Brose v Baluskas[2018] QDC 214

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the third, fifth and seventh defendants for leave to re-plead the statutory defence of honest opinion under s 31 of the Defamation Act 2005 (Qld). The need for such an application arises as a consequence of orders I made on 18 May 2018. On that day, after hearing a contested application by the plaintiff, I struck out a number of the statutory defences potentially available to the applicants under the Defamation Act but I allowed each of them leave to re-plead their struck-out defences aside from the statutory defence of honest opinion. The applicants have each redrafted their defence of honest opinion and submit that there is a sufficient basis for the defence to be maintained and accordingly leave should now be granted.^[1] For the reasons discussed below, I remain unconvinced.

2. [2]
   In order to understand my reasons it is instructive to briefly outline the context in which it is argued the defence ought to be allowed.

The substantive proceeding

3. [3]
   The plaintiff, Ms Tracy Anne Brose, is the current principal of Tamborine Mountain State High School. She seeks damages for a number of allegedly defamatory comments made by the applicants (and a number of other defendants) who are the parents and friends of past and present students of the school.^[2]

4. [4]
   The plaintiff was the principal of the school from January 2000 but was suspended on full pay on 15 February 2016. The school is the only state high school in Mount Tamborine, a community of approximately 7,000 people. Unsurprisingly, the suspension of the plaintiff was a matter of public interest for the locals. Subsequently, an online change.org website accessible to the public with the title “A Fast and Fair Resolution for Tracy Brose” was established. This website included a petition for the reinstatement of the plaintiff to her position as principal.

5. [5]
   On 7 March 2016 a link to the petition was placed on a Facebook group titled “Support Tracy Brose.” Between 7 March 2016 and 13 March 2016, this link was viewed by more than 8,210 people. That link was commented on by many members of the local community. The seven defendants to this proceeding each individually posted comments on the link. These posts are the subject of the plaintiff’s claim for defamation.

The applicants’ publications and the alleged imputations 

6. [6]
   On 10 March 2016, the seventh defendant posted the following comments on the link:

“Finally she is made accountable for her horrendous attitude and behaviour toward those she felt were less than herself…good riddance to bad rubbish…She tried to destroy my daughters future…key word TRIED”

7. [7]
   The plaintiff alleges that this publication gave rise to the imputations that:

8. [8]
   On 12 March 2016, the third defendant posted the following comments on the link:

“She is a lying, manipulative bully, who gets off by belittling as many people as she can. She is responsible for every failure, she is pathetic NOT an educator.”

9. [9]
   The plaintiff alleges that this publication gave rise to the imputations that:

10. [10]
    Also on 12 March 2016, the fifth defendant posted the following comment on the link:^[3]

“She is a bully bully bully. She has always done what she wanted to do and if anyone challenged her she made a point to destroy them and their children. Her time is UP. GOODBYE to a evil person.”

11. [11]
    The plaintiff alleges that this publication gave rise to the imputations that:

12. [12]
    The applicants admit the publications and the imputations the subject of this application but argue that their redrafted proposed defences of honest opinion are arguable and should “not be removed from the jury lightly.”

13. [13]
    The plaintiff submits that leave to re-plead the defence of honest opinion should be refused where such a defence cannot succeed in law and therefore the plaintiff should not have to meet evidence or argument in support of a futile defence at trial.

Relevant legal principles

14. [14]
    The plaintiff has elected for this proceeding to be tried by jury.^[4]  It will therefore be a matter for the jury to determine whether each of the defendants published defamatory matter about the plaintiff and, if so, whether any defence raised by each of the defendants has been established.^[5]  The question whether the words complained of are capable of conveying a defamatory meaning (and, likewise, capable of carrying contextual imputation) is a question of law for the judge,^[6] as is the question whether, as a matter of law, a pleading is capable of satisfying a statutory requirement (in the present context of s 31) or is otherwise consistent with established principles.^[7]

15. [15]
    In Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341, McColl JA (with whom McFarlan JA and Sackville AJA agreed) rejected a submission that unless it was unarguable that the contextual imputations failed to meet the requirements of s 26 of the Defamation Act 2005 (NSW), that it was premature to determine, before trial, that an aspect of the defence should not be left to the jury, and said relevantly:^[8]

“… It is always a matter for the Court to determine the question whether, as a matter of law, a pleading is capable of satisfying a statutory requirement. That position is preserved by s 22(5) of the 2005 Act. It has long been held in this context that both the plaintiff and the defendant have to plead by anticipating how the jury may interpret the matter complained of. Determining questions of capacity is essential to the efficient conduct of both jury trials and the trials generally, and to the Court’s obligations to ensure the just, quick and cheap resolution of the real issues in the proceedings.” [Footnotes omitted]

16. [16]
    In my view these comments are equally apposite to a consideration of whether the applicants ought to be given leave to re-plead a defence of honest opinion in this case.

17. [17]
    In Mio Art Pty Ltd v BMD Holdings Pty Ltd & Ors [2014] QSC 55, Jackson J outlined the practical factors the court must consider when considering an application for leave to re-plead following a successful strike out application:^[9]

“Repeated recast pleadings cause delay and expense which the opposite party must bear and which are not wholly compensated by orders for costs. The philosophy of UCPR r 5 encompasses the undesirable aspects of a protracted and expensive pleading process. There is no doubt that “limits may be placed upon re-pleading, when delay and cost are taken into account”. As well, where a party faced with substantial challenges to the sufficiency of its pleading struggles to overcome those challenges time and time again, the real question may be raised whether it can ever do so or should be permitted another attempt to do so.”

18. [18]
    It follows that leave to re-plead will only be granted in this case if the applicants have risen to the substantial challenge of their earlier pleadings and have shown an ability to plead a defence of honest opinion sufficient to meet the statutory requirements.

19. [19]
    Before analysing each of the applicants’ proposed pleadings it is necessary to consider how the statutory defence of honest opinion has been judicially interpreted.

The defence of honest opinion

20. [20]
    Section 31 of the Defamation Act provides for a defence of honest opinion as follows:

“Defences of honest opinion

1. (1)
   It is a defence to the publication of defamatory matter if the defendant proves that –

1. (a)
   the matter was an expression of opinion of the defendant rather than a statement of fact; and
2. (b)
   the opinion related to a matter of public interest; and
3. (c)
   the opinion is based on proper material.

…

4. (4)
   A defence established under this section is defeated if, and only if, the plaintiff proves that –

1. (a)
   in the case of a defence under subsection (1) – the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
2. (b)
   in the case of a defence under subsection (2) – the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
3. (c)
   in the case of a defence under subsection (3) – the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

5. (5)
   For the purposes of this section, an opinion is based on “proper material” if it is based on material that –

1. (a)
   is substantially true; or
2. (b)
   was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
3. (c)
   was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

6. (6)
   An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.” 

21. [21]
    Recently, Rosengren DCJ held in D.G. Certifiers Pty Ltd & Anor v Hawksworth [2018] QDC 88, identified correctly in my respectful view, that the defence of honest opinion requires a consideration of three matters:^[10]

“First, the defamatory matter must be an expression of opinion rather than a statement of fact. Second, it must relate to a matter of public interest. Third, the opinion must be based on proper material for comment, being material which was published on an occasion of qualified privilege, whether at common law or under the Act. The defendant bears the onus of proof in establishing these matters.” [Emphasis added]

22. [22]
    Turning then to each of these considerations.

The defamatory matter must be an expression of opinion rather than a statement of fact

23. [23]
    As to the first matter, Chief Justice Gleeson made the following relevant observations in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245:^[11]

“The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all he or she has read, viewed or heard is someone else’s opinion (or inference, or evaluation, or judgment).” [Emphasis added]

24. [24]
    In D.G. Certifiers, Rosengren DCJ observed relevantly that:^[12]

“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 publication.” 

The defamatory publication must relate to a matter of public interest

25. [25]
    As to the second matter, the following comments of Lord Denning MR in London Artists Ltd v Littler [1969] 2 All ER 198 are most apposite:^[13]

“Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

26. [26]
    The broad scope of matters in the public interest was described by Taylor J in Orr v Isles [1965] NSWR 677 as follows:^[14]

“Matters of public interest, in respect of which the right of comment is given, range over an enormous field…[T]he range commences with affairs of State and finishes with the performance of an amateur theatrical society in the village hall.”

27. [27]
    The authorities suggest that the scope for a matter to be of public interest is a broad one and the threshold is relatively low. For example, in McEloney v Massey [2015] WADC 126, Schoombee DCJ accepted that the manner in which an accountant provides his services to the public at large is a matter of public interest.^[15]Similarly, in Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805, the Court held that similar public interest existed in the trade practices of a stamp dealer.

The opinion must be based on proper material

28. [28]
    The third matter is more complicated.

29. [29]
    The position at common law was set out by the High Court in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, where Gummow, Hayne and Heydon JJ stated:^[16]

“The correctness of the plaintiff’s attack need not be considered in this appeal. None of the three passages in the majority judgment in Pervan’s case depended on any of these slides. They rest on the need for the facts on which comment is based to be “stated, referred to or notorious” – the facts, not a different thing labelled a “substratum of fact”, a “subject matter” or a “topic”. The law in Australia must be found in the majority judgment in Pervan’s case, not in Lord Porter’s speech. Since the defendant did not seek to have it overruled, it must be applied.”[Emphasis added]

30. [30]
    The reasoning behind such a requirement is obvious. It allows the person to whom the comment is published to be in a position to assess its foundation.^[17] 

31. [31]
    This line of reasoning was confirmed by the New South Wales Court of Appeal in Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290, where the Court stated:^[18]

“That is for two reasons. First, such a circumstance is likely to allow the reader (or listener) to distinguish more readily between fact and opinion. Secondly, it allows the reader or listener to judge the validity of the opinion. These functions are closely related, as appears from the following passage in the reasons of Gleeson CJ in Manock…

…

That is because par (c) in each of subs 31(1), (2) and (3) requires that the opinion is “based on” proper material. That must be “material” that is “substantially true”. In Visscher v Maritime Union of Australia (No 6), Beech-Jones J noted that to qualify as “proper material” on which an opinion may be based the material, if not shown to be substantially true, must have been published on an occasion of privilege or have otherwise attracted a defence under s 28 or s 29 of the Defamation Act. That language, he suggested, may indicate that the material on which the relevant opinion is based must be stated or indicated within the publication which included the defamatory matter.

32. [32]
    During the hearing on 18 May 2018, counsel for the applicants submitted that the common law defence of fair comment and the statutory defence of honest opinion were separate and distinct defences. Counsel also submitted that the common law defence of fair comment only required a defendant to show that the opinion was honestly based on ‘proper material’ which need not be known to the reader.^[19]This submission was not developed any further in the further written submissions on behalf of the applicants.^[20] 

33. [33]
    It is perhaps unsurprising that upon reflection this argument was not pressed or developed in the applicants’ more recent written submissions. Such a proposition was clearly rejected by the Victorian Court of Appeal in The Herald & Weekly Times Pty Ltd & Anor v Buckley (2009) 21 VR 661 where the court stated:^[21]

“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.” [Emphasis added].

34. [34]
    The Victorian Court of Appeal in Buckley did not specifically refer to the High Court decision of Manock. But in my view, the principle enunciated in Manock namely that the facts which led to the opinion must be readily available to the reader, ought to be imported into the statutory defence.

35. [35]
    Such an approach is consistent with the Explanatory Notes to the Defamation Bill 2005 (Qld):^[22]

“The defences, at least in relation to opinions personally held by the defendant, largely reflect the defence of fair comment at general law.  However, the proposed section clarifies the position at general law in relation to the publication of employees, agents and third parties. The existing laws of New South Wales, Queensland, Tasmania, Western Australia and the Northern Territory make statutory provision (whether partly or wholly) in relation to the defence of fair comment.” [Emphasis added].

36. [36]
    It follows that I accept the plaintiff’s submissions. In my view, a defence of honest opinion is not available at common law or pursuant to s 31 of the Defamation Act, unless the facts, (not the substratum of facts, subject matter or topic) on which the opinion is based, are stated, referred to in the publication, or are notorious.

37. [37]
    With the above principles in mind, I now turn to an analysis of the proposed defences of honest opinion in this case.

Analysis of the proposed defences

The third defendant’s proposed defence of honest opinion

38. [38]
    The third defendant seeks leave to re-plead the defence of honest opinion as follows:^[23]

"16. In relation to the imputations which are found to have been carried by the Arnold publication the third defendant relies upon the statutory defence of honest opinion in s 31 of the Defamation Act 2005 (Qld) on the basis that:

1. (a)
   the ordinary reasonable reader would have understood, because of the words used, the forum in which they were posted and the varying opinions and comments that were given of the plaintiff by others in the same forum, that the Arnold publication was a comment by the third defendant that was an expression of the third defendant’s opinion rather than a statement of fact;

2. (b)
   the third defendant’s opinion and comment related to a matter of public interest, namely the suspension of the plaintiff from her role as Principal of TMSHS, and the way in which the plaintiff conducted herself as the principal of TMSHS;

3. (c)
   the third defendant’s opinion and comment was based on proper material, namely her experience and that of her daughter, Madison Arnold, with the Plaintiff; and her daughter, Meah Arnold’s experience at TMSHS; and

4. (d)
   the third defendant’s opinion and comment was also based on the seventh defendant’s experience, and that of the seventh defendant’s daughter, Jordyn Proudlock, with the plaintiff.

Particulars

1. (i)
   On 15 February 2016, the plaintiff was suspended from her role as Principal of TMSHS;

2. (ii)
   In March 2016, as a result of the plaintiff’s suspension, the Facebook site was established;

3. (iii)
   At about the same time, a petition was created on the “change.org” website with the intention that signatures would be collected and it would be sent to the education minister at the time, Kate Jones, to encourage Ms Jones to reinstate the plaintiff as Principal of TMSHS (“the Petition”);

4. (iv)
   A link to the Petition was posted on the Facebook site on or around 7 March 2018 (“Facebook Post”). That link was commented upon by many members of the local community; and

5. (v)
   On 12 March 2016, the third defendant posted comments on the Facebook Post;

6. (vi)
   On 13 March 2016, the Facebook site was removed from Facebook; and

7. (vii)
   The third defendant repeats and relies upon the particulars pleaded in paragraph 13 herein in support of her position that her opinion was honestly held and it was based on proper material.”

39. [39]
    The particulars in paragraph 13 [also relied upon for the statutory defence of justification] are as follows:

“Particulars

1. (a)
   In or around 2003, the third defendant and the seventh defendant first met and became friends.

2. (b)
   In 2010, Maddison Arnold, the third defendant’s oldest daughter, started high school at Tamborine Mountain State High School (“TMSHS”). Maddison was in the same grade as Brodie Proudlock, the seventh defendant’s son, at TMSHS.

3. (c)
   From 2010 to 2012, Maddison was a ‘silver medallist’, an award given to students at TMSHS when they are achieving sound academic results across all of their subjects.

4. (d)
   From 2010 to 2014, Maddison attended TMSHS without being disciplined by staff members at TMSHS for not adhering to the school rules.

5. (e)
   From 2010 to 2014, Maddison was friendly with Ebony Campbell, a female student at TMSHS who had received a number of breaches for discipline infractions from the plaintiff which resulted in that child performing a large number of after hours’ detentions and who was suspended from school by the plaintiff on a number of occasions for breaches including but not limited to uniform breaches.

6. (f)
   From 2010 to 2014, Maddison would tell the third defendant about the disciplinary action that was taken against Ebony Campbell by the plaintiff, or was sanctioned by the plaintiff by other staff members at TMSHS.

7. (g)
   From 2010 to 2014, a number of Maddison’s peers received breaches and were suspended for minor disciplinary breaches including:

1. (i)
   wearing the incorrect socks;

2. (ii)
   female students rolled their skirts;

3. (iii)
   female students wearing makeup;

4. (iv)
   female students had the wrong colour ribbon in their hair; or

5. (v)
   chewing gum.

8. (h)
   On one occasion during Maddison’s schooling at TMSHS, a student was suspended by the plaintiff for four weeks for ‘planking’ on the grass.

1. (i)
   In late 2014, a number of Maddison’s peers in year 12 were expelled from TMSHS by the plaintiff. The students were expelled approximately four weeks prior to graduating.

10. (j)
    After this incident, Maddison told the third defendant that a number of her peers were expelled by the plaintiff.

11. (k)
    In or around 2012, Maddison commenced a TAFE course as part of her secondary schooling at TMSHS so that she could obtain a certificate in Personal Training. Maddison told the plaintiff that the goal was to study law at university but she wanted the Personal Training certificate to earn an income whilst at university. At the time, it was a prerequisite that a student obtain an Overall Position (OP) to be accepted to study law at university.

12. (l)
    In early 2012, Maddison was advised by the plaintiff that she could study the TAFE course and also obtain an OP.

13. (m)
    The plaintiff approved Maddison’s application to study the TAFE course.

14. (n)
    In late 2012, Maddison was advised by Graham La Castro (deputy principle of TMSHS) that she was ineligible to obtain an OP because she had not studied sufficient subjects. The TAFE course was not counted toward the OP score.

15. (o)
    In 2014, Maddison completed year 12 at TMSHS and did not obtain an OP, so she could not apply to study law at university and, as a consequence, Maddison finished year 12 with a very low self-confidence.

16. (p)
    In 2013, Meah Arnold, the third Defendant’s second daughter commenced high school at TMSHS.

17. (q)
    Meah started to suffer from severe anxiety almost immediately after commencing high school at TMSHS.

18. (r)
    In or around June 2013, the third defendant attended a parent/teacher interview at TMSHS in relation to Meah. Meah’s report for her Maths subject and English subject were A for behaviour, A for effort, and D for achievement. The third defendant was advised by Meah’s teachers that it was Meah’s fault that she was not achieving sound academic results. At the time, Meah’s teachers were under the supervision and direction of the plaintiff, as she was the principal of TMSHS at the time.

19. (s)
    In or around June 2013, the third defendant removed Meah from TMSHS and enrolled her at Tamborine Mountain College instead. At the time when the third defendant unenrolled Meah from TMSHS, she was told by Mr La Castra words to the following effect:

1. (i)
   ‘Some kids just can’t handle our rules’.

20. (t)
    Mr La Castra was the deputy principal of TMSHS at the time and was under the supervision and direction of the plaintiff, as she was the principal of TMSHS at the time.

21. (u)
    Whilst at Tamborine Mountain College, the third defendant was advised by staff members that she should take Meah to a doctor, so that she could get special consideration for her school assessments. The third defendant was never provided with this assistance by any staff members at TMSHS. The staff members were under the supervision and direction of the plaintiff, as she was the principal of TMSHS at the time.

22. (v)
    Between 2012 and 2014, the third defendant often witnessed the turmoil in the Proudlock family home that resulted from Jordyn Proudlock’s negative experiences with the plaintiff.

23. (w)
    Between 2012 to 2014, the third defendant and the seventh defendant often met and discussed the difficulties being experienced by Jordyn Proudlock as a result of her negative experiences with the plaintiff.”

Expression of opinion or a statement of fact?

40. [40]
    The third defendant submits that, due to the forum in which the comment was published, and in the context of the various other comments and opinions posted about the plaintiff, the ordinary reasonable reader would have understood that the publication was an expression of opinion rather than a statement of fact.

41. [41]
    The third defendant suggests that the purpose of the Facebook group was to allow members of the community to make comments about the plaintiff and relies on the observation of Rosengren DCJ in D.G. Certifiers:^[24]

“The manner of communicating in such a forum is another relevant consideration. It is uncontroversial and as can be seen from the positive and other negative reviews on the website, that the writers of such reviews usually keep their comments brief, write incomplete sentences and can use language which may be regarded as somewhat over the top.”

42. [42]
    In my view, there is an obvious distinction between making negative comments in relation to services received by an entity on a website set up specifically by that entity to invite reviews of such a service and the making of negative comments on a webpage established to support a person or a cause. But this distinction is not one that makes any practical difference in this case. In considering the comments, the ordinary reasonable reader must look at the contextual circumstances of the publication. In the present case, the comments were posted on a link promoting the reinstatement of the plaintiff to her position as principal of the school. It was reasonably likely that some members of the community may not have been in support of the plaintiff’s reinstatement and that potentially both negative and positive statements regarding the plaintiff may be posted. The forum and the style of the third defendant’s publication that the plaintiff is a “lying manipulative bully” and “NOT an educator” must be considered in this light. In my view, such a consideration does not lead to a conclusion that the ordinary reasonable reader would accept these comments as fact.

Does the publication relate to a matter of public interest?

43. [43]
    The publication by the third defendant concerned the principal of the Mount Tamborine community’s sole state high school. Debate concerning the reinstatement of on the community’s head educators is plainly, in my view, a matter of public interest.

Was the opinion based on proper material?

44. [44]
    The final issue for my determination is whether the third defendant’s opinion was based on proper material, readily available to the reader.

45. [45]
    In establishing that the opinion was honestly held and based on proper material, the third defendant relies on the draft particulars for the statutory defence of justification set out above. These particulars relate to the third defendant’s two daughters’ criticisms of their experiences at the school which include the apparent unreasonable and excessive disciplinary practices of the plaintiff in response to allegedly trivial behavioural problems. For example, the suspension of pupils four weeks prior to graduation and the failure by the then deputy principal for not suggesting the third defendant’s daughter visit a doctor to assist in obtaining special consideration for her school assessments.

46. [46]
    The most significant issue articulated by the third defendant relates to her daughter allegedly receiving poor guidance in relation to her university plans. The criticism being that her daughter was told by the plaintiff that she could study a personal training TAFE course and still obtain an Overall Position (OP). Subsequently, the third defendant’s daughter ascertained she was ineligible for an OP due to having completed insufficient OP subjects.

47. [47]
    The third defendant’s publication makes little if any reference to the facts stated in these particulars. The particulars are ostensibly specific to the third defendant’s daughters’ personal experience with the plaintiff and the school. The publication was located on a link advocating for the reinstatement of the plaintiff. The third defendant’s pleadings do not allege that the matters identified in the particulars appear anywhere in the petition, nor on the corresponding link.

48. [48]
    In my view, an ordinary reasonable reader would not be able to judge the basis of the third defendant’s opinion based on the publication itself or from the material stated or referred to on the petition or the link. The matters stated in the particulars may have been potentially known to some in the community through gossip but they are not notorious.

49. [49]
    In my view, the third defendant has not met the statutory requirements required to substantiate a defence of honest opinion. Such a defence fails as a matter of law. The third defendant has had a number of opportunities to plead such a case. She has not done so. On the material before me it is difficult to see how she can.

50. [50]
    It follows that the third defendant ought not to be granted leave to re-plead the defence of honest opinion.

The fifth defendant’s proposed defence of honest opinion.

51. [51]
    The fifth defendant seeks leave to re-plead the defence of honest opinion as follows:^[25]

"26. In relation to the imputations which are found to have been carried by the Arnold publication the third defendant relies upon the statutory defence of honest opinion in s 31 of the Defamation Act 2005 (Qld) on the basis that:

1. (a)
   the ordinary reasonable reader would have understood, because of the words used, the forum in which they were posted and the varying opinions and comments that were given of the plaintiff by others in the same forum, that the Arnold publication was a comment by the third defendant that was an expression of the third defendant’s opinion rather than a statement of fact;

2. (b)
   the third defendant’s opinion and comment related to a matter of public interest, namely the suspension of the plaintiff from her role as Principal of TMSHS, and the way in which the plaintiff conducted herself as the principal of TMSHS;

3. (c)
   the third defendant’s opinion and comment was based on proper material, namely her experience and that of her daughter, Madison Arnold, with the Plaintiff; and her daughter, Meah Arnold’s experience at TMSHS; and

4. (d)
   the third defendant’s opinion and comment was also based on the seventh defendant’s experience, and that of the seventh defendant’s daughter, Jordyn Proudlock, with the plaintiff.

Particulars

1. (i)
   On 15 February 2016, the plaintiff was suspended from her role as Principal of TMSHS;

2. (ii)
   In March 2016, as a result of the plaintiff’s suspension, the Facebook site was established;

3. (iii)
   At about the same time, a petition was created on the “change.org” website with the intention that signatures would be collected and it would be sent to the education minister at the time, Kate Jones, to encourage Ms Jones to reinstate the plaintiff as Principal of TMSHS (“the Petition”);

4. (iv)
   A link to the Petition was posted on the Facebook site on or around 7 March 2018 (“Facebook Post”). That link was commented upon by many members of the local community; and

5. (v)
   On 12 March 2016, the fifth defendant posted comments on the Facebook Post;

6. (vi)
   On 13 March 2016, the Facebook site was removed from Facebook; and

7. (vii)
   The fifth defendant repeats and relies upon the particulars pleaded in paragraph 23 herein in support of her position that her opinion was honestly held and it was based on proper material.”

52. [52]
    The particulars in paragraph 23 [also relied upon for the statutory defence of justification] are as follows:

1. (a)
   “In or about 2003, the fifth defendant and Sarah Rainer became close friends. is by Sarah Rainer’s children. Since about that time, Sarah Rainer’s daughter Laura Graham has always referred to the fifth defendant as “Aunt Kerri”.

2. (b)
   In 2013 Laura Graham, commenced high school at Tamborine Mountain State High School (TMSHS).

3. (c)
   From 2013 to March 2015 Laura Graham attended TMSHS without receiving disciplinary “breaches” by the staff members at TMSHS for not adhering to the school rules.

4. (d)
   In 2014, the fifth defendant was told by various parents of students at TMSHS words to the following effect:

1. (i)
   “TMSHS has a good reputation for academic excellence, but if your child is not academically minded, then [the plaintiff] will target them. She will try to push them out of TMSHS because they are not academic, as that negatively affects the school’s reputation for academic excellence.”

5. (e)
   In 2015, Laura Graham was in year 10 at TMSHS.

6. (f)
   In or about March 2015, Laura Graham had an argument with a female student at TMSHS.

7. (g)
   On the same day in March 2015, the plaintiff requested a meeting with Sarah Rainer and Laura Graham.

8. (h)
   At the meeting, the plaintiff said to Sarah Rainer and Laura Graham that the meeting with being held because Laura Graham was alleged to have engaged in sexual activity with a male student outside of school hours.

1. (i)
   At the meeting, the plaintiff said words to the effect to Laura Graham:

2. (ii)
   “Are you taking the contraceptive pill? Are you using protection for your sexual activities outside of the school grounds?”

3. (iii)
   “Have you ever engaged in sexual activity?”

4. (iv)
   “Why are you engaging in sexual activity?”

5. (v)
   “You’re a slut and you have no self worth.”

9. (i)
   At the meeting, the plaintiff said words to the following effect to Sarah Rainer:

1. (i)
   “You obviously consent to your daughter’s involvement in promiscuous sexual activity and acting like a slut.”

10. (j)
    Following the meeting, Sarah Rainer telephoned the fifth defendant and relayed what the plaintiff said to her and to Laura Graham.

11. (k)
    From about March 2015 to the end of 2017, when Laura Graham finished year 12 at TMSHS, Laura Graham received a number of disciplinary “breaches” from the plaintiff, which included, but were not limited to, “uniform breaches”. On one occasion, Laura received a “uniform breach” and a detention because she was wearing white socks with a grey line.”

Expression of opinion or a statement of fact?

53. [53]
    The fifth defendant’s publication is replete with dramatic and exaggerated language. But it must be considered in the context it is given, namely on an online post where a number of the local community were having their two cents worth [so to speak]. In my view, the ordinary reasonable reader would not interpret the statements in this context to be anything other than opinion.

54. [54]
    It follows and I find that the fifth defendant’s publication was an opinion rather than a statement of fact.

Does the publication relate to a matter of public interest?

55. [55]
    For the reasons discussed above in relation to the third defendant, I find that the fifth defendant’s publication involved a matter of public interest. ^[26]

Was the opinion based on proper material?

56. [56]
    Unlike the other defendants, the fifth defendant was not a parent at the school. The particulars relied upon to support a defence of honest opinion focus on her friendship with the mother of a daughter who graduated from the school in 2017. These allegations include the plaintiff allegedly chastising the daughter for engaging in sexual activity with a male student outside of school hours, and criticising the mother for supporting the daughter’s ‘promiscuous’ behaviour. The other particulars focus on her friend’s daughter receiving a number of minor disciplinary breaches from the plaintiff, and of various parents informing the fifth defendant that the plaintiff wanted to rid the school of students who did not achieve academic excellence.

57. [57]
    The fifth defendant’s publication labels the plaintiff a bully, and someone who is willing to ‘destroy’ anyone who gets in her way, including students. No mention is made of the mother, daughter, or their experiences with the plaintiff, as the basis of the fifth defendant’s opinion. There is no possible inference that could be drawn from the publication that would allow the ordinary reasonable reader to draw their own opinion from the experiences of the mother and daughter. The material is not readily available to the reader and the opinion cannot be tested.

58. [58]
    In my view, the fifth defendant has not met the statutory requirements of the defence, and it fails as a matter of law. The fifth defendant has had a number of opportunities to plead such a case. She has not done so. On the material before me it is difficult to see how she can.

59. [59]
    It follows that the fifth defendant is not granted leave to re-plead the defence of honest opinion.

The seventh defendant’s proposed defence of honest opinion

60. [60]
    The seventh defendant seeks leave to re-plead a defence of honest opinion as follows:^[27]

“14. In relation to the imputations which are found to have been carried by the Proudlock publication, the seventh defendant relies upon the statutory defence of honest opinion in s 31 of the Defamation Act 2005 (Qld) on the basis that:

1. (a)
   the ordinary reasonable reader would have understood, because of the words used, the forum in which they were posted and the varying opinions and comments that were given of the plaintiff by others in the same forum, that the Proudlock publication was a comment by the seventh defendant that was an expression of the seventh defendant’s opinion rather than a statement of fact;

2. (b)
   the seventh defendant’s opinion and comment related to a matter of public interest, namely the suspension of the plaintiff from her role as Principal of TMSHS, and the way in which the plaintiff conducted herself as the Principal of TMSHS; and

3. (c)
   the seventh defendant’s opinion and comment was based on proper material, namely the interactions between the Plaintiff, the seventh defendant, Jordyn Proudlock and Nathan Proudlock.

Particulars

1. (i)
   On 15 February 2016, the plaintiff was suspended from her role as Principal of TMSHS;

2. (ii)
   In March 2016, as a result of the plaintiff’s suspension, the Facebook site was established;

3. (iii)
   At about the same time, a petition was created on the ‘change.org’ website with the intention that signatures would be collected and it would be sent to the education minister at the time, Kate Jones, to encourage Ms Jones to reinstate the plaintiff as Principal of TMSHS (‘the Petition”);

4. (iv)
   A link to the Petition was posted on the Facebook site on or around 7 March 2018. That link was commented upon by many members of the local community; and

5. (v)
   On 11 March 2016, the seventh defendant commented on the Facebook Post;

6. (vi)
   On 13 March 2016, the Facebook site was removed from Facebook; and

7. (vii)
   The seventh defendant repeats and relies upon the particulars pleaded in paragraph 11 herein in support of her position that her opinion was honestly held and it was based on proper material.”

61. [61]
    The particulars in paragraph 11 [also relied upon for the statutory defence of justification] are as follows:

Particulars

1. (a)
   The Seventh Defendant’s daughter, Jordyn Proudlock, attended Tamborine Mountain State High School (“TMSHS”) from 2012 to 6 February 2014.

2. (b)
   In or around February 2012, Jordyn Proudlock was first bullied by her peers at TMSHS, Jordy Proudlock was told, amongst other things, that she was fat and ugly. The bullying subsequently escalated to cyber bullying.

3. (c)
   From about February 2012 to February 2014, Jordyn received a number of disciplinary ‘breaches’ from staff members at TMSHS for not adhering to the school rules.

4. (d)
   On 17 February 2012, Jordyn Proudlock received a ‘uniform breach’ and a breach for ‘deceitful behaviour’. She was suspended for 5 days after which the seventh defendant and/or her husband met with the plaintiff and:

1. (i)
   was told that Jordyn would receive a USB with school work to complete whilst she was suspended but no such USB was ever provided and Jordyn was consistently behind with her school work. This resulted in Jordyn becoming increasingly frustrated and more disruptive whilst at TMSHS; and

2. (ii)
   the Plaintiff was told that Jordyn was being bullied at TMSHS but the Plaintiff did not ever take any action to stop the bullying.

5. (e)
   In or around March 2012, Jordyn had befriended a boy at TMSHS named Landon. In about March 2012, the plaintiff said words to the following effect to Mr Proudlock who repeated the comments to the Seventh Defendant;

1. (i)
   ‘you don’t need to worry about Landon, he is gay he just doesn’t know it yet’

2. (ii)
   ‘Mitchell Joosep is a popular boy. I would be a happy mum if my daughter was dating Mitchell.’

6. (f)
   On 29 October 2012, Jordyn received a breach for ‘verbal misconduct – Facebook (Admin suspension)’ for writing words to the following effect on Facebook:

1. (i)
   ‘Mrs Brose is an awful and nasty person.’

7. (g)
   In or around December 2012, the seventh defendant became aware that Jordyn was self-harming by cutting her wrists, legs, arms and stomach. At about the same time, a senior female student at TMSHS was also self-harming and subsequently committed suicide.

8. (h)
   In or around December 2012, Jordyn was friendly with 6-8 other students who were members of what they called the ‘cutting club’ at TMSHS.

1. (i)
   In or around early 2013, the seventh defendant advised the plaintiff that Jordyn was self-harming. The plaintiff responded:

1. (i)
   ‘If I see the self-harm scars on Jordyn’s body, I will call the hospital and request that Jordyn be involuntarily admitted to the mental health ward.’

10. (j)
    In response, the seventh defendant said words to the following effect to the plaintiff:

1. (i)
   ‘No you will not call the hospital. You must call me or my husband.’

11. (k)
    In early 2013 Jordyn started meeting the TMSHS counsellor who would subsequently, and without permission or authority, relay the matters discussed with Jordyn to the plaintiff who in turn would discuss those issues in the presence of Jordyn’s friends such that her self-harming became widely known and the bullying of her increased.

12. (l)
    On 5 June 2013, Jordyn had her first appointment with a private psychologist at Headspace Southport. Prior to Jordyn’s first session at Headspace, the seventh defendant met with the plaintiff and said words to the following effect:

1. (i)
   ‘The students have not stopped bullying Jordyn. As a result, I have booked Jordyn in to see a private psychologist at Headspace Southport. I am unsure if you have taken sufficient action to address the bullying.’

13. (m)
    On 30 October 2013, Jordyn received a breach for “(Admin) class truancy, uniform breach, failure to follow directions”. This breach occurred during Jordyn’s sports class. During the sport class, Jordyn was placed in the same line at the students who had been bullying her. Jordyn moved lines and allegedly did not follow directions, because she didn’t want to be in the same line as the students who had been bullying her.

14. (n)
    The bullying of Jordyn Proudlock continued unabated and in 2013, she tried to commit suicide by cutting her wrists. After this incident, the seventh defendant met with the plaintiff and advised her that Jordyn was being cyber bullied by students at TMSHS. The Plaintiff did not take any action, or did not take sufficient action, to deter other students at TMSHS from bullying Jordyn Proudlock.”

Expression of opinion or a statement of fact?

62. [62]
    The seventh defendant’s published statements concern the plaintiff’s attitude towards (presumably) members of the school community, and include the statement that the plaintiff tried to ‘destroy’ her daughter’s future. These statements must be considered in the context that they were made as part of an online petition where opinions were being posted by various members of the community about the plaintiff. For similar reasons as discussed above, when viewed in such a context it is obvious in my view that the ordinary reasonable reader view these statements as opinion not fact.

Is the publication a matter of public interest?

63. [63]
    As stated above I am satisfied that the matter of the reinstatement of a local high school principal is a matter of public interest.

Was the opinion based on proper material?

64. [64]
    As outlined in the draft particulars, the seventh defendant relies on the plaintiff’s inaction in responding to complaints about the seventh defendant’s daughter being bullied at school. The pleadings allege that the plaintiff was aware that the seventh defendant’s daughter was self-harming, yet did nothing to address the bullying, nor direct school staff to help address the bullying. The seventh defendant pleads that the plaintiff told the seventh defendant that if she saw self-harm scars on the daughter’s body, she would “request that [she] be involuntarily admitted to the mental health ward.” Further minor disciplinary breaches are also relied upon.

65. [65]
    The seventh defendant has not submitted that these facts were notorious. As such, in order for the defence of honest opinion to succeed, they must be readily available to the reader who can then make their own opinion on the matter. The only reference to the plaintiff’s history with the seventh defendant’s daughter is a reference that, “She tried to destroy my daughters future…key word TRIED.” The ordinary reasonable reader would not be able to establish from that extract that the seventh defendant’s opinion was based on the plaintiff’s alleged refusal to address the bullying that was occurring to her self-harming daughter.

66. [66]
    In my view the seventh defendant’s publication was not based on material readily available for the ordinary reasonable reader to assess the opinion for themselves. It follows that the defence of honest opinion cannot succeed as a matter of law. The seventh defendant has had a number of opportunities to plead such a case. She has not done so. On the material before me it is difficult to see how she can.

67. [67]
    It follows that the seventh defendant is not granted leave to re-plead the defence of honest opinion.

Orders

68. [68]
    Upon the above analysis, there is no basis upon which any of the proposed defences of honest opinion can be maintained by the applicants and I find that leave ought not to be granted to allow each of the proposed defences to go to the jury.

69. [69]
    I therefore order that each of the third, fifth and seventh defendants’ applications for leave to re-plead a defence of honest opinion be dismissed.

Costs

70. [70]
    Given my findings, ordinarily costs should follow the event. In my view, the plaintiff is entitled to an order for costs.

71. [71]
    There were three discrete applications with many aspects of overlap. In my view the appropriate order for costs is that the third, fifth and seventh defendants each pay one third of the plaintiff’s costs to be assessed if not agreed. I will allow the parties the opportunity to provide written submissions if alternative orders as to costs are sought. If the parties are able to agree on some other form of costs order they should be forwarded to my Associate. I will allow the parties until 4.00pm Wednesday 7 November 2018 to either provide short written submissions or provide an agreed order.

72. [72]
    If neither of these things occur within the time allowed, the costs order foreshadowed above will be made.