevent the pleaded imputations from being conveyed or was otherwise acting reasonably in publishing any of the matters complained of. [227] I reject Mr Stoltenberg's submission that the Roberts v Bass presumption of honesty is a matter to be taken into account as an implication from s 30(4) in addressing the matters in s 30(3). That approach is not supported by authority and would in my view lead to an incoherent application of the statute. [228] Further, I find that Mr Stoltenberg's failure to contact Mr Bolton, or someone else on his behalf, about the issues the subject of the matters complained of, is contrary to notions of reasonableness and independently fatal to Mr Stoltenberg's claim for statutory qualified privilege: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 2 at 574. [229] Whilst I accept that in cases that do not involve mass media publications, it is not necessarily fatal to a defence under s 30 for the defendant to speak to or contact the plaintiff or a representative of the plaintiff prior to publication, in all the circumstances here, Mr Stoltenberg has failed to prove that he acted reasonably. It is common ground that Mr Stoltenberg made no attempt to contact Mr Bolton. There is no basis in my view for concluding that Mr Stoltenberg is relieved from the usual obligations to check defamatory allegations because he was running a public Facebook page rather than a separate website. [230] I also find that the language used in the relevant posts was excessive and the publication itself lacked reasonableness. It is not reasonable to make the allegations of unlawful and/or corrupt conduct the subject of this case in a public Facebook page, open to the world, without seeking any comment from Mr Bolton first. In the absence of any evidence from Mr Stoltenberg I am not satisfied that he has discharged his onus of proving that his conduct was reasonable. [231] I reject Mr Stoltenberg's submission that I would infer from his documentary tender that he acted reasonably within the meaning of s 30. The first volume contained the conduct reports I have addressed at [19], various Narri Leaks posts dealing with miscellaneous issues, press reports, letters and e-mail correspondence. The second volume consisted of a large number of text messages between Mr Stoltenberg and Mr Bolton, which ended prior to the Narri Leaks Facebook page being started. Some selected documents about the Narrabri Shire Council were also included. No evidence was given about what, if any, effect anything in these two large lever arch folders had upon any of Mr Stoltenberg's actions. Little attention was paid in written or oral submissions to any one of these voluminous documents, although some submissions were made about the Narri Leaks posts which had been tendered. [232] The documentary tender on the First Defendant's part sits without any relevant anchor. I am not satisfied that Mr Stoltenberg had any one or any combination of those documents in his mind when publishing any of the matters complained of. [233] The whole tenor of Mr Stoltenberg's posts the subject of the 5 matters complained of in content and tone are antithetical to notions of reasonable conduct. The language and extent of the publication was excessive and thus not reasonable.

Issues on the appeal

1. The notice of appeal contains 25 grounds of appeal and a total of 53 issues if sub-grounds are counted separately. It is not consistent with the requirements of the rules that the notice of appeal state "briefly, but specifically, the grounds relied on in support of the appeal": UCPR, r 51.18(1)(e). The importance of brevity and precision in formulating the grounds of appeal cannot be overstated. Prolixity is inconsistent with the just, quick and cheap resolution of the real issues in proceedings: Civil Procedure Act 2005 (NSW), s 56(1). It also obscures apparent merit: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [70] (McHugh J).
2. In written submissions, Mr Stoltenberg identified five issues as being raised by the appeal: (1) the significance in a defamation action based on internet content (in a non-mass context) of particulars or lack of particulars of the readers of a publication, proof of publication and extent of publication in those circumstances (Grounds 1-11); (2) the assessment of defamatory meaning when the matter complained of is predominantly not about the plaintiff (Ground 12); (3) the principles that apply to identification where a plaintiff is not named in the matters complained of and the relevance of proper particularisation of that identification (Grounds 13-14); (4) the principles that apply to the common law defence of qualified privilege where the matters complained of are uploaded on a special interest website available to the public to download and the interrelationship between identification, publication and the common law defence of qualified privilege where the plaintiff is not named in an online publication (Grounds 15-24); and (5) the defence of qualified privilege under s 30 of the Act as applies to social media publications by private individuals about politicians (Ground 25).
3. This outline of the issues, which was repeated by counsel in her opening oral argument, does not serve as a substitute for the proper articulation of the grounds of appeal. This has made the Court's task more difficult in ascertaining the real issues in dispute: Civil Procedure Act, s 56(1).

Publication to Mrs Bolton: grounds 1, 2 and 5

1. There are two parts to Mr Stoltenberg's challenge to the primary judge's finding that the matters complained of were read by and published to Mrs Bolton.
2. The first is that evidence of publication to Mrs Bolton was outside the particulars because she was never particularised as a recipient of the matters complained of. This complaint is answered by the reasons given above in relation to the particulars point. There was no error in the finding that the publication to Mrs Bolton was within the pleading: Judgment at [134].
3. The second aspect of the challenge is the contention that the primary judge erred in finding that Mrs Bolton was not acting on behalf of Mr Bolton when reading posts on the Narri Leaks website.
4. The primary judge found that Mrs Bolton was not "directed to the allegedly defamatory material by [Mr Bolton]", rather it was she who first drew Mr Bolton's attention to the Narri Leaks site, and that far from directing Mrs Bolton to read and download material from Narri Leaks, Mr Bolton was anxious that his wife and daughter spend less time looking at the site, or better still, not engage with it at all: Judgment at [135]. None of these findings were challenged.
5. Nonetheless, Mr Stoltenberg submitted that Mrs Bolton's evidence established a voluntary agency to which Mr Bolton assented. I do not agree. Mrs Bolton gave evidence in cross-examination that her husband did not tell her to monitor the site and to capture the posts. There was no evidence of any assent by Mr Bolton to the asserted voluntary agency.
6. In oral argument, Mr Stoltenberg submitted that Mrs Bolton was acting no differently to a paralegal or a solicitor in keeping a record of the posts. Again, I do not agree. That Mrs Bolton agreed in cross-examination that her purpose in capturing screenshots of the posts was to have a record in case her husband wanted to do anything about them was not evidence of agency or assent by Mr Bolton to that conduct. There is no error in his Honour's conclusion that Mrs Bolton was not, on the evidence, the agent of Mr Bolton.
7. Mr Stoltenberg further submitted that whether or not an agency is established, the cause of action based on a person like Mrs Bolton and/or anyone who is intimately involved in the prosecution of the claim is not actionable and is an abuse of process, referring to Duke of Brunswick v Harmer (1849) QB 185 and Jameel v Dow Jones & Co Inc [2005] 14 QB 946 at [56]. Alternatively, it was submitted that the circumstances of publication to Mrs Bolton would have attracted the defence of triviality under s 33 of the Defamation Act.
8. One difficulty with the abuse of process argument is that the point was not pleaded or raised below. Nor, was it suggested that this is an exceptional case such that Mr Stoltenberg should be allowed to rely upon a new point on appeal: Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. In any event, this case is readily distinguishable from Brunswick v Harmer.

Admissions in contemporaneous posts

1. The primary judge found that Facebook posts made by Mr Stoltenberg were replete with references to the wide readership of Narri Leaks, and each of those posts contains admissions to which the hearsay and opinion rules do not apply: Judgment at [141]. Those admissions were made in the context of evidence that Mr Stoltenberg had set up and operated the Facebook page known as Narri Leaks, had access to the activity data recorded being a feature offered by Facebook to page hosts, and had translated that data into posts he authored.
2. His Honour's conclusion was amply supported by the findings at Judgment [142]-[148], which it is convenient to reproduce in full: [142] On 17 June 2015, Mr Stoltenberg stated "the new Ratepayers assoc has since Monday been running a Facebook page called Narri Leaks…from a zero start, the [Facebook page] has had 10,000 hits in 2 days." [143] Also on 17 June 2015, Mr Stoltenberg wrote "we are at near 11,000 hits , we're now being watched not just by all over the shire , but all over the country , in our 3rd day of existence" … As will become apparent, this is a significant admission by Mr Stoltenberg in the context of his common law qualified privilege defence. [144] Also on 17 June 2015, Mr Stoltenberg wrote that: "We were at 9800 people last night, at 11000 by 2 pm , got to 12,000 by 7pm , then the footy buggered us , stalled at 12,258… Thanks to all the people emailing in material Narrileaks@gmail.com… Had 30 emails this afternoon… We are now getting a lot of inboxing people who want to talk not in public on the open page…" [145] On 2 July 2015, Mr Stoltenberg wrote: This page had 21,000 hits in its first 10 days, but we were fudging a bit, not only posting all manner of embarrassing dirty laundry of counsel to draw attention, but We did spend about $400 "boosting" posts all over the state for all the second week. Not doing either now, because we really do have 719 locals who hit like page to follow and get each post… In Narrabri Shire, we only have about 6000… So about 12% of all council's ratepayers are actively watching. Our total reach is 2414… They are mostly local… Anyone who has a legitimate complaint, post it here, big chunk of the Shire , nearly every third adult , will see it. (Emphasis added) [146] This post refers to the period during which the second and third matters complained of were uploaded to Facebook by Mr Stoltenberg. The admission contained in the post is that "we" (which I infer is in fact Mr Stoltenberg) paid $400 to promote posts via Facebook's algorithm, making them more visible to a wider audience. Further, Mr Stoltenberg himself states that "719 locals … get each post". I infer that to access the posts made on the Narri Leaks site it was necessary only to like the site and posts by Narri Leaks, which I find were posts under that title uploaded by Mr Stoltenberg, would automatically appear in a Facebook news feed without any separate step being required. I infer that Mr Stoltenberg's reference to 719 locals who get each post is a clear admission that by 2 July 2015 there were 719 people in the position Ms Loder explained she was in who would automatically get each Narri Leaks post in their Facebook news feed without visiting the Narri Leaks Facebook page. [147] So far as Mr Stoltenberg's reference to reach is concerned, it was submitted that I was unable to take this matter into account as there was no evidence of what "reach" meant. I reject that submission. There is evidence, from Mr Stoltenberg himself, that the "reach" figures provided in the Facebook business records which were tendered, are capable of demonstrating, at least in a broad way, the numbers of people who had access to Narri Leaks posts on the Facebook page. [148] In any event, I have drawn inferences from the face of the Facebook business records under section 183 of the Evidence Act. Those records lead me to draw the inference that Facebook records separate interactions between a device connected to the internet and posts on the particular Facebook page, here Narri Leaks, and that those figures are reflected in the business records tendered. I infer from the business records tendered that in the context of a post, the "reach" of the post records the number of people Facebook has recorded as having viewed the post. (Emphasis in original.)

Failure to assess publication individually for each post: ground 11

1. Mr Stoltenberg submitted that the primary judge failed to assess the issue of publication individually for each post. This ground is directed to challenging his Honour's conclusion on publication at Judgment [157] as follows: On the basis of the platform of facts I have described, I infer that each of the matters complained of was published by Mr Stoltenberg, in that the material which he admits he uploaded was downloaded and viewed by third parties.
2. The reference by his Honour to a "platform of facts" adopted the language used by Martin CJ in Sims v Jooste (No 2) at [18], citing Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294, in relation to proof of publication in cases involving the internet:
3. The "platform of facts" from which his Honour drew an inference that the five matters complained of were downloaded by somebody have been referred to above at [33]. Taken together, the admissions by Mr Stoltenberg as to the number of "hits" on the Narri Leaks site - 9,800 in the first week and 21,000 in the first 10 days, that the estimated number of readers in the period June 2015 to January 2016 depending on the story varied between 5,000 and up to 35,000, that Narri Leaks was being watched all over the State, that $400 was spent "boosting" posts all over the State for all of the second week of publication in June 2015, that on 2 July 2015 719 "locals" out of a "total reach" of 2,414 hit the "Like" button; the inferences drawn from the Facebook records as to "reach" of the posts; and the evidence of Mrs Bolton and Mr Webb of readership of the Narri Leaks website by persons outside the Narribri Shire, amply support his Honour's findings that the matters complained of were published by Mr Stoltenberg.
4. As to the extent of publication, there was no error by his Honour in finding that publication of the matters complained of extended to persons beyond the Narrabri Shire. Mr Stoltenberg acknowledged in his post on 2 July 2015 that the number of ratepayers in the Narrabri Shire was about 6,000: Judgment at [145]. The number of ratepayers may be contrasted with the evidence of the number of "hits" and readers of the Narri Leaks site. Importantly, there were admissions by Mr Stoltenberg concerning the number of "hits" on the Narri Leaks site of 9,800 in the first week, 12,258 readers on 17 June 2015, and 21,000 "hits" in the first 10 days, and that the estimated number of readers in the period June 2015 to January 2016, depending on the story, varied between 5,000 and up to 35,000.
5. In addition, there were the admissions by Mr Stoltenberg on 17 June 2015 that the site was "being watched … all over the country", on 2 July 2015 that money was being spent "boosting" posts "all over the state" and that of the total reach of 2414, "they are mostly local". Those admissions are consistent with the general evidence given by Mrs Bolton and Mr Webb of readership of the Narri Leaks site beyond the Narrabri Shire.

Common law qualified privilege: grounds 15 to 24

1. Grounds 15 to 24 contend that the primary judge was wrong in rejecting the defence of common law qualified privilege (Judgment at [215]) essentially for nine reasons: 1. his Honour erred in failing to take into account the findings on the issue of identification, relevantly: 1. that those persons who knew that Mr Bolton was the "Mayor" and thus identified him had an interest in the workings of the Narrabri Shire Council: Judgment at [189]; and 2. that the class of persons named by Mr Bolton in his particulars of publication and identification was limited to persons in the town of Narrabri: Judgment at [121], [206]; 1. his Honour erred in finding that Visscher v Maritime Union of Australia (No. 6) was correctly decided and that evidence of publication on the internet "to the world" is evidence of excessive publication: Judgment at [194]-[196]; 2. his Honour erred in failing to recognise that absent evidence to the contrary, there is a presumption that a person who visits a specialist website and reads material on that website has the relevant reciprocal interest for the purposes of common law qualified privilege, and that the onus is on the plaintiff to prove that the publication exceeded the privileged occasion: Judgment at [197]-[203]; 3. his Honour erred in comparing this case to the facts in Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514, which did not relate to the internet: Judgment at [204]; 4. his Honour erred in taking into account the pleading in the FASC that each matter was in fact read in each state and territory of Australia for the purposes of the defence of common law qualified privilege: Judgment at [207]; 5. his Honour erred in finding that the matters complained of were published to a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council: Judgment at [210]-[211]; 6. his Honour erred in finding that publication on the Narri Leaks Facebook page was evidence of excessive publication: Judgment at [212]; 7. his Honour erred in finding that Mr Stoltenberg did not have the requisite interest in publishing the matters complained of: Judgment at [213]; and 8. his Honour erred in failing to take into account in relation to the fourth matter complained of that the only evidence of publication was to Mrs Bolton, and that she necessarily fell within the privileged occasion.
2. The disparate complaints raised by these grounds are broadly directed to two aspects of his Honour's reasons. One concerns the findings relating to publication to persons within the Narrabri Shire. The other concerns the findings relating to publication to persons outside Narrabri Shire.
3. In support of these grounds, Mr Stoltenberg submitted that he was a ratepayer activist in the Narrabri Shire Council who set up the Narri Leaks Facebook page, and therefore had a special interest in publishing information the subject of the matters complained of. He further submitted that Narri Leaks was a specialist website and that its readers may be presumed to have the relevant reciprocal interest for the purposes of the defence of common law qualified privilege. That reciprocal interest was identified as an interest in receiving information about matters concerning the governance of their local council.

Relevant principles

1. Given the scope of the grounds of appeal, it is only necessary to refer to some matters of principle in relation to the defence of common law privilege.
2. In Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57, Gaudron, McHugh and Gummow JJ described the defence of qualified privilege arising out of a reciprocal duty or interest in the following terms at [62]: The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. (Citations omitted)
3. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5, Gleeson CJ, Hayne and Heydon JJ acknowledged at [10] that the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact, and noted that "a close scrutiny of the circumstances of each case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication is required to be undertaken".
4. In Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30, French CJ, Crennan and Kiefel JJ at [11]-[12] observed that the requirement of reciprocity of duty and interest is the hallmark of the common law defence of qualified privilege, although not a feature of the statutory defence, and continued: [11] ... As Parke B explained in Toogood v Spyring (1834) 1 C M & R 181 at 193; 149 ER 1044), the law regards the publication of a false statement which is injurious to the reputation of a person as malicious: unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. [12] The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light.

(7) Excessive publication

1. The seventh matter is whether His Honour erred in finding that publication on the Narri Leaks Facebook page was evidence of excessive publication.
2. It should be observed that the finding of "excessive publication" was not dispositive; it was an additional reason given by his Honour for rejecting the defence of common law qualified privilege if, contrary to his principal finding, the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter; that is, assuming there was a reciprocity of interest, or a "community of interest" in what is conveyed: Papaconstantinos v Holmes 'A Court at [8].
3. In support of this contention, Mr Stoltenberg submitted that his Honour erred in referring to Vakras v Cripps [2015] VSCA 193, where the Victorian Court of Appeal upheld a finding of excessive publication, because Mr Bolton put forward no evidence in the present case of the type in Vakras v Cripps to prove the extent of publication.
4. Vakras v Cripps involved two personal websites maintained by "two obscure and commercially unsuccessful artists": at [345(4)]. The evidence indicated a much lower readership than the Narri Leaks site: at [371]-[388]. The Victorian Court of Appeal found the publication to be excessive taking into account the evidence was: (a) the articles were placed on websites which were generally accessible on the internet; (b) the defendants knew that they could limit access to their sites, but took no steps in that regard; (c) the websites were specialist websites; (d) the websites were unlikely to have been directly accessed by persons other than artists or persons with an interest in the surrealist works of the two artists; (e) the accessibility of the articles by way of Google and Bing searches; (f) there was some evidence that the articles were accessed by persons other than artists; and (g) the trial judge's finding that it was highly likely that a large number of people had read the article was speculative and improbable: at [345].
5. Here, the finding of excessive publication was justified by the evidence that the Narri Leaks Facebook page was generally accessible on the internet; Mr Stoltenberg took no steps to limit access to the site; and the site was accessed by persons other than residents of Narrabri Shire Council. As his Honour found, the site was accessed by a readership of the Narri Leaks Facebook page that reflected its deliberate and successful attempts to garner views and hits "all over the Shire, [and]…over the country": Judgment at [212]. That finding was supported by the evidence of the admissions and documents evidencing the extent of publication.

(1) No requirement of reciprocity of interest

1. Unlike the position at common law, there is no requirement of reciprocity of interest for the statutory defence under s 30: Cush v Dillon at [11]; Roberts v Bass at [62]; Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 at [14], fn 24. As counsel for Mr Bolton acknowledged, the finding by the primary judge that there was such a requirement was an error. However, the error was not material given that his Honour proceeded to address as a discrete issue whether Mr Stoltenberg's conduct was reasonable in the circumstances: Defamation Act, s 30(3).

(4) Failure to assess reasonableness of each publication individually

1. These two complaints are related.
2. As s 30(1) of the 2005 Act reproduces s 22(1) of the 1974 Act, it has been accepted that it is appropriate to have regard to the jurisprudence developed in that context: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325 at [251] (McColl JA, Beazley P and Simpson AJA relevantly agreeing).
3. In Morgan v John Fairfax & Sons (No 2), Hunt AJA summarised a number of propositions at 387-388 in relation to the requirement of s 22(1)(c) of the 1974 Act that the conduct of the defendant in publishing the matter was reasonable in the circumstances: (1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation. (2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case, and perhaps also that discussed in Collins v Ryan) have believed in the truth of that imputation. (3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish: (a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and (b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed. If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s 22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australian Broadcasting Commission at 712 (whether the defendant "knew whether he was likely to convey a misleading impression"); Austin v Mirror Newspapers Ltd (at 362) (Privy Council). (4) The defendant must also establish: (a that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources; (b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained; (c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and (d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers. The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56. …

(6) Failure to contact the plaintiff prior to publication

1. Mr Stoltenberg submitted, with reference to Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 at [83], that the primary judge erred in finding that the failure to contact Mr Bolton prior to publication was "independently fatal" to the statutory defence.
2. In Enders v Erbas, Tobias AJA (Ward and Leeming JJA agreeing) said at [83], with respect to the matters referred to in s 30(3): [83] … Each of the matters in the so called "checklist" are matters which, when determining whether the conduct of the defendant to publish the matter complained of is reasonable, "may" be taken into account. The statute does not require that they must be taken into account and in any event they could only be taken into account where it was relevant to do so for the purpose of determining whether the conduct to the defendant was reasonable in the circumstances.
3. This statement does not assist Mr Stoltenberg. And, as counsel for Mr Stoltenberg properly accepted, the failure to contact Mr Bolton prior to publication was relevant to the reasonableness of the publication in the present case. Importantly, the evidence did not establish that the seeking or publication of a response by Mr Bolton was impracticable, or that it was unnecessary to give Mr Bolton an opportunity to respond, particularly to allegations of corruption and inappropriate conduct.
4. The observation by his Honour that Mr Stoltenberg's failure to contact Mr Bolton prior to publication as "independently fatal" to the statutory defence of qualified privilege, is to be read together with the immediately following paragraph at Judgment [229], which it is convenient to extract again: [229] Whilst I accept that in cases that do not involve mass media publications, it is not necessarily fatal to a defence under s 30 for the defendant to speak to or contact the plaintiff or a representative of the plaintiff prior to publication, in all the circumstances here, Mr Stoltenberg has failed to prove that he acted reasonably. It is common ground that Mr Stoltenberg made no attempt to contact Mr Bolton. There is no basis in my view for concluding that Mr Stoltenberg is relieved from the usual obligations to check defamatory allegations because he was running a public Facebook page rather than a separate website. (Emphasis added.)
5. On a fair reading of his Honour's reasons he did not treat the failure to contact Mr Bolton prior to publication as determinative of the reasonableness of the publications. Rather, his Honour found that "in the circumstances here", being a reference to the findings at Judgment [226]-[228], Mr Stoltenberg had failed to prove that he acted reasonably. Mr Stoltenberg's complaint concerns the weight given to his failure to contact Mr Bolton prior to publication. No error has been demonstrated.

[2004] HCA 5

[2013] WASC 452

[2012] HCA 53

[2015] SADC 172

[2010] WASC 339

[2013] WASC 76

[2017] SASCFC 130

(2010) 241 CLR 79

(2004) 218 CLR 366

(2018) 99 NSWLR 173

(2011) 243 CLR 298

(2002) 210 CLR 575

(2017) 129 SASR 304

(1985) 1 NSWLR 188

(2008) 251 ALR 514

(1985) 60 ALR 68

(1991) 23 NSWLR 374

(2012) 249 CLR 534

(1997) 186 CLR 622

(2002) 212 CLR 1

(2017) 95 NSWLR 597

(2002) 211 CLR 317

(2016) 92 NSWLR 570

(1918) 25 CLR 234

(1997) 189 CLR 520

(1987) 9 NSWLR 44

(1928) 41 CLR 331

[1995] NSWCA 69

[2011] NSWCA 126

[2012] NSWCA 195

[2006] NSWSC 248

[1997] HCA 6

[2017] NSWCA 206

[1918] HCA 50

[2014] NSWSC 206

[2009] NSWDC 159

[1928] HCA 50

[2013] FCA 60

[2012] NSWCA 164

[2011] NSWCA 284

[2014] NSWSC 350

[1997] HCA 2

[2012] FCA 1193