Naudin-Dovey v Naudin[2013] QDC 119

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mandy Naudin-Dovey, a school teacher and behaviour management consultant, lived in a de facto relationship with Samantha Naudin for almost 14 ½ years. Their relationship broke down in May 2007. By then, Samantha Naudin had been diagnosed with breast cancer, a disease which claimed her life in January 2012. Samantha wrote a book about her struggle with cancer entitled Never Give Up. In it, she disclosed details of the break down in the relationship and discussed Ms Naudin-Dovey’s conduct during that period. She described her feelings and expressed opinions about Ms Naudin-Dovey’s conduct and character.

2. [2]
   Maree James and Elizabeth Bingham, trading as Catbird Media, published the book in June 2010. Samantha has since passed away and the action against her is at an end.^[1] The proceedings continue, however, against Catbird Media.

3. [3]
   Ms Naudin-Dovey argued the natural and ordinary meaning of the publication was defamatory, because it cast numerous aspersions on her character. Catbird Media denied the publication was defamatory. Otherwise, it did not plead any defence to the publication.

4. [4]
   Ms Naudin-Dovey claimed damages, including aggravated damages and an injunction restraining future publication in its current form. Catbird Media submitted, if Ms Naudin-Dovey succeeded in establishing defamation, any damages award should be modest.

5. [5]
   The issues in this case are:

1. Does the material defame Ms Naudin-Dovey?
2. If so, what damages should be awarded?
3. If the material is defamatory, what further orders should be made?

1. Does the material defame Ms Naudi-Dovey?

6. [6]
   To answer this question, the Court must consider whether any defamatory meanings are conveyed by the material and whether they relate to Ms Naudin-Dovey.

Is the publication ‘of and concerning’ Ms Naudin-Dovey?

7. [7]
   Although it was not expressly conceded, there was no substantial contest that Ms Naudin-Dovey would or could be identified as the person referred to by the author in the material as my partner and Mandy. I have proceeded on the basis that identification is not a live issue. If it were, I would, in any case, be satisfied on that score.

8. [8]
   Ms Naudin-Dovey’s Christian name is Mandy; she was the author’s partner for some 14 years; she adopted the author’s surname; the names of their children (Wilsen and Lili) are included in the material as is the address at which the author, Ms Naudin-Dovey and their children resided between 2001 and 2007. These details would be sufficient for a person acquainted with Ms Naudin-Dovey to identify her as the partner or Mandy referred to in the book.^[2]

9. [9]
   There is also direct evidence of identification, from a mutual friend who sent Ms Naudin-Dovey an email.^[3]

What is the test for defamation?

10. [10]
    Ms Naudin-Dovey will make out her case in defamation if, on the balance of probabilities, she establishes that the publication would tend to lower her reputation in the minds of ordinary members of the community.^[4] She alleged the publication gave rise to 14 imputations about her character and conduct as the author’s partner and as a mother of their children. Catbird Media disputed the pleaded imputations were conveyed by the material. It did not, however, contest that if all or any of the imputations were established, they would tend to lower Ms Naudin-Dovey’s reputation in the minds of ordinary members of the community. I am satisfied that any one of the imputations pleaded have that tendency.

The imputations

11. [11]
    Ms Naudin-Dovey pleaded 14 imputations were conveyed by the material:

    • Ms Naudin-Dovey  was disloyal;
    • Ms Naudin-Dovey  was selfish;
    • Ms Naudin-Dovey  was unloving;
    • Ms Naudin-Dovey  engaged in betrayal;
    • Ms Naudin-Dovey  was ruthless;
    • Ms Naudin-Dovey  was untrustworthy;
    • Ms Naudin-Dovey  was reckless as to the safety of her children;
    • Ms Naudin-Dovey  was a bad parent;
    • Ms Naudin-Dovey  was vindictive;
    • Ms Naudin-Dovey  was not supportive of the author during their 14 year relationship;
    • Ms Naudin-Dovey  was cruel to the author, her children and her mother;
    • Ms Naudin-Dovey  lacked compassion;
    • Ms Naudin-Dovey  was a bad parent in that she was not supportive of her children; and
    • Ms Naudin-Dovey was uncaring towards the author and her children

The approach to determining meaning

12. [12]
    The test for determining whether the defamatory imputations are made out is an objective one; with the material assessed from the perspective of the ordinary reasonable reader. Counsel for Catbird Media submitted that required the Court to, firstly, envisage a person between the two extremes of unusually suspicious and unusually naïve, and secondly, to consider what is the most damaging meaning such a person would put on the words in question.^[5]

13. [13]
    Counsel for Ms Naudin-Dovey identified the following features as characteristics of the ordinary reasonable reader:

• fair average intelligence; and
• fair-minded; and
• not overly suspicious; and
• not avid for scandal; and
• not naïve; and
• not searching for strained or forced meanings; and
• reads the entire matter complained of; and
• considers the context as well as the words alleged to have been defamatory.^[6]

14. [14]
    The material must be read as a whole, and any bane and antidote, in relation to any particular imputation, must be taken together. The ordinary reasonable meaning may be the literal meaning or the meaning inferred from the words used.^[7] The ordinary reasonable reader can be expected to read between the lines. However, any strained, forced or utterly unreasonable interpretation must be rejected. Ultimately a determination of meaning conveyed to the ordinary reasonable reader is a matter of impression, allowing for the fact that the reader is likely to have read the publication only once.

15. [15]
    I have applied those principles in making my determination on the 14 imputations pleaded by Ms Naudin-Dovey. Because Catbird Media has denied all of the imputations, it is necessary to consider each of them in turn.

16. [16]
    Ms Naudin-Dovey’s case is that each of the imputations are conveyed by the book read as a whole, and has identified particular passages in relation to each imputation. In my discussion of each imputation I have focussed on the pleaded passages. However, I did not consider their meaning until I had read the book in its entirety, so that I could assess them in their full context.

1st imputation - Ms Naudin-Dovey was disloyal

17. [17]
    Ms Naudin-Dovey relied on the following passages in relation to the imputation that she was disloyal:

Around me life went on but I missed feeling alive. My partner and her new friend strengthened their relationship, and she drifted away from me. I was physically a shell of myself. At 50...

My partner was spending more and more time with her new friend and I was distressed and angry. Why at this time would you want to be away from me? I needed closeness, I received distance. The sleeping tablets gave me piece of mind and allowed...

In a flash she was gone. I felt the momentum of the emotions...

Finally, after asking my partner if she was in love with this other person, she said yes. Well, my insides were on fire...as if the news of cancer wasn’t enough. I said “you must leave and it will be the best for everyone.” She said “what will people think of me?”.

I really do believe that when you are diagnosed with a life threatening disease, the close people around you get scared and wonder how they are going to survive without you. They form strength through others and attempt to find a new security in life. I learnt through these days that there is NO security, and ...^[8]

18. [18]
    Catbird Media argued the material merely indicated Ms Naudin-Dovey had formed a new relationship after separating from the author. It also argued the words displayed how cancer traumatises persons close to the sufferer and that this trauma can cause varying reactions from different people. Catbird Media argued any imputation of disloyalty is “strained, forced and unreasonable” and that the ordinary reasonable reader would engage in a process of balancing the most extreme interpretation of the material against the most innocent interpretation.

19. [19]
    While the ordinary reasonable reader would not necessarily think less of a person because they initiated separation, in my view, an imputation of disloyalty does arise. The author linked her diagnosis and the separation in a way that reflected adversely on Ms Naudin-Dovey. The author complained Ms Naudin-Dovey was spending more and more time with her new friend, giving her distance when she needed closeness and confessing her love to another person when the author was struggling with the news of her cancer diagnosis.

20. [20]
    It is naïve to read the passages in the charitable way contended for by Catbird Media. On the one hand the author purports to explain Ms Naudin-Dovey’s conduct as a reaction to the diagnosis of a life threatening illness. On the other, she judges it and describes the impact of that conduct on her in a way that invokes sympathy for the author and censure of Ms Naudin-Dovey, for failing to be loyal to the author during this difficult time.

21. [21]
    As well as being naïve, such a reading of the passages cannot be sustained in the context of the book as a whole. Having read the book in full, before considering the specific passages relied upon, the picture presented of Ms Naudin-Dovey, overall, was unfavourable. In that context, the imputation I consider the ordinary reasonable reader would derive from the passages relied upon is that she was disloyal to the author by forming a new relationship when she did.

2nd imputation - Ms Naudin-Dovey was selfish

22. [22]
    Ms Naudin-Dovey argued the following passages insinuated that she was selfish:

Finally, after asking my partner if she was in love with this other person, she said yes. Well, my insides were on fire...as if the news of cancer wasn’t enough. I said “you must leave and it will be the best for everyone.” She said “what will people think of me?”.

My partner had no vision other than herself. She was out and... feeling like a failure. I can honestly say she was! She left me in my darkest hour. She gave up on me, on us and the family...

…my friends and the ocean. My partner and I were fighting for different priorities. My partner had given up on me and walked away. She gave me a clear picture of who she truly was, the authentic self.

Next step was the packing. My partner did not want to leave. Worried about what others would say and what the kids would think of her, she created a situation where leaving was delayed. However, the friction and anger got to be too much and even my mother stepped in for some closure. Once gone, gone forever.

…Mum and friend, Loz. My ex-partner can’t look after them as she is busy, so it is over to me again. The kids come first and I...am nervous about the blood test. “Please Universe allow this to end for me.”

...mouse whole and sleeping. I can’t. The kids are back with me as my ex-partner has a hair appointment. I cried so hard tonight it...

I was full of anger on this particular night – angry at my ex-partner for leaving, angry at my father for never being physically in my life, and  yet they still just drop in when it suits them! They both fail to get up for me and they are both so very selfish in my eyes and my heart.^[9]

23. [23]
    Catbird Media conceded the word ‘selfish’ is included in the text, but argued this was said in the course of the author describing her own thoughts and feelings whilst undergoing radiation treatment. It submitted an imputation of selfishness could only arise from an extreme and literal interpretation of the material.

24. [24]
    I do not accept that submission. The specific passages insinuate that Ms Naudin-Dovey put her own interests ahead of the author’s. The author said Ms Naudin-Dovey was concerned about the impact of their separation on her own reputation, the implication being that her focus was on herself rather than on the author. She described having to care for their children in circumstances that suggested Ms Naudin-Dovey had placed an unreasonable burden on the author for selfish and potentially frivolous reasons (such as a hair appointment). The author described Ms Naudin-Dovey as a failure who had walked out and given up on the family. She called her very selfish in my eyes and my heart. That may well be a description of her thoughts, but one that involves a judgment about Ms Naudin-Dovey’s character.

25. [25]
    I am satisfied the ordinary reasonable reader, considering those passages in the context of the book as a whole, would draw the imputation that Ms Naudin-Dovey was selfish.

3rd imputation -  Ms Naudin-Dovey was unloving

26. [26]
    Ms Naudin-Dovey asserted the following passages, in the context of the matter as a whole, gave rise to the imputation that she was unloving:

I am hopeful of shared parenting and that a friendship that spanned fourteen years will always have love. A difficult time to part but I need to focus of (sic) getting better, staying alive and looking after the kids.

Holding moments; during chemotherapy my ex-partner gave me a copy of ‘Social Intelligence’ by Daniel Goleman as I now flick through the pages, I find a section describing the influence of holding the hand of a loved one in times of stress being a huge assistance in coping. I never felt that hand. This is a confronting and sad truth. The tests that are described in this book are...^[10]

27. [27]
    Catbird Media argued Ms Naudin-Dovey’s interpretation of the text is irrational. It submitted the first passage relied upon conveyed that Ms Naudin-Dovey had loved the author for fourteen years. The second passage, Catbird Media argued, was not a reference to Ms Naudin-Dovey but was, instead, the author expressing her general feelings of isolation. A reasonable reader, in its submission, could only conclude that Ms Naudin-Dovey was unloving by adopting an extreme and unreasonable interpretation of the matter.

28. [28]
    I accept the first passage suggests there had been love in their 14 year relationship. However, the second passage implies Ms Naudin-Dovey did not provide a loving hand in the author’s time of stress. The implication that this statement was a reference to Ms Naudin-Dovey is irresistible, given it was made in response to a passage in a book that she said her ex-partner had given her. Although the statement conveys the author’s feelings of isolation, this has no bearing on whether it is defamatory.

29. [29]
    I find the ordinary reasonable reader, considering those passages in the context of the book as a whole, would draw the imputation that Ms Naudin-Dovey was unloving.

  4th imputation - Ms Naudin-Dovey engaged in betrayal

30. [30]
    In a similar vein to the imputation of disloyalty (1st imputation), Ms Naudin-Dovey pleaded the imputation that she had betrayed the author arose from the following passages read in the context of the book as a whole:

In a flash she was gone. I felt the momentum of the emotions just after my partner and her new friend had met. You just know, you don’t want to, but you know. In your heart you feel despair. I could not bring myself to face the challenge of questioning my love when I faced darkness. The fear of falling off the edge of that cliff. The fear of stepping out and not coming back!

My partner had no vision other than herself. She was out and feeling like a failure. I can honestly say she was! She left me in my darkest hour. She gave up on me, on us and the family. In that moment when I raced out the door and went to a friends house to throw myself on their floor and cry long and loud, I  was a mess. I had no hair and no eyelashes to catch the tears. My life had thrown me a couple of real curveballs.

At this stage I could not understand why my partner had given up on me and our family. A weakness I will never understand.^[11]

31. [31]
    Catbird Media submitted it was unreasonable for Ms Naudin-Dovey to suggest that an inference of betrayal arose from the book. Leaving a relationship is common and no ordinary reader would view this as betrayal. Although the author initially expressed her desire for the relationship to continue, she understood that relationships often do not survive such a serious illness. Catbird Media argued the author noted her acceptance of the relationship’s end at numerous points throughout the book. It argued the imputation of betrayal did not arise from the passages read in context.

32. [32]
    These passages follow on from one of the passages in which the imputation of disloyalty is established. Although the concepts of disloyalty and betrayal are linked, the latter is a more strident criticism. The primary meaning of betray is to deliver or expose to an enemy by treachery or disloyalty.^[12]

33. [33]
    It is arguable the ordinary reasonable reader would not consider infidelity and separation, without more, to amount to betrayal. However, regard must be had to the context in which that passage was published. There are other imputations that Ms Naudin-Dovey is disloyal, unloving, selfish and ruthless that I have found proved. The passages which convey those other imputations also colour this one.

34. [34]
    Further, the concept of betrayal is clearly enunciated in the illustration which appears on the inside cover of the book.^[13] This is a pictorial representation of the author’s journey, staged by reference to chemotherapy cycles. The words divorce, betrayal and lawyers appear in reference to cycles 3 and 4. This correlates with the period in which the two separated and dealt with the consequences of their separation. There are no other events described during or around those cycles which might be so described.

35. [35]
    In that context, I am satisfied the ordinary reasonable reader would find the material conveys the imputation that Ms Naudin-Dovey betrayed the author.

5th imputation - Ms Naudin-Dovey was ruthless

36. [36]
    Ms Naudin-Dovey identified the following passages as implying that she was ruthless:

Finally, after asking my partner if she was in love with this other person, she said yes. Well, my insides were on fire...as if the news of cancer wasn’t enough. I said “you must leave and it will be the best for everyone.” She said “what will people think of me?”.

At this stage my partner wants to know about selling the house, splitting bank accounts and future plans. I don’t really have any...I just want to stay alive...

I have a viral infection and feel quite exhausted. At this stage my ex-partner wanted to discuss finances and what was going to happen to the house and contents.

4 June

Off I go for legal advice and I feel like shit. I just wish that my ex-partner might wait until I finish treatment. Three more chemotherapies to go – halfway. My ex-partner split the bank account today, and then let me know that her intimate relationship with her new partner had only started today. I wasn’t sure how to celebrate the news. I look at my ex-partner and find her actions and reactions pathetic, so weak, and yet look at me, so physically drained. So much has happened in just three months.

I was in disbelief that my ex-partner had closed our bank account and split the money. On the day of my chemotherapy, I had to take my tired, weary self down to the bank and ask for advice and sign papers. I could not see a thing. Writing down marital status as ‘single’ struck home. I drove back with only rest on my mind. However I stayed upright, nervous and scared that if I showed any signs of weakness, my ex-partner would come after the kids, saying that I was incompetent.

Tonight my son Wilsen had a lantern festival at the Steiner School. It was magnificent. Lanterns, songs and laughter. In my ill health I was lifted to a higher level ... so magical. My ex-partner attempted to discuss financial matters at the festival, and I am sure she missed the magical moments of watching Wilsen explore his creativity in the darkness.

“You have treated my client unfairly.” That word fair always gets me going! Unfair? A partner leaves me for another person, takes what she can, tells everyone. I kicked her out, leaves me and the kids with no support and I am being unfair?! I cried so hard when I read the letter I couldn’t breathe.^[14]

37. [37]
    Catbird Media argued the events described are ordinary matters, routine in any relationship breakdown. It argued the author’s reactions were typical of any person experiencing the end of a relationship, but noted her ill-health would have made her situation somewhat more traumatic. The ordinary reasonable reader would view the author’s comments in that context of trauma. The imputation that Ms Naudin-Dovey was ruthless could only be derived from a strained and unreasonable interpretation of the matter.

38. [38]
    It is true that discussions about financial matters are an ordinary incident of separation. However, that is not what caused offence. It is the author’s judgement of Ms Naudin-Davey in wanting to hold such discussions and to close their joint account when she did that gives rise to the imputation. I find the ordinary reasonable reader would draw the imputation that Ms Naudin-Davey was ruthless, in the sense of being without pity or compassion in the way in which and the time at which she set about re-ordering their financial affairs.

6th imputation - Ms Naudin-Dovey was untrustworthy

39. [39]
    Ms Naudin-Dovey claimed that the following passage depicted her as untrustworthy:

... at my life. However, during this period I found that the lack of trust I developed in relation to my now ex-partner kept me on the front foot. Ready to fight for the kids and home and all that I was about to face.^[15]

40. [40]
    Catbird Media submitted the passage only involved a reference to the author and that any imputation of untrustworthiness on the part of Ms Naudin-Dovey is an entirely unreasonable interpretation.

41. [41]
    Were that statement read in isolation, the imputation that Ms Naudin-Dovey was untrustworthy might not arise. However, that statement is made in the context of a book that presents Ms Naudin-Dovey as a disloyal partner who has taken the author by surprise by forming a new relationship and separating from the author when her support was most required. Viewed in that context I find the ordinary reasonable reader would read that statement to be an expression of opinion that Ms Naudin-Dovey was untrustworthy.

7th imputation -  Ms Naudin-Dovey was reckless as to the safety of her children

42. [42]
    Ms Naudin-Dovey relied on the following passages as giving rise to the imputation that she did not give adequate care and attention to the safety of her children:

There were no child restraints in their car for Wilsen and Lili and yet the other child had a car seat. I was furious and let them know. The nausea had me crippled again, it is only two days since chemotherapy and I am suffering.

... to sit. They hug me when they return and I feel alive again. I know they are safe at home when they both arrive and do a poo!^[16]

43. [43]
    Catbird Media argued the author made reference only to car seats and did not state whether the children had to wear seat belts. I see little in this argument. The author declared her fury with Ms Naudin-Dovey. The ordinary reasonable reader would understand that fury as relating to Ms Naudin-Dovey’s arrangements for the transport of their children. No other basis for her fury is evident. It is plain enough that she is representing Ms Naudin-Dovey’s care of their children on this occasion was lacking.

44. [44]
    Whether that means that the statement, in the context of the publication as a whole, gives rise to the imputation that Ms Naudin-Dovey was reckless as to the safety of their children is a different matter.

45. [45]
    I am not persuaded that the ordinary reasonable reader would draw from the complaint about Ms Naudin-Dovey’s conduct on one occasion, the imputation that she was, generally, reckless as to the safety of her children.

8th imputation -  Ms Naudin-Dovey was a bad parent

46. [46]
    Ms Naudin-Dovey alleged the following passage imputed she was a bad parent:

When I checked my answer machine there were six messages – five well wishing comments for tomorrow, and one from my ex-partner not knowing what to do for Lili as she had cried for forty-five minutes straight. Perhaps she was feeling my sadness? My ex-partner continues to check with me as always; even when she left she parted asking me if she was a good parent.^[17]

47. [47]
    Catbird Media argued no such allegation of bad parenting is made or can be inferred from the passage. I consider that inference would be a far-fetched and unreasonable interpretation of the matter. It relates the daughter’s distress and Ms Naudin-Dovey’s concern about how to deal with it. The statement that Ms Naudin-Dovey often sought reassurance that she was a good parent does not reflect poorly on her parenting. I find the ordinary reasonable reader would not draw the imputation alleged.

9th imputation - Ms Naudin-Dovey was vindictive

48. [48]
    The following passage was pleaded by Ms Naudin-Dovey as giving rise to an implication that she was vindictive:

I stopped by the roadside and caught a wave of nausea, but the need to vomit passed. At my ex-partner’s house I felt sorry for her need to punish me with her pain. I said to her we need legal advice and she said she knew her rights and I would get a big surprise if we went to court.^[18]

49. [49]
    Catbird Media submitted that context is of importance to this passage, both specifically and generally. Specifically, because the author’s comments are made in the context of her being so affected by nausea that she was almost vomiting on the roadside. The author expressed sympathy for Ms Naudin-Dovey throughout the book and commented on the various difficulties of their separation.

50. [50]
    Those arguments have little merit. Whether the author was nauseated at time of their conversation and whether she expressed sympathy for Ms Naudin-Dovey on other occasions is not to the point. The question is whether the defamatory meaning is conveyed by the statement.

51. [51]
    Nevertheless, I am not persuaded the imputation that Ms Naudin-Dovey was vindictive does arise from the passage, whether read alone or in context. The meaning of vindictive is disposed or inclined to revenge.^[19] I do not consider a fair minded person would view that statement as indicating Ms Naudin-Dovey was so disposed or inclined. To take revenge involves retaliation for some perceived wrong. The author does not present Ms Naudin-Dovey as perceiving herself as the wronged party in their relations. The imputation alleged would only arise by adopting a strained or forced interpretation of the text.

10th imputation -  Ms Naudin-Dovey was not supportive of the author during their 14 year relationship:

52. [52]
    Ms Naudin-Dovey alleged the imputation she had been unsupportive during her relationship with the author was conveyed by the following passages:

She said she couldn’t imagine what it was like to have someone in your life for so long and then...nothing. My questions are always based around – was she really there...ever?

I was sad for the person I thought I knew who had run scared to another person, who by her actions left no support for me or the kids.^[20]

53. [53]
    Catbird Media argued the first excerpt reflects the questions many people ask following the break down of a long-term relationship. It submitted the second excerpt was not a critique of Ms Naudin-Dovey’s behaviour during her relationship with the author, but after the relationship had ended. Any suggestion, therefore, that Ms Naudin-Dovey was unsupportive during her relationship with the author is unreasonable and cannot be reasonably conveyed by the text.

54. [54]
    I accept those submissions. I find the ordinary reasonable reader would not draw the imputation alleged.

11th imputation -  Ms Naudin-Dovey was cruel to the author, her children and her mother

55. [55]
    Ms Naudin-Dovey pleaded the following passage as giving rise to the imputation that she was cruel to the author, the author’s mother and their children:

The cruelty of how the kids, Mum and I were treated at this time was truly a trip of the worst ride possible.^[21]

56. [56]
    Catbird Media relied on the context of the statement as establishing that this was not an expression of opinion about Ms Naudin-Dovey. I cannot accept that. To describe her treatment (and that of their children and her mother) at Ms Naudin-Dovey’s hand as cruel clearly enough raises an imputation about Ms Naudin-Dovey herself. The question is whether the statement would be understood by the ordinary reasonable reader as an allegation that Ms Naudin-Dovey was cruel.

57. [57]
    In context, I consider they would do so. The book is presented in the form of a diary. This statement appears after a number of other entries, close in time, in which she makes negative observations about Ms Naudin-Dovey, including the timing of her new relationship and her insistence on discussing financial matters and closing their joint account. Although it appears in the entry about the lack of child restraints for the children, the phrase at this time appears to me to refer to a period of some weeks. That impression is reinforced by the author’s inclusion of a reference to her mother. There is no incident involving the mother in that entry, although there is a reference to her some weeks earlier.

58. [58]
    Read in context, it is reasonable to regard the statement that they had been cruelly treated as an allegation about Ms Naudin-Dovey’s conduct towards them over a period of time. Viewed in that way, I consider the ordinary reasonable reader would draw the imputation from this and the preceding entries, that Ms Naudin-Dovey was cruel.

12th imputation - Ms Naudin-Dovey lacked compassion

Ms Naudin-Dovey pleaded the following passage imputed that she lacked compassion:

Phone calls from my ex-partner are always loaded with enquiry and curiosity and they remain confronting. I dwell on the years we were together, and then...nothing! Nothing at all in my greatest time of need. Now she causes stress and anxiety at every drop-in. The phone calls are demanding and full of her needs.

She left saying if I wanted the kids back I could pick them up. I fell to my knees behind the car, crying.^[22]

59. [59]
    Once again Catbird Media argued that the emotions described by the author here are incidental to the end of any long-term relationship. Consequently, the ordinary reasonable reader would understand that communications between ex-partners cause some anguish and distress for those involved.

60. [60]
    The impression created by this passage, in the context of other passages about Ms Naudin-Dovey, is that she did not have regard to the author’s health and needs. In the context of other passages that convey the imputations that Ms Naudin-Dovey was selfish, ruthless and cruel, I find the ordinary reasonable reader would draw the imputation from this passage that Ms Naudin-Dovey lacked compassion for the author.

13th imputation-  Ms Naudin-Dovey was a bad parent, in that she was not supportive of her children

61. [61]
    Ms Naudin-Dovey pleaded the following passage as imputing that she was a bad parent, in that she was not supportive of her children:

I was sad for the person I thought I knew, who had run scared to another person, who by her actions left no support for me or the kids. The third person involved was full of anger towards me and Mum and wanted to protect her new partner, the carer who had been through so much. What carer other than my mother was there every step of the way?^[23]

62. [62]
    Catbird Media submitted this statement had to be considered in context as the author later told her children Ms Naudin-Dovey will always love them and be there for them.^[24] However, I think the immediate context of the statement is more helpful. The passage appears in a long entry in which the author discusses the emotional turbulence of divorce and legal advice to discuss a parenting plan for the children. In the course of the entry she also records Ms Naudin-Dovey’s fear that she might lose contact with the children. In context, I do not think the ordinary reasonable reader would draw the imputation that Ms Naudin-Dovey was a bad parent, in that she was not supportive of their children, rather the impression created by the entry as a whole is that Ms Naudin-Dovey feared losing her parental role.

14th imputation - Ms Naudin-Dovey was uncaring towards the author and her children

63. [63]
    Finally, Ms Naudin-Dovey pleaded the imputation that she had been uncaring towards the author and her children:

How wonderful it feels to be loved and wanted! When you are with someone in a relationship for years and then you get a life threatening disease, then you are on your own as they leave you without a trace, there are times when you wonder ‘Will I ever love or be loved again?’ Angels came into my life at this time, swept me off my feet and gave me a stronger sense of being.^[25]

64. [64]
    Catbird Media argued this excerpt involves the author reflecting on herself and her life in a philosophical manner, not making any observation about Ms Naudin-Dovey. I reject that argument. Certainly the passage is reflective but embedded in it is the allegation that Ms Naudin-Dovey abandoned her. This is consistent with other imputations already established. However, I do not consider the ordinary reasonable reader would read that passage, in the context of the book as a whole, as meaning that Ms Naudin-Dovey was uncaring towards their children. Accordingly, I do not find the imputation, as pleaded, is made out.

65. [65]
    In summary, I have found the material conveys the imputations that Ms Naudin-Dovey was disloyal, selfish, unloving, engaged in betrayal, was ruthless, untrustworthy, cruel and lacked compassion. Those imputations are defamatory, having the tendency to lower Ms Naudin-Dovey’s reputation in the minds of ordinary members of the community.

2. What damages should be awarded?

66. [66]
    Ms Naudin-Dovey is entitled to some award as damage is presumed to flow from the defamation.^[26] The damages awarded must bear an appropriate and rational relationship to the harm sustained.^[27] That does not mean that damage to reputation needs to be measurable in monetary terms. Damages are quantified by what is necessary to compensate damage to reputation, injury to feelings and vindication.^[28] To the extent it addresses damage to reputation and injury to feelings, the award is to console the plaintiff for the harm rather than recompense harm measurable in monetary terms.^[29] To the extent that damages address vindication, this is a tangible demonstration that a wrong was done to the plaintiff.^[30] I have taken each of those purposes into account in arriving at the award.

Reputation

67. [67]
    Ms Naudin-Dovey’s former reputation of being a loyal, respectful, loving and caring person was attested to by Ms Augustine, who met her when Ms Naudin-Dovey worked as a behaviour support teacher at the Tewantin State School.^[31] The imputations proved against Catbird Media are at odds with that reputation.

68. [68]
    Further, there is some evidence of actual damage to Ms Naudin-Dovey’s reputation. Ms Fuad, a friend, sent her an email in which she expressed her disappointment in Ms Naudin-Dovey’s conduct.^[32]

69. [69]
    Since the book’s publication, Ms Naudin-Dovey said she has been snubbed by and has experienced verbal abuse from people in her community.^[33] In the absence of any other explanation for these experiences, and given the small community in which the publication occurred, I accept this is further evidence of actual damage to reputation.

Impact of defamation

70. [70]
    Ms Naudin-Dovey was extremely distressed^[34] by the publication, undertaking some 39 sessions of counselling.^[35] Her distress has not completely abated with the passage of time.^[36]

Nature and scale of publication

71. [71]
    This was not a mass publication, but in its context it is significant. The author ordered 2000 copies. 2010 were printed.^[37] As at 31 July 2010, Catbird Media had sold 146 copies, including sales in Queensland, the ACT and 1 to each of the USA and Great Britain.^[38] As at 6 July 2011, 1700 remained in Catbird Media’s possession, leaving some 164 unaccounted for. As they were in the author’s possession and she was actively engaged in selling them personally, it is reasonable to assume that the author sold some of the 164 copies in her possession. Those sales would most likely have occurred in the community because the author was selling them from the back of her car, which bore signage advertising the book.

72. [72]
    Catbird Media are joint tortfeasers in the publication through sales by the author. They were participants in those sales, having printed the material and provided the books to the author for the purpose of sale.

73. [73]
    Although defence counsel objected to Ms Naudin-Dovey’s counsel addressing on the grapevine effect without having pleaded it, I see little in that complaint. The grapevine effect does not describe a distinct category of damage. It is a concept which explains how, in making its award, the Court may take into account the likely extent of a publication in circumstances where it is impossible to track the scandal.^[39]

74. [74]
    It must be accepted that there will have been some republication of the material beyond the 146 purchasers. Ms Augustine did not purchase the book, although she was aware of it. She read it when she came upon it in a coffee shop in Peregian some months after it had been published.^[40] It is to be expected that purchasers of the book would talk about it and could make it available to others to read.

75. [75]
    Ms Naudin-Dovey and the author were professionals living in a same sex relationship in a small community in which they worked and their children went to school. The book was promoted within the community: at a book launch; by local media; by banner advertising on the author’s car; and directly to the teachers at the school at which Ms Naudin-Dovey worked.^[41]

Catbird Media’s involvement in promoting the book

76. [76]
    Ms Bingham, one of the proprietors of Catbird Media, said she was aware the author was publishing the book in order to sell it and that the author was attending functions and doing media interviews for that purpose. She was also aware that the author had a banner promoting the book on her car, but was not aware the author was selling the books from the car.^[42]

77. [77]
    Between June and March 2011, the book was promoted on Facebook, in local newspapers and at fundraising and speaking events. Catbird Media actively participated in much of this promotion. It advertised the book on its website.^[43] It is named as the publisher in articles in local newspapers and journals.^[44] The owners of Catbird Media attended the launch and were photographed with the author.^[45]

Failure to apologise

78. [78]
    Catbird Media has not apologised to Ms Naudin-Dovey for the hurt caused by the publication.^[46] The failure to apologise may justify an award of aggravated damages.^[47]The principle that an apology may go in mitigation does not support, as a corollary, the proposition that its absence may cause aggravation. It is a question of fact in every case whether the failure to apologise amounts to an omission that was unjustifiable or improper.^[48]

79. [79]
    It is true that Catbird Media set about doing what it could to withdraw the book from circulation once proceedings were instituted. However, I am satisfied the failure to apologise is an aggravating feature in this case. Catbird Media was reckless in publishing without consulting Ms Naudin-Dovey. The publication related to intimate personal matters. Catbird Media accepted the book should be withdrawn. It risked nothing in this litigation by doing so, because an apology is not relevant to the question of liability.^[49]

80. [80]
    In those circumstances, its failure to apologise would have increased the personal affront to Ms Naudin-Dovey.

Summary

81. [81]
    8 defamatory imputations about Ms Naudin-Dovey’s character are conveyed by the material. At least 146 books were sold. It was promoted extensively within the small community in which Ms Naudin-Dovey resides and works. There is evidence of actual damage to reputation.

82. [82]
    The sales do not define the likely extent of the publication. The author had a high profile in the community as an inspirational figure. The publication is a highly personal account of the author’s journey through cancer treatment. It is likely that those who read or heard of the book would discuss it or recommend it to others.

83. [83]
    Catbird Media may be a small publishing outfit but that does not lessen its obligations as a publisher. It had the manuscript to read before publication. Ms Bingham gave evidence that she did read it. Neither of the proprietors approached Ms Naudin-Dovey before publication, although Ms Bingham knew who she was.^[50] Catbird Media was reckless in failing to consult Ms Naudin-Dovey. Its failure to apologise at any time before the hearing aggravated the hurt to Ms Naudin-Dovey’s feelings.

Amount of award

84. [84]
    Each case has its own features, but I have had regard to awards made in the many cases I was referred to by counsel. There is a statutory cap for general damages under the Act. The parties were in dispute about whether the cap was the amount fixed when the defamation occurred or the amount fixed at the time the award is made. The award I have arrived at is well below either amount, and I did not scale the award by reference to either figure.

85. [85]
    I consider an award of $65,000, including $15,000 for aggravated damages, is appropriate in the circumstances.

3. What orders should be made?

86. [86]
    Ms Naudin-Dovey sought orders in relation to interest and costs and orders restricting future publication. Having succeeded in making out her case that she was defamed, Ms Naudin-Dovey is entitled to an award of interest from the date the claim was filed to the date of judgment, calculated at 6% per annum.

87. [87]
    Both parties requested the opportunity to address on costs once this decision was published. They have leave to do so in writing.

88. [88]
    Catbird Media made no submission on the application for an injunction. Any permanent order should reflect the findings on the imputations. Because the author has since passed away, the question of further publication may be moot. Nevertheless, the parties are requested to confer and endeavour to reach an agreed position on the form of such orders.

89. [89]
    The parties are invited to provide their written submissions on costs and injunctive orders within 28 days.

90. [90]
    Orders:

1. The second defendant must pay the plaintiff $65,000 damages, plus interest calculated at 10% per annum from the 29 July 2010 to 29 May 2013.
2. The parties have leave to provide written submissions on costs and injunctive orders within 28 days.