District Court New South Wales Medium Neutral Citation: Rothe v Scott (No. 4) [2016] NSWDC 160 Hearing dates: 1 and 2 August 2016 Date of orders: 05 August 2016 Decision date: 05 August 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff against the defendant for $150,000. (2) Plaintiff's written submissions on interest and costs in 7 days. (3) Defendant's written submissions on interest and costs in 14 days. (4) Proceedings listed for further directions on matters of interest and costs on Thursday 1 September 2016 at 9:00am. (5) Liberty to apply in relation to interest and costs. (6) Exhibits retained for 28 days. Catchwords: TORT – defamation – defendant publishes Facebook post headed "Pedophile [sic] warning" naming the three motels owned and operated by the plaintiff in a small country town as being used to relocate paedophiles – plaintiff not named - whether plaintiff identified – whether imputations conveyed – extent of publication – defences of qualified privilege, honest opinion and triviality – damages –aggravated compensatory damages – judgment for $150,000 Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Defamation Act 2005 (NSW), ss 30, 31, 33, 34 and 38 Cases Cited: Cerutti v Crestside Pty Ltd [2014] QCA 33 Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202 Cole Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 French v Fraser (No 3) [2015] NSWSC 1807 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Mickle v Farley [2013] NSWDC 295 North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125 Nowak v Putland [2011] QDC 259 Parras v Channel Seven Sydney Pty Limited (Supreme Court of New South Wales, Simpson J, 14 September 2001) Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 RJ v JC [2008] NSWDC 217 Rothe v Scott [2015] NSWDC 105 Rothe v Scott (No. 2) [2015] NSWDC 143 Rothe v Scott (No. 3) [2016] NSWDC 151 Category: Principal judgment Parties: Plaintiff: Kenneth Rothe Defendant: David Scott Representation: Counsel: Plaintiff: Mr C J Dibb Defendant: Mr D Scott (in person) Solicitors: Plaintiff: Slater & Gordon Defendant: Mr D Scott (in person) File Number(s): 2015/74837 Publication restriction: None Judgment 1. The plaintiff brings proceedings for defamation for a Facebook post ("the matter complained of") posted on the defendant's Facebook page by the defendant on 12 March 2014. The text of the matter complained of is as follows: "David Scott March 12. Edited Pedophile [sic] warning:- Nambucca has been used as a relocation for these monsters – blue dolphin – nirvana hotel and above the indian restaurant! One of them even tried to change his name and get a job at the local public school? People what the fark [sic] share this post please! Can't believe this just another council decision without consent! Bus stops are right out the front of these hotels for our children?" 1. The imputations pleaded to arise from the matter complained of are as follows: 1. The plaintiff is a paedophile; 2. The plaintiff so conducted his businesses at the Blue Dolphin Motel and the Nirvana Village Motel as to cause them to be a danger to children through the undisclosed presence of paedophiles; or alternatively, 3. The plaintiff so conducted his businesses at the Blue Dolphin Motel and the Nirvana Village Motel as to permit them to be a danger to children through the undisclosed presence of paedophiles. The procedural history of the claim 1. As is set out in my judgments Rothe v Scott [2015] NSWDC 105 and Rothe v Scott (No. 2) [2015] NSWDC 143, the plaintiff initially filed a defence on 10 April 2015 which merely traversed the claim by denials. As this was inadequate, the defendant was ordered to file and serve an Amended Defence by 30 April 2015. The amended defence included a plea of justification which was so inadequately particularised that it was struck out: Rothe v Scott (No. 2), leaving only the defence of offer of amends. 2. After mediation failed, the proceedings were set down for hearing on 20 August 2015 as a half day plus matter, on the basis that the sole defence was one of offer of amends. 3. On 30 July 2015, the solicitor for the defendant sought to reinstate the defence of justification, delete the defence of offer of amends and plead defences of qualified privilege at common law, statutory qualified privilege pursuant to s 30 Defamation Act 2005 (NSW), as well as a defence of honest opinion, resulting in orders as follows: 1. On the application of the defendant to amend the Defence in circumstances where it is acknowledged that the result will be the vacation of the half day hearing set down for 10:00am on Thursday 20 August 2015, and subject to the costs order set out below, the hearing date is vacated and the defendant is granted leave to file an Amended Defence (limited to the defences of qualified privilege pursuant to s 30 Defamation Act 2005 (NSW) and at common law, honest opinion and unlikelihood of harm). 2. The defendant is to pay the plaintiff's costs occasioned by the vacation of the hearing date on an indemnity basis, including the costs of today. 3. The defendant's Amended Defence is to be filed and served in 21 days. 4. The defendant's application to reinstate the defence of justification set out in paragraph 12 of the draft defence is refused (see separate judgment). 5. Matter stood over to the Defamation List on Thursday 27 August 2015 at 9:00am. 1. Following the filing of a Reply to these defences on 4 September 2015 by the plaintiff, the proceedings were set down for hearing on Monday 1 August 2016 as a two day plus matter. 2. Since that time, and during this hearing, the defendant has represented himself on all occasions, including the directions hearing on 19 November 2015 when these proceedings were given a hearing date and the plaintiff's application to give evidence by telephone: Rothe v Scott (No. 3) [2016] NSWDC 151. However, prior to that time he was represented by lawyers with experience in defamation proceedings. 3. Counsel for the plaintiff has drawn my attention to some aspects of the defendant's conduct of these proceedings which are asserted to be relevant to the issue of aggravated damages. These are: 1. The inadequacy of the justification plea and the attempt to reinstate it (Rothe v Scott [2015] NSWDC 105 and Rothe v Scott (No. 2) [2015] NSWDC 143), as well as repleading the defence in circumstances which resulted in the vacating of the first hearing date; 2. The defendant's refusal to provide any documents by way of discovery and his failure to inspect the documents produced by the plaintiff; and 3. The defendant's conduct of these proceedings. The issues for determination 1. These issues are as follows: 1. Whether the plaintiff, who is not named in the matter complained of, can establish identification; 2. Whether the imputations are conveyed and defamatory; 3. A determination of the issues raised by the defences; 4. Issues raised by the defendant in relation to mitigation of damages; 5. Damages, including the plaintiff's claim for aggravated compensatory damages. 1. At the request of Mr Dibb, I have reserved the issues of interest and costs, and set out a timetable for these steps. 2. The plaintiff and his wife gave evidence, and two identification witnesses were called. The defendant gave evidence on his own behalf but called no other witnesses. 3. As the defendant was a litigant in person, I sought to explain legal issues to him in the course of the hearing, and reversed the usual order of addresses so that he understood the issues upon which he should address the court. The plaintiff's evidence 1. The plaintiff, who is currently 74 years of age, was a school teacher for the whole of his working life, the last eight years of which were spent as the deputy principal of a Nambucca Heads public school. He ceased employment as the deputy principal of the Nambucca Heads public school at the beginning of 2006, at which time he commenced the full-time running the two motels and holiday units he had owned in Nambucca prior to 1988. 2. As a teacher, the plaintiff had needed a clearance in order to work with children. The plaintiff said that the Department provided this clearance so that he could carry out his duties as a school teacher and deputy principal. More recently, when he and his wife had started caring for their grandchildren full time, they had applied for a "working with children" clearance under the Child Protection (Working with Children) Act 2012 (NSW). 3. As well as running his motel businesses full time from the Blue Dolphin Motel from 2006 onwards, the plaintiff was also very active in the Nambucca Heads Chamber of Commerce. He ran the Chamber of Commerce as the secretary between 2006 and 2012, until he was able to find someone else to take it over. He said that the work he carried out for the Nambucca Heads Chamber of Commerce was "hard work", from which I infer that he was involved in many business-related activities on behalf of the Chamber of Commerce. 4. By reason of his activities as the deputy principal of the school, in the Chamber of Commerce, as well as his business, the plaintiff was well-known in the Nambucca Heads area during his many years of residence there. One of the witnesses, Mrs Helena Hammell, said that he was "one of the very well-known and respected people" in Nambucca Heads, both by reason of his activities in the Chamber of Commerce and his work. She said "everyone knows him", adding that she had gone to the RSL Club and Woolworths with him and that people had come up to him to say hello to him in her presence on a regular basis. 5. The plaintiff was also active in local politics, in that he held positions in the local National Party branch. 6. The plaintiff has at all relevant times been identifiable as the proprietor of these businesses firstly because he and his wife lived at the Blue Dolphin premises and secondly by the letterhead on his correspondence. As is set out in his letter to the defendant of 30 April 2014 (Exhibit 1), the plaintiff conducts the Blue Dolphin Motel and the Nirvana Motel as a sole trader, and is "the major owner" of the River Edge Indian restaurant and residential apartments above it. In the letterhead of Exhibit 1, the addresses for each of these businesses are accompanied by the words "Ken Rothe, proprietor" in the middle, followed by an email and website address as well as the same ABN number for all of them. 7. Anyone receiving such a letter would know that the "Ken Rothe" identified in the centre of the letterhead as the proprietor of all these businesses is the Ken Rothe who is the plaintiff in these proceedings. One of the people who dealt with him was a Mr Maxwell who, according to the defendant, is a relative of the defendant and a tradesman who carried out work for one of the plaintiff's businesses. 8. Additionally, although he employed managers at the Nirvana Village Motel, the plaintiff personally handled all the bookings at this office at the Blue Dolphin Motel for both motels. This included bookings for the residential apartment above the Indian Restaurant in Bowra Street in Nambucca Heads. 9. It is on this basis that the plaintiff asserted, both in his identification evidence in these proceedings and in Exhibit 1 (his letter to the defendant shortly after the matter complained of was published) that "the attack is on me, as owner and sole trader". I am satisfied by this evidence (which was in fact tendered by the defendant) that persons having any dealings with these businesses, which are essentially those identified in the matter complained of, would identify the plaintiff as the "proprietor", to quote the plaintiff's letterhead. 10. While the motels referred to above had tourists and travelling visitors of all kinds, one particular source of regular custom came from the plaintiff's arrangement with the Department of Community Services for the provision of crisis accommodation for residents in the Nambucca Heads area who were requiring crisis accommodation by reason of family disputes such as domestic violence. This included a number of persons of Aboriginal heritage. These persons were housed on a short term basis only and came to his premises in accordance with the agreement with the Department of Community Services. The plaintiff was emphatic that he had never had ex-prisoners staying in his motels under this or any other agreement. 11. There is no evidence before the court that the plaintiff is anything other than an upstanding member of the community who has never been investigated, let alone charged, for any kind of criminal conduct. The plaintiff told the court that he had a good working relationship with the local police, who regularly came to his motels for the purpose of using his CCTV footage, as these provided coverage of street areas adjoining these premises. 12. From time to time there were troublesome guests at the motels. However, there was no evidence that the police were ever called because of any misconduct or criminal act attributable either to the plaintiff or to any person under his control or direction. 13. I am satisfied that, prior to the publication of the matter complained of, the plaintiff enjoyed a good reputation as a respected member of the community, businessman and retired deputy principal of the local Nambucca Heads public school. The matter complained of 1. This brings me to a consideration of the circumstances in which the plaintiff first learned of the publication of the matter complained of. 2. The plaintiff's evidence in relation to this issue was difficult to follow, principally because of the plaintiff's extremely poor state of health at the time that he gave evidence, but also because of the obvious distress under which the plaintiff was labouring when describing what occurred. 3. Mr Dibb reminded me that an application had been made shortly before the hearing seeking leave for the plaintiff to give evidence by telephone, which had been refused because no medical evidence had been provided. Although no medical evidence has been tendered in relation to the plaintiff's health at the hearing, it was evident from his appearance that the plaintiff is very gravely ill. He could barely walk, even with assistance and was unable to get into the witness box. When asked where he lived, he said "in the hospital", as he had been in hospital for the previous six months. When asked to describe what was wrong with him, he told the court he had been in hospital for the previous six months following the second of two attempts to kill him, which he believes were carried out by people who did so, following publication of the matter complained of, because they thought he was a paedophile. This reinforced what Mr Dibb had told me, from the bar table, that the plaintiff had come to court to give this evidence, although he had advised the plaintiff that the case could have proceeded without his giving evidence at all, because the plaintiff was so anxious to clear his name that he had disregarded both his medical and legal advisers' concerns. 4. The plaintiff's physical difficulties and state of distress were further compounded by his almost total loss of hearing, which he said was as a result of the second of the assaults. He was provided with a hearing loop, without which he could not have given evidence, but he nevertheless struggled to answer some of the questions simply because he could not hear what was said. 5. The plaintiff told the court that he first became aware of the defendant's Facebook post when he was in Sydney on business and his wife telephoned him to say, "All this is going on up here". She said, "Somebody's posted something saying you're a paedophile". She went on to tell the plaintiff that friends had told her and asked if he was able to read it. 6. The plaintiff immediately returned to Nambucca Heads and read the matter complained of. He described his reaction as being that "I couldn't believe it". He was "distressed" and in "disbelief". His distress, when he gave this evidence, was self-evident. The plaintiff attempts to contact the defendant 1. The plaintiff immediately sought to track down the person who had published these statements. He said he attempted to locate the defendant, whom he called "young Scott", at his previous work address and, when he was unable to, obtained the defendant's current work address from a friend. He said that, "I think he was surprised I found it". 2. Having contacted the defendant, the plaintiff wrote a series of letters to the defendant, the first of which, dated 30 April 2014, is as follows (Exhibit 1): "Dear Sir, Re: Posting 12 March, 2014 "Pedophile [sic] Warning" Subject: Damages Firstly, note that I am not Facebook literate and some of my terminologies might not be correct. My awareness came from friends and relatives who were accosted in the streets, amazed at slanderous gossip in the town. As I am a sole trader and [sic] all the properties named are mine, except for the apartments and restaurant, where I am the major owner. Therefore the attack is on me, as owner and sole trader. Allegations were made by you, and on your instructions posted to numerous friends on other Facebook pages. You are hereby formally requested to provide the evidence to support your allegations. Sworn statements and affidavits would be helpful to you and me, so that we can both determine the parameters of legal action. [Matter complained of set out]" 1. Attached to this document is a statement "Can Slanderous Gossip be a Crime?" (the contents of which are set out below), which the plaintiff said he wrote at the suggestion of the local newsagent, who told him that he should set out the matter complained of excluding the town name and places of business. This document, which is set out below (see also Exhibit 1), was then provided to the defendant, the police, a website address (www.change.org) and members of the community who attended a public meeting. "Can Slanderous Gossip be a Crime? Recently, a message was posted, on a public Facebook stating the following:- "Pedophile [sic] warning":- (town name) has been used as a relocation for these monsters – (name given) hotel – (name given) hotel and above the apartments (name given)! One of them even tried to change his name and get a job at the local public school? People what the fark share this post please! Can't believe this just another council decision without consent! Bus stops are right out the front of these hotels for our children?" Comment: The owner of these properties has learned that Facebook is interlinked with innumerable other Facebook clusters. The consequent audience must be the sum of a geometrical progression, possibly tens of thousands of people. Even the population of our valley is probably just a minute part of the total audience. First please note:- The owner of the abovementioned properties has never been approached by any member of Shire Council, State or Federal Department to accommodate pedophiles [sic]. The owner has refused accommodation for persons under police protection, passengers removed from trains and persons affected by drugs or alcohol. As per practice in every town and suburb of NSW, this owner accepts clients from Dept. of Human Services and Crisis Accommodation. In this town there are several other accommodation providers, who also provide service for crisis accommodation and Dept. of Housing. Why is the owner of these named properties accused of accommodating pedophiles? I am sorry, but I have grave suspicions, that there are hidden unrelated issues. The vast majority, if not all, of housing and crisis clients are from local communities in our valley. These clients are probably friends, relatives or neighbours known to most of the local residents. Returning to the pedophile issue, this owner firstly states that his wife and he are raising grandchildren. Both grandparent carers, after twelve years, had to get clearance checks to "work with children", just like any other persons who care for children. Our grandchildren are frequently at any of the named properties, and actually live at one of the named properties. Information was requested, from the correct authority, as to what pedophiles were resident, and/or, in the vicinity of these three named properties. As response was received and there were no pedophiles! Repeat there were no pedophiles at the owner's properties. The correct authority for pedophile information is not the local Council, it is the responsibility of the police. Note that none of these named properties are hotels, as falsely claimed. These named properties are all owned by the one person. One named property is the family domicile. These statements are distressing, damaging and libelous [sic]. The owner of the named properties has no option but to present this slanderous posting as evidence to the petitioners against cyber bullying www.change.org. Legend: No names are supplied in the reported offensive posting for legal reasons. A hard copy is held as evidence. This response can be retained on this Facebook page as an indirect response to queries about pedophiles [sic]. Questions: If every town chased their anti-social residents onto the next town, each and every town would have some other town's problems. What is the gain? Isn't it better "to have the devil you know, than the devil you don't"? Extrapolating the argument to the obvious' [sic] ridiculousness, what about people's other basic needs? Should the provider of food, clothes, medical care etc also refuse to provide service? The mind boggles! Opinion: Our police are doing an excellent job. How many of our residents actually help, rather than avoid, or worse still, hinder?" 1. The plaintiff said that this letter was to be put before a meeting in the town where a friend of his, Mr Neville Ledger, went to speak on his behalf. He said that when Mr Ledger attempted to speak on his behalf, he was "howled down". The plaintiff said that Mr Ledger told him that persons who are responsible for the Nambucca Valley Crime Information took the issue off the agenda and Mr Ledger was unable to put these issues to the meeting. 2. The plaintiff said that he also sought confirmation from the police that none of the names of persons listed in the motel accommodation were on the police paedophile register. The plaintiff had made a list of all of his neighbours, workers and tenants, which he also presented to the police, and he saw the defendant in circumstances where these inquiries had demonstrated a nil result. 3. The plaintiff said that he also presented this evidence to the defendant in the course of trying to obtain a retraction and apology. His unchallenged evidence was that he sent ten letters to the defendant and others "trying to tackle" the damage caused by the matter complained of. 4. The plaintiff also gave evidence of a conversation he had with the defendant in which he said, "You do a lot of damage saying things like that" and, "You've got to retract all this stuff, you just can't go around saying it". The defendant replied, "Did you find anything in your motel?" The plaintiff later made inquiries of his motel staff but the only documents or other items they could find in his motels were two police charge sheets which were found in one of the rooms. 5. The plaintiff also tried to find out who had accused him. He asked the defendant, "What's your evidence?" and the defendant said, "Somebody told me" but declined to name who that person was. The impact of the matter complained of 1. The plaintiff said that after the publication was made, "We started copping it". A website devoted to the discussion of crime, namely the Nambucca Valley Crime Information, took up and republished these allegations. His children came to him in distress and he told them, "This is my problem, I'll handle this". He received telephone calls at the motel, some of them are anonymous, which included calls from people "asking me for sex". As is noted above, attempts by Mr Ledger (who had been a fellow member of the Chamber of Commerce) to raise these issues at a public meeting had been unsuccessful. 2. The plaintiff continued to ask the defendant to publish a retraction. He said that the defendant claimed only to have "only three hundred" followers, but that he replied that the number of people who would knew about it would be up in the thousands and could be hundreds of thousands of people. The defendant's only answer to this was that he did not see how he would be able to contact all those persons. The plaintiff said that the defendant removed his original post but did not comply with the other requests that he made for publication of an apology or provision of the evidence relied upon so that he could discover the identity of the person who had made these accusations to the defendant. 3. Members of the Nambucca Heads community continued to ask what was happening about these allegations and the plaintiff said that he was "waiting for the young man to retract". The plaintiff's family suffered abuse and his adult children were anxious for the welfare of themselves and their children. 4. The plaintiff said that it was at this stage of these events that he was first assaulted. He said that this assault was carried out after an unknown person called out to him, "Are you the Blue Dolphin paedophile?" It was very hard to understand the plaintiff's evidence on this issue, as he was unable to describe this event any further, stating that, "You go into shock". 5. A much more serious attempt on the plaintiff's life occurred on 8 January 2016, when the plaintiff was hit from behind and beaten unconscious. While the plaintiff said he has no evidence, he believes that this second beating, which resulted in him remaining in hospital for six months, was as a result of his businesses being named in the matter complained of. He said that he had a visit in hospital from a man who called himself a "crusader" (although vigilante might be a better description) in the local area, who had several names but was known to the plaintiff as "Hector". "Hector" said to him "Ken, I am surprised to see you still alive". "Hector" told the plaintiff that he believed the attack had occurred because the attackers thought the plaintiff was a paedophile. "Hector" went on to apologise for it. 6. The plaintiff's evidence in relation to this second assault was just as difficult to follow, and he was, to my observation, in a state of great distress throughout. I will not set out a description of his injuries beyond noting that these were very serious indeed. The defendant called for medical reports on his condition but did not cross-examine on their contents. The impact of this litigation on the plaintiff 1. The plaintiff said that he was "stunned" and upset to learn that the defendant had filed a defence seeking to claim that what he said was true, and that the imputations were not true. The circumstances in which these untrue allegations had been made added to the hurt. He was concerned about the commencement of these proceedings, as people had told him they were going to run him out of town, and they meant it. He said that he would be the subject of further attacks and that these persons had already been in touch with the radio stations and on television. The plaintiff in cross-examination 1. Most of the defendant's cross-examination of the plaintiff related to issues said to be in mitigation of damages, but which were in fact matters attempting to support the struck-out defence of justification. I permitted much of this cross-examination to occur under objection, and Mr Dibb has not asked me to rule on those objections. I formally note that, while I have not excluded that evidence, the irrelevant and often inflammatory nature of the cross-examination did not assist the defendant's case. Some of the questions, such as demanding that the plaintiff produce medical evidence of his infirmities (which was provided but not the subject of questions) and allegations which amounted to a repetition of the libel, were referred to by Mr Dibb as being relevant to the issue of aggravated damages. 2. In cross-examination, the plaintiff adhered to his evidence that he had never been in trouble with the police before by reason of personal wrongdoing, that any association he had had with the police related to conduct on the premises by a guest. The only occasion of significance was on 14 May 2014 when he contacted the police about a woman who had placed a "bomb" on the premises. (I note, however, that this is two months after the matter complained of.) He said that there had been occasions when the RSL Club had been holding a discotheque and the occasion had become rowdy, but that police had come to his premises only for the purpose of looking at the CCTV to see if there had been any activities outside the club. 3. The plaintiff answered questions about what he wanted by way of corrections by saying he thought the defendant was a "poor silly man with the wrong information who had to correct it". He had wanted the defendant to correct it and publish an apology, but this had not occurred. He said he had only gone to see a solicitor only after he had written ten letters, including correspondence with his local Member of Parliament and Police, when all he received was "an E-number" and he felt that he had no other alternatives other than to sue. 4. The plaintiff repeated his denial any connection with any organisation for the relocation of parolees. His connection with the Department of Community Services had stopped when the Coalition government had been elected and they had stopped funding (which I understand was prior to publication of the matter complained of). Conclusions concerning the plaintiff's evidence 1. The plaintiff was an impressive witness who gave evidence frankly and did his best to answer questions, even though he was in extremely poor health and was frequently distressed and confused. Comparing his struggle to express himself with the fluency of his letters to the defendant (see the contents of Exhibit 1 above), his abilities at all levels have been severely compromised by the severity of the injuries he suffered in January 2016 and for which he has been in hospital for the past six months. 2. I unreservedly accept the plaintiff's evidence that he is an upright member of the community who ran his businesses in accordance with the law. This Facebook attack was made on him out of the blue, with no prior inquiry of any kind by any person. It has had a devastating effect on him. While the evidence of any connection between the physical attack on the plaintiff and the matter complained of is slender, I am satisfied that the plaintiff believes there is a connection, and that this belief (which I consider to be reasonable in the circumstances) adds to his hurt to feelings. 3. The plaintiff called three witnesses in relation to identification and damage to reputation. Mrs Teresa Rothe 1. Mrs Teresa Rothe, the plaintiff's wife, said that she learned of the matter complained of when a person whom she described as "a gentleman unknown to me" rang to say there was a publication that her husband was a paedophile and the motel was being used for paedophile saying, "Is it true?" Mrs Rothe went straight onto the Facebook website and read the publication. She made a copy of it and telephoned her husband in Sydney, as she identified the person about whom the publication was made as being her husband. 2. In response to a question as to why she identified her husband, she said that the matter complained of referred to the Nirvana Village Motel, the Blue Dolphin Motel and to the flats above the Indian restaurant and "he is the owner of all those properties". She said he was very distressed, and also described him as "angry". She said that she had worked at the Blue Dolphin Motel for 13 years and that they had "never had any known paedophiles or criminals" staying at the motel. The falsity of these accusations added to her husband's hurt. 3. Mrs Rothe said that prior to the publication of the matter complained of the plaintiff had a very good reputation as a school teacher, as a deputy principal for eight years, as a member and office holder in the local Chamber of Commerce and generally for honest reputable behaviour as a businessman. He was required to pass police checks, as was she, because for the past six or seven years they had been involved in dealings with the Department of Community Services, which included arrangements for the caring of their grandchildren. I consider this reference to the plaintiff's reputation as a school teacher at a Nambucca Heads public school is also relevant to identification, given the reference to a school in the matter complained of. 4. In cross-examination, the defendant put to Mrs Rothe that she was only able to access his Facebook page because her grandson, Joseph, was a friend of his on Facebook. Mrs Rothe replied she was not a friend of Joseph on Facebook and that she had no difficulty getting onto the defendant's Facebook page because it was in the public domain. 5. Mrs Rothe was also questioned by the plaintiff about living in Melbourne with her grandchildren while the plaintiff had been in hospital in Nambucca Heads. She was asked whether their relationship was a business relationship, which she denied. She said that she lived in Melbourne for the safety of her grandchildren, because she could be close to her family, because their lives were in danger. There had been two attempts on her husband's life and there had been threats of more. She had moved herself and the grandchildren in their care to Melbourne for these reasons. This was a devastating answer to a question which the defendant had no need to ask, given its intrusive and personal nature. 6. Mrs Rothe was an impressive witness. I accept her evidence that she moved to Melbourne because of fears for her own wellbeing, as well as that of her grandchildren. It is clear from her evidence that the plaintiff and his wife had suffered a major disruption not only of their marital but their business life, and that the impact of this publication on their lives has been extremely severe. Mrs Helena Hammell 1. Mrs Hammell gave evidence that she had known the plaintiff for 44 years, from the time when she had first rented a property that the plaintiff owned in Seven Hills. She described the plaintiff and his wife as "very good friends", and said that their children were still friends. 2. Mrs Hammell had known the plaintiff when she was a teacher, and noted that he had been selected as "one of the best" and sent to Malaysia as a representative of Australia, having been selected out of 700 other teachers. He enjoyed a good reputation in the community generally, both in the Hills District and, after he moved, in Nambucca Heads. She knew he had been assistant principal at a Nambucca Heads public school, which I consider relevant to identification. 3. Mrs Hammell's husband had been employed as a manager in one of the motels and Mrs Hammell had joined him. From her experience of working in the Blue Dolphin Motel, she knew that the contents of the matter complained of were untrue. 4. Mrs Hammell said that, prior to the matter complained of, the plaintiff had been well-known in the community and respected because of his Chamber of Commerce and other work. She had often seen people come up to him in the street to speak to him, whether to say hello or about some business matter, in a way that indicated he was a well-known resident. She described occasions when she went to the RSL Club or shopping (for example, at Woolworths) with him when these events occurred. 5. Mrs Hammell was emphatic that there had never been any suggestion, prior to publication of the matter complained of, that the plaintiff or his businesses had any links with paedophilia of any kind, or that he permitted paedophiles or prisoners on release to stay in the motels. She had seen the publication on Facebook and had been shocked by the allegations, which were untrue. She had identified the plaintiff because he was the owner of the businesses mentioned. After publication of the matter complained of, she observed the plaintiff on a number of occasions to be "very distressed" and "devastated". 6. In cross-examination, it was put to Mrs Hammell that she had a very close relationship with the plaintiff; the inference being that she was in some way biased. Mrs Hammell replied that she was a "good friend" of the plaintiff. However, that does not render her evidence unreliable or dishonest. I accept her as a witness of credit. Ms Lisa Patterson 1. Ms Patterson gave evidence by telephone in accordance with my orders of 26 July 2016. 2. Ms Patterson's association with the plaintiff is of a more recent nature than the other witnesses, in that she first met him on 25 September 2013, when she commenced employment part time in the Blue Dolphin Motel. She works for him "sometimes", as a part-time employee. 3. Ms Patterson saw the publication on Facebook and was so concerned she rang the plaintiff about it. When asked why she had rung the plaintiff, she said that she was very concerned that the publication referred to the motel at which she was employed part time, because it was totally untrue and it "really upset me". She was asked whether the plaintiff was associated with the other named premises, namely the Nirvana Village Motel, and the apartments above the Indian restaurant. She replied that she did not relate the evidence to the plaintiff, but to the other motels, which was later submitted by the defendant to be evidence that she had not identified the plaintiff. However, the more likely explanation, in my view, is that she was taking a literal reading of the matter complained of and identifying the other two businesses as having been named. It was clear from the rest of her evidence that she had identified the plaintiff as being the person about whom the matter complained of was published, and this was why she had telephoned him. 4. Ms Patterson said, in relation to the plaintiff's reputation, prior to the publication of the matter complained of, there had never been any assertion of any kind with association with paedophiles. 5. Ms Patterson was asked whether she had ever had any dealings with police at the motel and replied that she had had to ring the police on an occasion in 2016 when the plaintiff was away sick in hospital. She said that was the only time when she had to call the police and related to a person staying in the premises, not to the plaintiff or to staff. That occasion was, of course, long after the matter complained of was published. The defendant's evidence 1. As the defendant was self-represented, I invited him to tell the court his name and address and the circumstances in which he had published the matter complained of. 2. The defendant said that on the day that he had posted this material, he was working with a long-time friend and had discussions which alarmed him. This discussion related to what he called a "crime spree" in Nambucca Heads within the past year. He also had a conversation with a person he described variously as "a lady", "a single mother", "a mother" and "a mother of the community", whom he identified as Ms Melissa Ledgend, who had a brother-in-law who was an ex-police officer whose name was "Glen". Either Glen or Ms Ledgend's mother (who worked in a solicitor's office) had told Ms Ledgend that three to four paedophiles had recently been relocated in Nambucca Heads in motels under the guise of being given emergency accommodation. In fact this was a conspiracy between the local council and the government to put paedophiles back into the community, and these persons had been sent to Nambucca Heads because "we are one of the lowest socioeconomic areas" and, for this reason, these dangerous criminals would "blend in well" as "we [the residents in the area] won't object". The defendant said that this had only just recently happened, in that these people had been "just relocated" in the last few days or weeks. 3. The defendant said that when he asked Ms Ledgend where these paedophiles were located, she had told him that they were located at the Blue Dolphin Motel, the Nirvana Village Motel and in the apartments above the Indian restaurant. The defendant was concerned because there was a bus stop outside one of these places of accommodation, as children, including his own children from his two prior relationships, used this particular bus stop. He told the court that "I'm a father" and that it was his duty to warn everyone in the Nambucca Heads community, which he proceeded to do by communicating this information through Facebook. 4. The defendant also said he was concerned that Ms Ledgend had told him that one of these paedophiles had "just tried to get a job at her public school", namely the school her children attended. Fortunately, the principal had discovered in time and had "basically removed" this paedophile from the school. He was concerned as to how the council could allow such activities to occur and this was also the reason why he thought it was important to put a warning to everyone on his Facebook page immediately. 5. The defendant said that he had made "no inquiries" as to the accuracy of any of this information and had "no other material" prior to posting this information. 6. When I asked if there was anything further he wished to say in examination-in-chief, he said "I just want to say I hope Mr Rothe gets better". He denied that there was any link between what he said on his Facebook page and Mr Rothe's assault, because he denied that Mr Rothe could be identified or that the imputations were conveyed. He also denied that his Facebook could be read by anyone other than persons who were his Facebook friends. 7. In cross-examination, Mr Dibb put to the defendant that his Facebook page was open to the public. He repeated that only his Facebook friends could read what he had posted. Mr Dibb put to him that he had not had any "friend request" from the plaintiff or his wife, or from Ms Lisa Patterson and/or Mrs Helena Hammell, all of whom had been able to read the publication without difficulty. The defendant said that these persons had all been able to access his account by reason of his being a Facebook friend of the plaintiff's grandson (a 13 year old boy). 8. I do not accept this evidence. First, there is no evidence that Ms Patterson or Mrs Hammell had any connection with the plaintiff's grandson. Second, I accept Mrs Rothe's evidence that she was not a "Facebook friend" of her 13 year old grandson. Third, the defendant gave only the most general evidence about how many Facebook friends he in fact had, and there is no evidence he was a Facebook friend of the plaintiff's grandson at the time of publication of the matter complained of. 9. All of the defendant's evidence about his Facebook account was vague. For example, he claimed to receive about 10 to 15 new friend requests every month but could not say how many Facebook friends he had at the time, or even at the present day, even after consulting his Facebook account on his mobile phone. He eventually told the court thought that he had currently 300 Facebook friends. However, when asked if that meant that he would have had less than 100 friends two years ago he replied "I can't say". 10. The defendant denied that the post had been taken up by the Nambucca Valley Crime Information website, but then sought to argue that it was no longer there as it had been taken down. He initially denied that the post was reposted or shared by others (which meant that all their friends could access it), but then admitted that he accepted the plaintiff's evidence that the post that he placed onto Facebook had been shared 322 times. This would mean that the distribution went beyond his individual Facebook friends. The defendant claimed that he had asked Facebook for details of the extent of publication but did not receive them. 11. The defendant was asked about the plaintiff's evidence and to accept that what he said about accepting only customers referred to him by the Department of Community Services for Crisis Housing was true. The defendant's answer to this and most other questions was to be combative. He either denied that the plaintiff's evidence was as presented, or answered with irrelevancies. When asked about the circumstances in which he instructed his solicitor to plead the defence of justification, he blamed his solicitors for what had been pleaded, saying that he had been badly served by them, and that they were incompetent. 12. In the course of his closing submissions, the defendant was somewhat more informative about his reasons for publishing the matter complained of. He explained the need for his having to post this material as being because there was a crime wave surging through Nambucca Heads which police and other officials were powerless to stop. He said that he had spoken to the police, social workers and others about these events and asked them to come to court to give evidence, but that these people had told him that they risk losing their jobs or criminal prosecution if they came forward. He described himself as a "whistleblower" and said he feared for a community where people were afraid to speak out to warn about dangerous paedophiles in their mix. On a number of occasions, both in his evidence and in his closing submissions, the defendant repeated the libel, saying that paedophiles were indeed being lodged at these premises as part of this greater conspiracy between the plaintiff and persons in authority. 13. The defendant was an unimpressive witness. I particularly note: 1. His answers in cross-examination were inconsistent with the particulars given in his pleadings in circumstances where Mr Dibb submitted that his oral testimony was a recent invention. When confronted with those inconsistencies he blamed the legal practitioners he had consulted, saying they were incompetent and did not follow his instructions. 2. On occasion his responses to questions were little more than speeches about the importance of his role in the community as a whistleblower and crime fighter. 3. The questions he put to the plaintiff and his witnesses in cross-examination were at times hurtful and intrusive; for example, he demanded proof in the form of medical records about the plaintiff's injuries and he asked the plaintiff's wife about her married life with the plaintiff. 4. He refused to answer certain questions, such as giving the identity of the police officer who was the source for Ms Ledgend's information. 1. I would not be prepared to rely upon any of the defendant's evidence unless that evidence supported the plaintiff (the best example of this being his tender of Exhibit 1). Identification, defamatory meaning and extent of publication 1. I first consider the issues defamatory meaning (and whether the plaintiff can establish by extrinsic facts that he is the person about whom any defamatory imputations are conveyed) and the extent of publication. The capacity of the imputations 1. The defendant effectively conceded that imputation (b) was conveyed and that both (a) and (b) were defamatory, restricting his submissions to the issue of identification and to a denial that imputation (a) was conveyed. 2. Whether any imputations are conveyed depends substantially on the issues of identification and extrinsic facts. I shall consider this issue first. Identification 1. As he has set out in his letter to the defendant (Exhibit 1), the plaintiff claims that he is identifiable as the proprietor of these businesses, either as a sole or majority owner. The submission the plaintiff put to the defendant on this issue in this letter is a powerful argument in favour of his being identified, not least because of the letterhead above it which confirms that he is the proprietor of all the businesses in the matter complained of. 2. The defendant submitted that the only identification was of the businesses and that any imputations conveyed were imputations about those businesses, and not the person or persons who ran them. 3. The artificiality of such an argument is explained by the New South Wales Court of Appeal in Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202 at [63], citing Simpson J in Parras v Channel Seven Sydney Pty Limited (Supreme Court of New South Wales, Simpson J, 14 September 2001) at [7]-[11]: "7. The defendant's submission was that, there being no evidence that any recipient of the matter complained of other than individuals who were directors of Hotel Pursuits had identified Hotel Pursuits as the subject of the broadcast, there was no evidence to go to the jury on identification of that company … 9. … The submission, it seemed to me, was founded upon a misconception. The misconception was that, for the company to be identified as the subject (or one of the subjects) of the broadcast, or as an entity referred to in the broadcast, it was necessary for it to establish that some person (other than one of its own directors or employees) identified it by name. Given the extent to which businesses are operated by companies, that seemed to me to involve a very artificial exercise. A company conducting a business may well be defamed in the minds of recipients of a publication (and its business substantially damaged), even though those recipients are wholly unaware of its formal title. It is the substance of the identification, not the technicality, that is important. If a company is identified only as 'the company that conducts business X' that is, in my opinion, sufficient. It would be quite unjust and I do not believe it is the law, that a business conducted by a company might be seriously damaged by a defamatory action, but be unable to recover damages because it could not establish that any recipient knew the name of the company. 10. The principle is no different to that which applies to individuals. An individual may be identifiable by sight, or by address, or by occupation, or perhaps by other means. For example, a statement that 'the man who lives in that house is a paedophile' is sufficient to identify the occupant of the house as the subject matter of the statement, even to those who do not know his name, but who know him by sight. A statement that 'the president of the Pearl Bay Girl Guides has been stealing the club's funds' will identify that person to those who know her by sight or by position, but not by name. 11. In this case, once there was evidence identifying the Soho Bar as the subject matter of the broadcast, there was, in my view, also sufficient evidence to identify any company involved in its management as included in the subject matter of the broadcast. …" 1. The evidence of the plaintiff that he is the proprietor was confirmed by his wife and Mrs Hammell. It is clear from these witnesses, and from Exhibit 1, that the identity of the plaintiff as the proprietor of all three of the businesses referred to in the matter complained of was not only known to the witnesses who gave evidence but to anyone who ever received a letter from the plaintiff, as well as to many members of the local community, Chamber of Commerce, motel staff and guests and tradesmen dealing with the plaintiff who received correspondence on the plaintiff's companies' letterhead. 2. It is relevant to take into account, when determining the imputations conveyed, that all the businesses operated by the plaintiff are referred to in the matter complained of as the accommodation places harbouring these paedophiles. It would not be necessary to be avid for scandal to read into this fact that the plaintiff's conduct in using all of his businesses for this nefarious purpose was not merely commercial but for a more sinister reason, the more so because this has apparently been done secretly. 3. In addition, the matter complained of states that one of these paedophiles tried to get a job at the local school, another factor capable of pointing to the plaintiff, given the identification evidence of his employment as deputy principal at the local school. 4. Finally, the matter complained of refers to "bus stops" being "right outside these hotels for our children", the inference being that these are prime spots for paedophiles to find children to lure back to the hotels. The ordinary reasonable reader would take into account the fact that the plaintiff's three businesses were all accommodation places with bus stops outside them and suspicious as to why this would be the case. 5. Taking into account the identification evidence heard by me in the course of these proceedings, I am satisfied that the plaintiff is identified by reason of these extrinsic facts to the persons knowing those facts. Capacity of the matter complained of to convey imputations (a) and (b) 1. The crucial words "Pedophile [sic] warning" at the opening of the text do not restrict the allegations of paedophilia to the persons who have been relocated, and are a general warning of paedophile activity. 2. In the context of social media, the ordinary reasonable reader indulges in loose thinking and reads between the lines. That is particularly the case in circumstances like the present, where the degree of suspicion and innuendo is high. The sensationalised tone of the matter complained of, with its hints of secret networks helping paedophiles, the urgent demand for readers to share this post and the urgent tone and crude language ("fark" [sic]) all convey that a nest of paedophiles planning infiltration of the community is being planned and must be exposed urgently to avoid children being harmed by them. 3. In these circumstances, where the ordinary reasonable reader knows the identification facts, the matter complained of would convey the imputation (a), namely that the plaintiff is himself a paedophile. 4. The defendant made no submissions as to imputation (b) or its alternative meaning, imputation (c). Neither did counsel for the plaintiff. I formally note that, while this imputation inexplicably fails to note the accommodation above the Indian restaurant, this imputation is nevertheless conveyed. 5. There being no dispute as to defamatory meaning, I next consider the issue of extent of publications. Extent of publication 1. The particulars of publication are pleaded as follows: "(a) The defendant wrote the words of the matter complained of; (b) The defendant uploaded the matter complained of onto Facebook where it remained until approximately late April or early May 2014; (c) The matter complained of was republished by other Facebook users and the defendant is liable for such republication because it was intended by the defendant or, alternatively, was the natural and probable consequence of the original publication by the defendant; (d) The matter complained of contained the words "… share this post please"; (e) The matter complained of was republished numerous times. There has been at least 322 'shares' of the matter complained of by 30 April 2014." 1. The defendant did not challenge any of these issues except (c), arguing that only persons who were his Facebook friends could read the matter complained of, and that those persons could not and did not identify the plaintiff. For the reasons set out in my analysis of the evidence as set out above, I do not accept those submissions. 2. The allegations made about the plaintiff percolated into the wider community. Counsel for the plaintiff tendered a review from a visitor to the TripAdvisor website, where someone named "Daniel W" of Nambucca Heads, gave a negative review in March 2014 after a trip with his family, stating that: "…as a Nambucca local it is also well known around town that this motel is used as a sort of halfway house/crisis care refuge and has housed many a released sex offender in its time." 1. The plaintiff responded to this allegation online, by posting a reply on TripAdvisor noting that there were no registrations in any of his family rooms in March and denying the "sex offenders" allegation (Exhibit C). 2. The plaintiff records, in Exhibit 1, that many people asked him about the matter complained of, and similar evidence was given by the other witnesses in these proceedings, as is set out above. All of this evidence points to the matter complained of being widely distributed in the Nambucca Heads area. The defences 1. The defendant pleads the following defences: 1. Defence of qualified privilege at common law; 2. Defence of statutory qualified privilege pursuant to s 30 Defamation Act 2005 (NSW); 3. Defence of honest opinion pursuant to s 31 Defamation Act 2005 (NSW); and, 4. Defence of triviality pursuant to s 33 Defamation Act 2005 (NSW). 1. The defendant has also brought a plea in mitigation of damages. I will now consider each of these in turn. Defence of qualified privilege at common law 1. The plaintiff provided the following particulars (at paragraph 12 of the Further Amended Defence) to establish the defence of qualified privilege at common law: "The defendant had a duty to publish and/or an interest in publishing the words by reason of the following: A. The defendant was, and is, at all material times, a resident of Nambucca Heads. B. The defendant was, at all material times, a "youth worker", in that he acted as a trainer and mentor for local youth. C. The defendant had, and has, children who reside in Nambucca Heads. D. For about 12 months, if not longer, prior to the publication of the matter complained of, there had been media articles and general community discussion concerning: (i) Convicted criminals, including paedophiles, being housed in or around Nambucca Heads following their release from prison; (ii) Increased crime rates in and around Nambucca Heads; (iii) The prospect if not the reality, that the increase in crime was attributable, in full or in part, to convicted criminals being housed in or around Nambucca Heads following their release; and/or (iv) Safety issues as a result of such matters. (collectively referred to as "the topics") E. By reason of the matters pleaded in A-D above, at the time of publication of the words, the defendant had a duty to inform his "Facebook friends" of the topics and/or his "Facebook friends" had an interest in receiving information on the topics. F. The topics were a matter of interests to the residents of Nambucca Heads. G. The defendant relies on both an interest and an apparent interest." 1. Most, if not all, of these facts are incorrect. The defendant's oral evidence was that he had learned of these events on the day of publication if not shortly before, and that he had made no inquiry as to their accuracy. There had been no media articles or general community discussion about convicted criminals being housed in the Nambucca Heads area and there was no evidence that there had been any rise in crime rates (particularly paedophilia crimes) as a result. The defendant's Facebook friends having an interest in receiving this information were not identified, although the defendant did identify the plaintiff's 13-year-old grandson as one of his Facebook friends, and indicated many other children were on Facebook with him as well. These children had no interest in receiving this frightening information, which could have discouraged them from using the school bus as well as cause them to be fearful in the course of using public streets and public transport. 2. The plaintiff is not a trained youth worker, but an electrician. Any work he has done with youth is of a voluntary nature. If, in the course of doing so, he had discovered some issue of concern in relation to paedophilia, it was his duty to report it to the appropriate authorities, not to publish a generalised smear of the plaintiff and his businesses on Facebook. 3. The remaining issue is the basis upon which the common law qualified privilege claim is brought for a publication not only made to the world at large but made with the request that the recipients share it further. If these particulars represent an attempt at a Lange defence (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520), as Mr Dibb fears, then any such claim must also fail. The reference to "council" in the matter complained of is misplaced as councils play no role in the accommodation of paedophiles and the correct housing for paedophiles, whether released from gaol or otherwise, is not a government or political issue. 4. I am satisfied that the matter complained of was not published on an occasion of qualified privilege. 5. In the event that I have erred in this finding, I accept Mr Dibb's submissions that his client has discharged the onus of proof as to malice. The defendant's acknowledged recklessness in publishing such material without any prior inquiry of any kind (for which he said "I know now") and his publication of the matter complained of indiscriminately to the world at large, without regard to the identity of the persons defamed or the damage that would result, are of such an extreme kind that they amount, on the facts of this case, to evidence of malice. Defence of statutory qualified privilege pursuant to s 30 Defamation Act 2005 (NSW) 1. The defendant alternatively relies upon a defence pursuant to s 30. 2. The particulars pleaded (at paragraph 13 of the Further Amended Defence) to establish the defence of statutory qualified privilege pursuant to s 30 Defamation Act 2005 (NSW) are as follows: "A. The defendant repeats the particulars set out in paragraphs 12A-G above. B. The conduct of the defendant in publishing the words was reasonable in the circumstances in that: (i) The words questioned, and were designed to question, a decision of Council, which was relevant to the topics. (ii) The words questioned, and were designed to question, the use or suitability of the properties for the relocation of paedophiles, particularly as they were close to a bus stop, one used by children, which was relevant to the topics. (iii) The defendant did not name, in the words, the plaintiff (or, as the defendant will submit, the words to [sic] not otherwise identify him) and he merely referred to the properties. (iv) The purpose of the publication was to draw to the attention of any readers information on the topics, rather than anyone who was concerned with or involved in the provision of accommodation to convicted criminals who were residing in the area. (v) The defendant was aware of the topics, as, likely, were most if not all the readers." 1. Section 30 Defamation Act 2005 (NSW) provides: "30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward." 1. There are many factual errors in the particulars relied upon. For example, there was no decision of council, as the defendant now acknowledges. The matter complained of did not question but accuse, as the opening words ("Pedophile [sic] warning") confirm. Where particulars of identification apply, the failure to identify a person by name in the matter complained of is irrelevant. 2. As to the checklist in s 30, this is one of those rare cases where the defendant cannot satisfy most of the requirements, including giving the other person's side of the story, making inquiries beforehand and relying upon a reliable source. The defendant's refusal to name the police officer who allegedly is the real source of the story is similarly fatal to any qualified privilege defence. 3. The s 30 defence also fails. Defence of honest opinion pursuant to s 31 Defamation Act 2005 (NSW) 1. Section 31 Defamation Act 2005 (NSW) provides: "31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the "commentator"), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1)-the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2)-the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3)-the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on "proper material" if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material." 1. This defence must fail in limine as the imputations are statement of fact and not opinions. 2. Nor has proper material for the opinion been provided. The particulars of proper material were pleaded as follows at paragraph 14 in the Further Amended Defence: "A. The words, in so far [sic] as they carried the imputations as pleaded in the statement of claim, contained expressions of opinion of the defendant on the topics ("the opinion"). B. The opinion related to a matter of public interest, and the defendant refers to and relies upon the particulars set out in paragraph 12 above. C. The opinion was based on proper material and on no other material or, alternatively, was based to some extent on proper material and represented an opinion which might reasonably be based on that material to the extent to which it was proper material. Particulars of proper material (i) In relation to the imputations pleaded in paragraph 3(b) and 3(c) of the statement of claim, the opinion was based upon material that was substantially true, in that it was based upon information provided by Melissa Ledgend that: (a) Nambucca Heads had been used as a dumping ground for paedophiles. (b) About three to four paedophiles had been relocated to Nambucca Heads. (c) The properties were providing accommodation to the paedophiles who relocated to Nambucca Heads. (ii) In relation to the imputations pleaded in paragraphs 3(b) – 3(c) of the statement of claim, the opinion was based upon proper material that was published on an occasion of qualified privilege and was expressed on an occasion of qualified privilege, and the defendant refers to and relies upon the particulars set out in paragraph 12 above." 1. All of these particulars are simply untrue. 2. Finally, while the housing of released prisoners may be a matter of public interest, that does not entitle the defendant to raise specious concerns about danger to children because of the proximity to public transport. Defence of triviality pursuant to s 33 Defamation Act 2005 (NSW) 1. Section 33 Defamation Act 2005 (NSW) provides: "33 Defence of triviality It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm." 1. The defendant pleads the following particular for his defence of triviality (paragraph 15 of the Further Amended Defence): "On a natural and ordinary meaning, the average reader was unlikely to think less of or shun the plaintiff as a result of reading the words but, to the contrary, would have thought about, or thought more about, the appropriateness or otherwise of paedophiles being relocated (following their release) in Nambucca Heads and particularly in a property close to a bus stop used by children and/or would have thought about, or thought more about, the appropriateness or otherwise of any Council decision affecting the right to use a property for that purpose." 1. The circumstances of publication of the matter complained of on a social media platform, couched in intemperate language, were certain to cause harm. The seriousness of the imputations and the vast reach of social media render any reliance upon this defence futile. Conclusions concerning liability 1. All defences have failed and the plaintiff is entitled to damages. Damages 1. An award of damages for defamation serves three purposes: 1. It provides reparation for the harm done to the reputation of the person defamed; 2. It gives consolation for the personal distress and hurt caused to the plaintiff by the publication; and, 3. It serves to vindicate the plaintiff's reputation. 1. The first two of these purposes are frequently considered together, whereas vindication, the third element, looks to the attitude of others. The sum awarded must therefore be at least the minimum necessary to signal to the public the vindication of a plaintiff's reputation. While these purposes overlap in reality, in that a single amount is awarded for all three, each is of assistance. 2. Section 34 Defamation Act 2005 (NSW) provides: "34 Damages to bear rational relationship to harm In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded." 1. This section provides that the amount of damages awarded must have "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded". The nature and extent of this relationship is explained by Applegarth J in Cerutti v Crestside Pty Ltd [2014] QCA 33 at [26]-[36]: "[26] These three purposes "no doubt overlap considerably in reality". A single amount is awarded by way of reparation, consolation and vindication. [27] Section 34 of the Defamation Act 2005 (Qld) ("the Act") states that in determining the amount of damages to be awarded the Court is to ensure that there is "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded." In Roberts this Court ruled that when s 34 speaks of "harm sustained by the plaintiff" it comprehends the range of harms to the plaintiff which, at common law, the three purposes seek to compensate. Earlier, in discussing the term "harm" in s 46 of the Defamation Act 1974 (NSW), McHugh J remarked that it is not a term of art in the law of defamation or the law or torts. But in its statutory context "it must include such matters as effect on reputation, hurt to feelings, distress, worry, humiliation, fear, anger and resentment as the result of defamation." One purpose of s 46 was to prevent the plaintiff from recovering exemplary damages and to prevent the plaintiff from receiving damages that did not have a restorative effect. In that context, McHugh J observed that "damages to vindicate the plaintiff's reputation are damages for relevant harm, and so are damages for the failure to apologise." [28] As for harm to reputation, Windeyer J in Uren v John Fairfax & Sons Pty Ltd said: "It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed." The passage in which these words appear has been followed many times and recently was applied by this Court. [29] To recover damages for defamation a plaintiff need not call witnesses to say that as a result of receiving the defamatory communication they thought less of the plaintiff. The fact that witnesses who are called by a plaintiff say that the defamation did not alter their opinions of the plaintiff does not preclude an award of damages for harm to reputation. It simply means that some people did not believe the defamation to be true. [30] Generally speaking, the cause of action in defamation concerns the tendency of an imputation to lower the reputation of the plaintiff. Unlike the cause of action in negligence, proof of loss or damage is not an element of the cause of action. Instead, the recovery of more than nominal or moderate damages by way of reparation may require proof of harm to reputation. The nature of the defamation and the extent of publication may permit some harm to reputation to be inferred. In McCarey v Associated Newspapers Ltd (No 2) Diplock LJ stated that "the jury was perfectly entitled to infer, even without specific evidence," that some change in the attitude of persons towards the plaintiff was bound to occur. The same inference may be open to a judge who is required under the Act to assess damages. [31] One of the distinctive features of the common law of libel is the fact that it was not necessary for the claimant to prove that "publication of defamatory words had caused him damage because damage was presumed". Basten JA in Bristow v Adams analysed authorities which support the proposition that damage is presumed. Such a presumption was found to exist in Australian law. It was not necessary for Basten JA to determine whether the presumption is irrebuttable. I respectfully follow his Honour's analysis, with which Beazley JA and Tobias AJA agreed. [32] In addition to providing reparation for the harm done to the plaintiff's reputation, an award of general damages should provide consolation for the personal distress and hurt caused to the plaintiff by the publication. Windeyer J in Uren stated: "Compensation is here a solatium rather than a monetary recompense for harm measurable in money." Lord Diplock observed in Cassell & Co Ltd v Broome: "The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him." McHugh J, a judge of great experience in this area of the law, observed that the damage which a defamation produces is ordinarily psychological rather than material: "It affects the feelings, sense of security, sense of esteem and self perceptions of the person defamed. As a natural consequence, a defamation excites the anger and resentment of the victim and often enough generates a desire for retribution." [33] I return to the question of solace by way of an award to console a plaintiff's feeling of indignity or outrage that arises in circumstances in which the person has been maliciously defamed or otherwise is entitled to aggravated compensatory damages. For present purposes, it is sufficient to observe that a plaintiff is entitled to compensation as a solatium for a range of injured feelings. Brennan J in Carson stated that they included "the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff". The general law provides monetary compensation for feelings of indignity. Higgins J in 1928 observed that it rests on the theory that "the jingling of the guinea helps the hurt that honour feels". Windeyer J in Uren noted that this convenient Tennysonian explanation is not altogether convincing. One reason is that the satisfaction that the plaintiff gets is that the defendant has been made to pay for what he did: "Guineas got from the defendant jingle more pleasantly than would those given by a sympathetic friend." [34] As for vindication, as already noted, it looks to the attitude of others to the plaintiff: the sum awarded must be "at least the minimum necessary to signal to the public the vindication of the [plaintiff's] reputation". The gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the plaintiff. An award must be sufficient to convince a person to whom the publication was made or to whom it has spread along the grapevine of "the baselessness of the charge". [35] One aspect of vindication by way of a damages award is that the plaintiff, in pursuing a remedy through the justice system, takes what may have been a publication to a limited number into the public domain. In such a case, the plaintiff in pleading and litigating the defamation necessarily engages in self-publication of what ultimately proves to be an indefensible defamation. In the meantime, the defamatory allegation is the subject of open court proceedings, which may be reported in the media or otherwise become known by word of mouth. This is in addition to the ordinary grapevine effect in which the defamation is republished along the "grapevine" in circumstances where that is the natural and probable consequence of the original publication. The fact of a defamation action may become known, particularly in a provincial city or town, and the substance of the defamatory imputations circulate in sections of the community. An award by way of vindication should be effective to convince persons who have heard of the allegation, through media reports of the proceedings or otherwise, that the defamatory imputation is untrue. [36] Professor Fleming described the preoccupation of defamation law with damages as a "crippling experience over the centuries", but it is the remedy which has been inherited in this country. Unless and until the legislature creates other forms of remedy which pass constitutional muster, it remains the principal remedy by which indefensible defamations are redressed." 1. Opinions vary as to the usefulness of comparable awards. While comparable awards in other circumstances may be of assistance, for the reasons set out by Applegarth J at [46]-[57], the principal source for the assessment of damages is of course the evidence in the proceedings. 2. As to the issue of comparative awards, I propose to restrict my consideration of these to the awards made for similar imputations, for awards relevant to social media, and to the particular kind of allegation, namely an allegation of criminal conduct made by a stranger with no evidence. 3. Where damages have been awarded for allegations of paedophilia or facilitating paedophilia, the size of the award in each case has taken into account the extent of publication as a significant factor. In RJ v JC [2008] NSWDC 217, where the matter complained of was published to one person and known only to the members of the plaintiff's immediate family, the award of damages was $30,000. By contrast, in Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674, where an imputation of sexual impropriety with boys by a female teacher was made (in circumstances where she was not named), an award was made of $350,000. 4. Two judgments where the allegations were made on social media are relevant. In North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125, where allegations of paedophile conduct in relation to a children's home conveyed imputations concerning the personnel who conducted that home, an award of damages totalling $250,000 was made for publications. However, that case involved more than a dozen publications. In Mickle v Farley [2013] NSWDC 295, allegations were made about a teacher by a former student on Facebook and Twitter. The precise nature of the imputations in question is unknown, as the trial judge considers the imputations were so serious that he was not prepared to repeat them. Nevertheless, this case is a useful guide to a range of damages to be awarded for publications on social media. It is also useful because part of the plaintiff's reputation prior to the matter complained of was as a deputy principal at a Nambucca Heads public school. 5. Cases where a person makes an allegation of criminal conduct without any evidence are relevant. In Cole Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 the New South Wales Court of Appeal dismissed an appeal from substantial awards which included damages of $50,000 and $70,000 for defamation where a store employee, annoyed when asked for a refund, accused the plaintiffs of shoplifting. Although the police never charged them, the impact on one of the plaintiffs (an employee at another store of the defendant's) was devastating, and he attempted suicide. Cases such as this demonstrate that the making of a serious allegation of criminal conduct without any evidence is particularly serious in defamation claims. 6. The maximum award that may be awarded under the Defamation Act 2005 (NSW) is $381,000; this figure is current as at 17 June 2016 (not $366,000, as Mr Dibb stated in court). 7. Displaying the general diffidence which is still occasionally shown by counsel as to the giving specific figures for damages (e.g. Mickle v Farley at [15]), Mr Dibb did not provide a specific amount or range, beyond saying that this should be an award near the top of the range, having regard to the particularly strong nature of the sustained and serious damage to the plaintiff's reputation and the very high degree of ongoing distress, which included being separated from his wife because of the family's fears about her wellbeing and that of their grandchildren. 8. The defendant's submissions were that as the plaintiff should not be awarded damages, as he effectively only had what he called "a few days to live" and was at the end of his life, is an unattractive submission. I was similarly unimpressed by the defendant's submission that he was fulfilling his role as a whistleblower and that it would be unfair to people like him by an award of damages when he was performing a public duty, namely communicating important information about the dangers of paedophiles being accommodated at the plaintiff's motels, an allegation that he persisted in saying was true. Conclusions as to general damages 1. McCallum J described the publications sued upon in French v Fraser (No 3) [2015] NSWSC 1807 (at [1]) as "a distressing illustration of the devastating harm that can be caused by the mischievous use of the Internet as a medium for defamatory publications". In Mickle v Farley the matters complained of and imputations were so dreadful the trial judge did not repeat them. Defamation actions in relation to social media allegations of an extreme nature, generally without any basis and driven not by mere malice but some kind of Internet "road rage", are increasingly common before the courts, as the facts in the above cases demonstrate. 2. The anonymity, instantaneousness and wide-ranging reach of the Internet and social media make it a dangerous tool in the hands of persons who see themselves as caped crusaders or whistleblowers, or alternatively want to humiliate or "troll" other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention. 3. The facts in this case show exceptional severity in the impact of this publication upon the plaintiff. This was not a publication for which there is any prior warning, or where the plaintiff had an opportunity to point out the mistakes the defendant had made, nor was this a publication which the plaintiff had invited in any way. It was factually without any basis, in that there were no paedophile "monsters" using the plaintiff's rental accommodation to prey secretly on local children at the bus stops, which increased the hurt for the plaintiff. 4. It would be fair to say that the publication of the matter complained of has destroyed the plaintiff's wellbeing as well as his peace of mind. It is clear, from the plaintiff's reference in his evidence to persons in Nambucca Heads still wanting to run him out of town, that this damage is ongoing. 5. Only a very substantial award of damages is capable of vindicating as well as consoling the plaintiff in relation to the defendant's disgraceful conduct in publishing allegations of this seriousness without any prior inquiry or proper evidence, for purposes of inciting a lynch mob mentality in order to justify his own delusional belief that he had some special role to play in law and order issues in Nambucca Heads. 6. I am satisfied that, as was the case in Pedavoli v Fairfax Media Publications Pty Ltd, that the plaintiff is entitled to an award of substantial damages. However, an award significantly below that figure should be awarded to take into account the limited extent of the publication (in Nambucca Heads) and the comparatively short time that the publication remained on Facebook. In those circumstances, these are publications in content and extent best compared to North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin. 7. Taking all of the above factors into account, I propose to award the sum of $100,000 in general damages. Aggravated damages 1. I accept and adopt the analysis of claims for aggravated compensatory damages as set out in Cerutti v Crestside Pty Ltd at [37]-[42]: "[37] Damages may be increased if there is "a lack of bona fides in the defendant's conduct or it is improper or unjustifiable". The aggravating conduct may have occurred in making the publication or at any time up to the assessment of damages. Aggravated damages are compensatory in nature: "The concept of 'aggravated damages' is not, whether calculated separately or not, a different 'head' of damage. It focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant." Section 37 of the Act states that a plaintiff cannot be awarded exemplary or punitive damages for defamation. [38] Conduct which is improper, unjustifiable or lacks bona fides may affect reputation. In such a case the damage "continues until it is caused to cease" by an avowal by the defendant that the defamation is untrue or a judgment in the plaintiff's favour. Accordingly, damages may be increased by an unjustifiable failure to apologise or retract, by unjustifiable persistence in making untrue allegations or by the conduct of the defence of proceedings in a manner which is unjustifiable, improper or lacking in bona fides. The robust but reasonable pursuit of a bona fide defence where there is evidence to support it does not permit an award of aggravated damages. Pleading and persisting in a defence of truth without a proper basis does. [39] Conduct which is improper, unjustifiable or lacks bona fides may increase injury to feelings by causing the plaintiff greater indignity. Bad conduct by the defendant may outrage the plaintiff's feelings. In Carson McHugh J stated, "the anger of the plaintiff is placated only when he or she knows that the defendant has been punished for the wrong". However, care is required that an award to compensate the plaintiff for injured feelings has "an appropriate and rational relationship" with the harm sustained and does not contain an impermissible punitive element which exceeds what is necessary to "assuage the hurt, indignation and desire for retribution which the plaintiff feels". [40] Section 36 of the Act requires the court in awarding damages to "disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter...or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff." Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages. However, if the plaintiff is aware of the defendant's state of mind and this aggravates the plaintiff's hurt feelings, then damages may be increased in order to appropriately compensate. If the defendant's conduct is improper or unjustifiable, this aggravation may be reflected in a separate award of aggravated damages. [41] An award of damages in excess of the statutory cap is permitted if the circumstances of publication are such as to warrant an award of aggravated damages. But this does not compel a judge to separately assess aggravated damages. In 1997 this court remarked in the context of a jury's assessment of damages that there was no reason why the jury should have been obliged to answer a distinct question about aggravated damages. Circumstances of aggravation may justify "the court in assessing compensatory damages at a figure higher than that which would have been appropriate without those circumstances; but this does not mean that the increase is a separate category of damages". The court observed: "The jury is not to be invited to perform the difficult intellectual task of first considering the defamation in an abstract way, disregarding the circumstances in which it was published and the extent of publication, and then separately considering how much should be awarded for those matters". [42] A judge may be better-suited than a jury to perform such a task, and, in giving reasons, is able to explain the extent to which damages are increased on account of conduct which warrants an award of aggravated damages. The separate assessment of aggravated damages may enable an appeal court to isolate that part of an award that is attributed to aggravated damages, and to adjust an award of damages if the defendant's conduct did not warrant an award of aggravated damages. However, the task of a trial judge should not be made more onerous than is necessary. A judge may assess a single amount which is appropriate to compensate for harm caused by the publication, and the additional harm to reputation or injured feelings caused by conduct which is improper, unjustifiable or lacking in bona fides." 1. As Applegarth J at [41] notes, the cap on damages may be exceeded in an appropriate case where a claim for aggravated damages is awarded. 2. The statement of claim, a poorly drafted document in many respects, limits the plea of aggravated damages to the increase to hurt to feelings as a result of knowledge of the falsity. However, the defendant himself introduced evidence of the plaintiff's attempts to obtain an apology from him and tendered some of those documents (Exhibit 1), and in those circumstances I propose to have regard to the impact on damages of the defendant's failure to apologise. Additionally, since the plaintiff repeated the libel in the course of these proceedings, despite my pointing out that this could be an aggravating factor in relation to damages. 3. In Nowak v Putland [2011] QDC 259 at [130], Wall QC DCJ considered the following factors to be relevant to aggravated the hurt suffered by the plaintiff in proceedings where the plaintiff had been the subject of allegations similar to those in these proceedings: "[130] The defendant's • statements that the plaintiff was a paedophile when he knew that the plaintiff was not a paedophile • his refusal to apologise • his repetition of the "paedophile" statements in the "hate campaign" incidents (again knowing them to be untrue) (in one case before 3 other people, in another before his wife and in another, perhaps before others at the meeting) • the contention (ex27, para 182) that even if it be accepted the plaintiff was called a paedophile on 7 February 2009 that "is a matter of small moment only" • his continuing contention until addresses on 8 September 2011 (see T6-72) that if made, the allegation that the plaintiff was a paedophile was trivial and not likely to injure his reputation or be likely to cause him hurt and was an insult only • his continuing contention (see the Defence, ex27, s.22 and T6-73,74) that the allegation that the plaintiff was a wog is trivial and not likely to injure his reputation or be likely to cause him hurt and was an insult only • his continuing contention that the plaintiff is lying about the RBSC and the "hate campaign" incidents • his contention that the plaintiff's witnesses to the incident of 7 February 2009 are lying or mistaken (plaintiff's father, Messrs Graham and Kermond) and that Mr Taylor is mistaken about what he heard at RBSC • his refusal to admit in the Defence that both the plaintiff and the defendant were at RBSC between approximately 7pm and 8pm on 6 February 2009 • his contention that the statements that the plaintiff was a paedophile were not capable of meaning that the plaintiff was a paedophile • his continuing denial of making any of the statements complained of by the plaintiff • his refusal (through his counsel) to concede (T6-82) that it is a very serious allegation to call someone a paedophile • the obvious reluctance to accept in cross-examination of Mr Taylor (T4-18,19) that the plaintiff was of good character and a person who was respected at RBSC • his denial, through his counsel, until addresses, that any damage had been caused to the plaintiff's reputation by the statements, and • his reluctance to admit that accusing a person of being a paedophile when it was known that he wasn't may be damaging to that person's reputation. have clearly aggravated the hurt suffered by the plaintiff and the plaintiff is entitled to significant aggravated damages for those reasons. The plaintiff's Claim and Statement of Claim were filed on 5 February 2010 and later amended to include the incident which occurred on 6 February 2010. The "hate campaign" stopped after 6 February 2010." 1. Many of these factors are present in this case. The plaintiff continued to state his belief, despite any evidence, that the statements he made in the matter complained of were true, and to assert that the only reason he could not prove them true was because police, social workers and other persons who knew of the truth feared retribution or loss of their job if they came forward to give evidence. 2. The plaintiff's particulars of aggravated damage do not refer to failure to apologise, although it is clear from the plaintiff's evidence that he actively sought an apology and would have been satisfied with a retraction and apology. Regrettably, in those circumstances, I cannot take into account, in relation to either general or aggravated damages, the defendant's failure to apologise. (I note, however, that his failure to apologise when invited to do so at the end of the hearing is referred to below in relation to mitigation of damages.) 3. Taking into account only the limited factors upon which the claim for aggravated damages is made, I propose to award aggravated damages in the sum of $50,000. Mitigation of damages 1. As to mitigation of damages, while some factors are set out in s 38 Defamation Act 2005 (NSW) (see below), that section does not limit the matters which can be taken into account (see s 38(2)). 2. Section 38 Defamation Act 2005 (NSW) provides: "38 Factors in mitigation of damages (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that: (a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or (b) the defendant has published a correction of the defamatory matter, or (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. (2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages." 1. Matters going to mitigation are not restricted to the issues set out in s 38, as Applegarth J noted in Cerutti v Crestside Pty Ltd at [43]: "[43] Damages may be mitigated in a number of ways. Some of them are mentioned in s 38(1) of the Act, but they do not limit the matters that can be taken into account by a court in mitigation of damages. 1. It is sometimes the case that a party will make an apology in court during the hearing, although the impact of this upon damages is generally slight (see Cerutti v Crestside Pty Ltd at [44]). With the permission of Mr Dibb, I invited the defendant to consider even at this late stage, during his submissions, providing an apology to the plaintiff and withdrawing the allegations that he had made, on the basis that this could be included in my judgment and would go a long way in reducing the plaintiff's hurt to feelings. 2. This the defendant declined to do, repeating that what he had said was true, and that he had only been unable to prove its truth because the police, social workers and others who knew what he said to be true feared losing their jobs or other retribution if they came forward. He also submitted that there should be no award of aggravated damages. 3. The defendant's particulars of mitigation are the circumstances in which the publication was made. As none of those circumstances are to the defendant's credit, in that he made no inquiries but published a third hand hearsay allegation, and the defendant was not prepared to make any apology in court of the kind referred to by Applegarth J, no claim for mitigation can be made out. Conclusions concerning damages 1. I have assessed general damages at $100,000 and aggravated damages at $50,000. In the event that I have erred in holding both the imputations are conveyed, I note that I would alternatively find, if only imputation (b) were conveyed, that the sum to be awarded would be $75,000 ($50,000 plus $25,000) as each of the imputations is equally serious. If I have erred in holding that imputation (b) and not (c) is conveyed I would have awarded the same amount as these imputations are of similar gravity. 2. I have prepared this judgment as quickly as I am able, given the plaintiff's very poor state of health and deep state of distress about this publication; there may be infelicities of expression and informalities as a result. In the interests of quick resolution of all outstanding issues, I have also set out a timetable below for interest and costs submissions and reserved the issue of costs. Orders 1. Judgment for the plaintiff against the defendant for $150,000. 2. Plaintiff's written submissions on interest and costs in 7 days. 3. Defendant's written submissions on interest and costs in 14 days. 4. Proceedings listed for further directions on matters of interest and costs on Thursday 1 September 2016 at 9:00am. 5. Liberty to apply in relation to interest and costs. 6. Exhibits retained for 28 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2018