Leigh v Sanchez[2024] QDC 123

DISTRICT COURT OF QUEENSLAND

Contents

Summary

1. [1]
   The plaintiff, Ms Leigh, sues the first defendant (Mr Sanchez) and the second defendant (Ms Sanchez) for defamation arising out of posts on a Facebook page posted between January and December 2017.  On 28 June 2024, Ms Leigh filed a further amended statement of claim (FASOC).  The FASOC pleaded a claim for aggravated damages.  The defendants submit that that the allegations supporting that claim should be (almost) entirely struck out. I agree.  

Procedural history

2. [2]
   The proceedings were commenced by claim and statement of claim (SOC) on 11 March 2018.  Ms Leigh sought damages jointly and severally against the defendants of $270,000, and aggravated damages on the same basis of $180,000.   The SOC pleads that Ms Leigh was the owner and administrator of a Facebook account called “Lemon Caravans & RVs in Aus”.  She pleads that she was an advocate for consumer rights in relation to caravans and the like.  
3. [3]
   The SOC pleads that Mr Sanchez was the owner and administrator of a Facebook account called “Shonky Caravan-Builders Dealers Around Australia” (the Shonky Facebook page).  It does not plead that he is also a consumer rights advocate, but I infer that the purpose of the account is suggested by its name.  The Shonky Facebook page is alleged to have had over 7,500 members at the time of the publications.
4. [4]
   The existence, ownership and administration of the two Facebook pages is not in dispute, though the defendants dispute by their defence that Ms Leigh was an advocate of the kind she alleges (in language which reflects the bitterness of feeling between the parties).
5. [5]
   The SOC pleads that 28 publications of defamatory matter occurred over the period from January to December 2017.   All the publications were allegedly posted to the Shonky Facebook page.  Where both defendants contribute to, or comment on, a post, they are both alleged to be liable.  Where only one does so, that individual defendant is said to have published the post.  Where neither have contributed, Mr Sanchez is said to be liable, presumably as administrator (though that is not pleaded).
6. [6]
   There are detailed imputations pleaded for each publication.  The gravamen of the SOC is that the defendants published matter imputing that Ms Leigh was making dishonest use of her Facebook page and her advocacy activities for her own benefit.  There are also numerous imputations alleged which accompany that core complaint: that Ms Leigh is dishonest, a tax cheat, a liar, and other abusive imputations.
7. [7]
   The SOC pleads 25 further defamatory publications (without particularising them), alleges that all the publications were actuated by malice, and claims aggravated damages on the basis of the fact of the further publications in the face of a concerns notice.
8. [8]
   The original defence was struck out with costs by Judge Andrews SC on 6 June 2018.  The current defence is the amended defence filed 2 July 2018.  There is no current challenge to the existing pleadings, other than to the aggravated damages allegations in the FASOC.  Accordingly, the principal components of the pleadings necessary for trial are not under challenge.
9. [9]
   On 21 December 2018, Ms Leigh filed an application for an injunction to restrain the defendants from continuing to make defamatory statements about her.  On 23 January 2018, that application was dismissed on undertakings given by the defendants which provided (the Court undertakings):

UPON THE UNDERTAKING OF THE FIRST AND SECOND DEFENDANTS, GIVEN BY THEIR COUNSEL TO (UNTIL THE CONCLUSION OF THE TRIAL OF THIS MATTER, FURTHER ORDER OF THIS HONOURABLE COURT, OR WRITTEN AGREEMENT OF THE PARTIES) REFRAIN FROM:

2. A.PUBLISHING POSTS OR COMMENTS ON THE ‘SHONKY CARAVAN BUILDERS-DEALERS AROUND AUSTRALIA’ ACCOUNT ON THE FACEBOOK.COM WEBSITE, OR ON ANY OTHER ACCOUNT ON THE FACEBOOK.COM WEBSITE, OR ON ANY OTHER WEBSITE, WHICH ARE DEFAMATORY OF, THE APPLICANT; AND
3. B.IN ANY WAY AIDING, ABETTING, COUNSELING, OR PROCURING A PARTY TO THE CONDUCT REFERRED TO IN PARAGRAPH (A) ABOVE

10. [10]
    On 7 June 2019, Ms Leigh filed an application that the defendants be punished for contempt of the Court undertakings.  Her application was entirely replaced by an amended application filed on 5 August 2019 (the contempt application).  The amended application relevantly provided:

Contempt

1. A
   The first defendant be punished for contempt pursuant to s. 129 of the District Court of Queensland Act 1967, for breaching an undertaking given to the Court by the Defendants in the Consent Order filed 23.01.2019 [Court doc 21], by;

2. 1.Publishing posts or comments on the facebook.com website, which are defamatory of the Plaintiff; or

Alternatively

2. 2.Aiding, abetting, counselling, or procuring a party to do the conduct referred to in paragraph 1(a) above; by

1. (a)
   Publishing or aiding to be published on or about 10 March 2019, a certain internet comment on the 'Shonky & Non Shonky Caravan Builders-Dealers Around Australia' account on the facebook.com website which included the following words:

1. (i)
   “This is a very long post intended for Tracy Leigh”;
2. (ii)
   “1 have evidence of you lying on quite a few occasions and so do others.”;
3. (iii)
   “You manipulate the system to suit your own agenda, it's all about you.”;
4. (iv)
   “You disgust me in the way you conduct yourself as a human being.”;
5. (v)
   “You 're vindictive.”;
6. (vi)
   “You 're a master at bullying but yet you claim others bully you”;
7. (vii)
   "You obviously have no morals, feelings or respect for Dolly and her family. That was a disgusting act on your behalf;
8. (viii)
   "I and others have often caught you out spreading lies, misinforming people about products-manufacturers-repairers thus leading them astray and no doubt them potentially making a wrong decisions when looking to purchase a caravan.”;
9. (ix)
   "You’re trying to destroy the industry without success 1 might add and the only Aussie industry we’ve got left, (how unpatriotic of you) and yet you call yourself an Australian?”;
10. (x)
    "You disgust me.”; and
11. (xi)
    "I guess you wouldn’t know what hard work is.”

1. (b)
   The words set out in paragraphs 2(b)(i)-(xi) referred to the Plaintiff.
2. (c)
   The words set out in paragraphs 2(b)(i)-(xi) were defamatory of the Plaintiff.
3. (d)
   Publishing or aiding to be published on or about 10 June 2019, a certain internet post and comments on the 'Shonky & Non Shonky Caravan Builders-Dealers Around Australia' account on the facebook.com website which included the following words:

1. (i)
   Phil Sanchez;

"ANNOUNCEMENT.

It is alleged an admin of a Lemon Site has created another page "The Newspaper” it also created "Lemon vs Shonky“ which was forcibly disabled.

It is alleged also renowned in the industry and by thousands of people for "dishonesty, unreliability, deceitfulness, dishonourable conduct, disruptable, devious, illegal publishing of materials, devious, malicious, spiteful acts, harassment, fabrication on materials.

It is also confirm that admin is now being sued for defamation and another one pending.”

1. (e)
   The words set out in paragraphs 2(d)(i) referred to the Plaintiff.
2. (f)
   The words set out in paragraphs 2(d)(i) were defamatory of the Plaintiff.
3. (g)
   Publishing or aiding to be published on or about 10 June 2019, a certain internet post and comments on the 'Shonky & Non Shonky Caravan Builders-Dealers Around Australia' account on the facebook.com website which included the following words:

1. (i)
   Phil Sanchez: "Such a nasty viscous vindictive human being but it says "Take care, be safe, be kind” maybe it should practice what it preaches.”
2. (ii)
   Martin Berke: "Phil Sanchez it's a clear case of "do as I say not as I do ”typical behaviour of a PD with sociopathic traits.”
3. (iii)
   Phil Sanchez: "Martin Berke That’s another way of describing it.”
4. (iv)
   Martin Berke: "Phil Sanchez I think it a very accurate diagnosis.

Profile of the Sociopath

*Glibness and Superficial Charm.

*Manipulative and Conning.

*They never recognize the rights of others and see their self-serving behaviors as permissible.

*Grandiose Sense of Self

*Pathological Lying.

*Lack of Remorse, Shame or Guilt.

*Shallow Emotions.”

1. (v)
   Phil Sanchez: "... And I know it’s a certain admin [referring to the plaintiff] who created the website. It’s a paying site. More money out the that fund to pay for stupidity.

The creator is one sick puppy and that creator did say publicly on another site it had a mental illness. I actually kept the screenshot. I don’t think any medication can treat that sickness. How sad.”

1. (h)
   The words set out in paragraphs 2(g)(i)-(v) referred to the Plaintiff.
2. (i)
   The words set out in paragraphs 2(g)(i)-(v) were defamatory of the Plaintiff.

1. B.
   The second defendant be punished for contempt pursuant to s. 129 of the District Court of Queensland Act 1967, for breaching an undertaking given to the Court by the Defendants in the Consent Order filed 23.01.2019 [Court doc 21], by:

2. 3.Publishing posts or comments on the facebook.com website, which are defamatory of the Plaintiff; or

Alternatively

2. 4.Aiding, abetting, counselling, or procuring a party to do the conduct referred to in paragraph 3 above; by

1. (a)
   Publishing or aiding to be published on or about 21 February 2019, a certain internet comment on the 'Shonky & Non Shonky Caravan Builders-Dealers Around Australia' account on the facebook.com website which included the following words:

1. (i)
   “Vaughan Hindley ITS gutless [referring to the Plaintiff] otherwise why turn of comments maybe IT will get hammered again.. such a coward”; and
2. (ii)
   “Wayne Proudfoot IT gutless [referring to the Plaintiff] has no conscience just Looking for pats to say how good IT is”.

1. (b)
   The words set out in paragraphs 4(a)(i)-(ii) referred to the Plaintiff.
2. (c)
   The words set out in paragraphs 4(a)(i)-(ii) were defamatory of the Plaintiff.
3. (d)
   Publishing or aiding to be published on or about 7 March 2019, a certain internet comment on the 'Shonky & Non Shonky Caravan Builders-Dealers Around Australia' account on the facebook.com website which included the following words:

1. (i)
   "One would think one would heed ones advise. Where is the proof of donations and where they are going ?? How many have asked .. what a hypocrite it is as the fund itself is not reportable to the victims many many are asking so where is its disclosure easier to smoke screen and attack everyone for illegal dealings so my question is for IT where is your proof of what has been donated and where is it ? Sure you go on about insolvent trading but what about fraud, not showing income, not tell ato Centrelink and every other scam how much is there . Transparency , what transparency that is the question to be asked before mouthing off about the unknown”

1. (e)
   The words set out in paragraphs 4(d)(i) referred to the Plaintiff.
2. (f)
   The words set out in paragraphs 4(d)(i) were defamatory of the Plaintiff.
3. (g)
   Publishing or aiding to be published on or about 10 June 2019, a certain internet comment on the 'Shonky & Non Shonky Caravan Builders-Dealers Around Australia' account on the facebook.com website which included the following words:

1. (i)
   Stan Lyall: "Should you wish to report the head lemon's childish little web page thecontipatedchronicle.com ... Here is the email address to report abuse. email@godaddy. com

Maybe you could also tell Alf from Home and Away. Lol”;

1. (ii)
   Janelle Kamp: "Stan Lyall email to Godaddy bounces back. Another cowardly way to attack someone - setup a so called "newspaper" on a webpage that you cannot report!”; and
2. (iii)
   Rona Sanchez: "Janelle Kamp the person [referring to the plaintiff] is a lunatic

1. (h)
   The words set out in paragraphs 4(g)(iii) referred to the Plaintiff.
2. (i)
   The words set out in paragraphs 4(g)(iii) were defamatory of the Plaintiff.

11. [11]
    On 26 September 2019, the contempt application was adjourned to the registry.  No date for hearing that application has ever been set by the Court. 
12. [12]
    (By submissions to Judge Barlow on the 8 April 2024 application, referred to below, the plaintiff’s lawyers appear to submit that the contempt proceedings had “been scheduled to be determined when the defamation trial is heard”.^[1]  There was no order to that effect by the Court.  Only the Court can list a matter for hearing, regardless of any agreement of the parties.  I understand from discussion with the parties in a directions hearing last week that they accept there has never been an order of the Court for listing of the contempt application for hearing, much less at the trial, listed for 2 December 2024.)
13. [13]
    From September 2019 to November 2020, the plaintiff obtained an assessment of the costs order made by Judge Andrews SC, which was ultimately assessed at some $17,000, with judgment entered for that sum.  The registrar’s order for costs was filed on 24 November 2020.  
14. [14]
    The next document filed was an application filed by the defendants on 8 April 2024 (CD 41), over three years later.  The defendants sought to have the proceedings dismissed for want of prosecution.  They also sought an anti-suit injunction against the plaintiff in relation to her proceedings in the Magistrates Court of Western Australia on the basis that they comprised an abuse of process. On 8 June 2023, Ms Leigh had filed an application for a misconduct restraining order against Mr Sanchez in the Magistrates Court of Western Australia (the WA proceedings).  Mr Sanchez swore that that application and its supporting material relies on alleged breaches of the 2018 undertakings given to the District Court, and several of the subsequent publications relied upon in various versions of the SOC, including the FASOC.  The WA proceedings are under the Restraining Order Act 1997 (WA).  It is the equivalent of a restraining order under the Peace and Good Behaviour Act 1992 (Qld).   He swore that the application was listed for hearing for 3 days, commencing 29 July 2024.  He complained that he was required to defend the WA proceedings and to deal with the Queensland proceedings in respect of the same issues.
15. [15]
    Up to May 2024, Ms Leigh had been represented by Australian Law Partners (ALP).  On 24 May she began acting in person.  ALP appeared on 14 June 2024 before Judge Barlow KC and came back on the record on 20 June 2024. On 13 June 2024, Ms Leigh had filed an amended statement of claim (ASOC), which she had prepared.   The amendments related to aggravated damages.  It very substantially expanded those allegations.
16. [16]
    On 14 June 2024, his Honour dismissed the application filed 8 April 2023.  His Honour listed the matter for trial for two weeks commencing 2 December 2024.  He also ordered the exhibits to Mr Sanchez’s affidavit relating to the WA proceedings to be uplifted from the file, so I have not read the documents relating to those proceedings myself. 
17. [17]
    His Honour also made an order providing for the defendants to articulate any objections to the ASOC, and for the hearing of any such application on 12 July in the applications list.  In response to the criticisms of the ASOC, Ms Leigh (now with ALP acting again), filed the FASOC on 28 June 2024, which sought to address some of the complaints of the defendants directed at the ASOC.
18. [18]
    The 12 July 2024 hearing then changed into an application for leave to file the FASOC.  Judge Jarro granted leave and listed any application to strike out the FASOC on 25 July 2024.  That is the application which came before me.

The FASOC

19. [19]
    As noted above, the primary case as pleaded in the FASOC remains largely in the form in which it was originally articulated in the SOC.  There is no challenge to that pleading, nor to the defence to it.  The strike out is focussed solely on the claim for aggravated damages.   I will set out the relevant parts of the FASOC.  I do not think it necessary or useful to include deletions or underlining of changes, so omit those matters of form.
20. [20]
    The FASOC provides, by paragraphs 65 to 69E, a series of allegations relied upon as providing a context for the further publications relied upon:

Aggravated Damages

1. 65.On 31 October 2017 the Plaintiff caused a Concerns Notice to be sent to the First Defendant.
2. 66.The Defendants received the Plaintiff’s Concerns Notice but continued to publish defamatory matter about the Plaintiff in contumelious disregard the Plaintiff's rights and the damage that was likely to be caused to the Plaintiff’s reputation.
3. 66A.The Defendants continued to publish defamatory matter about the Plaintiff after the Statement of Claim was filed on 21 March 2018.

Particulars

The defamatory matter is pleaded at paragraphs to 71 to 87

1. 67.On 21 December 2018, the Plaintiff made an Application ("the Application") to the District Court of Queensland to restrain by injunction the First and Second Defendants from:

1. (a)
   Publishing posts or comments on the "Shonky Caravan Builders-Dealers Around Australia" account on the facebook.com website, or on any other account on the facebook.com website, or on any other website, which refer to either directly or implicitly, or which are defamatory of, the Applicant; and
2. (b)
   In any way aiding, abetting, counselling or procuring, and from being directly or indirectly knowingly concerned in or a party to the conduct referred to in paragraph 1(a).

1. 68.On 23 January 2019, the Application was heard before Judge Koppenol in the District Court of Queensland and, by consent order ("the Consent Order"), the First and Second Defendants agreed to an undertaking to refrain from:

1. (a)
   Publishing posts or comments on the 'shonky caravan builders-dealers around australia' account on the facebook.com website, or on any other account on the facebook.com website, or on any other website, which are defamatory of, the applicant; and
2. (b)
   In any way aiding, abetting, counseling, or procuring a party to the conduct referred to in paragraph (a) above.

1. 68A.On 12 March 2019, the Defendants gave an undertaking by their solicitors ("the March Undertaking") that they:

1. (a)
   Have commenced and will by today complete removing all of the posts shown on the Sample Posts.pdf file provided.
2. (b)
   Will refrain until conclusion of the matter from posting anything referring directly or indirectly to your client except for responding to anything posted by your client and then limiting any comment to a response to the post itself (making no comment about the maker of the post).

1. 68B.Despite the March Undertaking, the Defendants continued to publish defamatory matter about the Plaintiff and material that breached the March undertaking.

Particulars

The defamatory matter is pleaded at paragraphs to 98 to 113

1. 68C.On 7 June 2019, the Plaintiff filed an application for the Defendants to be punished for contempt of court which was later adjourned by the Court.
2. 68D.On 1 August 2019, the Plaintiff filed an amended application for the Defendants to be punished for contempt of court which was later adjourned by the Court.
3. 68E.On 4 September 2019, the Plaintiff wrote to the Defendants seeking a further undertaking to cease publishing in return for the contempt of court application to be heard at trial.
4. 69.Despite the undertaking given pursuant to the Consent Order referred to in paragraph 68, the March Undertaking, the contempt of court application and the letter of 4 September 2019, the First and Second Defendants continued to publish defamatory matter about the Plaintiff, in contumelious disregard of the Plaintiff's rights and the damage that was likely to be caused to the Plaintiffs reputation.
5. 69A.On 24 December 2022, the Plaintiff by her solicitor wrote to the Defendants that they had both continued to breach the undertakings and in doing so had exacerbated the Plaintiff’s distress.
6. 69B.On 31 March 2023, the Plaintiff by her solicitor wrote to the Defendants noting that the defamatory publications had not ceased and had escalated by which letter the Plaintiff demanded that the publications be removed and an apology published. These demands were not met.
7. 69C.On 13 April 2023, the Plaintiff filed an application for a Misconduct Restraining Order against the First Defendant in the Magistrates' Court of Western Australia.
8. 69D.On 14 July 2023, Magistrate Andretich of the Magistrates' Court of Western Australia upgraded the Misconduct Restraining Order to an interim Violence Restraining Order on the basis that the First Defendant had engaged in stalking the Plaintiff.
9. 69E.Despite the letters of 24 December 2022, 31 March 2023 and the interim Violence Restraining Order of 14 July 2023, the First Defendant has continued publishing about the Plaintiff in breach of both the undertakings and the terms of the interim Violence Restraining Order.

21. [21]
    Paragraph 71 then provides: 

1. 71.Following are the worst examples of the defamatory material published by the Defendants, and members of the Shonky Caravans Facebook page after 4 February 2018 (the date of the last matter complained of in the original Statement of Claim) and before the Consent Orders of 23 January 2019.

22. [22]
    Paragraphs 72 to 87 plead the “worst” examples.  Most are alleged to be posts by Mr Sanchez. Some are posts by others.  And a few are posts by, or including a comment by, Ms Sanchez.  The only facts linking the alleged posts to the defendants are those in paragraph 71, and the alleged identity of the person posting.
23. [23]
    Paragraph 88 refers to the next chronological contextual matter.  It pleads:

1. 88.Following are the worst examples of the defamatory material published by the Defendants and members of the Shonky Caravans Facebook group in the group, after the Consent Orders of 23 January 2019.

24. [24]
    Paragraphs 89 to 139 then plead the examples referred to in paragraph 88.  They cover posts from 7 February 2019 to 27 June 2024.  Again, some are alleged to be posts by Mr Sanchez. Some are posts by others.  And a few are posts by, or including comments by, Ms Sanchez.  It is unnecessary to set out all the examples, which on my count total some 80 separate alleged posts (including paragraphs 72 to 87).  There has been no defence filed to these allegations. 
25. [25]
    Many of the posts alleged use crude, insulting and offensive language in reference to Ms Leigh, either directly or by implication from references to lemons (note the name of her Facebook page).   Paragraph 95 gives a (distasteful) flavour of some of the posts:

2 March 2019

Kylie Ledwich: "Im glad something positive came out of her vile drivel."

Gordon Beresford: "Get well Roy forget about the witch she is a c…..t"

Rona Sanchez: "Your stand was busy As.  Put your energy into your health ignore that thing that's sticks like shit and it will eventually flush away. Just take care of u.”

Ted Allen: "Chin up Mate .... don't let people with issues and vendettas get you down!!  The old karma bus will sort them out eventually !!"

Julie Anne Collis: "What did I miss?? Does someone require a hit man/woman?? Take care buddy, been there, done that, as someone else said, just take care of you. I'll take care of her."

Phil Sanchez: "All the best Roy. Yes some people will will kick the vulnerable to the kerb. Those low life who are having a go at you personally and your business because of a grudge. Then I wish them especially one person all the misery that can be had. Get well soon. You're a good person and don't let those no hopers who are stuck in a rut get to you."

Frank Tabone: "Cannot think of a more poisoned person than you know who Karma will catch up with her".

Rona Sanchez: "ITS spilling beans u not paying your bills that u going from supplier to supplier racking up bills ITS insiders are saying Think a fumigation for all the fleas needs to done lol”.

Janelle Kamp: "Rona Sanchez just read it. Boarders on the unbelievable, trying to ruin a company - trial by FB. SMH"

Rona Sanchez: "Janelle Kamp biatch”

26. [26]
    There is a good deal more in that style. 
27. [27]
    From paragraph 140 to 151, the FASOC turns to allegations seemingly directed at linking the various posts and their context to the aggravated damages claim:  

1. 140.The Plaintiff relies on paragraphs 72 to 87 and 89 to 136C^[2] solely for aggravated damages against each of the Defendants.
2. 141.The publications relied upon for aggravated damages exacerbated the Defendants' conduct in publishing the defamatory material in the original Statement of Claim.
3. 142.The aggravated damages publications were actuated by malice. They were published with:

1. (i)
   an improper motive, ill will, knowledge of the falsity of the publication or reckless indifference to the truth or falsity;
2. (ii)
   an intent to cause harm to the plaintiff, in that they set out to destroy the Plaintiff’s health, personal life, privacy and her vocation as a consumer advocate;
3. (iii)
   an attempt to obtain progress or advantage through the publication, where Defendents claim that their Facebook group is the only credible and reliable source of information about the recreational vehicle industry; and
4. (iv)
   an opinion that is not a genuine or honest opinion based on proper material and a breach of the Undertaking given to the Court and the Plaintiff.

1. 143.The Defendants did not respond to the concerns notice of 31 October 2017 and continued to publish without cessation the same or similar publications to cause harm to the Plaintiff.
2. 144.The publications are substantial in number, persistent and have not ceased despite court orders, the voluntary undertaking of the Defendants and two contempt of court applications (as yet unheard).
3. 145.The Defendants have had a reckless disregard as to the truth of the publications and the meanings that they conveyed, which caused ongoing distress and harm to the Plaintiff.
4. 146.The pursuit of the Defendants' defence to the Statement of Claim have further caused ongoing  distress and harm to the Plaintiff.
5. 147.The Defendants have used their superior financial position to deliberately prolong the proceedings, cause multiple interlocutory applications, and subsequently cause distress and harm to the Plaintiff, who is a disability support pensioner.
6. 148.The Defendants have never apologised or made any offers to make amends.
7. 149.The allegations in the publications went to the very heart of the Plaintiff’s consumer advocacy. They diminished the Plaintiff's efficacy in assisting consumers and undermined her crowd funding efforts.
8. 150.The allegations of criminality, including fraud, were unfounded and have caused substantial distress and harm to the Plaintiff.
9. 151.The sexualised publications, threats and intimidation of the Plaintiff have caused extreme distress and harm to the Plaintiff.

28. [28]
    The defendants seek to strike out all of paragraphs 65 to 151, except paragraphs 146 and 148.

The defendants’ submissions

29. [29]
    The defendants submit that the aggravated damages allegations (the allegations) are defective in form and substance.  Mr Levine for the defendants advanced the following arguments.
30. [30]
    First, the allegations fail to draw any distinction between the defendants in circumstances where most of the examples pleaded do not, on their face, relate to the defendants acting together. 
31. [31]
    Second, they submit that, for many of the examples pleaded, there is no basis pleaded for either of the defendants to be responsible for the post in question.  On the assumption that all examples are posts on the Shonky Facebook page, the issue which arises is how either defendant is responsible for posts which they did not make or adopt.
32. [32]
    Third, the defendants refer to 68A, 68B, 69 and 69E FASOC.  They submit that the allegations that they “continued to publish defamatory matter” is embarrassing:

1. (a)
   While the examples are pleaded, it is not pleaded what defamatory imputations arise from the publications, which is necessary to make good the conclusory allegation (at least where the imputation is not obvious, I suppose); and
2. (b)
   The FASOC relies on the allegation that the examples are defamatory matter as the sole integer for the publications to be aggravating by reference to the various letters, undertakings and orders pleaded in paragraphs 65 to 69E FASOC.  However, the defendants submit that the mere fact that the defendants plead that the examples are defamatory matter is not sufficient to sustain the submission that those examples are aggravated the damages from the pleaded causes of action because those publications were in breach of, or inconsistent with, the various orders and undertakings.  Emphasis was placed on the fact that two separate undertakings were offered to the Court, and the mere fact that defamatory matter appeared on the Shonky Facebook page did not of itself comprise a breach of either.

29. [33]
    Fourth, the defendants submit that paragraph 142 of the FASOC fails to plead the basis for which the states of mind alleged are inferred, nor does it draw any distinction between the various publications and the two defendants. 
30. [34]
    Fifth, the defendants submit that, as a matter of law, acts or omissions which can aggravate damages for defamation must be acts or omissions known to the plaintiff.  They submit that the FASOC does not plead that the examples were known to the plaintiff.  
31. [35]
    Sixth, the defendants submit that the pleading of the Court undertaking, and of a breach of that undertaking, is an abuse of process or, alternatively, irrelevant.  As to the former, it is submitted that where Ms Leigh has the contempt application on foot, raising the same issues in the defamation proceedings is an abuse of process.  As to the latter, it is submitted that whether there were publications in breach of the undertaking cannot be relevant, as a matter of law, to aggravated damages.
32. [36]
    Seventh, the defendants submit that the pleading of the WA proceedings   is irrelevant.
33. [37]
    Eighth, the defendants submit that, as a matter of law, the publication of defamatory matter post-dating the publications which are the subject of the proceedings cannot be relied upon to aggravate damages for the pleaded publications, particularly where there is no reliance on post-dated publications to show malice in the publications relied upon.  They rely on Justice Flanagan’s decision in Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [749] to [754].
34. [38]
    Ninth, the defendant submits the subsequent publications should be struck out because the FASOC avoids the operation of s. 10AA of the Limitations of Actions Act 1974 (Qld). The defendants submit:

1. (a)
   The publications pleaded in paragraphs 72 to 124 FASOC are statute barred and no extension can be granted, as more than three years have passed;
2. (b)
   The publications pleaded in 132 to 139 FASOC are statute barred.

29. [39]
    Tenth, the defendants submit that the publications pleaded in paragraphs 125 to 139 are subject to the serious harm test. The defendants submit that the plaintiffs have not pleaded the matters required by s. 49(2) Defamation Act 2005 (Qld) to avoid the application of s. 10A of that act and therefore, in the absence of pleading serious harm, the paragraphs should be struck out.

Aggravated damages: general principles

40. [40]
    Aggravated damages are a form of compensatory damages which relate to the general damages head of loss in defamation proceedings.  John Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59] (helpfully, to numerous trial Judges throughout the land who have adopted his summary), summarised the principles relevant to general damages in defamation, as follows^[3] (footnotes omitted):

Some damage to the plaintiff’s reputation is presumed by law.  The defendants did not dispute that the plaintiff also suffered some hurt to her feelings. The plaintiff gave further evidence of the damage to her reputation and the injury to her feelings that I will come to. It is convenient to commence by stating some well-established principles relevant to the assessment of general damages that were not in contest. In doing so, I will defer until later in these reasons a discussion of the principles in respect of the plaintiff’s claim to special damages.

1. (a)
   The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation. The assessment of general damages is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula.
2. (b)
   The sum awarded must demonstrate vindication of the plaintiff’s reputation. The level of damages ought to reflect ‘the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment’.
3. (c)
   The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge. At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.
4. (d)
   Section 34 of the Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
5. (e)
   The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
6. (f)
   In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon is 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. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.
7. (g)
   It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages. Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.
8. (h)
   Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant. An award of aggravated damages may be made if a defendant has acted in a manner which demonstrates a lack of bona fides or engaged in conduct which is otherwise improper or unjustifiable. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused to the plaintiff. A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.
9. (i)
   At common law, in awarding aggravated damages, the court compensated the plaintiff for the loss actually suffered as a result of the defamation. In doing so, the court could adopt the highest level of damages open as compensatory damages. The parties disagreed about whether this approach was now precluded by s 35 of the Act.

41. [41]
    Aggravated damages, as his Honour observes, is a form of compensatory damages.  In Wagner v Harbour Radio Pty Ltd [2018] QSC 201, Flanagan J summarised the general principles which inform the award of aggravated damages as follows:

1. [739]
   The plaintiffs’ pleaded claim for aggravated damages reflects the principles identified by the High Court in Triggell v Pheeney and Carson v John Fairfax & Sons Ltd.  In Carson Brennan J stated:

“Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant.  Conduct of the defendant from the time of publication until verdict (including conduct at the trial …) is relevant.  In Broome v Cassell & Co Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said: 

‘It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant.  He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said.  That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.’

Evidence of the defendant’s conduct is admissible also in proof of malice.”

1. [740]
   Brennan J’s reference to conduct being admissible in proof of malice must be understood in the context of s 36 of the Act which provides:

State of mind of defendant generally not relevant to awarding damages.

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.”

1. [741]
   In Carson, Brennan J considered a similar provision, being s 46(3)(b) of the Defamation Act 1974 (NSW).  His Honour observed:

“Evidence of the defendant's conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff's injured feelings.”

1. [742]
   Conduct of a defendant which is improper, unjustifiable or lacking in bona fides is a basis upon which aggravated damages are awarded.  Such conduct does not have to be malicious. The relevant conduct, however, must affect the harm sustained by the plaintiff either by increasing the injury to the plaintiff’s feelings or the injury to the plaintiff’s reputation.  As observed by Applegarth J in Cerutti:

“Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages.  However, if the plaintiff is aware of the defendant’s state of mind and this aggravates the plaintiff’s hurt feelings, then damages may be increased in order to appropriately compensate.”

1. [743]
   Where conduct of a defendant which is improper, unjustifiable or lacking in bona fides is established, an increase to a plaintiff’s sense of hurt may be presumed from all the evidence.
2. [744]
   The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations. 
3. [745]
   A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.

[underlining added]

42. [42]
    In submissions I suggested that only conduct known to the plaintiff could be relevant because a plaintiff must know of conduct for it to aggravate the hurt to their feelings.  I have included the underlining to highlight that conduct by a defendant which can aggravate damage is not limited to conduct which increases the hurt to the plaintiff’s feelings, but also conduct which increases injury to the reputation.  This must be so.  Aggravated damages are compensatory in nature.  It must therefore follow that any conduct which aggravates a particular component of general damages must be capable of comprising aggravated damages.  By that reasoning, conduct which tended to increase the need for damages to vindicate a plaintiff’s reputation would also fall within the scope of the doctrine.

Aggravated damages: subsequent publications

43. [43]
    The forms of conduct which might aggravate damages are broad^[4] (footnotes omitted):

21.32

Examples of situations in which claimants might be entitled to an award of aggravated damages include where the defendant has unjustifiably failed to retract or apologise; the defendant has repeated the offending allegations; the defendant failed to investigate the defamatory allegations before publishing them; the conduct of the defendant or the defendant’s legal team prior to or during the trial, or even after the verdict, was calculated to deter the claimant from proceeding; and the defendant pleaded defence of truth or honest opinion with reckless indifference as to its relevance, provided in all cases that the defendant’s conduct increased the harm suffered by the claimant.  Aggravated damages might be appropriate where a defendant encourages others to forward or republish defamatory material, or selects a mode of publication that is calculated to maximise the damage to the claimant.  Aggravated damages may also be warranted where the defendant embarks ‘on a wholesale attack on the character of a claimant’ at trial, causing damage ‘in the forensic process and as a result of further publicity.’

44. [44]
    Conduct relied upon as sustaining a submission that a plaintiff is entitled to aggravated damages must be pleaded.  
45. [45]
    The questions of whether, and in what manner, publications post-dating those sued on by a plaintiff can give rise to aggravated damages are difficult ones. 
46. [46]
    In Wagner v Nine Network Australia [2019] QSC 284 at [193], Applegarth J observed, at [193] (footnotes omitted):

…evidence of matters tending to establish malice on the part of the defendant is, as a general rule, admissible to support a claim for aggravated damages. For a state of mind such as malice to justify an award of aggravated damages on the basis that it has aggravated the plaintiff’s hurt feelings, the plaintiff must be aware of it. The defendant’s malice in publishing the defamation may be proved as an inference from malicious conduct, including malicious publications, which occurred before or after the publication.

47. [47]
    However, in a footnote at the end of that paragraph, he observed:

I leave to one side the vexed issue of whether the plaintiff may rely upon other defamatory publications as conduct that aggravates damages, or whether the plaintiff should ordinarily be required to make each publication the subject of a separate cause of action: see the authorities cited in McGregor on Damages at [46‑049] and in Matthew Collins, Collins on Defamation (Oxford University Press, 2014) at [21.29]; see also Harbour Radio at [749]-[754].

48. [48]
    Justice Applegarth’s note referred, inter alia, to this passage, also relied upon by the defendants, from Flanagan J’s decision in Wagner v Harbour Radio [2018] QSC 201:  

1. [747]
   The First Matter complained of was broadcast on 28 October 2014. The 53 broadcasts pre-date 28 October 2014. They span a period from 23 September 2013 to 16 October 2014.
2. [748]
   The issue is whether the plaintiffs may rely on these 53 broadcasts in respect of their claim for aggravated damages.
3. [749]
   Ordinarily for aggravated damages, it is the defendants’ conduct from the commission of the tort up until the day of judgment that can be considered. As correctly submitted by the defendants:

“The important aspect about aggravated damages is that it focusses on the additional hurt suffered. … and it cannot have been aggravated merely by, for example, the fact that there were defamatory publications made before the publications that are sued upon.”

1. [750]
   The plaintiffs could not rely on the 53 previous broadcasts as additional defamations. In John Fairfax Publications Pty Ltd v Jones the plaintiff’s pleaded claim for aggravated damages relied on the publication of articles, prior to the publication of the matters complained of. Hodgson JA (with whom Spigelman CJ and Ipp JA on this aspect agreed), in refusing to interfere with the decision at first instance not to strike out the plaintiff’s claim for aggravated damages, observed:

“In my opinion, the plaintiff is not relying on the additional material as additional defamations, and indeed could not do so; and there is no need to proceed as if additional defamations were alleged and no need to comply with the requirements for claiming damages for defamation. Thus there is no need for the plaintiff to specify imputations. I would add to this that, in my opinion, the plaintiff cannot seek to increase damages by reference to injury to reputation caused by the content of this additional material: although aggravating conduct may increase damages by a way of increasing injury to reputation, in my opinion this will only be through adding to the effect of the defamation actually sued on.”

1. [751]
   The danger of relying on subsequent publications for the purposes of increasing damages was identified by Gray J in Collins Stewart Ltd & Anor v The Financial Times Ltd (No 2):

“The starting point for any discussion of the legitimacy of the use to which Collins Stewart wish to put the subsequent articles is that they could, if they had chosen to do so, have complained of them as separate causes of action. Issues of meaning and any defences could then have been debated at trial in the usual way. In the event that Collins Stewart failed to establish that any of the subsequent articles was defamatory of them or The Financial Times established a defence to it, no question of additional damages would arise. If on the other hand liability were to be established against the newspaper, Collins Stewart would be entitled to further separate awards after the judge had directed the jury (or himself) to take care to avoid double-counting. This is a familiar and workable scenario.

…

My starting point is therefore that there are sound reasons both of principle and of practice why a claimant, whether an individual or a corporation, should not be permitted to seek to recover increased damages in respect of the publication by the defendant of article A by reason of the publication by that defendant of subsequent articles B and C which are not themselves the subject of complaint.”

1. [752]
   As is evident from the plaintiffs’ pleaded case, the 53 publications are relied on for a limited purpose. The plaintiffs refer to the following statement in Gatley on Libel and Slander:

“Evidence has been held to be admissible which shows that the defendant has published other defamatory words about the claimant, whether such words were or were not connected with the subject-matter of the action, and whether publication took place before or after the publication giving rise to the action. The reason was explained by Tindal CJ:

‘Either party may with a view to damages, give evidence to prove or disprove the existence of a malicious motive in the mind of a publisher of defamatory matter.’

But subsequent publications which shed light on the defendant’s motive or state of mind, and thus go to prove malice and consequent injury to the claimant’s feelings, should not be confused with publications relied on to increase damages for injury to reputation. …

Nonetheless, evidence of matters tending to establish malice on the part of the defendant is, as a general rule, admissible to support a claim for aggravated damages. As the damages are compensation for the additional injury to the claimant’s feelings, it is submitted that the conduct of the defendant from which malice is to be inferred must have been known to or have come to the knowledge of the claimant.”

1. [753]
   McGregor on Damages deals with “other derogatory statements about the claimant” in the following terms:

“Any other derogatory statements made of the claimant by the defendant may be given in evidence to show malice. At one time there was a conflict of authority as to whether a derogatory statement which was itself defamatory was admissible, particularly if subsequent to the statement sued upon; the courts clearly feared that the jury would give damages for the other defamation as a separate cause of action, and tended to allow such evidence only if given to explain the meaning of the statement sued upon where that was ambiguous or, sometimes, if the other defamatory statement was in substance the same as or related to that sued upon. Such limitations were swept away by the decision in Pearson v Lemaitre, which in 1843 established the modern law.”

49. [49]
    As I understood it, the defendants relied on this passage as establishing that subsequent publications relied upon as publication of defamatory material cannot, as a matter of law, be relied upon as aggravating damages for earlier publications the subject of the proceedings.  I do not agree that the law supports so absolute a principle.
50. [50]
    John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 did not decide that prior publications capable of comprising earlier defamations could not be relevant to aggravated damages, and the Court of Appeal refused to overturn the learned trial Judge’s refusal to strike out the allegations.  It is helpful in resolving this application to understand the context in which the quotation extracted by Flanagan J was made:

49. [92]
    Mr Rares submitted that, since the plaintiff was relying substantially on additional defamatory effect from the other articles, he should be required to give particulars of the imputations relied on. Furthermore, in so far as he was alleging a campaign of denigration, he should identify the people alleged to be involved in that campaign. He submitted that the particulars were otherwise inadequate, notably in that they did not limit the plaintiff as to the respects in which the plaintiff said this additional material was false or misleading, and did not give an adequate basis for the allegation that it was published without regard to truth or falsity: cf Roberts v Bass (2002) 212 CLR 1 at [96]-[104]. Having regard to the limited effect that aggravation can have on damages (see s 46, Defamation Act), the expansion to the case involved in bringing in 27 additional publications made it an abuse of process.
50. [93]
    Mr Blackburn submitted that the plaintiff was not alleging additional defamations, but a campaign of denigration. He was relying on inference as to the existence of such a campaign, and was unable to identify particular people involved, and could be expected to do so. He submitted that the effect of the aggravating material could be significant, not only in relation to hurt feelings, but also as increasing the injury to reputation: Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75. He submitted that mere failure to apologise can be aggravating conduct: Clark v Ainsworth (1996) 40 NSWLR 463 at 468 , 474.

51. [51]
    After making the observations quoted by Flanagan J, his Honour continued:

49. [95]
    In my opinion, the plaintiff is limited, by the particulars he has given, to the respects to which he says the material is false and misleading. He has given the best particulars he can of the basis for an inference of recklessness. It is very doubtful whether these particulars would be sufficient to draw that inference, particularly in the light of what was said in Roberts v Bass, but I do not think this is a matter that would justify appellate intervention in a procedural decision. The plaintiff is relying on an inference as to the existence of a campaign and there is no need for him to attempt to identify the individuals involved.
50. [96]
    There is to my mind a real question whether the reliance on 27 additional publications as an aggravating factor amounts to an abuse of process in this case. However, since the contextual imputation defence is remaining, the enquiry will be a wide-ranging one in any event. Furthermore, the abuse of process contention was not squarely raised below, and on the whole I do not think this is a matter that could justify appellate intervention in a procedural decision.

52. [52]
    The decision leaves open the proposition that other publications capable of being defamatory cannot be relied upon as such.    However, it supports the proposition that prior publications capable of being defamatory may be pleaded in support of a claim for aggravated damages if they are relevant to an issue which goes to aggravated damages.  There can be no absolute rule.  In that case, it appears that the prior publications were relied upon to prove that the earlier publications were part of a campaign of denigration, and that that campaign aggravated the damage to the reputation and the hurt flowing from the defamatory publications. 
53. [53]
    The next case referred to by Flanagan J is Collins Stewart Ltd v The Financial Times Ltd (No 2) EWHC 262 (QB).   In that case, the plaintiffs were two companies.  They sued in respect of a publication in the Financial Times on 27 August 2003.  They pleaded two further articles published on 28 and 30 August 2003.  Those articles were not sued on as separate libels.  The plaintiffs relied upon them as directly increasing the damages to which they were entitled in respect of the first article.  The statement of claim and reply did not expressly plead that the articles were relevant to aggravated damages, though they were pleaded as “exacerbating” the damages.  Counsel for the plaintiffs seemingly sought to avoid such a submission because of concerns that a company could not recover aggravated damages.
54. [54]
    Two issues arose:

1. (a)
   Whether subsequent publications could be pleaded as aggravating damages at all; and
2. (b)
   Whether, as a matter of principle, a company can recover aggravated damages. 

52. [55]
    The observations by Justice Gray quoted by Flanagan J dealt with the first proposition.  However, they were not the principal basis of his Honour’s decision to strike out the pleading of the subsequent publications.^[5]  Rather, his Honour’s principal reason was that, as a matter of law, a company cannot recover aggravated damages.  His Honour found that aggravated damages are recoverable only as compensation for injury to feelings, and that companies do not have feelings.^[6]  In my view, that limitation does not apply in Australia: see [42] above and the cases cited in Maher v Nationwide News Pty Ltd (No. 2) [2013] WASC 365 at paragraph 10(f).  It seems correct in principle that aggravation should not be limited to just one of the purposes of general damages in defamation.  If conduct of the defendant rationally aggravates damages to reputation or increases the need for damages to vindicate or repair reputation, why should that conduct be ignored? 
53. [56]
    The defendants also submitted that the allegations should be struck out on grounds of case management and proportionality, even if arguably relevant, because:

1. (a)
   of the difficulty for a jury in drawing a distinction between how the subsequent publications increased the injury of the 27 August publication, on the one hand, and the damage flowing directly from the subsequent publications, on the other; and
2. (b)
   of the disproportionate complexity to be added to the trial by inclusion of the further allegations.

52. [57]
    Justice Gray found that he would also have struck out the pleading of the subsequent publications on those additional grounds if he had not done so on the aggravated damages issue.^[7]
53. [58]
    The principles in relation to the subsequent publications as aggravating general damages arose directly in Maher v Nationwide News Pty Ltd (No. 2).  That case was also a strike out application.  There, the relevant plaintiff Mr Gallagher was suing, relevantly, on one newspaper article which was said to be defamatory.  The challenge was to the pleading of aggravated damages in the following form^[8]:

Aggravated Damages

1. 18.The Second Defendant's publication of a book authored by him entitled 'MineField The Dark Side of Australia's Resources Rush' (Book) has been, improper unjustifiable and lacking in bona fides, in a manner which has aggravated the hurt, damage and distress suffered by the Second Plaintiff in that:

1. 18.1the Book contained within in it a chapter entitled 'Black Capital' which is defamatory of the Second Plaintiff;
2. 18.2the Book was published, and continues to be published, despite the Second Plaintiff having commenced defamation proceedings against the Second Defendant;
3. 18.3despite the Second Plaintiff's request by letter dated 22 April 2013, the publisher of the Book refused to withdraw it from further publication.

1. 19.By reason of the facts, matters and circumstances described in paragraph 18 above, the Second Plaintiff has suffered further hurt and damage and claims aggravated damages against the Second Defendant.

59. [59]
    The defendant attacked paragraph 18.1 as embarrassing in form and bad in law as it appeared to be an attempt to litigate a defamatory publication without directly pleading a cause of action based on that publication.  Martin J held, relevantly:

1. 14In support of the attack upon par 18.1, the defendant invokes observations by Le Miere J in The Australian Medical Association (WA) Incorporated v McEvoy [No 2] [2012] WASC 416 [25]. There his Honour said:

The further publication may refer the reader to the publication sued on or otherwise give further life to the publication sued on. There may be circumstances which cause the further publication to increase the damage caused by the original publication rather than to cause a new injury to the plaintiff. On the other hand, a subsequent publication may cause a new injury to the plaintiff's reputation. In the former case the subsequent publication will aggravate the damage caused by the publication sued upon. In the latter case the subsequent publication causes a new injury to the plaintiff's reputation and gives rise to a new cause of action.

1. 15It is apparent that his Honour's observations make reference to decisions of the High Court of England and Wales, first by Gray J in Collins Stewart Ltd v The Financial Times Ltd [2005] EWHC 262 (QB), then by Tugendhat J in Clark (t/a Elumina Ibenica UK) v Bain [2008] EWHC 2636 (QB) (see McEvoy [No 2] [25]). The Collins Stewart decision made reference to the importance of case management considerations in that evaluation. Le Miere J cites passages from Gray J's observations at [28] of his reasons in McEvoy [No 2].
2. 16I considered the same line of UK decisions as to aggravated damages in Wong v Aripin [2011] WASC 174, see [43]-[53] .
3. 17There is an immediate problem with par 18.1 as formulated. The plea opens up a side issue concerning another allegedly 'defamatory' publication against Mr Gallagher in the book chapter entitled 'Black Capital'. The plea suggests a distinct cause of action by Mr Gallagher in defamation by reason of that distinct publication.
4. 18But worse, the formulation of the par 18.1 plea does not indicate the nature or character of the defamatory imputations said to arise against the second plaintiff in this book chapter. Then there is nothing to indicate that any defamatory imputations, as may be contended for arising in the chapter are connected, related to, or somehow concern the sole imputation (about seeking confidential information) that is now raised by the second plaintiff under the present proceedings.
5. 19By reference to [15] of McEvoy [No 2] and its differentiating criteria of a 'new injury' to a plaintiff's reputation, the par 18.1 plea as regards the chapter being 'defamatory of the second plaintiff', by use of the word 'defamatory', overwhelmingly points to a new action. That can be contrasted to another publication exacerbating or increasing hurt, injury or reputational damage caused by the publication of the matter that is subject of the present proceedings.

60. [60]
    His Honour struck out paragraph 18.1^[9]:

1. 22As has been seen, one of the principles applicable to claiming aggravated damages is to show a defendant acted in a manner which is 'improper, unjustifiable or lacking in bona fides'. An act or omission taking place before or after the allegedly defamatory publication might in theory then cast some light on that criteria.
2. 23 … conduct which can aggravate a plaintiff's damages need not be malicious. Hence, a plaintiff showing a lack of bona fides by a defendant, by reference to the defendant's conduct before or after a publication, could be admissible evidence, relevant to showing a basis for aggravated damages.
3. 24In the present case however, the plea seen at par 18.1 goes much too far, first by contending that the chapter of the book entitled 'Black Capital' is defamatory of the second plaintiff, and second, by giving no indication at all as to how that might be so. In the circumstances the par 18.1 plea is clearly conceptually deficient and should be struck out.

61. [61]
    His Honour impliedly accepted, consistent with the principles stated, that the subsequent publication, if properly pleaded, could have been relevant.  However, his Honour observed that, if that is to be done, it must be done in a manner which clearly articulates a basis for aggravated damages.  There also were other problems with the form of the pleading, including matters which echo the problems in Collins Stewart.  His Honour held:

1. 31By reference to the key distinction of principle explained by Le Miere J from the passage from McEvoy at [25] and as well to principles (iii), (iv) and (v), identified by Tugendhat J in Clark (t/a Elumina Ibenica UK) v Bain (and cited in Wong v Aripin at [43]) there presents unacceptable confusion concerning an attempt by par 18 to raise a side issue for what would effectively be a subsidiary defamation action about a book chapter. This is wrong in principle. It goes too far and is conceptually distinct to relying upon a publication on a basis merely that it aggravates the damage arising from the distinct publications already sued upon.
2. 32More importantly, particularly in circumstances where a defamation trial may involve a jury, case management considerations also dictate that any risks of a potential derailment of a trial by raising a subsidiary defamation action effectively as a side wind and framed around the content of a book, is likely to be confusing for a jury and thus inappropriate. If the second plaintiff seriously does wish to raise some grievance concerning what he says is defamatory matter published in the book about him, then this must be the subject of distinct proceedings.

62. [62]
    In my view, the texts referred to in the two Wagner decisions also support the proposition that later publications can be relevant to establishing aggravated damages, depending on the way they are relied upon and pleaded. I begin with McGregor on Damages.  The current on-line edition deals with the paragraph referred to by Applegarth J at [47-058].  The paragraph is in substantially the same terms as that referred to by his Honour.  That paragraph relevantly states (footnotes omitted):

The legacy of decisions with which the court in Pearson v Lemaitre was presented is best disposed of by a series of propositions stating the modern law. (1) Other derogatory statements are admissible even though themselves defamatory. This was the position in Pearson v Lemaitre itself, where the claimant sued in respect of a libel contained in a letter and was allowed to introduce as evidence of malice two letters of the two succeeding years, written to other parties and containing in substance a repetition of the libel. Indeed another defamatory statement is stronger evidence of malice than a statement not itself actionable.

63. [63]
    That passage is concerned with relevance of subsequent publications to show malice in aggravation of damages, as its context demonstrates. The same is true of the passage from Gately, referred to by Justice Flanagan.  The passage in Collins on Defamation at paragraph 21.29 contains no assertion of any absolute rule against subsequent publications being relevant to aggravated damages, consistent with my reading of Collins Stewart.  In my view, there is no such absolute rule.  I am fortified in this approach by the decision of Judge Muir (as her Honour then was), which reached the same conclusion in Brose v Baluksas (No 6) [2020] QDC 15 at [125].
64. [64]
    In my respectful view, the authorities set out above support the following principles:

1. (a)
   There is no absolute rule that subsequent publications cannot be relied upon as relevant to aggravated damages, nor is there is absolute rule that they cannot be relied upon in their character as being allegedly defamatory;
2. (b)
   It is not possible to define every circumstance in which subsequent publications could be relevant to aggravated damages, but it can include demonstrating that the publications sued on were made with malice in a manner known to the plaintiff, thereby aggravating hurt feelings;
3. (c)
   A pleading must articulate the basis upon which the subsequent publications are relevant to aggravated damages, and in respect of which defendant (if there are more than one), so as to:

1. (i)
   Permit the Court to assess the validity of the link between the general damage alleged, as arising from the publications sued upon, and the further publications pleaded;
2. (ii)
   Prevent the misuse of subsequent publications as giving rise to damage on their own account when they are not the subject of the proceedings (nor the pre-trial processes in the Defamation Act); and
3. (iii)
   Make clear how each defendant is said to be exposed to aggravated damages by the conduct.

1. (d)
   Where subsequent publications are relied upon, the Court must be careful to ensure that the proper basis is made out for their relevance which demonstrates they are being relied upon properly to aggravate the damages from the publications relied upon, rather than seeking damages from publications not sued upon; and
2. (e)
   There might be circumstances in which case management or jury management justify the strike out of subsequent publications where the risk of misuse by a jury, confusion of a jury, or disproportionate complexity at trial arises.

analysis of The FASOC

Rolled up allegations

65. [65]
    The pleading of subsequent publications can be relied upon as giving rise to aggravated damages.  However, it is necessary that the link between each subsequent publication and aggravation of damages flowing from the publications sued upon is clearly pleaded, and that the liability of separate defendants for such conduct is clearly pleaded.  The FASOC fails on both fronts.
66. [66]
    The aggravated damages pleading consistently pleads rolled up allegations which apply broad conclusory allegations to some, or all, of the numerous subsequent publications alleged. Take, for example, paragraph 66 of the FASOC.  That paragraph applies to16 subsequent publications.   However, it does not identify any link between those 16-odd publications and any imputation sued on.  Nor is it obvious what the link might be.  Some of the publications are delphic as to their meaning or connection to the pleaded defamatory imputations: see, for example, paragraph 75A of the FASOC. Nor is it pleaded (nor obvious) how Ms Sanchez is responsible for any of the publications which she is not alleged to have made.  Indeed, the same is true of the posts that Mr Sanchez had not made or commented on.
67. [67]
    Further the basis of the relevance of the allegation to aggravated damages is that the publications were “in disregard of the plaintiff’s rights and the damages that was likely caused to the plaintiff’s reputation”.  But that is too broad a proposition.   It is just as consistent with an assertion that the harm to the reputation by the identified publications is being claimed as with aggravation of the harm caused by the pleaded publications. (This is discussed further from paragraph [80], below). And it fails to link any subsequent publication with any specific imputation sued on.   
68. [68]
    The problem of rolled up allegations which do not identify how numerous publications relate to any specific form of aggravation of damage arising from the publications sued on is repeated and magnified by paragraphs 68B to 69E.  Those paragraphs each identify different matters of context which are then seemingly linked to the subsequent publications without expressly identifying which or how.  The implication is presumably that all the publications after the date of the particular undertaking or event are in defiance of the undertaking or event, though that is not said. 
69. [69]
    More troubling is the repetition in each case of a rolled-up allegation against both defendants without regard to who appears to have published what, or how the publications involve a breach of the various undertakings and orders: see paragraphs 69 and 69E.   There is also the difficulty that those paragraphs do not identify how the conduct has aggravated the loss flowing from the pleaded publications.  Paragraph 69 repeats the formula from paragraph 66.  These allegations rely on the allegation that all the publications are defamatory matter without articulating how.  This relates to numerous publications, none of which are linked to any specific alleged defamatory publication.
70. [70]
    The conclusory paragraphs, from 140 to 151, which are objected to by the defendants, also roll up numerous disparate subsequent publications with no regard for how the specific terms of each relates to the conclusory allegation made, nor how the defendants become jointly liable for the whole of that conduct.  Paragraph 141 is one very clear example.  Paragraphs 143 and 145 are others. 
71. [71]
    All these paragraphs should be struck out, for this reason only.

Responsibility for publication by others not properly articulated

72. [72]
    Many of the subsequent publications were posts to the Shonky Facebook page, which neither defendant made or commented on.  Quite apart from the rolled up nature of the allegations, the FASOC does not properly identify the basis for the defendants to be responsible for those posts.  There is nothing at all pleaded in that respect for Ms Sanchez. 
73. [73]
    As to Mr Sanchez, the plaintiff relied solely on the allegation in paragraph 4 of the FASOC, that he is the administrator and owner of the Shonky Facebook page.  However, it is not pleaded how that makes him responsible for posts not made by him.  Is the complaint that he did not prevent the comments from being posted?  Is the complaint that he did not take them down, or did not take them down quickly enough?  Is it that, as administrator, he approved all comments before they were put up?  I do not consider that judicial notice provides any answers to these questions.

Plaintiff’s knowledge as a basis for aggravated damages

74. [74]
    The closed group nature of the Shonky Facebook page creates another difficulty for the FASOC.  Various parts of the FASOC suggest that a basis for aggravated damages is the increase in the hurt to the feelings of Ms Leigh from the publications pleaded: see paragraph 145.  However, Ms Leigh’s feelings can only be hurt if she becomes aware of the subsequent publications.  There is no pleading of that fact, and no basis to infer it in respect of any subsequent publication, particularly where the Shonky Facebook page is a closed group, as seems uncontentious.

Irrelevant allegations

75. [75]
    There are other fundamental flaws with individual paragraphs in 140 to 151.
76. [76]
    Paragraph 141 is irrelevant.  To plead that the subsequent publications exacerbated the defendants’ conduct in publishing the publications sued on is irrelevant.  The first problem is what that proposition actually means.  The next is how that proposition links to any known basis for aggravating damages. 
77. [77]
    Paragraph 142 is irrelevant.  Subsequent publications can be relied upon as supporting an inference of malice, which can aggravate the hurt and distress of the plaintiff arising from the defamatory publications sued on.  Notably, the plaintiff does not plead that.  However, the fact that later publications (not sued on) were actuated by malice is not of itself relevant.
78. [78]
    Paragraph 144 is irrelevant.  If subsequent publications are relied upon as going to a specific issue relevant to aggravation of the damages, then repetition of similar publications might increase the impact on the damages flowing from the publications sued on.  But the mere fact that there have been many subsequent publications of itself is irrelevant.  Notably, there is again no linking of any specific subsequent publication to the various orders and undertakings pleaded in paragraph 144.
79. [79]
    Paragraphs 145, 149, 150 and 151 read as pleas which invoke the damage flowing from the subsequent publications themselves, rather than aggravating the damage from the publications sued on.  If something else is intended, it is not clear from those paragraphs.  

Pleading of defamatory imputations

80. [80]
    While I have found that there is no absolute rule that subsequent publications which might be defamatory cannot be pleaded as relevant to aggravation of damages, there is an aspect of the FASOC which requires attention in that regard.
81. [81]
    The plaintiff expressly alleges the subsequent publications are defamatory of the plaintiff: see paragraphs 66, 68B, 69B, 69, 71 and 141 of the FASOC.  This gives rise to two issues.
82. [82]
    First, it is not permissible to rely on subsequent publications as defamatory where the substantive purpose of those allegations is to recover damages for defamation where those publications are not pleaded as such.  However, it is not possible categorically to say that subsequent publications cannot be relied upon as defamatory on the issue of aggravated damages.  But if that is to be alleged, it is necessary for the pleading very clearly to link the allegedly defamatory subsequent publications to the pleaded publications in a manner which gives rise to a connection which sustains a submission that the damage from the publications sued on are aggravated by the later defamatory publications.  The FASOC does not do this.
83. [83]
    Second, if a subsequent publication can somehow be permissibly relied upon as defamatory for the purposes of aggravation only, what must be pleaded? In my view, the answer is that given by Justice Kenneth Martin in Maher.   All the discipline of pleading a defamatory imputation must be met.  That must be the case.  Otherwise, the defendant does not know how the plaintiff says that the later publications relate to those sued upon to aggravate damage from those earlier representations.  Of course, this might not be necessary when the answer is obvious from the words of the publications, but that is certainly not the case for many of the subsequent publications pleaded in the FASOC.
84. [84]
    For these reasons as well, the allegations of defamatory material or defamatory matter made in the aggravated damages pleading must be struck out.

The breach of the undertaking to the Court

85. [85]
    The defendants submit that pleading the Court undertaking and its breach is an abuse of process where the plaintiff has the contempt application on foot.  This submission is quite distinct from the submission that the FASOC fails to identify which subsequent publications breach which of the undertakings and how.
86. [86]
    In McHenry v Lewis [1882] 22 Ch 397, the English Court of Appeal recognised that, prima facie, where the same matter is pursued in two different proceedings, the maintenance of both proceedings is vexatious, and the Court will put the plaintiff to an election. That principle is of longstanding.^[10]  That is, prima facie, the case here.
87. [87]
    The plaintiff submits that there is no abuse of process because it is not seeking orders from the Court to punish for contempt.  Rather it is relying on facts which are relevant to its claim for aggravated damages, which are facts which are, incidentally, also relevant to making good its contempt application.
88. [88]
    I do not think that that technical distinction is one which avoids the abuse of process.  I accept, for present purposes, that the plaintiff is not intending by her pleading to embarrass the defendants in relation to the alleged contempt, nor is she intending to gather evidence or admissions which might inappropriately assist her in prosecuting those proceedings.  However, that is not decisive.  An abuse of process can arise regardless of the intention of the person responsible for the conduct said to give rise to the abuse (unless intention is the essence of the abuse of process, such as in improper purpose cases).^[11]  The question here is whether the conduct has the objective character of comprising an abuse of process. 
89. [89]
    In applying McHenry, the Court must be conscious of the underlying principle, being that the Court will restrain conduct which makes proceedings unduly burdensome or oppressive, or would bring the administration of justice into disrepute.^[12]  Fine distinctions of form between whether a second proceeding involves the same cause of action, or proceeding, or just the same facts used for a different purpose cannot answer where, as a matter of substance, it can be fairly said that a person is being pursued in two proceedings over substantially the same matter or issue.  Indeed, that observation is supported by the line of authority which recognises that an abuse of process can arise by litigation of a claim or issue which should properly have been resolved in earlier proceedings, including where the parties are related, though not identical, even if no issue estoppel or judgment estoppel arises.^[13]  Further, the distinction between the contempt  application and the defamation proceedings is lessened when it is kept in mind that, at least in theory, damages might be payable as part of the Court’s response to the contempt.^[14]
90. [90]
    In my view, the litigation of identical factual issues in a civil proceeding and a contempt application in which the plaintiff is the applicant is capable of amounting to an abuse of process in the McHenry sense.  That ordinarily requires the plaintiff to elect which proceeding to pursue. 
91. [91]
    There is an additional difficulty on the facts of this case.  While the contempt application is on foot, it presently has not been set down for hearing.  It was adjourned to a date to be fixed some five years ago and has not been listed since.  It appears that was done on the understanding that the contempt would be heard together with the trial.  However, no such order has been made and, in my view, such a process would be chaotic at trial; with the Court required to reach different standards of satisfaction on the same factual issues, while there would be a confusing overlap between facts relied upon as going to sentence and facts relied upon in the defamation proceeding. 
92. [92]
    The procedural history of this case gives rise to other concerns which impact on an abuse of process analysis.  There is the fact that the contempt application sat in the registry for about 5 years.  That is highly undesirable for a contempt proceeding.  A central purpose of contempt proceedings where the basis of the contempt is breaching a Court order includes to vindicate the authority of the Court.^[15]  It is not consistent with that purpose for contempt proceedings to sit in the registry for years.  Nor is it consistent with the further purpose of obtaining compliance for the matter to sit unresolved.
93. [93]
    In my view, however, in these circumstances the plaintiff must elect whether to pursue the contempt application and abandon the allegations in the FASOC which, in form or substance, correlate with the issues in the contempt proceedings, or abandon the contempt application and persist with contempt allegations in the FASOC (if leave to replead is granted).  It might be that the contempt application could be stayed rather than dismissed.  It would be an issue for the plaintiff to make submissions as to exactly how the election should be made. 
94. [94]
    (One solution, which would also greatly simplify the trial, would be for the overlapping contempt allegations to be omitted from the plaintiff’s case on aggravated damages, though it is a matter for the plaintiff and her advisers, of course.)
95. [95]
    There are two other points to note in relation to the contempt allegations:

1. (a)
   First, the pleading does not make clear what the connection is between alleged breaches of the undertakings, on the one hand, and aggravation of the damages arising from the publications sued upon.  I can imagine various ways that connection could be articulated.  However, in my view it needs to be.  That is another reason why the pleading of the undertaking and its breach in that respect should be struck out.
2. (b)
   Second, should the plaintiff plead the breach of the undertaking, the defendant should have the benefit of orders which prevent the compulsory operation of the UCPR in pleading responsively, consistent with the entitlement of the defendants to penalty privilege. 

The WA proceedings

96. [96]
    The defendants contend that the allegations relating to the WA proceedings are irrelevant and should be struck out.  Certainly, they cannot be sustained in their current form.  They do not articulate a connection between those allegations and aggravation of the damages caused by the pleaded publications.  One might assume the basis of the allegation is intended to be that somehow events in WA have aggravated the hurt from those earlier publications, though the current version of the allegations do not contain enough factual matters to sustain that proposition.
97. [97]
    Further, it is far from clear to me how those events could or would sustain that proposition.  Like many of the allegations in the aggravated damages part of the FASOC, the assumption of the pleading seems to be that anything which the defendants do or are responsible for which is offensive or derogatory aggravates the damage from publications in 2017.  That assumption is plainly not sustainable, and is not a sufficient basis by itself to make factual allegations relevant.
98. [98]
    The allegations in relation to the WA proceedings are also too general to be relevant.  They must be struck out on this basis.

The state of mind allegations

99. [99]
    Paragraph 142 has already been found to be deficient.  However, it is also deficient as failing to identify the facts from which the states of mind alleged are inferred.

Observations on the aggravated damages pleading

100. [100]
     The above analysis demonstrates the continuing challenges in properly pleading defamation proceedings.  Technicality in pleading is not an end.  Pleadings articulate the case for trial, they are not the case itself.  However, defamation walks the line between the societal values of free speech on the one hand, and protection of reputation from wrongful attack on the other.  It is this which, in my view, lies behind many of the difficulties which attend pleading and proving of defamation, and the frequent attempts to reform law and practice in this area.  Further, pleadings are required to ensure that trials can be conducted fairly, efficiently, and according to law. 
101. [101]
     In this case, the aggravated damages pleading failed properly to grapple with the principles which in form pleading, generally, or pleading aggravated damages, in particular.  A sense of grievance as to conduct by the defendants, even if well-founded, is no substitute for a proper pleading.  Further, a sense of proportion is desirable when pleading facts which go to aggravation of damages, bearing in mind the likely impact of those allegations on any award of damages and the importance of what are secondary issues to the real issues in the proceedings. 

Conclusion

102. [102]
     For the above reasons, the whole of the FASOC under the heading “Aggravated Damages” is struck out, apart from paragraphs 65, 146 and 148.  I will hear the parties on whether there should be leave to replead, and on what terms, and as to costs.  The matter is listed for trial in December.  It has been on foot for over six years.  One consideration in any leave application will be the desirability of maintaining those trial dates and the implications of any grant of leave to the efficient and orderly preparation of the proceedings for trial.