Harrington v Shoard[2023] QDC 11

DISTRICT COURT OF QUEENSLAND

85. [85]
    The imputations which the defendant must prove to be substantially true are that the plaintiff is a paedophile and, in relation to the third statement, sexually abused his neighbours’ 12 year old daughter, Nisse.
86. [86]
    In examination-in-chief, Mr Shoard was asked about an occasion in 2014 when Nisse had a discussion with him and his wife at their property concerning something involving her and the plaintiff. Mr Shoard said:

“I was in my lounge room doing some paperwork, and the kids – Niss[e] and my two daughters had just had breakfast. Niss[e] said goodbye. She – to my wife. She – she said goodbye to me and she left. And I went back to my paperwork. I thought nothing of it. And a short period of time later, she came back in through the back door and she asked my wife – she said, ‘Sal, can I stay a bit longer?’ And – and my wife said, ‘Of course,’ you know, ‘Any – is everything okay?’ She said, ‘No.’ She said, ‘Joe’s over at my house and I don’t like it when he’s there. He’s been touching me, and he makes me sit on his lap.’ I heard that and I said, ‘Sweetheart, can you just tell me what you just said?’ And – and she came down and she repeated that. So I said to her – I said, ‘What have you told – have you told your mum and dad?’ And she said, ‘Yeah.’ And I knew her mum and dad pretty well. I said, ‘What’d they say?’ And she said, ‘Dad said he couldn’t do anything unless he catches him in the act.’ And I’ve gone, ‘This has got to stop.’ So I said, ‘Do you want me to stop this?’ And she said – she nodded in the affirmative and said, ‘Yes,’ you know. So I said, ‘Sweetheart, come and sit in the front verandah. I want you to know what I’m going to do. It’s no fault of yours. I’m going to go and talk to this guy”

87. [87]
    Mrs Shoard gave similar evidence of the alleged conversation with Nisse; except that, curiously, she says that she walked away after Nisse had told them that Joe touched her and that she did not hear Nisse say Joe makes her sit on his lap.
88. [88]
    Katie Shoard gave evidence that she could recall a conversation with Nisse Cavanagh around 2013, when they were in grade 7. She said she could not recall what time of the day it was but it was daytime. She said Nisse had come over and seemed “just generally frazzled”. She said that Nisse was frustrated and distraught, and that was out of character, so she knew something was wrong. She said that her mother and herself were present while she was having the conversation with Nisse. She said her father was out the back.
89. [89]
    Katie said that Nisse said to them, “Joe touched me”, and that Nisse later explained, “he grabbed her bum”. She said that her mother then grabbed her father and that Nisse repeated herself in her father’s presence. She said her father asked Nisse, “Are you telling the truth?” or words to that effect. She did not make any reference to Nisse saying that Joe made her sit on his lap.

90. [90]
    Nisse Cavanagh gave evidence of having made a complaint to Katie Shoard. She said that she complained to Katie about not being comfortable serving the food with being told to get out of the way. She said she spoke to Katie straight after the barbecue. She said she had the discussion with Katie in Katie’s bedroom. She said she told Katie that she had placed some food on the table at a family barbecue around lunchtime and that Joe Harrington had told her to move out of the way. She said, “just by a friendly gesture, by whacking me on the bum.” She said, “Just to basically say, ‘please move out of the way’.” She said that Chris and Greg (family relatives), the Harringtons and her mother and father were present at the barbecue.
91. [91]
    Later in evidence, she described it as her having “a tantrum because I could not get to the food without feeling like I needed to get out of people’s way.”

92. [92]
    She said that she had never said that “Joe Harrington is a paedophile” nor that she didn’t feel safe. She said she had never said that Joe had made me sit on his lap and he was touching me. She said she had never said those words to Katie or Katie’s parents. She denied that she had first told Katie and her mother and then repeated the statement to Steve.

93. [93]
    She confirmed that the Harringtons were people she sought “refuge in”. She said that her relationship with the Harringtons did not change after the barbecue

94. [94]
    She said, “Joe has never touched me inappropriately, other than the slight whack on the bum to get me out of the way.” She said that she had no recollection of any sexual intentions towards her from Joe Harrington. She said, “He’s always been someone I felt safe with.”

95. [95]
    Nisse gave evidence of having been recently contacted by Steve at her place of employment. She said she had a conversation in which Steve said to her, “you need to – I helped you, so now you help me, otherwise you’ll be putting Katie on the street.” She said, “I felt like I was kind of getting used, in a way. Almost manipulated or blackmailed, like if I didn’t help Steve somehow, that something bad would happen, …”. She said she had no intention of continuing the phone call and said to Steve, “I’ll call you back.” She said she never did.

96. [96]
    She did not accept that it was a friendly conversation. She said, “I didn’t feel comfortable in the conversation at all.” She accepted that at the end of the conversation she started to cry. Nisse also accepted that Steve sent her an apology for upsetting her through Facebook Messenger. She said that she did not respond.

97. [97]
    She said she could not recall how Steve had helped her; though she could recall a deal between Steve and her father where Steve was going to sell a car to her father for her to drive. She said that was the only occasion she could think of but her father did not purchase the car and she was certainly not involved in the discussions about the purchase.

98. [98]
    She accepted that while they were neighbours, Katie and her were good friends. She did not accept that you would call them best friends. She did accept they spent a lot of time at each other’s houses.

99. [99]
    When it was suggested to her that she was not interested in getting involved in this matter at all, she responded:

“If I would’ve known that Joe was in this situation, I would’ve gotten involved a lot sooner. However, I wasn’t aware until my mother actually informed me about the allegations made against Joe, which made me feel sick to my stomach that Joe had to be put through this – these false allegations. So I decided to step in and go no, this never happened.”

100. [100]
     She said that once her Mum told her there was a court case, “that’s when I went ahead and I went no, I need to step in and I need to put the record straight for Joe.”

101. [101]
     She accepted that she had told her mother previously that she wasn’t interested in being involved. She agreed that she did not wish to be involved for either Mr Shoard or Mr Harrington but said, “once I heard the false allegations Steve made against Joseph, I could not believe it and I had to set the record straight. So that’s why, at first, I did not want to get involved, as I didn’t feel any involvement at all. Like I was – I needed to prove anything to Steve – like something happened – to fuel these allegations he had against Joe. But once I heard the lies Steve told in court, I felt the need to step up … and take justice for Joe, basically.”

102. [102]
     She accepted that it was a sudden decision on her part to become involved.

103. [103]
     Kim Horne also gave evidence of conversations she had with Mr and Mrs Harrington on the topic. She said the first of those conversations occurred the first time she met Carolyn Harrington which was not long after she moved in. She said that was a conversation between her and Carolyn. She said Carolyn asked her whether she had heard her husband was a paedophile. She said Carolyn told her that there was a young girl who had lived in the house we were now living in and the young girl squeezed past Joe and he smacked her on the bum a couple of times.

104. [104]
     She said there were quite a few other times it was discussed. She added, “Well, every day she’d come over to my house, it was about paedophile stuff.”

105. [105]
     She said she recalled one occasion, after she had an argument with the people next door, and she was sitting out the back with both Joe and Carolyn. She said her daughter Demi and her partner were also present. Kim Horne said she said to Joe, “What do you think smacking someone on the bum means?” She said Joe responded that he’d only done it a couple of times as a joke. She said she said to Joe, “Well, that’s actually sexual abuse.” She said, Carolyn then said, “ She was just a little tease, anyway.” She said she said to Carolyn, “Well, a 12 year old wouldn’t know what that meant.”

106. [106]
     Demi Horne was called to give evidence. Demi did not give any evidence of having been present when the above conversation occurred between her mother and the Harringtons; though she was not directly asked as to whether she was present.

107. [107]
     Mr Harrington denied ever having a conversation with Kim Horne about Nisse. Mr Harrington admitted that he had on one occasion smacked Nisse with the back of his fingers between the hip and the backside. He said it was, “Nisse, get out of here.” He said, Nisse had come between him and another chair when she was getting biscuits.

108. [108]
     Mrs Harrington admitted to having a number of conversations with Kim and/or Anthony Horne about an interaction between Joe and Nisse. She said that Demi was present for several of those conversations. Mrs Harrington said that her husband was also present for some of those conversations. She said the discussions were about why Steve was accusing Joe of being a paedophile.

109. [109]
     She admitted that she had said in those discussions that Joe had flicked Nisse once on the backside. She denied that she had ever said it was just a bit of a joke and denied that she had said the police had been involved and that no charges were to be laid. She denied ever making the comment, “Anyway, Nisse was such a tease.”

110. [110]
     The way Mr and Mrs Harrington gave this evidence had a greater ring of truth about it than other parts of their evidence, to which I have or will refer. Certainly, Mrs Harrington gave more fulsome answers to the questions being asked on this topic than otherwise was the case.

111. [111]
     Given the friendship between the Hornes and the Harringtons at the time of the alleged conversations regarding Nisse, I accept that the issue would have been discussed between them, as suggested by Kim Horne. I accept it is likely that there were frequent conversations between Kim and Carolyn, as suggested by Kim and Carolyn. I do not accept that, however, Mr Harrington would have described any “smacking” of Nisse on her backside as a joke. I also do not accept that Mrs Harrington would have described Nisse “as a tease”.

112. [112]
     I find the evidence of Kim Horne to have been impacted by her change of allegiance. I consider that Kim Horne would have been a person easily manipulated by others, particularly strong-willed people like Mrs Harrington and Mr Shoard.

113. [113]
     Nisse Cavanagh gave her evidence in a forthright, honest manner. It was clear that she felt she needed to correct the record because any statement she had made to Katie had been clearly wrongly interpreted.

114. [114]
     I accept that her only conversation that day was with Katie and that she did not have a conversation with Mr Shoard or his wife.

115. [115]
     Apart from my acceptance of the evidence of Nisse, I have already indicated that I do not accept that Mr Shoard gave his evidence honestly. His manufacture of an excuse for putting up the sign was telling, but so was the denial of the first and second oral statements; until confronted in court with video evidence.

116. [116]
     I do not accept the evidence given by Mrs Shoard and Katie. Mrs Shoard gave the impression of being timid and Katie appeared extremely nervous and hesitant in giving her evidence. Both gave the impression that they were giving the evidence they were required to give in support of Mr Shoard. Where their evidence differed from the evidence of Nisse, I prefer the evidence of Nisse

117. [117]
     In the end there was no admissible evidence that the alleged defamatory statements were true, nor do I accept the evidence of the alleged preliminary complaint said to give rise to the evidence given by Mr and Mrs Shoard and their daughter, Katie, who was friendly at the time with Nisse.

118. [118]
     I accept the evidence of Nisse Cavanagh, that the only touching of her by Joe Harrington was a whack on her backside telling her to get out of the way on one occasion. Her evidence was supported by the evidence of Mr Harrington himself, which I also accept in that regard.

119. [119]
     Accordingly, I am not satisfied that Joe Harrington has ever dealt with Nisse in a sexually inappropriate way or that there was any inference open that he was sexually attracted to her.

120. [120]
     Given the factual findings, the defence of justification fails.

The Claim for damages

121. [121]
     It is alleged that by reason of the publications, the plaintiff is entitled to an amount of $250,000 for general damages and an amount of $80,000 for aggravated damages.

General Principles of Damages

122. [122]
     The Act contains a number of provisions pertaining to the award of damages. Otherwise, the principles established at common law continue to apply.

123. [123]
     An award of general damages for defamation serves three purposes which overlap. They are to compensate for damage to both the personal and, if applicable, business reputation, to give consolation for the personal hurt and distress caused by the publication, and to vindicate the person’s reputation.^[18]

124. [124]
     A plaintiff is not required to prove actual damage to reputation, nor is it necessary for a plaintiff to call evidence that in fact persons thought less of the plaintiff as a result of the publications.^[19] Courts proceed on the premise that some damage to reputation results consequent upon the publication of a defamatory statement.^[20] As Windeyer J said in Uren v John Fairfax & Sons Pty Ltd,^[21] a person “gets damages because [they were] injured in [their] reputation, that is simply because [they were] publicly defamed.”

125. [125]
     Section 34 of the Act provides that:

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

126. [126]
     When s 34 speaks of “harm sustained by the plaintiff”, it comprehends the range of harms to the plaintiff which, at common law, the three purposes seek to compensate.^[22]

127. [127]
     Section 35 of the Act provides that, unless the court otherwise orders under s 35(2), the maximum amount of damages for non-economic loss that may be awarded is the sum that is adjusted in accordance with s 35 from time to time. By a declaration pursuant to s 35(3) gazetted on 18 June 2021, the maximum amount that may be awarded for non-economic loss in a defamation proceeding is $432,500.

128. [128]
     The amount awarded by the court must be at least the minimum necessary to signal to the public the vindication of the plaintiffs’ reputation.^[23] It must be sufficient to convince a bystander of the baselessness of the allegation.^[24] The need for vindication can be reinforced by a defendant’s pleading and the persistence in pursuing a defence of justification.^[25]

129. [129]
     Where there is no claim for economic loss, as here, damages are said to be “at large”, in that there is no precise application or formula that can be applied to reach an appropriate quantum of damages.^[26] Rather, the assessment of damages will depend upon what is a fair and reasonable award having regard to all the circumstances of the case.^[27]

130. [130]
     The extent of the publication and the seriousness of the defamatory “sting” will be pertinent considerations.^[28]

131. [131]
     Injuries to feelings, which includes hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff,^[29] may constitute a significant part of the harm sustained by a plaintiff.^[30]

132. [132]
     The court should consider the ‘grapevine effect’ arising from the publication of the defamatory material.^[31] In Wagner, Justice Flanagan adopted the description of John Dixon J in Wilson^[32] of the grapevine effect as being:

“…no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published.”^[33]

133. [133]
     Whilst an award is entirely discretionary, there is a need for a level of consistency between closely comparable cases and that ought to constrain the proper exercise of discretion.^[34]

134. [134]
     Justice Applegarth in Cerutti commented:

“The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty and integrity. Very low awards of damages may provide an inadequate incentive for a wronged plaintiff to take on the risks and costs of potentially complex and protracted litigations. They may not deter careless, wreck less or malicious communications which harm individuals and businesses. Excessive awards of damages have the potential to act as a break on freedom of speech and encourage unnecessary self- censorship, notwithstanding the availability of defences designed to protect legitimate communications made without malice.”^[35]

(Citation omitted).

Principles for an award of Aggravated Damages

135. [135]
     Aggravated damages are a form of general damage given by way of compensation for injury to the plaintiff, which is often intangible.^[36]It is not a separate head or category of damage to general damages; rather, it is included within the award for general damages and “focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means for punishing a defendant.”^[37]

136. [136]
     Section 37 of the Act states that a plaintiff cannot be awarded exemplary or punitive damages for defamation.

137. [137]
     A judge in making the assessment of damages is not compelled to separately assess aggravated damages; however it should be apparent from the reasons whether it was considered that additional harm was caused to the plaintiff by conduct of the defendant considered to be improper, unjustifiable or lacking in bona fides.^[38] Where such conduct is found to have aggravated the injury to feelings or the harm to reputation then it will increase the harm caused by the defamatory material complained of.^[39] The aggravating conduct may have occurred in making the publication or at any time up to the assessment of damages.^[40]

138. [138]
     Section 36 of the Act requires the court to:

“…disregard the malice or other state of mind of the defendant at the time of publication of the defamatory matter … or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.”

139. [139]
     Obviously, the making of an apology, if there were one, would be a factor in mitigation. In his evidence, the defendant steadfastly maintained his position.

Evidence relating to damages

140. [140]
     While the law presumes the plaintiff has a previous good reputation and damage to his reputation follows from a defamatory publication, the plaintiff is entitled to lead evidence of his good reputation and of the actual harm caused by the defendant’s defamatory publication.

141. [141]
     In support of his reputation, Mr Harrington called two long-standing friends of his now adult children.

142. [142]
     Ms Brunelli said that her parents and the Harringtons were best friends and, whilst she had not lived in the area since 2010, she was still best friends with Joe’s daughter.

143. [143]
     Each gave evidence of him being hard-working, community-minded and dependable. Andrea Wilden said that “he was funny…he loved people and people loved him.” Both confirmed that there was never any suggestion of him being a paedophile.

144. [144]
     It was clear that neither lived in the local community now and that they did not see the Harringtons very often.

145. [145]
     Nevertheless, Ms Wildin gave evidence of Joe having come to her a few years ago, of his having cried about how he was feeling and said that these people were wrecking his life. She gave evidence of him having said that certain people were turning up at his work and at different places and saying that he was a paedophile. She then said she saw him not long ago and he was broken.

146. [146]
     She gave no particulars as to the people and precisely where she was told the statements about him had been made. There was no evidence from Mr Harrington that people turned up to his work and at different places saying that he was a paedophile. The most that he said was that statements had been made in his neighbourhood by Mr Shoard and Mr Carpenter, and the vague evidence concerning a statement made by John Dick.

147. [147]
     Mr Harrington did not at all give the impression of being a person who would cry or feel that the statements made by Mr Shoard were wrecking his life. I do not find the evidence of Ms Wildin credible in any respect.

148. [148]
     Mr Harrington gave evidence that he was shocked by the accusation that he was a paedophile, but that was not how he sounded on the video footage taken of the first defamatory statement. It would be more accurate to describe that event as simply one that degenerated into a slanging match between him and Mr Shoard. On his version that seemed to also be how the exchange between him and Mr Carpenter should be viewed as well.

149. [149]
     In answer to a leading question, Mr Harrington said that he “felt” that people were treating him differently because of the things said by Mr Shoard, and that he was worried about people treating him differently, but he also said nothing had ever been said to him and I am not prepared to accept that evidence on face value. Having had the opportunity to view Mr Harrington in the witness box and re-read objectively the transcript I am not convinced that Mr Harrington was hurt by the statement.

150. [150]
     It was specifically submitted that I should infer that as a result of his fear that people had heard the statement, Mr Harrington only rarely went to the RSL to drink, but I am not prepared to draw that inference.

151. [151]
     My view that the evidence of Mr Harrington cannot be accepted on these and other matters is reinforced by the evidence relating to the sale of his house. Mr Harrington was cross-examined at the trial on this issue, as was Mrs Harrington. They were both very evasive in any answers given and generally unwilling to answer the questions asked.

152. [152]
     At one point, Mr Harrington was asked in apparent exasperation, “Are you selling your house or not?” He answered, “No[t] at the moment.”

153. [153]
     On the re-opening, evidence was admitted which showed that the property was transferred to another entity, six days after that evidence. In view of the receipt of that evidence, Mr Harrington was invited to give further evidence which may have explained his earlier evidence and the issue generally. He declined to do so, notwithstanding the clear inference that the property must have been subject to an unconditional contract for sale at the time of his giving evidence. The only inference open on the whole of the evidence is that the answer given by Mr Harrington was simply not true.

154. [154]
     There was no evidence of there having been any ‘grapevine effect’ in this case and of the defamatory sign and statements having had any impact on the attitude of the people, who either read the sign or heard the words, towards Mr Harrington.

155. [155]
     In the case of the sign and the first statement, the recipients were the neighbours of Mr Shoard, who at the time were close friends of Mr Harrington and his wife.

156. [156]
     Whilst I accept it was Mr Shoard who first made a statement to Kim Horne suggesting Mr Harrington was a paedophile, I accept it was frequently the subject of discussion between Mr Harrington’s wife and Kim Horne. I do not accept that the further making of the statement by Mr Shoard, at or about the time of the erection of the defamatory signs, had any impact on Kim Horne, or other members of her family. The falling out with the Harringtons was as a result of a subsequent event, some two months later.

157. [157]
     The Hornes had lived at the property for over two years. They had been told of the accusations of Mr Shoard shortly after moving in and continued to remain on very friendly terms with the Harringtons for at least another two years.

158. [158]
     However, I do accept that Kim Horne was manipulated by Mrs Harrington and that Mrs Harrington encouraged Kim Horne to do things that she knew would provoke Mr Shoard. On the day of the making of the first defamatory statement, I accept that it was Mrs Harrington who encouraged Kim Horne to cut down the dragon fruit, which she knew would upset Mrs Shoard and her husband. The day before she and Kim Horne, using large knives, had slashed a tarp that was on the Shoards’ property.

159. [159]
     Mrs Harrington had a strong dislike of Mr Shoard, which she admitted. Likewise, I consider that Mr Shoard had a strong dislike of Mrs Harrington and that his dislike of her was such that it extended to Mr Harrington. Whilst he preferred to describe it as they meant nothing in my life at all, it was very clearly a dislike. The actions of each impacted on the other’s life.

160. [160]
     There was evidence suggesting that each took steps to lodge complaints with the council about activities on the other’s property, principally to do with the movement of trucks on each other’s property. There was evidence of Mrs Harrington frequently videoing the activities of Mr Shoard. The making of the second defamatory statement occurred on one such occasion. There was evidence of name calling.

161. [161]
     There was evidence on the day of the making of the third defamatory statement of Mrs Harrington having complained to the employer of Mr Shoard and of her having said that everyone in the Village considered that he was not a very nice man.

162. [162]
     In terms of any impact of the making of the second defamatory statement, the evidence was that no-one else was on the street that day. The only person who had heard Mr Shoard’s words was Mrs Harrington and her evidence was that it had no impact at all on her.

163. [163]
     The evidence of Ms Cowin in relation to the third defamatory statement was that no-one else was on the floor at the time and so no-one else heard the statement. She said that, apart from texting Carolyn Harrington, she had not mentioned to anyone what Mr Shoard had said to her that day.

164. [164]
     Her evidence was that her opinion of Joe Harrington at the time of the making of the statement was that he was a good helper and a nice person. When asked whether her opinion about Joe had changed at all following the making of the statement to her, she said, “No. No. Not at all.” She said that she didn’t believe it.

Assessment of Damages

165. [165]
     In the written submissions, I was referred to earlier decisions of this court; two in which the plaintiff was awarded $100,000,^[41] one in which the plaintiff was awarded $150,000^[42] and another in which the plaintiff was awarded $160,000.^[43] In determining an appropriate award for damages, it is relevant to take into account comparable cases, but I should exercise caution in doing so.^[44] Each case depends on its own facts.

166. [166]
     The circumstances of each of the decisions were considerably more serious than the present, with the publications far more widespread and the impact of them on the plaintiffs much more significant.

167. [167]
     In Atholwood, the defamatory statements were made to various people, including business competitors of the plaintiff, and there was held to have been a significant grapevine effect. As a result, the plaintiff suffered and was diagnosed as suffering from depression. In Bertwhistle, the defamatory statements were made to a member of the plaintiff’s family and were held to have had a serious impact upon the plaintiff, including that he was no longer invited to social functions and gatherings of family members. In Gratton, the defamatory statements were made to the nearby school, police and other people and affected the health of the plaintiff such that he suffered depression. It was also held that he and his wife had to move house to avoid gossip and they stopped going to places and stopped socialising as a result of the statements.

168. [168]
     In Gregory, the defendant had published the defamatory statement that the plaintiff was a paedophile to his fiancée (with an effect on that relationship and ultimately led to their separation), his workplace (which resulted in some persons at his place of employment shunning and avoiding him) and a close friend of his mother (which affected that relationship). The plaintiff had to take time off from work as a result of the statement and required treatment for his depression.

169. [169]
     There is no evidence here, which I am prepared to accept, that Mr Harrington suffered any distress as a result of the statements. The evidence is that the statements did not have any effect on his wife or Ms Cowan and there is no evidence that anyone else in the wider community was aware of the statements. Whilst some damage to the reputation of the plaintiff is assumed,^[45] there is, accordingly, no need, as there was in the decisions mentioned, for the court to vindicate his reputation to the wider community.

170. [170]
     The two latter cases included a component for aggravated damages; in the case of Gratton an amount of $30,000 and in the case of Gregory an amount of $40,000. In Gratton, it was said that the defendant had persisted with a defence of substantial truth and had refused in derogatory terms to mediate or apologise. In referring to the comments by Applegarth J in Cerutti, it was said those scenarios comprised some of the scenarios to which his Honour had referred and which would justify an award of aggravated damages here.

171. [171]
     Although the accusation was vile and unsubstantiated, the harm done to the plaintiff was extremely modest and any injury very short lived. The plaintiff is entitled to a small component for aggravated damages, given the unjustifiable nature of the allegation, the persistence with a defence of justification and the failure to admit that the second and third defamatory publications were made as alleged.

172. [172]
     Although it is conventional to order a total sum by way of damages for all the publications, that is complicated by the fact that I have found the defence under s 33 established with respect to three of the publications.

173. [173]
     The total sum I award, by way of general and aggravated damages, for the third publication is $15,000. If the defence had not been established with respect to the other three publications, the total damages I would have awarded would have been $25,000.

Interest

174. [174]
     The plaintiff seeks interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) and it was submitted that it is usual for damages to be calculated from the date of publication.

175. [175]
     The discretion to award interest is a discretion to be exercised judiciously. The appropriateness of an award will depend on the facts of the case “but interest is conventionally awarded at a rate of around 3 percent from the date of publication.”^[46]

176. [176]
     The fact that the award is for a modest amount is not considered a reason for refusing to make an award of interest.^[47]

177. [177]
     Given the findings in relation to the sign and the first and second statements, interest will be awarded at the rate of 3 per cent per annum from the date of the third publication being 14 April 2021.

Injunctive Relief

178. [178]
     On behalf of Mr Shoard, it was said that no evidence was given at trial establishing the existence of a threat, intention, risk or likelihood of republication by Mr Shoard. It was submitted that there was no suggestion that Mr Shoard had made any further defamatory statement since April 2021 or that he is threatening to do so.

179. [179]
     Further, at the time of the trial, it was submitted that it seems likely that the Harringtons will be moving away from the area and, as such, it will be unlikely that Mr Harrington will have any further contact with Mr Shoard. As a result of the subsequent application and the re-opening, the evidence is that the Harringtons have indeed left the neighbourhood.

180. [180]
     In his written submissions, counsel for Mr Shoard submitted that an undertaking from Mr Shoard will be sufficient. Mr Shoard did not, however, offer one or propose the terms of one.

181. [181]
     Although the Harringtons have departed from the neighbourhood, defamation may take various forms and there is no reason to think their departure would result in the defamatory comments not being repeated. After all, Mr Shoard has persisted with untrue allegations about Mr Harrington for some seven years.

182. [182]
     I am satisfied that a permanent injunction should be issued restraining him from publishing statements to the same effect as the statement made to Ms Cowin and the imputations which arise from that statement.

183. [183]
     I will hear from the parties as to costs.

Orders

184. [184]
     I make the following orders:

1. That the defendant pay to the plaintiff damages for defamation in the sum of $15,000 plus interest in the sum of $822.33 being a total of $15,822.33.

2. The defendant is permanently restrained from publishing or causing to be published any statement to the effect that the plaintiff is a paedophile or had sexually abused a 12 year old girl.