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1. These proceedings involve a claim for defamation arising from one oral statement and a number of publications on social media.

2. Before me is an application by the first defendant for the Court to determine, before the trial for the proceedings commences, whether the plaintiff’s pleaded particulars and evidence are sufficient to establish the element of serious harm to the plaintiff’s reputation within the meaning of s 122A of the Civil Law (Wrongs) Act 2002 (ACT) (the CLWA).

3. The plaintiff did not oppose the application being heard before the trial commenced.

4. As explained below, the procedural step undertaken to determine the application was by way of hearing a separate question, the separate question being: Has the plaintiff established that publication of the pleaded defamatory matters has caused, or is likely to cause, serious harm to the reputation of the plaintiff.

5. For the reasons that follow the answer to that question is “No” and the proceedings must therefore be dismissed with costs.

6. The short point is that a person may only sue another for defamation if serious harm is caused to his or her reputation. Serious harm is judged according to the principles set out at [98]-[121] below. In this case, and applying those principles, I am not satisfied that the plaintiff suffered serious harm to her reputation.

Background

7. The following background is taken from the Amended Statement of Claim and two affidavits of the plaintiff read on the application.

8. The plaintiff was not cross-examined on those affidavits, the first defendant has not filed a defence nor has the first defendant filed any affidavit setting out her version of events.

9. Therefore, the following background should be understood as the plaintiff’s untested version of events. The parties accepted that in those circumstances I take the plaintiff’s case at its highest.

10. The plaintiff was the founder and operator of a business providing personal shopping services connecting consumers and sellers of luxury goods on the social media platform, Facebook. The plaintiff had been operating this business since around May 2020. Most customers of her business were members of the Australian Thai community.

11. The plaintiff’s evidence was that reputation is an important concept within the Thai community, and her reputation was vital to the success of her business. She said she believed she had a positive reputation within the Australian Thai community prior to the publication of the alleged defamatory material.

12. The plaintiff said she is widely known amongst members of the Thai community in Canberra and Melbourne as ‘Jing Jo’ and she has used this pseudonym to identify herself on social media platforms. “Jing Jo” means ‘kangaroo’ in the Thai language.

13. She is now 58 years of age.

14. The first defendant, Ms Chaiyabarn, had a Facebook profile using the name ‘Nat Natesai’.

15. The second defendant was known as ‘Nucy Phitsinee Wilkinson’ and had a Facebook profile using the name ‘Nucy Wilkinson’. The proceedings against Ms Wilkinson were settled on 2 March 2023 and she has taken no further part in the proceedings.

16. In around August 2021, the first defendant purchased a Chanel bag from the plaintiff via social media for $8,230.00. The plaintiff advertised the bag as genuine.

17. Shortly following her purchase, the first defendant became concerned the bag was counterfeit and arranged for the bag to be assessed for authentication.

18. On 5 August 2021, the first defendant allegedly received a letter of authentication which said that the bag was counterfeit.

19. On 10 September 2021, the first defendant approached the plaintiff at a Thai Buddhist temple in the ACT, known as ‘Wat Dhammadharo’. The first defendant was in the company and hearing of Vira Vumbaca and Ms Wilkinson.

20. The first defendant said to the plaintiff in Thai (translated to English) (defined in the pleadings as the First Defamatory Statement): You sold me a fake Chanel handbag, I’m going to return it and I want my money back.

21. The plaintiff responded (translated into English): The bag is not fake, I bought it from the Chanel shop.

22. The plaintiff then contacted the Chanel store in Melbourne by telephone. The sales assistant spoke to the first defendant on the speakerphone and said words to the effect: The handbag is not a fake, Sue purchased it from this store.

23. The plaintiff alleged that the imputations conveyed by the First Defamatory Statement were: (a) The plaintiff had sold a handbag to the first defendant which she had passed off as a genuine Chanel handbag when it was a fake or counterfeit product. (b) The plaintiff had defrauded the first defendant.

24. In relation to serious harm, the plaintiff then pleaded: The meanings set out above were defamatory of the Plaintiff and were likely to cause the people to whom they were published to shun and avoid the Plaintiff, to lower their estimation of her character and to avoid her business in the future and this amounts to serious harm. (emphasis original)

25. On 11 September 2021, the first defendant uploaded a video clip to her personal Facebook profile in which she said in the Thai language (translated into English) (defined in the pleadings as the Defamatory Video): One person sells brand names in Canberra. I bought myself a birthday present. I have decided to buy from this seller because she looks high profile, high class, reliable, speaks well, and so I decided to buy her [sic]. At that time I didn’t think the product was fake. After seven months passed, the quality of the bag has changed. The shape has changed. My bag started to show damage because it’s fake. The product started to change. The colour started to come off the chain. The colour started to come off. The quality was poor. I didn’t think Chanel would make such a bad quality product. I sent my bag to a reliable company and they determined that the bag is counterfeit. The reason why I haven’t gone to check with Chanel is because they don’t confirm whether is the product [sic] genuine or fake. So I went back to talk to the seller, the seller would not return my money or take responsibility. She accused us of swapping the bag with a fake one. So, I want to come out and tell everyone that before thinking of buying things for over eight thousand dollars please check the seller’s history first. I don’t want this kind of thing to happen to other people again. At this time, I won’t provide further information because I have already reported it to the police, lawyers and other government agencies and I will continue to take legal action. If there is any progress I will update.

26. The first defendant tagged eight people in that Facebook post including Ms Wilkinson, and Vira Vumbaca.

27. The post received 185 likes, 144 comments and 34 shares.

28. Some of the comments received in relation to the Defamatory Video referred to the seller as ‘Jing Jo’ and included photographs of the plaintiff with her face partially obscured by a kangaroo.

29. On 12 September 2021, the first defendant posted the video on the “Thais in Canberra” Facebook group. The post received 22 comments from Facebook users in that group.

30. On 13 September 2021, the first defendant posted the video on the “Na Rak Na Jab Tong” Facebook group. The post received nine comments from Facebook users in that group. The post was shared by 37 different members of the Facebook group.

31. The plaintiff said that the imputations conveyed by the Defamatory Video were: (a) The plaintiff had sold a handbag to the first defendant which she had passed off as a genuine Chanel handbag when it was proven to have been a fake or counterfeit product. (b) The plaintiff had defrauded the first defendant.

32. In relation to serious harm, the plaintiff then pleaded: The meanings set out above were defamatory of the Plaintiff and were likely to cause the people to whom they were published to shun and avoid the Plaintiff, to lower their estimation of her character and to avoid her business in the future and this amounts to serious harm. (emphasis original)

33. On 13 September 2021, Ms Wilkinson commented on the Defamatory Video posted on the first defendant’s Facebook page. She said (translated into English) (defined in the pleadings as the First Defamatory Comment) (errors in original): I’m not stupid but I believe people because I think they will be like us!! If we’re a seller, whether it’s real or fake, first-hand, or second-hand, we would be honest. I wouldn’t have to wait for the customer to come and tell me later, and then one probably wouldn’t be the first. There are no secrets in the world, especially the world of lies and deceit!! Pity those who stand on lies and try to deceive them until they think that what they have done is true. It’s something that people all over the world do. can even fool herself

34. The plaintiff then pleaded that the First Defamatory Comment was published to other people who commented on the Defamatory Video, and identifiably concerned the plaintiff because subsequent comments on the Defamatory Video identified the plaintiff by her nickname ‘Jing Jo’ and included photographs of her with a kangaroo partially obscuring her face.

35. The plaintiff said that the imputation conveyed by the First Defamatory Comment was: (a) The plaintiff is a dishonest person.

36. In relation to serious harm, the plaintiff then pleaded: That meaning set out above was defamatory of the Plaintiff and was likely to cause the people to whom it was published to shun and avoid the Plaintiff, to lower their estimation of her character and to avoid her business in the future and this amounts to serious harm. (emphasis original)

37. On 13 September 2021, a Facebook user named ‘Chaisuda Gaylard’ commented on the Defamatory Video and said (translated into English): Too bad. Heard of her story when she lived in Melbourne and moved to Canberra but I don’t know if it’s the same person?

38. In response to that comment, Ms Wilkinson commented (translated into English): need to be exposed…

39. Chaisuda Gaylard further commented in response (translated into English): Is it better wait for karma to return back to her?

40. Ms Wilkinson, responded, commenting (translated into English): She does something wrong again and again. She doesn’t care…

41. The comments of Ms Wilkinson, responding to Chaisuda Gaylard, were pleaded collectively as the Second Defamatory Comment.

42. The plaintiff said that the imputations conveyed by the Second Defamatory Comment were: (a) The plaintiff has sold many counterfeit handbags. (b) The plaintiff does not care that she is defrauding people.

43. In relation to serious harm, the plaintiff then pleaded: The meanings set out above were defamatory of the Plaintiff and were likely to cause the people to whom they were published to shun and avoid the Plaintiff, to lower their estimation of her character and to avoid her business in the future and this amounts to serious harm. (emphasis original)

44. The plaintiff claimed that the first defendant is responsible for the First and Second Defamatory Comments as she provided the forum in which the comments were made.

45. On 14 September 2021, a Facebook user named Piyachay Srijan privately messaged Ms Chaiyabarn using the application Facebook Messenger asking about the identity of the person who had sold the counterfeit bag. Ms Chaiyabarn, responded to the message on Facebook Messenger by sending Priyachay Srijan a screenshot of the Facebook profile of user ‘Jing Jo’. The screenshot of Jing Jo’s profile included a profile picture and banner, both containing clear photographs of the plaintiff’s face (defined in the pleadings as the Defamatory Screenshot).

46. The plaintiff said that the Defamatory Screenshot thereby explicitly identified the plaintiff as the person who was said to have sold a counterfeit handbag.

47. The plaintiff said that the imputations conveyed by the Defamatory Screenshot were: (a) The plaintiff is the person who sold a counterfeit handbag to the first defendant. (b) The plaintiff is the person who has been identified in the Defamatory Video and the First Defamatory Comment and the Second Defamatory Comment as being dishonest.

48. In relation to serious harm, the plaintiff then pleaded: Those meanings set out above were defamatory of the Plaintiff and were likely to cause the people to whom they were published to shun and avoid the Plaintiff, to lower their estimation of her character and to avoid her business in the future and this amounts to serious harm. (emphasis original)

49. The plaintiff then pleaded the ‘grapevine effect’. The ‘grapevine effect’ is an allegation that knowledge of the alleged defamations spread beyond the immediate recipients and occasioned harm to his or her reputation in a wider audience: Rader v Haines [2022] NSWCA 198 at [41]. In relation to the grapevine effect the plaintiff pleaded: The Plaintiff relies upon the further dissemination of the Defamatory Statement, the Defamatory Video, the First Defamatory Comment, the Second Defamatory Comments and the Defamatory Screenshot by way of the grape vine effect. (emphasis original)

50. On 28 September 2021, the plaintiff served on the first defendant a Concerns Notice pursuant to the CLWA. The first defendant did not respond and has not offered an apology or retraction.

51. The plaintiff alleged that her business was detrimentally affected by the publication of the Defamatory Statement, Defamatory Video, the First and Second Defamatory Comments and the Defamatory Screenshot.

52. In her affidavit she set out a table which contained “an approximate analysis” of the business’s financial position leading up to the publication of the matters complained of, and the business’s financial position during the month in which they were published.

53. The table was in the following form:

Month Sales Gross Profit June 2021 $55,643 $5,145 July 2021 $31,799 $4,800 August 2021 $23,250 $7,840 September 2021 $7,061 $1,461

54. After the publications the plaintiff said she lost all confidence in her ability to conduct any social media based selling activity, and that since the publications her business had been essentially destroyed. She said she was now (being February 2023 when the affidavit was sworn) entirely financially dependent on her husband.

55. The other evidence led in relation to serious harm to the plaintiff’s reputation was as follows: 4. I am a member of the Australian Thai community. 5. ‘Reputation’ is an important concept within the Thai community and affects Thai people’s relationships. … 7. Most of the customers of my Business are members of the Australian Thai community. 8. My reputation is vital to the success of my Business. … 12. I believe that I had a positive reputation within the Australian Thai community before the publication of the Defamatory Video, the First Defamatory Comment and Second Defamatory Comments. 13. Before the publication of the Defamatory Video, the First Defamatory Comment and Second Defamatory Comments: a. my Business was generating significant income; b. my Business was my sole source of income; and c. I was able to cover all of my own living expenses. 14. Since the publication of the Defamatory Video, the First Defamatory Comment and Second Defamatory Comments, my Business has been essentially destroyed. … 16. The Defamatory Video, First Defamatory Comment and Second Defamatory Comments tarnished my reputation within the Australian Thai community, jeopardising my relationships with my existing customers and inhibiting my ability to develop relationships with new customers.

56. The plaintiff said that since September 2021 numerous people that she was previously friendly with in the Australian Thai community have avoided her. The plaintiff’s evidence listed the names of 34 people she said she was previously friendly with but whom had subsequently “avoided” her and said there were others in addition to those 34.

57. On 5 September 2022, the plaintiff commenced these proceedings against the first and second defendants.

58. On 22 December 2023, the second defendant filed an application in proceeding. That application sought an order that certain questions be decided separately from and before the final hearing pursuant to r 1521 of the Court Procedure Rules 2006 (ACT) (the Rules) or, alternatively, pursuant to s 122A(4) of the CLWA. Four questions for separate determination were stated in the application, and an order was sought for dispensation from the requirements of r 1521(3). An order was sought for directions for the preparation of the hearing of the separate questions.

59. On or around 3 March 2023, the plaintiff and second defendant reached an agreement and the claim against the second defendant was dismissed by consent.

60. On 28 April 2023, the first defendant filed an application in proceeding seeking orders that, pursuant to s 122A(4) of the CLWA and r 1521 of the Rules, the Court determine whether the plaintiff’s pleaded particulars were sufficient to establish the element of serious harm to the plaintiff’s reputation. The first defendant sought an order dispensing with the requirements of r 1521(3) and sought an order for the dismissal of the plaintiff’s claim pursuant to s 122A(4) of the CLWA. No separate questions were stated for decision in the application.

61. In oral submissions the first defendant clarified her position. She said that she was 1 seeking to dismiss the proceedings on two bases. The first was defective pleadings. The second was dismissal taking into account the plaintiff’s evidence. The first defendant submitted that if I were not satisfied that the proceedings should be dismissed, I should make an order that parts of the Amended Statement of Claim be 2 struck out and make an order that they be repleaded.

1 Transcript p 6.7-.28 2 Transcript p 4.33

62. The plaintiff agreed that those two matters were the area of contest in the application and said that there was a “flexible approach” to the determination of these matters, citing Scott v Bodley (No 2) [2022] NSWDC 651.

63. I remain uncertain precisely what the plaintiff meant by the expression “flexible approach”. That expression is not found in any of the authorities to which I refer in this judgment, including the one cited. Nor was the application of any flexible approach to any issue apparent in that case.

64. In Scott v Bodley (No 2) Gibson DCJ said at [6] that her Honour adopted what was said by Clayton J of the Victorian County Court (Clayton J manages the Defamation List in that Court) as to how evidence of “serious harm” should be evaluated in High Quality Jewellers Pty Ltd (ACN 119428394) & Ors v Ramaihi (Ruling) [2022] VCC 1924 (Jewellers 1924) at [15].

65. Her Honour’s reference to [15] of Jewellers 1924 is, I think, a typographical error because [15] says: I accept that those matters may increase the harm the plaintiffs have suffered in terms of their hurt and embarrassment. I cannot see that those matters have a role in determining whether serious harm has or has not been established.

66. I think more likely Gibson DCJ meant to refer to [25] of Jewellers 1924 wherein Clayton J said: In this case, the serious harm hearing would not involve evidence about the motivations of the defendant or the rent dispute between the plaintiffs and the defendant. The evidence would not extend to evidence about hurt to feelings, stress, distress and anxiety. It would be confined solely to the harm to their reputation by the publication. Affidavits have already been filed. If the defendant seeks to cross-examine any of the witnesses who have filed affidavits, that cross-examination will be confined to issues directly relevant to evidence about the harm sustained. This is not evidence that would then have to be given again at trial, albeit the plaintiffs would not be shut out from giving evidence about any additional harm to reputation.

67. At the serious harm hearing which followed that ruling, Clayton J held that the plaintiffs had failed to establish serious harm: High Quality Jewellers Pty Ltd & Ors v Ramaihi (Ruling) [2022] VCC 2240 (Jewellers 2240).

68. In this case, and as occurred in Scott v Bodley (No 2), there was no challenge to the imputations pleaded, nor to their defamatory nature. Nor was there any cross-examination of the plaintiff. The first defendant’s submission is that, even accepting those matters, the plaintiff’s pleadings and evidence (taken at its highest) are insufficient to establish the serious harm element of the cause of action. The Provisions

69. Section 122A relevantly says: 122A Serious harm element of cause of action for defamation (1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person. … (3) The judicial officer in defamation proceedings is to determine whether the serious harm element is established. (4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)— (a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and (b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established). (5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer must determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial). (6) The matters a judicial officer may take into account in deciding whether there are special circumstances for subsection (5) include (but are not limited to) the following: (a) the cost implications for the parties; (b) the resources available to the court at the time; (c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings. (7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element. …

70. Rule 1521 says: 1521 Separate decisions on questions—order (1) The court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding. (2) The court may make an order under subrule (1) on application by a party to a proceeding or on its own initiative. Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule. (3) Unless the court otherwise orders, a separate question or questions must— (a) set out the question or questions to be decided; and (b) be divided into paragraphs numbered consecutively; and (c) be prepared in draft by the initiating party for the proceeding after consultation with each other active party; and (d) be settled by the registrar; and (e) be filed. (4) In this rule: initiating party means— (a) if the order under subrule (1) was made on the application of a party—that party; or (b) if the order under subrule (1) was made by the court on its own initiative— the party nominated by the court. Procedure

71. It is first necessary to address the differences between seeking dismissal on the basis of defective or insufficient pleadings and seeking dismissal on the determination of a separate question. The former is the seeking of an interlocutory decision and the latter is the seeking of a final decision on a defined issue.

72. I mention this because the first defendant sought to dismiss the proceedings on both bases on the same occasion, a position the plaintiff was also content to deal with. As I shall explain, in this case the decision on the element of serious harm on a final basis overtook the pleading point and therefore I need not decide the pleading point (see [87]-[92] below).

73. Section 122A(1) of the CLWA makes clear that serious harm to a person’s reputation is an element of the cause of action for defamation. It is, to my mind, better understood as two elements. The first is the occurrence of serious harm to reputation, and the second is that that serious harm was caused by the defamation.

74. The other elements of the cause of action in defamation are publication, identification and defamatory meaning: Newman v Whittington [2022] NSWSC 249 at [8].

75. Subsection 122A(5) requires a judge to determine the serious harm element in advance of the final hearing if asked to do so unless there are special circumstances justifying the postponement of that determination. In this case there are no special circumstances justifying postponement.

76. It would appear that s 122A allows for the determination of the serious harm element in either of two ways. The first is by reference to the pleadings alone. That is because s 122A(7) says that a judge may determine that the serious harm element is “not established on the pleadings” without the need for further evidence if satisfied that the “pleaded particulars are insufficient to establish the element”. The second is by way of a final determination of that factual issue prior to the trial (s 122A(3)).

77. The existence of those two (different) ways flows from the wording of the section. That is, there is a difference, to my mind, between subsection (3)’s determination whether the serious harm element “is established” and subsection (7)’s determination whether the serious harm element is “established on the pleadings” when the “pleaded particulars are insufficient to establish the element”.

78. Particulars do not “establish” anything. They are not proof of facts. They exist to define the issues to be tried, they enable parties to know the case they are to meet and they avoid the Court having to take up time with questions not in dispute: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 per Gibbs J at 219.

79. On the other hand, subsection (3) speaks to a factual determination. That is, has the plaintiff been successful in establishing, on the evidence, that one element of the cause of action has been made out.

80. Therefore, it seems to me that s 122A allows for two possible applications. One is limited to the pleadings (subsection (7)) and one is determined on the evidence (subsection (3)). As to the latter, that is best dealt with by way of the determination of a separate question and is therefore determined on a final basis. That is, if the plaintiff fails to establish the existence of the serious harm element on the hearing of the separate question devoted to that issue, then that is the end of the case because the complete cause of action for defamation could never be established.

81. On the other hand, if the serious harm element was determined in favour of the plaintiff on a hearing of the separate question, then that issue would have been finally determined and would no longer be able to be contested by the defendant. I would be inclined to agree with Clayton J (and Gibson DCJ) that further evidence about any additional harm to reputation could be given at the (subsequent) final hearing, but that evidence would only be relevant to damages. That would be allowable, to my mind, because the serious harm element in s 122A is concerned with whether serious harm was caused (at all) and is not concerned with the full extent of the serious harm caused. Of course, that is not to deny that the extent of harm caused is relevant to the early (and final) determination of the serious harm element. But the only question at that point is a threshold one, namely whether the evidence is sufficient to amount to serious harm, and not with the precise amount of harm caused which is, of course, relevant to the assessment of damages.

82. If I am correct about the difference just mentioned, the two early determination avenues provided for in s 122A would seek to fulfill the stated aim of s 122A and its equivalents in other jurisdictions. That is, to bring to end trivial, spurious, and vexatious defamation claims at an early stage of proceedings before even greater legal costs are incurred. Sometimes that would be achieved by striking out the pleadings alone, sometimes by the final determination of that issue.

83. If the pleaded particulars are insufficient, they could be struck out and the Court would then decide as a matter of discretion whether to allow a plaintiff to re-plead those particulars (as occurred in Newman). One would think that leave would ordinarily be granted. If the re-pleaded particulars remained insufficient the proceedings could then be summarily dismissed if that was the appropriate discretionary decision made on that occasion.

84. On the other hand, the parties could choose to decide the serious harm element on a final basis ahead of the trial in the expectation that either the element would not be established and the proceedings would be dismissed (thus saving costs), or the element would be established, and the remaining issues could be decided at a later time. Whether that would result in a saving of costs is an open question.

85. Section 122A does not prescribe a procedure for either avenue referred to above, but the Rules do. If the pleadings are insufficient, they could be struck out pursuant to r 425. If the parties wish the issue to be determined on a final basis it could be determined as a separate question under r 1521.

86. Halsbury’s Laws of Australia, online edition, at [325-8003] describes separate questions as follows: A [separate] ‘question’ in a proceeding is ‘a question which would be determined as part of the trial of the proceeding’ and, therefore, purely interlocutory issues and applications do not constitute ‘questions’ to which the rules allowing for separate trial of questions will apply. (Footnotes omitted)

87. As mentioned earlier, the first defendant sought relief relying upon both s 122A(3) and (7). I will decide the s 122A(3) application (the separate question determined on the evidence) but not the s 122A(7) application (insufficient particulars) for the following reasons.

88. Pleadings are required to contain a statement in a summary form of the material facts on which a party relies but not the evidence by which the facts are to be proved: r 406(1) of the Rules. A pleading must contain particulars necessary to: define the issues for, and prevent surprise at, the trial; enable the opposite party to identify the case to be met; and, support a matter specifically pleaded under r 407.

89. As pleadings are to contain material facts and not evidence, evidence (in the pleadings) is not useful to fulfill the function of particulars i.e. to define the issues to be tried etc.

90. However, the position is different in relation to the hearing of a separate question, at least in this case. That is because the issue has been defined by the terms of s 122A itself, and the evidence is short, uncontested, and unchallenged by any competing evidence or cross-examination.

91. Put another way, particulars are a tool to ensure a fair trial, but they do not themselves determine the outcome of a trial. Evidence determines the outcome of a trial.

92. Accordingly, there is nothing to be gained in this case by deciding whether the pleaded particulars of the serious harm element are sufficient to establish (in the relevant sense) the serious harm element when I have the totality of the plaintiff’s evidence that 3 she wishes to place before me on the hearing of that issue as a separate question.

93. Pursuant to r 1523, after I have decided the separate question, I may then make orders that the nature of the case requires depending on the outcome of that separate question.

94. As mentioned earlier, the plaintiff referred to a “flexible approach” in relation to the 4 hearing of this separate question and cited Scott v Bodley (No 2). There was no “flexible approach” (whatever that quite meant) undertaken in that case. What was undertaken was the separate determination of the serious harm element on the evidence and on a final basis: see Scott v Bodley (No 2) at [3].

95. In this case the first defendant did not specify the question to be decided despite the requirements of r 1521, but the question to decide is: Has the plaintiff established that publication of the pleaded defamatory matters has caused, or is likely to cause, serious harm to the reputation of the plaintiff.

96. I otherwise dispense with the balance of the requirements of r 1521(3).

97. I have summarised the plaintiff’s evidence above and will now turn to the applicable principles.

3 Transcript p 4.36-5.4 4 Transcript p 7.6, 31.34-.41 Applicable Principles

98. Section 122A is concerned with ‘reputation’.

99. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 French CJ, Gummow, Kiefel and Bell JJ said at 466; [2]-[3] (citations omitted): 2 Spencer Bower recognised the breadth of the term “reputation” as it applies to natural persons and gave as its meaning: [T]he esteem in which he is held, or the goodwill entertained towards him, or the confidence reposed in him by other persons, whether in respect of his personal character, his private or domestic life, his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status, or his financial credit … 3 A person’s reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

100. Statements might be defamatory if the words tend to lower the plaintiff in the estimation of right-thinking members of society generally (“right-thinking members of society” being ordinary, reasonable people of ordinary intelligence, experience, and education): Radio 2UE at [4]-[7].

101. Particulars of serious harm in a pleading must include some criteria as to how it is alleged the harm is serious: Randell v McLachlain [2022] NSWDC 506 at [38].

102. A statement may be defamatory if it causes a plaintiff to be shunned, or avoided, which is to say excluded from society: Radio 2UE at [4].

103. The plaintiff bears the onus of proving the serious harm element (Newman at [47]) and must prove serious harm as a fact in every case: Newman at [69].

104. Serious harm must be proved by evidence of the actual impact of the publication: Newman at [65], [68].

105. It is serious harm to a person’s reputation which is the relevant matter, not the seriousness of the imputation per se. The application of the test is to be determined by reference to the actual facts about the impact of the imputation, and not just the meaning of the words. The meaning of the words is necessarily part of the impact because a grave imputation will (usually) cause more harm than a trivial one. But it is only part of the equation because the gravest imputation will cause no harm if it has no impact: Rader at [19].

106. Relevant considerations include the meaning of the words, the gravity of the imputations they conveyed, the situation of the plaintiff, the circumstances including the scale of the publication and the inherent probabilities including the likelihood that the publication had come to the attention of others who knew or would come to know the plaintiff: Rader at [22]. Other relevant factors include the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations: Rader at [28].

107. The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated: Rader at [28].

108. Serious harm is not satisfied by injury to feelings, however great: Rader at [28].

109. The extent of publication is a significant factor in terms of serious harm, although it is not a numbers game: Rader at [24]; Jewellers 2240 at [19]-[32]; Scott v Bodley (No 2) at [33].

110. A grave imputation may not result in serious harm, for example where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral: Rader at [28]. Serious harm need not be permanent harm: Rader at [32].

111. The duration of the harm is relevant to whether it is serious: Rader at [32]. Reputational harm that endures for a substantial period is more likely to be serious than harm which is ephemeral: Rader at [34].

112. A plaintiff’s opinion that others believed any of the allegations is of practically no probative value in the absence of evidence of what expressions by those others founded that opinion. This is not a matter of credit but a recognition that a witness cannot give evidence of another’s state of mind: Rader at [47].

113. The words “has caused, or is likely to cause” in s 122A refer to past harm (has caused) or likely future harm: Zimmerman v Perkiss [2022] NSWDC 448 at [28].

114. ‘Serious’ sits on the spectrum above ‘substantial’ but below ‘grave’. ‘Serious’ means ‘significant’ or ‘worrying’, not ‘slight’ or ‘negligible’. It means more than merely ‘substantial’: Rader at [27].

115. The timing of any complaint made about a publication may be relevant. That is, the absence of any expression of concern about the publication for a substantial period is not irrelevant to whether there has been or is likely to be serious harm. In such a circumstance any substantial delay between the publication and a complaint is capable of supporting reasoning that the plaintiff was not particularly troubled by it and did not perceive it to be occasioning ongoing harm: Rader at [39].

116. The presence of a grapevine effect is relevant to establishing “serious harm”: Rader at [42].

117. In relation to material uploaded to the internet, a plaintiff must plead and prove facts which establish the material complained of has been downloaded and viewed by someone. In general, an inference will not be drawn from the mere fact that material has been posted on the internet that the material has therefore been viewed and read by someone. The plaintiff must plead material from which an inference of download can properly be drawn: Newman at [11]-[13]. Evidence of material being downloaded may include ‘likes’ on platforms such as Facebook: Newman at [27].

118. A plaintiff may also prove a platform of facts from which an inference of download can properly be drawn. An inference to the effect that the material has been downloaded by somebody might be drawn from a combination of facts, such as the number of ‘hits’ on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet, or by demonstrating how many times a video had been viewed: Sims v Jooste (No 2) [2016] WASCA 83 at [18]– [20] per Buss JA, Mitchell J agreeing, cited with approval in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 per Gleeson JA, with whom Macfarlan and Brereton JJA agreed, at [56]. Other evidence may include information from Google analytics or evidence of ‘likes’ or comments: Scott v Bodley (No 2) at [34].

119. Social media publications will be read by the ordinary reasonable reader in a somewhat informal manner: Randell v McLachlain at [18]. The search for how an ordinary reasonable reader would interpret a tweet or Facebook post should reflect the circumstance that: social media is a casual medium; posts are in the nature of conversation rather than carefully chosen expression; and these mediums are pre-eminently ones in which the reader reads and passes on: Stocker v Stocker [2019] UKSC 17; [2020] AC 593 per Lord Kerr JSC at [43], cited with approval in Bazzi v Dutton [2022] FCAFC 84; 289 FCR 1 per Rares and Rangiah JJ at [29].

120. Fact-rich proof of harm that is or is likely to be serious is required, rather than inferences to be drawn from data such as the extent of publication: Scott v Bodley (No 2) at [48].

121. There must be evidence of causation between the publication and the serious harm: Scott v Bodley (No 2) at [48]; Jewellers 1924 at [11]. Note that s 122A uses the words “caused” and “cause”. Submissions

The plaintiff

122. The plaintiff submitted that the plaintiff’s case should be taken at its highest in 5 determining the separate question.

123. Relying on Randell and Rader she submitted that particularisation of serious harm can be relatively general and informal.

124. The plaintiff submitted that the Court should consider all publications together as a part of the first defendant’s course of conduct in a short period of time, when assessing 6 serious harm.

125. Findings of serious harm can be based on considerations including the meaning of words, the plaintiff’s situation, circumstances and scope of publication, inherent 7 probabilities, the grapevine effect and the serious nature of imputations.

126. The plaintiff submitted that an inference could be drawn that the plaintiff had suffered a 8 downturn in business as a direct cause of the publications. Even if the Court was not satisfied that the financial evidence was sufficient to draw such an inference, there was 9 still sufficient evidence of serious harm. The 34 individuals avoiding the plaintiff since September 2021 was sufficient evidence of serious harm being caused, and further the Court could consider the number of likes and comments of the Facebook posts as 10 evidence of likely serious harm.

127. The plaintiff submitted that a relevant consideration was to whom the publication was made, and further that the publication to one person does not exclude the possibility of 11 serious harm. The First Defamatory Statement was made in the presence of two people who did not know the plaintiff and had never purchased a bag from her and therefore would be likely to believe that the publication from their friend (the first defendant) was true. This is evidence of a damaged reputation, and through the 12 grapevine effect is likely to cause serious harm.

5 Transcript p 19 6 Transcript p 33-35 7 Plaintiff’s Submissions p 4-5, [15]-[17]; as to how those factors would apply to the plaintiff see Plaintiff’s Submissions p 6, [19]; Transcript p 31 8 Transcript p 30 9 Transcript p 31 10 Transcript p 30-31 11 Transcript p 20 and 21 12 Transcript p 20-21

128. In relation to causation, the plaintiff submitted the Dingle Rule and the decision in 13 Banks v Cadwalladr [2022] EWHC 1417 (QB) do not assist the first defendant, as the First Defamatory Statement and Defamatory Video were the first in time and inherently 14 likely to cause serious reputational harm.

The first defendant

129. The first defendant submitted that the plaintiff had failed to adequately particularise serious harm in the Amended Statement of Claim, which only asserted the plaintiff’s belief that recipients of the statements would have had a lower estimation of her 15 reputation. The pleadings were not sufficient for the first defendant to understand what the serious harm was and how it equated to the loss that the plaintiff claims she 16 had suffered.

130. The first defendant submitted that the plaintiff bore the onus of proving she had 17 suffered, or would likely suffer, serious harm.

131. The first defendant submitted that each publication and whether it caused or was likely 18 to cause serious harm should be dealt with in isolation.

132. The first defendant submitted that the plaintiff had not presented enough proved facts 19 or proved facts of enough weight to draw an inference of serious harm.

133. The first defendant submitted that serious harm means harm that is more than merely substantial, thought it need not be grave. It must be more than injury to feelings. It cannot be established by the gravity of the imputations alone, especially where publication was to a small number of persons well acquainted with the plaintiff and who might not have been disposed to believe it, and where any imputation in relation to the plaintiff’s reputation was transitory or ephemeral. 20

134. Actual or likely reputational damage must be shown. The serious harm must be 21 confined to the plaintiff’s reputation.

135. The first defendant submitted that the plaintiff must show that the statements 22 complained of caused the harm, as opposed to other possible causes.

13 Plaintiff’s Submissions p 4, [12] 14 Plaintiff’s Submissions p 2-4, [8]-[14] 15 First Defendant’s Submissions p 3 [9], Transcript p 10 16 Transcript p 11-12 17 First Defendant’s Submissions p 2, [5] 18 Transcript p 40 19 Transcript p 38 20 First Defendant’s Submissions p 2, [6]; Transcript p 10 21 First Defendant’s Submissions p 2, [7], Transcript p 10 22 First Defendant’s Submission p 10, [8]

136. The first defendant submitted that the plaintiff’s evidence of her loss of profits was not supported by any contemporaneous business or personal records, nor was there any evidence of a causal link with the publications, with there being possible alternative 23 explanations for such a decline. Therefore, this evidence should be given little weight. It was submitted that it was unclear from the plaintiff’s evidence whether the “business” was that of the plaintiff (as a sole trader) or a corporate entity (of which the plaintiff would presumably be a director and/or shareholder). It was submitted that if the plaintiff’s business was operated by a corporate entity, then its alleged decline in profit would fall outside the scope of serious harm because serious harm for an individual is 24 confined to reputation.

137. The first defendant submitted that little weight should be given to the plaintiff’s evidence that the 34 people listed in her affidavit now shun and avoid her, as an inference 25 cannot be drawn that this was a result of the publications.

138. Relying on Scott v Bodely (No 2), the first defendant submitted that a mere assertion that someone must have read the publication and comprehended it because it was online is not sufficient. The plaintiff must plead and prove facts to establish the material 26 complained of has been downloaded and viewed.

139. The first defendant submitted that the First Defamatory Statement and Defamatory Screenshot were publications to one person, in circumstances where there was no evidence of whether that person was disposed to believe the imputation and therefore 27 it was not sufficient to cause serious harm. The plaintiff submitted that, as pleaded, 28 the First Defamatory Statement was said in the company of only two third parties.

140. If the proceedings as a whole were not dismissed, the first defendant submitted that 29 [5]-[10], and [30]-[33] of the Amended Statement of Claim should be struck out. If those paragraphs were not struck out, then the first defendant submitted that the Court should order that the plaintiff file a Further Amended Statement of Claim repleading [7], 30 [15], [28], [33] and [35].

23 Transcript p 12-14 24 Transcript p 13 25 Transcript p 13, 38, 40 26 Transcript p 14 27 Transcript p 14, 16 28 Transcript p 19 29 Transcript p 16 30 Transcript p 37 The plaintiff’s reply submissions

141. The plaintiff submitted that Scott v Bodley (No 2) was not relevant, as the large number of likes and comments on the posts are the factual platform from which an inference 31 can be drawn that there was a publication to a significant number of people.

142. The plaintiff submitted that no Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference could be drawn in relation to the failure to call evidence from any of the 34 people listed in the plaintiff’s affidavit because they could not be regarded as being within the 32 plaintiff’s camp.

Decision

143. On the separate question, where the serious harm element of the cause of action is being determined, the plaintiff bears the onus of proof: see [103] above. That position is no different than if that element were being determined at a final hearing.

144. As mentioned earlier, there was no cross-examination of the plaintiff. Accordingly, I take her case (on serious harm) on the basis there was no challenge to that evidence and therefore I take it at its highest.

145. Ordinarily I would address each publication individually because each gives rise to a separate cause of action (at least in the way it has been pleaded). But in this case, each publication occurred within a few days of the others (except, perhaps, for some downloading) and given I have taken the view that the evidence, assessed collectively, does not establish serious harm, there is no need to address each publication individually except where otherwise necessary.

146. I note there was no challenge (on this application) to the imputations pleaded, nor to their defamatory nature. Therefore, for the purpose of this separate question, I accept as common ground between the parties that the publications conveyed that the plaintiff had passed off a fake or counterfeit handbag as a genuine one, that she had defrauded the first defendant, that the plaintiff was dishonest, had sold many counterfeit handbags, and she did not care that she was defrauding people. It is also common ground that those imputations were defamatory.

147. Those matters do not mean, however, that I must accept the plaintiff’s evidence on matters which are contested. The question of serious harm is a question of fact, and it is contested.

31 Transcript p 25 32 Transcript p 42

148. For the Court to be satisfied, on the balance of probabilities, of the existence of a fact, I must feel an actual persuasion of the existence of that fact. Or, put another way, the facts proved must form a reasonable basis for the drawing of a definite or affirmative conclusion in relation to the asserted fact: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 per McDougall J at [44]-[45], with whom McColl and Bell JJA agreed.

149. The criteria pleaded as to how it was alleged that the harm to the plaintiff’s reputation was serious was that the publications caused people to shun and avoid the plaintiff, lower their estimation of her character and avoid her business: [7], [15], [19], [28] and [33] of the Amended Statement of Claim.

150. I accept that the imputations conveyed were no laughing matter and would no doubt have been distressing to the plaintiff. However, as the authorities make clear, it is serious harm to a person’s reputation that is relevant, not harm to that person’s feelings.

151. In terms of harm to the plaintiff’s reputation, all the publications other than the First Defamatory Statement were made on social media. As has been said (see [119] above), the ordinary reasonable reader of social media reads in a somewhat informal manner and social media is a casual medium in which the reader reads and passes on.

152. There is no evidence that the people to whom the various comments were published were known to the plaintiff, or at least known so well that they would not have been disposed to believe the imputations.

153. The plaintiff gave evidence she was a member of the Australian Thai community, but there was no evidence as to how large that community was (at the relevant time) nor the plaintiff’s degree of involvement with that community.

154. She asserted that some 34 people “avoided” her since the publications, but the word “avoided” is not explained, no evidence was given of any instance of avoidance, no evidence was given as to the level of interaction the plaintiff had had with the named 34 people before the publications (and the level of interaction subsequently) and there is no evidence whether this avoidance was in person (such as refusing to say hello when crossing paths in public) or on social media for example. All those matters, and more, would be relevant to the extent of harm suffered, and to the impact of the imputations, but no evidence was given of them.

155. For example, if the plaintiff only had rare, social media interactions with those 34 people before the publications, the fact that she had none subsequently (if that were the fact) would not support a claim that any harm was “serious”, but would rather suggest that the harm was minor, slight or inconsiderable.

156. Further, no evidence was given as to whether any of those 34 people were any that had liked, commented, or shared one or more of the publications. That is, there is no evidence that any of those 34 people avoided the plaintiff because of the publications.

157. Such evidence may not be easy to obtain, but at least circumstantial evidence supporting such an inference could have been (but was not) given. For example, evidence could have been adduced by the plaintiff of the temporal coincidence between these people suddenly avoiding her shortly after the publications (and not doing so in the time running up to the publications) if that were the case. The submission could then have been made that, given that temporal coincidence, it was likely that the 34 people avoided the plaintiff because of the publications. However, as I have said, no such evidence was given.

158. There was no evidence (as distinct from the allegations made in the pleadings) led by the plaintiff as to publication, downloading, nor any platform of facts from which an inference of downloading could be drawn. That is, there were allegations made of likes etc, but no evidence was presented to prove those facts. Those matters were pleaded but were not proved on the separate question. In those circumstances it could not be said that the plaintiff had proved the serious harm element.

159. Further, and importantly, in terms of duration of harm, there was no evidence as to the dates of the likes, comments and shares.

160. However, even if evidence was led proving those matters as pleaded, I would not have found serious harm. The publications and downloading were limited. The First Defamatory Comment was published to two people (one of whom was the second defendant) and occurred contemporaneously with the plaintiff’s denial and contemporaneously with someone from the Chanel store in Melbourne saying, in the presence of the two other people, that the bag was genuine.

161. The Defamatory Video received 185 likes, 144 comments and 34 shares which, in social media terms, is not a significant number. The other publications were published or downloaded no more than those numbers suggest. In the “read and pass on” world of social media, the publications were not extensively available and therefore, in my view, the extent of publication was limited.

162. The harm alleged could only, realistically speaking, be past harm given the transitory nature of material posted on social media.

163. In relation to the alleged decline in profit of the plaintiff’s business, the evidence was tendered not for the purpose of proving any pecuniary loss but only as evidence that 33 people shunned and avoided the plaintiff.

164. Be that as it may, the evidence led on that issue does not persuade me of anything, it being sparse in the extreme. All that was tendered were assertions (as opposed to evidence) that prior to some of the publications the business was generating significant income. Bald statements were made as to the amount of sales and the gross profit realised, and then only for three months, being June, July, and August 2021.

165. No financial records such as bank account statements, tax returns, financial statements or other contemporaneous records were tendered to prove those assertions.

166. In relation to the alleged decline in profit, there was a single, bald assertion that in the month of September 2021 total sales and gross profit were markedly less than for the months of June, July, and August 2021.

167. It must be remembered that publication of the defamatory material occurred on 10, 11, 13 and 14 September 2021.

168. Again, no financial records were tendered to prove the sales figure and gross profit asserted for that month. No financial records were tendered to prove what sales were made between 1-10 September, and then post-14 September 2021 (and then October 2021 and following months) to show that sales declined from the time of publication. Had that temporal coincidence been proven with reliable evidence, then it would have been open to me to accept a decline in profit, and it would have been open to me to draw an inference of causation. But no such evidence was given.

169. In addition, the lack of any financial records does not assist the plaintiff in demonstrating that there was no other possible cause of the alleged decline in profit. The plaintiff bears the onus of proving causation, and the sparse evidence provided does not leave me with a sense of persuasion that there was any decline in profit, nor that the decline occurred because of the publications.

170. In all those circumstances, and on the evidence presented by the plaintiff, I find that any harm caused to the plaintiff’s reputation was not serious harm.

Orders

171. I make the following Orders:

33 Transcript p 28.28-.34. (1) The answer to the separate question is “No”. (2) The proceedings are dismissed. (3) The plaintiff is to pay the first defendant’s costs.

I certify that the preceding one hundred and seventy-one [171] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: 1 September 2023