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O'Reilly v Edgar

 

[2019] QSC 24

SUPREME COURT OF QUEENSLAND

CITATION:

O’Reilly v Edgar [2019] QSC 24

PARTIES:

KELVIN O’REILLY

(plaintiff)

v

PETER EDGAR

(defendant)

FILE NO:

7235 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4 and 5 December 2018

JUDGE:

Bradley J

ORDERS:

  1. The defendant pay the plaintiff damages in the sum of $250,000 plus interest in the amount of $20,658.71 for defamation by the publications pleaded at paragraphs 3, 6, 8, 11, 14, 17, 19, 24 and 27 of the further amended statement of claim filed on 19 November 2018.
  1. The defendant take all reasonable steps within his power to cause the text of each of the seven matters complained of in paragraphs 8, 11, 14, 17, 19, 24 and 27 of the said further amended statement of claim to be removed from the World Wide Web, including from the Facebook page entitled “Federation of Australian Racing Karters Union”, within seven days, so that the matter complained of may not be downloaded or viewed by any person.
  1. The defendant is permanently restrained, whether by himself, his servants, his agents or otherwise howsoever, from publishing, further publishing or causing to be published in any media:
  1. (a)
    any of the nine matters complained of in paragraphs 3, 6, 8, 11, 14, 17, 19, 24 and 27 of the said further amended statement of claim or any matter substantially to the same effect as any of those nine matters; and
  1. (b)
    any of the imputations pleaded in paragraphs 4(a), (b), (c), 7(a), (b), 9(a), (b), 12(a), (b), (c), (d), 15(a), 18(a), 20(a), (b), 25(a), (b), 28(a), (b) and (c) of the said further amended statement of claim or any imputation that does not differ in substance to any of those twenty imputations.
  1. The defendant pay the plaintiff’s costs of the proceeding, to be assessed.

CATCHWORDS:

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – PARTICULAR STATEMENTS – IMPUTATION – AS TO CAPACITY, FITNESS, RESPECTABILITY AND THE LIKE – where the plaintiff sues in respect of 10 Facebook posts published by the defendant – where the plaintiff alleges that these publications give rise to 25 defamatory imputations – where the alleged imputations concern the plaintiff’s personal respectability and professional capacity and integrity as CEO of Karting Australia – whether the alleged imputations are defamatory of the plaintiff

DEFAMATION – DEFENCES – JUSTIFICATION – TRUTH – OTHER DEFENCES – where the defendant seeks to establish the defence of justification in respect of all imputations –– where the defendant further contends that any harm, loss or damage suffered by the plaintiff  by reason of the publication of the Facebook posts is inconsequential and trivial for the purposes of s 33 of the Defamation Act 2005 (Qld) – whether the imputations are defensible on any of the pleaded grounds

DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – where the plaintiff seeks general and aggravated damages – whether the conduct of the defendant, including in the proceeding, calls for an award of aggravated damages – where the court is asked to consider comparable awards of damages – whether the compensatory damages are sufficient to vindicate the plaintiff’s reputation

DEFAMATION – INJUNCTIONS – where the plaintiff seeks mandatory injunction requiring the removal of the Facebook posts and permanent injunction restraining the defendant from publishing, further publishing or causing to be published defamatory Facebook posts and the relevant imputations –  whether such orders are reasonably necessary to address the threat or risk of a repeat of the publication of the defamatory matter

Defamation Act 2005 (Qld), s 33, s 39

Ali v Nationwide News Pty Ltd [2008] NSWCA 183, cited

Al Mouderis v Duncan (No. 3) [2017] NSWSC 726, cited

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, cited

Attorney-General for the Commonwealth v Legal Research Pty Ltd [1993] 2 Qd R 472, cited

Bauer Media Pty Ltd v Wilson (No 2) (2018) 361 ALR 642; [2018] VSCA 154, cited

Bristow v Adams [2012] NSWCA 166, cited

Cables v Winchester [2018] VSC 392, cited

Carolan v John Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351, cited

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31, cited

Cassell & Co Ltd v Broome [1972] AC 1027, cited

Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33, cited

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, cited

Crampton v Nugawela (1996) 41 NSWLR 176, cited

Cripps v Vakras [2014] VSC 279, cited

David Syme & Co Ltd v Mather [1977] VR 516, cited

Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, cited

Farquhar v Bottom [1980] 2 NSWLR 380, cited

Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52, cited

Fraser v Business News Group [2018] VSC 196, cited

French v Fraser (No. 3) [2015] NSWSC 1807, cited

Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130, cited

Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376; [2000] QCA 308, cited

Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254, cited

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652, cited

Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634; [2000] QSC 150, cited

Ley v Hamilton (1935) 153 LT 384, cited

Lewis v Daily Telegraph Ltd [1964] AC 234, cited

McCleverty v Australian Karting Association Limited [2015] QSC 323, cited

Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643, cited

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50, cited

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, cited

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, cited

Parker v John Fairfax & Sons Ltd, unreported, Court of Appeal of NSW, Hope, Samuels and Mahoney JJA, 30 May 1980, cited

Polias v Ryall & Ors [2014] NSWSC 1692, cited

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, cited

Reid v Dukic [2016] ACTSC 355, cited

Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729, cited

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52, cited

Sierocki v Klerck (No 2) [2015] QSC 92, cited

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, cited

Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23, cited

Zaia v Eshow [2017] NSWSC 1540, cited

COUNSEL:

P J McCafferty QC for the plaintiff

The defendant appeared on his own behalf

SOLICITORS:

Bartley Cohen acting as Town Agents for Simpson & Philips Solicitors for the plaintiff

The defendant appeared on his own behalf

  1. [1]
    By enacting the Defamation Act 2005 (Qld), the Parliament struck a balance between protection of personal reputation and freedom of speech.  The Act affords remedies to an individual whose good name has been adversely affected by the publication of defamatory matter and provides defences to a publisher that might privilege, justify or excuse the publication. 
  2. [2]
    In this case, Mr O’Reilly complains about ten separate matters first published between 23 November 2015 and 8 September 2018.  The text of each matter complained of is set out in the schedule to these reasons (Schedule).  Each is a post on a Facebook page that may be downloaded and read by users of the Facebook application.  Mr Edgar is the original author of nine of these posts, each of which he admits he posted on a Facebook page.  Mr Edgar also admits he posted the other matter complained of.  He says that post was not his original work, but was written by Mr Ralph van Doran.  Whatever the significance of this distinction for Mr Edgar, it is of no importance in this proceeding.  The law of defamation is concerned with the publication of defamatory matter, not with its original authorship.[1] 
  3. [3]
    The first two posts by Mr Edgar were on a Facebook page entitled “Go-Kart Kid”.  This was a public page, in the sense that it was generally accessible to members of the public with Facebook accounts.  They might come across the post by visiting the Facebook page (and so downloading it to their device) because they were looking for the particular page or as the result of a search for it or for words that are found on the page.  It was described as the page for a “public group” comprised of 332 members.  This page has been taken down by Facebook.  As a result, those two posts are no longer able to be downloaded and read. 
  4. [4]
    The other eight posts by Mr Edgar are on a different Facebook page, entitled “Federation of Australian Racing Karters Union”.  It is also a public group page.  At the time of the trial there were about 1,400 members of the public group.  Like the Go Kart Kid page, it is generally accessible to members of the public with Facebook accounts.  It remained accessible to members of the public at the time of the trial.
  5. [5]
    Mr Edgar is the administrator of the Facebook page that remains accessible.  He describes himself as the person “who decides everything” about the page, which he prefers to call “a forum.”  Mr Edgar says he is able to start a new thread by posting on the page and is able to delete any post and any comment that appears on the page. 
  6. [6]
    As noted above, while the Facebook page is accessible, each of the relevant posts is able to be downloaded to a device and read by anyone with a Facebook account.
  7. [7]
    It is the downloading and reading of each post that is important in this case, rather than the mere posting of text on the Facebook page.  This is because:

… It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. …[2]

In the present case, as the relevant posts were to a Facebook page, a person may use the Facebook application instead of a web browser to “pull the material from the web server.”

Background

  1. [8]
    The paths of Mr O’Reilly and Mr Edgar intersect in the sport of kart racing.  The court was informed that this is a serious branch of motorsports, as well as a popular one.  It seems Lewis Hamilton, Michael Schumacher, Ayrton Senna and Mark Webber could be said to have begun their motor-racing careers in karting; in time moving on to become Formula 1 champions.
  2. [9]
    Mr O’Reilly is 62 years of age.  He was born in South Australia, where he attended local schools and then trained as a teacher, acquiring a Bachelor of Education degree.  In January 1979, after a short period teaching, Mr O’Reilly accepted a position with the South Australian National Football League.  Initially a technical and development manager, he became operations manager and then marketing manager of the League, working in these various roles until 1986. 
  3. [10]
    Late that year, Mr O’Reilly and his family moved to Queensland, where he took a position as marketing manager at Grundies, Surfers Paradise, working there for about six years.
  4. [11]
    In around August 1992, Mr O’Reilly was appointed as marketing manager for the Gold Coast IndyCar Grand Prix.  This was his first position in motorsports. 
  5. [12]
    In 1994, Mr O’Reilly responded to an approach and accepted the position as CEO of TOCA Australia.  This company ran the Australian Super Touring Car Championship.  In this role, Mr O’Reilly was responsible for an organisation that ran events in Queensland, New South Wales, Victoria, South Australia and Tasmania.  Mr O’Reilly’s time at TOCA Australia saw the twilight of Super Touring Car Championships around the world, as audience tastes changed and car manufacturers and media organisations lost interest.  Australia and Sweden were among the last countries to host such championships.  A decision to bring the Australian competition to a close was taken in about September 2001.  Mr O’Reilly oversaw the winding up of TOCA Australia, and the disposal of assets over the following six months. 
  6. [13]
    Mr O’Reilly and his wife also operated a consultancy business - Performance Management and Marketing Pty Ltd.  Through that entity, Mr O’Reilly consulted to various other businesses, including Holden Performance Driving Centre and Sirromet Winery; and provided CEO services to the Australian Amusement, Leisure and Recreation Association Inc, a peak national body which represented theme parks and mobile amusement businesses. 
  7. [14]
    Mr O’Reilly also did some consulting work for V8 Supercars or TEGA, its controlling entity.  This led to him being appointed as CEO of TEGA in early 2003.  In the absence of an independent chairman, Mr O’Reilly also acted as chair of TEGA.  He remained in that role until the end of 2007. 
  8. [15]
    After TEGA, Mr O’Reilly was approached and accepted a consultancy with the Federation Internationale de L’Automobile (FIA), to review its approach to development of finance regulation and cost control for Formula 1 Motor Racing. The consultancy work took about six months.  
  9. [16]
    In 2009, Mr O’Reilly was approached to be marketing manager for the 2009 round of Rally Australia. 
  10. [17]
    Sometime later, Mr O’Reilly was diagnosed with stage 3A bowel cancer.  He underwent treatment, including surgery and chemotherapy.  He survived.  More recently, he has faced further serious health issues. 
  11. [18]
    On 1 September 2013, Mr O’Reilly commenced as the CEO of the newly formed entity Australian Karting Association Limited, which trades as Karting Australia.  He had been recruited and shortlisted by a professional human resources company and selected by the then recently appointed board of Karting Australia. 
  12. [19]
    Karting Australia is the national controlling body for sprint car racing in Australia.  It is a company limited by guarantee.  Its members are the incorporated karting associations in each Australian State and the Northern Territory.  FIA, through the Confederation of Australian Motorsport (CAMS), has delegated to Karting Australia the power and authority to organise and control the sport of karting within Australia.  At present, there are approximately 7,000 kart drivers licensed by Karting Australia, of whom about 40% are under 15 years of age. 
  13. [20]
    Mr O’Reilly is proud of the body of work he has done over the past 25 years, noted above, and of the high level international recognition he has received, which includes work for the FIA on motorsport and for the International Management Group (IMG) on touring car racing in China. He has worked a lifetime to build his reputation.  He considers himself to be a good family person.
  14. [21]
    Mr O’Reilly had not met Mr Edgar before the trial.  He had seen Mr Edgar in a courtroom on another occasion. 
  15. [22]
    The fact that Mr Edgar was referring to Mr O’Reilly in on-line posts was first brought to Mr O’Reilly’s attention in about January 2016.  Over the ensuing period, he has read the ten posts that are the subject of complaint in this proceeding.  These posts have come to his attention when others have sent them to him, telling him that he needs to see what is being posted about him; and more recently, when he has looked on-line to see what is being posted about him by Mr Edgar on the Facebook page. 

The proceeding

  1. [23]
    Mr O’Reilly commenced the proceeding in the Supreme Court of New South Wales on 12 October 2016.  Mr Edgar sought a transfer to Queensland; and Mr O’Reilly consented.  McCallum J made the appropriate orders on 16 June 2017.  When the proceeding was commenced, Mr O’Reilly’s complaint concerned only the first five posts considered at the trial.  The statement of claim has been amended twice to add complaints about the publication of the subsequent five posts. 
  2. [24]
    At law, Mr O’Reilly’s complaint about the publication of each of the ten posts is a separate cause of action.  For each, Mr O’Reilly has set out the imputations he contends are conveyed by the words published.  A total of 25 imputations are pleaded.[3]    
  3. [25]
    Mr Edgar filed a defence and served a further defence.[4]  Taken together, these address in some fashion Mr O’Reilly’s complaints about the first nine posts.  Mr Edgar did not file any amended defence responding to the complaint about the tenth post.[5]  However, at the trial he informed the court that he adopted the same defence as for the other nine posts. 
  4. [26]
    By his defence, Mr Edgar admitted that he wrote and posted the first five posts;[6] he did not admit that those posts were made available for download or that they were in fact downloaded;[7] and he denied the posts in their ordinary and natural meaning convey the imputations alleged by Mr O’Reilly.[8]  Mr Edgar’s defence went further.  He pleaded that, “if what I said is defamatory, then it was said with justification because it is true and is also material of which the audience should be aware”.[9]  He also denies that Mr O’Reilly has suffered any harm, loss or damage by reason of the publication of the posts or, if otherwise, then he says the harm, loss or damage is inconsequential and trivial, citing s 33 of the Defamation Act.  
  5. [27]
    By his further defence, Mr Edgar pleaded that his “answer” to the pleaded claim for publication of the sixth, seventh, eighth and ninth posts was “as I have said to the original five matters” and expressly pleaded that the additional four posts were “true”.[10] 

Publication

  1. [28]
    Mr Edgar is taken to have admitted the publication of each post.[11]  Publication occurs when the post is downloaded by a person so that it can be read on the person’s device.  Absent Mr Edgar’s deemed admission of publication, the tendered copies of the ten posts and surrounding “comments”, “likes” and “shares” are also evidence or at least evidence from which it can be inferred that each of the posts complained of has been downloaded and read.[12]

Identification

  1. [29]
    There is no real issue about the identification of Mr O’Reilly as the subject of each post.  The first post was accompanied by a photograph of Mr O’Reilly. Later posts were accompanied, from time to time, with other such photographs, some with captions naming Mr O’Reilly.  Mr Edgar referred to Mr O’Reilly by name in eight of the posts,[13] twice expressly as Karting Australia CEO,[14] and referred to him by the initials “KO” in the other two posts.[15]  “O’Reilly”, “Kelvin” and “KO” used in each post would be understood by the ordinary reasonable readers to refer to him.[16]  In short, the words and the context in which each of the posts was published permit the ready identification of Mr O’Reilly as the person the subject of the post.

The imputations

  1. [30]
    At the trial, Mr O’Reilly pressed only 22 of the 25 alleged imputations.[17]  It is Mr O’Reilly’s case that each of the imputations is conveyed by the natural and ordinary meaning of the words used in the relevant post or so conveyed with knowledge of one uncontroversial extrinsic fact.[18] 
  2. [31]
    The natural and ordinary meaning is the meaning that a fair-minded ordinary reasonable reader would give to the words.  An ordinary reasonable reader is a person of fair average intelligence; one who is not perverse, suspicious or avid for scandal; and one who can apply general knowledge and experience to read between the lines.[19] 
  3. [32]
    The question for the court is whether the ordinary reasonable reader would have understood the post in the sense of each of the imputations pleaded by Mr O’Reilly.  This has been described as a matter of impression.[20]  It is not limited to the literal meaning of the words in each post; it includes any implied or inferred or indirect meanings.[21]  It does not depend upon the meaning Mr Edgar intended to convey or the way Mr O’Reilly or any other particular reader understood the post. 
  4. [33]
    In his closing submissions, Mr Edgar accepted that most of the alleged imputations are conveyed by the ordinary and natural meaning of the words he used in the relevant post.  I have identified these below in these reasons.  These concessions by Mr Edgar were reasonable.  The conceded imputations are conveyed by the words used in the posts.   
  5. [34]
    It is necessary to determine whether each relevant post conveys any of the imputations Mr Edgar did not accept.  It is convenient to do this in the course of considering each post and all of the alleged imputations.

The first post

  1. [35]
    Mr Edgar accepted that his post of 17 January 2016 (the first post) conveyed the two imputations: that Mr O’Reilly controls Karting Australia through fear and intimidation; and that he controlled V8 Supercars and 2-Litre TOCA Series (2 litre touring cars) through fear and intimidation.[22]
  2. [36]
    Mr Edgar resisted the conclusion that the first post also convey a third alleged imputation: that Mr O’Reilly is a low and disgusting bully.  For this imputation, Mr O’Reilly relies upon Mr Edgar’s words describing him as a “vicious mongrel with an iron fist”, who “will crush [someone] like an ant on the footpath” and who used the “same tactics” to rule other organisations “through fear and intimidation”. 
  3. [37]
    Mr Edgar submitted that the words “vicious mongrel with an iron fist” conveyed a range of meanings including: “emotionless”, “merciless”, “rules with a very emotionless and hard and unforgivable attitude”, “very ruthless in their decisions”, and “particularly emotionally brutal and unforgiving and uncompromising and very strict in the way he conducts his business activities”.  He disputed that the words convey that Mr O’Reilly was “low” or “disgusting” or “a bully”.   
  4. [38]
    I conclude that an ordinary reasonable reader would understand the first post to convey that Mr O’Reilly was a “bully”, because that is conveyed by the words describing him as someone who “rules through fear and intimidation”.   I also find that the ordinary reasonable reader would understand the post to convey that Mr O’Reilly was a “low and disgusting” bully, because that is conveyed by the description of Mr O’Reilly as a person who “will crush [someone] like an ant on the footpath” and “is a vicious mongrel with an iron fist”.  An ordinary reasonable reader would understand the person whose behaviour is described in this way to be low and disgusting.   

The second post

  1. [39]
    Mr Edgar accepted that his post of 23 November 2015 (the second post) conveys the imputations: that Mr O’Reilly, in his role as CEO of Karting Australia, brought the organisation into disrepute by ignoring the Karting Australia Constitution and by intimidating and persecuting two highly-credentialed Karting Australia personnel; and that he so misconducted himself in the intimidation and persecution of two highly-credentialed Karting Australia personnel that he deserves to be dismissed as CEO.[23]
  2. [40]
    I agree that the second post conveys these two imputations to an ordinary reasonable reader, because they accord with the words actually used.  Mr O’Reilly did not press the third alleged imputation. 

The third post

  1. [41]
    Mr Edgar accepted that his post of 22 May 2016 (the third post) imputes: that Mr O’Reilly as CEO of Karting Australia acted with incompetence in his role; and that Mr O’Reilly was so incompetent as a manager that he destroyed other racing organisations such as V8 Supercars, the 2-litre TOCA Touring Car Series and Rally Australia.  However, Mr Edgar did not accept that his published words impute that Mr O’Reilly’s incompetence was “gross”, as Mr O’Reilly alleged.[24] 
  2. [42]
    In the third post, Mr Edgar stated that Mr O’Reilly’s “incompetence” had “destroyed” the other motor racing sports competitions and he was “well on the way to destroying Karting.”  Incompetence of a kind that could “destroy” three national motorsport competitions and was in the process of destroying a fourth, conveys to an ordinary and reasonable reader gross incompetence.  
  3. [43]
    I find that each of these two imputations is conveyed by the third post.  Mr O’Reilly did not press the third alleged imputation. 

The fourth post 

  1. [44]
    Mr O’Reilly pressed only three of the four alleged imputations as conveyed by the post of 23 May 2016 (the fourth post).[25]  Each concerned the corruption of the Karting Australia election process. 
  2. [45]
    It appears that Mr Edgar accepted the first two alleged imputations: that Mr O’Reilly intends to corrupt the Karting Australia election process by contacting clubs and threatening them into voting for Mr Doohan; and that he intends to corrupt the Karting Australia election process by contacting clubs and bribing them into voting for Mr Doohan.  He was right to do so, as those imputations are plainly conveyed by the published words of the fourth post. 
  3. [46]
    The third alleged imputation – that as CEO Mr O’Reilly was prepared to corrupt the Karting Australia election process to ensure his friend Mr Doohan was elected – is an accurate summary of the meaning the fourth post conveys.  It follows naturally from the other imputations accepted by Mr Edgar. 
  4. [47]
    I find that each of the three pressed imputations is conveyed by the fourth post to an ordinary reasonable reader. 

The fifth post

  1. [48]
    In his closing submissions, Mr Edgar accepted that his post of 3 September 2016 (the fifth post) conveys the imputation that Mr O’Reilly secretly and corruptly accepted a well-remunerated role within V8 Supercars (including access to a corporate box) in exchange for ‘selling out’ the interests of the sport of karting to CAMS.[26] 
  2. [49]
    I agree that this imputation is conveyed by the fifth post to an ordinary reasonable reader.

The sixth post

  1. [50]
    The post of 26 November 2016 (the sixth post) is in these terms:

That reminds me … A mate of mine who played footy for Burleigh AFL club on the Gold Coast … told me that O’Reilly was a Director at the club a while back … but was dismissed for sexually harassing a female bar staff member.  I should check in to that …

  1. [51]
    Mr O’Reilly’s case is that, by publishing this sixth post, Mr Edgar conveys the imputation that Mr O’Reilly was dismissed as a director of Burleigh AFL club because he sexually harassed a female bar staff member.[27] 
  2. [52]
    In his closing submissions, Mr Edgar contended that the sixth post would be understood by “your average person” as conveying only that Mr Edgar had heard a rumour or a comment to that effect and that Mr Edgar was not sure if it was true.  Mr Edgar submitted that the sixth post did not assert or even suggest that what he was told was true.  He contended that the post conveys only the “fact” that he had been told something by a mate. 
  3. [53]
    The sixth post makes clear that Mr Edgar was passing on something he says he had been told.  It identifies his source as a “mate of mine”.  In the post, Mr Edgar places no qualification on the reliability of his source.  He expresses no doubt as to the truth (or otherwise) of what he said his mate had told him.  The concluding statement – “I should check in to that” ­– does not convey to an ordinary reasonable reader scepticism about what Mr Edgar says he has been told.  On the contrary, it characterises the matter as something worth further investigation.  By reporting a rumour, a publisher gives it credence by implying it is or may be well-founded.[28]
  4. [54]
    In the circumstances, I find that the alleged imputation is conveyed to an ordinary reasonable reader of the sixth post. 

The seventh post

  1. [55]
    The seventh post was another first posted on 26 November 2016. 
  2. [56]
    In his closing submissions, Mr Edgar accepted that the seventh post conveys that Mr O’Reilly was incompetent and was dismissed from all of his previous positions in motorsports.[29]  Mr Edgar did not address whether the imputations convey that Mr O’Reilly was “grossly” incompetent, as the pleaded imputations allege, but any ordinary reasonable reader would have understood the seventh post to convey that Mr O’Reilly’s incompetence was such that he was dismissed and that he wrecked the motorsports operations of his employers.  Such incompetence would be understood by an ordinary reasonable reader as gross incompetence. 
  3. [57]
    In his closing address, Mr McCafferty QC, for Mr O’Reilly, accepted that some of the words might be deleted from the second of the two imputations alleged to be conveyed by the post to bring it closer to the words used by Mr Edgar.[30]  I find that the alleged imputations, shorn of the deleted words, are conveyed by the seventh post.   

The eighth post

  1. [58]
    The 4 May 2017 post (the eighth post) included the following:

The high CIK[31] revenue will be from sponsorship money.  Castrol, Jayco etc.  The sponsorship money should go towards prizes and incentives for competitors as it used to since 1995 … but it’s not.  It’s going straight int [sic] KO’s and KA’s pocket.  Mongrels.  …[32]

  1. [59]
    I have not extracted above the final three sentences of the eighth post above, as I accept Mr Edgar’s submission that they refer to a Mr Hanatschek, who was involved in karting competitions many years before Mr O’Reilly began to work for Karting Australia.  In excluding these sentences, I accept Mr Edgar’s submission that the eighth post does not describe Mr O’Reilly as a “scammer”, but only as one of the “Mongrels.”
  2. [60]
    For Mr O’Reilly it was submitted that the eighth post imputes: that he was corrupt in that he personally pocketed sponsorship revenue which should have gone towards prizes and incentives for competitors; or that he was a scammer because he personally pocketed sponsorship money which should have been used for prizes and incentives for competitors. 
  3. [61]
    In his closing submissions, Mr Edgar resisted the proposition that the eighth post conveys that “Mr O’Reilly stole the money and put it in his own personal pocket”.  He contended that the post conveys that the sponsorship money remained in the “pocket” of the Karting Australia organisation or that the Karting Australia administration “still had the money in their pocket.”
  4. [62]
    The eighth post is not particularly clear.  This is not to Mr Edgar’s advantage.  The ordinary reasonable reader has been said to be one who:

approaches perception of the matter complained of in an undisciplined way and with a greater willingness to draw inferences and to read between the lines than a lawyer might do, used to precision. Where words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject. That is the price which publishers must pay for the use of loose language.[33]

  1. [63]
    However, I find that the statement that the sponsorship money was “going straight [into] KO’s and KA’s pocket” conveys to an ordinary reasonable reader that the money is staying within the Karting Australia organisation.  The reference to a singular “pocket” is significant.  As is the context of the preceding sentence in the post. An ordinary reasonable reader would understand the point being made by the post is that sponsorship moneys are staying within Karting Australia and are not being paid out to race competitors.  It follows that I do not find that the eighth post conveys either of the two alternative imputations alleged by Mr O’Reilly. 

The ninth post

  1. [64]
    The matter first posted on 12 May 2017 (the ninth post) is as follows:

No kickbacks ? … You know KO loves his kickbacks ? … Engine kick back … tyre kickback … airbox kick back … Only ones not getting a kick back is us karters!

  1. [65]
    Mr O’Reilly alleges that the ninth post conveys two imputations: that in his role as CEO of Karting Australia he corruptly received kickbacks from sponsors including engines, tyres and air-boxes; and that he was a crook because he received various kickbacks.[34] 
  2. [66]
    Mr Edgar did not cavil with the ordinary meaning of “kickback”, but submitted that “the general karting public has been made perfectly aware that we now have a tax or a royalty on these products, which we refer to as a kickback.”  Mr Edgar submitted that “only karting and go-karters read my page” and that they would have understood the references to “kickbacks” (and “kick backs”) to refer to royalties charged by Karting Australia on certain products supplied to karting competitors.  Understood in this special way, Mr Edgar submitted, the post did not refer to any corrupt or crooked conduct by Mr O’Reilly (or anyone else), but only to the imposition of such a royalty by Karting Australia. 
  3. [67]
    Mr Edgar led no evidence that the word “kickback” had this special or limited meaning.  He gave none in his oral evidence.  It was put by him only in his closing submissions.  He did not identify or tender, for example, any earlier or proximate posts on the Facebook page that could have conveyed to a reader that the word was being used in this limited sense.  He did not ask any of the witnesses called by Mr O’Reilly – each of whom had some involvement in karting and other motorsports – about it. 
  4. [68]
    Although he understood his Facebook page to be of interest to those involved or interested in karting, it had no limitation on access.  Mr Edgar’s posts (including the ninth post) can be downloaded and read by anyone with access to Facebook, whether or not they are involved in any way with kart racing competitions.
  5. [69]
    In the circumstances, I do not accept Mr Edgar’s submission that the word “kickback” has a special or limited meaning in the ninth post. 
  6. [70]
    I find that the ordinary reasonable reader would understand the references to “kickback” as commonly used and understood, namely as a usually illegal refund, rebate or return in respect of money or goods or a payment to a person who has facilitated a transaction or an appointment. 
  7. [71]
    I find that the ninth post conveyed the two alleged imputations to an ordinary reasonable reader. 

The tenth post

  1. [72]
    The tenth post consists of two paragraphs first posted to the Facebook page on 8 September 2018. 
  2. [73]
    Mr O’Reilly alleges that this tenth post conveyed three imputations: that in his capacity as CEO of Karting Australia, Mr O’Reilly tried to cover-up the actions of a paedophile instead of trying to protect children; that he encouraged a person whom he knew to be a paedophile to remain active in positions within Karting Australia and thereby exposed children to a risk of harm; and that he was an enabler of a paedophile.[35] 
  3. [74]
    At the trial, it was common ground that these are the most serious of all the imputations alleged by Mr O’Reilly.
  4. [75]
    In his closing submissions, Mr Edgar did not seek to persuade the court that any of these three imputations is not conveyed by the tenth post. 
  5. [76]
    I am satisfied that the tenth post conveys each of the imputations. 
  6. [77]
    The first imputation is conveyed, as the tenth post states in terms that, with respect to two persons, one in Western Australia and another in Ipswich, each alleged to have been charged or convicted of “paedophile” offences, “KA preferred to try and cover it up instead of trying to protect our children.”
  7. [78]
    The second imputation is conveyed, because the post states that:

KO cannot deny he was made aware of this situation … and yet still failed to act, and instead encouraged the offender to remain in the various positions of which he held

and:

KO and GL … hang your heads in shame.  Who knows how many kids have suffered at the hands of the WA and Ipswich pedos … due to your lack of concern. 

  1. [79]
    The third imputation is conveyed by the words in the tenth post referring to Mr O’Reilly and the WA Karting State President as, “Enablers … that is what you are.”
  2. [80]
    In summary, I find that nine of the ten posts complained of conveyed 20 of the 22 imputations pressed by Mr O’Reilly. 

Is each of the imputations defamatory?

  1. [81]
    Having determined the imputations that are conveyed by each of the posts, it is necessary to consider whether each of the imputations is defamatory. This is an objective enquiry as to whether the relevant imputation would tend to lower Mr O’Reilly in the estimation of ordinary reasonable members of society or, put another way, would be likely to lead an ordinary reasonable person to think less of him.[36]
  2. [82]
    At the trial, Mr Edgar did not seek to persuade the court that any of the alleged imputations, if conveyed, was not defamatory.  Each of the pleaded imputations that the posts convey is defamatory in the relevant sense.  If it were necessary to determine whether the imputations alleged to be conveyed by the eighth post are defamatory of Mr O’Reilly, I would find each of them to be defamatory.  

Evidence on the remaining issues at the trial

  1. [83]
    Each of Mr O’Reilly and Mr Edgar adduced evidence at the trial.  This evidence was directed to the remaining matters for the court to decide, namely Mr Edgar’s defences of justification and triviality and, if those defences fail, the damages that ought to be awarded to Mr O’Reilly and any other remedy that should be granted. 

Mr O’Reilly’s case

  1. [84]
    Mr O’Reilly gave evidence.  Four reputation witnesses were also called in his case.  A trial book containing printed copies of parts of the Facebook pages containing each of the relevant posts and some associated posts was tendered, as were printed copies of additional separate posts, a Facebook messenger screenshot, a copy of the webpage explaining “About Karting Australia” and an affidavit of one of Mr O’Reilly’s solicitors, exhibiting some correspondence with Mr Edgar about the proceeding and a notice to admit documents and a notice to admit facts.  

Mr O’Reilly’s evidence

  1. [85]
    The relevant facts about Mr O’Reilly’s career, identified in his evidence in chief, are summarised above.[37] 
  2. [86]
    He was also asked about each of the ten posts, when they came to his attention, and the consequences of that occurring.
  3. [87]
    Mr O’Reilly recalled that, when he read the first post, he was staggered, because it was posted by someone he had never met, it was scandalous, and “frankly, just lies.”  When he read the second post, he felt disgusted; the post was untrue in stating that the court had made findings about Mr O’Reilly, and it directed blame at Mr O’Reilly for decisions taken by the board of Karting Australia.  When people drew Mr O’Reilly’s attention to the third post, he read it and felt sick that Mr Edgar would continue to post what Mr O’Reilly regarded as “wonton lies” in a public forum. 
  4. [88]
    When Mr O’Reilly was asked to recall how he felt on first reading the fourth post, he began to shake and his voice failed.  When he regained some composure, he said it made him feel “completely, absolutely helpless” and that his reputation was being “trashed by absolute lies and fabrications.”  His evidence was that he felt that when someone he had never met said “really just completely hateful, hurtful things about him,” it made him question why he was working in the karting sport arena.  He recalled that people were constantly ringing him asking whether he had seen what Mr Edgar had posted and what Mr Edgar was saying about him.  These people were Karting Australia board members, staff and other people he knew in the sport. 
  5. [89]
    Mr O’Reilly gave evidence that, after the fourth post, Mr Edgar was served with a concerns notice, prepared by lawyers acting for Mr O’Reilly.  Mr Edgar did not respond by apologising in any manner.  He posted images of the concerns notice on the Facebook page and invited comments.  In the course of this thread, Mr Edgar posted a parody of an apology, in which Mr Edgar stated that “the allegations referring to Mr O’Reilly are entirely true and that is why I approve them for publication.” 
  6. [90]
    When Mr O’Reilly read the fifth post, he felt outraged that someone could say “something so absurd, apparently with the sole purpose of destroying” his reputation.  He said he felt constantly sick.  The fifth post first appeared on-line about the time Mr O’Reilly, through his consultancy company, was engaged by V8 Supercars to rewrite their rulebook. 
  7. [91]
    When Mr O’Reilly read the sixth post, he was at Townville airport about to board a flight to Brisbane.  He recalled being “absolutely devastated” when he read it.  He broke down several times while giving evidence about it.  He recalled:

At the time, I didn’t think you could say anything much worse about me, than that.  I’ve only ever had one girlfriend and she became my wife, and for this person to say I’ve been dismissed from a club that I’ve never been a member of, for sexually harassing a bar person, it was beyond the pale.  It was a disgrace.  You can’t do much worse than that.  I didn’t think you could.  I found out later, you can.

  1. [92]
    The sixth post is in a thread that includes a photograph of Mr O’Reilly with Moto GP World Champion Mick Doohan, describing them as a “pair of smug bastards KO and MD”, and also a photograph of Mr O’Reilly holding a garden elf with the caption, “Leprechauns are known for telling lies, here are two leprechauns.”
  2. [93]
    The seventh post appears in the same thread as the sixth and was posted perhaps within 24 hours of it.  It made Mr O’Reilly feel “sick in the stomach and helpless.”
  3. [94]
    Mr O’Reilly read the eighth post on the day it was posted, 4 May 2017, or the next day.  He felt outraged: “It says I’m a thief”, he recalled. 
  4. [95]
    Mr O’Reilly also identified that around the time the eighth post went on-line, Mr Edgar changed the Facebook page “group photo” to a head and shoulders shot of Mr O’Reilly emblazoned with the text, “SAY NO TO KO!” This remained the group photo of the Facebook page for about six months.  The thread of comments under the new group photo includes the following exchange:

Robbie Bolger Can you leave f…ing Kelvi alone

Peter Edgar Yes … when he leaves me alone.  He currently has me facing the Supreme Court of NSW on some very frivolous defamation charges.  When the charges are withdrawn … I will back off.

  1. [96]
    Mr O’Reilly recalled that he read the ninth post around the time it was posted, 12 May 2017.  He recalled that he felt disgusted by the post, “It says I’m corrupt.  It says I do backdoor deals.  It says I’m on the take.  None of which [is] true.”  The picture of Mr O’Reilly was still the group photo for the Facebook page at this time. 
  2. [97]
    When Mr O’Reilly read the tenth post, he was horrified:

The only thing he could have said worse about me, was that I was a paedophile myself. …It’s a whole page full of absolute lies that was meant absolutely to destroy my reputation.

  1. [98]
    Asked how he felt when Mr Edgar confirmed his defence at trial was that each of the imputations was true, Mr O’Reilly was visibly upset:

Absolutely disgusted and gutted.  I’ve never been so helpless in my life.  I’ve had two bouts with cancer.  I’ve had multiple operations.  I’ve had months and months of chemotherapy.  I’ve never felt as hopeless or as helpless in beating life-threatening diseases, like bowel cancer and prostate cancer, as I have felt in the last three years at the hands of this man on this Facebook page.

  1. [99]
    The copy of the tenth post tendered at trial was printed on about 5 November 2018.  It records that the tenth post had attracted 26 “Likes”, 63 “Comments” and 3 “Shares”.  The comments forming part of the tendered document are universally adverse to Mr O’Reilly, as one might expect, describing him as a “low life oxygen thief” and “no better than the accused”.   Mr O’Reilly tendered copies of some of the “Shares” and a screenshot of where the tenth post had been sent by Facebook Messenger to another person.
  2. [100]
    Mr O’Reilly explained:

Yes, people take me to those posts because they think I need to know what’s being said about me.  It’s injurious to my health and it took a long time for me to actually stop going to them.  Others I go – I meet with various State associations and clubs over the course of the year and almost every one of them, Edgar’s name is brought up, as is the tenor of the posts that are made generally and about myself specifically.

  1. [101]
    As to the impact of the posts on his everyday life, Mr O’Reilly’s evidence was:

This has been going on for so long.  I have felt absolutely helpless.  I’m short with people who care about me.  When someone says you’re a paedophile protector or you’re a thief, you’re corrupt, you take – you engage in illegal activities, you know, the next phone call is generally not – they generally don’t get a particularly great response.  It – it affects – I don’t talk about this much at home.  I have concerns as to where some of this ends up.  I’m nervous.  I no longer – if someone rings the doorbell after hours, I won’t answer the doorbell because I’m fearful of – that someone that he’s incited, or himself even, you know, trying to do me harm in some way. …

The effect on me was so profound, I’ve had to undertake six or seven months of psychiatric care.

  1. [102]
    In his evidence in chief, Mr O’Reilly directly and clearly denied each of the pleaded imputations. 
  2. [103]
    Mr Edgar cross-examined Mr O’Reilly for about three hours on the second day of the trial: two hours before the lunch adjournment and one hour after lunch.  For the most part, Mr Edgar adopted a callous and sarcastic tone in his cross-examination.  However, at times he became aggressive, with a self-justifying tone, asking questions that made further allegations of misconduct against Mr O’Reilly, without any apparent factual or other basis.  However, he failed to put to Mr O’Reilly that the specific alleged imputations were true.
  3. [104]
    In respect of the first post, Mr Edgar put to Mr O’Reilly that Karting Australia’s rules state that, for a club to be affiliated, it must only allow events on its premises that are run under Karting Australia regulations; and if a club allows other organisations to use its premises, the club would lose its membership of Karting Australia.  Mr O’Reilly said this was incorrect.  Although Mr Edgar said that he could find letters showing his proposition to be correct, he did not put any letters to Mr O’Reilly.  Nor did he produce any such letters later in his own case. 
  4. [105]
    Mr Edgar did not put to Mr O’Reilly that he had used fear or intimidation in his time in senior positions with V8 Supercars or the TOCA series.  He did not put to Mr O’Reilly that he was a “mongrel”, or a bully of any kind. 
  5. [106]
    Mr Edgar asked Mr O’Reilly about other proceedings in this court brought by a Mr McCleverty against Karting Australia,[38] which were apparently also the context for the second post. 
  6. [107]
    Mr O’Reilly said that in the first such proceeding Dalton J found that the board of Karting Australia had erred in not strictly complying with a rule of the company’s constitution in respect of a decision to suspend Mr McCleverty’s membership.   
  7. [108]
    Mr O’Reilly noted that in the second post Mr Edgar had written that “O’Reilly failed to adhere to proper process and has brought Karting into disrepute by deliberately ignoring KA’s own constitution.” And that:

He deliberately and vindictively incurred karting an unwanted expense [and] must be sacked as he alone has brought all and any further comment on media regarding this matter into karting disrepute.  A Supreme Court judge has ruled that O’Reilly deliberately ignored KA’s own constitution.  That evidence alone is sufficient for the other members of the KA board to call for his dismissal …  Facts are facts and can’t be sweeped [sic] away.

  1. [109]
    Mr O’Reilly said at no time did he “ignore” the constitution.  He did not make the decision to suspend Mr McCleverty’s membership, the board did so.  Mr O’Reilly said he does not vote on board resolutions.  He is an employee.  He has no role to play.  Mr O’Reilly said he was called as a witness in the court proceeding. Her Honour did not make any finding about Mr O’Reilly’s conduct.  The post was, in fact, devoid of facts.  As Mr O’Reilly said in response to Mr Edgar’s cross-examination, “Everything in your post is fiction.” 
  2. [110]
    Mr O’Reilly also gave evidence that, after the court’s decision, the matter of Mr McCleverty’s membership was “re-dealt with by the board … in accordance with the constitution.” The board decided to suspend Mr McCleverty for a number of years.  The suspension remains in place.  Mr Edgar did not challenge Mr O’Reilly’s evidence in these respects. 
  3. [111]
    The subject matter of the third post and its alleged imputations were given little time in cross-examination.  Mr Edgar put to Mr O’Reilly that he had been in charge of the management of the TOCA Touring Car series at the time it ceased to exist.  Mr O’Reilly agreed; he had said as much in his evidence in chief.  Mr Edgar then put that it was possible that Mr O’Reilly’s management skills were incompetent and so caused this to happen.  Mr O’Reilly rejected that proposition, noting that he kept the Australian Super Touring Championship going for probably 18 months longer than any other super touring championship in the world, save for the Swedish championship. 
  4. [112]
    Mr O’Reilly explained that the Australian Super Touring Car Championship competition relied on 12 month old cars that were bought from European teams who had used them in the European Touring Car competitions.  When the European competitions “collapsed”, the supply of vehicles for the Australian competition diminished; and in September 2001 a decision was taken to wind up the Australian competition.  Mr O’Reilly had been CEO of TOCA Australia for the full duration of the Australian championship competition, from 1995 to 2001.  Mr Edgar did not put to Mr O’Reilly that he had been dismissed by TOCA. 
  5. [113]
    Mr O’Reilly said his contract with V8 Supercars and the board of TEGA ran out at the end of 2017; it was not renewed.  Mr Edgar did not put to Mr O’Reilly that he had been dismissed from that position. 
  6. [114]
    Mr Edgar did not question Mr O’Reilly about any of the imputations alleged to be conveyed by the fourth post.  He asked only about the renewal of a contract with Mr Doohan as a “competitions director”.  Given the gravity of the imputations in the fourth post, Mr Edgar’s reluctance to cross-examine about them was quite remarkable. 
  7. [115]
    After the lunch adjournment, Mr Edgar moved to the fifth post and asked Mr O’Reilly whether he had done a “deal” with CAMS to give CAMS “full control over all racing classes in sprint kart racing in Australia”, Mr O’Reilly said, “No.”  He explained:

[Australian Karting Association Incorporated] derived its authority from an agreement with CAMS that was in place at the time the board of Karting Australia was ceded with control of the sport in September 2013.  There was a pre-existing agreement with CAMS [and] the former AKA Incorporated.

CAMS provided through a formal delegation agreement to the former AKA Incorporated body (which changed to AKA Limited on 1 September 2013) the authority to run sprint kart racing.

  1. [116]
    Mr Edgar then asked whether Mr O’Reilly attended any V8 Supercar race meetings while he was contracted to review their rulebook.  Mr O’Reilly recalled that he attended the Gold Coast 600 race meeting in 2016.  Mr Edgar asked if he went to the corporate box while at the event.  Mr O’Reilly said he did not, as he was working observing the operations of race control.  Mr Edgar asked no more questions about any “corporate box”.  Nor did he call, in his case, any evidence to the effect that Mr O’Reilly was entertained by V8 Supercars in any corporate box.
  2. [117]
    In relation to the sixth post, Mr Edgar did not put to Mr O’Reilly that he had sexually harassed a bar staff worker at a Burleigh Heads club.  The nearest he came was to ask Mr O’Reilly whether he was aware that a named person, who went to a go-kart shop, had “refused to become involved in a sport that involved [Mr] O’Reilly because he has sexually harassed her at a local football club on the Gold Coast”.  Mr O’Reilly knew nothing of the person named or of another person identified by Mr Edgar as connected with the story.  He said he had never heard such a story, knew nothing of it and that it was not true.  He had never been a director or employed by a football club at Burleigh or elsewhere on the Gold Coast; he had never been dismissed from such a position; and he had never sexually harassed a club employee. 
  3. [118]
    Mr Edgar did not take the topic any further. 
  4. [119]
    From the manner in which his questions were put, it appeared that the sixth post story had come to Mr Edgar at least third-hand.  Mr Edgar did not call the named person to give evidence at the trial – or indeed any intermediary through whom he implied the story found its way to him.  His “mate” remained entirely anonymous.  
  5. [120]
    On the subject of the seventh post, Mr Edgar asked Mr O’Reilly whether he recalled any media reports using the expression “ungodly mess”.  Mr O’Reilly did not.  Mr Edgar did not ask Mr O’Reilly about any of the imputations alleged in respect of the seventh post. 
  6. [121]
    Mr Edgar asked Mr O’Reilly what part of the eighth post “was the bit that upset you”?  Mr O’Reilly replied, “The fact that I was illegally taking sponsorship money and putting it in my pocket. … That would be called theft, in my view.”    
  7. [122]
    On the subject of the ninth post, Mr Edgar asked about whether Karting Australia received any “tax or kickbacks” on the sale of karting products.  Mr O’Reilly said most sporting bodies charge a royalty on various products that may be used in the conduct of their sport.  Karting Australia is no exception.  When it took over control of the sport, the former body was receiving royalties for mufflers, air-boxes, engines, tyres and possibly some other items used on go-karts.  Karting Australia charges a royalty, as a percentage of the price, for engines and tyres only.  Karting Australia has contracts with suppliers that provide for these payments.  Mr O’Reilly said he found the word “kickback” an “offensive and dirty term” that infers dishonesty and corruption. 
  8. [123]
    Mr Edgar did not put to Mr O’Reilly that he had received any “kickback” from equipment suppliers.
  9. [124]
    On the topic of the tenth post, Mr Edgar asked Mr O’Reilly whether at any stage over the previous two years he received “any communications from a concerned parent regarding indecent actions towards children” by a Mr Viola, who had been a photographer accredited by Karting WA and Facebook and website manager for Karting WA.  Mr O’Reilly said he had not.  He said he had received some communications from the secretary or president of Karting WA, in relation to vague allegations about Mr Viola in February or March 2018.  These, he said, “were dealt with seriously and in accordance with our policies and procedures.”
  10. [125]
    Asked what steps he took, Mr O’Reilly said he spoke personally with the Karting WA secretary and treasurer and with various members of the Office of Sport in Western Australia “as to what was required to be done.” Mr O’Reilly said he told the Karting WA officials to require Mr Viola to complete the declaration in the Karting Australia member protection policy that deals with child protection.  The declaration was to the effect that the declarant had no matters against him that would prevent him from obtaining a Working with Children check.  He also told them that Mr Viola had to apply for a Working with Children check from the relevant State Government agency and would not be allowed to work at a kart race event without it. 
  11. [126]
    Mr O’Reilly said he understood, Mr Viola received this State Government check approval document in about May 2018.  From that time Mr Viola was allowed to attend go-kart races in Western Australia. 
  12. [127]
    In September 2018, the WA Government informed Karting Australia that Mr Viola’s Working with Children check had been temporarily suspended, but could not say why this step had been taken.  Mr O’Reilly recalled that Mr Viola’s credentials as a photographer were immediately revoked by Karting Australia and, he understood, Karting WA revoked “any and all credentials that he may have had to attend kart race meetings.”   
  13. [128]
    Later, Mr Viola was charged with having child exploitation images in his possession. By then he had already been “warned off” go-kart race meetings and had his credentials revoked.  There was nothing more for Karting Australia or Mr O’Reilly to do.
  14. [129]
    Mr Edgar also asked Mr O’Reilly, albeit more briefly, about the Ipswich matter mentioned in the tenth post.   Mr O’Reilly explained that he first heard that the person in question had been a caretaker living at the Ipswich Kart Club’s premises when he read of it on Mr Edgar’s Facebook page.  By that time, the person had been removed from the role and the premises.  According to Mr Edgar’s post, this person had taken up the caretaker role and the residence with the Ipswich club some six years earlier, i.e. well before Mr O’Reilly started work with Karting Australia. 
  15. [130]
    Mr Edgar then pressed Mr O’Reilly about his health and the effect of the posts on his well-being.  In response to these callous and sarcastic questions, Mr O’Reilly struggled to retain his composure, but was able to explain:

What I’ve been put through for the last three years, for doing nothing more than doing my job, at the hands of the people such as yourself on your Facebook page has made me feel much more challenged and alone than ever was the case while I was undergoing the treatments that I’ve had.  To reiterate, four surgeries, chemotherapy, six months of blood-thinning injections to remove a pulmonary embolism that I developed as a result of the chemotherapy … So much so that I needed to obtain professional help to get me past the massive impact that you’ve had on my life in a detrimental manner for the last three years. 

  1. [131]
    Mr Edgar asked Mr O’Reilly how he came to have the position of CEO at Karting Australia.  He replied that the position was advertised; he applied; he was interviewed; and was appointed. 
  2. [132]
    Mr Edgar also asked Mr O’Reilly about IP searches done for Karting Australia, about returns lodged for AKA Inc, about why AKA Inc had not yet been wound up, and about Mr O’Reilly’s salary.  Each question was put on the basis that in some unexplained way Mr O’Reilly had acted inappropriately.  Mr O’Reilly answered each question with a logical and reasonable explanation.  An objection to further questions about his salary was upheld on the basis that Mr Edgar could not identify any matter in issue to which the questions might be relevant. 
  3. [133]
    It was apparent that Mr O’Reilly found the lengthy cross-examination very challenging. 
  4. [134]
    On the evening before his cross-examination, Mr Edgar added a new post on the Facebook page, which he described as “just in from FARKU[39] cyber security Johnny Backdoor”.  The post continued, “We’re unsure how many laws have been broken … the crack legal team from New South Wales will be busy tonight drafting what could well be criminal charges.”  It added, “will there finally be enough evidence for KO to do real jail time?”
  5. [135]
    When asked about this latest post, Mr O’Reilly was very visibly upset.  He apologised to the court and said:

This has been going on for three years.  My son said to me the other week, “Dad, why are you still doing this stuff?  This is going to kill you.  I want you to be my dad.  I don’t want you to be dead.”

  1. [136]
    Mr O’Reilly later explained:

The last three years of my life have been absolute hell because of this man.  I wish that no one ever pointed me towards any of his papers.  I wish … people did not constantly draw me back there with the latest things he and his friends on that page have said about me.  It’s hurtful and it’s hateful.  And it has caused me significant trauma and it caused my son, who is 20 years of age, and a 20 year old boy doesn’t notice a lot that goes on in the family home, to say, “Dad why are you doing this?  I want you to be my dad.  I don’t want you to be dead because this is killing you.”  It hurt.  It really does hurt. 

Mr Jones’ evidence

  1. [137]
    Bradley Jones, the owner of a V8 Supercar team, gave evidence.  He met Mr O’Reilly in 1994, when Mr Jones and his brother were competing in the Australian Super Touring Car Championship competition.  Mr O’Reilly was then the CEO of TOCA Australia, the company that owned the Australian Super Touring Car Championship.  Mr Jones was involved in running the Audi factory team in that competition.  He has known Mr O’Reilly since that time. 
  2. [138]
    According to Mr Jones, Mr O’Reilly has a very good record as a sports administrator; he described Mr O’Reilly’s reputation as a person who is very loyal, very honest, very hard-working and who has great integrity. 
  3. [139]
    Mr Edgar did not challenge this reputation evidence in his cross-examination of Mr Jones. 

Mr Doohan’s evidence

  1. [140]
    Michael Doohan AM also gave evidence in Mr O’Reilly’s case.  Mr Doohan won five Motorcycle Grand Prix world titles between 1994 and 1998.  After retiring from competition, Mr Doohan was general manager for racing of the Honda Racing Corporation from 2000 to 2006.  He is on the board of the Australian Grand Prix Corporation, a statutory authority established under the Australian Grand Prix Act 1994 (Vic), which conducts, manages and promotes Formula 1 events and Motorcycle Grand Prix events in Australia.  In 2013, Mr Doohan joined the board of Karting Australia at about the time Mr O’Reilly became CEO.  He has known Mr O’Reilly for about 20 years, but only as a passing acquaintance before he joined the Karting Australia board. 
  2. [141]
    According to Mr Doohan, Mr O’Reilly’s reputation is one of integrity and as one of the most well-respected sports administrators in Australia, especially within motorsports. 
  3. [142]
    Mr Edgar did not cross-examine Mr Doohan. 

Mr Masi’s evidence

  1. [143]
    Fausto Michael Masi, a race director and deputy race director for the Supercars Australia Championship and the Dunlop race series, also gave evidence.  He worked for FIA as deputy race director for the Formula 1 World Championship in 2018.  He has also consulted to Karting Australia.  Mr Masi has known Mr O’Reilly for more than 20 years.  When they first met, in about 1995 or 1996, Mr O’Reilly was CEO of TOCA Australia.  Mr Masi has worked with and collaborated with Mr O’Reilly on a number of projects in the intervening years. 
  2. [144]
    According to Mr Masi, Mr O’Reilly holds a very high reputation as one of the leading sports administrators in the motorsports industry.  Mr Masi described Mr O’Reilly as having a reputation for unrivalled integrity, honesty and as a person who puts his heart and soul into his work. 
  3. [145]
    In brief cross-examination, Mr Edgar did not ask about or challenge in any way Mr Masi’s evidence of Mr O’Reilly’s reputation. 

Ms Holzberger’s evidence

  1. [146]
    The final witness called in Mr O’Reilly’s case was Melissa Kate Holzberger, a corporate lawyer with her own firm and a non-executive director of a number of companies, including the Australian Livestock Export Corporation Ltd and Tyre Stewardship Australia.  Ms Holzberger is also a member of the Radiation Health and Safety Advisory Council, which advises the Australian Radiation Protection and Nuclear Safety Agency.  Between 2013 and 2017, Ms Holzberger was a director of Karting Australia and served as deputy chair. 
  2. [147]
    Ms Holzberger joined the board of Karting Australia when the new company was first established in about August 2013.  She was a member of the board that “went to the market to recruit a full-time professional CEO”.  The board chose Mr O’Reilly for that role.  Ms Holzberger has known Mr O’Reilly since that time.  She did not know him before then.  In her first few years as a director of Karting Australia, Ms Holzberger spoke with Mr O’Reilly on a daily or weekly basis about the company’s operations. 
  3. [148]
    Ms Holzberger’s evidence of Mr O’Reilly’s reputation was that he was held in very high regard as a very principled man with high integrity, who was trustworthy, honest and an exceptional sports administrator. 
  4. [149]
    Mr Edgar did not challenge Ms Holzberger’s assessment of Mr O’Reilly’s reputation in cross-examination.    

Mr Edgar’s case

  1. [150]
    Mr Edgar conducted his own defence.  He told the court that before the trial he had spoken to “multiple people” for advice about the proceeding.  He formed a view about the way he wanted to conduct his defence, the things he wanted to say, the questions he wanted to ask and the submissions he wanted to make.  Although he had offers of legal assistance, including he said from “three lawyers, four barristers and five ex-police detectives,” Mr Edgar chose to represent himself because he considered it impossible for him to fully explain what had happened over the past 10 years to a lawyer and expect them to be able to present his defence in court as well as he could.  Mr Edgar’s view was that he stood a better chance of explaining his actions himself.  That is why, he said, he chose to represent himself at trial.  During the trial, he said he had a lawyer assisting him by requesting a transcript of the trial for him.
  2. [151]
    Mr Edgar told the court he is an invalid pensioner, with no savings and no car.  He said he has a medical condition that leads to him sleeping every four hours or so.  These factors, he said, prevented him from travelling to Brisbane to appear in person at the trial.  He said he proposed to give evidence, but would not be calling any other witnesses.  In the circumstances, his application to appear at the trial by telephone was allowed. 
  3. [152]
    Mr Edgar gave evidence in his own case.  He was permitted to do so, despite not having complied with pre-trial directions for the provision of a summary of evidence for any witness to be called.  He said he had been waiting for two and a half years to tell his story.  He tendered no documentary evidence.

Mr Edgar’s evidence

  1. [153]
    Mr Edgar was the son of a racing car driver.  He spent his first 15 years with his family in Horsham, Victoria.  He received his first go-kart when he was two years old.  At 13, together with other family members, he built a go-kart track at Horsham on land dedicated by the local council.  He was involved in a public campaign for the track, writing about it in the local newspaper.  So, writing and karting have a long-standing connection in his life.
  2. [154]
    At 15, he moved with his family to the Gold Coast and grew too large to race karts.  At 20, he resumed his interest by coaching other kart drivers and working at the Gold Coast Kart Centre, a retail outlet.  Drivers or teams coached by Mr Edgar had some success in kart racing over the following decade.  For example, he was a pit crew member, coach and mentor for the winner of the 1992 national championship.
  3. [155]
    Between about 1991 and 1997, Mr Edgar contributed articles to National Karting News and was paid 20 cents a word for this work.    
  4. [156]
    Between about 1997 and 2003, Mr Edgar returned to coaching kart racers and was employed by the driver who won the CIK series in 2002 and 2003.  Mr Edgar “retired” from kart racing after the second championship win. 
  5. [157]
    According to Mr Edgar, CIK was the top level of go-kart racing in Australia.  Mr Edgar describes his himself as “very bitter” towards the organisers of the CIK series in those years, because they failed to provide what Mr Edgar considered to be appropriate prizes for the wining driver and team. The competition organisers were from South Australia and one of them, Craig Denton, had a continuing involvement with the sport, including later as President of the karting organisation in South Australia and then with Karting Australia. 
  6. [158]
    It was not until 2009, that Mr Edgar resumed any public role, contributing comments to an on-line forum “Kartbook”.  He describes himself as “a very outspoken person on this forum” and says he was given permission by the two owners of the site to say whatever he wanted.  According to Mr Edgar he used his “power” with the on-line audience of the forum to put pressure on Mr Denton about the reorganisation of the national karting body in Australia. 
  7. [159]
    Whatever power Mr Edgar thought he could wield, in this respect, failed to prevent the new national body, Karting Australia Ltd, from being constituted as a company limited by guarantee with a board and professional CEO.  Mr Edgar has maintained his opposition to the skills-based independent board.  He expected the board to be elected by a “democratic vote”.  He resents the intrusion of professionals into a sport he thinks should be run by its active enthusiasts. 
  8. [160]
    Mr Edgar in his oral evidence said he was “trying to explain why I’ve made accusations against Mr O’Reilly and that they’re justified.”  He had some understanding of the absolute privilege afforded to evidence given in court:

Well, I thought that, you know, because I’ve made the accusations, that I’m allowed to – to write my reasoning for those accusations.  So I thought that I could repeat them, as often as I liked, because I’d been accused of making these accusations and they’re unfounded and – and lies, according to Mr O’Reilly, where it was my intention to prove that they’re not lies.

  1. [161]
    Mr Edgar regards himself as a reporter. He says he has a duty to provide his audience with updates and details of what is taking place in the sport of kart racing and offer his comments on the sport.  He says he has established an audience for his reporting over the last 10 years.    He described his Facebook page or “forum” as “the biggest source of information in Australia for other go-karters.”

There is no other media set-up that is bigger than my page.  You know, my page is the – it’s the go-to point for information, and I’ve earned the respect of karters in the last 10 years by providing solid, honest information. .. I have the respect of the Australian Karting public.  I receive hundreds if not thousands of messages a day providing information or support or encouragement to continue to do the right thing.

  1. [162]
    In response to the evidence that during the trial he had posted an entry speculating that Mr O’Reilly might “do real jail time”, Mr Edgar described what he did on the Facebook page as “report on facts as they appear”.  He continued:

I believe my audience has the right to absorb and understand and also to discuss and by putting that post up there I haven’t invented or concocted anything.  My position as a reporter requires me to comment on real time facts as they appear …  I’m merely reporting on the facts and action of Mr O’Reilly and the board of Karting Australia as they appear in front of me. 

  1. [163]
    Throughout his evidence in chief Mr Edgar adopted a self-righteous, lecturing tone.

Conclusions on the defence of justification

  1. [164]
    In his closing submissions, Mr Edgar proposed connections and conclusions that no reasonable person could honestly make or draw.  It was difficult to discern the small nodules of fact amidst the vast web of fantasy spun by Mr Edgar.  It is clear that he is uninterested in checking the truth or falsity of the matters he posted on his Facebook page.  He presented as an enthusiastic retailer of distant, third- or fourth-hand gossip. 
  2. [165]
    Three examples will indicate the problem.  
  3. [166]
    Mr O’Reilly attended Gawler High School in South Australia, the same high school as Craig Denton.  From this alone, Mr Edgar concluded that Mr Denton had improperly used his influence to get a job for his “school buddy” Mr O’Reilly.  In fact, Mr O’Reilly is 15 years older than Mr Denton.  By the time Mr Denton commenced his first year of primary schooling, Mr O’Reilly was a graduate teacher at another school.  A modicum of diligence on the part of Mr Edgar would have revealed the foolishness of his conclusion.  He never troubled himself to check the matter.  After the age difference was pointed out by Mr O’Reilly during cross-examination, Mr Edgar still insisted “there was a good chance they had a connection” and later went so far as to say Mr O’Reilly “appeared to gain his position through underhanded reasons” again referring to his “connection” with Mr Denton.  This conclusion, like many others rashly drawn by Mr Edgar, is unsupported by any facts known to Mr Edgar. 
  4. [167]
    Any objective analysis would conclude it was unlikely there was any personal connection between the two men.  Attending the same school fifteen years apart could not sensibly ground any allegation of “underhand” dealings. 
  5. [168]
    According to Mr Edgar, this conclusion (illogical and counter to any evidence as it is) was the seed of his later and continuing personal attacks on Mr O’Reilly.  Mr Edgar still believes Mr O’Reilly obtained the position as CEO of Karting Australia “due to incorrect procedures” and explained that this was why he “made accusations against Mr O’Reilly” and why he considered his accusations to be “justified.”   In a demonstration of his personal cowardice, Mr Edgar did not put to Mr O’Reilly the allegations he made on-line about Mr O’Reilly’s appointment to Karting Australia; although he repeated them in his closing submissions.  
  6. [169]
    The second example concerns a more serious allegation made by Mr Edgar against Mr O’Reilly in the sixth post.  It makes clear the sheer irresponsibility of Mr Edgar with regard to his style of “reporting”.  According to Mr Edgar he was informed “by a mate” that a person had said that he worked with Mr O’Reilly at a football club near Burleigh and that Mr O’Reilly had been dismissed as a director of the club for sexually harassing a female bar staff member. 
  7. [170]
    Accepting that he “should check into it”, Mr Edgar never did. He did not make any enquiries about the matter.  He did not consider the fact that Mr O’Reilly had not been employed at or a director of a football club at Burleigh (or anywhere on the Gold Coast for that matter) should influence his “reporting”.  The chances that the rumour conveyed to Mr Edgar by his mate were not about this Kelvin O’Reilly were overwhelming and obviously so. 
  8. [171]
    In his closing submissions, Mr Edgar said that in the sixth post he was “only reporting on what I’ve been told.”  Mr Edgar contended that his post was only “suggesting that this may have happened” and that he was reporting it as a “rumour”.   Of course, the act of reporting such an allegation, suggesting that Mr O’Reilly may have acted in this way, and so disseminating such a rumour, is little less damaging to the reputation of Mr O’Reilly than “stating it as a fact”, which Mr Edgar maintains he did not do.  At the trial, he made no attempt to prove the “truth” of this or any other matter “reported” in his posts.  In the circumstances, the maintenance by him of a defence of truth throughout the proceeding and the trial in respect of the imputation was frankly disgraceful.   
  9. [172]
    The final, and most serious example, concerns the tenth post. 
  10. [173]
    There was no challenge to Mr O’Reilly’s evidence that he first learned of the allegations against the former caretaker for the Ipswich Kart Club when he read them on Mr Edgar’s Facebook page.  By that time, the former caretaker had ceased to have any role with the Club.  In his closing submissions, Mr Edgar accepted that the person in question had become involved in the Club’s activities many years before Mr O’Reilly began work with Karting Australia.  To be clear, it follows that every awful thing Mr Edgar imputed about Mr O’Reilly in respect of the Ipswich caretaker was utterly false; and, with a moment’s reflection, Mr Edgar, like any reasonable person, would have known that to be the case. 
  11. [174]
    In respect of the Western Australian photographer, the evidence before the court is that in February or March 2017 the WA Karting authorities raised with Mr O’Reilly a concern about a “creepy” accredited photographer, who also managed the WA Karting Facebook page and website.  Mr O’Reilly spoke with staff of the Office of Sport in Western Australia.  Mr O’Reilly then advised the secretary and the treasurer of Karting WA to ask the person to undertake a “working with children” check by the relevant State Government agency and to suspend his ability to attend kart races until the check was obtained.  It appears the advice was followed.  In about May 2017, the person was approved by the WA State Government to work with children.  In about September 2017, Karting Australia was notified that the person’s working with children authority had been temporarily suspended.  Karting Australia immediately revoked the person’s photographic credentials for karting events and Karting WA revoked his credentials to attend kart race meetings.  The person was subsequently charged with the possession of child exploitation images and further sexual offences. 
  12. [175]
    It was a gross and perverse falsehood for Mr Edgar to publish the tenth post describing Mr O’Reilly as an “enabler” of the activities of this person, whom Mr Edgar calls a paedophile, and to accuse Mr O’Reilly of trying to cover-up the person’s actions and encouraging the person to remain active in Karting Australia so as to expose children to risk of harm.  There was simply no reasonable basis on which Mr Edgar could have defended the imputations in his tenth post as true.
  13. [176]
    In the course of his closing submissions, when the lack of evidence was brought to his attention, Mr Edgar raised the possibility that the court might make orders requiring the production of documents – by Karting WA, the Tiger Kart Club, the Ipswich Kart Club, the police, the Ipswich City Council and perhaps other bodies -  to assist Mr Edgar to prove the truth of the imputations.  At that point in time, Mr Edgar had closed his case.  He had not asked the court registry to issue any subpoena.  He had not sought disclosure from any non-party or administrative access to any government document.  When asked to explain his lack of diligence in these respects, Mr Edgar said that he was hoping that when the police investigations were complete that there would be reports in the media that would allow him to subpoena documents, presumably referred to in media reports.  
  14. [177]
    When Mr Edgar filed his defences alleging the truth of the imputations, and when the matter was set down for trial, and when the trial was heard, he knew that there had been no media reports of any completed police investigations.  He did not take any other course, such as amend his defence.  He did not then ask for subpoenas to be issued or for the trial dates to be vacated. Instead he proceeded with his defence and with the trial in the absence of any evidence that might have supported his defence.  He must accept the consequences of his decision to do so. 
  15. [178]
    Mr Edgar adduced no evidence that any of the imputations was true.  Mr O’Reilly gave evidence that each was false. 
  16. [179]
    It follows that in each instance Mr Edgar failed to discharge his onus of proving, on the balance of probabilities, that the alleged imputation was true.  His justification defence fails in respect of each of the imputations pressed by Mr O’Reilly, save for the two imputations which I have found were not conveyed by the eighth post.   

Conclusions on defence of triviality

  1. [180]
    When defamatory matter is published, the law presumes that the person defamed suffers damage to his or her reputation.[40]  It follows that Mr O’Reilly is entitled to damages for the injury to his reputation caused by the nineteen defamatory imputations conveyed by the nine published posts.  The plea in Mr Edgar’s defence – that Mr O’Reilly has not suffered any harm or any loss or any damage – must fail. 
  2. [181]
    Mr Edgar’s defence also included a plea that “if the plaintiff has suffered any harm, loss or damage, then it is inconsequential and trivial as provided by s 33 of the Defamation Act.”  The reference is to s 33 of the Act, which provides:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

  1. [182]
    A party relying on this defence must prove the circumstances of the publication and persuade the court to the view that at the time of each publication – in those circumstances – looking prospectively the plaintiff was unlikely to suffer harm.[41] 
  2. [183]
    Mr Edgar’s written defences did not identify the circumstances he relied on for this defence.  He made no oral submissions on this topic. 
  3. [184]
    The uncontroversial circumstances common to the publication of the nine defamatory posts include: the serious nature of the imputations that the nine posts convey; the publication of the posts through the Facebook pages to numbers of unknown persons; there being no basis to assume that the persons to whom the posts were published would know Mr O’Reilly well enough to disregard the imputations and reject the thought that there was some factual justification for the imputations; and the fact that Mr O’Reilly was the CEO of Karting Australia. 
  4. [185]
    The question raised by this defence is whether, looked at objectively, the circumstances of publication were such that Mr O’Reilly was unlikely to suffer harm.  It is sufficient answer to state that, on the evidence before the court, it could not be assumed that publication of each relevant post would not affect his business reputation and employment.[42] 
  5. [186]
    The nature of the social media posting and the “grapevine” effect, considered below, also lead to the conclusion that at the time of publication of each relevant post (i.e. between when it was first posted and the trial), it was likely the imputations would be republished to an unknown number of persons, further bearing on the likelihood of harm.  The circumstances of each of the publications were such that Mr O’Reilly was likely, rather than unlikely, to suffer harm.
  6. [187]
    It follows that Mr Edgar’s triviality defence fails.   

General damages

  1. [188]
    The court awards damages for defamation for three purposes.[43]  Firstly, the damages serve to give the person who has been defamed some consolation for the personal distress, embarrassment and hurt caused by the publication.  Secondly, the damages are reparations for the injury done to the personal and business reputation of the person defamed.  Thirdly, the damages serve to vindicate the reputation of the person defamed. 

Personal distress, embarrassment and hurt

  1. [189]
    The first purpose may be the most significant element of the damages awarded.  This is because the harm caused by the publication of defamatory matter is often more in the injury to the defamed person’s own feelings – what they fear others are thinking of them – than any actual change manifested in the attitude or behaviour of others towards the person.[44] 
  2. [190]
    I accept the frank and emotionally difficult evidence of Mr O’Reilly as to the effect on him personally of Mr Edgar’s posts over the past three years.  Mr O’Reilly impressed as a truthful witness, who sought to answer questions honestly, notwithstanding the raw and intimate nature of some of the subject matter.  I accept that he was highly sensitive to the posts and that the emotional impact and stress he spoke of were genuine and very deeply felt.  I also accept that Mr O’Reilly’s personal situation, as a cancer survivor who has endured the existential challenges of diagnosis, surgery and non-surgical treatment, made him more vulnerable to substantial personal harm from such posts.  The nature of the imputations I have found to be conveyed by Mr Edgar’s nine posts made such devastating injury likely. 
  3. [191]
    The imputations of gross incompetence, which the third and seventh posts convey, would injure the feelings of any senior executive.  The “fear and intimidation” imputations, which the first, second and fourth posts convey, would also harm a senior employee.  The imputations of unlawful, improper and personally corrupt conduct, which the second, fourth, fifth and ninth posts convey, would cause more serious injury. 
  4. [192]
    In the prevailing “#me too” climate, the imputation that Mr O’Reilly was dismissed as a director for sexual harassment, which the sixth post conveys, would be particularly injurious for a happily married CEO, like Mr O’Reilly.  “At the time,” Mr O’Reilly said, “I didn’t think you could say anything worse about me, than that.”
  5. [193]
    However, the most serious imputations, which the tenth post conveys, would have been devastating for the CEO of a motorsports organisation with 40% of its competitors under the age of 15.  One can readily understand Mr O’Reilly’s very strong reaction, in particular, to the tenth post.  Coming after eight earlier defamatory posts, the cumulative impact on Mr O’Reilly’s feelings and state of mind was manifest in his responses to questions at the trial.  He was “horrified”, he said.  As much was plain from him visibly shaking, unable to speak and reduced to the point of tears at the mere recollection of reading the post.
  6. [194]
    I find that Mr O’Reilly was caused serious harm by Mr Edgar’s on-going unlawful infringement of his right to protection of his otherwise outstanding reputation.  His injury is all the graver because Mr O’Reilly knew each of the relevant imputations to be untrue; and because despite issuing a concerns notice, and later commencing this proceeding, Mr Edgar’s persistence with publishing the first four posts and his subsequent publishing of the fifth, sixth, seventh, ninth and tenth posts, made Mr O’Reilly feel more “hopeless” and “helpless” than he had ever felt in his, rather challenging, life. 

Injury to personal and business reputation

  1. [195]
    For the second purpose of an award of compensatory damages, the extent of the publication of the defamatory imputations is important.  As the New South Wales Court of Appeal observed in Ali v Nationwide News Pty Ltd:[45]

In assessing damages the tribunal of fact is entitled to take into consideration “the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end”. Such circumstances might in the opinion of that tribunal “increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff”.[46]

  1. [196]
    The full extent of publication of the nine posts conveying the defamatory imputations cannot be determined with certainty. 
  2. [197]
    Mr O’Reilly gave evidence of people contacting him about each of the posts.  No doubt many who knew Mr O’Reilly, or were in a position to objectively judge his career and work, would have rejected the defamatory slurs Mr Edgar’s nine posts convey.  However, I accept Mr O’Reilly’s evidence that many of the ordinary people who compete in kart racing in Australia, their family, friends and supporters would not know anything of Mr O’Reilly that might check the false imputations published by Mr Edgar in the nine posts. 
  3. [198]
    In late 2015 and early 2016, when the first and second posts were published, the Go Kart Kid page had 322 members.[47]  When the third to ninth posts were posted to the continuing Facebook page, there were at least 1,000 members of that public group who downloaded and read those posts.[48]  When the tenth post was posted, the Facebook page had at least 1,250 members of the public group who read the post.[49]  By the time of the trial, there were about 1,400 members of the public group. 
  4. [199]
    The evidence before the court is that Karting Australia has about 7,000 licensed members.  According to Mr Edgar, about 4,000 of the members actually race go-karts.  It follows that the number of members of Mr Edgar’s Facebook page is quite significant in the context of the sport of karting in Australia. 
  5. [200]
    Mr Edgar contends that he has a quarter of the karting community as members of his page, which he described as “a very large audience amongst the go-karting crowd.”  Whether as a consequence of this membership or otherwise, Mr Edgar described as a “fact” that his Facebook page was the greatest source on karting in Australia.  According to Mr Edgar, the majority of people involved in go-karting who seek out information on social media visit his Facebook page.  His estimate is that hundreds of people read his page every day and about a 1000 people have provided him with information to post on the page over the years since it was established. 
  6. [201]
    The “targeting” of the publications to a key part of the public – those with an interest in kart racing – makes them particularly damaging to Mr O’Reilly’s business reputation, which was noted to be predominantly in the motorsports arena. 
  7. [202]
    As well, many members of the “Australian karting public”, as Mr Edgar describes them, are likely to be members of karting clubs affiliated with a State or Territory karting body, which is a member of Karting Australia.  Some of Mr Edgar’s posts expressly refer to the influence such members have on the decisions of the State and Territory bodies in respect of the election of the board of Karting Australia.  In the second and fourth posts, Mr Edgar urged either the dismissal of Mr O’Reilly by the existing board members or the election of board members who would remove Mr O’Reilly as CEO.  Each of the other six posts conveyed imputations that, if true, would logically have given cause for the termination of Mr O’Reilly’s employment. 
  8. [203]
    Mr Edgar says he is an influential commentator who has quite a bit of influence over the karting general public – whether that be people who read his Facebook page or others who hear of his posts through other social media communications or word of mouth from those who do read it. 
  9. [204]
    In addition to the members of the public groups connected to the Facebook pages, it is common ground that: the Go Kart Kid page with the first and second posts was able to be viewed by any member of the public with a Facebook account and was in fact viewed by members of the public in addition to the 332 public group members;[50] and at all times the third to tenth posts (on the continuing Facebook page) were able to be viewed by and were viewed by any member of the public with a Facebook account, in addition to the public group members.[51]
  10. [205]
    The so-called “grapevine” effect recognises that the dissemination of defamatory material is rarely confined to those to whom it is immediately published.  The harm caused to reputation does not come to an end with the publication.[52]  Past observations that it is “impossible to track the scandal, to know what quarters the poison may reach” are apt to describe the effect of publication of defamatory matter on social media, where the defamation tends to spread very rapidly and might emerge “from its lurking place at some future date”,[53] when, again, it has “a tendency to spread.”[54] 
  11. [206]
    I am satisfied that, over the period from 23 November 2015 to date, the defamatory posts published by Mr Edgar have been published or republished to some thousands of readers, most with a particular interest in kart racing.  While this is not as extensive a publication as might be the case in free to air television, radio or newspaper publications, it is important that the Facebook posts were effectively made available to anyone in the world with access to the internet and a Facebook application.  The concentration of the publications to persons with an interest in kart racing in Australia focuses precisely on the arena in which Mr O’Reilly has a good reputation, and where he works.  In the circumstances, I accept that the publication on the Facebook pages of the nine posts conveying the nineteen imputations has done great damage to Mr O’Reilly’s reputation. 

Vindication

  1. [207]
    The first two purposes of a damages award are frequently considered together as constituting “consolation for the wrong done” to the plaintiff; whereas the third purpose, vindication, “looks to the attitudes of others.”[55]
  2. [208]
    The award of damages has been described as the principal means by which the court speaks to provide vindication. This recognises the reality that a “headline judgment” constituted by an award of damages is more likely to be regarded by members of the public generally than the detailed reasons published by the court.[56]  It follows that the compensatory damages awarded must be sufficient to convince a person to whom the imputations were published by Mr Edgar or to whom they were published by another “through the grapevine” (or to whom they may later be published or republished) that the imputations are baseless.
  3. [209]
    The court must be conscious that an award of damages needs to be sufficient to convince a bystander, who later learns of a slur through the “grapevine”, of the baselessness of the charge.[57] 

Aggravated damages

  1. [210]
    Where a defendant acts improperly or unjustifiably or in a way that demonstrates a lack of good faith, the court may also award aggravated damages.[58]  This is particularly so when the bad faith, improper or unjustified conduct has increased the hurt or damage to reputation caused by the original defamatory publications.[59]  Mr O’Reilly seeks aggravated damages against Mr Edgar. 
  2. [211]
    Although describing himself as a “reporter”, Mr Edgar did not put any of the allegations in the posts to Mr O’Reilly before publishing them; nor did he take any other proper steps to check whether what he was “reporting” was true.  In the circumstances, it was improper of Mr Edgar to publish the allegations.  If this was “reporting” at all, it was at its most improper and irresponsible limits.
  3. [212]
    In August 2016, after the publication of the fourth post, Mr O’Reilly’s lawyers sent a concerns notice to Mr Edgar stating that the allegations in the first four posts were untrue.  Having been alerted to Mr O’Reilly’s concerns about the injury to his reputation, Mr Edgar took no steps to take those posts down from the Facebook pages or to prevent their continued publication.  Indeed, the third and fourth posts remain on the Facebook page and so continue to be published.  No steps were taken to repair the damage to Mr O’Reilly’s reputation and no gesture was proffered to redress the injury to his feelings. 
  4. [213]
    If Mr Edgar made any attempt to verify the posts after he received the concerns notice, he gave no evidence of it.  As noted above, he posted a mock apology on the Facebook page.  In it he asserted that the posts were justified as true.  In addition, he went on to put posts five, six, seven, nine and ten on the Facebook page, and so publish them to users and visitors who download and read the page, conveying the relevant further defamatory imputations. 
  5. [214]
    Mr Edgar then defended this proceeding on the ground that all the imputations, if conveyed, were true.  This put Mr O’Reilly in the position of having to face the stress of a public trial, where his reputation would likely be further attacked by the justification defence, including the prospect of a lengthy cross-examination by Mr Edgar or his Counsel. 
  6. [215]
    During the trial, Mr Edgar repeated in open court each of the nine posts conveying the defamatory imputations.  Mr Edgar was aware of the public nature of the trial, asking at one point whether any representatives of media organisations were present in the gallery. 
  7. [216]
    He cross-examined Mr O’Reilly at some length (3 hours) adopting a sarcastic tone throughout.  He sought to question Mr O’Reilly about topics, such as his salary, which were not relevant to the matters in issue.  He mocked Mr O’Reilly’s strong emotional reaction to the posts – making dismissive sounds at the time and later in a highly sarcastic tone referring to Mr O’Reilly as having “burst into tears” and become “emotionally unstable”. 
  8. [217]
    Mr Edgar was prepared to “talk a big game” when alone in front of his computer screen.  With the protection of the court forum, in his own evidence in chief and in his closing submissions, Mr Edgar said he was “100% sure” of the posts he put on the Facebook page.  However, he avoided putting to Mr O’Reilly the words from his own “reports” bearing the real sting of the posts.  His questions danced around the imputations, dealing more with peripheral matters.  Observing this at the trial, I have no doubt there was an element of cowardice in his conduct. 
  9. [218]
    With the benefit of hearing Mr Edgar’s evidence and, as significantly, the manner in which he organised and presented his arguments, I am disinclined to the view that he is so foolish or so stupid that he did not understand what he was doing or that he was able to be manipulated by others into publishing matters that cannot be proved in order to damage Mr O’Reilly’s reputation.  If Mr Edgar was a dupe, so to speak, then he was very willingly so.  In the present case, it would make no difference to the outcome. 
  10. [219]
    From the manner in which he conducted his defence, the tone in which he gave his evidence, his manner of questioning witnesses and his persistence with contentions that could not be justified, I formed the view that he is a bitter person, frustrated that his injunctions are not being followed by the administrators of a sport he has loved all his life.  Mr Edgar has coped with his disappointment at the changes of direction in the karting world by posting increasingly seriousness attacks on the reputation and character of Mr O’Reilly and evidently others.  Over three years, these have culminated in the most outrageous of the allegations, such as those conveyed in the tenth post. 
  11. [220]
    It is difficult to avoid the conclusion that Mr Edgar put each of the nine posts up on Facebook not caring whether it was true or false and that he did so for the purpose of damaging and then further damaging Mr O’Reilly’s reputation – with a view to having him dismissed from his employment as CEO of Karting Australia.  There is no other logical or plausible explanation for his egregious conduct.  I accept the submission on behalf of Mr O’Reilly that, in publishing the posts and in the conduct of his defence, Mr Edgar was motivated by a desire to injure Mr O’Reilly’s reputation, and otherwise cause him harm.   
  12. [221]
    As noted above, Mr Edgar led no evidence that could establish any of the alleged imputations is true.  Save for his denial of the two imputations alleged to be conveyed by the eighth post, Mr Edgar’s conduct of his defence was not bona fide and not justifiable in its resistance to Mr O’Reilly’s claim.[60] 
  13. [222]
    I am satisfied this improper conduct increased the injury to Mr O’Reilly’s feelings and caused some additional damage to Mr O’Reilly’s reputation.  The damages awarded should be in an amount sufficient to remedy the increased injury and additional reputational damage so caused.[61]  Mr Edgar’s conduct in the proceeding and at trial, in continuing to assert the truth of the imputations conveyed by the nine posts, also calls for an amount of damages sufficient to vindicate Mr O’Reilly’s reputation in respect of the additional damage caused by that conduct.  
  14. [223]
    In the circumstances, Mr Edgar’s conduct warrants an award of aggravated damages.  It follows that the statutory cap on damages has no application in this case.[62]

Quantification of damages

  1. [224]
    The assessment of damages for defamation is imprecise, in the sense that damages cannot be calculated by a mathematical formula and “damage to reputation is not a commodity having a market value.”[63]
  2. [225]
    The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendant’s conduct.
  3. [226]
    Although the nine posts convey a range of defamatory imputations, there is a clear and close relationship between them.  All are published by Mr Edgar; all are directed at Mr O’Reilly; all are published by means of a Facebook page (seven on one page and two on another); and all concerned, in one way or another, aspects of Mr O’Reilly’s role as CEO of Karting Australia. 
  4. [227]
    All but the first two posts continue to be published by Mr Edgar on his Facebook page.  The effect of the defamatory publications is cumulative; each publication compounding the harm caused by the earlier posts, renewing and expanding the hurt to Mr O’Reilly’s feelings and exacerbating the damage to the reputation he had enjoyed in motorsports circles.  As, over time, the posts grew progressively more damaging, they no doubt built upon each other.  The earlier imputations (of managerial incompetence and legal misconduct) establish a base that make the later imputations (of sexual harassment and kickbacks) and the latest most extraordinary imputations (of covering up and enabling the sexual abuse of children) all the more damaging, because they are said of a person whose reputation is already smeared as incompetent, a sexual harasser and personally corrupt. 
  5. [228]
    In the circumstances, it is not appropriate to identify the hurt and damage occasioned by each post.  Rather, it is sensible to take account of the aggregate “harm” suffered by Mr O’Reilly by reason of all the defamatory publications taken together.[64]  
  6. [229]
    The court may assess damages in a single sum, even where, as here, there are nine separate publications.[65]   
  7. [230]
    Every defamation is unique.  The damages awarded reflect the subjective effect of the particular defamation on the particular plaintiff as shown by the evidence adduced in the case.[66] 
  8. [231]
    To the extent that other damages awards may be of assistance,[67] in his written submissions Mr McCafferty QC cited a number of cases, including seven in which damages were awarded for the publication of defamatory imputations through social media.
  9. [232]
    In those cases, the general damages awarded ranged from: $150,000 for an allegation that the CEO of a hotel was incompetent and not a fit and proper person, published on a subscription website;[68] the same sum for allegations of hypocrisy, incompetence and unfitness against a bishop in a series of Facebook posts;[69] $200,000 for allegations the owner of a restaurant threatened people, abused power, discriminated and abused employees, published in nine posts on Facebook;[70] $250,000 for allegations that a person was a racist, a bully who intimidated artists and sexually harassed volunteers and staff, published in limited internet publications;[71] $300,000 (including aggravated damages) for allegations that the head of customer relations at a bank was grossly incompetent, bullied and intimidated customers, pushed out staff who disagreed with his dishonest behaviour and corruptly awarded his partner a contract with the bank, published on a website, in an email and in a Facebook post;[72] $340,000 for allegations that a poker player was a thief, published in five Facebook posts and three other slanders;[73] and $480,000 for allegations an orthopaedic surgeon was grossly negligent and a “butcher”, published in a number of website publications.[74]
  10. [233]
    In order to compensate Mr O’Reilly for the injury to his feelings and the damage to his reputation, including aggravated damages, an award of damages of $250,000 is appropriate.  Consideration of the seven decisions noted above, leads me to conclude that this sum is also sufficient to vindicate Mr O’Reilly’s reputation. 

Interest on damages

  1. [234]
    Mr Edgar should pay Mr O’Reilly interest on the damages awarded from the date Mr O’Reilly’s cause of action arose.[75] 
  2. [235]
    Given the staggered and increasing severity of the defamatory publications, I propose to give judgment for interest at 3 per cent per annum on the total damages from 23 May 2016, when the fifth post was first published. 

Injunctions

  1. [236]
    Mr O’Reilly seeks a mandatory injunction requiring Mr Edgar to remove the remaining posts conveying the defamatory imputations from the Facebook page and a permanent injunction restraining Mr Edgar from publishing them again in the future. 
  2. [237]
    The equitable remedy of injunction is discretionary, granted where appropriate in all the circumstances.[76] 
  3. [238]
    Seven of the remaining posts have been found to convey defamatory imputations.  It is appropriate to order Mr Edgar to remove them from the Facebook page and so as to cease publishing them to the world. 
  4. [239]
    The critical factor for the grant of a final restraining injunction is the risk of a repeat of the publication of the defamatory matter.[77]  It has been said that such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk.[78]
  5. [240]
    The risk that Mr Edgar will republish the posts appears high.  He refused to apologise and remove the first four posts when he was served with a concerns notice.  In fact, he parodied the process in another post.  During the trial, he did not offer any assurance to the court that he would act to remove any posts found to convey defamatory imputations.  He maintained that the posts were justified and that the defamatory imputations were true, despite having no evidence capable of proving that to be the case.  His increasingly serious attacks on Mr O’Reilly’s reputation over the course of the posts, and at the trial, betray an embittered attitude towards Mr O’Reilly.  His conduct in publishing and then defending the posts has the flavour of a vendetta against Mr O’Reilly.  Mr Edgar’s characterisation of his conduct as a “reporter” demonstrates an erroneous self-righteousness that likely would lead him to repeat his unlawful conduct, if not restrained. 
  6. [241]
    These considerations lead to the conclusion that a further injunction restraining Mr Edgar from further posting or republication is also reasonably necessary. 
  7. [242]
    I propose to give judgment for Mr O’Reilly against Mr Edgar for the damages noted above and interest and make the mandatory and permanent restraining injunction orders noted above. 

Schedule

Posts complained of and alleged imputations

Item

Post

Item

Alleged imputation

1

Peter Edgar KA will crush Boldy like an ant on the footpath. Any club that allows him to use there track will suffer the consequences as KA can make life very hard for them. KA rules through fear and intimidation. The same tactics O’Reilly used when he was running V8 supercars and the 2-litre TOCA series. He is a vicious mongrel with an iron fist.

  1. (a)
     

The plaintiff is a low and disgusting bully.

  1. (b)
     

The plaintiff controls Karting Australia through fear and intimidation.

  1. (c)
     

The plaintiff controlled V8 Supercars and the 2-Litre TOCA Series (2 litre Touring Cars) through fear and intimidation.

2

Peter Edgar O’Reilly failed to adhere to proper process and has bought Karting into disrepute by deliberately ignoring KAs own constitution, a document that his duty is to uphold and protect, not to use to selectively intimidate and persecute two highly credentialed karting personel [sic], warranting him to be removed from office as a minimum, not to mention that he deliberately and vindictively incurred karting an unwarranted expense, as well as complete failure of the principles that the karting constitution required him to observe and comply with in his job as CEO. He must be sacked as he alone, has bought all and any further comment on media regarding this matter into karting disrepute. A Supreme Court judge has ruled that O’Reilly deliberately ignored KAs own constitution. That evidence alone is sufficient for the other members of the KA board to call for his dismissal without having to conduct there [sic] own internal enquiry. Facts are facts and can’t be sweeped [sic] away.

  1. (a)
     

The plaintiff in his role as Chief Executive Officer of Karting Australia brought the organisation into disrepute by ignoring the Karting Australia Constitution and by intimidating and persecuting two highly-credentialed Karting Australia personnel.

  1. (b)
     

The plaintiff so misconducted himself in the intimidation and persecution of two highly-credentialed Karting Australia personnel that he deserves to be dismissed as Chief Executive Officer.

  1. (c)
     

The plaintiff as Chief Executive Officer of Karting Australia breached his duties by incurring unwarranted expenses for the organisation in pursuit of a personal grudge.

3

Peter Edgar O’Reillys [sic] incompetent management skills destroyed V8s, 2-Litre Touring Cars and Rally Australia. He is well on the way to destroying Karting. Wont [sic] be long before he is CEO of Slot Car Racing Australia. If I was racing slot cars I would be deeply concerned.

  1. (a)
     

The plaintiff as Chief Executive Officer of Karting Australia acts with gross incompetence in his role.

  1. (b)
     

The plaintiff is so grossly incompetent as a manager that he has destroyed other racing organisations such as V8 Supercars, 2-litre TOCA Series (2 litre Touring Cars) and Rally Australia.

  1. (c)
     

The plaintiff’s mismanagement of Karting Australia is responsible for the ongoing decline in interest in the sport.

4

Peter Edgar Jeez I’m copping some flack over this post. Shit going down everywhere. I’ve upset a few but they are a small minority and should have acted in the correct manner in the first place and they wouldn’t have had to answer for it later on. Others are just worried I might have blown there [sic] cover and are busy covering the trail behind them. I can tell you there are a lot of people pissed off with Mick Doohan, and his chances of being re-elected are changing daily. Rumours of a major swing against him are rife. Word is O’Reilly has already gone in to meltdown mode after discovering his buddy Mick is going to be booted. O’Reilly is planning to stall off the elections next week, and declare that the nomination process was held incorrectly and that it must be done all over again. This will allow O’Reilly the chance to ring around all the clubs and threaten/bribe them in to reconsidering there [sic] vote. Things are getting real nasty with only 7 days out to the AGM where the voting tally will be revealed. Due to sworn secrecy, I cannot reveal from this point on which State is voting yay or nay….but I can say… is that all we need to be rid of Doohan, is one more vote. As the tally stands at the moment he is losing badly. All votes must be submitted by tonight. All we need is for one more State to jump ship and support the rebel uprising… and Doohan is out of here. Fingers crossed… it’s going to be close. Tomorrow is my Birthday… I’m hoping I get some good news.

  1. (a)
     

The plaintiff intends to corrupt the Karting Australia election process by contacting clubs and threatening them into voting for Mick Doohan.

  1. (b)
     

The plaintiff intends to corrupt the Karting Australia election process by contacting clubs and bribing them into voting for Mick Doohan.

  1. (c)
     

The plaintiff as Chief Executive Officer of Karting Australia is prepared to corrupt the Karting Australia election process of that organisation to ensure that his friend, Mick Doohan, is elected.

  1. (d)
     

The plaintiff intends to corruptly postpone the Karting Australia elections, and invalidate the nomination process, in order to ensure that Mick Doohan is elected.

5

Peter Edgar Kelvin has sold karting out to CAMS behind our backs… and in return received a sweet paying job and a free corporate box at V8 Supercar events. I can’t believe they would have him back after he bought the V8s to it’s [sic] knees last time he was in charge.

  1. (a)
     

The plaintiff secretly and corruptly accepted a well-remunerated role with V8 Supercars (including access to a corporate box) in exchange for ‘selling out’ the interests of the sport of karting to the Confederation of Australian Motorsports (CAMS).

  1. (b)
     

The plaintiff’s gross incompetence destroyed V8 Supercar racing.

6

Peter Edgar That reminds me… A mate of mine who played footy for Burleigh AFL club on the Gold Coast… told me that O’Reilly was a Director at the club a while back… but was dismissed for sexually harassing a female bar staff member. I should check in to that…

  1. (a)
     

The plaintiff was dismissed as a director of Burleigh AFL club because he sexually harassed a female bar staff member.

7

Peter Edgar “Ungodly mess” was a term used by the media to describe OReillys [sic] time in charge of other terms of motorsport. He is a wrecking machine. The bloke blows things up… gets fired… and moves on to blow up something else. There is good reason why he went from F1 down to V8s down to 2-Litre Touring Cars down to Rally Cars down to Go Karts. I fear for the slot car racing scene…

  1. (a)
     

The plaintiff while in charge of other forms of motorsport was so grossly incompetent that he was dismissed from all of them.

  1. (b)
     

The plaintiff was so grossly incompetent while in charge of racing organisations such as F1, V8s, 2-Litre Touring Cars, Rally Cars and Go Karts, that had he not been fired from each role he would have wrecked the organisations.

8

Peter Edgar The high CIK revenue will be from sponsorship money. Castrol, Jayco etc. The sponsorship money should go towards prizes and incentives for competitors as it used to since 1995… but it’s not. It’s going straight int [sic] KO’s and KA’s pocket. Mongrels. This is why I hate Havacheque … he rorted us two years in a row when we won the CIK Formula A title. He promised us massive prizes at the start of each year … and then renigged each time. WE WANT OUR PRIZEMONEY AND TEST DRIVES YOU SCAMMING LITTLE GERBIL!

  1. (a)
     

The plaintiff was corrupt in that he personally pocketed sponsorship revenue which should have gone towards prizes and incentives for competitors.

  1. (b)
     

In the alternative, the plaintiff was a scammer because he personally pocketed sponsorship money which should have been used for prizes and incentives for competitors.

9

Peter Edgar No kickbacks ? … You know KO loves his kickbacks ?... Engine kick back … tyre kickback … airbox kick back … Only ones not getting a kick back is us karters!

  1. (a)
     

The plaintiff in his role as Chief Executive Officer of Karting Australia corruptly received kickbacks from sponsors including engines, tyres and air-boxes.

  1. (b)
     

The plaintiff was a crook because he received various kickbacks.

10

Peter Edgar shared a link.

Another prominent member of Karting community arrested on paedophile charges … Karting Australia were informed by concerned members about this guy late last year and many times since … but not only failed to act … KA still endorsed his licence as an official track photographer and also allowed him to remain on various committees throughout WA. It seems he was a protected species due to being close mates with WA State President Gary Light. As with the Ipswich caretaker paedophile case … KA preferred to try and cover it up instead of trying to protect our children. If not for this guys arrest today … KA would have still allowed him to roam with our kids. We now have two cases of KA hiding the activities of kiddy fiddlers … were their anymore?. More later …

[article not reproduced]

Peter Edgar We have full documentation dating back several months … of communications between multiple concerned parents ,,, and Karting Australia CEO Kelvin O’Reilly. KO cannot deny he was made aware of this situation … and yet still failed to act, and instead encouraged the offender to remain in the various positions of which he held. O’Reilly followed the advice of WA President and long term KA puppet Gary Light … and ignored the evidence provided by the concerned parents. Mates looking after mates … that’s what KA is about. They cover each others asses .. that’s how they gained power and continue to remain in power. The Boys Club … of which only a handful are members. We need to get rid of that handful … and ensure they are never given another chance. KO and GL … hang your heads in shame. Who knows how many kids have suffered at the hands of the WA and Ipswich pedos … due to your lack of concern. You are the men charged with protecting our kids … of which you have failed badly. Enablers … this is what you are. You make me sick …

  1. (a)
     

The plaintiff in his capacity as CEO of Karting Australia tried to cover-up the actions of paedophile instead of trying to protect children.

  1. (b)
     

The plaintiff, the CEO of Karting Australia, encouraged a person whom he knew to be a paedophile to remain active in positions within Karting Australia and thereby exposed children to a risk of harm.

  1. (c)
     

The plaintiff, the CEO of Karting Australia, was an enabler of a paedophile.

Footnotes

[1] Defamation Act, section 8.

[2] Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575 at 607 [44].

[3]  Further Amended Statement of Claim filed 19 November 2018 (FASC) at [4], [7], [9], [12], [15], [18], [20], [23], [25] and [28].  As noted above, the pleaded imputations are set out in the Schedule.

[4]  Defence of the First Defendant filed 31 October 2017 (Defence) and Further Defence dated 22 November 2017 (Further Defence).

[5]  An Order of 16 November 2018 required Mr Edgar to file and serve a further defence by 23 November 2018.

[6]  Defence, [1] and the second, fifth, seventh, tenth and thirteenth paragraphs in its attached schedule.

[7]  Defence, [2] and the second, fifth, seventh, tenth and thirteenth paragraphs in its attached schedule.

[8]  Defence, third, sixth, eighth, eleventh and fourteenth paragraphs of its attached schedule.

[9]  Defence, third, sixth, eighth, eleventh and fourteenth paragraphs of its attached schedule.

[10]  Further Defence, [2].

[11]  Mr Edgar did not respond to a notice to admit facts dated 12 November 2018 (Notice to Admit), which included the facts of publication.  The Notice to Admit is part of Exhibit 1 (Affidavit of Michelle Sandow sworn 3 December 2018), at pp 5-8.  Pursuant to rule 189(2) of the Uniform Civil Procedure Rules 1999 (Qld), Mr Edgar is taken to have admitted these facts.  He did not seek leave to withdraw any admission.  His evidence proceeded on the basis that he did publish each post, in the relevant sense that it was posted on-line and then downloaded and read by the “public group” members and other members of the public with Facebook accounts.

[12] Google Inc v Duffy (2017) 129 SASR 304 at 360-4 [188]-[199]. 

[13]  The first, second, third, fourth, fifth, sixth, seventh and tenth posts.

[14]  The second and tenth posts.

[15]  The eighth and ninth posts.

[16] Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 at 379-80 [4]-[5] and 384 [20]; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (Steele) at 364.

[17]  The imputations not pressed were those at FASC, [7](c), [9](c) and [15](b).  The imputations not pressed are reproduced, but struck through, in the Schedule.

[18]  That since 1 September 2013 Mr O’Reilly has been the CEO of Karting Australia, the peak administration body for the sport of karting in Australia: see FASC, [10], [13], [16], [21], [23], [26] and [29].

[19] Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165.

[20] Lewis v Daily Telegraph Ltd [1964] AC 234 (Lewis) at 260, 281 and 285.

[21] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at 1720 [11] and 1721 [17].

[22]  The full text of the first post is reproduced as item 1 in the Schedule.  The three alleged imputations, also reproduced as items 1(a), (b) and (c) in the Schedule, are pleaded in FASC, [4].

[23]  The full text of the second post is reproduced as item 2 in the Schedule.  The three alleged imputations, also reproduced as items 2(a), (b) and (c) in the Schedule, are pleaded in FASC, [7].

[24]  The full text of the third post is reproduced as item 3 in the Schedule.  The three alleged imputations, also reproduced as items 3(a), (b) and (c) in the Schedule, are pleaded in FASC, [9].

[25]  The full text of the fourth post is reproduced as item 4 in the Schedule.  The four alleged imputations, also reproduced as items 4(a) to (d) in the Schedule, are pleaded in FASC, [12].

[26]  The full text of the fifth post is reproduced as item 5 in the Schedule.  The two alleged imputations, also reproduced as items 5(a) and (b) in the Schedule, are pleaded in FASC, [15].

[27]  The full text of the sixth post is reproduced as item 6 in the Schedule.  The alleged imputation, also reproduced as item 6(a) in the Schedule, is pleaded in FASC, [18].

[28] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 (Harrison) at 300.

[29]  The full text of the seventh post is reproduced as item 7 in the Schedule.  The two alleged imputations, also reproduced as items 7(a) and (b) in the Schedule, are pleaded in FASC, [20].

[30]  The deleted words are struck through in the Schedule.

[31]   “CIK” is an abbreviation of Commission Internationale de Karting, a specialised karting commission of the FIA.

[32]  The full text of the eighth post is reproduced as item 8 in the Schedule.  The two alleged imputations, also reproduced as items 8(a) and (b) in the Schedule, are pleaded in FASC, [23].

[33] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573-4. Omitted footnotes cite: Lewis at 277; Steele at 373; Parker v John Fairfax & Sons Ltd (unreported, Court of Appeal of NSW, Hope, Samuels and Mahoney JJA, 30 May 1980) at 8; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646; and also: Lewis at 374; Farquhar v Bottom [1980] 2 NSWLR 380 at 386.

[34]  The full text of the ninth post is reproduced as item 9 in the Schedule.  The two alleged imputations, also reproduced as items 9(a) and (b) in the Schedule, are pleaded in FASC, [25].

[35]  The full text of the tenth post is reproduced as item 10 in the Schedule.  The three alleged imputations, also reproduced as items 10(a), (b) and (c) in the Schedule, are pleaded in FASC, [28].

[36] Harrison at 301; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 473 [25] and 484 [63].

[37]  See [8] – [20] above.

[38] McCleverty v Australian Karting Association Limited [2015] QSC 323.

[39]  This appears to be the initials of Mr Edgar’s Facebook page “Federation of Australian Racing Karters Union”. 

[40] Bristow v Adams [2012] NSWCA 166 at [20]-[31].

[41] Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (Morosi) at799.

[42] Morosi at 800.

[43] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (Carson) at 60.

[44] Cassell & Co Ltd v Broome [1972] AC 1027 (Cassell) at 1125.

[45]  [2008] NSWCA 183 at [76].

[46]  citing Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263.

[47]  Notice to Admit, [1], [2], [6] and [7].

[48]  Notice to Admit, [11], [12], [17], [18], [23], [24], [29], [30], [35], [36], [41], [42], [47] and [48].

[49]  Notice to Admit, [53] and [54].

[50]  Notice to Admit, [3], [4], [8] and [9].

[51]  Notice to Admit, [13], [14], [19], [20], [25], [26], [31], [32], [37], [38], [43], [44], [49], [50], [55] and [56].

[52] Cassell at 1124.

[53] Lay v Hamilton (1935) 153 LT 384 at 386.

[54] Reid v Dukic [2016] ACTSC 355 at [59].

[55] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 (Rogers) at 347-8 [60].

[56] Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 123 [501].

[57] Cassell at 1071; Crampton v Nugawela (1996) 41 NSWLR 176, at 193-5 and 198.

[58] Triggell v Pheeney (1951) 82 CLR 497 at 514.

[59] Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653.

[60] Rigby v Associated Newspapers Ltd (1969) 1 NSWR 729 at 740.

[61] David Syme & Co Ltd v Mather [1977] VR 516 at 518, 526, and 534-7.

[62] Defamation Act, s 35(2); Bauer Media Pty Ltd v Wilson (No 2) (2018) 361 ALR 642 at 698-9 [243]-[250].

[63] Rogers at 349 [66].

[64] Carson at 54-5.

[65] Defamation Act, section 39; Sierocki v Klerck (No 2) [2015] QSC 92 at [36].

[66] Rogers at 350 [69].

[67] Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 (Cerutti) at 112-3 [46]-[49].

[68] Fraser v Business News Group [2018] VSC 196.

[69] Zaia v Eshow [2017] NSWSC 1540.

[70] Cables v Winchester [2018] VSC 392.

[71] Cripps v Vakras [2014] VSC 279.

[72] French v Fraser (No. 3) [2015] NSWSC 1807.

[73] Polias v Ryall & Ors [2014] NSWSC 1692.

[74] Al Mouderis v Duncan (No. 3) [2017] NSWSC 726.

[75] Cerutti at 121 [92].

[76] Attorney-General for the Commonwealth v Legal Research Pty Ltd [1993] 2 Qd R 472 at 474.

[77] Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at 640-3 [22]-[28].

[78] Carolan v John Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 at [15].

Close

Editorial Notes

  • Published Case Name:

    O'Reilly v Edgar

  • Shortened Case Name:

    O'Reilly v Edgar

  • MNC:

    [2019] QSC 24

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    22 Feb 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 24 22 Feb 2019 Judgment for the plaintiff in the amount of $250,000 for defamation plus interest and injunctive relief: Bradley J.

Appeal Status

No Status