Joyce v Gordon[2021] QDC 125

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This application is brought in respect of a claim made in this Court and filed on 22 August 2019,^[1] seeking relief in the nature of an injunction restraining the Respondents from further like publication and for damages for defamation of the Applicant. This application is for summary judgment for that relief, pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
2. [2]
   The Applicant’s claim is premised upon circumstances whereby he was aggrieved by his discovery of publication on a website named “Australia and New Zealand Military Imposters Group” (“ANZMI”)^[2], said to have named and characterised the Applicant as a “medal cheat”^[3].
3. [3]
   In his amended statement of claim (“ASOC”), the Applicant identifies the ANZMI website as having the URL “https://www.anzmi.net/”^[4] and that at material times, it contained publications of the names and identifying details of individuals with claims as to falsified military histories and military medals and which received “on average 465 visitors per day”.^[5]
4. [4]
   The first defamatory publication is alleged to have occurred on or around 1 June 2018, in that:

1. (a)
   the Applicant is identified by name, locality, service number and details (including his service in the Royal Australian Air Force catering, as a cook, in Vung Tau Vietnam, for 91 days from 16 April to 15 July 1970) and photograph;^[6] and

2. (b)
   it was stated that he was not entitled to one of four medals he was pictured as wearing, being the Republic of Vietnam Campaign Medal (“RVCM”), with the following words of and concerning to him:

“a. ‘Joyce has made the mistake of being a cheat involved with the media and had his photograph published in a newspaper. As a result of his need for media fame it has been established that Joyce is not entitled to wear the RVCM’;

b. ‘Like Joyce, most of those caught wearing this medal say “It was issued to them” In most cases that is baloney and it has been purchased by the wearer. Joyce wears four medals, he is entitled to three’;

c. ‘Returned Veterans will not tolerate those who cheat with medals. Being a returned veteran is a status hard won and the awards they receive are sacrosanct’;

d. ‘Joyce is welcomed to the website for being a medal cheat’.”^[7]

5. [5]
   The defamation of the Applicant is pleaded:

1. (a)
   As to natural and ordinary meaning, that:

“a. The Plaintiff is a medal cheat;

b.The Plaintiff was not award the RVCM by the Department of Veteran’s Affairs;

c.The Plaintiff purchased the RVCM fraudulently;

d.The Plaintiff is an attention-seeker”;^[8] and

2. (b)
   As to false innuendo:

 “a. The Plaintiff is a liar;

b.The Plaintiff is a person of bad-character; and

c.The Plaintiff is not a genuine veteran.”^[9]

6. [6]
   The second and third defamatory publications are each alleged on the basis of the publication of an email sent to the Applicant “… and the Abuse Department, Internet.bs Support Team…” using the email address [email protected], respectively^[10]:

1. (a)
   On or around 3 August 2019 at 11.03am “AEST” and containing the following words:

“a. ‘The fact is you wore the RCVM for many years despite no having it awarded to you officially. We have photographic evidence of this, and your correspondence with us concurs’;”^[11]

2. (b)
   On or around 3 August 2019 at 5.00pm “AEST” and containing the following words:

“a. ‘ANZMI has received your email and the letter dated 15 June, 2018 purportedly from the Department of Defence and is taking action to verify the authenticity of the letter’;^[12] and

  b. ‘If the letter you have provided ANZMI is not a lawful DOD document, then we will be reporting the matter to the Queensland Police’.”^[13]

7. [7]
   The defamation of the Applicant is pleaded:

As to the second publication;

In respect of natural and ordinary meaning;

“a. The Plaintiff is a medal cheat;

1. b.
   The Plaintiff was not awarded the RVCM by the Department of Veteran’s Affairs; and

1. c.
   The Plaintiff purchased the RVCM fraudulently.”^[14]

By way of false innuendo:

“a. The Plaintiff is a liar;

1. b.
   The Plaintiff is a person of bad-character; and

1. c.
   The Plaintiff is not a genuine veteran.”^[15]

As to the third publication:

In respect of natural and ordinary meaning;

“a. The Plaintiff acted fraudulently in acquiring correspondence from the Department of Defence; and

1. b.
   The Plaintiff engaged in unlawful behaviour in providing the correspondence received from the Department of Defence.”^[16]

By way of false innuendo:

“a. The Plaintiff is a liar;

1. b.
   The Plaintiff is a person of bad-character;

1. c.
   The Plaintiff is a person who forges or falsifies legal and/or government documents; and

1. d.
   The Plaintiff is not a genuine veteran.”^[17]

8. [8]
   The defamation of the Applicant for the fourth publication is pleaded as follows:

21. On our around 13 October 2019 the First Defendant published further material to ANZMI in reference to Hewitt Robert Whyman, which stated the following words of and concerning the Plaintiff (‘the Fourth Publication’):-

1. a.
   “A classic example of a former RAAF serviceman continuing to wear an un-entitled RVCM is Michael Joyce. Joyce served for 91 days in South Vietnam before he was repatriated to Australia after becoming ill. Again, well short of the required 181 days”;

1. b.
   He was not a battle casualty and was no evacuated because of his wounds. His name does not appear on the Vietnam War Casualty List”;

1. c.
   “He was mistakenly awarded the RVCM following a bureaucratic bungle by former RAAF Administrators who put forward his name for the medal. Joyce maintains that he is entitled to wear the medal, because it was “sent” to him in the mail from the Department of Defence. Joyce knows, as does every other serviceman who served in that war, that he is not entitled to it. We can be thankful he did not get the Victoria Cross ‘sent’ to him in the mail in error.”;

1. d.
   ANZMI will pursue all reports of medal cheats and place them on this site when the facts are proven’.

22. In their natural and ordinary meaning the Fourth Publication meant and was understand to mean that:-

a. The Plaintiff is a medal cheat;

b. The Plaintiff was not awarded the RVCM by the Department of Veteran’s Affairs;

c. The Plaintiff purchased the RVCM fraudulently;

d. The Plaintiff continues to wear the RVCM despite not being entitled to it; and

e. The Plaintiff is a medal cheat.

23. By way of false innuendo, the Fourth Publication meant and was understood to mean that:-

a. The Plaintiff is a liar;

b. The Plaintiff is a person of bad-character; and

c. The Plaintiff is not a genuine veteran.”^[18]

9. [9]
   On 11 February 2020, the First Defendant filed, for himself and the Second Defendant, a second amended defence (“SAD”). Many of the allegations of the Applicant are the subject of non-admission, “…due to the fact that neither Defendant has, or had, any connection to any case, or cases, published on the website named by the Plaintiff as the Australian and New Zealand Military Imposters group (ANZMI), whose website address is described in the Plaintiffs’ Affidavit as www.anzmi.net”^[19]. However, the identity of the parties and the control of the Second Defendant by the First Defendant, as its sole director, is admitted.^[20] But the allegations as to the knowledge and control of the First Defendant in respect of the publications were denied.^[21] There are specific denials as to knowledge of the Plaintiff, prior to service of the claim^[22] and in addition to explaining the denials on the basis of untrue allegations, it is further stated that:

“3. ….

3. (c)
   The Defendants deny paragraph 4(d) and 17 because the Defendants have never monitored, nor had access to, or control of, the website known as ANZMI, whose website address is described in the Plaintiffs’ Affidavit as www.anzmi.net.

4. (d)
   The Defendants did not write nor publish anything, anywhere, anytime, in regard to the Plaintiff.”^[23]

Also denied are the following allegations, as pleaded by the Applicant:

“4. At all material times to these proceedings the First Defendant:

….

d. Monitored and had control of the website Australia and New Zealand Military Imposters Group (‘ANZMI’), which had the following features:

i. URL address – https://www.anzmi.net/;

ii. IP address of 134.19.186.229.

e. Monitored and had control of the following email addresses:-

i. [email protected];

ii. [email protected];

….

f. Was the registered owner of the IP address 203.109.251.60;

g. Was the registered owner of the domain name anzmi.net;

h. Used the Second Defendant to update ANZMI, in particular to update the design of ANZMI, in or around February 2019.

 ….

12. The Second Defendant had knowledge and control over the First Publication from on or around 25 February 2019. Despite having the ability to remove and/or amend the Publication by way of re-designing the ANZMI website, the Second Defendant allowed the Publication to remain being published.”^[24]

And that pleading proceeds to state by way of further explanation that:

• On 5 December 2017, the First Defendant incorporated a Company ‘Discount Websites Ltd’, which leases the IP 203.109.251.60 from Vodafone New Zealand Limited, which was “… used for the exclusive purpose of providing DISCOUNT WEBSITE LTD’s clients, and its own, email and in-house Internet services”^[25];
• After the First Defendant received an email from a person named “George Thomas” using the email address [email protected] and claiming to be an “administrator” of the ANZMI group, because he was known to be “someone involved in the ex-Defence community”, he agreed, by email sent on 18 September 2018, to provide an email only service to the ANZMI group for 12 months at no cost and then setup an email server account and provided log in and password details to enable ANZMI to set up email accounts on the Discount Websites Ltd email server, until notice was given by email sent 3 September 2019, of cessation of these arrangements and the pending “removal” of the company Discount Websites Limited, which occurred on 23 September 2019.^[26] Notably, a number of documents are attached to that defence, including what are described as a “true copy” of each of the email communications in respect of ANZMI, respectively dated and marked: 15 May 18 (BDG-3), 18 September 2018 (BDG-4), 19 September 2018 (BDG-5), 3 September 2019 (BDG-6) and 10 September 2019 (BDG-8);^[27] and
• The following assertions:

XV. Therefore, the Defendants were not able to know of the contents of any incoming or outgoing emails being used by the email account operated by the ANZMI group.^[28]

  …..

XXI. The only correspondence the 1^st Defendant has ever had with ANZMI was through HIS then company DISCOUNT WEBSITE LTD via the ANZMI Administrator George Thomas, and only via email, and only to discuss email server matters.”^[29]

The application

10. [10]
    It is correctly pointed out that, for this application to succeed pursuant to UCPR 292, the Court must be satisfied that:

• The Defendant has no real prospect of successfully defending all or part of the Plaintiff’s claim; and
• There is no need for a trial of the part of the claim.

It is further noted that:

• The rule is to be applied in the context for the purpose of the UCPR “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”;^[30]
• The appropriate inquiry is as to whether there exists a real, as opposed to fanciful, prospect of successful defence of the proceeding;^[31] and
• When the Applicant’s material is capable of satisfying the burden of demonstrating that there is no real prospects of success and there is no need for a trial, there is an evidential onus on a Defendant to sufficiently demonstrate facts to support allegations in the defence or a need for a trial and mere assertion may be insufficient.^[32] 

11. [11]
    It is also correctly noted that the vital elements of a cause of action in defamation are:

1. Publication, being the communication of defamatory matter to some person other than the plaintiff;^[33]
2. Identification, in that it must be proved that the defendant published the defamatory matter “about the plaintiff” or “of and concerning the plaintiff”;^[34] and
3. Defamatory meaning, being that the words complained of must convey an imputation to a person which would tend to cause ordinary reasonable people to think less of the person about whom the words are published.^[35]

12. [12]
    This application proceeds upon the basis that “… the only real issue in dispute … is that of publication”,^[36] which contention is asserted in the context of notation that in their defence, the Defendants:

“(a) do not deny the Defamatory Publications identify the Plaintiff;

3. (b)
   do not deny the Defamatory Publications are defamatory to the Plaintiff;

3. (c)
   do not raise any defences which may render the Defamatory Publications either not defamatory or otherwise defensible at law.”^[37]

13. [13]
    Reliance is also placed upon the failure of the First Defendant to respond to a Notice to Admit Facts, filed pursuant to UCPR 189, on 9 June 2020 and served on him by way of email sent on 11 June 2020.^[38]  That is, upon the basis of the effect of UCPR 189(2), which is that the First Defendant “is taken to admit, for the proceeding only, the fact….specified in the notice.”  Here, that relates to the following facts:

“1. At all times material to this proceeding, First Defendant managed and had control over the website www.anzmi.net.

2. At all times material to this proceeding, First Defendant managed and had control over the following email accounts:

[email protected]; and

[email protected].

3. At all times material to this proceeding, the First Defendant had access to the internet from the IP address 203.109.251.60.”^[39]

14. [14]
    However, and in addition to filing an affidavit in response to this application, the Defendants have also filed a document entitled “Notice of Opposition”, which apart from notifying their opposition to any judgment under UCPR 292, also seeks an order that there is no admission of facts pursuant to UCPR 189, “as the First Defendant attempted as best he could to respond to the notice” or alternatively that leave is granted pursuant to UCPR 189(3) to withdraw the admission of facts “…on the basis that it would be unjust in the circumstances to hold the First and Second Defendants to an unintended admission of facts”.^[40] As accepted for the Applicant upon the hearing of his application, it is appropriate to treat this notice as being in effect a cross-application of the Respondents for relief in respect of any deemed admissions pursuant to UCPR 189(2).
15. [15]
    The First Defendant has explained that, in his position as a self-represented litigant, for himself and as the sole director for the Second Defendant, he has struggled with the legal implications and formal requirements of this litigation.^[41]  He has provided a copy of his letter emailed to the Applicant’s solicitors on 11 July 2020, which he contends, “… among other things indicates that I completely reject their theory of the case (that I am responsible for publishing on the ANZMI website through the operation of an email alias or aliases)”.^[42]  Leaving aside those parts of that correspondence which appear to be in response to an offer of settlement by way of further correspondence from the Applicant’s solicitors, referred to as “… dated 16 June 2020 received by email on 1 July 2020”, such rejection may be discerned from paragraph 6 of the First Defendant’s letter.^[43]  Moreover and leaving aside the third admission sought by the Applicant, what was sought were admissions which went not only to the heart of the Applicant’s case as to publication but which were the subject of much of what was expressly denied in the defence.  The third fact is not one which is discretely pleaded in the ASOC,^[44] but as evidenced by the document headed “PARTIAL DISPUTE AND DENIAL OF FACTS” exhibited as BDG-4 to the First Defendant’s affidavit, it is admitted.
16. [16]
    Further and although that indicated response is prepared on behalf of both Defendants, it appears to overlook that the notice to admit facts is directed only to the First Defendant.
17. [17]
    In such circumstances, it would be inappropriate to allow the onus upon the Applicant pursuant to UCPR 292 to be assisted by what may be accepted as the failure of a self‑represented litigant to comply with the formalities of the UCPR, in order to fully protect his interests.  And in the event that the Applicant does not otherwise gain relief pursuant to UCPR 292, it would be appropriate, pursuant to UCPR 7, to extend the time allowed under UPCR 189(2) for the First Defendant to serve a notice in response to the notice to admit facts, in terms as indicated in the exhibit to his affidavit.^[45]

Discussion

18. [18]
    To the extent that the application sought support from the deemed admission of the facts in the notice to admit facts, the effect was to establish that the First Defendant:

1. (a)
   Managed and controlled the ANZMI website, upon which the first and fourth publications were allegedly published;^[46] and
2. (b)
   Managed and controlled the email account [email protected], from which the second and third publications were allegedly published.^[47]

That is, with particular focus on the requirement that “… imposition of legal responsibility for publication of a defamatory matter requires the establishment of an involvement of the Defendant in the publication,”^[48] and the contention that “... the First Defendant is a provider, administrator or manager of the ANZMI website, and that accordingly he is the ‘publisher’ of the defamatory publications”.^[49]

19. [19]
    Reference is made to a distinction to be drawn between an internet service provider, who may do no more than “passively” provide access to the internet,^[50] and the discussion in Google Inc v Duffy,^[51] of the closer association and potentially different position of “webpage masters of internet forums or web-based bulletin sites which receive communications electronically but then make them readable in an organised manner by visitors to their webpages…”.  However, it is not readily apparent as to how that discussion, which occurred in the context of a case concerned with the liability of Google Inc for the references to defamatory material reproduced from web pages as the results of enquiry made in its search engine and which liability was ultimately found only from the time it was notified and therefore had knowledge that its search engine was producing the defamatory material, assists in respect of the different forms of publication which are alleged here.  However, and of potentially greater assistance, may be the following earlier observations of Kourakis CJ:^[52]

“87  The trial Judge usefully identified that the tort of defamation has the following elements:

1. the defendant participates in publication to a third party of a body of work;

2. the body of work contains a passage alleged to be defamatory;

3. the passage conveys an imputation;

4. the imputation is about the Plaintiff;

5. the imputation is damaging to the Plaintiff’s reputation.

(Citations omitted.)

88 Publication is a multilateral act which occurs when words and or images created and disseminated by one or more persons are comprehended by another or others. It is for that reason that the focus on participation in the first of the Judge’s elements is both useful and important. Publication of the printed word has always been a process rather than a single act. The process can be complex and involve many actors. As shall be seen the nature of one’s participation may critically affect the participant’s ultimate liability.

89 The participants in the publication may play primary or secondary roles. Authors and editors are primary participants. The principal of an enterprise which creates or procures and then disseminates words or images is a primary participant in the process of publication and is commonly referred to as the publisher. Historically printers have also been regarded as primary publishers but that rule has been doubted in modern times. Both publishers and printers are generally liable as primary participants even though they print and publish the work through their servants and agents.

90 In question in Webb v Bloch was the responsibility of the whole committee of an association for the publication of a defamatory circular published at the instigation of one of its members. The other members of the committee confirmed the member’s instructions to a solicitor to publish what was ultimately found to be the defamatory libel. Isaacs J in that case discussed the meaning of publication by reference to both the civil law concepts of agency and the criminal law concepts of accessorial liability:

 ……

91 In the broader sense, any facilitation of publication might be said to be participation in it. However, there must be closer limits on the scope of liability as a secondary participant. To draw an analogy with accessorial liability in crime, it is notable that some participation may result in liability as an accessory before the fact but not as a principal in either the first or second degree. So too in the tort of defamation not all facilitation will result in liability, even as a secondary participant, in the publication. Much depends on the degree of causal connection between the facilitating act and the publication of the material.” (citations omitted)

Peek J dealt with similar considerations and also, as Kourakis CJ did in respect of the first sentence in paragraph 88 of the extract set out above, cited Dow Jones & Company Inc v Gutnick^[53] as authority for the proposition that “… publication on the internet only occurs when the matter is downloaded on the publishee’s computer”.^[54] That judgment also contains some analysis as to how publication on the internet may be proved and particularly as to the extent of publication to unidentifiable persons, noting that the position in respect of the internet is different to that presumed in respect of mass media publication to circulation audiences.^[55] Particular reference is made to the following statement in Gatley on Libel & Slander: ^[56]

“Where the publication complained of is in a newspaper, book or other publication “to the world at large”, the claimant is not expected to plead particular acts of publication, the court accepting that publication in such cases is to be inferred. Where the publication complained of is on the internet, the claimant must identify the individual readers or plead a platform of facts from which an inference of publication can be drawn.”^[57] (citations omitted and emphasis as in Google Inc v Duffy)

 And it is further observed that:^[58]

This approach was adopted by Bleby J in Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452: “There is no presumption of law that there has been substantial publication in respect of an internet publication. It is for the plaintiff to prove that the material in question was accessed and downloaded. In this case there has been no “platform of facts” proved by the plaintiff from which an inference can be drawn that substantial publication of the website article occurred within South Australia.”

20. [20]
    In this and in some other respects to be further noted below, it would appear that on the Applicant’s behalf there may have been some tendency of overestimation of the effect of the non-admissions and absence of any particular defences in the Defendant’s pleading, or perhaps underestimation of the complexities of the cause of action in defamation. In the first instance and pursuant to UCPR 165(2), the effect of the non-admissions may only be that the Defendants may be precluded from giving or calling evidence in relation to a fact not admitted. And quite apart from any application of UCPR 166(4) and (5),^[59] any determination as to an effective admission of a fact might ultimately depend upon the evidence given in the Plaintiff’s case.^[60] More importantly, what should not be overlooked is that in order to establish the liability of either Defendant for the tort of defamation, quite apart from the need to establish the necessary involvement of that Defendant, in the sense of making available the material alleged to be defamatory of the Plaintiff, it is also necessary for proof that there was publication in the sense of viewing of it by persons other than the Plaintiff,^[61] and that the passages relied upon, considered in context, conveyed an imputation about the Plaintiff which is damaging to the Plaintiff’s reputation. Some of the submissions for the Applicant included contentions as to assessment of damages upon the basis of publication of the offending material to the “Australian and New Zealand returned services community” and the “veteran community”.^[62] However and apart from that of the Plaintiff, there is no evidence as to viewing of that material by anyone else or to provide any foundation for any assessment as to the extent to which this may have occurred.^[63]
21. [21]
    Even upon the narrow basis that this application was approached, it may, upon analysis, be seen to be problematic. The contention that the First Defendant is established to be “the publisher” on the basis that he is a “provider, administrator or manager of the ANZMI website” is a broad and potentially multi-faceted contention, which does not appear to accommodate the distinction as to the second and third publications by way of email to the Plaintiff, nor the different aspects of the evidence relied upon as to the location of hardware or internet connections used to upload material to the website or send emails. Moreover, there may be different requirements as to additional proof of knowledge and control of the uploaded or sent material depending upon what is to be found as the proven extent of the First Defendant’s involvement.
22. [22]
    Notably and despite the breadth of the contention as what should be found as to the involvement of the First Defendant, the further submissions for the Applicant include that:^[64]

“(c) whilst the credibility of a witness’ evidence is a matter ordinarily reserved for trial, the explanations and denials provided by the First Defendant as to his lack of knowledge or involvement with the ANZMI fall within the category of fanciful;

1. (d)
   this is particularly the case in circumstances where the First and Second Report establish, at a minimum:

1. (i)
   the ANZMI website was established by an individual using the email address [email protected];

2. (ii)
   the individual monitoring the email address [email protected] has the IP address 203.109.251.60; and

3. (iii)
   in the response to the Notice to Admit Facts that the First Defendant now seeks leave to file, he admits that he has access to the internet from the IP address 203.109.251.60.

1. (e)
   this is even putting to one side the fact that the Second Report establishes:

1. (i)
   the First Defendant has access to other anzmi.net emails;

2. (ii)
   the First Defendant is himself operating under the pseudonym “George Thomas”; and

3. (iii)
   the emails provided as exhibits “BDG-3”, “BDG-4”, “BDG-6” and “BDG-7” to the Defendant’s Second Amended Defence have been fabricated;

1. (f)
   the expert evidence all but establishes the First Defendant was the publisher of the Defamatory Publications, save for an admission of that fact by the First Defendant himself.”

23. [23]
    In that regard, it may be concluded that the forensic reports which have been relied upon by the Applicant,^[65] provide, at face value, a substantial circumstantial case in refutation of the basis asserted in the defence for any connection of the publications to an IP address which is connected to the First Defendant.  And may also provide substantial support for the inference that the Defendant was directly involved as the publisher of the allegedly defamatory material, which, despite the breath of allegation pleaded and otherwise made by the Applicant, appears to be the gravamen of his case. Indeed it may be observed that proof of anything less, in respect of the First Defendant’s participation, may bring with it significant complication in respect of proof of the necessary degree of causal connection to the publication.
24. [24]
    Whilst as has been noted, not necessary in order to raise concern about them, a focus in the second forensic report is upon the attachments to the SAD in the purported form of being a copy of emails in respect of the establishment of the email server for the address [email protected], such as to provide some further technical insight into difficulty as to what they purport to be.^[66] In the course of his submissions on this application, the First Defendant sought to explain away, perhaps unconvincingly as was the thrust of the reply for the Applicant, the more obvious difficulties with these documents, in terms of them being proffered as some form of transcription, or perhaps reconstruction, of some now unavailable records of the company DISCOUNT WEBSITES LTD.^[67] However and in the absence of an opportunity for the evidence of the First Defendant to be taken and tested, it is not clear that his explanation for any involvement with the ANZMI group, must or should be rejected as “fanciful”, as contended. Moreover and in respect of the positive case to be presented by the Applicant, it may be observed that, in the way in which the evidence upon which any such conclusion or any conclusion that such evidence is “compelling” in establishing any “immediate connection between the First Defendant and the ANZMI website and associated email addresses”, has been presented, this has not yet provided any opportunity for testing of it and particularly as to the weight to be given to any expression of expert opinion contained in it.  And there is also the difficulty that some facts upon which conclusions are expressed are attributed to enquiry made of other persons.^[68]
25. [25]
    Further, there are other problematic features of this application, which tend to point towards a conclusion of a need for a trial of the Applicant’s claim and extending beyond the absence of any evidence to establish the publication of any offending material to persons other than the Plaintiff and the extent to which this has occurred:

1. (a)
   As far as the Second Defendant is concerned and apart from the admitted association of the First Defendant as its sole director^[69] and the denied allegation that it “used the same static Vodaphone IP as the email account [email protected],^[70] the only pleading as to any involvement in any of the publications is as follows:

“12. The Second Defendant had knowledge and control over the First Publication from on or around 25 February 2019.  Despite having the ability to remove and/or amend the Publication by way of re-designing the ANZMI website, the Second Defendant allowed the Publication to remain being published.”^[71]

No real attention was given to the basis of this Defendant’s contended liability in this application and it must be observed that the basis and effect of these contentions remains unclear;

2. (b)
   Whilst the application was predicated upon an expectation that the Applicant would thereby obtain the relief he sought by way of injunction and damages, there was little provided or addressed as to any need for the injunctive relief or as to why the usual primacy of an award of damages was not the appropriate remedy and it was appropriately conceded on the hearing, that an alternative might be judgment for damages to be assessed;^[72]

3. (c)
   Further the only evidence put before the Court as to damages, was what is briefly contained in the Applicant’s affidavit.^[73] As was appropriately noted in the Applicant’s written submissions, damages are awarded in reflection of the subjective effect of the particular defamation on the particular Plaintiff, as shown by the evidence adduced in the case.^[74] It is also sought that they be sufficient to “… signal vindication of the Plaintiff’s reputations to those individuals within the veteran community who have been recipients of the Defamatory Publications”.^[75] As has been noted, there appear to be substantial questions to be addressed as to the extent of the publication of any defamatory material and there would also appear to be at least some lack of clarity as to whether any or all of the imputations contended for the Plaintiff are made out, particularly when the passages relied upon are considered in their related context. In addition and to the extent that damages are also claimed for injury to the Applicant’s health, apart from reference to some impact on social activity, there is nothing more than his assertion that his “post-traumatic stress disorder and anxiety have been exacerbated”;^[76]

4. (d)
   Also, a further contention for the Applicant is that:

“The real defamatory sting of the imputations published by the First Defendant in respect of the Plaintiff is that he is a medal cheat. That he has dishonestly and fraudulently purported to be the recipient of an award to which he knew he was not entitled.”^[77]

However the imputation of the Applicant being a “medal cheat” is not pleaded in respect of the third publication. Whilst such imputation is pleaded in respect of the Fourth Publication, this may tend to beg the question which appears to be addressed in the content of the Fourth Publication and which is left unanswered by the letter exhibited to the Applicant’s affidavit as MJ-1 from the Directorate of Honours and Awards, Department of Defence, Australian Government, which whilst confirming records as to the issuance of four awards to the Applicant, states:

“As you are aware in 1970 you were issued the RVCM award after the Air Force determined that you qualified for that award.

Following your request for confirmation of your entitlement to the RVCM award, the Directorate will review your service records and notify you of that outcome.”^[78]

26. [26]
    In short, the issues identified in these reasons, extending beyond the question of the involvement of the First Defendant in any of the publications, were not, in the context of the approach taken to this application, addressed, nor in the main, amenable to being addressed in the application. It may therefore be seen that there is merit in the main thrust of the First Defendant’s contentions that he should have the opportunity to challenge the evidence upon which the Applicant relies at the trial and to demonstrate how they are “patently wrong”.^[79]

Conclusion

27. [27]
    In the circumstances, the most appropriate conclusion is that the Applicant has, at least and on the evidence upon which this application has proceeded, not demonstrated that there is no need for a trial of his claim and that it is appropriate for orders that:

1. The application filed 18 August 2020, is dismissed.
2. The time for the response of the First Defendant to the Notice to Admit Facts filed by the Plaintiff on 9 June 2020, is extended to 2 July 2021.

Postscript

28. [28]
    Upon the delivery of these reasons in open Court and making of the orders noted above, on 25 June 2021, albeit in the absence of appearance for the First Defendant by available audio-visual link (for the reasons noted in the email correspondence marked “A” for identification), it became apparent that what has been expressed above, as to the position of the Second Defendant, has overlooked that the application did not seek judgment against that defendant. Upon confirmation by the legal representative of the Applicant, as to there being no potential effect upon the outcome of the application, there was no objection to this clarification being noted for the record.  As requested by the First Defendant in the correspondence marked “A” for identification, a copy of these reasons including this postscript are to be emailed to him.