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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Hallam v O’Connor  QDC 130
GREGORY JOHN CHARLES HALLAM
LYN ELIZABETH O’CONNOR
23 of 2018
District Court at Brisbane
2 August 2019
District Court at Warwick
29 and 30 November 2018
A.the date on which the publication was taken down; or
B.in the alternative, the date the respondent sought to cause the publication to be taken down but was unable to do so.
APPLICATION – DEFAMATION – DEFENCE OF HONEST OPINION – where respondent published material on Facebook site and other sites which dealt with issues concerning government in Queensland both under her own name and that of an alias – where some of that material is said to be defamatory to the applicant – where applicant has sued respondent for damages – where applicant seeks to strike out various paragraphs of the respondent’s amended defence.
Brose v Baluskas & Ors (2018) QDC 214
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
D G Certifies Pty Ltd & Anor v Hawkesworth  QDC 88
Fraser v Holmes (2009) NSWCA 36
Harbour Radio Pty Ltd v Ahmed  260 ALR 274
Herald and Weekly Times Pty Ltd v Buckley (2009) 21 VR 661
John Fairfax Publications Pty Ltd v O’Shane (2005) NSWSC 164
Kermode v Fairfax Media Publications Pty Ltd (No 2) (2011) NSWSC 646
Pervan v North Queensland Newspapers  178 CLR 309
Robert Bax & Associates v Cavenham Pty Ltd  QCA 53
Woodco Services Pty Ltd v John Holland Pty Ltd and Ports Corporation of Queensland  QSC 264
Wride v Schulze  FCAFC 216
UCPR r 171(1)(b), r 444, r 445
Defamation Act 2005 (Qld) s 24, s 31
M Amerena and S Harburg for the Applicant
S Keim SC and R Gordon for the Respondent
King and Co for the Applicant
Guest Lawyers for the Respondent
- The applicant is the CEO of the Local Government Association of Queensland (LGAQ) and has held that position since August 1992. The respondent is a person apparently with a significant interest in local government issues and was at relevant times the administrator and a member of a Facebook group described as Council Watchers – Queensland Closed Facebook Group (CWQ page). She published material on that Facebook site and on other sites which dealt with issues concerning government in Queensland both under her own name and that of an alias, Elizabeth Kennedy. Some of that material is said to be defamatory of the applicant. The applicant has sued the respondent for damages.
- He applies to strike out various paragraphs of the respondent’s Amended Defence (“AD”). At the hearing of the matter I gave the applicant leave to amend his application to include reference in paragraph 1 of the application to paragraph 104 of the AD.
- The respondent’s publications on the CWQ page and other Facebook sites are generally said to represent the applicant as a corrupt and powerful person who wielded significant power and control over government in Queensland, especially local government.
- Proceedings were instituted last year. Although there are four respondents to the proceedings named in the applicant’s statement of claim (“SOC”), proceedings against the second and third defendants have been discontinued and in the application no relief is sought against the fourth respondent. He was at one time a member of state parliament.
- By application filed 18 October 2018, the applicant seeks to strike out, pursuant to s 171 of the UCPR, numerous paragraphs of the respondent’s AD. In some instances the applicant accepts the respondent should have liberty to replead, if he is successful in his application, but in relation to others seeks an order that the respondent does not have liberty to replead.
- The discretion to strike out pleadings under r 171 UCPR should only be exercised in clear cases where the lack of a cause of action is clearly demonstrated. See Robert Bax & Associates v Cavenham Pty Ltd  QCA 53 at  where White JA said:
“Rule 171 closely resembles the language of former O 22 r 32 Rules of the Supreme Court 1991 (Qld) which enabled a judge to strike out or amend any matter in the pleading which tended “to prejudice, embarrass, or delay, the fair trial of the action”. The word “embarrass” has not been retained. Nonetheless any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than “embarrass” the opposite party.”
- Further, in Wride v Schulze  FCAFC 216 at  the Court, in a joint judgment, said:
“In Dare v Pulham (1982) 148 CLR 658 at 664, the High Court (Murphy, Wilson, Brennan, Deane and Dawson JJ) identified the requirements of pleadings and said:
‘Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq) (1916) 22 C.L.R. 490, at p. 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron (1936) 54 C.L.R. 572, at pp. 576-577); and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 C.L.R., at pp. 517, 518; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) L.R. 25 Ind. App. 195, at p. 207).’
Further, the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A “reasonable cause of action” for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.”
- Rule 444 and rule 445 letters (being Exhibits CEH11 and CEH12 to the affidavit of Clare Hestkonig filed 10 October 2018) have been exchanged.
- The amended SOC identifies some 26 offending publications by the respondent which are described in the SOC as the 1st to 13th Elizabeth Kennedy publications and the 1st to 13th Lyn O’Connor publications. These were all published between May and December 2017.
- The respondent admits publishing those publications and also admits the immediate Facebook context in which those publications were made. Those contexts are particularised in schedules attached to the SOC.
- The respondent admits that all but two of the publications, being what are described as the 8th and 9th Elizabeth Kennedy publications, were properly understood to refer to the applicant.
- The 8th Elizabeth Kennedy publication is traversed in paras 61 to 66 of the SOC and the 9th Elizabeth Kennedy publication in paras 67 to 72 thereof. The respondent’s denials that the publications relate to the applicant, contained in paras 39 and 43 of the AD, are said to be because:
- With respect to the 8th Elizabeth Kennedy publication, the publication was expressly responsive to what are described as Doug Powell posts referred to in para 64(b) of the SOC, and it is said that in those Doug Powell posts there is no reference to the applicant, or to any other person.
- In relation to the 9th Elizabeth Kennedy publication, the publication “did not expressly refer to the plaintiff and the expression ‘the LGAQ and its subscribers’ was understood to refer to various unidentified councillors and mayors in local government in Queensland who were believed to have conducted themselves in an unlawful manner”.
- Whilst the respondent admits some of the imputations pleaded on the applicant’s behalf, most of the specific imputations pleaded have been denied. She does admit however, that 22 of the 26 publications contain defamatory matter. Those which she says do not are the 8th, 9th and 10th Elizabeth Kennedy publications and 9th Lyn O’Connor publication.
- I have referred already to the 8th and 9th Elizabeth Kennedy publications. The 10th Elizabeth Kennedy publication is referred to in paras 73 to 78 of the SOC. The 9th Lyn O’Connor publication is referred to in paras 145 to 150 thereof. The respondent’s response to those two allegations is contained in paras 46 to 49 and 96 to 100 of her AD.
- Although the respondent had originally raised a number of positive defences, those positive defences have now been abandoned, other than an alleged defence of honest opinion in relation to each of the 26 publications.
- Counsel for the applicant submits, and it was accepted by the respondent’s counsel, that the form of pleading of the honest opinion defences adopts a uniform structure. In his written submissions, counsel for the applicant takes as an example the respondent’s response to the 1st Elizabeth Kennedy publication, set out in para 12 of the AD. The allegations concerning the 1st Elizabeth Kennedy publication are set out in paras 19 to 24 of the SOC. It is alleged the publication – that the applicant should have “the biggest horse of all” to “carry his self-interest” and that the LGAQ “couldn’t give a rats about the people of QLD and the staff of Local Government” – was understood to mean, inter alia, that the applicant was motivated by self-interest and did not care about Queensland people or staff of local government.
- In response, the respondent, in para 12 of her AD, after admitting the publication contained defamatory matter, alleges:
- the defamatory matter “was an expression of an opinion of the first defendant and not a statement of fact”.
- the statement of opinion related to a matter of public interest, namely the actions of LGAQ.
- the opinion “was based on proper material”, and sets out that material, being a significant number of newspaper and similar articles, evidence of the applicant to a Crime and Corruption hearing and documents tabled in parliament by the fourth defendant and questions on notice asked by him.
- The reference to “proper material” is a reference to that term as used in s 24 and s 31 of the Defamation Act to which I shall shortly refer.
- The respondent alleges (see para 12(c) of the AD) that in reliance on those allegations she has, pursuant to the provisions of s 31 of the Defamation Act, a complete defence to the allegations set out in the 1st Elizabeth Kennedy publication.
- In relation to the defence of honest opinion concerning the other 25 publications, on some occasions there is different formulation of the particulars of the public interest alleged, and in respect of each publication the alleged proper material varies, although there appears to be significant overlap.
- The applicant’s counsel submits that the purported proper material “is not merely voluminous but gigantesque”. It is said to contain in excess of 3,000 pages at least. Indeed it is said that a further affidavit of the respondent, filed on 15 November, “continues to swell what will be revealed as … a monstrously excessive and oppressive amount of purported proper material”. The volume of the alleged proper material was not disputed.
- The application primarily concerns a challenge to the defences of honest opinion relating to each of the 26 publications. In addition however, the plaintiff seeks orders under r 171(1)(b) of UCPR that:
“(a) paragraphs 1, 34, 38 and 42 or parts thereof of the Amended Defence of the first defendant be struck out with liberty to re-plead;
- (b)further and alternatively, that paragraph 2 of parts thereof of the Amended Defence be struck out with liberty to re-plead;
- (c)further and alternatively, that paragraph 4 of parts thereof of the Amended Defence be struck out with liberty to re-plead; and
- (d)further and alternatively, that paragraph 7 of parts thereof of the Amended Defence be struck out with liberty to re-plead.”
- I shall deal first with the issues concerning the defence of honest opinion.
- As I have said, the various pleadings in the AD that the 26 allegedly defamatory comments are protected by the defence of honest opinion are substantially similar. Each relies upon the particularised “proper material” upon which it is said the honest opinion is based.
- Counsel for the applicant submits that whether a defence of “honest opinion” is in fact available is a matter for a judge. Consideration of s 31(1) of the Defamation Act raises a number of issues that must be satisfied for such a defence to be available namely;
- That the published matter, said to be defamatory, was an expression of opinion rather than a statement of fact;
- That the opinion related to a matter of public interest; and
- The opinion was based on proper material, defined in sub-section (5) of s 31 of the Act.
- The applicant submitted that the various publications in this case were statements of fact, not opinion, and that in any case the opinion was not based on proper material. He submitted that putting aside the excessive amount of purported proper material, the particularised material does not come within the definition of that term as used in the Defamation Act. Those matters were disputed.
- I accept submissions of the applicant’s counsel that in determining whether the publications were statements of fact and not of opinion, it is necessary to look at the content of the whole of the publication complained of, and not to the imputations alleged (see Fraser v Holmes (2009) NSWCA 36 especially at paragraphs 78 and 84 – 91 thereof and the observation of McCallum J in Kermode v Fairfax Media Publications Pty Ltd (No 2) (2011) NSWSC 646 at paragraph 14).
- In considering whether, at common law, a publication constitutes comment rather than a statement of fact it is necessary to consider whether the publication is or can be inferred to be a deduction, inference, conclusion, criticism, remark or observation (see John Fairfax Publications Pty Ltd v O’Shane (2005) NSWSC 164 at paragraph 25 where Giles JA adopted such an exposition from Gatley on Defamation, at paragraph 12.6 of that text.)
- In Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, Gummow, Hayne and Heydon JJ in a joint judgment said at paragraph 36;
“The question of construction or characterisation turns on whether the ordinary reasonable "recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered" – not "an exceptionally subtle" recipient, or one bringing to the task of "interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at"”.
- The second requirement to be satisfied in order to establish that a publication constituted a comment, and not a statement of fact, is that the facts at common law had to be stated in the publication or sufficiently indicated or notorious so as to enable the reader, or person to whom the matter was published, to identify that the matter was comment on those facts. The position has been held to be the same under the Act. In Herald and Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 the Victorian Court of Appeal rejected a submission that under the Act it was necessary only to show the opinion was honestly based on proper material and need not be known to the reader. At paragraph 84 of a joint judgment Nettle, Ashley and Weinberg JJA said;
“We reject that submission for two reasons. First, we do not consider that there is any difference between the common law and the statute as to the need for facts on which a comment or opinion is based to appear in the publication or otherwise be apparent to the reader. The idea of expanding the defence of comment or opinion to cases where the facts are unspecified and unknown was rejected by the Law Reform Commission (on whose report the legislation is largely based), and there is nothing in the Proposal for uniform defamation laws released by the States and Territories in July 2004 or in the proposed bill which they released in November 2004, or in the Explanatory Memorandum or Second Reading Speech which suggests any difference in that respect. To the contrary, all the indications are that the two were meant to be the same.”
- A similar approach was adopted by the New South Wales Court of Appeal in Harbour Radio Pty Ltd v Ahmed (supra) at paragraph 42 and in this Court by Muir DCJ in Brose v Baluskas & Ors (2018) QDC 214 at paragraphs 28 – 36.
- In Pervan v North Queensland Newspapers  178 CLR 309 Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ said at paragraph 327;
“But the facts may not be stated in the defamatory publication. Nevertheless, the excuse which the sub-section affords to the publication of a defamatory fair comment is not lost by the absence of a statement of the facts on which the comment is based provided the jury is satisfied that the facts on which the comment is based are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded ((43) Kemsley v. Foot (1952) AC, at p.356.). If the publication of defamatory matter is to be excused as fair comment under s.377(8), the reader must be enabled to judge for himself or herself whether it is fair. In Uren v. Australian Consolidated Press Ltd. ((44) (1969) 71 SR (NSW), at pp.34, 42, 52.), the New South Wales Court of Appeal rejected the defence based on s.17(h) of the N.S.W. Act on the ground that there was no evidence of facts by reference to which the fairness or unfairness of the comment could be determined.”
- Although in common law matters, the enquiry relates to the distinction between fact and comment and s 31 of the Defamation Act uses the term “expression of opinion”, in my view nothing turns on that difference in phraseology. The test is the same. In D G Certifies Pty Ltd & Anor v Hawkesworth  QDC 88 Rosengren J said at paragraphs 114 and following;
“ A statement of fact or an expression of a value judgment can be a statement of comment if it is clear that the ordinary, reasonable reader would understand that the statement is a criticism, remark, deduction or inference drawn from other statements of fact. A clear allegation of fact may be treated as an expression of opinion if it would be understood by the reader not to be an independent imputation, but rather an inference from other facts
 Whether a statement is one of comment or opinion rather than fact, is to be assessed by reference to the ordinary, reasonable reader. It is necessary to look at the circumstances of the publication in its context. This includes the facts known to the reader at the time of the publication.” (citations omitted)
- Section 31 requires that the opinion must be “based” on proper material. This requirement contemplates a rational connection between the proper matter and the opinion expressed.
- The respondent generally accepts, for the purposes of the application, the applicant’s counsel’s summary of these legal principles. The respondent disputes, however, the application of those principles to the relevant publications.
- The following observations can thus be made concerning the defence of honest opinion under s 31(1) of the Act:
- the published matter must be an expression of opinion, and not a statement of fact.
- (a)in determining whether a publication is a statement of fact and not of opinion, it is necessary to look at the whole of the publication complained of, and not to the imputations alleged.
- (b)to be a statement of opinion
- (i)the publication must be able to be inferred to be a deduction, inference, conclusion, criticism, remark or observation. This in turn depends on whether a reasonable reader would understand that an opinion was being expressed, rather than a statement of fact being made or expressed.
- (ii)the facts on which the opinion is based have to be stated in the publication or sufficiently indicated or notorious so as to enable the reader to identify that the matter was comment on those facts.
- for the opinion to be “based” on proper material, as defined in the Act, there must be a rational connection or relationship between the proper material and the opinion expressed.
Application in this case
- In this case the use of Facebook pages to make the alleged defamatory publications might be a factor to be considered when determining whether the publications were an expression of opinion or statement of fact. The applicant submits that the use of such a medium is a neutral factor and that it is the use of language itself and its context which is critical.
- He also submits that the Facebook pages contain no features to suggest they are a forum for expressions of opinion rather than one for ventilation of facts. A distinction may in some cases be able to be made; for example as Muir DCJ observed in Brose v Baluskas & Ors (supra) statements made on a site “set up specifically…to invite reviews” (as in D G Certifier’s case) and the making of negative comments on a web page established for the support of a personal cause (as in the case before her Honour) ought be assessed differently.
- The applicant’s counsel submits that other than perhaps for the 7th Elizabeth Kennedy publications and the 3rd, 6th and 12th Lyn O’Connor publications, the language and content of the posts in the Facebook context in which the post occurred, shows no process of deduction, reasoning or inference to suggest the publication was of an opinion. The unequivocal statements concerning the applicant in the posts suggest, it was submitted by counsel, that the matters alleged were “the true state of affairs”. He submits the defamatory statements are incapable of being regarded by a reasonable recipient of the communication as an expression of opinion.
- Furthermore, he submits there is nothing in the purported proper material, in terms of the publications themselves, which might suggest any relationship between the expressed statement (whether it be an opinion or statement of fact) and the content of the alleged proper material. There is no overt reference to the content of any of the documents particularised as the proper material in the defamatory statement. Furthermore, it is said that none of the proper material is able to be said to be notorious. I accept that to be so.
- In the absence of the underlying facts being stated in the publications or sufficiently indicated or notorious so as to enable the reader to identify the defamatory matter as comment on those facts, it was submitted that the defence of honest opinion must inevitably fail.
- In support of his submission concerning such matters, counsel prepared schedules attached to his submissions, marked C, D and E. Schedule C is a list of those documents particularised as “proper material” by the respondent which do not refer to either the applicant or to the LGAQ. Schedule D is a list of such material which refers to the LGAQ but not to the applicant. Schedule E is said to be a list of documents which makes reference to the applicant but generally in a passing way. It was submitted that in any case even the documents in those last two schedules do not establish any rational connection between the content of the documents and the purported opinion. It was said that nothing in the proper material is capable of establishing the conduct or condition of the applicant described in the relevant defamatory publications. It was submitted that, at best for the respondent, a sub-stratum of facts concerning systemic corruption in local government of Queensland is referred to, but the documents do not enable any rational connection between such matters and the applicant’s purported character or alleged misconduct.
- In the event the relevant paragraphs of the AD are struck out, the applicant contends the respondent ought not to be given leave to replead since there is no basis to conclude the respondent could ever properly particularise the defence of honest opinion under s 31 of the Act. Since all possible proper material has been identified and there is no likelihood that, given time, a proper defence of honest opinion could be articulated.
- The respondent’s senior counsel submits that the applicant has failed to demonstrate, as required with an application to strike out pleadings under r 171 of the UCPR, that it is “plain and obvious” that the pleading discloses no reasonable defence. He submits that the pleaded defence of honest opinion has “some chance of success if regard is had only to the allegations and the pleadings relied upon by the applicant”. In this regard he refers to the decision of the Full Court of the Federal Court in Wride v Schulze  FCAFC 216 at , being the passage earlier referred to in  hereof.
- The respondent accepts that the question of whether a statement is one of opinion or comment rather than fact, is to be assessed by reference to the ordinary reasonable reader. It is submitted “the ordinary reasonable reader of a specialist Facebook page will vary to the ordinary reader (of) more generalised publications”.
- I interpose that I see real difficulty in this case, in approaching the matter in that way. To do so introduces significant speculative elements. The matter is unlike either of the matters referred to in  hereof. How could a judge, or jury, in this case know how to differentiate between an ordinary reasonable reader and an ordinary reasonable reader of the Facebook page? Nothing may be known of such readers. Consideration of the content of the page does not answer the question, because a reader of the Facebook page may not reflect the make-up of those who post to, rather than read, such a page.
- The respondent submits that in order to succeed on the basis that the defamatory comments are statements of fact, and not of opinion, it would be necessary for the court to conclude that the assertion that it is an opinion has no chance of success. That would require a finding that it is plain and obvious a properly instructed jury, placing themselves in the position of an ordinary reasonable reader, could not come to a conclusion that it was an expression of opinion. I accept that to be so. Counsel submits also that contemporary experience is that Facebook posts “frequently contain extremely robust statements of opinion”.
- In relation to the impugned 26 publications the respondent submits:
- The publications complained of, and the implications said to arise from them, are largely incapable of being definitively proven. It is submitted that this supports the proper characterisation of them as being statements of opinion, rather than fact. I interpose the cases support the view that it is the defamatory matter and not the imputations said to arise from them which must be shown to be the statements of opinion.
- The applicant’s description of the content and style of the publications as “unequivocal and undilutable assertions” is consistent with them being statements of opinion rather than fact.
- The publications generally occur on special interest pages or groups which are likely, by their very nature, to attract such expressions of opinion. Counsel noted the reference to “sharing the evidence and opinions that the one-eyed media will not cover” and to “providing an opportunity for online comment and discussion” contained on the Facebook page, together with the observation that “everyone has differing opinions” and encouraging “comment on the issues” said to support such a view. Other similar language is used on other Facebook group pages on which the respondent posted.
- Counsel submitted all of the publications the subject of the impugned paragraphs of the defence “are properly characterised as… an expression of opinion”.
- I will perhaps have more to say about the issue when considering particular representative publications, but in my view there is significant force in the view that it could not be said that the publications are necessarily properly characterised as statements of fact rather than of opinion.
- In my view, the matter can however be resolved in the applicant’s favour upon a consideration of the requirements of the defence of honest opinion, and in particular the provisions of s 31(1)(c) of the Act, that is, whether the opinion was based on proper material, as that term is used in the Act.
- In relation to the question of whether the respondent is able to show that any opinion is “based on proper material”, counsel accepts this requires that the opinion is:
- (i)Based on material that is substantially true; or
- (ii)Based on material that was published on an occasion of absolute or qualified privilege; and
- (iii)The facts which constitute proper material appear in the publication or otherwise are apparent to the reader.
- In relation to subparagraphs (i) and (ii) above, the respondent submitted that the applicant’s submission could be characterised as an assertion there was “insufficient correlation” between the purported proper material and the opinion expressed. The respondent relied on observations of Gleeson CJ in Channel 7 Adelaide Pty Ltd v Manock (supra) where at  thereof his Honour said:
“The protection from action ability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, ‘fair’ does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word ‘fair’ refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.”
- The applicant’s counsel’s submission that the opinion expressed must be “based” on proper material was directed to showing there was no rational connection between the purported material and opinion expressed. The lack of reference in schedules C, D and E attached to his submissions to the applicant and the failure to tie any purported opinion to the content of the alleged proper material meant that it could not be concluded the opinion was based on that material. I understand the applicant’s submission not to be that the respondent’s opinion was unfairly or unreasonably arrived at having regard to the purported proper material. Rather the applicant’s counsel submits that the respondent did not honestly base the expressed opinion on that material at all. She did not honestly, even if unreasonably come to conclude the expressed statement on the basis of the proper material.
- The respondent refers to what are described as representative examples of the impugned paragraphs – namely those referred to in paragraphs 12, 17, 21, 25 and 29 of her AD. I will consider them in turn.
- Paragraph 12 relates to the post I earlier referred to, in which the respondent pleads in response to paragraphs 19 and following of the statement of claim. It concerned a statement to “(s)ave the biggest horse….for (the applicant). To carry his self-interest and LGAQ.” It then refers to what is said to be LGAQ’s lack of concern for staff of local government or for the Queensland people.
- The respondent submits that these assertions are readily capable of being construed by the jury as a comment on, or opinion held about, the applicant’s conduct and character and that the immediate Facebook content “identifies that the ordinary reasonable reader would perceive the comment to be based on the actions of the (applicant) seeking to have the member for Cairns and the member for Lockyer censured” by the Premier and others.
- A difficulty with that submission is that the Facebook context involves criticism of the applicant on the basis he had criticised the use by the fourth defendant of parliamentary privilege. He had, in an article partly set out in a post on the website, apparently indicated he had met with the Premier and Deputy Premier to discuss the possibility of the parliament censuring the fourth defendant and another member of parliament over their alleged “seeking to damage Councils and councillors”. Other facts on which the opinion (assuming it to be an opinion) was based are not indicated. An expressed defamatory opinion involving criticism of the applicant’s actions for doing so might be protected by the defence of honest opinion only if that opinion was somehow connected to the matters described in the contextual material i.e. there was a rational connection between the defamatory statement that the applicant was self-interested and uncaring and his seeking to have the members censured.
- The published comment identified as the first Elizabeth Kennedy publication was that the applicant should have “the biggest horse” in order to “carry his self-interest and LGAQ”. No facts in the context of the Facebook posts otherwise suggests the applicant was motivated by self-interest or was uncaring. There can in my assessment be no basis for concluding there was any rational connection between his criticism of the members of parliament said to be deserving of censure by the premier, or by the parliament, and a statement (accepting for the purposes of the argument that it was a statement of opinion and not a fact) that the applicant was self-interested and uncaring.
- Neither does the article “Game of Mates” which was referred to in a nearby Facebook post, or a statement of Mrs de Witt, also referred to, cause there to be any relationship to a statement the applicant was self-interested and uncaring.
- In my view, the facts on which the opinion is based are not stated or indicated and are not notorious. The comment bears no relationship to the Facebook context – other than that the context and the relevant statement both involve criticism of LGAQ, the applicant and Mrs de Witt.
- In my view, an ordinary reasonable reader could not perceive the comment that the applicant was self-interested and uncaring was rationally based on the actions of the applicant in seeking to have the fourth defendant and another parliamentarian censured for criticism of LGAQ. Such matters might be rationally cause a reader to conclude he was resentful of criticism – but not that he was self-interested or uncaring.
- There is also no demonstrated rational connection between the documents on which the respondent relies as “proper material” and the statement to enable the jury to conclude the stated comment that the applicant was self-interested and uncaring was based on such material.
- I turn then to paragraph 17 of the AD which relates to paragraphs 25 to 31 of the statement of claim and the second Elizabeth Kennedy publication. The comment and its Facebook context are set out in schedule 4 to the statement of claim.
- The publication complained of features a cartoon which portrays a figure representative of the applicant. He can be identified by facial similarities and by a t-shirt the cartoon figure is wearing on which the initials LGAQ are printed. That it represented the applicant was not disputed. Nor was it disputed the cartoon figure was of a character from the popular movie Star Wars, known as Jabba the Hut. Whilst unknown to me, the parties accepted that Jabba was a corrupt and unethical crime boss. It is admitted in the defence that to portray the applicant in that way was defamatory. The clear meaning of the publication was that the opinion of the respondent (assuming the comment was an opinion) was that the applicant was a powerful crime boss, corrupt and without ethics.
- Again a defence of honest opinion is raised. It is said the defamatory comment was “an expression of opinion” and was “based on proper material identified in paragraph 17(b)(iii) of the defence.”
- Counsel for the respondent submits that the content of the publication and Facebook content “identify that the ordinary reasonable reader would perceive the comment to be based upon the actions of the plaintiff to have (the fourth defendant) censured by ….parliament for criticising elected members of Council and Council staff as part of the (fourth defendant’s) calling for an enquiry into local government” and would also “be aware that the comments are also based upon the evidence given in the CCC public hearings…including evidence of the plaintiff to an investigative hearing of the Crime and Corruption hearing on 27 April 2017….and the article “Game of Mates”. That article was referred to in a post of 9 June on the Facebook page, some little time prior to the subject post.
- It was submitted the opinion was “sufficiently related to the content of the articles” and “the undesirable conduct of the plaintiff in seeking to have the fourth defendant censured” for criticising local government administration.
- Assuming for present purposes that the comment was an opinion, the Facebook content suggests that such an opinion was based on the Crime and Corruption Commission evidence and other evidence earlier referred to and from the applicant’s seeking to censure the fourth defendant. There is in my assessment no attempt to state or indicate any facts on which such an opinion could or was based. Such facts are not notorious. The expressed statement is not supported by a process of deduction, reasoning or inference from any factual foundation. It is an unequivocal assertion unsupported by reference to fact or logic. Nowhere is there reference to any of the alleged proper material in the Facebook context or in the publication itself. There cannot be shown to be any rational connection between the purported opinion and the alleged proper material on which the respondent relies.
- The third representative pleading of the impugned paragraphs of the AD, paragraph 21 thereof, relates to paragraphs 32 to 36A of the statement of claim, and concern the third Elizabeth Kennedy publication.
- This publication, of 18 June 2017 and repeated on 20 June on another Facebook page, again showed the plaintiff depicted as Jabba the Hut proceeded by the words:
“You can never have too much of a good thing. This is what tax payers and rate payers money can bring.
2016 LGAQ conference theme was ‘New World Order’ (yes it sounds like a cult)”
- Again it is clear the publication suggested the plaintiff was, like Jabba, a powerful and corrupt crime boss, presiding over a cult like body, the LGAQ, and abused funds provided by tax payers and rate payers.
- Counsel for the respondent submitted that the publication is readily capable of being construed as a comment or opinion. Importantly, he submits that the comment would be seen by an ordinary reasonable reader as based on material related to the LGAQ’s income stream including the program for the LGAQ 2016 annual conference and the Fraser Coast Accumulative Payment Report. It was also submitted the conference theme “New World Order” was well known and “made the connection between the opinion and the proper material very clear”.
- I do not accept that to be so. The theme for the conference, accepting it was well known, would in my view not be a basis for rationally concluding that the plaintiff was a corrupt crime boss or that he wasted tax payers’ money. The LGAQ conference program is incapable of demonstrating such a matter. It is not shown to me how the Fraser Coast report could do so. And in any case, neither the publication nor the Facebook context demonstrate how any process of rational deduction was involved in the formation of the published opinion. There is no reference to the alleged proper material and no reference to facts on which such a statement could be logically based.
- The defendant next refers to paragraph 25 of the AD, relating to paragraphs 37 to 42 of the SOC, and the fourth Elizabeth Kennedy publication. This publication by the respondent related to a satirical letter she wrote purporting to be from “Jabba De Hallom” who was said to be “Leader of the Galactic Council of Totalitarian rule”. This too was clearly a reference to the applicant, a matter that was admitted.
- The letter purports to be addressed to “Dear Anna”, clearly a reference to the then premier and is in these terms:
“Can you please have a word to Lord Fucqarrd Willington as Rob Pyne is picking on poor Pauly and the Ipswich connection. The CCC is not doing enough to stop this and we don’t want the truth getting out and ruining everything. Yours sincerely, Jabba De Hallom Leader of the Galactic Council of totalitarian rule.”
- It is said by the applicant’s counsel that the natural and ordinary meaning of the publication is, inter alia, that the applicant is a corrupt crime boss attempting to exercise totalitarian control of Queensland and to have the parliament influence Mr Wellington, a member of the Parliamentary Crime and Misconduct Committee, influence the Crime and Corruption Commission to improperly investigate the Ipswich City Council administration.
- The respondent denies the pleaded imputations but admits the publication was defamatory of the applicant. Her Counsel submits the ordinary reasonable reader would perceive the comment to be based upon proper material, including a Facebook post of the speaker Mr Wellington. This post is identified in the Lyn O’Connor post at the top of page 29 of the schedule in these terms:
“Please consider going to on Peter Wellington FB page (link below) and commenting on this post.
I believe this shows incredible bias (again) that is almost irreconcilable for a speaker.
[The link is then provided]
This in addition to suggestion below to get Mr Wellington to support the call for an ICAC.
There is just this more timely post that needs a bit of influence in the peoples (sic) direction.”
- As with the previous publication, in my view there is no basis for rationally concluding from stated, indicated or notorious facts that the plaintiff was a corrupt crime boss who sought totalitarian rule as was represented. Facts are not shown on which such a conclusion could be drawn and there is no process of logical deduction from any such facts. Neither the publication nor the Facebook context demonstrate how any process of rational deduction was involved in the formation of the opinion expressed in the published matter. There is no reference to facts on which such a statement could be logically based.
- In his submissions senior counsel for the respondent submits that the publication’s context and its content identify that the ordinary reasonable reader would perceive the comment to be based on proper material and would “understand that … publication also referred to other pleaded material”. Such material was said to include press releases and articles by the plaintiff and publications, articles and speeches by other LGAQ figures. He submits that the “opinion expressed is sufficiently related to the factual matter in the documents on which it is based”.
- It was not shown how that was so. In my view, assuming for the moment that the comment is properly characterised as an opinion:
- the facts on which the opinion is based and not stated in the publication, sufficiently indicated or notorious; and
- there was not any rational connection between the opinion and the alleged proper material.
- Facts are not stated or identified and no process of rational deduction is demonstrated to show the opinion to be based on such facts. In my view it cannot be said that attending or hosting an LGAQ conference with the theme “New World Order”, or seeking to have the fourth defendant censured for criticism of LGAQ or elected local councillors has any rational connection to the assertion the applicant is a crime boss. Nor can it be said that any other of the matters referred to in the Facebook context has any rational connection to a comment that the applicant was a crime boss who improperly used his influence to have the speaker censure the fourth defendant, or was like the figure represented in the letter to “Anna”.
- The last representative pleading relied on by the respondent is paragraph 29 of the AD. This pleading relates to paragraphs 43 to 48 of the SOC and the fifth Elizabeth Kennedy publication. This post was on the CWQ page on 19 June 2017. The respondent said in that publication:
“The problem with LGAQ is their blind denial of what Ethical, transparent and accountable governance truly stands for and the responsibility that comes with it.
Unfortunately people that have been entrenched in these organisations for long periods become blunted by the lust of power, Greed and self-importance.”
- The context of that post is set out in Schedule 7 attached to the SOC.
- The defence admits the publication and admits the post refers to the applicant and that the publication contains defamatory matters. But the defendant denies the pleaded imputations and pleads a defence under s 31 of the Act on the basis that the defamatory matter was an expression of opinion, the statement related to matters of public interest and that the opinion was based on that alleged proper material as set out in paragraph (29)(b)(iii) of the AD.
- Senior counsel for the respondent submits:
- That the matter is capable of being construed by a jury as a comment. For the purposes of further discussion I accept that to be so.
- The publication and its immediate Facebook context, as set out in Schedule 7 (which commences at page 31 of the annexure to the SOC) identifies that “the ordinary reasonable reader would perceive the comment to be based upon proper material.” A number of comments said to be indicative of the Facebook context are relied on.
- It is said the opinion expressed is sufficiently related to the factual matter in the documents on which it is based so a jury could conclude the applicant inappropriately sought to have the fourth defendant censured by the speaker and premier for raising concerns about misconduct in local governance and for calling for an enquiry into that matter and, in that regard, was not acting in accord with the ethical expectations of someone in charge of LGAQ, an important semi-governmental organisation.
- A difficulty is that the expressed opinion is not properly characterised only in that limited way. The comments natural and ordinary meaning was that the applicant blindly denied proper ethical standards of government and that he did so because he was blinded by the lust of power, greed and self-importance.
- I fail to see how it can possibly be said that facts are stated, indicated or notorious which could underpin such an opinion. No proper process of deduction or conclusion is demonstrated to show a rational conviction between any such facts and the opinion expressed.
- In circumstances where the defendant senior counsel submitted that those representative defences should be utilised to determine the outcome of the application, and where the respondent has failed in respect of each of them, I conclude that the application to strike out all defences of honest opinion is allowed.
- Further, in circumstances where the matter was raised in r 444 and r 445 letters and where the respondent did not submit before me that there were any further matters which she could plead which would alter the respondent’s position it is appropriate that the respondent not have leave to replead. I will make orders in those terms in due course.
- The applicant makes four other challenges to paragraphs of the defence but in each case accepts that even if he is successful the respondent should be given leave to replead. These can be considered in the four groups set out in paragraph 22 hereof.
- During the course of argument the application relating to paragraphs 1, 34, 38 and 42, and also that related to paragraph 2 of the defence resolved effectively by agreement. I then ordered, subject to any final submissions of the parties as to the form of the order (see T2-19 l 12FF):
- 34, 38 and 42 of the AD of the first defendant be struck out but that the respondent be given leave to replead paragraphs 1, 34, 38 and 42 of the amended defence, provided that the repleaded paragraphs admit publication of the relevant material up to the date of the statement of claim and are limited to thereafter pleading:
- (a)the date on which the publication was taken down; or
- (b)in the alternative, the date the defendant sought to cause the publication to be taken down but was unable to do so.
- I also ordered (see T2-23 l 38FF) that paragraph 2 of the AD of the respondent is struck out and the respondent is given liberty to replead provided that the pleading admits that the applicant was a person well known to the public.
- The penultimate matter concerns paragraph 4 of the AD, which responds to paragraph 7 of the SOC. In that paragraph the applicant alleges:
“At all times material to this proceeding, Ms O’Connor;-
- (a)was a strong supporter and close advisor of the fourth defendant (“Mr Pyne”) in Mr Pyne’s parliamentary aspirations including Mr Pyne’s re-election as an independent member for the seat of Cairns in the Queensland Parliament; and
- (b)in the role referred in sub paragraph (a) hereof work closely with Mr Ward.”
- The respondent in paragraph 4 of the AD “objects to pleading to paragraph 7(a) and (b) on the grounds that they are irrelevant in the light of the first defendant’s formal admissions.”
- The respondent does not identify what formal admissions in her pleading are there referred to. Counsel for the applicant proceeded on the basis that it was a reference to the respondent’s admission that she is the publisher of the Elizabeth Kennedy publications. In oral submissions senior counsel for the respondent admitted this to be so (see T2-24 l 31FF).
- Counsel submits that the proper approach for the respondent, consistent with the observations of Dutney J in Woodco Services Pty Ltd v John Holland Pty Ltd  QSC 264 at  is to seek to have the pleadings struck out, or to seek relevant particulars. It was submitted that if she chose to plead in response to the allegation she must do so in accordance with the rules, and not by unilateral assertion of irrelevance.
- The respondent in paragraph 73 of her written submissions seeks an order that paragraph 7(a) of the statement of claim be struck out on the basis it is irrelevant.
- The applicant orally submitted that the allegation is relevant to the issue of aggravated damages. In paragraph 220 of the SOC the applicant pleads that various factors have aggravated the effect of the respondent’s defamatory publications concerning him. Amongst those factors are that the publications are said to be “an orchestrated, excessive and unjustified attack upon him”.
- In response senior counsel for the respondent accepted my observation (see T2-28 l 3FF) that if the defamatory publications were “part of an orchestrated, excessive and unjustified attack upon him by, inter alia, at least the plaintiff (sic) and Mr Pyne, might that not be relevant to aggravated damages”. I note my use of the term plaintiff instead of defendant or respondent in that passage was an error but the meaning was obvious.
- Senior counsel submitted however that the allegations in paragraph 7 of the SOC did not tend to prove the allegation in section 220(d)(5) of the SOC concerning the “orchestrated nature of the attack on him and that there was a logical disjoint between the allegation in paragraph 7 and the assertion concerning aggravated damages in paragraph 220 of the SOC.
- Ultimately I find that the pleading in paragraph 4 of the defence that the allegation is irrelevant is not an appropriate pleading. It does not conform to the requirements of pleading as explained in the Woodco Services Pty Ltd case. Further the assertion in paragraph 7(a) of the SOC concerning the respondent’s relationship to the fourth defendant is relevant to the issues raised in s 220 of the SOC. In such circumstances the respondent’s application, contained in paragraph 73 of his written submissions, to strike out paragraph 7(a) of the SOC is refused. Further I order that paragraph 4 of the AD of the respondent should be struck out and the respondent be given liberty to replead.
- The final matter concerns paragraph 7 of the AD. This paragraph also involves the respondent’s failure to plead in paragraphs 13 and 14 of the SOC “on the ground that they are irrelevant” to the applicant’s cause of action. Those paragraphs of the statement of claim are as follows:
“13. Mr Pyne: -
- (a)Was born on 23 April 1967 in Gordonvale;
- (b)In January 2015 was elected the Australian Labor party member for the seat of Cairns in the Queensland Parliament; and
- (c)In March of 2016 resigned from the Australian Labor party but continued to sit as the Independent Member for Cairns in the Queensland Parliament.
- At all times material to this proceeding, Mr Pyne encouraged and accepted the support and advice of Ms O’Connor and, further and alternatively, Mr Ward in his parliamentary aspirations including as to his re-election as the Independent Member for the seat of Cairns in the Queensland Parliament.”
- It can be seen that the application raises identical issues to those considered with respect to paragraph 4 of the AD that I have dealt with. There is however an additional matter – namely, that in her original defence the first defendant admitted the allegations in paragraph 13 of the SOC and partially admitted those in paragraph 14 thereof. Those admissions are in the AD withdrawn and leave was not obtained for that to occur.
- The respondent in written submissions seeks leave to withdraw those original admissions on the basis that the allegations “are no longer relevant”.
- In circumstances where I have previously found such allegation relevant to the issues alleged in paragraph 220 of the SOC it cannot be said that irrelevance is a proper basis for granting leave to withdraw the earlier admissions.
- In the circumstances I will make such orders:
- The respondent’s application to withdraw the admissions related to paragraphs 13 and 14 of the statement of claim contained in her original defence be dismissed.
- Paragraph 7 of the amended defence of the respondent be struck out and the respondent be given leave to replead, but she be obliged to replead the admissions relevant to paragraphs 13 and 14 of the statement of claim contained in the original defence of the respondent.
- In the circumstances the applicant has been successful in respect of all of the matters in his application and the respondent has failed entirely in the proceedings. In written submissions the applicant seeks an order that the respondent pay the applicant’s cost of and incidental to the application on an indemnity basis. In support of that application he relies on the fact that the manner in which the defences were pleaded and particularised are oppressive and the pointless reference to gigantesque amount of completely immaterial purported proper material was designed to stifle the just and expeditious resolution of the real issues in the proceedings and to cause a maximum of expense.
- There is something to be said in support of the applicant’s submission that costs should be awarded on an indemnity basis. Ultimately however I am of the view that this is a case where it is appropriate to order only that the respondent pay the applicant’s costs currently assessed on a standard basis. The significant body of material relied on is no doubt relevant to the assessment of those costs. Perusals are likely to be significant but in my view that is, of itself, not a reason for ordering costs be assessed on an indemnity basis. The sheer volume of material necessary to be considered in support of the application will be reflected in the amount of costs assessed to be appropriate on a normal party and party basis. In my view this is not, despite the failure of the respondent on all issues not a case where the issue discussed in Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248 cause me to conclude an order for indemnity costs is appropriate.
- In the circumstances I will order, subject to submissions as to form of the order:
- Save for admissions, paragraphs 12, 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, 61, 65, 69, 73, 77, 81, 84, 89, 94, 99, 104, 109, 114 and 119 of the amended defence be struck out without liberty to replead.
- Paragraph 2, 4, 7, 34, 38 and 42 be struck out with liberty to replead provided that;
- (i)The repleaded paragraph 2 admits that the applicant was a person well known to the public.
- (ii)The repleaded paragraph 7 contains the admissions relevant to paragraphs 13 and 14 of the statement of claim contained in the original defence of the respondent.
- (iii)The repleaded paragraphs 34, 38, and 42 admit publication of the relevant material up to the date of the statement of claim and are limited to thereafter pleading;
A.the date on which the publication was taken down; or
B.in the alternative, the date the respondent sought to cause the publication to be taken down but was unable to do so.
- (iv)The respondent serve and file such repleaded defence within 28 days.
- The respondent’s application to withdraw the admissions related to paragraphs 13 and 14 of the statement of claim contained in her original defence is dismissed.
- The respondent is to pay the applicant’s costs of and incidental to the applicant’s application (and of the respondent’s oral cross application), to be assessed on the standard basis.
- Published Case Name:
Gregory John Charles Hallam v Lyn Elizabeth O'Connor
- Shortened Case Name:
Hallam v O'Connor
 QDC 130
02 Aug 2019