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  • Unreported Judgment

Noone v Brown

 

[2019] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Noone v Brown [2019] QDC 133

PARTIES:

MAXINE NOONE
(plaintiff)

v

HEATHER MANSELL BROWN
(defendant)

FILE NO:

1510/18

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12, 13, 14, 18, 24, 25 and 28 June 2019

JUDGE:

Smith DCJA

ORDER:

  1. I give judgment for the plaintiff against the defendant in the sum of $15,000.00.
  2. I will hear the parties on the question of costs.

CATCHWORDS:

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – IMPUTATIONS – whether imputations alleged are available

DEFAMATION – DEFENCES – JUSTIFICATION – TRUTH – FAIR REPORT – MATTER OF PUBLIC INTEREST – OTHER DEFENCES – whether the defendant has established defence – whether malice has been established by the plaintiff

DEFAMATION – GENERAL DAMAGES – ASSESSMENT – how much should be awarded

DEFAMATION – AGGRAVATED DAMAGES – ASSESSMENT – how much should be awarded (if any)

DEFAMATION – INJUNCTIONS – whether should be granted 

Defamation Act 2005 (Qld) ss 24, 25, 26, 30, 31, 34, 35, 36

Health (Drugs and Poisons) Regulations 1996 (Qld) s 110

Amalgamated Television v Marsden (1998) 43 NSWLR 158

Bale v Mills (2011) 81 NSWLR 498

Bashford v Information Australia (Newsletters) Pty Limited

(2004) 218 CLR 366; [2004] HCA 5

Bellino v Australian Broadcasting Corporation (1996) 185

CLR 183; [1996] HCA 47

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Browne v Dunn (1893) 6 R 67

Calwell v Ipec Australia Ltd (1975) 135 CLR 321; [1975] HCA 47

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

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

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

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60

Cheng v Tse Wai Chun (2000) 3 HKCFAR 339

Crampton v Nugawela (1996) 41 NSWLR 176; [1996] NSWSC 651

Cripps v Vakras [2014] VSC 279

David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50

Fairfax Digital Australia and New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77

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

Fraser v Holmes [2009] NSWCA 36

French v Triple M Melbourne Pty Ltd [2008] VSC 553

Guise v Kouvelis (1947) 74 CLR 102; [1947] HCA 13

Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; [1910] HCA 66

Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290

Hockey v Fairfax Media Publications Pty Limited (2015) 332 ALR 257; [2015] FCA 652

Horrocks v Lowe [1975] AC 135

Howden v Truth & Sportsman Limited (1937) 58 CLR 416; [1937] HCA 74

Irving v Penguin Books Ltd [2000] EWHC QB 115

John Fairfax Publications Pty Ltd v O’Shane (2005) ATR 81-789

Jones v Skelton [1963] 1 WLR 1362; (1963) SR (NSW) 644

Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 36; [2011] HCA 11

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25

Lewis v Daily Telegraph Ltd [1964] AC 234

Lloyd-Jones v Allen [2012] NSWCA 230

Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70

O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289

O’Reilly v Edgar [2019] QSC 24

Queensland Newspaper Pty Ltd & Hardy v Baker [1937] St R Qd 153. 

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

Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; [1999] FCA 1538

Ratcliffe v Evans [1892] 2 Q.B. 524

Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57

Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122

Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45

Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; [1934] HCA 15

Trkulja v Google LLC (2018) 92 ALJR 619; [2018] HCA 25

Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118; [1966] HCA 40

Wagner & Ors v Harbour Radio Pty Ltd & Ors (2018) ATR 82-405; [2018] QSC 201

Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

COUNSEL:

Mr P. McCafferty QC for the plaintiff

Solicitors for the defendant

SOLICITORS:

Carter Newell for the plaintiff

GTC Lawyers for the defendant

Table of Contents

 

Introduction

Pleadings

Amended Statement of Claim

Defence

Defence particulars

Reply

Evidence

Plaintiff’s case

Plaintiff

Paul Farrington

Tim Antonio

Tim Noone

Paul Noone

Defendant’s case

Defendant

Matthew Newton

Elizabeth Waugh

Dr Reedy

Susan Luder

Robert Shipley

Susan Barnett

Debbie Sauverain

Jenny Honan

Janet Howe

Dr Brett Burrett

Sheelagh Hanson

Nicoletta Carter

Karen Moore

Terms of reference

Rebuttal evidence

Sandy Peardon

Justine Brunner

Lynette Haslem

Leanne Reynolds

Stephen Evans

Submissions

Plaintiff’s submissions

Defendant’s submissions

Further written submissions

Findings

Applying the law to the facts found

The action for defamation

The defences

Defence of justification – common law

Defence of justification – Defamation Act

Defence of contextual truth – Defamation Act

Common law – qualified privilege

Defence of qualified privilege – Defamation Act

Defence of honest opinion – Defamation Act

Conclusion on liability

Damages

General principles

Conclusion on damages

Introduction

  1. [2]
    This is an action by the plaintiff for damages for defamation.
  1. [3]
    At all material times, the plaintiff was the Director of Nursing at the Millmerran Centenary Retirement Village (“MCRV” or “Yallambee”).
  1. [4]
    The alleged defamatory comments were posted by the defendant on Facebook over a few days in October 2017.

Pleadings

Amended Statement of Claim

  1. [5]
    In the Amended Statement of Claim[1] the plaintiff alleges that in October 2017 the defendant published a number of posts on her Facebook account concerning the plaintiff. 
  1. [6]
    In paragraph 4 of the Amended Statement of Claim it is alleged that on 6 October 2017 the following post occurred:[2]

“Millmerran Centenary Retirement Village

Your brochure paints such a pretty picture of your establishment but I’m afraid it’s just a bad joke as bad as your committee’s president’s offensive elderly jokes he writes in your newsletters. With complaints of staff bullying, forging signatures, miss use of medication and total lack of discernment and negligence, you should be seriously thinking of sacking your incompetent DON, president any board members that does not have the interest of or consideration of the Elderly and their welfare paramount. These are frail, vulnerable lives you are playing with and deserve better.”

  1. [7]
    In paragraph 5 of the Amended Statement of Claim it is alleged that on 7 October 2017 the defendant published the following post on the public page of her social media account:[3]

“Well we know one person who will not suffer dehydration the DON drinks on duty at Millmerran.”

  1. [8]
    In paragraph 6 of the Amended Statement of Claim it is alleged that on an undisclosed date the defendant published a third post on the public page of her social media account:[4]

“It concerns me as it should others that the facility at Millmerran has employed a DON who was escorted off the premises at their last job, was this because of the drinking habit or missing of narcotic drugs.”

  1. [9]
    In paragraph 7 of the Amended Statement of Claim it is alleged that on an undisclosed date the defendant published a fourth post on the public page of her social media account in an exchange with Jayne Hughes wherein the defendant stated:[5] 

“Evidently not the DON was walked off the premises at her last job at Rockride Salem.” 

  1. [10]
    The plaintiff alleges the posts were published of and concerning her.
  1. [11]
    The following imputations are pleaded in paragraph 10 of the Statement of Claim:

First matter complained of:

  1. (a)
    The plaintiff is incompetent;
  1. (b)
    The plaintiff is unfit to care for the elderly or discharge the responsibilities of Director of Nursing at the MCRV and should be dismissed.

Second matter complained of:

  1. (a)
    The plaintiff is habitually intoxicated when on duty;
  1. (b)
    In the alternative to (a), the plaintiff habitually drinks alcohol while on duty.

Third matter complained of:

  1. (a)
    The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol;
  1. (b)
    The plaintiff was dismissed from her previous job and escorted off the premises because she stole narcotic drugs;
  1. (c)
    In the alternative to (b), the plaintiff was dismissed from her previous job and escorted off the premises because she was responsible for narcotic drugs going missing;
  1. (d)
    The plaintiff is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job because she either had a problem with alcohol or stole narcotic drugs;
  1. (e)
    In the alternative to (d), the plaintiff is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job either because she had a problem with alcohol or was responsible for narcotic drugs going missing.
  1. [12]
    It is alleged in the statement of claim that the imputations were defamatory and the plaintiff has been injured personally and professionally and as a result damages, including aggravated damages, are sought.

Defence

  1. [13]
    The defendant in her further amended defence[6] does not admit the plaintiff was named in the publications.  As to the imputations, the defendant admits imputation 10(a) but denies the other imputations are open. 
  1. [14]
    Further, in paragraph 4 of the defence, the defendant says that if the words were defamatory then the meanings were true and for the public benefit, or that the defamatory matter was substantially true and the publication was justified under s 25 of the Defamation Act 2005 (Qld). 
  1. [15]
    In paragraph 5 of the defence, the defendant pleads:

“In the further alternative, the Defendant says the words complained of in paragraphs 4, 5, 6 and 7 contained the following contextual imputations:

  1. (a)
    The plaintiff drank alcohol while on duty;
  1. (b)
    The plaintiff was responsible for a workforce at which workplace bullying occurred;
  1. (c)
    Scheduled drugs went missing from the MCRV and were not accounted for;
  1. (d)
    The plaintiff had not acted in the best health interests of some of the residents of the MCRV;
  1. (e)
    The medical treatment of some of the residents of MCRV, as to which the plaintiff oversaw and was responsible for, was unprofessional that are substantially true and the imputations alleged by the plaintiff as defamatory do no further harm to the reputation of the plaintiff because of the substantial truth of the balance of the other imputations, and therefore the publication was justified pursuant to section 26 of the Defamation Act 2005.”
  1. [16]
    It was then alleged that particulars would be provided separately.
  1. [17]
    In paragraphs 6 and 7 it is pleaded:

“In the further alternative, the defendant says that if any of the matters complained of are found to be defamatory of the plaintiff, such defamatory matter was published in good faith:

  1. (a)
    For the protection of the community interests so as to bring attention to the welfare of the residents of MCRV;
  1. (b)
    For the public good;
  1. (c)
    For the purposes of the discussion of a subject of public interest, namely the management of the medical care of the residents of MCRV;
  1. (d)
    The public discussion of which was for the public benefit, and insofar as the defamatory matter consisted of comment, the comment was fair;
  1. (e)
    For the purpose of giving information to the recipients with respect to the plaintiff’s management of the medical care of the residents of MCRV, as to which the defendant believed on reasonable grounds the recipients had such an interest in knowing the truth, so as to make her conduct in making the publication reasonable on the circumstances. 

7. In the further alternative, the defendant says that if any of the matters complained of are found to be defamatory of the plaintiff, the defendant is not liable for same pursuant to s 30 of the Defamation Act 2005 on the grounds pleaded in the preceding paragraph.”

  1. [18]
    In paragraph 8 of the defence it is then alleged:

“In the further alternative, the defendant says if and insofar as it should be found that the words complained of in paragraphs 4, 5, 6 and 7 bore the defamatory meanings alleged… the defendant is not liable for the same pursuant to s 31 of the Defamation Act 2005 on the grounds that:

  1. (a)
    The matters were expressions of opinion of the defendant rather than statements of fact; and
  1. (b)
    The opinions related to a matter of public interest being the management of clinical health care and nursing care at MCRV, being a not-for-profit community owned facility; and
  1. (c)
    The opinion was based on proper material on the basis:
  1. (i)
    Of material that was substantially true (particulars will be provided separately);
  1. (ii)
    And on an occasion of qualified privilege pursuant to s 30 of the Defamation Act as pleaded in paragraphs 6 and 7 above.”
  1. [19]
    Finally the defendant denies the plaintiff has been injured.

Defence particulars

  1. [20]
    Particulars were provided by the plaintiff on 11 June 2019. After rulings and debate they finally were as follows:[7]

“1. Drinking whilst on duty

  1. a)
    On 8 May 2017 the Plaintiff was observed by Nicki Carter to be under the influence of alcohol during a staff meeting; and on occasion when treating Noel Hopkins. She would also often smell of alcohol and eat minties to cover the smell. 
  2. b)
    On 24 July 2017 the Plaintiff was observed by Nicki Carter to be drinking alcohol whilst on duty;
  3. c)
    On 7 December 2016 Robert Shipley observed the Plaintiff to be under the influence of alcohol whilst on duty.
  4. d)
    Dr Reedy witnessed the plaintiff to be under the influence of alcohol in September 2016 and 20 January 2017 whilst on duty.
  5. e)
    On one occasion when Susan Luder spoke to the plaintiff, she was slurring her words and incoherent.
  6. f)
    Being abusive over the phone to Dr Brett Burrett on 20 May 2018 and acting in such an unprofessional way that may have been influenced by an intoxicating substance when he made enquiries about clinical notes.
  1. Competency
  1. a)
    The Plaintiff refused to respond when advised at midnight 12 December 2016 by Nicki Carter of the serious health condition of Mr Contant;
  2. b)
    Residents fluid intake was restricted, with the knowledge of the Plaintiff, so as to decrease the need for changing incontinence pads;
  3. c)
    Residents, including Ruthie Carter, were suffering from severe pressure sores as a consequence of the poor nursing under the supervision of the Plaintiff.
  4. d)
    On 31 July 2017 Aileen Callan’s broken hip and wrist were left untreated for 24 hrs after a fall and the Plaintiff failed to follow any falls management process;
  5. e)
    Gary Howe's medical care, under the supervision of the Plaintiff was poor including aggravated rashes in the groin and failing to advise family members of his seizures and aspiration of vomit.
  6. f)
    The Plaintiff was unaware of a medical directive in place in respect of Heather Brown at the facility, despite it being on Ms Brown's file;
  7. g)
    Mrs Margaret Fitch, whilst a resident, was denied access to the TV, left for inappropriate periods of time in soiled clothes, left for lengthy periods of time on the toilet, and was showered infrequently.
  8. h)
    Plaintiff was unaware whether Heather May Brown was on antibiotics during October 2017 when she had a urinary tract infection.
  9. i)
    For the reasons also set out in paragraph 1 and 3-5 below.
  1. Workplace Bullying
  1. a)
    The Plaintiff disclosed a confidential medical diagnosis of Nicki Carter to other staff;
  2. b)
    In January 2017 the Plaintiff disclosed to carers complaints made by other carers resulting in workplace disharmony;
  3. c)
    In August 2018 an employee Vicky Pokarier was intimidated by the Plaintiff;
  4. d)
    Robert Shipley was subjected to workplace bullying by the Plaintiff resulting in a complaint by him to the Health Ombudsman.
  5. e)
    Bullying [by the plaintiff] causing stress to Karen Moore that led to her resignation;
  6. f)
    Instructing Susan Luder not to take photos of wounds where it was standard practice and being told she felt bullied and intimidated because of that.
  1. Misusing medication
  1. a)
    Carers, with the knowledge of the Plaintiff, were administering PRN medications including Oxazepam, Respiradone and Alepam without contacting registered nursing staff and were not recording that medications have been administered
  2. b)
    Between April and July 2017. Medications including Respiradone and Oxazepam went missing from a resident’s Webster-pak;
  3. c)
    On 24 January 2017 a quantity of Endone went missing, some of which was located in a rubbish bin by the Plaintiff, despite that bin having been searched twice by staff, who then demanded that a carer take possession of the Endone despite being aware that the carer was not permitted to handle Schedule 8 opiates;
  4. d)
    The remaining Endone was not located, and was not reported.

5.     Lack of Professionalism

  1. a)
    In May 2017 the Plaintiff threatened Jenny Honan over the telephone by telling her she had better watch what she writes and say, after having opened correspondence from Ms Honan to her mother in which Ms Honan's complaint about the Plaintiff to QCAT had been recorded.
  2. b)
    The Defendant relies on the particulars stated in paragraphs 1, 2, 3 and 4 above.

6.     Lack of Fitness to care for the elderly

  1. a)
    The Defendant relies on the particulars stated in paragraphs 1, 2, 3 and 4 above.” 

Reply

  1. [21]
    By way of reply[8] the plaintiff says:
  1. (a)
    To any person who had an interest in the affairs of the retirement village they would have been aware that the plaintiff was the Director of Nursing;[9]
  1. (b)
    The publications were not for the public benefit and were published dishonestly and maliciously;[10]
  1. (c)
    There was no substantial truth in the allegations and every one of them is unsubstantiated, scandalous and false;[11]
  1. (d)
    The publications were not in good faith or for the protection of the community’s interests, for the public good or for the purpose of discussion of a subject of public interest and were undertaken dishonestly and maliciously for the sole purpose of seeking to damage the plaintiff’s reputation;[12]
  1. (e)
    The matters reported by Carter and Shipley are false and both are incompetent former employees and are motivated by animus towards the plaintiff;[13]
  1. (f)
    Qualified privilege is not available under s 30 of the Defamation Act;[14] 
  1. (g)
    The statements were not expressions of opinion but were of fact, they were not in the public interest and were not substantially true and were not based on proper material.[15]

Evidence

Plaintiff’s case

Plaintiff

  1. [22]
    The Plaintiff gave evidence that she was the Director of Nursing at the MCRV. She was married to Paul and they had two sons, James and Timothy. She lives in Toowoomba during the weekends and Millmerran during the week.
  1. [23]
    She commenced her training as a nurse in January 1969 at Ballarat Base Hospital. After qualifying she went to the Queen Elizabeth Hospital in Adelaide (ICU) where she worked as a registered nurse.[16]  She then returned to the Ballarat Base Hospital where she completed midwifery.  She became a charge nurse there, in charge of the surgical ward.  She then did a degree in nursing management in 1979 in Melbourne.  She returned to the Ballarat Base Hospital and then became a matron of a small hospital in Beaufort 1981 for 5 years.[17]  In 1984 she was married and she fell pregnant with the eldest son in 1986.  At this time she became a part-time assistant Director of Nursing at the Ballarat Base Hospital.  James was born in 1986.  She continued part-time as the associate Director of Nursing at Ballarat.  She was in charge of the whole hospital which had 110 beds.[18]  Timothy was born in 1987.  In 1989 she became the Director of Nursing at the St Arnaud Hospital.  There were 21 acute patients and 30 nursing beds.  The hospital also conducted surgery and carried out 500 deliveries per year.[19]  In 1991 Paul was transferred to Western Australia and she became a clinical nurse consultant in the dementia wing at Mandurah for 4 years.  She then became the clinical manager of the facility and was responsible for the care of 72 residents.[20] 
  1. [24]
    In 1997 the plaintiff and her family left Western Australia and came to Toowoomba. She became a registered nurse at the Rangehaven Nursing Home for 6 years[21] and then worked at the Lourdes Nursing Home as a registered nurse.  She then became a Director of Nursing where she remained until 2009.[22]  It was an 84 bed nursing home.[23]  She then became the Director of Nursing at Northridge Salem for 6 and a half years but in November 2015 became redundant.[24]  She retired at the age of 64.  She then received a call from a nurse consultant at the MCRV to ask her to assist to do the accreditation which would involve 3 days’ work a week.[25]  On 21 May 2016, Ian Rogers (deceased), the treasurer of the MCRV offered her the Director of Nursing position which she accepted and commenced on 23 May 2016.  She still works there.[26]
  1. [25]
    The plaintiff gave evidence she was proud of her career. Millmerran is a township of some 1,500 people. She had never met the defendant before and did not believe the defendant had ever been to the MCRV.[27]  The plaintiff considered her reputation was very important and she had worked hard for 50 years to achieve this.  She always strove to be professional and dedicated.  The plaintiff is not a follower of Facebook but a number of posts were brought to her attention by staff members.[28]
  1. [26]
    Turning to Exhibit 1, the first matter complained of, the post was brought to her attention by Sandy Peardon, Chris Jarmey, Stephen Evans, Lyn Haslem and John Rogers (the President of the Board).[29]  When she read this she was horrified and felt she had been unfairly misjudged.  She was devastated and couldn’t comprehend why it was written.[30]  The defendant never contacted her for comment before the post. 
  1. [27]
    Turning to the second matter complained of (Exhibit 2), this post was shown to her by the same people.[31]  Again she was devastated and in a state of disbelief that someone would come up with this untruth.  She felt humiliated.[32] 
  1. [28]
    The third matter complained of (Exhibit 3) was also brought to her attention by four staff members.[33]  When she read the allegations that she was escorted off her last job because of a drinking habit or the missing of narcotic drugs she felt demeaned and humiliated, particularly about being accused of being a thief.[34]  It was traumatic and the comments were untrue.[35] 
  1. [29]
    As to Exhibit 4, a further post by the defendant, this made her feel beyond belief demeaned, undermined and made her feel like a criminal.[36] This post alleged the Plaintiff forged signatures and committed offences.   
  1. [30]
    The plaintiff gave evidence it was not true that she was incompetent, it was not true that she was unfit, it was not true she was habitually intoxicated, she doesn’t drink alcohol at work and she was not dismissed from any previous employment because of alcohol issues or drugs.[37] 
  1. [31]
    The allegations against her make her feel very sad and upset, bearing in mind she has worked for 50 years with an unblemished career.[38] 
  1. [32]
    Exhibit 5 was a video recording of a Today Tonight show broadcast shown a few days before the trial. Exhibit D is a transcript of the recording.
  1. [33]
    This shows the allegations that the plaintiff administered medication whilst drinking on the job were repeated. Relevantly, the defendant was asked whether she regretted doing this and she said “no, no because someone has to make a stand. I put it out there, now I have to stick by what I said”. The broadcast also discloses that the defendant’s husband was alleged to have been ill-treated at a nursing home. The defendant went to the media to expose this because she was disgusted in what had happened to him. She set up a Facebook page “Actioning Change for Aged Care” for people to tell their stories and to call for a Royal Commission.
  1. [34]
    The plaintiff gave evidence that the defendant’s husband was never a patient of the facility.[39]  Her son showed her the video (Exhibit 5) on Sunday night and again she was devastated as it tended to indicate that the defendant’s husband was found in that state in her nursing home.[40]  It also tended to confirm that all of the posts were true.  It was devastating to her that it was publicised that she was drinking on the job.  She felt there was a slur on her professionalism.  There has been a significant impact by the post, namely an effect on her marriage and in particular, a loss of sleep and there has been a strain on the family.[41]  She has never received an apology from the defendant.  Exhibit 6 was a letter of redundancy from Northridge Salem Nursing Home dated 29 October 2015. 
  1. [35]
    In cross examination the plaintiff confirmed that after she left the Salem Aged Care Home she retired and then later worked at MCRV. She denied working at the Aveo Freedom Aged Care at Bridge Street in Toowoomba and denied working there for two weeks.[42]  She denied she was ever dismissed from there.[43]  With respect to the letter from Northridge Salem, she said that she did not have the earlier letter referred to in Exhibit 6 dated 16 October 2015.  She could not say what was in the letter.[44]  As to the discussion referred to in Exhibit 6, that was with Terry Arthur and Jason Coles in which she was offered the position as care manager but she decided to take a redundancy instead.[45]  She denied there was any discussion concerning dismissal.[46] 
  1. [36]
    With respect to the MCRV her formal title is “Clinical Care Manager”. She agreed she was retiring from her present position in September 2019.[47] 
  1. [37]
    She denied knowing a Susan Barnett at Aveo Freedom. She denied working with Ms Barnett. She admitted knowing a Susan from that facility and a Deidre.[48]  She denied she had any other defamation proceedings on foot.[49]  She was shown a claim and statement of claim though in proceeding no. 1508 of 2018[50] and confirmed she was involved in other defamation proceedings.[51] I find the plaintiff mislead me about this.
  1. [38]
    The plaintiff agreed she knew Robert Shipley. She agreed that she gave instructions on 24 May 2017 for a concerns notice to be written by her then solicitors.[52]  She agreed that Shipley had made complaints about her to the Health Ombudsman.[53]  She denied the allegations by Shipley.[54]  She said that Shipley resigned from the facility.[55]  She denied referring to an RN to their face as “dumb as dog shit” but admitted saying that about Karen Moore to somebody else.[56]  She did not recall referring to Nurse Waugh as being Shipley’s girlfriend.[57]  She denied being prone to mood swings, having staff often in tears, and micro-managing.[58]  She did put in rules so staff could only take leave on a calendar week basis.  She agreed she did drink at a Christmas party but this was off premises, she was not on duty and was not on duty afterwards.  Mr Shipley picked her up and drove her home.  However she denied being drunk.[59]  She denied adjusting medication charts at Yallambee.[60]  She denied bullying staff into resigning.[61]  She never said that she had the full support of the Board and no one could do anything to her.  She did say she had the full support of the Board.[62]  Mr Shipley resigned because a letter of grievance was put to him.  He didn’t respond and he resigned.[63]  She was notified by the Health Ombudsman of his complaints and she was responded.[64]  She said there were probably six complaints against her and about 36 complaints all up concerning the facility.  There was one about her by Liz Waugh, there was Mr Shipley’s complaint, Dr Reedy complained about the organisation and there were a number of anonymous complaints.  The 36 complaints were in the period October 2016 to August 2018.[65]  She agreed she “ran” Yallambee.[66] 
  1. [39]
    She agreed that Heather May Brown was a patient. She agreed she had some dealings with Jenny Honan concerning Ms Honan’s mother. Ms Honan wanted to have a car for her mother and the plaintiff did not consider that was warranted.[67]  The plaintiff stated she never spoke to Ms Honan about Ms Honan’s displeasure about this.[68]  She never spoke to Ms Honan about transferring her mother from the facility because she was not being cared for.[69]  She was aware that Ms Honan had signed a medical directive and she denied telling Ms Honan she was unaware of this.[70]  She denied that she claimed that the mother was on antibiotics when she was not as regards a urinary tract infection.[71]
  1. [40]
    The plaintiff confirmed she never drank alcohol on duty.[72]  She said that she was not under the influence of alcohol on 8 May 2017 when she was with Nicki Carter.[73]  With respect to the patient Noel Hopkins, she denied she treated him with Ms Carter whilst under the influence of alcohol.[74]  She denied eating Minties to disguise the smell of alcohol on her breath.[75]  She denied drinking alcohol on 24 July 2016.[76]  She agreed that Dr Reedy visited Yallambee but did not recall the dates.  She stated she was not under the influence of alcohol on any occasion when he visited.[77] 
  1. [41]
    On 20 January 2017 she was not at the MCRV in the afternoon as she leaves at lunchtime on a Friday to get back to Toowoomba.[78] 
  1. [42]
    She agreed that on 20 May 2018 she spoke to Dr Burrett and she agreed that he informed her that a patient had pneumonia. She denied being affected by alcohol and did not question his request for clinical records. She did not say that it was bullshit. He had no right to the notes. She never said the word fucking. She was aware though that he had made a complaint to the Ombudsman’s Office but the complaint was dismissed.[79]
  1. [43]
    As to Mr Contant, on 12 December 2016 she agreed that Nicki Carter wanted her to assist him. The plaintiff did not attend because she was advised that he was drinking coffee.[80] 
  1. [44]
    She denied giving any instructions to decrease the need to change incontinence pads.[81] 
  1. [45]
    She was aware of the patient Ruth Carter who had severe pressure sores. She denied that these were caused by poor nursing. She said that Ruth Carter was a diabetic Type 1. She had had a fractured femur. There was an ulcer on her buttock. She was aware that Dr Reedy had made a complaint about this but she said she did not have a good relationship with Dr Reedy. The relationship was fractured with the Board of Management which started because Ms Waugh had made a complaint against the plaintiff. As to Ms Ruth Carter, they got advice from the specialist at the Toowoomba Base Hospital concerning the treatment of the ulcer. Exhibit 8A-C are photographs of the ulcer. She disagreed that the ulcer was due to poor treatment of her. There was nothing more they could do. The family was aware of the treatment. Ms Ruth Carter stopped eating and wanted to die. She was 93.[82]
  1. [46]
    The plaintiff was aware that Aileen Callan broke her hip on 31 July 2017. She agreed the patient was left untreated for 24 hours. This was because the patient showed no signs in the first 15 hours. As soon as signs were shown the patient was transferred to the Millmerran Hospital. The patient was cognitively impaired and could not verbalise pain. If there is an unwitnessed fall with the potential of head injury then there should be observations. There is a management process whereby the patient should be examined by a registered nurse. The process here was not followed with Ms Callan. Nicki Carter was the person who should have done the observations.[83]
  1. [47]
    With respect to the patient Gary Howe, she denied there were rashes in his groin when he left. Mr Howe was not in good health. He had breathing problems, temperature problems and low oxygen saturation. He had been to Accident and Emergency Department three times in five days and was later transferred to the Toowoomba Base Hospital in a seriously ill condition. None of this was due to a lack of care at Yallambee.[84]
  1. [48]
    With respect to the patient Margaret Fitch the plaintiff knew her daughter Debbie. She denied that Ms Fitch was denied access to the television. Ms Fitch would throw the remote control. It was never taken from her. Additionally Ms Fitch refused to have soiled clothes changed and she would decline to have a shower. They would honour this. Usually showers were administered to the patients every second day unless they were soiled. Showers were always done at the residents’ request.[85]
  1. [49]
    The plaintiff denied discussing confidential medical diagnoses of staff with other staff.[86]  She denied discussing complaints made by staff with other staff.[87]  She never intimidated Nurse Pokarier.[88]  She never subjected Mr Shipley to bullying. She was aware that he had made a complaint about her.  She said that Mr Shipley told her that she had his full support and that Yallambee improved.  This conversation occurred in February 2018.[89]
  1. [50]
    She denied bullying Karen Moore. Ms Moore asked a registered nurse to falsify a signature concerning a Schedule 8 drug. A discipline procedure was imposed and the union asked instead of her being dismissed whether she could resign and Ms Moore was allowed to do this.[90]
  1. [51]
    The plaintiff stated that carers did not administer PRN medication without contacting registered nursing staff. Allegations about this were made to APHRA but were dismissed.[91]
  1. [52]
    Carers can administer such medications if medically competent.
  1. [53]
    An anonymous complaint was made about this. Nicki Carter later admitted she was the one who made the complaint.[92]
  1. [54]
    She denied that medications (namely Resperidone and Oxazepam) went missing from a resident’s Webster-pak between April and July 2017.[93]
  1. [55]
    She agreed that on 24 January 2017 Endone went missing. She agreed she located 10 tablets of this in the rubbish bin. She agreed that the bins had already been searched. The agency nurse who misplaced the drugs was very upset. The plaintiff denied placing the Endone in the bin. When she picked up the drugs she asked Nicki Carter what was written on them and Nicki Carter and Sandra McLachlan took the drugs to the nurse to place in the S8 cupboard. Eight tablets were not located. She was not there when the drugs went missing.[94]
  1. [56]
    She accepted she spoke to Ms Honan but never threatened her.[95] 
  1. [57]
    She accepted she had seen the newspaper articles from the Chronicle newspaper previously.[96]  She was concerned about the validity of the articles because they are a slur on Yallambee.
  1. [58]
    She said there were good residential satisfaction surveys conducted. The complaints made had already been investigated by APHRA and there were a lot of untruths in the articles. The opinion of Yallambee was never sought and the journalist never visited the organisation.[97]
  1. [59]
    The plaintiff said a small minority of individuals were vindictive towards Yallambee. She accepted again there were 36 complaints between August 2016 and October 2018. One included a complaint by Debbie Sauverain; one by Carmel Bladen, an anonymous complaint by Nicki Carter, and one by Dr Burrett. The majority of the complaints were anonymous. Mr Shipley also made a complaint.[98]
  1. [60]
    The plaintiff alleged that many of the complaints were by disgruntled staff members who no longer worked there.[99]
  1. [61]
    When the plaintiff first commenced work at Yallambee she expected a higher standard and made decisions which were not popular. She was assertive with the staff but those staff are no longer there. The remaining staff are very happy.[100]
  1. [62]
    There were no similar amounts of complaints at previous facilities where she worked. For example at North Ridge there was one complaint in six and a half years. The 36 complaints were all dismissed. She denied she was the cause of the complaints.[101]
  1. [63]
    She again denied she was employed at Aveo Freedom.[102]  She denied the proposition she was not devastated because it had gone to social media.  She said she was never drunk on duty or had stolen drugs.  She never said to Nicki Carter “I know how to get out of a complaint.”  She disagreed she was incompetent or unfit.  She said there were only three resignations in the last 12 months.[103]
  1. [64]
    She never suffered from bipolar but took Seroquel for depression. She never told Nicki Carter she had bipolar depression. Her son did not prescribe this medication.[104]
  1. [65]
    In re-examination the letter dated 16 October 2015 was tendered as Exhibit 9. She also gave evidence that she found the experience of cross-examination at the trial terrifying and humiliating.[105]

Paul Farrington

  1. [66]
    Paul Farrington gave evidence. He is a mechanical engineer and a Board member of MCRV. He has been in that position since February 2017.[106]  He knows the plaintiff through his involvement with the MCRV.  She was the Director of Nursing.  The witness was shown Exhibit 1 and said that he saw this publication 2 years ago.  He understood it to refer to the plaintiff.  He also saw Exhibits 2 and 3 around the same time and he understood these publications to refer to the plaintiff.[107] 
  1. [67]
    As at October 2017 the plaintiff was held in very high esteem at the facility by nursing staff, care staff and the Board.[108] 
  1. [68]
    In cross examination Mr Farrington conceded he had no medical background. He accepted that Millmerran also had a hospital where another Director of Nursing worked. There is a medical centre in Millmerran as well but no Director of Nursing there.[109]  He accepted that there was a significant number of complaints about the hospital.[110]  He was aware of complaints by Mr Shipley, Ms Waugh, Dr Reedy and Ms Carter against the plaintiff.[111]  He accepted there were quite a number of complaints against the plaintiff specifically but he could not say how many.[112]  He recalled there were complaints about her drinking on duty.[113]  He was not aware of any staff resigning because of ill treatment by the plaintiff.[114]  He was not aware of why Mr Shipley resigned.[115]  As to the drinking on duty allegation, it was his view that AHPRA had investigated this and found it unsubstantiated.  He had difficulty believing the allegation of drinking was true.[116]  He accepted there were articles in the chronicle newspaper regarding the retirement village.[117]  He said that there were two current nurses who held the plaintiff in high esteem and her reputation in the circles in which he mixed in Millmerran was high.[118]
  1. [69]
    I might say I formed the view he did not seem to be greatly aware of the day to day running of MCRV.

Tim Antonio

  1. [70]
    Tim Antonio gave evidence that he was a fencing contractor and had been a voluntary board member of the MCRV since October 2007. He has known the plaintiff for about three years.[119]  He was shown Exhibit 1 and said that he had seen this because it had been brought to a board meeting in late October 2017.  He understood it referred to the plaintiff.  He also said that Exhibits 2 and 3 were shown to him at a board meeting and he understood that each of those publications referred to the plaintiff.  As of October 2017 the plaintiff’s reputation was as a good, honest, hardworking Director of Nursing.[120]
  1. [71]
    In cross-examination the witness said he did not know where the plaintiff worked prior to coming to Yallambee. He agreed that the title was “Clinical Care Manager” but her job description was as a Director of Nursing. He accepted there had been some complaints made. He could only recall one to start with that is the one made by Mr Shipley in his letter of resignation. Initially he did not recall any other written complaints but then admitted he was aware of Dr Reedy’s complaint and Ms Waugh’s complaint.  He was not aware of Nicki Carter’s complaint.[121]  He said the Board investigated the complaints as did APHRA and the Commission and Yallambee was exonerated on all of them.[122]  He also accepted that Dr Burrett had made a complaint against the plaintiff and two weeks ago it was decided that no further action should be taken.[123]  He agreed that some of the complaints related to the plaintiff drinking on duty.  He had visited the centre and had never smelt alcohol on the plaintiff or seen her drunk.[124]  He agreed that there were seven articles about Yallambee printed in the Toowoomba Chronicle.  He had seen all of them except for number 3.  The articles were discussed at board meetings.  The issues raised related to the treatment of patients at Yallambee.  Everything in the articles had been placed before APHRA and the Ombudsman and Yallambee had been exonerated.  The articles were the subject of discussion in Millmerran.  The witness said that before the Facebook publications and the articles in the Chronicle, the plaintiff’s reputation was very good.[125]
  1. [72]
    Equally this witness did not seem to be aware of the day to day running of MCRV. I also did not consider he was completely upfront as to his knowledge of complaints made.

Tim Noone

  1. [73]
    Tim Noone said that he was a registered medical practitioner practising in Tasmania. He is the son of the plaintiff. He has contact with his mother once a week. He has noticed a change in his mother. The publication was quite devastating for her. She was emotionally very down, teary and withdrawn. It consumes her thinking.[126]
  1. [74]
    In cross-examination he denied that the plaintiff suffered from bipolar. He said he did not prescribe medication for her. He prescribed cholesterol medication only once when she ran out.[127]
  1. [75]
    He was aware of the Facebook posts and nothing else. He moved to Tasmania in June 2017.[128]

Paul Noone

  1. [76]
    Paul Noone is the husband of the plaintiff. He gave evidence they had been married for 35 years. He lives in Toowoomba. He has noticed emotional changes in his wife since October 2017. She breaks down when discussing these matters. She is in tears every weekend.[129]
  1. [77]
    In cross-examination he agreed that his wife suffered from depression. Dr Latham prescribes her medication not their son.[130]  He was shown Exhibit J (the Chronicle articles) and said that he bought the Chronicle every day.  He could not recall whether his wife had seen those articles and whether they had been discussed.[131]  It was his opinion it was lazy journalism in the articles.  Whilst they did not discuss the Chronicle articles they discussed the Facebook publication.  They also discussed the complaints including the one by Dr Reedy, Ms Waugh’s complaint and the Shipley complaint.  The complaints also had an adverse effect on his wife.[132]

Defendant’s case

Defendant

  1. [78]
    The defendant gave evidence that she is 70 years old and was a qualified chef. She became involved in aged care after her husband was admitted into aged care at TriCare in Bundaberg. Her husband was abused and neglected. She was abhorred by this and started going to the media to bring to the attention of everybody what was happening in aged care. This was in about May 2016.[133]
  1. [79]
    Before the relevant publications she was contacted by Ms Liz Waugh and was provided information about MCRV.[134]
  1. [80]
    As to other actions she was involved in, the Nurses’ Union asked her to help with implementing skilled nursing ratios in aged care and a petition was started. There was a need for more staff on the floor of nursing facilities because patients were being neglected. There was also abuse by staff. Jane Hilary Seaholme contacted her about the petition. There are 315,000 signatures on the petition.[135]
  1. [81]
    The defendant admitted publishing the content on Facebook the subjects of Exhibits 1 to 4 about the plaintiff.[136]  The purpose of her publishing this material was to bring awareness to the suffering of aged people in care.[137]  She admitted that the publications refer to the plaintiff.  Liz Waugh was concerned about what was going on at the MCRV and was bound by patient confidentiality.  She was very distressed.  The defendant knew that as a nurse practitioner Ms Waugh was not allowed to speak out.[138]
  1. [82]
    In response to the Facebook posts, defamatory material was published about the defendant.[139]  The defendant has also been involved with public meetings at St Kilda and Bundaberg calling for a Royal Commission into aged care.  She is hoping to go to the Royal Commission which has made contact with her.[140]  Presently her mother lives in aged care at North Lakes.  She also spoke to Mr Newton at the Chronicle.  She was shown Exhibit J and admitted speaking to him.[141]  She said that other residents at Millmerran had spoken to her as well about the MCRV.  As to Exhibit 1, she believed she was acting out of concern for a concerned nurse practitioner, Ms Waugh and she believed the content was correct.[142]  With respect to Exhibit 2 she believed what she published was correct as she had been told this by Ms Waugh.  Equally she believed that what was published in Exhibit 3 was correct as she had been told this by Ms Waugh.  She admitted also posting Exhibit 4.[143]
  1. [83]
    In cross-examination the defendant admitted she had no formal medical qualifications and admitted never meeting the plaintiff before.[144]  She had never even spoken to the plaintiff.  She claimed in her evidence she did not like or dislike the plaintiff.  She admitted she had never apologised to the plaintiff.[145]  She had 200 followers on her Facebook account.[146] She also has a Facebook site called “Actioning Change for Aged Care” which was a public page.[147]  She did not distinctly admit that in the last two days changes had been made to the privacy settings. I found her to be evasive in her evidence on this point.[148]
  1. [84]
    After giving a non-responsive answer[149] she admitted that it was a serious allegation to allege that a nurse is incompetent.[150]  She said it was “possibly” a serious allegation that a nurse was unfit to look after patients but after some prevarication accepted this was a serious allegation.[151] Again I found the defendant evasive on this point.
  1. [85]
    The defendant accepted it was a serious allegation to accuse a nurse of drinking on duty.[152]  She initially alleged that it was not serious to accuse a nurse of habitually being intoxicated on duty but then accepted that it was serious to allege that a nurse habitually drank on duty.[153]  Again I consider the defendant prevaricated about her answers.
  1. [86]
    She accepted it was serious to allege that someone was dismissed because they habitually drank alcohol on duty.[154]  She agreed it was a serious allegation to allege that somebody was dismissed because they had stolen narcotic drugs or because they had gone missing.[155]  It was serious to make these allegations about a practising nurse.[156]
  1. [87]
    She did not accept it was grossly irresponsible to publish such matters without obtaining the person’s version of events. She was aware that there were bodies to which complaints could be made.[157]
  1. [88]
    Exhibit 5 (the Today Tonight tape) was played to her. The reporter, Rodney Lohse was someone she got in touch with by email.[158]  Mr Lohse came to her in Bundaberg and there were two interviews of about three to four hours.  She was aware that the program was broadcast in Western Australia and South Australia.[159]  She participated in the interview knowing that part of it at least would be broadcast.  She said that Ms Waugh contacted her through a google page.  The google page was set up by the defendant with the nurses’ union.[160]  She admitted saying to Mr Lohse that “one came in from [Ms Waugh] and I took up the fight.”  She admitted telling the journalists that the Facebook page got a lot of attention.  There were 180 followers then, there are now 1,500.[161]  She admitted she posted the Today Tonight promotional video on Facebook intending people to watch the program.[162] 
  1. [89]
    She said she was not sure if she mentioned the plaintiff’s name to Mr Lohse when she spoke to him.[163]  She alleged she did not show Mr Lohse the Waugh complaint.[164]  She admitted Mr Lohse called her and said that the show would be on but that there would be no names or faces published because he could not do it.[165]  The interview itself was about three months ago.  The defendant admitted telling Mr Lohse that the trial was starting this week.  She said she did not ask him to publish the program.[166]
  1. [90]
    She admitted again that she put the promotional video on the Facebook page. The defendant claimed she did not want to gain maximum publicity for the present case, it was only about aged care.[167]  I might say I found this unconvincing bearing in mind the promotional video was placed on the Facebook page shortly before the trial.
  1. [91]
    She admitted being asked whether she regretted this and admitted saying that she had to stick by what she said.[168]  She initially denied this was about the present case but then changed her evidence to say it was.[169]  I think that was an important inconsistency.  I would also add that I noted the defendant was hesitant in Exhibit 5 when she asked whether she regretted what she did. I infer by this that she realised that she had gone too far. As I later find, she went too far by suggesting the plaintiff may have been dismissed for alcohol use and for missing drugs.
  1. [92]
    The defendant said that she made a lot of allegations about aged care and about individuals and did not contact the individuals.[170] 
  1. [93]
    She claimed she thought the meeting with Mr Lohse was about cameras in nursing homes in South Australia[171] but I did not find that convincing because the defamation proceedings were specifically discussed in Exhibit 5.  She admitted she told Mr Lohse about the case some 18 months ago.[172]  She admitted she wanted as many people to watch the program as possible and this is the reason the promotional video was placed on the Facebook page.[173]  She could not say how many views there were of the promotional video.[174] 
  1. [94]
    As to Exhibit 1, she intended to refer to the plaintiff in this post. She never contacted the plaintiff for her comment about the post. She admitted never meeting Ms Waugh in person.[175]  She admitted after initial prevarication that harsh language was employed,[176] and she admitted she intended to allege that the plaintiff was incompetent and unfit to care for the elderly.[177]  She admitted she wanted the plaintiff sacked but then denied intending her any harm personally.[178]  I did not accept the defendant’s last part of the answer in that regard.
  1. [95]
    As to Exhibit 2, she admitted that she intended to refer to the plaintiff at page 1 and intended to infer that the plaintiff drank alcohol frequently.[179]  She denied at one point she was attempting to denigrate the plaintiff but then accepted it.[180]  Again she prevaricated on this.  She denied attempting to humiliate the plaintiff.[181]
  1. [96]
    She admitted that on the first page she wrote “do not forget the Endone that would surly [sic] give you a split personality.” She could not really explain why these words were used but she intended to convey that the plaintiff was a drunk.[182]
  1. [97]
    Exhibit 13 was the promotional video which the defendant placed on Facebook. She promoted this twice on 7 June 2019. There were 4,973 views on the Today Tonight website. She accepted that her Facebook page is a public page which can be seen by anybody. She had a second Facebook page called “Actioning Change for Age Care”. The actioning for change Facebook page had about 300 followers. Hers originally had about 167 and now has about 1,500 followers.[183]
  1. [98]
    She did not regard it as grossly irresponsible to publish the material without obtaining a version from the plaintiff.[184]  She underwent the interview with Today Tonight knowing that the case before this court had commenced.[185]  When she spoke to Mr Lohse she knew that the case was due to commence on Tuesday, 11 June 2019.  She promoted the story on her personal Facebook page and on the actioning for change Facebook page.[186]  She admitted in the two interviews with Mr Lohse that they discussed the court case.  She told Mr Lohse about the allegations concerning the plaintiff drinking on duty and that she had to stick by the posts.[187]  As to the phrase “taking up the fight”, this related to age care in general.[188]  She knew the plaintiff was still employed by the MCRV and wanted her to be sacked but she denied launching a campaign against the plaintiff.[189]  I might say I did not accept the defendant’s evidence on this point.
  1. [99]
    The defendant admitted Exhibit 14 was a Facebook comment dated 5 October 2017[190] in which she said “to the person who runs this facility [MCRV] you should hang your head in shame to let this neglect and abuse take place under your nose, I will find out your name and I will publish your name to make sure you are never employed in an aged care facility again.  Please note I will be doing this to any aged care facility that does not practice duty of care towards its elderly residents.”  Originally the defendant denied posting the text and said that some people were forging various posts.  She admitted though she could have posted this but she denied posting the photograph.[191]
  1. [100]
    I did not find the defendant’s evidence convincing on this point.
  1. [101]
    She was then shown Exhibit 15, a Facebook post-dated 11 October 2017.[192]  She admitting posting about the plaintiff “the facility manager from hell.”  Someone then suggested a drink and the defendant seemed “won’t be much left to drink a trip to the bottle to see Michelle”.  Later Helen Hardy added a comment “[snake] in the grass” and the defendant replied “that’s one viper you need to keep an eye on.”  The defendant admitted these were about the plaintiff and she admitted that it was vicious to call her a viper.[193] 
  1. [102]
    She denied though that from 5 October 2016 she started a campaign to have the plaintiff sacked.[194]  She then admitted that Exhibits 1 to 3 were posted to ensure the plaintiff was sacked.  She agreed she intended to harm the plaintiff.[195]
  1. [103]
    She did agree the plaintiff was the main focus in posts Exhibits 1 to 3.[196]  As to Exhibit 2, page 2, she accepted her intention was to humiliate and denigrate the plaintiff.[197] 
  1. [104]
    As to Exhibit 3, she admitted she intended to refer to the plaintiff. She was informed that the plaintiff had worked at Northridge Salem. She agreed that she asserted that the plaintiff had been escorted from those premises.[198]  Her intention was to raise a suspicion about the plaintiff.  She agreed that her mentioning the drinking habit or missing narcotic drugs was to engage in speculation as to why she was escorted from the last job.[199]  She agreed the post was a very serious matter.[200]  She did not intend to allege that the plaintiff had stolen drugs.[201]  The defendant had no information about drugs going missing at Rock Ridge, Salem and agreed the post was false.[202]  She agreed she wrote that post because she wanted the plaintiff to lose her job.[203]  She said that she never contacted the board or the plaintiff and only relied on the information given to her by Ms Waugh.[204]  She knew the plaintiff would have denied the allegations and knew the board would have denied them.  She deliberately did not contact the board or the plaintiff because the claims would be refuted.[205]  She agreed it was reckless of her to not contact the plaintiff or the board.[206]  She believed Ms Waugh worked for the MCRV and knew that she complained to the Health Ombudsman which complaints were dismissed.[207]  She did not know this though at the time of the posts.[208] 
  1. [105]
    As to Exhibit 4, this would have been in about 2016/2017.[209]  As regards the allegations she made of forging signatures she intended to refer to the plaintiff.  Additionally, the reference to criminal offences was a direct allegation that the plaintiff committed a criminal offence.[210]  Allegations that the plaintiff interfered with medical packs were made to get the plaintiff sacked.[211] 
  1. [106]
    As far as she knew everything she said about the plaintiff was the truth.[212]  She persists with her defence of truth and wants to see patients get better care and wants to see the plaintiff sacked.[213] 
  1. [107]
    She was shown Exhibit 6 and accepted there was no reference to the plaintiff being escorted off the premises to a drinking habit or to missing narcotics. She does not maintain the plaintiff was escorted from the premises at Northridge Salem. She was not willing to apologise.[214]
  1. [108]
    In re-examination the defendant admitted she did not contact the Board and the plaintiff because staff at the MCRV started a vicious attack on her on her Facebook page.[215] 

Matthew Newton

  1. [109]
    Mr Newton was a journalist with the Toowoomba Chronicle. He wrote the articles Exhibit J which were tendered as Exhibit 16. He was contacted by a member of the public about the allegations and wrote the articles some months later. He spoke to about 10 to 20 people before he wrote the articles. People he spoke to did not hold the plaintiff in high regard because they were upset about the treatment of patients at the facility.[216]
  1. [110]
    In cross-examination Mr Newton admitted he did not know the plaintiff. He had spoken to John Rogers who held the plaintiff in high esteem and accepted that some people may hold her in high esteem.[217]  He agreed there was no article concerning the plaintiff directly.[218]

Elizabeth Waugh

  1. [111]
    Ms Waugh gave evidence that she was a nurse practitioner and held a Master’s degree in nursing science. In her role she is allowed to diagnose medical conditions and can refer patients to specialists. She commenced her training in 1989 and was a registered nurse for 27 years. She started working with Dr Reedy in 2001 and started attending the MCRV in about 2013.[219]
  1. [112]
    Her duties at the MCRV involved weekly rounds to see if the residents were unwell, rewriting medication charts and referring patients if needed.[220] 
  1. [113]
    She agreed she made complaints to the Health Ombudsman’s Office about the plaintiff. There were two complaints.[221]  She had dealings with the patient Ruth Carter but not after she left the facility in January 2017.[222] 
  1. [114]
    The reason she left is because the Board wrote to Dr Reedy relating to allegations which she had made.[223]  She did not know the details of Ruth Carter.[224]  She was aware that Ms Callan had sustained injury but this happened after she left.[225]  Margaret Fitch was also known to her.  She noticed nothing out of the ordinary with her.[226] 
  1. [115]
    The plaintiff did not have a good reputation.[227]  She contacted Ms Brown because of complaints she had from staff and because of the things she had witnessed herself.[228]  She was appalled by the investigation by APHRA and the Health Ombudsman’s Office.  She felt there was a duty to say if there was something wrong and she did this.[229]
  1. [116]
    In cross-examination she denied that her complaints about the plaintiff were dismissed. It was accepted though APHRA and the Health Ombudsman found there was insufficient evidence to prove the allegation.[230]  She would have told Mrs Brown about this.  When she first spoke to Mrs Brown this was before she made her statement to the Health Ombudsman’s office in February 2018.[231]  The witness conceded ceasing work at the MCRV in January 2017.  About this time there was a conflict between Dr Reedy and the Board.  The Board offered to mediate but Dr Reedy refused to do this.  She agreed she did not like the plaintiff.[232]
  1. [117]
    In re-examination she said the nature of the conflict was that she spoke to a registered nurse, Annie Muir who brought to her attention reports she had received and that the plaintiff was not the right person for the job. She felt that she had to speak to staff at the facility.[233]  The mediation was offered in 2018.  She told Ms Brown that she had made a complaint.  She refused to go to mediation because the Board took no notice of the complaints.  She did not like the plaintiff because she had never witnessed such behaviour from another registered nurse and was appalled by her behaviour.[234]

Dr Reedy

  1. [118]
    Dr Andrew Reedy gave evidence that he had been a registered medical practitioner since 1998. He is the Queensland Health Medical Superintendent at the Millmerran Hospital. His first contact with the plaintiff was in September 2016 at which time she was the Director of Nursing at the MCRV. His second interaction with the plaintiff was on 20 January 2017.[235]
  1. [119]
    Turning to the first occasion, he attended the nursing home at about 4.00 pm or 5.00 pm to review a patient.  He was introduced to the plaintiff and they proceeded together to the patient.  He noticed the plaintiff’s demeanour and the way she presented herself.  She was walking with a staggering gait and had to balance herself.  She spoke in a very grandiose manner and slurred her words.  She made comments out of place, for example about euthanizing patients correctly.[236]  She also said that she had altered medications for patients as she saw fit in previous places where she had worked based on her clinical judgment.[237]  Dr Reedy told her it would not happen on his shift.[238]  Following this conversation Dr Reedy terminated the visit.  On the way back up there was similar behaviour on the part of the plaintiff.  He also smelt the strong smell of alcohol on her.  He then left the facility.[239]
  1. [120]
    He then gave instructions to his nursing staff. He would personally want to see the medical charts. The plaintiff was on duty at the time of the incident.[240]
  1. [121]
    As to the second occasion, on 20January 2017 he attended the facility to check on a patient to make sure the patient was well.  He was with the RN on call.  He examined the patient and then went to the doctor’s rooms.  The RN did not come up with him.  He then saw the plaintiff in her office.  He entered.  She sat behind her desk and there was a discussion about the patient he had seen.  He observed her leaning back, slurring her words and mispronouncing them.  She was speaking incoherently.  There was the strong smell of alcohol in the room.  The conversation lasted for about five minutes and then he left the facility.[241]
  1. [122]
    Dr Reedy dealt with the patient Ruth Carter. Ruth Carter had been moved to the MCRV to be closer to her daughter as she could not look after herself. Dr Reedy saw this patient on several occasions. A week prior to Ms Carter going to the hospital she had been brought up to his surgery for a routine visit. They were concerned she was not eating and losing weight. A full medical review and pathology review was conducted. This was normal. Ms Carter was suffering advanced dementia.[242]
  1. [123]
    About one to two weeks later he received a call from the RN on call. He was told the patient was in pain and distress and required an increase in pain medication. He gave the phone order and faxed it. The following morning about 8.30 am there was a further fax wanting the administration of additional pain medication because she was still in pain. The doctor rang and spoke to the nurse and told her that he needed to see the patient. He was told it was too hard to move her. He was told the family was happy with the situation. He rang the patient’s daughter Mary and expressed his concern. An ambulance took her to the hospital. She came into the emergency department at about 4.00 pm. A full head-to-toe check took place which is usual with such patients when they come into the hospital. Photographs were sent to him namely Exhibits 8A to 8C. He attended the hospital and reviewed the wounds. They were horrendous bed sores. 8B showed a central ulcer through which one could see the vertebrae at the base of the wound. Light could be seen from the other side when shone into the cavity.[243]
  1. [124]
    Dr Reedy confirmed it was a horrendous injury, one of the worst pressure injuries he had seen in his career.[244]  He had treated lots of patients with pressure sores and this is the worst case he had ever treated.[245]  I might say I thought this consistent with my view of the photographs.
  1. [125]
    Dr Reedy also treated the patient Gary Howe. Gary Howe was transferred from the Toowoomba Base Hospital to MCRV as a step down patient. He was no longer able to return home and his wife was unable to look after him. He was intellectually impaired and had a history of epilepsy. He was brought to the medical clinic on two occasions. On one occasion he was brought by ambulance on the direction of nursing staff for assessment. When he was brought up early one morning he was extremely unwell. The doctor was told that Mr Howe was not able to get out of bed. A head to toe examination was conducted. He had been extremely unwell for two to three days. He had a high temperature and high fever. It was determined there was an infection but it could not be located. The examination otherwise was normal. It takes 24 hours to get pathology results. Once they were returned it was determined there was a very advanced infection based on the white cell count. Mr Howe was transferred to Toowoomba Base Hospital for scans looking for the source of the infection. It was determined ultimately it was an acute gall bladder infection. He was returned to the ICU until he was stable enough for surgery. He did not return to Millmerran. Mr Howe had minor mobility issues. He was examined and Dr Reedy did not recall any rashes.[246] 
  1. [126]
    As to the plaintiff, he did not have a high view of her general reputation. He only had two interactions with her, both of which were unfavourable. At one point he had to order that the pills be counted. He received a number of complaints from staff and families about her when she was at Millmerran. Therefore his view was not favourable.[247] 
  1. [127]
    In cross-examination the doctor said that his observations of the plaintiff being affected by alcohol on two occasions was of significant concern to him. He accepted he made no complaint after the first occasion.[248]  There was no complaint made after the second occasion.  The doctor said he was incapacitated because he had personal surgery after that time.  He said that when he returned after surgery he lodged his first complaint with the Health Ombudsman.  The first complaint related to missing medication and treatment of nursing staff. The second complaint related to failing to report impaired practitioners.  No complaint was made concerning the two occasions of alcohol use.[249] 
  1. [128]
    He accepted his relationship with the Board was fractured and had been so since January 2017. He never went back.[250]  He disputed that the Board tried to mediate the situation.  Although he did accept that there was a letter from the Department of Justice as to mediation but he declined the offer.  He disputed that the Board was trying to engage him.  He accepted receiving Exhibit 17, an undated letter from the Board and Exhibit 18, a letter from the Board dated 5 May 2017.[251] 
  1. [129]
    He said that he had no personal grudge against Ian Rogers or the plaintiff.[252]  He accepted that Ms Waugh was his nurse practitioner who reported to him and two doctors.[253]  He did not accept that AHPRA investigates complaints thoroughly.[254]  He accepted he did not respond to the Board’s letters, Exhibits 17 and 18, and did not tell the Board about the alcohol incidents.[255]
  1. [130]
    He made no allegation to AHPRA or the Health Ombudsman about the plaintiff drinking.[256]  He denied being interviewed or making a statement over the phone regarding Robert Shipley.[257]  He said that the Health Ombudsman’s office only did matters by written correspondence.[258] 
  1. [131]
    He said that he only met the plaintiff twice although accepted he may have seen her on more occasions.[259]  He denied the proposition that she was not affected by alcohol in September 2016.  He said there were several people present.[260]  He also denied the proposition she was not affected by alcohol on 20 January 2017.  That date, namely 20 January 2017, was the last day of his work before he went on 10 weeks leave.  He did not know the plaintiff lived on site during the week and did not know that her place of residence on the weekends was in Toowoomba.[261] 
  1. [132]
    He denied that he still had bad blood with MCRV. He denied retaining lawyers about the situation.[262]  He accepted that complaints were made about him.  There was a post on his Facebook page in which he was accused of organising a campaign against the facility.  There was an anonymous complaint to AHPRA that he suffered from a psychological disorder which came from Yallambee.  There was anonymous complaint of him being a bully, engaging in sexual harassment and victimisation to AHPRA.  He suspected the complaint was from the Board of Directors and he believes the plaintiff influenced the Board to make these complaints.[263] 
  1. [133]
    There was also a complaint that he failed to return phone calls from MCRV and he instructed staff not to contact him after hours on the phone. He denied these complaints. There was also a complaint about him not prescribing drugs in a timely manner. He denied this complaint.[264]
  1. [134]
    He did not go back to the facility after 10 January 2017. As to Ruth Carter, she was old with advanced dementia. He did not recall any complaint being received about him negligently treating Mr Armstrong.[265]  There were also allegations that he showed photographs of Mrs Carter to members of the public but he denied this.  The Board accused him of being in a private feud with them but he denied this.  The complaint was dismissed.  He persisted in his allegation that the plaintiff was under the influence of alcohol on 20 January 2017 and he did see her that day late in the afternoon.[266]
  1. [135]
    In re-examination he said he did not respond to the Board’s letters, Exhibits 17 and 18, because the letters were delivered by hand by Mr Rogers who dropped them to his receptionist; the Yallambee Board put up a personal column in the local newspaper having a go at the medical services; the Board had gone to Queensland Health and insisted he be ordered to return to MCRV or be removed; his staff and partner received anonymous letters in the mail; he was attacked by the plaintiff’s friends on Facebook and shut it down and his union advised him not to respond.[267] 
  1. [136]
    As to why he didn’t complain about the inebriation, he was advised by AHPRA there would need to be an actual witness to drinking so there was insufficient evidence to lodge a complaint. He thought it would only muddy the waters concerning the matters that were before AHPRA.[268]

Susan Luder

  1. [137]
    Susan Luder gave evidence she was a registered nurse who qualified in 2006. She worked at Yallambee for 12 months until 12 June 2018. She was bullied by the plaintiff. She was bullied after she raised issues concerning safety and work practices. The issues that she raised were “shoved under the carpet”. She felt isolated and intimidated. Occupational Health and Safety (OHS) matters were not addressed despite them being raised.[269] 
  1. [138]
    On one occasion Ms Luder rang the plaintiff when she was on call on a Friday night and her speech was slurred during the call and she did not make much sense. Ms Luder at the time was the RN on the floor. She reported her concerns to John Rogers but he could not get a hold of the plaintiff.[270] 
  1. [139]
    Before she resigned, she put in a report to HR about the situation. She did not feel safe working in the environment.[271]
  1. [140]
    It was a standard practice to take photos of wounds of patients to place them in a wound folder. The plaintiff directed her not to take photographs of the wounds of Ruth Carter and not to forward anything to Dr Reedy.[272]  The plaintiff was very abrasive when she said this.[273] 
  1. [141]
    As to the plaintiff’s general reputation, in her experience she was dishonest and deceptive.[274]
  1. [142]
    Ms Luder accepted that she had seen Mr Shipley outside the courtroom but she said that they did not discuss the details of the case.[275]  I accept her evidence about this. It is corroborated by Mr Shipley’s evidence on the topic.
  1. [143]
    She did not like the plaintiff’s behaviour and did not like how the plaintiff treated her.[276]  She agreed she did not like the plaintiff.[277]  She said that when she worked at the MCRV the plaintiff was critical of her work.[278]  She accepted a lot of emails were sent to her but she never received them.[279]  She accepted she received Exhibit 19.[280] 
  1. [144]
    She said no complaint was made to her about her not putting all of her observations in progress notes.[281]  She accepted that she did work on occasions beyond scheduled hours and accepted that on one or two occasions she was directed to stop doing this.[282]  She did not recall the exact dates.[283]  She accepted Neil Campbell was her patient.  She did not recall any issues with the S4/S8 scripts.[284]  She denied that there was any discussion concerning blood issues with Val Hess.[285]
  1. [145]
    She denied filing issues were discussed with the plaintiff.[286] 
  1. [146]
    As to Exhibit 20 (an email dated 15 April 2018) the one she received was not cc’d to John Rogers. In fact she received the email, Exhibit 20, a fortnight later. She had already discussed the issue raised with the plaintiff and it had been addressed.[287]
  1. [147]
    When she worked there the plaintiff did not live on site, she lived at a house up the road.[288] 
  1. [148]
    She never received an email dated 20 April 2018, nor one dated 22 April 2018.[289]  She said that there was only one discussion about documenting wounds in advance and that was accepted by the plaintiff.[290] 
  1. [149]
    She accepted there was a communication breakdown between her and the plaintiff because of their fractured relationship.[291]  She accepted that observations were taken by RNs and the personal care workers conducted the showering, changing soiled clothes and rotating the patient.[292]
  1. [150]
    She agreed that she reported the slurred speech incident to John Rogers. She got his phone number from Sandy Peardon, the O H and S Officer. The phone call was on a Friday night with the plaintiff. She didn’t dispute it may have been on 9 March 2018.[293]  She denied attending a meeting on 8 March 2018 with John Rogers and the plaintiff.[294] 
  1. [151]
    She said that by January 2018, her relationship with the plaintiff was fractured because she had been bullied.[295]  She agreed that she resigned.  She denied resigning because she was subject to a complaint.  She resigned because she just could not work for the plaintiff, she wanted to do her job and she was not treated with respect by the plaintiff.[296]  She considered the plaintiff by her clinical directives was putting her registration at risk.[297]  She denied having a Facebook account but did see some Facebook entries on others.[298] 
  1. [152]
    Exhibit 21 was a letter she signed concerning the slurring of the words incident. She agreed she signed the letter and the reason she signed it was because she did not have concrete evidence of the plaintiff’s intoxication. She also was regretful that she had told five other employees about her intoxication.[299]
  1. [153]
    She persisted with her allegation that that plaintiff’s speech was slurred.[300] She accepted that she assumed the plaintiff was intoxicated.[301]  She had no concrete evidence about it.[302]
  1. [154]
    In re-examination, she said that by signing Exhibit 21, she agreed that she should not have told the other five staff members of this.[303]
  1. [155]
    As regards the email dated 20 March 2018 (which was not tendered) she did not recall reading it. She said that she followed the plaintiff’s directions.[304] 
  1. [156]
    She agreed that on one occasion she was directed to leave and she did.[305]  The reason she stayed later was to complete progress notes.[306] 
  1. [157]
    False allegations were made about her by the plaintiff and she was targeted. She was targeted after she stood up to the plaintiff. This also happened to other subordinates such as Nikki Carter.[307]

Robert Shipley

  1. [158]
    Mr Shipley gave evidence that he works for TriCare in Toowoomba. He used to work at Northridge Salem. The plaintiff worked for the same organisation but they weren’t there at the same time. He worked with her on and off. As to her general reputation, the plaintiff was not highly regarded by the staff.[308] 
  1. [159]
    Mr Shipley commenced work at the MCRV when Margaret was the clinical manager. He started there in early 2016. The plaintiff turned up one day as the nurse manager. Whilst he worked with the plaintiff at the MCRV she was bullying, controlling and micro-managing. He left and just about had a nervous breakdown. On one occasion he was confronted by the plaintiff in an office and was asked why he was dealing with Dr Reedy and Ms Waugh.[309]
  1. [160]
    Staff were in tears over their treatment by the plaintiff.[310]  She was derogatory about staff to other staff, for example, calling an RN “as dumb as dog shit”.  She was controlling.  Liz Waugh was referred to as Mr Shipley’s girlfriend.[311]  Even whilst on holidays the plaintiff required to be telephoned with clinical matters because she didn’t trust the staff.[312]
  1. [161]
    Turning to the Christmas party in 2016, Mr Shipley collected her from the nursing home and she had already had a few drinks by that stage.[313]  They then went to the Christmas party and the plaintiff drank triple scotch and cokes.  He then returned her to the nursing home at about 9.30pm.  During the Christmas party she was off duty. He could not confirm whether she was on or off duty later that night.[314]
  1. [162]
    He said that she had no less than four drinks, perhaps up to six. She drank these over about three hours. He did not take any action about this.[315] 
  1. [163]
    He resigned as a result of the bullying and harassment.[316]  He could not work for the plaintiff effectively any more.[317] 
  1. [164]
    As to Exhibit 7, he received a Concerns Notice from the plaintiff which was based upon his complaint to the Health Ombudsman.[318]
  1. [165]
    In cross-examination he agreed that the plaintiff was his boss as Director of Nursing.[319]  He said that he originally had a functional relationship with the plaintiff.[320] 
  1. [166]
    He said the plaintiff’s role was to supervise the nursing staff including personal care workers. He accepted the plaintiff had largely an administrative role.[321]  The personal care workers would shower the patients, change soiled clothes and would reposition them.  An RN would do this in the absence of a care worker.[322] 
  1. [167]
    The plaintiff lived on site in a unit during the week and he visited her more than once there. The plaintiff was there 24 hours a day between Monday and Friday. She was not necessarily on call or duty for all of that time. He had no direct knowledge of the hours she worked. She usually worked though from 8.00am to 4.30pm.[323] 
  1. [168]
    Prior to giving evidence the witness had read various emails sent to him reminding him of his tasks.[324]  He didn’t take the emails as an offence.[325]  He was shown Exhibits 22 to 27 and had accepted he received the emails but did not resent them.[326] My view of the emails was they amounted to harassment of him. This is particularly so when one considers that on 31 January 2017 alone there were emails at 7.03am,[327] 8.49am,[328] 8.50am,[329] 4.17pm,[330] and 4.19pm.[331] As he said, he would not have had the opportunity to read them until later. In my view a reasonable employer could easily have discussed the issues with him. I thought the response by Mr Shipley was a measured one.[332] 
  1. [169]
    He was cross-examined about conversations with Ms Luder out of court.[333]  I accept his evidence about this.  I do not think they discussed any of the substantial details of the case at all.  His evidence was corroborated by Ms Luder in this regard. 
  1. [170]
    The plaintiff was responsible for looking at patient’s files and overseeing the patients.[334]  He said there was a 100% turnover of registered nurses in a year.[335]  He accepted that there was always one registered nurse on shift during the day but personal care workers worked from 10.00pm to 6.00am.[336]
  1. [171]
    Mr Shipley said that he did not know the day of the Christmas party but thought it was Thursday. He accepted it could have been 9 December 2016. He never gave anybody instructions it was 9 December.[337]  He did not dislike the plaintiff but had made a conscious choice not to associate with her because he had an unpleasant time working with her.[338] 
  1. [172]
    Exhibit 28 was a further email dated 31 January 2017. He did not recall this. Exhibit 29 was a further email dated 31 January 2017 which expressed concerns about his performance. At this stage he conceded he was feeling under the pump. He said that he considered that the combination of the number of emails in a short space of time amounted to bullying when a conversation would have sufficed. In the normal course a nurse would be approached and these matters discussed.[339] He might not read them until the end of the shift.[340]
  1. [173]
    He accepted he sent a reply on 2 February 2017 to the plaintiff.[341]  He accepted the plaintiff prompted him regarding a FRAT.  This did not upset him.[342] 
  1. [174]
    He accepted that his relationship with the plaintiff had deteriorated by January 2017. He accepted that Exhibit 31 was a letter of allegations against him dated 14 March 2017. He denied the allegations.[343]  He resigned and did not see any point in responding because he saw they were trying to get rid of him.[344]  He said the plaintiff did not speak about the matters raised in the letter.[345] 
  1. [175]
    He agreed that his resignation letter was the first time he raised the allegation about the plaintiff drinking at the Christmas party.[346] He agreed that he had alleged that Nurse Leanne Reynolds was on one occasion affected by alcohol, medications or drugs because he was requested to write this by the plaintiff.[347]  He said that he laid out the facts in his resignation letter.[348]  Exhibit 32 was an email from him to the plaintiff dated 27 March 2017 in which he advised the plaintiff he was resigning.  He did not accuse her of bullying or drinking in that.[349]
  1. [176]
    He also admitted that he made a complaint to the Health Ombudsman in April 2017 and made complaints about the plaintiff and drinking.[350]  He accepted the complaint was dismissed.[351]  He persisted with the allegation the plaintiff was bullied him.[352] As to the drinking allegation, he did not recall the specific day and could not say whether she was on call.[353]
  1. [177]
    In re-examination he said that the plaintiff was in charge of the residents’ care and clinical oversight of the facility.[354]

Susan Barnett

  1. [178]
    Susan Barnett gave evidence that she had been a registered nurse since 1994. She presently works with Aveo Freedom Aged Care at Bridge Street in Toowoomba. She knew the plaintiff who was once her boss. She started working at Aveo in October 2015 and the plaintiff started in December 2015.[355]
  1. [179]
    There were issues with the plaintiff’s performance. She was abrasive with staff and spoke inappropriately in front of residents.[356] 
  1. [180]
    The plaintiff told her she was given a warning to improve her behaviour. After some weeks she was fired. She saw her being escorted out of the building. After this the plaintiff went to work at the Millmerran Nursing Home.[357] 
  1. [181]
    In cross-examination Ms Barnett said that she was a nurse at Freedom Aged Care. It is now known as Aveo Freedom Aged care.[358]  She worked there when the plaintiff was there.[359]  She was the clinical manager.  She agreed that Sheelagh Hanson was the group manager who dealt with staff issues.[360]  Also Ms Hanson dealt with termination issues.  She would be best placed to give evidence about this.[361]  She agreed that plaintiff was provided with a termination letter during her probation period.[362]  Ms Barnett said that she saw the plaintiff leaving the building from her window.[363] 
  1. [182]
    In re-examination she said the plaintiff left the building with Ms Hanson.[364] 

Debbie Sauverain

  1. [183]
    Debbie Sauverain was the daughter of Margaret Fitch. Ms Fitch was at the MCRV in December 2014 and she moved out on 27 July 2017.[365]  Ms Sauverain was not happy with her mother’s care.  On several occasions her mother was wearing a soiled nightie.  On one occasion she was in that for three days before being bathed.[366]
  1. [184]
    As to the television, some of the nurses took her remote control away from her. Sometimes she slipped out of bed and was not found until the next morning.[367]
  1. [185]
    She complained to the plaintiff about this but nothing was done.[368]  Usually they only showered the patients every two to three days.  Additionally her mother was stuck on the toilet for hours a few times.[369]  She ended up showering her mother because no-one would shower her.  Her mother normally did not have an early morning shower only at night and this is why the showering was not done.[370]

Jenny Honan

  1. [186]
    Jenny Honan gave evidence that Heather Brown was her mother. She was admitted to the MCRV in 2012 but died in December 2017.[371] 
  1. [187]
    She made application for a mobility vehicle for her mother. Her mother was quite active. She asked for a letter from the plaintiff. The plaintiff agreed to do one saying it would benefit her mother. She applied to the Public Trustee for funding but this was denied.[372] 
  1. [188]
    She discovered that the plaintiff had said it was not in her mother’s best interests to have a mobility vehicle. She changed her support.[373]  Ms Honan lodged an appeal with QCAT and somehow the plaintiff got a copy of this form and contacted her.  She was aggressive and threatening over the telephone and threatened her telling her to watch what she said and did.[374]  This was because in the QCAT application Ms Honan had alleged that the plaintiff was under investigation. 
  1. [189]
    She said that the general reputation of the plaintiff was that she was not well liked. Millmerran is a small town, people talk and the plaintiff did not have a good reputation.[375] 
  1. [190]
    On another occasion her mother developed a urinary tract infection. She was to be transferred to the Millmerran Hospital. An ambulance turned up. The plaintiff did a rundown of the condition and told the ambulance officers that the mother had been on antibiotics for three days. A registered nurse was there and interrupted and said that Ms Brown was not on antibiotics at all.[376] 
  1. [191]
    When the mother was transferred to the Millmerran Hospital she was not well. She went back to the nursing home and said to the plaintiff that the plaintiff knew that the mother had a medical directive. The plaintiff said she was unaware of this.[377]
  1. [192]
    In cross-examination Ms Honan said she was not married, had no partner but had previously been in a relationship with a man called Carl Thomas.[378] 
  1. [193]
    When Ms Honan was recalled to give evidence on 18 June 2019 it became clear that she had sent a letter to the court wishing to retract her “statement”.[379]  She said that the reason for this is because of Mr Karl Thomas’ defamation proceedings and she felt as if there was a “conflict of interest”.[380] 
  1. [194]
    Despite this she said that what she had told the court previously was true.[381]  She agreed that Mr Thomas had been sued for defamation by the plaintiff.[382]  She agreed that the application to QCAT did not only involve the mobility vehicle but also involved other matters, namely a dispute with her sister over who controlled the mother’s financial affairs.  She made application that she be allowed to control the affairs which was denied.[383]  She accepted that her sister told the Public Trustee that the mother should not have a mobility vehicle.  The sister alleged it was because Ms Honan wanted the money.[384]  She agreed that the Public Trustee was the administrator of the mother’s financial matters.[385]  She agreed that she was angered by the refusal of her application by the Public Trustee.[386]  She agreed that she was notified in July 2017 about the decision.  She denied telephoning the plaintiff and yelling at the plaintiff.[387]  She said the plaintiff rang her concerning comments she had made in her application to QCAT.  She accepted that she was angry at the plaintiff and it got heated.[388] 
  1. [195]
    She agreed that MCRV had a bus which had been purchased in March 2017.[389]  She agreed that between January 2017 and July 2017 her mother’s health was declining.[390]  She said her mother did not enjoy going out with the nursing home but enjoyed going out.[391]  She didn’t mention in her evidence in chief that the application also involved an application by her to control the financial affairs because she wasn’t asked about it.[392]  She agreed that the plaintiff was suing Mr Thomas for defamation and she was in a sexual relationship with him.[393]  She denied making up her evidence.[394]
  1. [196]
    Her mother’s money was going to be used to purchase the vehicle.[395]   She accepted at times from February 2017 onwards that her mother showed little willingness to take outings.[396]
  1. [197]
    She agreed that there was aggression on both sides during the telephone call with the plaintiff.[397]  She agreed she was aggressive because she had application had been rejected and because the plaintiff called her.[398]  She agreed that the Public Trustee was always in charge of her mother’s affairs.[399]  She accepted she was aggressive.  She accepted she did not mention that in her evidence in chief.[400]  She agreed she did not like the plaintiff but would not use the word “hate”.[401]  She persisted in her evidence that the plaintiff was unaware of any medical directive.[402] She accepted that her mother was in hospital at the time and under the hospital’s care and not the plaintiff’s.[403]  The doctor was aware of the directive.[404]  Exhibit 33 was the QCAT decision.[405] 
  1. [198]
    In re-examination Exhibit 35 was tendered, namely the letter of support by the plaintiff dated 20 January 2017[406] and Exhibit 36 was the letter dated 30 May 2017.[407] 

Janet Howe

  1. [199]
    Ms Howe gave evidence that she lives in Gatton. Her husband, Gary was a patient at MCRV in October 2017. She moved Gary because he almost passed away from sepsis in January 2018. She stated that the plaintiff was very unapproachable.[408] 

Dr Brett Burrett

  1. [200]
    Dr Brett Burrett gave evidence that he was a doctor in Millmerran. He graduated in 2014 and started working as a doctor in 2015. He works at the GP surgery and hospital in Millmerran.[409]   
  1. [201]
    He had a number of conversations with the plaintiff about a patient called Brian Bielby. The evidence reveals that the patient was very unwell. His GCS was 9 and his oxygen saturation down to 87%. He was brought into the emergency department of the hospital on 20 May 2018. Very little information had been provided about the patient by MCRV.[410] 
  1. [202]
    The plaintiff and Dr Burrett talked on 20 May 2018 and then had another conversation at about 11.00am on 21 May 2018.[411] 
  1. [203]
    On 21 May 2018 they talked about the patient’s plan and prognosis and then the plaintiff started screaming down the phone at him, stating she’d never previously had to produce progress notes or observations to doctors in 20 years of practice.[412]  She kept asking him “why do you want the notes?” She asked if he was hiding something.[413]  She then started asking “how long have you been out of university?” and that there are “things here that junior doctors don’t understand”.[414]  He made an appointment to discuss the matter with her but then he spoke to the Medical Defence Union who advised him not to.[415] 
  1. [204]
    The two main things he recalled are that she alleged that in 20 years of nursing she had never been previously asked to provide progress notes or observations and also that he had to understand that she had a number of junior nurses there. She also alleged that other doctors were out to get her and she was going to try and get them.[416]
  1. [205]
    He said she was quite pleasant on the phone on the Sunday and pleasant at the start of the Monday conversation and then changed to shouting and being hostile and very volatile. She sounded as if she was intoxicated.[417] 
  1. [206]
    The main issue with Mr Bielby was that he was going downhill quickly.[418]  After this conversation he made notes about what transpired.[419]  These were marked as Exhibit 37.  He also made a complaint later to the Health Ombudsman.[420]  Yallambee does not have a good name in Millmerran.[421] 
  1. [207]
    In cross-examination the witness agreed he told APHRA that the plaintiff had delayed or failed to provide him progress notes from Mr Bielby.[422]  He told APHRA that she had behaved in a disrespectful manner.[423]  He accepted that APHRA found there was no evidence of any request being made for the notes.[424]  He was told by the plaintiff that Mr Bielby had not deteriorated prior to going to the hospital.[425]
  1. [208]
    He wrote the incident report (Exhibit 37) a couple of days after the incident. He agreed that page 4 of the report was created at 6.06pm on 24 May 2018.[426]  The notes were made when his memory was fresh.[427]  He agreed that the plaintiff had also accused him of being derogatory and bullying towards the nurses.  This was not true and indeed the plaintiff could not provide him any specifics about this.[428] 
  1. [209]
    He agreed that in the incident report there was no reference to her being under the influence of alcohol.[429]  He agreed that APHRA based its decision on a lack of documentation.[430]  He agreed that he lodged his complaint with APHRA in February 2019, some 8 months or so after the incident.[431]  He said it took him a while to make the decision to complain.[432]  He said that the plaintiff swore at him and threatened to have him deregistered.[433]  He said that Exhibit 37 was a summary only and he did not record things verbatim.[434]  He said he could have written a lot more.  He persisted with his evidence that she did swear at him on the telephone.[435]  He came to the conclusion she was under the influence of alcohol.[436]  He said that he got on with Dr Reedy but Dr Reedy was not a personal friend.[437]  He accepted he didn’t mention swearing in the incident report.[438]  He accepted that APHRA found the incident report materially of different to his complaint to APHRA.[439] 
  1. [210]
    He agreed that Dr Reedy instructed him to document everything and include that in the incident report.[440]  He was aware that Dr Reedy had a falling out with the MCRV.  Dr Reedy though didn’t talk about it.  Dr Reedy told him to stay out of it.  Dr Reedy never told him that he had bad blood with the plaintiff.[441] 
  1. [211]
    He waited almost nine months to make a complaint as he did not want to complain at first.[442]  He agreed that he reported the phone call to Dr Reedy who told him to document it.[443]  The plaintiff sounded very unhinged in the phone call.[444]  He confirmed that she alleged to him that she had received complaints of bullying by staff.[445]  She did swear on the phone call, she was abusive and aggressive.[446]  He tried to get on with her and remain neutral.[447] 

Sheelagh Hanson

  1. [212]
    Ms Hanson gave evidence that she works at Aveo. She started there in September 2015. In February 2016, Freedom was taken over by Aveo.[448]  She was the state manager based at Eight Mile Plains as at December 2015.  She knows the plaintiff.  The plaintiff worked for Freedom in Toowoomba at Bridge Street.[449]  The plaintiff had a number of issues at work.  She had engaged in abrasive behaviour and was not fitting into the work culture.[450]  They had a conversation in December 2015 about this but things did not improve.[451]  As a result, they decided to terminate her probation on 14 January 2016.[452]  Exhibit 38 is the dismissal letter.  On that day she drove to Toowoomba and gave the letter to the plaintiff and read it to her.  The plaintiff got a copy.  They were in the plaintiff’s office.[453]  She picked up her handbag, returned her keys and Ms Hanson walked out with her from the building, they walked down the stairs together.[454] 
  1. [213]
    In cross-examination the witness agreed that the plaintiff’s employment was subject to a six month probation period.[455]  The plaintiff was not a good cultural fit for Freedom.  Their mode of care is different as it involves a lot of external contractors and different stakeholders.  Freedom didn’t suit the plaintiff’s style.[456]  Ms Hanson did not see the plaintiff as a bully.[457]  As to the day of termination only two of them were present at the meeting.[458]  Susan Barnett’s office was also nearby.[459]  She is the clinical case manager.  The plaintiff left with her handbag and Ms Hanson followed her behind.  She denied escorting her off the premises.[460]  It was not true that the plaintiff was terminated because of the use of alcohol or stolen or missing narcotic drugs.[461] 

Nicoletta Carter

  1. [214]
    Ms Carter gave evidence that she lives about 40 minutes from Millmerran and is presently retired. At the relevant time she was a Personal Care Worker (PCW) at MCRV. She holds certificates III and IV in Aged Care and a Medication Certificate. She has been a PCW since 2002/2003. She retired on 20 October 2017.[462] 
  1. [215]
    Ms Carter started working at MCRV in 2009. Sometime later the plaintiff became the clinical care manager.[463]  MCRV is owned by the community. 
  1. [216]
    She did not have a good relationship with the plaintiff. The plaintiff picked at staff and was not a very good role model. The plaintiff would cut rosters and take hours away from you if you didn’t do as she said.[464]  Personally, Ms Carter had no issues with the plaintiff until later on.[465]  The plaintiff started asking her to do things out of her scope of duties.[466] 
  1. [217]
    The witness started making diaries as she was bullied by the plaintiff.[467]
  1. [218]
    On one occasion there was a meeting with the plaintiff on 8 May 2017.[468]  The plaintiff had asked her to be woken up at 6.30am.  After this at a meeting she was asked to sign a statutory declaration stating that she did not smell of alcohol at work and had not been drinking.[469] Ms Carter said she could not sign this as that morning she had woken the plaintiff and smelled alcohol on her breath.[470]
  1. [219]
    She gave evidence that the plaintiff always ate packets of Minties since she found Minties paper wrappings in the bins.[471]
  1. [220]
    She recalled on another occasion smelling alcohol on the plaintiff’s breath. She called the plaintiff to give an injection to a patient, Noel Hopkins. It took her 20 minutes to walk from the Board room to where this had to happen. She was holding on to a bannister. The plaintiff smelled of alcohol. Ms Carter followed her to the nurse’s station. The plaintiff took out pain medication from a drug trolley and dropped the vial on the floor twice. She gave the resident an injection very harshly because there was an expression of pain on the resident after it happened. Ms Carter refused to sign the medication chart. The plaintiff accused her of being insubordinate and not compliant.[472]  With respect to the Hopkins incident, it took her 20 minutes to travel 15-25 meters.[473]
  1. [221]
    After this the plaintiff became very picky and bullying towards Ms Carter. She told Ms Carter that her Certificates were not worth anything.[474]
  1. [222]
    She recalled a third occasion when she smelled alcohol on the plaintiff. This was during a night shift. A resident (Dot Fox) had to be transferred to the hospital. The plaintiff was dressed in a thin nightie with no shoes on. She smelled of alcohol and was very unsteady on her feet.[475]  
  1. [223]
    The plaintiff lived at the premises between Sunday and Thursday and she was on call between Sunday and Friday morning, as well as working.[476]  Sometimes she would not go home to Toowoomba on a Friday, particularly when accreditation was occurring.[477] 
  1. [224]
    With respect to the patient Adrian Contant, on 12 December 2016 Ms Carter was on night duty and started at 10.00pm. Christie Dixon and her were doing the rounds. Ms Dixon asked Ms Carter to go to room 20 as Adrian was non-compliant. He couldn’t weight bear and was falling.[478]  She called the plaintiff to come out but she refused to.  The plaintiff was slurring her words.[479]  The plaintiff told her to lay him back down and give him a drink of water.[480] 
  1. [225]
    Two days later Ms Carter was on the 6.00am shift and went into Mr Contant’s room. She smelled urine and sweat. His pyjamas were wet. They were the same pyjamas he was wearing from two days prior. An RN came in and they turned him and he was red on the right side from pressure from shoulder to the knee.[481] 
  1. [226]
    The incident involving the Endone occurred on 24 January 2017.[482]  Ms Carter was informed that 18 Endone tablets had gone missing.[483]  Endone is a Schedule 8 drug.  Six staff members went outside and looked through the garbage bins.  There were about 20 bins which were each checked three to four times.[484]  The garbage bags in the bins were opened and gone through.  The plaintiff then arrived through the back door.[485]  She stood next to Ms Carter’s garbage bin, opened the lid and simply said “look what I found” and handed her a card of 10 tablets of Endone.[486]  She gave Ms Carter the tablets and then Linda Reynolds took them.  They looked for the other eight tablets and couldn’t find them.[487] 
  1. [227]
    Sandra McLachlan and Ms Carter took the tablets to a Clarissa (an RN).[488]  They were not allowed to carry Endone tablets.  However, Ms Carter stated that she was told to by the plaintiff.[489]  Endone is normally kept in a safe.  The plaintiff had the master key and the RN had a copy.  Ms Carter had checked the bin about five times and there was no way she could have missed the Endone.  She had no idea where the Endone came from.[490] 
  1. [228]
    In June 2017 a complaint was put into the Health Ombudsman Office about the missing Endone. Ms Carter had to fill in a report. The fact is that a form had to be filled in at the time the Endone went missing and the police notified. The witness stated that this was not done.[491] 
  1. [229]
    With respect to the patient, Aileen Callan, she lived in room 4 in Yandilla Lodge.[492]  On 31 July 2017 Ms Carter was on the 9.30pm shift.  Ms Jones, an RN, asked her to assist with Ms Callan and assist with medication.  Ms Callan was lying on the bed “stargazing” and the furniture in the room was in a mess.[493]  Ms Carter was told what had happened and then spoke to the plaintiff about the patient falling.  The plaintiff did not seem concerned about it.  Ms Carter said she was going to report the matter to the Aged Care Commission and the plaintiff said that she could do that, she knew how to handle or deal with these complaints.  Ms Carter’s concern was about Ms Callan’s condition.  What happened was she was given extra Alepam as sedation to simply calm her down.[494] 
  1. [230]
    With respect to the Webster-pak, these are made up by chemists for the residents.[495]  A Webster-pak for one of the patients (Jill Wright) went missing from Koorangarra Lodge.[496]  Whilst Ms Carter didn’t speak to the plaintiff about this issue, Ms Gegg did.[497] 
  1. [231]
    As regards to the patient Margaret Fitch, Ms Carter was on a night shift and treated her. She found that her clothing was soaking wet. She was still wearing the nightie that Ms Carter had placed on the evening shift before so it had been left on for over 24 hours.[498] 
  1. [232]
    There was another incident involving Ms Fitch. She was on her bed crying, wanting to go to the toilet. They lifted her up and again her bed was soaking wet. Her call bell was placed in a position where she couldn’t reach it. Normally it was put near the pillow. The remote for the TV was over there as well which she could not reach. They took her to the bathroom and cleaned her and noticed a lump and a bruise on her. Ms Carter spoke to the plaintiff about these issues but nothing was done about it.[499] 
  1. [233]
    With respect to the registered nurse, Karen Moore, Ms Carter on one occasion asked the plaintiff if she could work with Ms Moore. The plaintiff told her that Ms Moore was “as dumb as dog shit” and that “no PCW had anything between their ears and that means you too”.[500]  Ms Carter also saw the plaintiff on occasions yelling at Ms Moore.[501]   
  1. [234]
    Ms Carter also worked with Robert Shipley and saw the plaintiff speak to him in a demeaning way. He was told he was not doing his job properly.[502] 
  1. [235]
    As to Ms Luder, the witness recalled coming on an afternoon shift. Ms Luder was told she couldn’t go home. The plaintiff spoke to Ms Luder rudely and accused her of not doing her job properly.[503]  Also, on one occasion Ms Luder stayed in the facility because she was concerned about a resident.  The plaintiff became very annoyed about this.[504] 
  1. [236]
    Ms Carter ended up taking sick leave because of pressure and stress. This was from 3 August 2017 until the end of August 2017.[505]  A doctor’s certificate for the sick leave was given to the plaintiff.  When she did this the plaintiff said there was a letter for Ms Carter in the pigeon hole.  This letter accused Ms Carter of taking photographs of the resident without permission and copying rosters without permission.[506]  Ms Carter saw a psychologist after this.[507]
  1. [237]
    Ms Carter wrote a letter to the Board complaining about bullying and intimidation from the plaintiff.[508]
  1. [238]
    With respect Nurse Pokarier, she was a big girl and the plaintiff put her down because of her size. Ms Pokarier was very upset about this.[509] 
  1. [239]
    Overall the plaintiff had a very poor reputation towards staff. Staff didn’t like her. She was aggressive and rude.[510] 
  1. [240]
    In Ms Carter’s opinion the staff and residents of MCRV were not looked after.[511] 
  1. [241]
    As to the Christmas party on 8 December 2016, Ms Carter was on duty on the 2.00pm shift. She was informed the plaintiff was on call.[512] I disregard the hearsay evidence.
  1. [242]
    With respect to 24 July 2017, the doctor’s certificate was taken by Ms Carter to the plaintiff’s office.[513]  The plaintiff informed her there was a letter in her pigeon hole.  She was told there would be a further meeting on 3 August 2017.  Ms Carter observed that there was a small glass with brown liquid in it at the side of the plaintiff.  The plaintiff drank from it, smirking at her.  Ms Carter could smell alcohol in the room.[514] 
  1. [243]
    Ms Carter ultimately resigned because of pressure, false accusations and threats by the plaintiff.[515] 
  1. [244]
    In cross-examination Ms Carter said that she started part-time at MCRV in 2009 and accepted she commenced full-time on 1 June 2010.[516]  She agreed that she was the subject of allegations in a letter dated 21 July 2017 (Exhibit 39).[517]  She agreed that in her diary there was no mention of the room smelling of alcohol on 24 July 2017.  She persisted with her evidence that it did smell of alcohol.[518] 
  1. [245]
    The meeting which was meant to take place on 28 July 2017 was postponed and took place on 3 August 2017.[519]  John Rogers, the plaintiff, Jenny Valentine and the witness were present.  She was interviewed regarding the taking of photographs and photocopying the roster.  All of the allegations were denied.[520] 
  1. [246]
    On 4 August 2017 Ms Carter made a complaint to the plaintiff against Nurse Doris Jones. A doctor’s certificate was sent by fax and it was Ms Carter’s view the plaintiff had disclosed Ms Carter’s medical condition to Nurse Jones. The doctor’s certificate was faxed to the MCRV. Ms Carter accepted there were two fax machines, one in the plaintiff’s office and another one. Ms Carter found out that her medical condition was disclosed because she received a phone call from a nurse asking what an adjustment disorder was. She agreed the complaint at that stage was about Doris Jones. The medical certificate was addressed to the MCRV. The plaintiff was responsible for approving sick leave and sick leave was actually approved.[521]  I infer the plaintiff did receive the medical certificate because the sick leave was approved.
  1. [247]
    Ms Carter denied recording all grievances she had against people at the MCRV in her diary all the time.[522]  She said she loved her job.[523]
  1. [248]
    She was cross-examined about entries on 7 January 2016, 9 February 2016 and 11 February 2016. In those entries she made notes about co-workers; about Margaret having an affair with Tim Antonio; and a reference was made to the “cliquey group”. Despite this she said it was a happy working place for her.[524] 
  1. [249]
    She said she did not have an opinion about the plaintiff soon after she arrived.[525]  The plaintiff started working there in June 2016.[526]  She was shown an entry from her diary on 29 June 2016 in which she noted it was a nightmare to work with the plaintiff.  The plaintiff was abusive to residents and staff and she was a nasty lady.  The plaintiff was critical of her work.  She didn’t know whether Margaret Williams (the previous Director of Nursing) was sacked or walked out.[527] 
  1. [250]
    The plaintiff was a bully to staff and rude to residents.[528] 
  1. [251]
    She accepted when the plaintiff was on site she didn’t necessarily work the whole time. She gave evidence that the plaintiff was on call 24 hours a day from Sunday at lunch until Friday morning. By being on call what she meant was that if something went wrong the plaintiff would be the person who was called.[529] 
  1. [252]
    Ms Carter accepted in an entry in her diary dated 27 July 2016 that she called the plaintiff a “dragon lady”.[530]  She agreed the plaintiff from time to time told her how to do her job.[531] 
  1. [253]
    In an entry from 10 October 2016 Ms Carter noted that Janelle Loveday was being bullied by the plaintiff. The plaintiff was being very rude to Ms Loveday.[532] 
  1. [254]
    Ms Carter agreed that prior to her evidence she had been given some documents dated 19 October 2017, which were various written complaints made about her. She agreed that she was stood down on 18 October 2017. As to the complaints dated 19 October 2017 she said the signatures were all similar and she denied knowing anything about them. She never received any of those letters.[533]  There was one dated 10 October 2017 which she called a false letter.[534] 
  1. [255]
    Returning to her diary, on 17 January 2017 she noted that Kirra had refused to assist a resident again and had gone “crying” to Maxine. She said that she didn’t have a problem with Kirra.[535] 
  1. [256]
    There was another reference to Kirra crying to Maxine and getting her own way on 18 January 2017. There was a further reference to Kirra on 23 January 2017. In an entry dated 22 February 2017 she said the plaintiff had the facility at heart.[536] 
  1. [257]
    She said the plaintiff would threaten people if for example the phone was not answered by taking hours away.[537]  She said that some staff “crawled” to the plaintiff.[538] 
  1. [258]
    She noted that on 16 March 2017 Beverly had engaged in bullying.[539]  She accepted there was a lot of bitchiness referred to in the diary.  She didn’t participate in this though.[540] 
  1. [259]
    She noted on 25 May 2017 in the diary that Beverly, Leanne, Kirra and Shelley were lazy and didn’t deal with residents appropriately.[541]  And that they could lie.[542]
  1. [260]
    On 17 August 2017 she noted that Sandy was rude concerning her leave.[543] 
  1. [261]
    On 28 August 2017 she noted that the medical certificate was faxed.[544] Dr Reedy wrote the certificate.
  1. [262]
    She said she had not spoken to Dr Reedy about this case.[545]  She admitted she was seeing a psychologist.[546] 
  1. [263]
    As to 27 September 2017, she said that her daughter has a Facebook page but that she herself does not have Facebook.[547]  She did not know her daughter uses the name “Kawana Moore”.[548]
  1. [264]
    She agreed that Exhibit 41, a letter dated 18 October 2017, was given to her concerning allegations of breaches of the MCRV media and privacy policies.[549]  She was stood down on full pay.[550]  The allegations related to information allegedly given to her daughter which was published on Facebook.  Ms Carter said this was an untrue allegation.[551] 
  1. [265]
    She was also given a letter dated 19 October 2017 on 20 October 2017 (Exhibit 42) in which a number of allegations were made against her.[552]  She was not aware that her daughter had made a post to Facebook and did not discuss the matter with her.  As far as she knew her daughter didn’t know the plaintiff.  She denied that her daughter ran a campaign against the plaintiff.[553] 
  1. [266]
    Ms Carter admitted knowing the defendant. She was given her phone number through Liz Waugh.[554] 
  1. [267]
    She was shown Exhibit 15 and did not recall this as an attachment to Exhibit 42.[555]  Ms Carter admitted she did not respond to the allegations in Exhibit 42 and resigned.[556] 
  1. [268]
    As regards to Mr Contant, Ms Carter stuck to her evidence on this. She said she rang the plaintiff and told the plaintiff he couldn’t stand or weight bear.[557] 
  1. [269]
    Exhibit 43 was a progress note concerning Mr Contant dated 13 December 2016. She rejected the proposition that the plaintiff did not come because Mr Contant was settled. She said the plaintiff told her she could not come out.[558] 
  1. [270]
    As regards to the other patients, Ms Carter said the plaintiff was ultimately responsible for their conditions because she was the Director of Nursing.[559]  She agreed that the Director of Nursing relied on the PCWs and RNs to do the actual work but she did not accept it was the fault of the PWCs or RNs.[560] 
  1. [271]
    As regards to 8 May 2017, she said the plaintiff asked her to sign a statutory declaration or statement that she had not observed her to be drinking. Ms Carter was not aware of Ms Shipley’s allegations at that stage. She didn’t know at that point that he’d made a complaint.[561]  On 8 May 2017 Ms Carter found out about a solicitor’s letter which had accused the plaintiff of drinking. 
  1. [272]
    She agreed that in her diaries there were only two recorded incidences of the plaintiff smelling of alcohol. The first was 8 May 2017 and the second was 24 July 2017.[562] 
  1. [273]
    Ms Carter stuck to her version that she did smell alcohol in the room on 24 July 2017.[563]  She admitted to not putting this in the diary.[564]
  1. [274]
    She did smell alcohol on the plaintiff’s breath on 8 May 2017.[565]  Ms Haslem was also there on 8 May 2017 and agreed to sign the statutory declaration.[566]  
  1. [275]
    Ms Carter stuck to her version that the plaintiff did drink brown liquid on 24 July 2017.[567] 
  1. [276]
    Regarding the missing Endone incident on 24 January 2017, she denied that the plaintiff searched through the bins at the same time. Exhibit 44 was tendered in this regard. Apparently Clarissa the RN thought she threw the boxes away.[568] 

Karen Moore

  1. [277]
    Karen Moore gave evidence that she was a registered nurse and had been for six and a half years. She started working at the MCRV about 10 years ago and resigned in 2016.[569]  She has been working as a nurse in Oakey for about three and a half years. 
  1. [278]
    She resigned as she was stressed because she was pressured by management. The plaintiff told her she was no good and she couldn’t work with her.[570] 
  1. [279]
    In cross-examination Ms Moore admitted that her letter of resignation was dated September 2016. She accepted that Ms Peardon was trustworthy and reliable.[571]
  1. [280]
    She admitted that at the time of the resignation she was subject to a number of allegations including administering a Schedule 8 drug without checking it out properly and administering a Schedule 8 drug without having it checked by another. The final allegation was that she requested a PCW to sign that they had checked the Schedule 8 medication when they hadn’t. She denied this last allegation. It was in fact the PCW who offered to sign it. Ms Moore didn’t request this.[572] 
  1. [281]
    She agreed there was a meeting on 19 September 2016 in which the plaintiff, herself, her union representative (via phone) and Sandy were present. Sandy took notes. She agreed the plaintiff said there had been serious misconduct and therefore Ms Moore’s employment was to be terminated. She agreed that instead she was allowed to resign.[573] 
  1. [282]
    Ms Moore said that she was investigated and no further action was taken.
  1. [283]
    In re-examination Ms Moore admitted the Schedule 8 allegations, aside from requesting a PCW to sign. She said she did this because the plaintiff told her not to disturb her and there was no other staff member present to assist.[574]   

Terms of reference

  1. [284]
    Exhibit 48 were the terms of reference for the Royal Commission into Aged Care.

Rebuttal evidence

  1. [285]
    On day 6 of the trial I gave leave to the plaintiff to call rebuttal evidence.

Sandy Peardon 

  1. [286]
    Sandy Peardon gave evidence that she was the finance/administration officer at Yallambee. She knows the plaintiff. She would see the plaintiff every day and they worked very closely together.[575]  She conceded that the plaintiff was on call after 10.00pm until 6.00am although other registered nurses were also on call.[576]  She had never seen the plaintiff drink alcohol on duty, nor had she smelled alcohol on her, nor had she seen her affected by alcohol.[577]  She gave evidence that the Christmas party occurred on Friday, 9 December 2016.[578]  The plaintiff was not on duty that night, Doris Jones was.[579] 
  1. [287]
    In cross-examination Ms Peardon denied that she and the plaintiff were friends.[580]  She agreed that in the plaintiff’s application for employment there was no mention of her having worked at Freedom Aged Care.[581]  The plaintiff had never told her she had been dismissed from previous employment.[582] 
  1. [288]
    She admitted she had never worked after hours and could not say what the plaintiff’s condition was after hours or on call.[583]  She conceded that everybody eats Minties.[584]  She was fairly sure the Christmas party occurred on 9 December 2016.[585]  She denied the plaintiff was intoxicated at the Christmas party.[586]  She said that Dr Reedy may have been there when she worked there but that she was not there when he had dealings with the plaintiff.[587] 

Justine Brunner

  1. [289]
    Justine Brunner gave evidence that she worked at MCRV between January and July 2016. She had previously worked at Northridge Salem with the plaintiff. She has known the plaintiff since 2012. She had never seen the plaintiff drink on duty or be affected by alcohol or smelling of alcohol.[588] 
  1. [290]
    In cross-examination the witness agreed that she was a friend of the plaintiff’s and was a Facebook friend. She denied that the plaintiff regularly smelled of alcohol. The plaintiff liked Minties but didn’t eat them excessively.[589] 

Lynette Haslem

  1. [291]
    Lynette Haslem gave evidence that she was a personal care worker at Yallambee and had been there for about six years. She had known the plaintiff since the plaintiff had been working at Yallambee. She worked six night shifts a fortnight. She would frequently have contact with the plaintiff. She had never seen the plaintiff drink on duty, affected by alcohol or smelling of alcohol.[590] 
  1. [292]
    In cross-examination the witness agreed that the plaintiff being on call was sometimes required to attend the facility. Because the plaintiff lived on site she was often called at night to attend incidents.[591] 
  1. [293]
    She denied they were friends.[592]  She agreed that she was asked to sign a statutory declaration concerning drinking.  She agreed that Nicki Carter was present but did not know what Nicki Carter’s response was.[593]  I might say I did not accept Ms Haslem’s evidence on this.  It was an unusual event and I consider it would have been likely that she would remember Ms Carter refusing to sign the statutory declaration. 
  1. [294]
    She denied the plaintiff was affected by alcohol at the time.[594] 
  1. [295]
    Ms Haslem denied hearing the plaintiff slur her words and had seen her eating Minties but not two packets a day.[595] 
  1. [296]
    Ms Haslem agreed she was on Facebook. She was shown Exhibit 11, a derogatory picture of the defendant, and agreed it was on her Facebook page but then alleged that she did not put it there.[596]  I found her evasive about this.  I think it more likely than not that she did put that photograph on her page. 
  1. [297]
    She agreed that she was not there when Dr Reedy came to Yallambee and dealt with the plaintiff. [597]
  1. [298]
    In re-examination she alleged that her Facebook page had been hacked.
  1. [299]
    In further examination, Exhibit 50 was tendered which was a picture from the witness’ Facebook page with further comments. This clearly shows the relevant picture on her Facebook page.

Leanne Reynolds 

  1. [300]
    Leanne Reynolds gave evidence that she was a PCW at Yallambee and had known the plaintiff since she began to work there. She would see the plaintiff on a daily basis. She had never seen the plaintiff drink on duty, smell of alcohol or appear affected by alcohol.[598] 
  1. [301]
    In cross-examination she agreed that she terminated a call with the defence solicitor as soon as Nicki Carter’s name was mentioned.[599]  She said that she never called the plaintiff as that was the RN’s responsibility.[600]  She agreed she was there once when Dr Reedy visited Yallambee and does not know if he had contact with the plaintiff.[601]  She cannot recall anything out of the ordinary with the patient, Adrian Contant and she was not present when Noel Hopkins was being dealt with by the plaintiff and Nicki Carter.[602] 
  1. [302]
    She denied the proposition the plaintiff was affected by alcohol at work.[603] 
  1. [303]
    In re-examination she said she was not present when the plaintiff turned up in response to a call.[604] 

Stephen Evans

  1. [304]
    Stephen Evans gave evidence he was a PCW at Yallambee and had been so for two and a half years. He had known the plaintiff since that time. On night shifts he would call her if an incident happened. He had never seen her drink alcohol at work, he had never smelled alcohol on her and had never seen her affected by alcohol at work.[605] 
  1. [305]
    In cross-examination he conceded that the plaintiff was his boss and he wished to continue to work at Yallambee.[606]  He denied that his evidence was not true.  He said that Dr Reedy visited once and he did not know if the plaintiff had dealings with Dr Reedy.[607] 

Submissions

Plaintiff’s submissions[608]

  1. [306]
    The plaintiff referred to the relevant principles concerning the conveyance of the imputations.
  1. [307]
    It was submitted with respect to the first matter sued upon that the imputations arising from the natural and ordinary meaning of the words are that the plaintiff:
  1. (a)
    Is incompetent;
  1. (b)
    Is unfit to care for the elderly or discharge the responsibilities of Director of Nursing at MCRV.[609] 
  1. [308]
    Imputation (a) is admitted. As to imputation (b), it is submitted that if one reads all of the posts the imputation is to be inferred.
  1. [309]
    With respect to the second matter sued upon, it is submitted that the imputations arising from the natural and ordinary meaning of the words are that the plaintiff:
  1. (a)
    Is habitually intoxicated when on duty; 
  1. (b)
    In the alternative to (a), habitually drinks alcohol while on duty.[610] 
  1. [310]
    Again, it is submitted that the imputations are to be drawn from the circumstances contained in language of the post.
  1. [311]
    With respect to the third matter, it is submitted the imputations arising from the natural and ordinary meaning of the words are that the plaintiff:
  1. (a)
    Was dismissed from her previous job and escorted off the premises because she had a problem with alcohol; 
  1. (b)
    Was dismissed from her previous job and escorted off the premises because she stole narcotic drugs; 
  1. (c)
    In the alternative to (b), was dismissed from her previous job and escorted off the premises because she was responsible for narcotic drugs going missing; 
  1. (d)
    Is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job, either because she had a problem with alcohol or stole narcotic drugs; 
  1. (e)
    In the alternative to (d), is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job, either because she either had a problem with alcohol or was responsible for narcotic drugs going missing.[611] 
  1. [312]
    It is submitted that the post is expressed in an imprecise and ambiguous manner. It is submitted that an ordinary reasonable reader would infer the imputations alleged by the plaintiff.
  1. [313]
    Turning then to the defence of truth/justification, it is submitted that the defendant bears the onus of proving these defences. It is submitted that in order to prove the defence of truth the defendant needs to prove the truth of all of the imputations in relation to the matter complained of in question.
  1. [314]
    It is submitted that the matters relied upon by the defendant in its submissions alleging that the plaintiff is unfit to care for the elderly or discharge the responsibilities of Director of Nursing at MCRV should not be accepted. In any event, the 13 points relied upon should be rejected.
  1. [315]
    It is submitted that not all of the matters Ms Honan gave evidence about were put to the plaintiff but in any event Ms Honan’s evidence should be rejected.[612]  Dr Reedy’s evidence was insufficient to prove that Ruth Carter was suffering from severe pressure sores as a consequence of poor nursing under the supervision of the plaintiff.[613] 
  1. [316]
    With respect to the drinking issues, many of them were not put, but in any event even if it is accepted that on isolated occasions there was drinking, this does not demonstrate the plaintiff was incompetent and is inconsistent anyway with the plaintiff’s witnesses called in rebuttal.[614]  The evidence of Ms Carter concerning Mr Contant should be rejected.[615]  A lack of concern about Ms Callan does not demonstrate incompetence.[616]  The fact she might be unapproachable according to Ms Howe does not prove incompetence.[617]  Issues concerning Heather Brown and medication were not sufficient.[618]  It was never put that Margaret Fitch was moved out of the facility because she was not properly cared for.[619]  No issues of medication was put to the plaintiff.[620]  Bullying of staff allegations should be rejected.[621] 
  1. [317]
    It was submitted there was a serious failure on the part of the defendant to put a number of accusations to the plaintiff.[622]  It is submitted as a result that: it is not open for the defendant’s legal representative to make the submissions he has made seeking to impeach the witness based on accusations not put; the court should in its discretion refuse to entertain their submissions; the court should preclude the party in default from submitting the witnesses’ evidence; and a court cannot make a finding to the effect of accusations not put. 
  1. [318]
    The plaintiff then examined each of the witnesses called by the defendant.
  1. [319]
    With respect to Ms Luder, it was submitted she did not give evidence of incidents which could objectively be described as bullying. It was submitted some of the allegations she made in her evidence were not put to the plaintiff. It was submitted that it should not be accepted that the plaintiff was on call when the alleged slurred speech incident took place.[623]  All of her evidence on this point should be rejected because of Exhibit 21.[624]  It was submitted ultimately that it should be concluded that Ms Luder was a disgruntled former employee.[625] 
  1. [320]
    With respect to Mr Shipley it was submitted that his evidence was of little assistance to the court. It was submitted that it would not be accepted that he was bullied.[626]  It is submitted that Mr Shipley was a person who was routinely reminded of how to do his job by the plaintiff.[627]  It is submitted it was obvious there was a clash of personalities between Mr Shipley and the plaintiff and he also was a disgruntled former employee with an axe to grind.[628]  It is submitted that he only made complaints about the plaintiff after his resignation.[629]  It is submitted his allegations could not be concluded on his evidence, bearing in mind Ms Peardon’s evidence that the plaintiff was not on duty at the time of the Christmas party.[630] 
  1. [321]
    As to Nicki Carter, it is submitted that Ms Carter’s version of events at the meeting on 8 May 2017 is extremely unlikely and contrary to Ms Haslem’s evidence.[631]  It is submitted the incident was not put to the plaintiff in cross-examination. 
  1. [322]
    It is submitted that Ms Carter’s evidence concerning the Noel Hopkins incident should not be accepted, bearing in mind there was not an entry about the smelling of alcohol in the diary.[632]  Ms Carter’s evidence concerning the transfer of Ms Fox should also be rejected.[633]  As to the fourth incident on 24 July 2017, details were not put to the plaintiff and the diary note made no reference to any smell of alcohol and her evidence should be rejected.[634]  Her evidence about Mr Contant should also be rejected because this is inconsistent with a contemporaneous note.[635]  With respect to the missing Endone incident, it is submitted that Ms Carter’s evidence on the topic should be rejected.[636]  As to her general evidence concerning treatment of other witnesses, it was not evidence of bullying. The reality is each of the witnesses were criticised for not doing their job properly.[637]  It was submitted that Ms Carter was not a credible witness and her evidence should be disregarded.  She is also a disgruntled former employee subject to formal complaints by MCRV.[638]  It was submitted that Ms Carter lied about the making of her diaries.[639] 
  1. [323]
    With respect to Ms Moore, it is submitted that matters were not put to the plaintiff and her evidence was misleading.[640]  It is submitted that Ms Moore is the subject of several serious allegations and resigned instead of being terminated.[641] 
  1. [324]
    With respect to Ms Waugh, her evidence does not assist the court save that she gave evidence she told the defendant there was insufficient evidence to substantiate her complaint.[642] 
  1. [325]
    With respect to Dr Reedy, it is submitted that his evidence concerning his interactions with the plaintiff should be rejected unless supported by some contemporaneous documentary evidence. It is submitted that it is extraordinary that a doctor would not make a complaint about a Director of Nursing who was effected by alcohol.[643]  It was submitted that Dr Reedy had a reason to give false evidence because of the animus between he and the Board.[644]  It was submitted there was no basis to conclude any bed sores were caused by omission on the part of the plaintiff.[645] 
  1. [326]
    Dr Burrett, it was submitted, was an unreliable witness. It was submitted that his notes were inconsistent with his account.[646] 
  1. [327]
    It is submitted that Ms Sauverain was of no assistance to the defendant’s case. It was submitted that the plaintiff’s evidence about the throwing of the TV remote control would be accepted.[647] 
  1. [328]
    It was submitted that Ms Honan should not be accepted. It was submitted she gave false or misleading evidence. The plaintiff points out two inconsistencies between her evidence in chief and cross-examination concerning the QCAT proceedings.[648]  It was also submitted she did not give full evidence as to the nature of the conversation between herself and the plaintiff.[649] 
  1. [329]
    As to Ms Howe’s evidence, her evidence was incapable of proving the truth of any imputation and was irrelevant.[650] 
  1. [330]
    As to Ms Barnett, her evidence was of no assistance to the court.[651]  Ms Hanson’s evidence should be accepted and it should be accepted that the plaintiff was not escorted out of the premises and the plaintiff’s employment was not terminated because of misusing alcohol or because of stolen or missing drugs.[652] 
  1. [331]
    With respect to the plaintiff’s witnesses it is submitted that there was an abject failure by the defendant’s solicitor to put a substantial majority of the allegations sought to be led in the defendant’s case.
  1. [332]
    It was submitted the plaintiff was clearly honest and her evidence should be accepted.[653]  It is submitted there is no substance to the submissions the plaintiff perjured herself by omitting in her evidence her brief stint at Freedom Aged Care.  The issue is the result of the defendant’s legal representative’s failure to put the proper name of the entity to the plaintiff.[654]  The plaintiff submits that the evidence of the rebuttal witnesses should be accepted and when one has regard to that evidence the court would find that the defence of truth fails.[655] 
  1. [333]
    Turning then to contextual truth, it is submitted that the defendants alleges that the matters complained of convey the following contextual imputations:
  1. (a)
    The plaintiff drank alcohol while on duty; 
  1. (b)
    The plaintiff was responsible for a workforce in which workplace bullying occurred; 
  1. (c)
    Scheduled drugs went missing from MCRV and were not accounted for; 
  1. (d)
    The plaintiff has not acted in the best health interests of some of the residents of the MCRV; 
  1. (e)
    The medical treatment of some residents at MCRV which the plaintiff oversaw and was responsible for was unprofessional.[656] 
  1. [334]
    With respect to contextual imputation (a), it is submitted the contextual imputation is not more serious than the plaintiff’s imputations and therefore incapable of satisfying the defence. Secondly, it is submitted that the evidence relied upon to support the truth of the contextual imputations should be rejected.
  1. [335]
    With respect to the second contextual implication, it is submitted that it does not assert or attribute any act or condition to the plaintiff which is capable of reflecting adversely on her reputation. The mere fact that someone is responsible for a workforce which workplace bullying occurred is defamatory unless there is some basis upon which the plaintiff is to blame.
  1. [336]
    Next it is submitted that the pleading would need to be amended to rely on this.
  1. [337]
    It is also submitted that the contextual imputation is not more serious than the plaintiff’s imputation and there is no evidence that the imputation is substantially true.
  1. [338]
    With respect to the third contextual imputation it is submitted the imputation is not defamatory for the same reasons asserted.
  1. [339]
    With respect to the fourth contextual imputation, it is submitted that the contextual imputation is incapable of arising. There is no suggestion the plaintiff has not acted in the best health interests of some of the residents. Also the contextual imputation does not differ in substance from the plaintiff’s imputations of incompetence and unfitness and finally, it is not substantially true.
  1. [340]
    Therefore the defence of contextual truth must be rejected.[657]
  1. [341]
    With respect to qualified privilege at common law, it was firstly submitted there was no duty or interest in the defendant publishing the matters complained of in a public forum, nor did the recipients of the post have a corresponding duty or interest to receive the communication.[658]  Had the defendant complained to an official body then the situation may well have been different (subject to the issue of malice).  She did not.[659]  In the circumstances, the matters complained of were not published on an occasion of qualified privilege.[660]
  1. [342]
    As to the issue of malice, the plaintiff submitted that the evidence that the defendant acted with malice is overwhelming. The following reasons were submitted:
  1. (a)
    The defendant admitted what she wrote about the plaintiff were serious allegations;
  1. (b)
    The defendant stated that she intended to refer to the plaintiff in each of the matters complained of;
  1. (c)
    She accepted she did not contact the plaintiff or the board of MCRV before posting the matters complained of because she knew they would deny the allegations;
  1. (d)
    She deliberately abstained from contacting the plaintiff and the board of MCRV because they would have refuted her statements;
  1. (e)
    She admitted she was reckless not to have contacted the plaintiff or the board of MCRV;
  1. (f)
    She posted the material because she wanted the plaintiff to lose her job;
  1. (g)
    She admitted she intended to convey the plaintiff was incompetent and unfit to care for the elderly or discharge her responsibilities as Director of Nursing;
  1. (h)
    She accepted that in the second post she attempted to humiliate and denigrate the plaintiff and convey she was a drunk;
  1. (i)
    She posted other highly defamatory remarks about the plaintiff (Exhibit 4) which included accusations of the plaintiff having committed a criminal offence and forgery and of interfering with patient medication;
  1. (j)
    She accepted she posted Exhibit 4 because she wanted the plaintiff sacked;
  1. (k)
    In Exhibit 15 she described the plaintiff as “the facility manager from hell” and as a “viper” which she accepted as vicious;
  1. (l)
    It is clear the defendant was on a mission, campaign or vendetta to destroy the plaintiff’s reputation and ensure she lost her job;
  1. (m)
    Ultimately she accepted she intended to harm the plaintiff;
  1. (n)
    The dominant reason was “I will find out your name and I will publish your name to make sure you’re never employed in an aged care facility again”; and
  1. (o)
    The campaign included actively courting publicity about the case, such as the publication of allegations on Today Tonight and posting a promotional link to that shortly before the trial.[661]
  1. [343]
    With respect to s 30 of the Defamation Act it was submitted there was no interest in the recipients having information on the quality of care provided by the plaintiff.  The subject matters were personal attacks containing salacious material.  It is submitted that the publication was not reasonable as: the matters complained of did not distinguish between suspicions, allegations and proven facts; the matters complained of did not contain the substance of the plaintiff’s sale of the story; the defendant deliberately abstained from contacting the plaintiff or the board knowing they would have refuted the statements; and she admitted she was reckless and there was no attempt to obtain a response.  The defence fails.[662] 
  1. [344]
    Finally, with respect to s 31 of the Defamation Act it is submitted that in effect the defendant has made no submissions upon this topic and the plaintiff therefore has no arguments to rebut but in any event the plaintiff cannot establish that the information was based on proper material.[663] 
  1. [345]
    With respect to the defeasance it was submitted that if the defendant did not have a genuine or honest belief as to the truth of the opinions expressed or alternatively if she was recklessly indifferent as to the truth or falsely of the opinions the court could conclude she did not hold the opinions.[664] 
  1. [346]
    As to the question of damages, the plaintiff submitted as to the general principles which apply.[665]  It was further submitted in the present case that there was the additional feature of vindication arising from the defendant’s conduct.[666]  The grapevine effect is relied upon and it is relevant that the defamatory allegations were the subject of open court proceedings with repetition which has occurred in the present case.[667]  Aggravated damages should also of course be considered bearing in mind the failure to provide a retraction or apology.[668]  The plaintiff heavily relies upon the two reputation witnesses called, Mr Farrington and Mr Antonio.  The bad character evidence should be rejected.[669]  Media reports of the plaintiff’s reputation are inadmissible.[670]  Also the evidence of bad reputation largely came from either disgruntled former employees of MCRV who do not like the plaintiff or persons with an axe to grind.[671]  With respect to the extent of publication, the precise extent is unknown because the size and influence of Facebook pages cannot be estimated by simply looking at the number of likes, comments or shares.[672]  What is known though is the following: that the defendant posted the matters in two separate Facebook pages – both of which had a substantial number of followers (180 and 300); both pages were public pages; the defendant’s appearance on the Today Tonight program received a lot of attention; and the defendant engaged in self-promotion in this case.[673]  The inference should be drawn that the publication was substantial.[674]  The plaintiff referred to the evidence of the plaintiff from paragraphs 223 to 229 of the submissions concerning her reputation.  The hurt to her feelings is discussed at paragraphs 230-237 of the submissions.  The grapevine effect is discussed also at paragraph 238 of the plaintiff’s submissions.  There were a number of matters relied on in aggravation of damages referred to at paragraphs 239 to 254 of the plaintiff’s submissions.
  1. [347]
    Therefore, it was submitted that general damages including aggravated damages should be assessed in the range of $150,000 to $200,000.[675]  Interest should be awarded and in light of the continuing publicity and refusal to apologise, it is appropriate that an injunction be ordered.[676] 
  1. [348]
    In oral submissions the plaintiff conceded that if the court did not find the imputations pleaded then that was the end of the matter for the plaintiff.[677]  Therefore, if the court found with respect to the drinking imputation that she drank on duty or was affected by alcohol whilst on duty the plaintiff would lose.[678]  Also, if the court found that the only imputation concerning the third matter was that of the plaintiff’s dismissal then the plaintiff would lose that aspect.[679]  It was submitted that there was a very big difference between a person being under the influence of alcohol once or twice and turning up to work habitually drunk.[680]  It was submitted that if the court found there were a number of occasions where the plaintiff was intoxicated whilst on duty (but not habitually) the defence of substantial truth failed but the evidence could be taken into account in mitigation of damages.[681]  It was submitted by the plaintiff that in this case the defendant should have reported the matters to the appropriate authority in order to claim privilege after receiving the information from Ms Waugh.[682] 
  1. [349]
    It was submitted the defendant made some quite personal attacks on the plaintiff and the court would infer that the communications were not made for the greater good of aged care health.[683]  It was also relevant that the defendant deliberately abstained from contacting the Board because she knew they would give information inconsistent with the defendant’s narrative.[684] 
  1. [350]
    The court would then find malice and subsequently the defence of common law qualified privilege and the defence under s 30 would fail.[685]  The plaintiff submitted that with respect to the imputation of being dismissed due to drugs, it should be found it was an imputation of stealing them, bearing in mind it was not a legal question but must be taken from the point of view of the ordinary reasonable reader.[686] 
  1. [351]
    The plaintiff submitted that if the court found that the drinking imputation was not “habitually” but merely “often” she would fail.[687]  It was conceded that even if the habitual drinking imputation failed, the drinking issue would need to be considered a question of unfitness and incompetence.[688]  It was conceded that malice was irrelevant to the truth defence.[689]  It was submitted that the conclusion that someone was unfit or incompetent because of an isolated incident with alcohol would be too long a bow to draw.[690] 
  1. [352]
    With respect to the allegations of patients being ill-treated (i.e. Ruth Carter, Margaret Fitch and Adrian Contant), it was pointed out that this was a 44 bed facility where people get care at the end of life and these three patients were very unwell and it would be wrong to sheet home, for example, bed sores as being the plaintiff’s responsibility.[691]  The plaintiff submitted that in light of the amended particulars the plaintiff was prejudiced, for example, by failing to obtain Dr Reedy’s diary or notes.[692]  With respect to Ms Carter’s evidence it was firstly submitted that just because the plaintiff might have smelled of alcohol at 6.30am did not mean she was intoxicated.[693]  It was further submitted that with respect to the drinking in the room incident, Ms Carter did not recall the room smelling like alcohol in her diary and her evidence should be rejected as unreliable.[694]  It was further submitted that she lied when she said she didn’t record in her diary until the plaintiff commenced work at Millmerran.[695] 
  1. [353]
    The plaintiff submitted that the court would not find that the plaintiff lied about working at Freedom Aged Care.[696]  It was submitted it was simply a slip up on her part at worst.[697]  It was submitted that Ms Hanson was the person best placed to speak about the plaintiff’s time at Freedom.[698] 
  1. [354]
    It was submitted that Dr Reedy should be disbelieved unless there was a contemporaneous note made about the event.[699]  It was submitted that Dr Reedy had bad blood with the plaintiff and/or the Board.[700]  It was of note that Dr Reedy appeared in one of the Toowoomba Chronicle articles.[701]  It was submitted that Dr Reedy’s evidence was unbelievable.[702]  It was submitted that Ms Carter’s evidence should be rejected because of the failure to record details of intoxication in her diary.[703]  It was also pointed out that the Hopkins detail was not put to the plaintiff but it was conceded that there were particulars relating to this.[704]  It was submitted that Dr Burrett’s evidence should not be accepted because of the absence of relevant notes in Exhibit 37.[705] 
  1. [355]
    With respect to Ms Luder’s evidence it was submitted it was most likely that the plaintiff was at her home in Toowoomba when the conversation took place.[706]  She also signed the statement – Exhibit 21.[707] 
  1. [356]
    The court would not accept the evidence of Ms Honan bearing in mind Exhibit 33 was inconsistent with her evidence.[708]  It was also submitted that her evidence was misleading concerning the phone call with the plaintiff and concerning the QCAT proceedings.[709]  She was an unreliable witness concerning her relationship with Mr Thomas.[710]  It would not be accepted that any evidence relating to Ms Ruth Carter and her bed sores would lead to a conclusion of incompetence or unfitness.[711]  It was accepted that the allegation that Ms Luder was directed by the plaintiff not to take photos of the pressure sore was contained in the particulars.[712] 
  1. [357]
    With respect to Mr Contant (Ms Carter’s evidence), it was submitted that Exhibit 43 (the progress note) was inconsistent with that evidence.[713]  It was submitted that the court would not accept that there should be any concerns about Ms Callan’s injury.[714]  With respect to the evidence of Ms Sauverain it was submitted it would be difficult to attach any blame to the plaintiff bearing in mind her very heavy administrative role.[715]  Also nothing could be found against the plaintiff on Ms Howe’s evidence.[716]  It was submitted that nothing adverse should be found against the plaintiff concerning the Schedule 8 drug incident.[717]  It was submitted that the court would not find that there was bullying of staff and the evidence of Ms Luder, Mr Shipley, Ms Carter and Ms Waugh should be rejected.[718]  It was submitted that Mr Shipley’s evidence about discussions with Ms Luder outside court should be disbelieved.[719]  It would not be accepted that Ms Carter’s confidential medical diagnosis was disclosed to others by the plaintiff.[720]  Ultimately, the plaintiff submitted that the justification defence should be rejected. 
  1. [358]
    As to the s 26 defence it was submitted that paragraph 5(a) of the defence could not be relied upon as the court could not find an imputation that the plaintiff drank alcohol on duty.[721]  As to paragraph 5(b) it was submitted that the contextual imputation, if it existed, didn’t differ in substance from the incompetency imputation or the unfitness imputation or alternatively, it was not more serious than unfitness or incompetence or finally, there was no evidential basis for it.[722] 
  1. [359]
    As to paragraph 5(c) it was submitted that it was not an imputation which attributed to any act or condition to the plaintiff and was incapable of being defamatory of her.[723]  As to imputation 5(d) it would be a strained meaning but in any event it was less serious than an imputation of incompetence or unfitness or finally, there was no evidence upon which to find it was substantially true.[724] 
  1. [360]
    As to 5(e), it was eligible to be struck out but in any event it was a less serious imputation than incompetence or unfitness.[725] 
  1. [361]
    As to the reliance on 5(a) with respect to the second matter complained of, one only got there if the court found that the plaintiff was habitually intoxicated at work or habitually drank at work.[726]  With respect to qualified privilege the plaintiff submitted that malice should be found and the defence excluded.[727]  It was further submitted that the s 31 defence should fail because all statements made were statements of fact.[728]  The plaintiff submitted that on the question of damages the court could take into account the conduct of the case, the refusal to apologise, the fact she went on television the week before the case to promote it, and the two promotions on Facebook.[729]  It was further submitted that an injunction should be granted because there was a risk of repetition – no apology was given and  there was the publication on Today Tonight and on her Facebook page.[730]

Defendant’s submissions[731]

  1. [362]
    The defendant conceded that the posts published by the defendant were published of and concerning the plaintiff.[732] It was firstly submitted that the posts were not capable of bearing the meanings alleged by the plaintiff.[733] Alternatively, it was submitted that if the words bore the meaning as set out in paragraph 5 of the defence, they were (in alternatives):[734]
  1. True and for the public benefit;
  1. Substantially true and therefore justified pursuant to s 25 of the Defamation Act;
  1. Contextually true and therefore justified pursuant to s 26 of the Defamation Act;
  1. For the public good, fair and for the purpose of giving information;
  1. An expression of opinion based on proper material pursuant to s 31 of the Defamation Act; or
  1. Not harmful to the plaintiff’s reputation.
  1. [363]
    With regards to the first matter complained of, the defendant admitted that the posts allege the plaintiff is incompetent. The defendant submitted that the evidence proved such incompetence (the complaints against the plaintiff regarding “staff bullying”, “forging signatures”, “misuse of mediation” and “total lack of concernment and negligence”).[735]  It was submitted that the posts were available to Facebook followers of the defendant who had shared interests in aged care (the defendant was collecting signatures for a petition calling for better care ratios in aged care as well as a Royal Commission).[736]  Further, it was submitted that the reference to the “DON of Millmerran Centenary Retirement Village” would not mean anything to a recipient who either inadvertently or intentionally accessed the publication.[737] 
  1. [364]
    With regards to the second matter complained of, the defendant denied the imputation that the posts indicate the plaintiff is habitually intoxicated on duty and submitted that the allegation is merely that the “DON drinks on duty at Millmerran”.[738]  Alternatively, if the court does find that the posts refer to drinking alcohol, the defendant submitted that the more correct imputation is that the plaintiff drunk alcohol while on duty. It was submitted that this was substantiated by reference to the evidence.  It was further submitted that the plaintiff’s rebuttal witnesses were unconvincing and all bar one still work at the facility where the plaintiff is in charge.[739]
  1. [365]
    With regards to the third matter complained of, the defendant denied the imputations alleged by the plaintiff and submitted that the only factual allegation made was that “the facility at Millmerran has employed a DON who was escorted off the premises at their last job”.[740]  It was submitted that this allegation was proved correct according to the evidence of Susan Barnett and Sheelagh Hanson.
  1. [366]
    The defendant further submitted that the extension of the post which stated “was this because of the drinking habit or missing of narcotic drugs” would be understood by the ordinary recipient to be not an implication but rather a question.[741]
  1. [367]
    With regards to the further post, the defendant submitted that the reference to the Director of Nursing being walked off the premises at her last job at Northridge Salem is incorrect as the previous job was at Freedom Aged Care in Toowoomba. It is submitted that the rest of the allegation was substantially true.[742]  The defendant submitted that the plaintiff had perjured herself in relation to her admissions regarding Freedom Aged Care and lied to her present employer by failing to disclose her work at Freedom Aged Care.  The defendant submitted that proceedings should not be entertained by a plaintiff that blatantly lied about matters directly relevant to her claim and her reputation.[743] 
  1. [368]
    The defendant submitted that the allegation of incompetence admitted by the defendant in the first matter complained of is substantially true pursuant to s 25 of the Defamation Act and the common law.  The defendant submitted the following evidence illustrates incompetence:[744]
  1. The plaintiff aggressively spoke over the phone to Ms Honan and acted incompetently and unprofessionally;
  1. Ruth Carter suffered severe pressure sores as a consequence of poor nursing under the supervision of the plaintiff;
  1. The plaintiff’s drinking issue (outlined further below);
  1. The plaintiff refused to attend to Adrian Contant and showed a lack of concern when informed about his condition;
  1. Gary Howe’s wife moved him out of the facility because she believed he was treated very badly and she could not discuss his treatment with the plaintiff because she was unapproachable;
  1. Ms Honan did not believe her mother was receiving proper care at the facility because of the plaintiff;
  1. The plaintiff provided incorrect details to the ambulance officers regarding Ms Brown;
  1. Margaret Fitch’s daughter removed her from the facility as she believed she was not properly cared for;
  1. Medications were misused (the Endone and webster pack going missing); and
  1. The bullying of staff set out further below. 
  1. [369]
    The defendant submitted that the allegations in the second matter complained of have also been proved to satisfy s 25 of the Defamation Act. The following evidence was submitted:[745]
  1. Dr Reedy described two occasions when the plaintiff was under the influence of alcohol while on duty;
  1. Ms Luder described an incident when the plaintiff had slurred speech and wasn’t comprehending;
  1. Ms Luder described having to step in and fill the plaintiff’s shift when she heard her slurred speech;
  1. Ms Carter described smelling alcohol on the plaintiff a number of times and saw the plaintiff drink a brown liquid from a glass, witnessed other signs of intoxication and was asked by the plaintiff to sign a statutory declaration that she had never seen the plaintiff intoxicated at work;
  1. Mr Shipley described the plaintiff’s drinking at a Christmas party when he believed she was later on call; and
  1. Dr Burrett described a telephone conversation with the plaintiff where she appeared to be intoxicated.
  1. [370]
    The defendant submitted that the plaintiff engaged in bullying behaviour such as:[746]
  1. Disclosing the medical diagnosis of Ms Carter without permission;
  1. Intimidating and discriminating against Ms Pokarier;
  1. Bullying Mr Shipley which resulted in his resignation and a complaint to the Health Ombudsman;
  1. Bullying Ms Moore and stating to Ms Carter that Ms Moore was “dumb as dog shit” which ultimately led to Ms Moore resigning; and
  1. Bullying Ms Luder who did not feel safe within the workplace and was given incorrect directives by the plaintiff.
  1. [371]
    Alternatively, the defendant submitted that if any (but not all) of the imputations were found to be false, the defence of contextual truth is available pursuant to s 26 of the Defamation Act. The defendant relies on the cases of Irving v Penguin Books Ltd,[747] Rofe v Smith’s Newspapers Ltd[748] and Nationwide News Pty Ltd v Weatherup.[749]  The defendant submitted that the defendant’s justification of the more serious imputation may establish that the plaintiff’s reputation was not actually harmed as alleged by the less serious imputation.[750]
  1. [372]
    It was submitted that the imputation that the plaintiff is habitually intoxicated, or the alternative of the plaintiff habitually drinking alcohol on duty has been proved to be substantially true and is the most serious allegation. Therefore, the defence of contextual truth applies. Alternatively, the imputation that the plaintiff is incompetent is substantially true and the most serious imputation, therefore the defence of contextual truth will succeed.
  1. [373]
    The defendant submitted in the further alternative that the publication was made in good faith and was not actuated by malice.[751]  The defendant relies on the defence of qualified privilege under s 30 of the Defamation Act and the common law.  It was submitted that the defendant believed on reasonable grounds that the recipients on social media had an interest in being informed of the quality of care. The defendant submitted the information published would be meaningless to the public at large who would not know who the “DON” of the MCRV was and that the defendant was engaged in bona fide aged care activism by calling for better care ratios at aged care facilities, circulating a petition and working to instigate the Royal Commission.[752]
  1. [374]
    In the further alternative, the defendant relied upon the defence of honest opinion under s 31(1) of the Defamation Act. The posts were submitted to be expressions of opinion, observations, conclusions or criticism rather than statements of fact. The opinion relates to the public interest and was based on proper material.[753]
  1. [375]
    Ultimately, the defendant submitted that the plaintiff’s claim should be dismissed with costs, or alternatively that a nominal amount should be awarded to the plaintiff who should also be ordered to pay costs.[754] 
  1. [376]
    In oral submissions the defence submitted that the sole purpose of the defendant publishing the posts was to shine a light on aged care.[755]  With respect to the imputation that she was dismissed for alcohol or missing drugs, it was submitted that the defendant was simply asking a question and was not suggesting anything by that.[756] 
  1. [377]
    It was submitted by the defence that there was insufficient evidence of malice on the part of the defendant.[757]  She genuinely believed that the plaintiff should not occupy the position of Director of Nursing.[758]  It was important that Ms Waugh had already gone to the office of the Health Ombudsman and AHPRA and was not happy with the way the complaints had been investigated and it was thought that something should be done about the information.  Ms Waugh was a specialist nurse who was motivated by altruistic concerns and there could not be malice in this case, particularly considering the defendant was an advocate for aged care persons.[759] 
  1. [378]
    As to the Today Tonight program, that was simply part and parcel of her belief.[760]  It was important that with respect to the missing Endone tablets there was a failure to report that to the authorities.[761]  With respect to the plaintiff’s evidence, it was submitted that the plaintiff gave misleading evidence about not working at Freedom Aged Care.[762]  It was submitted that the plaintiff was an opportunistic liar.[763]  With respect to the proposition that some matters were not put in cross-examination, the defence submitted the authorities did not require minute detail to be put.[764]  It was accepted that Ms Luder’s evidence that the plaintiff was intoxicated one night was not put to the plaintiff.[765]  However, it was submitted that the Luder allegation was in the particulars.[766]  The defence submitted that Ms Luder’s evidence should be accepted.[767]  The defence conceded it was an oversight not putting the conversation alleged by Ms Luder to the plaintiff.[768] 
  1. [379]
    It was agreed that truth was an absolute defence.[769]  The defence submitted that Mr Shipley’s evidence should be accepted, bearing in mind he was prepared to make concessions.[770]  The defence conceded that there was no evidence to support the allegation that the plaintiff was dismissed because of alcohol and missing drugs.[771]  It was also conceded that the imputations that she was dismissed because of alcohol or missing drugs were not statements of opinion.[772]  The defence conceded that there was no basis for those imputations if the court found they had been made.[773]  If it was found that these two imputations remained, the court had the evidence of a person who had misrepresented their reputation.[774] 
  1. [380]
    The matters of opinion relied upon were unfitness and incompetence.[775]  The public interest for ss 30 and 31 related to aged care facilities.[776]  The Chronicle articles were relevant to the issue of public interest.[777]  If damages were to be awarded they should be nominal, in the amount of $2.00.[778]  It was further submitted that the publication was for the greater good because the defendant was concerned about the plaintiff being in charge of the facility.[779] 
  1. [381]
    The defendant did not write to the Board or AHPRA because Ms Waugh had been disillusioned with that process and the defendant had a basis to achieve the dismissal of the plaintiff.[780] 
  1. [382]
    It was submitted that the conclusion of incompetence was clearly an opinion.[781]  It was submitted that with respect to the incident on 8 May 2017 referred to by Ms Carter, not only did she smell alcohol, but she described the plaintiff as waddling.[782]   
  1. [383]
    With respect to a complaint by the plaintiff that they were not able to obtain the records of Dr Reedy, the defence submitted that a summary of the evidence of Dr Reedy and his complaint was provided to the plaintiff prior to the commencement of the trial.[783]  With respect to a submission concerning Ms Luder’s phone call, it may be that the husband was at Millmerran.[784]  It was also submitted that the plaintiff’s submission was not correct that Ms Honan could not move her mother out of the facility because in fact her mother had died at the facility.[785]  It was submitted that Mr Shipley’s evidence as to the Christmas party could not be disregarded.[786]  It was submitted also that there was no need for an injunction as there was no risk that anything would be said further.[787] 

Further written submissions

  1. [384]
    Further submissions were received from the plaintiff concerning the missing Schedule 8 drug (Endone).[788] The plaintiff submitted that there is an obligation to report lost or stolen Schedule 8 drugs to the Chief Executive of the Department of Health (per s 110(2)(b) Health (Drugs and Poisons) Regulations 1996 (Qld)). It was submitted that the plaintiff complied with this by submitting a Notification Form and an Incident Report under the hand of Chorissa Jeanne Ingles.[789]
  1. [385]
    The defendant disagrees with these submissions and states that the documents have never been disclosed and should therefore be “struck from the record”. If admitted the defence seeks leave to call further evidence on this point,
  1. [386]
    In response the plaintiff submitted that there is no basis upon which the defendant can call rebuttal evidence and they bear the onus of proof.[790]
  1. [387]
    In my view it is too late for the plaintiff to put in these documents. However in view of the fact that it was never put to the plaintiff that the incident was not reported I do not intend making any adverse findings of fact against the plaintiff in this regard.
  1. [388]
    The defendant provided further written submissions regarding honest opinion.[791] The defendant submitted there is a clear distinction in the defendant’s publication between the dismissal issue and the reason for the dismissal. It is submitted that the defendant phrased the reason for dismissal as a question indicates it is an expression of opinion and is therefore covered under the defence of honest opinion.  Further it is submitted that this opinion was based on the material relied upon to establish the defence under s 31 Defamation Act 2005 (Qld).[792] 
  1. [389]
    In response, the plaintiff submitted further written submissions.[793]  The plaintiff submitted that the defendant did not advance any further submissions in respect of the first and second matters complained of which results in there being no submission which the plaintiff is required to respond to.[794]  The plaintiff submitted that the statements in the third matter complained of are clear assertions of fact and there is therefore no scope for any argument that they comprise opinion.[795] 
  1. [390]
    Further, the evidence that the matters are false was overwhelming and therefore the statements could not be based on proper material. There was no basis upon which any so-called opinion expressed by the defendant was reasonably held.[796] Therefore, the defence must fail.[797]

Findings

  1. [391]
    In reaching my conclusions I have paid full regard to all of the evidence and the submissions by counsel. Any finding I make is on the balance of probabilities.
  1. [392]
    Of course it is for the plaintiff to prove the action, the defendant any positive defence and the plaintiff to prove any defeasance.
  1. [393]
    I have also had regard to the principle in Briginshaw v Briginshaw[798]when making factual findings in this case.
  1. [394]
    I have had the benefit of seeing all the witnesses giving their evidence and this has greatly assisted me in assessing the credibility and the reliability of their evidence. In general I accept the evidence of the witnesses called by the defendant (leaving aside the defendant herself) over the evidence called by the plaintiff where there is a conflict in the evidence.
  1. [395]
    Before I turn to the defence witnesses I wish to deal with a submission made by the plaintiff concerning the impact of the rule in Browne v Dunn.[799]  The plaintiff submits (relying on Bale v Mills[800] and Kuhl v Zurich Financial Services Australia Ltd[801]) that it is not open to the defence to make submissions as to the matters not put and that the court should refuse to entertain those submissions and the court should not make findings on matters not put. 
  1. [396]
    All of these matters are matters of discretion. It is true that some allegations were not put to the plaintiff in cross examination and the final particulars were not settled until the second day of the trial. However the fact is the plaintiff was still in the witness box at the time the particulars were finalised and she could have given further evidence about these matters. Also I indicated to the plaintiff’s counsel that I was disposed to grant leave to the plaintiff to be recalled on the matters not put. This invitation was not accepted.[802]  In the exercise of my discretion I do not disregard the evidence and the submissions but I do take into account the fact that some matters were not put to the plaintiff when making the factual findings.
  1. [397]
    I did not think the plaintiff was entirely frank with the court. I find she lied to the court about the existence of other defamation proceedings.[803]  I find she mislead the court about not working at Freedom in Toowoomba.[804]  This was significant bearing in mind it involved a central allegation in this matter, i.e. dismissal from a nursing position.
  1. [398]
    She also denied working with Ms Barnett.[805] I find she lied about this.  As I observed to counsel, Ms Barnett was a person who would not readily be forgotten.
  1. [399]
    Counsel for the plaintiff argued I should not find against the plaintiff on this point as the name “Aveo Freedom” was put to her and not “Freedom”. I disagree. The words “Freedom” and “Bridge Street” were specifically put to her.[806]  She could have said that she worked for Freedom.  There is also the denial she worked with Ms Barnett.[807]  But over and beyond this, she alleged in her evidence in chief she had retired after Northridge Salem but before MCRV.[808]  This was a material non-disclosure.
  1. [400]
    As a whole I think her answers on this were misleading and deceptive.
  1. [401]
    I consider this to be more than a slip up. I infer she mislead the court on these issues in the hope the defence would not obtain contrary evidence and knowing that it would increase her chances of success in this action if there was no evidence she had been dismissed from previous employment.
  1. [402]
    It is also relevant to the plaintiff’s credit that she failed to disclose the employment at Freedom in her application to work at the MCRV.[809]  Certainly Mr Antonio and Mr Farrington did not seem to be aware of this.[810]
  1. [403]
    In her evidence she also denied talking to other staff concerning their medical conditions or complaints made by them. I think this is unlikely. Particularly when she was prepared to say to another RN that Karen Moore was “dumb as dog shit”.[811]  I infer it was more likely than not that the plaintiff would discuss the complaints against her with other staff members. 
  1. [404]
    I also consider her evidence was against the weight of the evidence.
  1. [405]
    I was impressed about the sincerity and the truthfulness of the evidence of Ms Waugh, Dr Reedy, Ms Luder, Mr Shipley, Ms Howe, Ms Barnett, Ms Sauverain, Dr Burrett, Ms Carter, Ms Hanson and Ms Moore. I do not consider they were shaken in cross-examination. I will discuss Ms Honan later.
  1. [406]
    As to the rebuttal evidence called, I did not think it advanced the case much. The allegation is not that the plaintiff was affected by alcohol all of the time. The fact is the rebuttal witnesses were not present during the plaintiff’s dealings with Dr Reedy, Dr Burrett, Ms Luder and Ms Carter. I rather gained the impression each of these witnesses was close to the plaintiff. With Ms Haslem I did not believe her about the Facebook posts. If one looks at Exhibit 50 I think it is clear this was posted to her Facebook page and most likely by her.[812] 
  1. [407]
    I considered Ms Peardon was not upfront concerning her friendship with the plaintiff.[813]  I also considered Ms Brunner was not upfront concerning their relationship.[814]  I did not accept Ms Reynolds she had nothing against Ms Carter.  I thought there barely concealed hostility.[815]  Finally as to Mr Evans he could not give any evidence of dealings with Dr Reedy, Mr Contant or Mr Hopkins.[816]
  1. [408]
    I find the plaintiff commenced work as the Director of Nursing at the MCRV on 23 May 2016.[817] 
  1. [409]
    I find that whilst she was on duty sometime in September 2016 she was affected by alcohol at work as alleged by Dr Reedy in his evidence. I do not accept the plaintiff’s denials on this. I find the plaintiff was staggering and slurring her words whilst on duty.[818] 
  1. [410]
    I accept Dr Reedy as a witness of truth. I found him to be measured and convincing in his evidence. I can understand why he would not make immediate complaints about the plaintiff. The fact they had to work together in this facility in a small town.
  1. [411]
    I find that during the conversation in September 2016 she told Dr Reedy that she was prepared to adjust the medications of patients.[819]  This was clearly very concerning to Dr Reedy.  It is also very concerning that she talked about euthanizing patients.[820]  
  1. [412]
    I further find that on 20 January 2017 the plaintiff was affected by alcohol as described by Dr Reedy.[821]  Dr Reedy had good cause to remember this incident as it was the day before 10 weeks of leave.[822]  I do not accept the plaintiff’s evidence that she was not there.  Indeed there was some evidence that during accreditations she would remain at the facility over the weekend.[823] 
  1. [413]
    I consider on this occasion she was grossly affected by alcohol and mispronouncing her words and speaking in incoherent speech.[824]  It is concerning this occurred whilst she was on duty.
  1. [414]
    As regards the patient Ruth Carter I find that she had a significant bed sore as described by Dr Reedy.[825]  I infer that this was because of lack of good management of the patient.  I infer this due to the nature of the injury as described by Dr Reedy and my perusal of Exhibit 8, but also based on the evidence of Ms Luder that she was directed not to take photographs of the injury by the plaintiff.[826] 
  1. [415]
    The only reasonable inference to draw is that the plaintiff did not want evidence of the injury as this would reflect on the care of Ms Carter at the MCRV. Indeed I accept Mr Shipley’s evidence that he was challenged as to contact he had with Ms Waugh and Dr Reedy.[827]
  1. [416]
    It is true that the carers and RNs had the direct care responsibility, but as Mr Shipley said, the plaintiff had overall responsibility for the care of the patients. Indeed, her involvement and knowledge is proved by the various emails sent to Mr Shipley and Ms Luder.[828] 
  1. [417]
    My overall impression on the evidence is that the plaintiff was a controlling, micro managing and bullying individual who could be vindictive against people not in her camp. My view of the evidence is she has some influence over the board. I find that the plaintiff was the source of the information of the letters sent to Dr Reedy (Exhibits 17 and 18).
  1. [418]
    It is of concern that Dr Reedy appears to have been targeted after he raised issues with the Health Ombudsman.[829]  I have suspicions the plaintiff was behind some of this but do not make any specific finding in this regard.
  1. [419]
    I also find the plaintiff is a person who is prepared to make false allegations against people with whom she has had a run in.[830]  
  1. [420]
    My impression of Ms Waugh was that she was a person genuinely concerned with the welfare of patients at MCRV. I accept her evidence.
  1. [421]
    I accept the evidence of Ms Luder. My impression of her was she was a genuine and honest person who cared for patients. She did strike me as a vulnerable person who would be an easy target for a bully.
  1. [422]
    Describing bullying can be a difficult this for a witness, particularly by a vulnerable inarticulate person such as Ms Luder. Sometimes bullying can simply be concluded from the tone and mannerisms of a person which are not easy to describe.
  1. [423]
    I accept that the plaintiff acted in a bullying fashion as described by Ms Luder and spoke to her in an abrasive fashion when she directed her not to take the photographs of Ms Carter’s wounds.[831]  Ms Carter’s evidence corroborated Ms Luder’s evidence that she was bullied.[832]
  1. [424]
    I also accept Ms Luder’s evidence that she spoke to the plaintiff when the plaintiff was affected by alcohol.[833]  I think it likely the plaintiff was on duty at that time.  The husband could well have been visiting Milmerran.    
  1. [425]
    I do note that she signed Exhibit 21.[834]  Initially this gave me some cause for hesitation in accepting her evidence but I accept her explanations.  I accept it was her understanding that she signed it because she could not prove the plaintiff was intoxicated.  This did not undermine her evidence that the plaintiff’s speech was slurred at a time when the plaintiff was on duty.[835]  I infer the plaintiff was affected by alcohol or some substance.  I heard the plaintiff give evidence.  She does not normally speak in a slurred fashion.  I also consider this evidence fits in with the evidence of Dr Reedy that he observed the plaintiff intoxicated whilst on duty on two occasions.  It also fits in with the evidence of Dr Burrett and Ms Carter.
  1. [426]
    I consider Ms Luder was the subject of targeted bullying. She ultimately resigned.[836]
  1. [427]
    I found Mr Shipley to be an honest witness. He struck me as being very measured in his evidence. I accept his evidence that he was the subject of bullying by the plaintiff as he described.[837]  I accept he was confronted by the plaintiff about why he dealt with Ms Waugh and Dr Reedy.[838]  I also consider the emails he was sent on 31 January 2017 to be an example of this for the reasons I mentioned previously.
  1. [428]
    I accept Mr Shipley’s evidence that the allegations in Exhibit 31 were not correct.[839] 
  1. [429]
    In my opinion Mr Shipley made genuine complaints in his resignation letter. He was then confronted by Exhibit 7 – the concerns notice.
  1. [430]
    I do not find it has been proved that the plaintiff was on duty on the occasion Mr Shipley referred to in his evidence.[840]
  1. [431]
    I find Ms Carter’s evidence supported the contention that Mr Shipley was bullied.[841]
  1. [432]
    I accept Ms Barnett as a witness of truth. Contrary to the denials of the plaintiff, I find she did work for Freedom.[842]  I find that the plaintiff was abrasive to staff and residents and she was dismissed from this employment after a few weeks.[843]  Ms Hanson corroborated this evidence.[844]  I accept Ms Barnett genuinely perceived the plaintiff was walked off the premises.[845] 
  1. [433]
    I accept Ms Sauverain as a witness of truth. I find that her mother was not showered on occasions. Complaints were made to the plaintiff. Nothing was done about it.[846]  On one occasion she remained in soiled clothing for 3 days.[847]  I also find that the TV remote was placed out of the reach of Ms Fitch on some occasions.[848]  Ms Carter’s evidence corroborated Ms Sauverain’s evidence.[849]
  1. [434]
    As to Ms Honan, it was initially of concern that she sent Exhibit 34 to the court retracting her evidence. She explained she sent this because she considered there was a “conflict of interest” giving evidence in the present proceedings. I infer what she meant (bearing in mind she did not seem to be a well-educated person) was that she did not want to somehow jeopardise Mr Thomas’s defence. I thought overall Ms Honan was a genuine person doing her best to tell the truth. I accept the evidence of Ms Honan where it conflicts with that of the plaintiff. I found her to be a credible witness. I find that the plaintiff spoke to her in a threatening manner after she saw the allegations in the QCAT appeal.[850]  I accept her evidence that the plaintiff was unaware whether Ms Honan’s mother was on antibiotics or not when she was suffering from a very serious infection.[851]  I also accept her evidence that the plaintiff was unaware whether there was a health directive on file.[852]  The plaintiff accepted she ought to have known about this.[853]
  1. [435]
    I accept the evidence of Ms Howe that her husband was moved from the facility after almost dying.[854]  I accept her evidence that the plaintiff was unapproachable.[855]
  1. [436]
    As to the patient Gary Howe Dr Reedy gave evidence that he was very unwell when he saw him. He had been unwell for about three days. He had acute cholecystitis. However in the absence of expert medical opinion as to whether his treatment at MCRV lead to or aggravated his condition I am not prepared to make factual findings adverse to the plaintiff concerning this.
  1. [437]
    I accept the evidence of Dr Burrett.   I thought him to be a careful and honest witness.  I accepted the plaintiff spoke to him in an “unhinged” way in the conversation on 21 May 2018.[856]  I accept and infer she was affected by alcohol.   It seems clear Mr Bielby was in a very serious condition.  Despite this, the plaintiff claimed that he was in a reasonable condition.  She was obstructive with Dr Burrett about the notes.[857]  She swore at him and was derogatory to him and made false allegations about him.[858]  Although he did not make a complaint about this at the time this is understandable.[859]  It is very concerning the plaintiff was so obstructive when Mr Bielby was so ill.  As I say, I accept the plaintiff swore as alleged in Dr Burrett’s evidence.  I accept that Exhibit 37 was a summary of what occurred.
  1. [438]
    I accept the evidence of Ms Carter. I found her to be a genuine, caring and honest person.
  1. [439]
    As to the plaintiff’s criticism about her note taking I do not think it can be expected she would write down every single detail in her diaries.
  1. [440]
    I accept her evidence that the plaintiff picked on certain staff members and would take their hours away if she did not like them.[860]  I accept her evidence that on the morning of 8 May 2017 the plaintiff smelt of alcohol.[861]  I accept she prevailed upon Miss Carter to sign a statutory declaration in response to the solicitor’s letter.[862] However I do not find she was affected by alcohol whilst on duty- she had just been woken up.
  1. [441]
    I accept Ms Carter’s evidence that on the occasion the plaintiff gave an injection to Mr Hopkins the plaintiff was grossly intoxicated.  She dropped the medication twice.[863]  It took her a considerable time to walk about 25 metres.[864]  When Ms Carter raised objections as to this, the plaintiff accused her of being insubordinate and noncompliant and later became picky and bullied Ms Carter.[865]  Ms Carter was concerned enough to make detailed notes as to the plaintiff’s conduct.[866] 
  1. [442]
    I also accept Ms Carter’s evidence that there was a third occasion when the plaintiff smelt of alcohol during the transfer of Ms Fox from the facility.[867]  I accept Ms Carter’s evidence that on 12 December 2016 Ms Carter asked the plaintiff to come to assist Mr Contant but the plaintiff refused and she was slurring her speech.[868]  I find that Mr Contant was left for two days such that he was covered in urine in the same clothes.  In my view this was a significant failing of the management of MCRV for which the plaintiff was ultimately responsible. 
  1. [443]
    As to the Endone tablet incident, I am not satisfied on the Briginshaw test[869] that the plaintiff had taken tablets or placed others in the bin.  However it is of concern that she gave a Schedule 8 drug to Ms Carter who was not a registered nurse.
  1. [444]
    As to Aileen Callan I find that she fell over and suffered a fractured hip and nothing was done about this for 24 hours. I accept that Ms Carter raised concerns about the patient’s condition with the plaintiff and the plaintiff did nothing at that stage about it.[870]  I find that Ms Carter said she was going to report this to the Aged Care Commission and the plaintiff said she knew how to deal with such complaints.[871] 
  1. [445]
    I do not make any findings concerning the Webster-paks.
  1. [446]
    I accept Ms Carter’s evidence which is consistent and corroborates Ms Sauverain’s evidence that Ms Fitch was soaked in urine, having the same nightie on for over 24 hours.[872]  There was another occasion on which she was soaked in urine.[873]  The call bell was placed out of her reach as well as the TV remote.[874]  Complaints were made to the plaintiff and nothing was done about this.[875]  I find that to be of significant concern. 
  1. [447]
    I find the plaintiff acted in a bullying way to Karen Moore and referred to her as “dumb as dog shit”.[876]  She also told Ms Carter that she had nothing between her ears.  I accept Ms Carter’s evidence that the plaintiff spoke to Mr Shipley in a demeaning way, spoke to Ms Luder rudely and put Ms Pokarier down.[877]  She was criticised about her size.[878]  I accept that overall the plaintiff was aggressive and rude to staff she did not like.  
  1. [448]
    I accept Ms Carter’s evidence that on 24 July 2017 the plaintiff drank brown liquid and the room smelt of alcohol.[879]  I infer the plaintiff drank alcohol on this occasion.
  1. [449]
    As to Ms Moore, I found her to be frank in the witness box. She readily admitted her wrongdoing. She struck me that like Ms Luder she was a vulnerable person. I accept there was bullying of her for example the plaintiff told her she was no good.[880] Ms Carter corroborated Ms Moore’s evidence.[881]
  1. [450]
    Overall the evidence I accept leads me to the conclusion that:
  1. (a)
    It is substantially true that on a number of occasions the plaintiff was affected by alcohol on duty.  I find she was affected by alcohol on the following occasions whilst on duty:
  1. (i)
    September 2016- Dr Reedy;
  1. (ii)
    20 January 2017- Dr Reedy;
  1. (iii)
    24 July 2017- Ms Carter;
  1. (iv)
    9 March 2018- Ms Luder;
  1. (v)
    21 May 2018- Dr Burrett;
  1. (vi)
    Incident concerning Noel Hopkins as described by Ms Carter; and
  1. (vii)
    Transfer of Ms Fox incident as described by Ms Carter.
  1. (b)
    It is substantially true that the plaintiff was an incompetent manager of some of her staff at MCRV due to micro-managing and bullying and drinking on duty and/or being affected by alcohol whilst on duty.  I refer to the findings above.  I also find she bullied Ms Luder, Ms Carter, Mr Shipley, Ms Moore and Ms Pokarier. She gave schedule 8 drugs to a personal carer.
  1. (c)
    It is substantially true that the plaintiff was unfit to be Director of Nursing.  I refer to my findings concerning the use of alcohol.  I find that the plaintiff tried to conceal the extent of Ruth Carter’s bedsore.  She was responsible for a facility which allowed Ms Fitch and Mr Contant to become soaked in urine for many hours and which allowed the call bell and remote control to be placed out of the reach of Ms Fitch. She refused to attend Mr Contant when requested.  She refused to provide progress notes concerning Mr Bielby who was seriously ill to Dr Burrett who tried to treat him.  She swore at the Doctor in that conversation and falsely accused him of being a bully.  She did not act on information concerning Ms Callan.  She threatened the daughter of a patient who appealed to QCAT.  She was unaware of the existence of a health directive concerning Ms Brown and whether Ms Brown was on antibiotics.  She also talked about euthanizing patients to Dr Reedy and altering medication charts.      
  1. (d)
    The plaintiff was dismissed from her previous job because of poor behaviour.  I find she mislead this court about this and the board of the MCRV in her job application by failing to disclose it.   
  1. [451]
    Turning to the defence particulars I am satisfied the following are established on the balance of probabilities:
  1. Drinking whilst on duty. This should be “and/or affected by alcohol while on duty”.  Particulars 1(a), (b), (d) and (f).
  1. Competency.  Particulars 2(a), (b), (c), (d), (g), (h), (i) and (j) (insofar as I have found on the other particulars.)
  1. Workplace bullying.  Particulars 3(a), (c), (d), (e) and (f).
  1. Missing medication.  Particulars 4(c) and (d).[882] 
  1. Lack of professionalism.  Particulars 5(a) and (b) (insofar as I have found on the other particulars).
  1. Lack of fitness to care for the elderly.  Particular 1(a) (insofar as I have found on the other particulars). 
  1. [452]
    I also find that the plaintiff was not dismissed from her previous employment at Freedom because of alcohol issues or because drugs went missing.[883] 

Applying the law to the facts found

The action for defamation

  1. [453]
    To establish an action in defamation the plaintiff must prove the publication by the defendant of defamatory material of and concerning the plaintiff.
  1. [454]
    As to whether words are of and concerning the plaintiff, the test is an objective one, namely whether the words might reasonably be understood to those to whom they were published to refer to the plaintiff.[884]  It is a question of fact.[885] 
  1. [455]
    In this particular case, I find that the words were published of and concerning the plaintiff. The fact is the plaintiff was the Director of Nursing at MCRV. It was a retirement centre in a small town. The “DON” was referred to in each publication. I find the plaintiff has established this.
  1. [456]
    The next question is whether the words carry the imputations alleged by the plaintiff. On this question the words published must be given their natural and ordinary meaning.
  1. [457]
    In Trkulja v Google LLC,[886] the High Court noted:

“The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of.  In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience.” 

  1. [458]
    At [32] it was noted the exercise is one of generosity and not parsimony.
  1. [459]
    The relevant question is whether the ordinary, reasonable reader would have understood the matters complained of in the defamatory sense pleaded.[887]  The words are not to be read literally.  They include implied or inferred meanings.[888]  It is for the court to find the actual meanings of the words published.[889]
  1. [460]
    It should also be borne in mind that any strained, forced or unreasonable interpretation must be rejected.[890]
  1. [461]
    There was an issue raised about whether it is open to the court to find there are defamatory imputations even if they are not pleaded. The plaintiff submitted that this was not possible.
  1. [462]
    In Robinson v Laws[891] de Jersey CJ said that if a plaintiff fails to establish the particularised meaning, the plaintiff fails.  However in Chakravarti v Advertiser Newspapers Limited [892] Gaudron and Gummow JJ held that as a general rule there will be no disadvantage in allowing a plaintiff to rely on meanings comprehended in or less injurious than the meaning pleaded in the Statement of Claim. 
  1. [463]
    In this matter, having considered all of the words from the point of view of the ordinary, reasonable reader, I find that the following imputations arise from the publications:

First matter complained of:

  1. The plaintiff was incompetent.
  1. The plaintiff was unfit to care for the elderly or discharge the responsibilities of Director of Nursing at the MCRV.

Second matter complained of:

  1. The plaintiff was on a number of occasions affected by alcohol while on duty. Whilst this differs somewhat from the particularised innuendo, in accordance with Chakravarti I do not consider any prejudice arises in my finding this imputation. I think this is a different nuance.[893] I do not consider it was proved that the second matter imputed habitual intoxication.

Third matter complained of:

  1. The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol.
  1. The plaintiff was dismissed from her previous job and escorted off the premises because she was responsible for narcotic drugs going missing.
  1. The plaintiff is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job either because she had a problem with alcohol or was responsible for narcotic drugs going missing.
  1. [464]
    I am not satisfied on the balance of probabilities from the ordinary, reasonable reader’s point of view the words impute the theft of drugs.
  1. [465]
    The defendant submitted that the imputations pleaded relating to the dismissal (because of alcohol and drugs going missing) did not arise. It is submitted it was merely a question. With respect I disagree with this submission.
  1. [466]
    First one has to read the publication in context. It is not simply a matter that the question was posed. There are specific allegations in exhibit 1 of misuse of medication, in exhibit 2 of the DON drinking on duty and in exhibit 4 of missing drugs.
  1. [467]
    Second the asking of a question may still give rise to defamatory imputations. As I have already said, the words are not limited to literal meanings and can include implied, inferred or indirect meanings.[894]  A degree of latitude is given where the words are loose.[895]  The more sensational the words (and these ones are) it is less likely an ordinary reasonable reader will read the words with analytical care.[896]
  1. [468]
    Third a publisher may be responsible for imputations arising where he or she invites a suspicious approach.[897]
  1. [469]
    Finally Jones v Skelton[898] is an example of a case where the question mark was such as to lead the reader to a conclusion of impropriety.  In the words of Hunt CJ at CL the words “rather convey[ed] the impression that the author is anxious to wound but fearful to strike too obviously.” 
  1. [470]
    The next question is whether the words are defamatory. It has been held that words are defamatory if there is a likelihood of injury to reputation in the eyes of ordinary people.[899]  In Radio 2UE Sydney Pty Ltd v Chesterton,[900] the High Court held that the question is whether the published matter is likely to lead an ordinary, reasonable person to think less of the plaintiff. 
  1. [471]
    It is my opinion that the plaintiff has established that each of the published matters was likely to lead an ordinary, reasonable person to think less of her by reason of the imputations I have found.
  1. [472]
    I have therefore found the plaintiff has established that defamatory matter about her was published by the defendant.

The defences

  1. [473]
    The next issue relates to the defences which have been pleaded. In this case six defences are relied upon:
  1. The common law defence of justification;
  1. The common law defence of qualified privilege;
  1. The defence of justification under s 25 of the Defamation Act;
  1. The defence of contextual truth under s 26 of the Defamation Act;
  1. The defence of qualified privilege under s30 of the Defamation Act; and
  1. The defence of honest opinion under s31 of the Defamation Act.
  1. [474]
    The common law defences are still available by reason of s 24 of the Defamation Act 2005 (Qld). This provides:

Scope of defences under general law and other law not limited

  1. (1)
    A defence under this division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.
  1. (2)
    If a defence under this division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.”
  1. [475]
    The defence of qualified privilege (at common law or under the statute) may be defeated by malice. A plaintiff will succeed in establishing malice if the defendant was actuated by a motive not connected with the privilege. Proof that the defendant knew their words were false or that he or she did not have a genuine belief in them would be good evidence of malice. If the words were published by a defendant who was recklessly indifferent as to whether they are true or not this can lead to a conclusion of malice as this amounts to wilful blindness.[901] 
  1. [476]
    Also where the words are utterly disproportionate to the facts, this may provide evidence of malice.[902]
  1. [477]
    A failure to inquire into the truth of the statements may be so extreme that the defendant cannot be regarded as believing the statements are true.[903]
  1. [478]
    Usually malice is inferred from a defendant’s conduct and what he or she knew or did.[904]  Circumstantial evidence on this question is usually relied on in the absence of any admission.
  1. [479]
    But it must be remembered that it must be proved the defendant had an improper motive in making the publication.[905] Proof that the defendant knew it to be untrue almost invariably leads to a conclusion of malice.[906]   

Defence of justification – common law

  1. [480]
    The first defence is the common law defence of justification. For the defendant to succeed in establishing this defence she must prove that the words published were true. Also the defendant must prove that the facts are true and the statements of opinion are correct.[907]  Substantial justification is sufficient.
  1. [481]
    Justification is a complete defence.
  1. [482]
    Based on the findings of fact I have made I find the following imputations to be substantially true:
  1. (a)
    The plaintiff was incompetent.
  1. (b)
    The plaintiff was unfit to care for the elderly or discharge the responsibilities of the Director of Nursing at MCRV.
  1. (c)
    The plaintiff was on a number of occasions affected by alcohol whilst on duty.
  1. [483]
    I find that the following imputations are not substantially true:
  1. (a)
    The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol.
  1. (b)
    The plaintiff was dismissed from her previous job and escorted off the premises because she was responsible for narcotic drugs going missing.
  1. (c)
    The plaintiff is unfit to hold the position of Director of Nursing at the MCRV because she was dismissed from her previous job either because she had a problem with alcohol or was responsible for narcotic drugs going missing.

Defence of justification – Defamation Act

  1. [484]
    Section 25 of the Defamation Act provides:

Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”

  1. [485]
    The term “substantially true” is defined in schedule 5 of the Defamation Act to mean “true in substance or not materially different from the truth”.  To succeed the defendant must prove the imputations are true in substance and not materially different from the truth.  Whilst errors in detail might be tolerated, the defendant must prove the truth of every part of the imputation relied on.[908] 
  1. [486]
    I have already referred to my findings as to the truth or otherwise of the imputations. Those findings apply here.

Defence of contextual truth – Defamation Act

  1. [487]
    Section 26 of the Defamation Act provides:

Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that—

  1. (a)
    the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and
  1. (b)
    the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”
  1. [488]
    Section 26 creates a defence which allows a defendant to rely upon imputations arising from the matter which are additional to and differ in substance from the imputations alleged by the plaintiff.[909]  The defence is established if those additional contextual imputations are substantially true, are more serious, and if the imputations relied on by the plaintiff do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.[910]   
  1. [489]
    After pressing during oral submissions the defendant submitted that paragraphs 5(a), (b), (c), (d) and (e) related to the first matter complained of; paragraph 5(a) related to the second matter complained of and none relate to the third matter complained of.
  1. [490]
    As to the first matter complained of, I accept the plaintiff’s submissions that 5(a) cannot be relied on. I do not consider it is a contextual matter arising from the first matter. Paragraph 5(b) also cannot be relied on as it is not more serious than the pleaded imputation. Paragraph 5(c) is not a contextual matter arising from the first matter. Paragraphs 5(d) and (e) are not more serious than the pleaded imputations.
  1. [491]
    As to the second matter I do not consider paragraph 5(a) to be more serious than the pleaded/found imputations.
  1. [492]
    Further or alternatively I also consider the imputations alleging reasons for dismissal (which were untrue) did further harm to the plaintiff. As was noted at [47] of Weatherup I find the false imputations would still have some effect on the plaintiff’s reputation in some circles notwithstanding the effect of the substantial truth of the alleged contextual imputations.   
  1. [493]
    The s 26 defence fails.

Common law – qualified privilege

  1. [494]
    In order to succeed in this defence the defendant must establish that:
  1. (a)
    The defendant had a duty or interest in publishing the matter.
  1. (b)
    The recipients had a corresponding interest in receiving the matter.[911]
  1. [495]
    As to this defence the High Court in Bashford v Information Australia (Newsletters) Pty Limited,[912] noted at [9]:

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

  1. [496]
    At [10] it was said:

“Reciprocity of duty or interest is essential. These principles are stated at a very high level of abstraction and generality. ‘The difficulty lies in applying the law to the circumstances of the particular case under consideration’. Concepts which are expressed as ‘public or private duty, whether legal or moral’ and ‘the common convenience and welfare of society’ are evidently difficult of application. When it is recognised, as it must be, that ‘the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact’, it is clear that in order to apply the principles, a court must ‘make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication’.”

  1. [497]
    In Lloyd-Jones v Allen[913] the New South Wales Court of Appeal noted that the essential question for the court is whether the publication was made in circumstances where the reciprocity of interest between the publisher and the recipient was of such a kind that it was for the common convenience and welfare of society that the publication be protected.
  1. [498]
    As to the term “interest” it must be something more than a mere curiosity as to the private business or affairs of other persons. There must be a real and direct personal, trade, business or social concern.[914] 
  1. [499]
    The defendant’s subjective belief is irrelevant. The test is an objective one i.e. was the occasion one in which a person who desired to do his or her duty to a neighbour would reasonably believe the publication should be made.[915] 
  1. [500]
    I accept the defendant’s evidence that she did have an interest in publishing this material. I accept her evidence that she was involved in a campaign concerning the treatment of individuals at aged care facilities. Equally I consider her followers on Facebook had such an interest. I consider it was for the public good for issues involved the care of the elderly and the management of a nursing home be discussed.
  1. [501]
    I am satisfied about these matters objectively.
  1. [502]
    However the defence fails because of the following findings on malice.
  1. [503]
    I do accept the defendant has genuine concerns about the welfare of patients in aged care facilities. I accept she was part of a campaign to set up a Royal Commission into aged care. However I have had reservations about aspects of her evidence as set out in my summary of her evidence. I have referred to my concerns there.
  1. [504]
    I consider the defendant acted recklessly in publishing the untrue material (being sacked for alcohol and drugs missing) about the plaintiff personally. She did not make any proper enquiries as to the truth of the allegations. I consider the defendant was recklessly indifferent as to the truth. Leaving aside the fact she did not make inquiry with the plaintiff about this, she made no inquiry with the previous employer or anyone associated with the previous employer as to the reasons for dismissal.
  1. [505]
    As to Exhibit 2, I consider the comment about the plaintiff not suffering dehydration went beyond what was sufficient for the occasion. Added to this was the further comment on page 1 “do not forget the Endone that would surly [sic] give you a split personality.” Again this comment goes beyond genuine concerns about the welfare of elderly patients at nursing homes. It is a spiteful comment about the plaintiff personally.
  1. [506]
    We then have the allegation on page 2 of Exhibit 2 that the plaintiff was walked off the job at Northridge Salem. This is untrue.
  1. [507]
    We then have the allegation in Exhibit 3 that the plaintiff was escorted off the premises at the last job. Then this is specifically linked in with a drinking habit or the missing of narcotic drugs. Again it is my view this goes beyond genuine concern about the welfare of elderly patients. There was no basis to suggest it.
  1. [508]
    We then have the unsubstantiated allegations in Exhibit 4 about the plaintiff forging staff signatures and saying she had been up all night doing criminal offences. There were clear inferences that she had stolen Endone and interfered with patients Webster-paks. It was alleged she had overridden doctors’ medication instructions. The contents are quite vitriolic and unproven.
  1. [509]
    I consider her decision to publish the promotional video of Exhibit 5 shortly before this trial shows not only a lack of insight but in fact ill will towards the plaintiff. She said she had to stick by what she said. The defendant did not care about the actual truth. She continued making the allegations she alleged because they had already been made.
  1. [510]
    There were a number of admissions made by the defendant in cross examination that she made serious allegations against the plaintiff; she knew the Today Tonight program would be broadcast just before the trial; she admitted humiliating and denigrating the plaintiff; she admitted alleging forgery and criminal offences in Exhibit 14; she referred to the plaintiff as a viper in Exhibit 15 and she ultimately agreed she intended to harm the plaintiff.
  1. [511]
    I consider that was her intention to harm the plaintiff and to have her sacked.
  1. [512]
    As I have noted earlier, a court is slow to make a finding of malice but for the reasons I have given I infer that the defendant was malicious towards the plaintiff personally and there was an improper motive at the time of the making of each of the publications of the untrue imputations.
  1. [513]
    The defence fails.

Defence of qualified privilege – Defamation Act

  1. [514]
    Section 30 of the Defamation Act provides:

Defence of qualified privilege for provision of certain information

  1. (1)
    There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
  1. (a)
    the recipient has an interest or apparent interest in having information on some subject; and
  1. (b)
    the matter is published to the recipient in the course of giving to the recipient information on that subject; and
  1. (c)
    the conduct of the defendant in publishing that matter is reasonable in the circumstances.
  1. (2)
    For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
  1. (3)
    In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
  1. (a)
    the extent to which the matter published is of public interest; and
  1. (b)
    the extent to which the matter published relates to the performance of the public functions or activities of the person; and
  1. (c)
    the seriousness of any defamatory imputation carried by the matter published; and
  1. (d)
    the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
  1. (e)
    whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
  1. (f)
    the nature of the business environment in which the defendant operates; and
  1. (g)
    the sources of the information in the matter published and the integrity of those sources; and
  1. (h)
    whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
  1. (i)
    any other steps taken to verify the information in the matter published; and
  1. (j)
    any other circumstances that the court considers relevant.
  1. (4)
    For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
  1. (5)
    However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.”
  1. [515]
    To establish this defence the defendant must prove on the balance of probabilities the following:
  1. (a)
    The recipients of the matter have an interest or apparent interest in having information on some subject. For the purpose of apparent interest the defendant must show that she believed on reasonable grounds the recipient had that interest.
  1. (b)
    The matter is published to the recipient in the course of giving to the recipient information on that subject.
  1. (c)
    The conduct of the defendant in publishing the material is reasonable in the circumstances. To determine whether it is reasonable the court may take into account the matter mentioned in subsection (3).  
  1. [516]
    The statutory defence was intended to broaden the nature of the interest that suffices for the defence of qualified privilege at common law.
  1. [517]
    For the reasons I have given concerning the common law defence I consider the defendant has proved she had a relevant interest in the subject matter as did the recipients.
  1. [518]
    I next turn to whether the conduct of the defendant in publishing the material was reasonable in the circumstances. This depends on all the circumstances of the case.[916]
  1. [519]
    In my view the conduct of the defendant in publishing the untrue defamatory material was not reasonable in all of the circumstances. I refer to my findings on the question of malice. The defendant did not have to get so vindictive about the plaintiff. There were ways and means of publishing these allegations which would bring to the attention of her followers the allegations in a lawful manner.
  1. [520]
    The defence fails on this score and also on the question of malice.

Defence of honest opinion – Defamation Act 

  1. [521]
    Section 31 of the Defamation Act provides:

“Defences of honest opinion

  1. (1)
    It is a defence to the publication of defamatory matter if the defendant proves that—
  1. (a)
    the matter was an expression of opinion of the defendant rather than a statement of fact; and
  1. (b)
    the opinion related to a matter of public interest; and
  1. (c)
    the opinion is based on proper material.
  1. (2)
    It is a defence to the publication of defamatory matter if the defendant proves that—
  1. (a)
    the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
  1. (b)
    the opinion related to a matter of public interest; and
  1. (c)
    the opinion is based on proper material.
  1. (3)
    It is a defence to the publication of defamatory matter if the defendant proves that—
  1. (a)
    the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
  1. (b)
    the opinion related to a matter of public interest; and
  1. (c)
    the opinion is based on proper material.
  1. (4)
    A defence established under this section is defeated if, and only if, the plaintiff proves that—
  1. (a)
    in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
  1. (b)
    in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
  1. (c)
    in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
  1. (5)
    For the purposes of this section, an opinion is based on proper material if it is based on material that—
  1. (a)
    is substantially true; or
  1. (b)
    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
  1. (c)
    was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
  1. (6)
    An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.”
  1. [522]
    To establish this defence the defendant must prove on the balance of probabilities the following:
  1. (a)
    The matter was an expression of the opinion of the defendant rather than a statement of fact.
  1. (b)
    The opinion is related to a matter of public interest.
  1. (c)
    The opinion is based on proper material. Subsection (5) notes when the opinion is based on proper material.
  1. [523]
    The defence is defeated if the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published.
  1. [524]
    In Fraser v Holmes[917] the New South Court of Appeal considered that the section reflected the common law defence of fair comment.  As was noted in John Fairfax Publications Pty Ltd v O’Shane,[918] the defence of fair comment gives controlled priority to the freedom of speech as against the protection of an individual’s reputation.
  1. [525]
    In Channel Seven Adelaide Pty Ltd v Manock,[919] it was held that in addressing the common law defence of fair comment, the relevant question is whether the ordinary, reasonable reader would have understood that the meaning found to have been conveyed by the matter complained of was conveyed as fact or comment. 
  1. [526]
    In O’Brien v Australian Broadcasting Corporation[920] Macallum J held that the first matter to be considered is whether the matter complained of would have been understood to be conveyed as a comment rather than fact.  At [50] it was noted that a defence of fair comment would not necessarily fail by reason of the inclusion of a factual component in the imputation. 
  1. [527]
    It is my view that the following matters were statements of fact and not of opinion as to the imputations I have found:
  1. (a)
    The plaintiff was on a number of occasions affected by alcohol while on duty.  This relates to an existing state of affairs.
  1. (b)
    The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol.  This relates to the fact she was dismissed and the reasons for it.
  1. (c)
    The plaintiff was dismissed from her previous job and escorted off the premises because she was responsible for narcotic drugs going missing. This relates to the fact she was dismissed and the reasons for it.
  1. [528]
    The balance of the matters may be regarded as expressions of opinion:
  1. (a)
    The plaintiff is incompetent. This is an opinion as to her competence.
  1. (b)
    The plaintiff is unfit to care for the elderly or discharge the responsibilities as Director of Nursing at MCRV.  This is an opinion as to her fitness.
  1. (c)
    The plaintiff was unfit to hold the position of Director of Nursing at MCRV because she was dismissed from her previous job because she had a problem with alcohol or was responsible for narcotic drugs going missing.  This was an opinion as to her fitness.
  1. [529]
    I consider the matter discussed was a matter of public interest. In this regard the High Court considered the question of public interest in Bellino v Australian Broadcasting Corporation.[921]  Dawson, McHugh and Gummow JJ held that a subject of public interest meant the actions of omissions of a person or institution engaged in activities that inherently or expressly invited public criticism or discussion.  
  1. [530]
    In my view the discussion of the treatment of persons in aged care facilities was a matter of public interest.[922]  This includes discussions about the fitness of staff looking after them.
  1. [531]
    Turning to the issue of whether the opinions were based on proper material. I have found the imputations of unfitness, incompetence and on a number of occasions being affected by alcohol to be true. I considered Ms Waugh to be an honest witness. It is true that comment was not sought by the defendant from the plaintiff, but that is only matter to be considered. Some of the material was true. I find (a) and (b) to be based on proper material.
  1. [532]
    However, I do not consider imputation (c) was based on proper material. There was no truth in the assertions that the plaintiff was dismissed because of alcohol use or missing drugs. This was not checked. The defence fails on this imputation.
  1. [533]
    I next turn to the defeasance. I consider the defendant honestly held that opinions referred at (a) and (b). There was proper material upon which to base these opinions. The plaintiff has not proved the defeasance.
  1. [534]
    I uphold this defence insofar as it relates to (a) and (b) of the expression of opinion.

Conclusion on liability

  1. [535]
    I have found the defendant published a number of defamatory imputations of and concerning the plaintiff.
  1. [536]
    I find the defences fail as to the following imputations:
  1. (a)
    The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol.
  1. (b)
    The plaintiff was dismissed from her previous job because she was responsible for narcotic drugs going missing.
  1. (c)
    The plaintiff was unfit to hold the position of Director of Nursing at MCRV because she was dismissed from her previous job because she had a problem with alcohol or was responsible for narcotic drugs going missing.
  1. [537]
    I find the s 31 defence succeeds on the following imputations:
  1. (a)
    The plaintiff is incompetent.
  1. (b)
    The plaintiff is unfit to care for the elderly or discharge the responsibilities of Director of Nursing at the MCRV.
  1. [538]
    I have found that the following imputations are substantially true:
  1. (a)
    The plaintiff was on a number of occasions affected by alcohol whilst on duty.
  1. (b)
    The plaintiff is incompetent.
  1. (c)
    The plaintiff is unfit to care for the elderly or discharge the responsibilities as Director of Nursing at MCRV.  
  1. [539]
    I now turn to the assessment of damages in this context.

Damages

  1. [540]
    A number of provisions of the Defamation Act are relevant. 
  1. [541]
    Section 34 provides:

Damages to bear rational relationship to harm

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.” 

  1. [542]
    Section 35 provides:

Damages for non-economic loss limited

  1. (1)
    Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
  1. (2)
    A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
  1. (3)
    The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).
  1. (4)
    The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.
  1. (5)
    An amount declared for the time being under this section applies to the exclusion of the amount of $250000 or an amount previously adjusted under this section.
  1. (6)
    If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined under a regulation.
  1. (7)
    In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500.
  1. (8)
    A declaration made or published in the gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.” 
  1. [543]
    Section 36 provides:

“State of mind of defendant generally not relevant to awarding damages

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.”

  1. [544]
    Section 37 provides:

Exemplary or punitive damages can not be awarded

A plaintiff can not be awarded exemplary or punitive damages for defamation.”

General principles

  1. [545]
    Upon publication of defamatory material damage to reputation is presumed.[923] 
  1. [546]
    In Cerutti & Anor v Crestside Pty Ltd & Anor,[924] Applegarth J noted that an award of general damages serves three purposes.  Firstly, to compensate the person defamed for the harm. Secondly, to give consolation for the personal distress and hurt caused to the plaintiff by the publication. Thirdly, to vindicate the plaintiff’s reputation.
  1. [547]
    In quantifying damages in defamation, the court is obliged to ensure that there is an appropriate rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.[925]
  1. [548]
    A plaintiff is not required to prove damage to reputation and once a finding as to liability is made damages must be awarded.[926]  Indeed there is no requirement on a plaintiff to call evidence that in fact people thought less of him or her as a result of the publication.[927]
  1. [549]
    A damages award may also reflect the “grapevine” effect.[928]  The sufficiency of the amount awarded is determined by a reference to circumstances past and present as well as what is required to vindicate the plaintiff’s reputation in the future.[929] 
  1. [550]
    In deciding the amount appropriate the Defamation Act requires two matters to be considered.  Firstly, the cap on damages[930] and secondly, as I noted earlier, the appropriate and rational relationship between the harm sustained and the amount awarded.
  1. [551]
    In Cerutti,[931] Applegarth J noted that the sum awarded must be “at least the minimum necessary to signal to the public the vindication of the appellant’s reputation”.[932]
  1. [552]
    Applegarth J also noted that the awarding of compensation for harm that is not measurable in money is a familiar task to judges. However, what is awarded in a defamation case is different to what is suffered in a personal injuries case. Also comparisons with awards of general damages in personal injury cases are difficult.[933]  A court is entitled to consider the size of the award compared with other awards and trial judges may take into account comparable cases but caution has to be used in looking at any other award of damages.[934]  Caution must be applied in looking at cases in other jurisdictions.[935]
  1. [553]
    A good summary of the principles is to be found in Hockey v Fairfax Media Publications Pty Ltd & Ors[936] where White J at [446] said:

“The parties referred to several of the leading cases containing the principles to be applied in the assessment of damages and, in addition, to Ali v Nationwide News Ltd [2008] NSWCA 183 at [70]-[78] and to Cripps v Vakras [2014] VSC 279 at [549]-[563] in which the principles have been summarised recently. Drawing on the various authorities to which counsel referred, the following principles can be identified as being particularly pertinent to the assessments in the present case:

  1. (a)
    Damage to reputation need not be proved as it is presumed: Bristow v Adams [2012] NSWCA 166 at [20]-[31];
  1. (b)
    Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment. The harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them: Cassell & Co Ltd v Broome [1972] AC 1027 at 1125; 
  1. (c)
    A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant;
  1. (d)
    The level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3];
  1. (e)
    The circumstance that a respondent has not provided any apology is pertinent: Herald and Weekly Times Ltd v McGregor  (1928) 41 CLR 254 at 263;
  1. (f)
    Aggravated damages are a form of compensatory damages. They are not awarded to punish a respondent. Exemplary or punitive damages for defamation cannot be awarded: Defamation Act 2005 (NSW) s 37;
  1. (g)
    An award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653;
  1. (h)
    The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations: Carson  at 78 per Brennan J;
  1. (i)
    In awarding aggravated damages, the Court is still compensating applicants for the loss actually suffered by them as a result of the defamation but, in doing so, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085.”

Conclusion on damages

  1. [554]
    In this matter the three offending imputations (not protected by any defence) were published to at least 167 people. There is evidence here of a grapevine effect bearing in mind the properties of Facebook.
  1. [555]
    However on the evidence there were very mixed views about the plaintiff. She had the support of the board and some employees but not the support of some of the other witnesses who gave evidence. I have found she had some influence over the board and the supporting employees to be in “her camp”.
  1. [556]
    As to the imputations, I have found five were protected by a defence and three were substantially true.
  1. [557]
    In the result the real damage is the publication of incorrect reasons for dismissal. It is serious to incorrectly suggest that someone has been dismissed for alcohol use or being responsible for missing drugs. On the other hand, by reason of the factual findings the damage to her reputation is not like someone with an exemplary character being defamed.
  1. [558]
    I assess compensatory damages at $10,000.
  1. [559]
    I do consider aggravated damages should be awarded. This is particularly due to the fact the defendant in effect repeated the allegations just before the trial through the Today Tonight broadcast and this was promoted on her Facebook page. This is an unusual fact and significantly aggravates the damages. I also take into account that this was a full blown trial on all matters. The defendant could have narrowed the issues and conceded incorrect imputations arose concerning the reason for dismissal.
  1. [560]
    I assess these at $5,000.
  1. [561]
    I give judgment to the plaintiff in the sum of $15,000.
  1. [562]
    The plaintiff submitted that there was a risk of further publication and submitted an injunction should be ordered restraining the defendant from further publication.
  1. [563]
    She relied on O’Reilly v Edgar[937] in which Bradley J ordered a permanent injunction against a defendant where there was a risk of repeated publication. 
  1. [564]
    The defendant submitted there was insufficient evidence of such a risk.
  1. [565]
    I am not satisfied on the balance of probabilities there is sufficient evidence of a risk of publication of untrue imputations. I do note there was no cross examination of the defendant on this point.
  1. [566]
    Bearing in mind my findings of fact, I decline to grant the injunction sought.
  1. [567]
    In addition, I decline it for the following reasons:
  1. (a)
    The plaintiff has not succeeded on all imputations;
  1. (b)
    The injunction was not sought in the pleadings;
  1. (c)
    There has been a significant delay; and/or
  1. (d)
    Damages are an adequate remedy.
  1. [568]
    I will hear the parties on the question of costs.

 

Footnotes

[1]  Exhibit B filed by leave on 10 June 2019.

[2]  The first matter complained of - Exhibit 1.

[3]  The second matter complained of - Exhibit 2.

[4]  The third matter complained of - Exhibit 3.

[5]  Part of the third matter complained of. 

[6]  Exhibit B.

[7]  Exhibit P. Transcript day 2 pages 14-18.

[8]  Part of Exhibit B.

[9]  Paragraph 2(cc) of the reply.

[10]  Paragraph 6 of the reply.

[11]  Paragraph 6 of the reply. 

[12]  Paragraph 6B(c) of the reply. 

[13]  Paragraph 6B(d) and (e) of the reply.

[14]  Paragraph 6C of the reply. 

[15]  Paragraph 6D of the reply. 

[16]  Transcript day 1 page 11.1

[17]  Transcript day 1 page 12.1.

[18]  Transcript day 1 page 12.31.

[19]  Transcript day 1 page 13.32.

[20]  Transcript day 1 page 14.25.

[21]  Transcript day 1 page 15.4.

[22]  Transcript day 1 page 15.30.

[23]  Transcript day 1 page 15.15.

[24]  Transcript day 1 page 16.1.

[25]  Transcript day 1 page 16.10.

[26]  Transcript day 1 page 16.25.

[27]  Transcript day 1 page 16.45.

[28]  Transcript day 1 page 17.21.

[29]  Transcript day 1 page 17.35.

[30]  Transcript day 1 pages 17.42 – 18.2.

[31]  Transcript day 1 page 19.8.

[32]  Transcript day 1 page 19.13.

[33]  Transcript day 1 page 20.15.

[34]  Transcript day 1 page 21.13.

[35]  Transcript day 1 page 21.17.

[36]  Transcript day 1 page 22.35.

[37]  Transcript day 1 page 22.40-23.15.

[38]  Transcript day 1 page 23.20.

[39]  Transcript day 1 page 25.17.

[40]  Transcript day 1 page 26.45.

[41]  Transcript day 1 page 27.10.

[42]  Transcript day 1 page 28.26.

[43]  Transcript day 1 page 29.12.

[44]  Transcript day 1 page 30.40.

[45]  Transcript day 1 page 31.20.

[46]  Transcript day 1 page 31.35.

[47]  Transcript day 1 page 32.30.

[48]  Transcript day 1 page 33.20-35.  I find the plaintiff mislead the court about this.  I will deal with this later.

[49]  Transcript day 1 page 34.1.

[50]  Exhibit E.  I have no regard to the contents of this document.

[51]  Transcript day 1 page 34.9.

[52]  Exhibit 7.  Transcript day 1 page 35.20.

[53]  Transcript day 1 page 43.17.

[54]  Transcript day 1 page 41.34.

[55]  Transcript day 1 page 42.2.

[56]  Transcript day 1 page 44.46.

[57]  Transcript day 1 page 45.8.

[58]  Transcript day 1 page 45.10-17.

[59]  Transcript day 1 page 45.22-46.

[60]  Transcript day 1 page 46.2.

[61]  Transcript day 1 page 46.3.

[62]  Transcript day 1 page 46.5.

[63]  Transcript day 1 page 46.12.

[64]  Transcript day 1 page 46.15.

[65]  Transcript day 1 page 46.20-39.

[66]  Transcript day 1 page 47.3.

[67]  Transcript day 1 page 48.12.

[68]  Transcript day 1 page 48.22.

[69]  Transcript day 1 page 48.27.

[70]  Transcript day 1 page 48.32.

[71]  Transcript day 1 page 49.5

[72]  Transcript day 2 page 33.40.

[73]  Transcript day 2 page 33.45.

[74]  Transcript day 2 page 34.13.

[75]  Transcript day 2 page 34.22.

[76]  Transcript day 2 page 34.25.

[77]  Transcript day 2 page 35.3.

[78]  Transcript day 2 page 35.10.

[79]  Transcript day 2 page 35.22-35.

[80]  Transcript day 2 page 36.10.

[81]  Transcript day 2 page 36.19.

[82]  Transcript day 2 pages 37.20-41.22.

[83]  Transcript day 2 pages 41.24-42.17.

[84]  Transcript day 2 page 42.19-45.

[85]  Transcript day 2 page 43.1-45.

[86]  Transcript day 2 page 44.40.

[87]  Transcript day 2 page 44.42.

[88]  Transcript day 2 page 44.45.

[89]  Transcript day 2 page 45.30-37.

[90]  Transcript day 2 pages 45.39-46.7.

[91]  Transcript day 2 page 46.13.

[92]  Transcript day 2 page 46.40.

[93]  Transcript day 2 page 46.42.

[94]  Transcript day 2 pages 47.9-48.25.

[95]  Transcript day 2 page 48.45.

[96]  Exhibit J. Transcript day 2 page 49.8.

[97]  Transcript day 2 page 49.15.

[98]  Transcript day 2 pages 49.43-50.20.

[99]  Transcript day 2 page 50.20.

[100]  Transcript day 2 page 50.25.

[101]  Transcript day 2 pages 50.32-51.1.

[102]  Transcript day 2 page 51.7-14.

[103]  Transcript day 2 page 51.17-39.

[104]  Transcript day 2 page 52.18-28.

[105]  Transcript day 2 page 54.45.

[106]  Transcript day 1 page 66.44.

[107]  Transcript day 1 pages 67-68.

[108]  Transcript day 1 page 68.30.

[109]  Transcript day 1 page 69.1-17

[110]  Transcript day 1 page 70.41.

[111]  Transcript day 1 page 71.39-46.

[112]  Transcript day 1 page 72.5.

[113]  Transcript day 1 page 72.11.

[114]  Transcript day 1 page 72.15.

[115]  Transcript day 1 page 72.42.

[116]  Transcript day 1 page 73.1.

[117]  Transcript day 1 page 73.20.

[118]  Transcript day 1 page 74.25.

[119]  Transcript day 2 page 19.32

[120]  Transcript day 2 pages 21-30.

[121]  Transcript day 2 page 22.7-27.

[122]  Transcript day 2 page 22.32.

[123]  Transcript day 2 page 23.27.

[124]  Transcript day 2 page 23.40-42.

[125]  Transcript day 2 page 28.32.

[126]  Transcript day 2 page 30.30.

[127]  Transcript day 2 page 31.10-18.

[128]  Transcript day 2 page 32.8-25.

[129]  Transcript day 2 page 56.18-29.

[130]  Transcript day 2 page 57.5.

[131]  Transcript day 2 page 57.21.

[132]  Transcript day 2 page 59.32.

[133]  Transcript day 2 pages 67.43-68.10.

[134]  Transcript day 2 page 68.20.

[135]  Transcript day 2 pages 68.37-69.24.

[136]  Transcript day 2 page 69.43

[137]  Transcript day 2 page 69.37.

[138]  Transcript day 2 page 70.1-12.

[139]  Transcript day 2 pages 70.19-44. Exhibits 11 and 12.

[140]  Transcript day 2 page 74.5-14.

[141]  Transcript day 2 page 74.25

[142]  Transcript day 2 page 78.21.

[143]  Transcript day 2 pages 78.25-79.40.

[144]  Transcript day 2 page 81.1-4.

[145]  Transcript day 2 page 81.18.

[146]  Transcript day 2 page 81.21.

[147]  Transcript day 2 page 81.25

[148]  Transcript day 2 page 81.35-41.

[149]  Transcript day 2 page 81.43.

[150]  Transcript day 2 page 81.47.

[151]  Transcript day 2 page 82.1-11.

[152]  Transcript day 2 page 82.15.

[153]  Transcript day 2 page 82.17-30.

[154]  Transcript day 2 page 82.32.

[155]  Transcript day 2 page 83.5.

[156]  Transcript day 2 page 83.9.

[157]  Transcript day 2 page 83.11-18.

[158]  Transcript day 2 page 85.40.

[159]  Transcript day 2 page 86.15.

[160]  Transcript day 2 pages 87.5-20.3-25.

[161]  Transcript day 2 page 88.16-22.

[162]  Transcript day 2 page 88.27.

[163]  Transcript day 2 page 88.40.

[164]  Transcript day 2 page 88.44.

[165]  Transcript day 2 page 89.1-5.

[166]  Transcript day 2 page 89.29.

[167]  Transcript day 2 page 89.35.

[168]  Transcript day 2 page 90.5-20.

[169]  Transcript day 2 pages 90.45-93.20.

[170]  Transcript day 2 page 90.32.

[171]  Transcript day 2 page 91.20.

[172]  Transcript day 2 page 92.27.

[173]  Transcript day 2 page 93.25.

[174]  Transcript day 2 page 93.32.

[175]  Transcript day 2 page 94.5-20.

[176]  Transcript day 2 page 94.25.

[177]  Transcript day 2 page 94.31.

[178]  Transcript day 2 page 94.44.

[179]  Transcript day 2 page 96.13-19.

[180]  Transcript day 2 page 96.25-30.

[181]  Transcript day 2 page 96.32.

[182]  Transcript day 2 pages 98.46-99.13.

[183]  Transcript day 3 pages 4-5.

[184]  Transcript day 3 page 5.39.

[185]  Transcript day 3 page 5.45.

[186]  Transcript day 3 page 6.2-10.

[187]  Transcript day 3 page 6.24.

[188]  Transcript day 3 page 6.32.

[189]  Transcript day 3 pages 6.46-7.2.

[190]  This was stated by Counsel as 2016, however it is likely 2017.

[191]  Transcript day 3 pages 7.4-15.42.

[192]  This was stated by Counsel as 2016, however it is likely 2017.

[193]  Transcript day 3 pages 16-18.

[194]  Transcript day 3 page 18.35.

[195]  Transcript day 3 page 19.5-22.

[196]  Transcript day 3 page 20.1.

[197]  Transcript day 3 page 20.15-21.

[198]  Transcript day 3 page 21.10-17.

[199]  Transcript day 3 page 21.25-34.

[200]  Transcript day 3 page 21.36.

[201]  Transcript day 3 page 21.40.

[202]  Transcript day 3 page 22.7-10.

[203]  Transcript day 3 page 22.12.

[204]  Transcript day 3 page 22.21.

[205]  Transcript day 3 page 22.30-39.

[206]  Transcript day 3 page 23.1.

[207]  Transcript day 3 page 23.7-31.

[208]  Transcript day 3 page 23.34.

[209]  Transcript day 3 page 24.5.

[210]  Transcript day 3 page 24.10-42.

[211]  Transcript day 3 page 24.46.

[212]  Transcript day 3 page 25.8.

[213]  Transcript day 3 page 25.20- 28.

[214]  Transcript day 3 page 26.1-29.

[215]  Transcript day 3 page 26.45.

[216]  Transcript day 3 page 32.15.

[217]  Transcript day 3 page 33.27-42.

[218]  Transcript day 3 page 33.46.

[219]  Transcript day 3 page 40.4.

[220]  Transcript day 3 page 40.6.

[221]  Transcript day 3 page 45.35-39.

[222]  Transcript day 3 page 46.42.

[223]  Transcript day 3 page 47.4.

[224]  Transcript day 3 page 47.12.

[225]  Transcript day 3 page 47.35.

[226]  Transcript day 3 page 48.1.

[227]  Transcript day 3 page 48.19.

[228]  Transcript day 3 page 48.22.

[229]  Transcript day 3 page 48.30.

[230]  Transcript day 3 page 50.5.

[231]  Transcript day 3 page 50.35.

[232]  Transcript day 3 page 51.22.

[233]  Transcript day 3 page 51.10.

[234]  Transcript day 3 page 52.38.

[235]  Transcript day 3 page 53.45.

[236]  Transcript day 3 page 54.2-25.

[237]  Transcript day 3 page 56.25.

[238]  Transcript day 3 page 56.27.

[239]  Transcript day 3 page 57.35.

[240]  Transcript day 3 page 58.6-12.

[241]  Transcript day 3 page 58. 16-32.

[242]  Transcript day 3 pages 58.41-59.12.

[243]  Transcript day 3 pages 59-60.

[244]  Transcript day 3 page 61.10.

[245]  Transcript day 3 page 69.8.

[246]  Transcript day 3 pages 69.11-70.39.

[247]  Transcript day 3 page 70.41-72.6.

[248]  Transcript day 3 page 72.32.

[249]  Transcript day 3 pages 72.43-73.2.

[250]  Transcript day 3 page 72.15.

[251]  Transcript day 3 page 73.17-47.

[252]  Transcript day 3 page 76.15-25.

[253]  Transcript day 3 page 77.1.

[254]  Transcript day 3 page 77.40.

[255]  Transcript day 3 page 79.33-42.

[256]  Transcript day 3 page 80.17.

[257]  Transcript day 3 page 80.35.

[258]  Transcript day 3 page 80.41.

[259]  Transcript day 3 page 81.7.

[260]  Transcript day 3 page 81.35.

[261]  Transcript day 3 pages 81.42-82.10.

[262]  Transcript day 3 page 82.20-25.

[263]  Transcript day 3 pages 82.35-83.35.

[264]  Transcript day 3 pages 83.40-84.15.

[265]  Transcript day 3 page 85.20.

[266]  Transcript day 3 pages 85.25-86.4.

[267]  Transcript day 3 pages 88.40-89.12.

[268]  Transcript day 3 pages 89.20-90.30.

[269]  Transcript day 3 pages 91.32-92.3.

[270]  Transcript day 3 page 92.5-30.

[271]  Transcript day 3 page 92.37.

[272]  Transcript day 3 page 98.35.

[273]  Transcript day 3 page 99.20.

[274]  Transcript day 3 page 100.5.

[275]  Transcript day 4 page 25.35-39.

[276]  Transcript day 4 page 26.1-15.

[277]  Transcript day 4 page 26.22.

[278]  Transcript day 4 page 29.22.

[279]  Transcript day 4 page 26.31.

[280]  Transcript day 4 pages 29-30.

[281]  Transcript day 4 page 31.25.

[282]  Transcript day 4 pages 32-33.

[283]  Transcript day 4 page 33.36.

[284]  Transcript day 4 page 34.5-19.

[285]  Transcript day 4 page 34.25.

[286]  Transcript day 4 page 34.42.

[287]  Transcript day 4 page 35.5-20.

[288]  Transcript day 4 page 36.25.

[289]  Transcript day 4 pages 37.1-38.1.

[290]  Transcript day 4 page 38.17.

[291]  Transcript day 4 page 38.3.

[292]  Transcript day 4 page 39.35-45.

[293]  Transcript day 4 pages 40.12-41.46.

[294]  Transcript day 4 page 42.4.

[295]  Transcript day 4 page 43.35.

[296]  Transcript day 4 pages 44.37-45.14.

[297]  Transcript day 4 page 45.25.

[298]  Transcript day 4 pages 45.41-46.10.

[299]  Transcript day 4 pages 46-47.

[300]  Transcript day 4 page 50.29.

[301]  Transcript day 4 page 50.35.

[302]  Transcript day 4 page 50.36.

[303]  Transcript day 4 page 51.46.

[304]  Transcript day 4 page 54.11.

[305]  Transcript day 4 page 54.20.

[306]  Transcript day 4 page 56.15-23.

[307]  Transcript day 4 page 54.25-30.

[308]  Transcript day 4 page 61.5.

[309]  Transcript day 4 page 63.15-20.

[310]  Transcript day 4 page 64.30.

[311]  Transcript day 4 page 65.15.

[312]  Transcript day 4 page 65.25.

[313]  Transcript day 4 page 65.40.

[314]  Transcript day 4 page 66.10.

[315]  Transcript day 4 page 67.40-45.

[316]  Transcript day 4 page 68.5.

[317]  Transcript day 4 page 68.19.

[318]  Transcript day 4 page 68.30.

[319]  Transcript day 4 page 69.31.

[320]  Transcript day 4 page 70.5.

[321]  Transcript day 4 page 70.9-20.

[322]  Transcript day 4 page 70.22-35.

[323]  Transcript day 4 pages 70.40-71.41.

[324]  Transcript day 4 page 72.3.

[325]  Transcript day 4 page 72.12.

[326]  Transcript day 4 pages 72-88.

[327]  Exhibit 27.

[328]  Exhibit 26.

[329]  Exhibit 30.

[330]  Exhibit 28.

[331]  Exhibit 29.

[332]  Exhibit 30.

[333]  Transcript day 4 pages 73.20-77.1

[334]  Transcript day 4 page 78.45.

[335]  Transcript day 4 page 88.26-29.

[336]  Transcript day 4 page 88.30.

[337]  Transcript day 4 page 111.35-47.

[338]  Transcript day 4 page 112.10-24.

[339]  Transcript day 4 pages 114.40-115.5.

[340]  Transcript day 4 page 115.25.

[341]  Exhibit 30. Transcript day 4 page 115. 

[342]  Transcript day 4 page 116.15-30.

[343]  Transcript day 4 pages 117-118.45.

[344]  Transcript day 4 page 119.5.

[345]  Transcript day 4 page 119.20.

[346]  Transcript day 4 page 119.30.

[347]  Transcript day 4 page 120.15.

[348]  Transcript day 4 page 120.40.

[349]  Transcript day 4 pages 121.45-122.1.

[350]  Transcript day 4 page 122.5-25.

[351]  Transcript day 4 page 122.29.

[352]  Transcript day 4 page 123.21.

[353]  Transcript day 4 page 123.25.

[354]  Transcript day 4 page 124.45.

[355]  Transcript day 4 page 101.35.

[356]  Transcript day 4 page 101.42.

[357]  Transcript day 4 pages 102.12-103.40.

[358]  Transcript day 6 page 24.10.

[359]  Transcript day 6 page 24.20.

[360]  Transcript day 6 page 24.30.

[361]  Transcript day 6 page 24.40.

[362]  Transcript day 6 page 24.45.

[363]  Transcript day 6 page 25.6-14.

[364]  Transcript day 6 page 25.25.

[365]  Transcript day 4 page 126.34.

[366]  Transcript day 4 page 126.42.

[367]  Transcript day 4 page 128.15.

[368]  Transcript day 4 pages 128.42 and 129.19.

[369]  Transcript day 4 page 129.22.

[370]  Transcript day 4 page 129.39-45.

[371]  Transcript day 4 page 131.6-12.

[372]  Transcript day 4 page 131.15-22.

[373]  Transcript day 4 page 133.30.

[374]  Transcript day 4 pages 133.35 and 136.25.

[375]  Transcript day 4 page 137.17-40.

[376]  Transcript day 4 pages 137.45-138.3.

[377]  Transcript day 4 page 138.25.

[378]  Transcript day 4 page 141.1-13.

[379]  Exhibit 34. Transcript day 5 page 5.15.

[380]  Transcript day 5 page 6.5-10. 

[381]  Transcript day 5 page 6.17.

[382]  Transcript day 5 page 6.35.

[383]  Transcript day 5 page 7.16-27.

[384]  Transcript day 5 page 7.30-35.

[385]  Transcript day 5 page 8.1.

[386]  Transcript day 5 page 8.6.

[387]  Transcript day 5 page 8.14.

[388]  Transcript day 5 page 8.25-33.

[389]  Transcript day 5 page 8.45.

[390]  Transcript day 5 page 9.1.

[391]  Transcript day 5 page 9.5.

[392]  Transcript day 5 page 9.10-21.

[393]  Transcript day 5 page 9.27-36.

[394]  Transcript day 5 page 9.40.

[395]  Transcript day 5 page 10.30-32.

[396]  Transcript day 5 page 11.36.

[397]  Transcript day 5 page 12.7.

[398]  Transcript day 5 page 12.12.

[399]  Transcript day 5 page 12.15.

[400]  Transcript day 5 page 12.25.

[401]  Transcript day 5 page 12.32.

[402]  Transcript day 5 page 12.35.

[403]  Transcript day 5 page 13.15.

[404]  Transcript day 5 page 13.11.

[405]  Transcript day 5 page 14.7.

[406]  Transcript day 5 page 15.30.

[407]  Transcript day 5 page 16.10.

[408]  Transcript day 4 page 142.40-45.

[409]  Transcript day 6 page 4.11.

[410]  Exhibit 37.

[411]  Transcript day 6 page 4.33.

[412]  Transcript day 6 page 4.42.

[413]  Transcript day 6 page 4.45.

[414]  Transcript day 6 page 4.46.

[415]  Transcript day 6 page 5.5.

[416]  Transcript day 6 page 5.17.

[417]  Transcript day 6 pages 5.45-6.15.

[418]  Transcript day 6 page 6.28.

[419]  Transcript day 6 page 7.30.

[420]  Transcript day 6 page 7.37.

[421]  Transcript day 6 page 7.45.

[422]  Transcript day 6 page 8.35.

[423]  Transcript day 6 page 9.5.

[424]  Transcript day 6 page 9.11.

[425]  Transcript day 6 page 9.17.

[426]  Transcript day 6 page 12.5.

[427]  Transcript day 6 page 12.11.

[428]  Transcript day 6 page 12.19-37.

[429]  Transcript day 6 page 12.41.

[430]  Transcript day 6 page 13.5.

[431]  Transcript day 6 page 13.25.

[432]  Transcript day 6 page 13.26.

[433]  Transcript day 6 page 13.35.

[434]  Transcript day 6 pages 13.45-14.5.

[435]  Transcript day 6 page 14.10-20.

[436]  Transcript day 6 page 14.25.

[437]  Transcript day 6 page 14.31.

[438]  Transcript day 6 page 14.40.

[439]  Transcript day 6 page 14.44.

[440]  Transcript day 6 page 15.3.

[441]  Transcript day 6 page 15.20-35.

[442]  Transcript day 6 page 15.17.

[443]  Transcript day 6 page 16.36.

[444]  Transcript day 6 page 16.45.

[445]  Transcript day 6 page 17.3.

[446]  Transcript day 6 page 17.15.

[447]  Transcript day 6 page 17.21.

[448]  Transcript day 6 page 26.35.

[449]  Transcript day 6 page 26.45.

[450]  Transcript day 6 page 27.21.

[451]  Transcript day 6 page 27.29.

[452]  Transcript day 6 page 27.35.

[453]  Transcript day 6 page 27.40-45.

[454]  Transcript day 6 page 28.5-15.

[455]  Transcript day 6 page 28.35.

[456]  Transcript day 6 page 29.1-12.

[457]  Transcript day 6 page 29.32.

[458]  Transcript day 6 page 29.42.

[459]  Transcript day 6 page 30.5.

[460]  Transcript day 6 pages 30.40-31.27.

[461]  Transcript day 6 page 31.30-40.

[462]  Transcript day 6 page 32.20-45.

[463]  Transcript day 6 page 33.10.

[464]  Transcript day 6 page 33.22.

[465]  Transcript day 6 page 33.28.

[466]  Transcript day 6 page 33.32.

[467]  Transcript day 6 page 34.40.

[468]  Transcript day 6 page 36.32.

[469]  Transcript day 6 page 36.35-44.

[470]  Transcript day 6 page 36.43.

[471]  Transcript day 6 pages 36.45-37.3.

[472]  Transcript day 6 pages 37.25-38.15.

[473]  Transcript day 6 page 39.42.

[474]  Transcript day 6 page 38.15.

[475]  Transcript day 6 page 38.45.

[476]  Transcript day 6 page 39.35.

[477]  Transcript day 6 page 39.35.

[478]  Transcript day 6 page 41.20.

[479]  Transcript day 6 page 41.23.

[480]  Transcript day 6 page 41.25.

[481]  Transcript day 6 page 41.32-45.

[482]  Transcript day 6 page 42.25.

[483]  Transcript day 6 page 43.7.

[484]  Transcript day 6 pages 43.25-45.

[485]  Transcript day 6 page 44.30.

[486]  Transcript day 6 page 44.37.

[487]  Transcript day 6 pages 44.45-45.1.

[488]  Transcript day 6 page 45.5.

[489]  Transcript day 6 page 45.10.

[490]  Transcript day 6 page 45.20-27.

[491]  Transcript day 6 page 45.30-41.

[492]  Transcript day 6 page 47.42.

[493]  Transcript day 6 page 48.10-19.

[494]  Transcript day 6 page 49.5-45. The relevance of this evidence is the plaintiff conceded that she was told Ms Callan had broken her hip and was left untreated for 24 hours.

[495]  Transcript day 6 page 50.32.

[496]  Transcript day 6 page 51.37.

[497]  Transcript day 6 page 52.20.

[498]  Transcript day 6 pages 53.26-55.21.

[499]  Transcript day 6 pages 55.25-56.25.

[500]  Transcript day 6 page 57.41.

[501]  Transcript day 6 page 57.45.

[502]  Transcript day 6 page 58.35.

[503]  Transcript day 6 page 62.10.

[504]  Transcript day 6 page 62.16.

[505]  Transcript day 6 page 63.40.

[506]  Transcript day 6 page 64.15.

[507]  Transcript day 6 page 64.18.

[508]  Transcript day 6 page 64.26.

[509]  Transcript day 6 page 65.10.

[510]  Transcript day 6 page 66.10.

[511]  Transcript day 6 page 66.14.

[512]  Transcript day 6 page 69.26.

[513]  Transcript day 6 page 73.30.

[514]  Transcript day 6 pages 73.35-74.20.

[515]  Transcript day 6 page 74.26.

[516]  Transcript day 6 page 74.40.

[517]  Transcript day 6 page 75.25-45.

[518]  Transcript day 6 page 76.5-15.

[519]  The notice to attend meeting is Exhibit 40.

[520]  Transcript day 6 pages 77.15-78.17.

[521]  Transcript day 6 pages 78.20-81.7.

[522]  Transcript day 6 page 81.12.

[523]  Transcript day 6 page 81.42.

[524]  Transcript day 6 pages 81.45-85.30.

[525]  Transcript day 6 page 85.42.

[526]  Transcript day 6 page 86.1.

[527]  Transcript day 6 page 86.5-30.

[528]  Transcript day 6 page 87.5.

[529]  Transcript day 6 pages 87.20-89.1.

[530]  Transcript day 6 page 89.35.

[531]  Transcript day 6 page 90.16.

[532]  Transcript day 6 page 90.25.

[533]  Transcript day 6 page 92.1.

[534]  Transcript day 6 pages 90.45-91.30.

[535]  Transcript day 6 page 93.10-47.

[536]  Transcript day 6 pages 94.5-95.18.

[537]  Transcript day 6 page 95.27.

[538]  Transcript day 6 page 95.42.

[539]  Transcript day 6 page 96.32.

[540]  Transcript day 6 page 98.5-8.

[541]  Transcript day 6 pages 99.45-100.1.

[542]  Transcript day 6 page 100.19.

[543]  Transcript day 6 page 101.21.

[544]  Transcript day 6 page 102.1.

[545]  Transcript day 6 page 102.20.

[546]  Transcript day 6 page 102.32.

[547]  Transcript day 6 page 103.30.

[548]  Transcript day 6 page 103.30.

[549]  Transcript day 6 pages 103.42-104.40.

[550]  Transcript day 6 page 104.42.

[551]  Transcript day 6 page 105.10.

[552]  Transcript day 6 pages 105.37-106.47.

[553]  Transcript day 6 page 107.5-26.

[554]  Transcript day 6 page 108.1-5.

[555]  Transcript day 6 page 108.21.

[556]  Transcript day 6 pages 108.45-109.1.

[557]  Transcript day 6 page 109.27.

[558]  Transcript day 6 page 110.10-40.

[559]  Transcript day 6 page 111.9.

[560]  Transcript day 6 page 111.11-20.

[561]  Transcript day 6 page 112.5-30.

[562]  Transcript day 6 page 113.35.

[563]  Transcript day 6 page 114.15.

[564]  Transcript day 6 page 114.17.

[565]  Transcript day 6 page 115.37.

[566]  Transcript day 6 page 115.15-30.

[567]  Transcript day 6 page 115.41.

[568]  Transcript day 6 pages 116-117.

[569]  Transcript day 6 page 119.45.

[570]  Transcript day 6 page 120.10.

[571]  Transcript day 6 page 120.25-38.

[572]  Transcript day 6 page 121.42.

[573]  Transcript day 6 page 122.10-47.

[574]  Transcript day 6 page 125.45.

[575]  Transcript day 7 page 3.41.

[576]  Transcript day 7 page 4.25.

[577]  Transcript day 7 page 4.40-45.

[578]  Transcript day 7 page 5.19.

[579]  Transcript day 7 page 5.11.

[580]  Transcript day 7 page 6.20.

[581]  Transcript day 7 page 6.45. Exhibit 49. 

[582]  Transcript day 7 page 10.22.

[583]  Transcript day 7 page 10.31.

[584]  Transcript day 7 page 10.42.

[585]  Transcript day 7 page 11.6.

[586]  Transcript day 7 page 11.31.

[587]  Transcript day 7 page 11.45.

[588]  Transcript day 7 pages 13.45-14.6.

[589]  Transcript day 7 page 15.25.

[590]  Transcript day 7 page 17.25-41.

[591]  Transcript day 7 page 18.10.

[592]  Transcript day 7 page 18.15.

[593]  Transcript day 7 page 18.17-40.

[594]  Transcript day 7 page 18.42.

[595]  Transcript day 7 page 19.5-10.

[596]  Transcript day 7 page 19.15-42.

[597]  Transcript day 7 page 21.10.

[598]  Transcript day 7 page 25.40-45.

[599]  Transcript day 7 page 26.15-30.

[600]  Transcript day 7 page 27.3.

[601]  Transcript day 7 page 27.22.

[602]  Transcript day 7 page 27.30-43.

[603]  Transcript day 7 page 28.4.

[604]  Transcript day 7 page 28.20.

[605]  Transcript day 7 pages 29.40-30.10.

[606]  Transcript day 7 page 30.20-29.

[607]  Transcript day 7 page 30.40.

[608]  Exhibit R for identification.

[609]  Paragraph 18 of the Plaintiff’s Submissions.

[610]  Paragraph 24 of the Plaintiff’s Submissions.

[611]  Paragraph 31 of the Plaintiff’s Submissions.

[612]  Paragraph 48(a) and paragraphs 108-113 of the Plaintiff’s Submissions. 

[613]  Paragraph 48(b) of the Plaintiff’s Submissions. 

[614]  Paragraph 48(c)(iii) of the Plaintiff’s Submissions. 

[615]  Paragraph 48(d) of the Plaintiff’s Submissions. 

[616]  Paragraph 48(e) of the Plaintiff’s Submissions. 

[617]  Paragraph 48(f) of the Plaintiff’s Submissions. 

[618]  Paragraph 48(h) of the Plaintiff’s Submissions. 

[619]  Paragraph 48(i) of the Plaintiff’s Submissions. 

[620]  Paragraph 48(j) of the Plaintiff’s Submissions. 

[621]  Paragraph 48(k) of the Plaintiff’s Submissions. 

[622]  Paragraph 51 of the Plaintiff’s Submissions.

[623]  Paragraph 63 of the Plaintiff’s Submissions. 

[624]  Paragraph 64 of the Plaintiff’s Submissions. 

[625]  Paragraph 67 of the Plaintiff’s Submissions. 

[626]  Paragraphs 68 and 69 of the Plaintiff’s Submissions. 

[627]  Paragraph 70 of the Plaintiff’s Submissions. 

[628]  Paragraph 71 of the Plaintiff’s Submissions. 

[629]  Paragraph 72 of the Plaintiff’s Submissions. 

[630]  Paragraph 74 of the Plaintiff’s Submissions. 

[631]  Paragraph 78 of the Plaintiff’s Submissions. 

[632]  Paragraph 79 of the Plaintiff’s Submissions. 

[633]  Paragraph 80 of the Plaintiff’s Submissions. 

[634]  Paragraph 81 of the Plaintiff’s Submissions. 

[635]  Paragraph 82 of the Plaintiff’s Submissions. 

[636]  Paragraph 83 of the Plaintiff’s Submissions. 

[637]  Paragraph 84 of the Plaintiff’s Submissions. 

[638]  Paragraph 85 of the Plaintiff’s Submissions. 

[639]  Paragraph 86 of the Plaintiff’s Submissions. 

[640]  Paragraphs 87 and 88 of the Plaintiff’s Submissions. 

[641]  Paragraph 89 of the Plaintiff’s Submissions. 

[642]  Paragraph 90 of the Plaintiff’s Submissions. 

[643]  Paragraph 95 of the Plaintiff’s Submissions. 

[644]  Paragraph 98 of the Plaintiff’s Submissions. 

[645]  Paragraph 99 of the Plaintiff’s Submissions. 

[646]  Paragraphs 102 and 103 of the Plaintiff’s Submissions. 

[647]  Paragraphs 106 and 107 of the Plaintiff’s Submissions. 

[648]  Paragraphs 108-111 of the Plaintiff’s Submissions. 

[649]  Paragraph 112 of the Plaintiff’s Submissions. 

[650]  Paragraph 114 of the Plaintiff’s Submissions.

[651]  Paragraphs 115-116 of the Plaintiff’s Submissions.

[652]  Paragraphs 117-118 of the Plaintiff’s Submissions.

[653]  Paragraph 119 of the Plaintiff’s Submissions.

[654]  Paragraphs 120-121 of the Plaintiff’s Submissions.

[655]  Paragraphs 122-133 of the Plaintiff’s Submissions.

[656]  Paragraph 138 of the Plaintiff’s Submissions. 

[657]  Paragraphs 134-146 of the Plaintiff’s Submissions.

[658]  Paragraph 150 of the Plaintiff’s Submissions.

[659]  Paragraph 153 of the Plaintiff’s Submissions.

[660]  Paragraph 156 of the Plaintiff’s Submissions.

[661]  Paragraphs 157-164 of the Plaintiff’s Submissions.

[662]  Paragraph 165-175 of the Plaintiff’s Submissions.

[663]  Paragraphs 186 and 187 of the Plaintiff’s Submissions.

[664]  Paragraphs 188-192 of the Plaintiff’s Submissions.

[665]  Paragraphs 193-197 of the Plaintiff’s Submissions.

[666]  Paragraph 198 of the Plaintiff’s Submissions.

[667]  Paragraphs 199-201 of the Plaintiff’s Submissions.

[668]  Paragraphs 202-204 of the Plaintiff’s Submissions.

[669]  Paragraph 208 of the Plaintiff’s Submissions.

[670]  Paragraph 211 of the Plaintiff’s Submissions.

[671]  Paragraph 212 of the Plaintiff’s Submissions.  The details of this are referred to at paragraphs 213-Paragraph 218 of the Plaintiff’s Submissions.

[672]  Paragraph 220 of the Plaintiff’s Submissions.

[673]  Paragraph 221 of the Plaintiff’s Submissions.

[674]  Paragraph 222 of the Plaintiff’s Submissions.

[675]  Paragraph 258 of the Plaintiff’s Submissions.

[676]  Paragraph 260 of the Plaintiff’s Submissions.

[677]  Transcript day 8 page 32.35. 

[678]  Transcript day 8 page 35.42. 

[679]  Transcript day 8 page 36.1. 

[680]  Transcript day 8 page 39.15-17. 

[681]  Transcript day 8 page 40.45. 

[682]  Transcript day 8 page 43.7-23. 

[683]  Transcript day 8 page 43. 

[684]  Transcript day 8 page 44.1-9. 

[685]  Transcript day 8 page 44. 

[686]  Transcript day 8 pages 44-48. 

[687]  Transcript day 8 page 48.45. 

[688]  Transcript day 8 page 50. 

[689]  Transcript day 8 page 52.9. 

[690]  Transcript day 8 page 52.20-23. 

[691]  Transcript day 8 page 53.12. 

[692]  Transcript day 8 page 54.29-41. 

[693]  Transcript day 8 page 56.4-9. 

[694]  Transcript day 8 page 56.35. 

[695]  Transcript day 8 page 56.42. 

[696]  Transcript day 8 pages 57-58. 

[697]  Transcript day 8 page 58.37. 

[698]  Transcript day 8 page 61.22. 

[699]  Transcript day 8 page 63.20. 

[700]  Transcript day 8 page 64.4. 

[701]  Transcript day 8 page 64.27. 

[702]  Transcript day 8 page 65.7. 

[703]  Transcript day 8 page 66.5. 

[704]  Transcript day 8 pages 66-67. 

[705]  Transcript day 8 page 70. 

[706]  Transcript day 8 page 72.44. 

[707]  Transcript day 8 page 73.10. 

[708]  Transcript day 8 pages 74-75. 

[709]  Transcript day 8 pages 76-77. 

[710]  Transcript day 8 page 78.5. 

[711]  Transcript day 8 page 78.16-18. 

[712]  Transcript day 8 pages 79-80. 

[713]  Transcript day 8 pages 81-82. 

[714]  Transcript day 8 pages 83-84. 

[715]  Transcript day 8 page 86.12. 

[716]  Transcript day 8 page 87.10. 

[717]  Transcript day 8 pages 87-88. 

[718]  Transcript day 8 pages 89-91. 

[719]  Transcript day 8 page 91.15. 

[720]  Transcript day 8 page 92. 

[721]  Transcript day 8 page 99.5-8.

[722]  Transcript day 8 page 99.16-28.

[723]  Transcript day 8 page 100.3-6.

[724]  Transcript day 8 page 100.14-21.

[725]  Transcript day 8 page 100.25-31.

[726]  Transcript day 8 pages 98-101. 

[727]  Transcript day 8 pages 101-102. 

[728]  Transcript day 8 pages 110-112. 

[729]  Transcript day 8 page 113-117. 

[730]  Transcript day 8 page 114-117. 

[731]  Exhibit Q for identification.

[732]  Paragraph 1(a) of the Defendant’s Submissions.

[733]  Paragraph 1(b) of the Defendant’s Submissions.

[734]  Paragraph 1(d) of the Defendant’s Submissions.

[735]  Paragraph 2(a)(i) of the Defendant’s Submissions.

[736]  Paragraph 2(a)(ii) of the Defendant’s Submissions.

[737]  Paragraph 2(a)(iii) of the Defendant’s Submissions.

[738]  Paragraph 2(b)(i) of the Defendant’s Submissions.

[739]  Paragraph 2(b)(ii) of the Defendant’s Submissions.

[740]  Paragraph 2(c)(i) of the Defendant’s Submissions.

[741]  Paragraph 2(c)(i) of the Defendant’s Submissions.

[742]  Paragraph 2(c)(ii) of the Defendant’s Submissions.

[743]  Paragraph 2(c)(iii) of the Defendant’s Submissions.

[744]  Paragraph 3(a) of the Defendant’s Submissions.

[745]  Paragraph 3(b) of the Defendant’s Submissions.

[746]  Paragraph 3(c) of the Defendant’s Submissions.

[747]  [2000] EWHC QB 115.

[748]  (1924) 25 SR (NSW) 4, 21-2 (Street ACJ).

[749]  [2018] 1 Qd R 19; [2017] QCA 70.

[750]  Paragraph 4 of the Defendant’s Submissions.

[751]  Paragraph 5(i) of the Defendant’s Submissions.

[752]  Paragraph 5(ii) of the Defendant’s Submissions.

[753]  Paragraph 6 of the Defendant’s Submissions.

[754]  Paragraph 7 of the Defendant’s Submissions.

[755]  Transcript day 8 page 3.32.

[756]  Transcript day 8 page 3.46. 

[757]  Transcript day 8 page 4.32. 

[758]  Transcript day 8 page 5.42. 

[759]  Transcript day 8 page 7.5. 

[760]  Transcript day 8 page 7.35-38. 

[761]  Transcript day 8 page 9.3. 

[762]  Transcript day 8 pages 9-14. 

[763]  Transcript day 8 page 14.1. 

[764]  Transcript day 8 page 15.1. 

[765]  Transcript day 8 page 15.20. 

[766]  Transcript day 8 page 17.11. 

[767]  Transcript day 8 page 17.31. 

[768]  Transcript day 8 page 19.40. 

[769]  Transcript day 8 pages 21-22. 

[770]  Transcript day 8 page 23.30. 

[771]  Transcript day 8 page 24.30. 

[772]  Transcript day 8 page 24.42. 

[773]  Transcript day 8 page 25.29. 

[774]  Transcript day 8 page 26.11. 

[775]  Transcript day 8 page 28. 

[776]  Transcript day 8 page 29.4-6. 

[777]  Transcript day 8 page 30.12. 

[778]  Transcript day 8 page 31.1. 

[779]  Transcript day 8 page 118.30. 

[780]  Transcript day 8 page 118.42. 

[781]  Transcript day 8 page 119.18. 

[782]  Transcript day 8 page 120.1. 

[783]  Transcript day 8 page 120.17.

[784]  Transcript day 8 page 120.40. 

[785]  Transcript day 8 page 120.45. 

[786]  Transcript day 8 page 121.25. 

[787]  Transcript day 8 page 121.42. 

[788]  Exhibits S and T for identification.

[789]  Exhibit T for identification.

[790]  Paragraph 9, Exhibit V for identification. 

[791]  Exhibit U for identification.

[792]  Paragraph 4, Exhibit U for identification.

[793]  Exhibit V for identification.

[794]  Paragraph 3, Exhibit V for identification.

[795]  Paragraph 5, Exhibit V for identification.

[796]  Paragraph 7, Exhibit V for identification.

[797]  Paragraph 8, Exhibit V for identification.

[798]  (1938) 60 CLR 336.

[799]  (1893) 6 R 67 at pp 70-71.

[800]  (2011) 81 NSWLR 498 at [43]-[45].

[801]  (2010) 243 CLR 361 at [71]-[72].

[802]Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361 at [71] and Bale v Mills (2011) 81 NSWLR 498 at [48].

[803]  Transcript day 1 page 34.1-9.

[804]  Transcript day 1 pages 28.26-29.12.

[805]  Transcript day 1 page 33.20-35.

[806]  Transcript day 1 pages 28.26.

[807]  Transcript day 1 page 33.20-35.

[808]  Transcript day 1 page 16.1-4.

[809]  Exhibit 49.

[810]  Transcript day 2 page 22.1.

[811]  Transcript day 1 page 44.46.

[812]  Transcript day 7 page 19.15-42.

[813]  See the denial transcript day 7 page 6.20 and the admission transcript day 7 page 6.22.

[814]  Transcript day 7 pages 14.40 to 15.10.

[815]  Transcript day 7 page 26.30.

[816]  Transcript day 7 pages 30-31.

[817]  Transcript day 1 page 16.26.

[818]  Transcript day 3 page 54 and page 58.10-14. 

[819]  Transcript day 3 page 55.25.

[820]  Transcript day 3 page 54.2-25.

[821]  Transcript day 3 page 58.15-31.

[822]  Transcript day 3 pages 81.41-45.

[823]  Ms Carter day 6 page 39.37.

[824]  Transcript day 3 page 58.15-31.

[825]  Transcript day 3 pages 59-60 and 69.8

[826]  Transcript day 3 page 98.35.

[827]  Transcript day 4 page 63.15-20.

[828]  Exhibits 19, 20, 22 – 32. 

[829]  Transcript day 3 pages 82.35-83.35.

[830]  Dr Burrett day 6 page 12.19-27; Mr Shipley day 4 pages 117-118; Ms Luder day 4 page 54.5-30; Ms Carter day 4 page 54.30, day 6 pages 74.26, 105.10.

[831]  Transcript day 3 page 99.20.

[832]  Transcript day 6 page 62.10.

[833]  Transcript day 3 page 92.5-30.

[834]  Transcript day 4 pages 46-47 and 51.46.

[835]  Transcript day 4 page 50.30.

[836]  Transcript day 3 page 92.37.

[837]  Transcript day 4 pages 65.15 and 68.5-19.

[838]  Transcript day 4 page 63.15-20.

[839]  Transcript day 4 pages 117-118.45.

[840]  Transcript day 4 page 66.10.

[841]  Transcript day 6 page 58.35.

[842]  Transcript day 4 page 101.

[843]  Transcript day 4 page 101.42; Transcript day 6 page 24.45.

[844]  Transcript day 6 page 27.35.

[845]  Transcript day 6 page 25.10.

[846]  Transcript day 4 pages 128.41 and 129.19.

[847]  Transcript day 4 page 126.42.

[848]  Transcript day 4 page 128.15.

[849]  Transcript day 6 pages 53.30-56.25.

[850]  Transcript day 4 pages 133.35 and 136.25.

[851]  Transcript day 4 pages 137.45-138.1.

[852]  Transcript day 4 page 138.25.

[853]  Transcript day 1 page 48.32.

[854]  Transcript day 4 page 142.40.

[855]  Transcript day 4 page 142.45.

[856]  Transcript day 6 page 4.41.

[857]  Transcript day 6 page 4.45.

[858]  Transcript day 6 page 4.46.

[859]  Transcript day 6 page 13.26.

[860]  Transcript day 6 page 33.22.

[861]  Transcript day 6 page 36.40.

[862]  Transcript day 6 page 36.35.

[863]  Transcript day 6 page 37.37-38.

[864]  Transcript day 6 page 37.29.

[865]  Transcript day 6 pages 37.25-38.15.

[866]  Transcript day 6 page 34.40.

[867]  Transcript day 6 page 38.45.

[868]  Transcript day 6 page 41.24.

[869]Briginshaw v Briginshaw (1938) 60 CLR 336 at p 361-362; [1938] HCA 34.

[870]  Transcript day 6 page 49.5-45 and Transcript day 2 pages 41.25-42.15.

[871]  Transcript day 6 page 49.17.

[872]  Transcript day 6 pages 53.30-55.22.

[873]  Transcript day 6 pages 55.29.

[874]  Transcript day 6 pages 56.3.

[875]  Transcript day 6 pages 56.24.

[876]  Transcript day 6 page 57.41.

[877]  Transcript day 6 page 58.35; Transcript day 6 page 62.10 and Transcript day 6 page 65.10.

[878]  Transcript day 6 page 65.10.

[879]  Transcript day 6 page 76.5-15.

[880]  Transcript day 6 page 120.10.

[881]  Transcript day 6 page 57.

[882]  With the exception of the non-reporting allegation.

[883]  Evidence of Ms Hanson transcript day 6 page 31.30-40.

[884]David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at p 238.

[885]Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [130]; [2016] NSWCA 283. 

[886]  (2018) 92 ALJR 619; [2018] HCA 25 at [31]. 

[887]Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52 at [11] and [17]. 

[888]Jones v Skelton [1963] 1 WLR 1362 at p 1371; (1963) SR (NSW) 644. 

[889]Hockey v Fairfax Media Publications Pty Limited (2015) 332 ALR 257; [2015] FCA 652 at [73]. 

[890]Amalgamated Television v Marsden (1998) 43 NSWLR 158 at p 165.B.

[891]  [2003] 1 Qd R 81 at [51]; [2001] QCA 122.

[892]Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [60].

[893]  Paragraph 15 of the plaintiff’s submissions.

[894]O’Reilly v Edgar [2019] QSC 24 at [32].

[895]Amalgamated Television v Marsden (1998) 43 NSWLR 158 at p 165.G.

[896]Amalgamated Television v Marsden (1998) 43 NSWLR 158 at p 165.E.

[897]Amalgamated Television v Marsden (1998) 43 NSWLR 158 at p 169.A.

[898]  [1963] 1 WLR 1362; (1963) SR (NSW) 644 at p 651.

[899]Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at p 92 [1910] HCA 66; Queensland Newspapers Pty Ltd & Hardy v Baker [1937] St R Qd 153 at p 156. 

[900]  (2009) 238 CLR 460; [2009] HCA 16 at [5]. 

[901]Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [84].

[902]Calwell v Ipec Australia Ltd (1975) 135 CLR 321; [1975] HCA 47 at pp 332-333. 

[903]  Gately 8th edition at [778].

[904]Horrocks v Lowe [1975] AC 135 at p 149.

[905]Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [76].

[906]Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [77].

[907]Howden v Truth & Sportsman Limited (1937) 58 CLR 416 at p 420; [1937] HCA 74. 

[908]Wagner & Ors v Harbour Radio Pty Ltd & Ors (2018) ATR 82-405; [2018] QSC 201 at [439]. 

[909]Fairfax Digital Australia and New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547 at [97]; [2018] NSWCA 77.

[910]Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70 at [44]-[45].

[911]Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45 at pp 250-251.

[912]  (2004) 218 CLR 366; [2004] HCA 5 at [9]-[10].

[913]  [2012] NSWCA 230 at [62].

[914]Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; [1934] HCA 15 at p 662.

[915]Guise v Kouvelis (1947) 74 CLR 102; [1947] HCA 13 at p 114.

[916]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at p 574; [1997] HCA 25.

[917]  [2009] NSWCA 36 at [78].

[918]  (2005) ATR 81-789 at [15].

[919]  (2007) 232 CLR 245; [2007] HCA 60 at [35]-[36] and [45]. Also see Lloyd-Jones v Allen [2012] NSWCA 230 at [43].

[920]  [2016] NSWSC 1289 at [48].

[921]  (1996) 185 CLR 183; [1996] HCA 47 at p 215.5.

[922]  I refer to exhibit 16- the Chronicle articles and Exhibit 48- the Terms of Reference for the Royal Commission.

[923]Ratcliffe v Evans [1892] 2 Q.B. 524 at 530 per Bowen LJ.

[924]  [2016] 1 Qd R 89; [2014] QCA 33 at [25].

[925]  Section 34 of the Defamation Act 2005 (Q).

[926]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33.

[927]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [31].

[928]Crampton v Nugawela (1996) 41 NSWLR 176.

[929]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 per Brennan J.

[930]  $389,500 as at 1 July 2017.

[931]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33.

[932]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [25].

[933]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [46].

[934]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [47].

[935]Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33 at [49].

[936]  (2015) 332 ALR 257; [2015] FCA 652.

[937]  [2019] QSC 24 at [239].

Close

Editorial Notes

  • Published Case Name:

    Maxine Noone v Heather Mansell Brown

  • Shortened Case Name:

    Noone v Brown

  • MNC:

    [2019] QDC 133

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    02 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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