Hallam v O'Connor and Pyne[2024] QDC 187

DISTRICT COURT OF QUEENSLAND

SUMMARY

1. [1]
   The plaintiff, who was then the Chief Executive Officer of the Local Government Association of Queensland Ltd, was the subject of public reputational damage, hurt and humiliation by multiple publications and being likened to the Star Wars movie character, Jabba the Hutt, on the Facebook social media platform. The plaintiff now sues for damages for defamation by the first defendant in respect of 36 publications, and the fourth defendant in respect of 5 publications.
2. [2]
   The first defendant’s liability was the subject of default judgments on 18 September 2020 and 30 November 2020. Accordingly, the case against the first defendant involved assessing damages for the adjudged pleaded imputations from the 36 publications made by the first defendant under “Elizabeth Kennedy” for 13 and “Lyn O'Connor” for another 23. The plaintiff also seeks a permanent injunction against the first defendant.
3. [3]
   The case against the fourth defendant involved both liability and the assessment of any damages regarding five alleged defamatory publications. I have found the fourth defendant liable in respect of four of the five disputed publications. I further found the fourth defendant published all five publications of and concerning the plaintiff, and all publications had the capacity to convey, and did in fact, convey, all but four of the pleaded imputations.^[1] I am satisfied that the imputations I found in the 1^st, 2^nd, 4^th and 5^th Rob Pyne Publications are defamatory of the plaintiff, but I was not so satisfied with respect to the imputations I found in the 3^rd Rob Pyne Publication.
4. [4]
   The first and fourth defendants are properly to be classified as several concurrent tortfeasors, each causing indivisible harm through their respective and overlapping publications. While avoiding double recovery, the case warrants separate awards of damages against each defendant, and disparate consideration of aggravated damages.
5. [5]
   I assess damages against the first defendant for $283,355.00, comprising non- economic loss damages of $275,000.00 (including $55,000.00 for aggravated damages) and special damages of $8,355. I will award judgment accordingly, together with interest at the rate of 3% per annum from the first publication on 10 June 2017 on general damages of $61,004.79 and special damages from 7 October 2017 of $1771.72. The circumstances also warrant a permanent injunction prohibiting future defamatory publication of and concerning the plaintiff.
6. [6]
   I assess damages against the fourth defendant for $128,798.50, comprising non- economic loss of $125,000.00 (including $25,000.00 for aggravated damages) and special damages of $3,798. I will award judgment accordingly, together with interest at the rate of 3% per annum on general damages from the first publication of 21 June 2017 of $27,657.53 and on special damages from 7 October 2017 of $805.38.
7. [7]
   I will hear the parties on disposition of costs, which ought to follow the event unless either party seeks a different order within 14 days of this judgment.

ISSUES

8. [8]
   The determinative issues in respect of the First Defendant are:

1. What damages ought to be awarded to the plaintiff against the defendant?
2. Should a permanent injunction be made against the first defendant? And in respect of the Fourth Defendant, they are:
3. Did the fourth defendant publish one or more of five publications?
4. Was one or more of the publications of and concerning the plaintiff?
5. Did the publications have the capacity to convey any of their pleaded imputations? If so, did the publications convey any of their pleaded imputations?
6. Were the imputations conveyed in the publications defamatory of the plaintiff?
7. What damages ought to be awarded to the plaintiff against the fourth defendant?

LIABILITY

9. [9]
   The plaintiff obtained default judgments pursuant to r 374 of the Uniform Civil Procedure Rules 1999 (Qld) against the first defendant on 18 September 2020 and 30 November 2020, which determined the liability of the first defendant in respect of the following defamatory imputations of and concerning the plaintiff in the 36 publications using “Elizabeth Kennedy” for 13 and “Lyn O'Connor” for another 23 publications:

10. [10]
    The assessment of damages against the first defendant will be so based. I will first address liability against the fourth defendant to provide the factual matrix necessary for assessing damages against the first defendant and fourth defendant, as applicable.

Did the fourth defendant publish one or more of five publications?

11. [11]
    The fourth defendant’s liability, if any, must be determined in respect of five posts or comments on his public Facebook page between 21 June 2017 until they were taken down on 8 January 2018. The plaintiff sues the fourth defendant for the following five alleged defamatory publications on his public Facebook page:

12. [12]
    Once the posts are made available in a comprehensible form and are seen and read, that is, comprehended by third-party readers, the bilateral act of publication is complete.^[2]
13. [13]
    There is no dispute that the fourth defendant posted the following words and images on his public Facebook page. However, he initially did not admit that the posts were read or understood by anyone until during oral testimony at trial. In any event, by then, the plaintiff adduced direct evidence of publication through a solicitor and a secretary employed by the plaintiff’s solicitors.
14. [14]
    Therefore, I find that the fourth defendant published each of the five publications attributed to him.

Was one or more of the publications of and concerning the plaintiff?

15. [15]
    The plaintiff must prove that each of the 1st through 5th Rob Pyne publications were of and concerning the plaintiff. That is, each of these publications could and would, on the balance of probabilities, have been understood as referring to him.^[3]
16. [16]
    The fourth defendant argues that publications concerned other individuals and entities and would not be read as identifying the plaintiff.
17. [17]
    The test of identification is an objective one, using the standard of whether a hypothetical ordinary and reasonable reader acquainted with the plaintiff would have understood the publication as referring to the plaintiff. The publication’s contents should be considered based on what a hypothetical ordinary and reasonable reader would know as general knowledge or public awareness, not on special knowledge known only to a limited group.^[4] Such a reader does not read with care, or with cautious and critical analytical care, or mindfully to formulate reasons, but such a reader gets a general impression, and may look again before coming to a conclusion and acting on it.^[5]
18. [18]
    In this case the plaintiff points to the contextual identification of the plaintiff:

1. All of the 1st to 5th Rob Pyne publications (including the first Jabba the Hutt caricature) is context for each other: The fourth defendant’s Facebook page likely attracted a growing readership who could scroll back to view earlier posts. The publications were contemporaneously available for months.
2. The earnest political and purportedly factual nature of the fourth defendant’s public Facebook page. The fourth defendant’s Facebook page is distinct from print, radio, or TV media due to easier access to past posts. The page’s name “Rob Pyne: Putting Cairns First” and its presentation resembled an election sign. It was a platform for political communication, promotion, and public interaction.
3. The politically aware and inquiring nature of the likely readership of the fourth defendant’s public Facebook page. Readers were likely interested in politics and possibly supportive of the fourth defendant’s political agenda. The page was used to communicate with constituents, supporters, and the media.
4. The “LGAQ” is a reference to the Local Government Association of Queensland. It is known to the public. Its membership consists of all local governments in Queensland and is broad in its engagement with media, government, and public issues.
5. The plaintiff was well known to the public as the chief executive officer and public face of the association, having been in that role for 25 years, which involved him in public and media engagement.
6. The plaintiff’s physical appearance, including his obesity was publicly recognisable.
7. The public discourse between the plaintiff (amongst others) and the fourth defendant is critical of the fourth defendant’s use of parliamentary privilege to table documents sensationally asserting local government corruption. The controversy in the public mainstream media was well underway by December 2015.
8. Whilst the plaintiff, as head of the association, had been criticising the fourth defendant’s persistent and repeated use of parliamentary privilege since 2015, it is tolerably clear that the intensity of that criticism and the support it was attracting from others did not occur until on or shortly before 15 June 2017.
9. The fourth defendant continued to table documents purportedly concerning wrongdoing and corruption in local government on numerous occasions between 11 May 2016 and 24 May 2017.
10. On 15 June 2017, an LGAQ press release consisting of a statement by the plaintiff indicating that the LGAQ rejected the fourth defendant’s allegations and calls for a special inquiry into local government and accusing the fourth defendant of allegations as being made without foundation, though under parliamentary privilege. It was just part of the wider criticism and comments about the fourth defendant’s use of parliamentary privilege.
11. On 14 June 2017, the fourth defendant tabled under privilege in Parliament a document entitled “Ipswich Inc”, which marked a high flashpoint in the parliamentary privilege and public discourse.
12. In the midst of all this, the fourth defendant published the 1st Rob Pyne publication including the Jabba the Hutt caricature his public Facebook page on 21 June 2017.
13. After 21 June 2017 and throughout the period covering the initial publications of the 2nd, 3rd, 4th and 5th Rob Pyne publications the fourth defendant continued to table documents under privilege in Parliament about purported local government wrongdoing and corruption, which continued to fuel public discourse about his use of parliamentary privilege including criticism from the plaintiff.
14. The publications and the fourth defendant’s actions kept the debate in the public eye up to the November 2017 state election.

19. [19]
    Although the plaintiff is not named in words, he may, nevertheless, be described to be recognised. Whether that description takes the form of a word picture of an individual, a reference to a class of persons of which he is or is believed to be a member or any other form, if in the circumstances the description is such that a person hearing or reading the publication would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.^[6]
20. [20]
    The 1^st Rob Pyne publication containing the words and associated ‘Jabba the Hutt’ caricature is persuasive evidence of identification. The fourth defendant argues that the caricature depicts a toad and thereby refers to the Queensland local government and that references to “the establishment” were directed at government leaders, not the plaintiff. However, it seems to me that the depiction of the catchy meme is likely to be read and understood by the ordinary reasonable reader to refer to the plaintiff. The caricature visually parodied the plaintiff, who appeared as a witness and exhibited similar physical features. The caricature’s physical qualities and contextual elements (like “LGAQ” on the shirt and book) reinforced its connection to the plaintiff and would lead an ordinary reasonable reader to identify the plaintiff as within the class of “those in power” as distinct from “the ordinary decent people in government roles (who are often the victims)”.
21. [21]
    Witnesses’ direct testimony they understood the publication as referring to the plaintiff can also indicate whom the hypothetical ordinary and reasonable reader would understand as being referred to.^[7] In this case, Mr Jamieson, Ms Browning and Mr Millar testified that they recognised the plaintiff in the caricature.
22. [22]
    There is also at least one recipient of the publication who had special knowledge, based on extrinsic facts, to understand it referred to the plaintiff, including prior or contemporaneous third-party publications.^[8] Even without direct evidence of a witness identifying the plaintiff based on extrinsic facts, identification can be inferred if at least one person would have made the connection. The weight of the evidence depends on the timing of the identifying and sued publications, the relevance of the subject matter, and the interest to the overlapping readership.

23. [23]
    Identification innuendo is established by the broader context of publications and posts, suggesting cross-readership and shared interests among the relevant Facebook groups in the period between the initial publication of the 1^st to 5^th Rob Pyne publications, respectively on 21 June 2017, 7 August 2017, 9 August 2017, 10 August 2017 and 23 August 2017, and when they were removed between 8 January 2018 but more likely closer to 17 January 2018. The fourth defendant’s Facebook page had a regular and growing readership with over 5000 followers in 2017, and the posts were likely receiving significant engagement. Regular readers were likely exposed to all relevant publications, increasing their familiarity with the context and subjects discussed. There was significant discourse surrounding the 1st Rob Pyne Publication, including the express naming of the plaintiff, also linked to the Jabba the Hutt figure in Jabba the Hutt caricatures in the first defendant’s publication made on the same day, 20 June 2017. Further, Facebook’s algorithm likely ensured that readers of the first publication would see subsequent related posts, maintaining visibility and reinforcing the connection between the publications. The context of the thought bubble in the caricature, especially the public controversy involving the plaintiff and the association, would lead an ordinary reasonable reader to identify the plaintiff as one of the targets of the caricature and related posts.
24. [24]
    The evidence, both direct and inferential, strongly supports the plaintiff’s identification. It seems to me that the -1^st Rob Pyne publication is temporally proximate and posted in the same Facebook page to lend significant context to the 2^nd to 5^th Rob Pyne Publications, to lead an ordinary reasonable reader to identify the plaintiff:

    1. as a key individual associated the “local government”, which is slated as being “at the heart of the crooked behaviour” where “corruption is rife!” in the 2^nd Rob Pyne Publication.
    2. as being within one of “Those in power” who had publicly engaged in criticism of the fourth defendant, and therefore “Rather than attack the cause of systemic corruption, they are attacking and trying to discredit me”. He was also the head of one of the “insider groups” that long dominated with “power and privilege” in the 3^rd Rob Pyne Publication.
    3. as being within the class of “those who want to silence” the fourth defendant who “need to be held to account” and as a member of the class of “weak little men” who “people are awake to” in the 4^th Rob Pyne Publication; and
    4. as a key individual “in government administration,” about which there is a call for the government to act on corruption and for the premier to announce an inquiry into “corruption” to “stop the rot” in the 5^th Rob Pyne Publication.
25. [25]
    Therefore, I conclude that each of the 1^st to 5^th Rob Pyne publications could and would, on the balance of probabilities, have been understood to be of and concerning the plaintiff.

Did the publications have the capacity to convey any of their pleaded imputations? If so, did the publications convey any of their pleaded imputations?

26. [26]
    The standard of the hypothetical ordinary and reasonable reader applies to both questions.
27. [27]
    This requires consideration not only of the literal words and images in the publication but also of the implications and inferences conveyed by the whole publication in its context.^[9]
28. [28]
    As to the scope of the test, the High Court in Trkulja v Google LLC^[10] explained:

1. “[31]
   The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, ‘[s]ome are unusually suspicious and some are unusually naïve’. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
2. [32]
   As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to ‘read between the lines in the light of his general knowledge and experience of worldly affairs’, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, [w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject.” (references omitted)

29. [29]
    Cases have recognised other characteristics of the ordinary reasonable reader, including:

    1. having fair average intelligence;^[11]
    2. reading between the lines^[12] in light of his or her general knowledge^[13] and experience in worldly affairs;^[14]
    3. reading the entire matter complained of and considering the context as a whole,^[15] not just the isolated statement. Words that may not be defamatory alone can gain a different meaning in context, and vice versa.
    4. are informed by matters of public notoriety or awareness and general knowledge of public matters.^[16]
    5. not being prone to reading publications carefully, less still, reading them with cautious and critical analytical care, let alone re-reading the same publication;^[17]
    6. drawing conclusions from general impressions and in the process perhaps overlooking details inconsistent with such impressions.^[18] Facebook and Twitter posts require an impressionistic approach rather than detailed analysis. Social media users interpret messages quickly and casually, reflecting the conversational nature of these platforms.^[19]
    7. having a much greater capacity for implication than a lawyer or a judge^[20] even to the extent of drawing farfetched inferences;^[21]
    8. engaging in a certain amount of loose thinking;^[22]
    9. being specially influenced by captions and their digital equivalents including, it is submitted, caricature memes on Facebook;^[23]
    10. being fair minded in the sense of trying to strike a balance between the most extreme meaning the publication could have and the most innocent meaning the publication could have.^[24]
    11. does not give equal weight to every part of a publication;^[25] emphasis from headlines, headings, captions and images significantly influences their interpretation.
    12. can attribute a meaning shaped by insinuations or suggestions in the publication, including being guided by the publisher to suspicious interpretation without directly stating it.^[26]
    13. draw implications more freely, especially when derogatory. If a publisher invites a suspicious or conjectural approach, they are liable for the conclusions that an ordinary reasonable listener might draw.^[27]

30. [30]
    Ordinary readers draw implications much more freely than lawyers, including judges, especially when these implications are derogatory.^[28] But if an imputation can only emerge as the product of a strained, forced or utterly unreasonable interpretation, it must be so unreasonable, i.e. utterly unreasonable, that a jury could not find such an interpretation open to the hypothetical ordinary and reasonable reader.^[29]
31. [31]
    The ordinary and reasonable reader is presumed to have a uniform understanding of the language and images used in a publication.^[30] When words or images are unclear, ambiguous, or unusual, the ordinary and reasonable reader is given a lot of leeway to draw imputations adverse to the defendant.^[31] But where there are multiple interpretations, the court must select one single meaning that the impugned matter is taken to convey.^[32] If there are competing meanings, then the most prominent is adopted; if meanings are equally open, then the most defamatory meaning to be selected.^[33]

1^st Rob Pyne Publication

Thanks to all people supporting a Queensland ICAC. Those in power rarely welcome increased scrutiny, but the ordinary decent people in government roles (who are often the victims) need us to maintain the rage!”

32. [32]
    The plaintiff asserts that the following imputations are contained in the 1^st Rob Pyne publication:

    1. The plaintiff was a powerful crime boss; and
    2. further and alternatively, the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire; and
    3. further and alternatively, the plaintiff was corrupt; and
    4. further and alternatively, the plaintiff sought to corruptly influence public officials including elected members of the Queensland Parliament; and
    5. further and alternatively, the plaintiff had overborne the ethical standards which the LGAQ should have provided to local government; and
    6. further and alternatively, the plaintiff as the CEO of the LGAQ, did not welcome appropriate scrutiny of himself or the LGAQ; and
    7. further and alternatively, the plaintiff as CEO of the LGAQ, contributed to ordinary decent people in government roles becoming victims by the misuse of power.
33. [33]
    The caricature’s physical features and contextual elements (like “LGAQ” on the shirt and book) identified the plaintiff in a controlling role in the Association, and would lead an ordinary reasonable reader to identify the plaintiff in the 1^st Rob Pyne Publication as being within the class of “those in power” who “rarely welcome increased scrutiny” as distinct from “the ordinary decent people in government roles (who are often the victims)”. In my view, when read with the wording in the publication, in the context of the parliamentary conduct, public debate, and other proximate posts and comments, the caricature goes beyond mere satire or vulgarity that might be considered fair comment or the ‘rough and tumble’ of political debate.
34. [34]
    The asserted imputations (a) and (b) largely depend upon the ordinary and reasonable reader recognising that the plaintiff has attributed to him Jabba the Hutt’s essential characteristics of being a corrupt and criminal villain, a ‘baddie’, and a very negative person.
35. [35]
    As to imputation (a) that the plaintiff was a powerful crime boss, the plaintiff argues that he was well known as the CEO of the LGAQ and its public spokesman, and therefore in effect, the boss, and if the ordinary honest and reasonable reader perceives him as doing corrupt criminal and villainess things, then the 1^st Rob Pyne publication conveys the meaning that he was a crime boss. It is further argued that the meaning was that of a powerful crime boss since he contemplated speaking to the government and the Speaker and was, after all, one of those “in power”.
36. [36]
    The plaintiff led no evidence about the role and character of Jabba the Hutt in the movie Star Wars. Instead, he relied upon his presumed public notoriety inferentially known to the ordinary reasonable reader as a criminal figurehead. I am not satisfied on the evidence that there is any such prolific notoriety to safely attribute such the ordinary reasonable reader.
37. [37]
    The fourth defendant confirmed that he was “now” aware that the role which Jabba the Hutt played in the Stars Wars movie franchise was as “a corrupt and criminal villain”, “a baddie” and a pretty negative person, having learned of such content in this proceeding, and was not otherwise aware by some general notoriety. Instead, he attributed the caricature as depicting a cane toad being a notorious pest in Queensland and associate with representative sporting teams, and other Queensland figures. At best, his evidence – to the extent that it might be indicative of an ordinary reasonable reader – showed that Jabba the Hutt was an image used in cartoon political satire, not because of his movie persona, but of an overbearing, overweight and ugly character (e.g. a similar use regarding Clive Palmer and Senator Lambie). This is also consistent with the evidence of the first defendant that the Jabba the Hutt imagery was in common use due to its visual feature in relation to Donald Trump and in relation to Clive Palmer, not in the context of the movie. Although I note that Mr Millar testified that he was familiar with Jabba the Hutt as a large villainous and evil character from the fictional Star Wars franchise.
38. [38]
    It seems to me that the alleged imputation (a) that the plaintiff is a powerful crime boss and (b) that the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire, can only emerge as the product of a strained, forced or utterly unreasonable interpretation with knowledge of the character and role of Jabba the Hutt in the movie Star Wars. In my view, without such notoriety, a jury could not find such an interpretation open to the ordinary and reasonable reader as alleged in imputations (a) and (b). Therefore, the 1st Rob Pyne Publications does not have the capacity to convey any of their pleaded imputations (a) and (b).
39. [39]
    Even if the 1^st Rob Pyne Publications had the capacity to convey any of their pleaded imputations (a) and (b), I do not accept that a jury could find the contended interpretation open to the ordinary and reasonable reader. The 1^st Rob Pyne publication will more likely be interpreted as a broad critique of power dynamics and systemic issues between political parties and the LGAQ rather than conveying the specific defamatory imputations of the plaintiff as a crime boss or that he operated a profitable criminal empire as a cartel through the association.
40. [40]
    However, the Jabba the Hutt movie role attributes are not necessary to convey imputations (c), (d), (e), (f) and (g).
41. [41]
    Imputations (c) and (d) are anchored by the opening sentence, “Thanks to all people supporting a Queensland ICAC,” which would be understood by a reasonable reader as referring to the Independent Commission Against Corruption. Corruption in the context of a public commission implies bad or improper behaviour, dishonesty, and a willingness to act without integrity for personal gain or an improper purpose in public office.
42. [42]
    The plaintiff argues that imputation (d) is evident from the thought bubble, which shows the plaintiff contemplating influencing public officials, including Queensland Parliament members. The bags of money behind the figure imply ill-gotten gains that would be lost if the plaintiff’s meetings with the government and the Speaker failed to silence the fourth defendant. This suggests the plaintiff is acting dishonestly for personal gain. To a reasonable reader, the caricature indicates that the plaintiff is seeking to corruptly influence public officials. This level of corruption justifies the call to “maintain the rage!” The plaintiff also contends that Imputation (c) follows from imputation (d), as it involves covering up unethical actions. The depiction suggests that the plaintiff has benefited from dishonest gains and is trying to protect them.
43. [43]
    Whilst it is tolerably clear that imputation (c) draws from the notion that corruption involves covering up improper actions and imputation (d) is derived from the thought bubble’s words. I think it is an utterly unreasonable interpretation to attribute a return of some personal improper benefit, gain or money in doing so to the plaintiff himself. It seems to me that the depiction of the plaintiff is as representative of the LGAQ body, that is, as the embodiment of the LGAQ, with its political support found in the acronyms on the figure’s shirt. The embodiment is constraining the LGAQ’s ethics manual, which sandwiches cash money, suggesting to a reasonable reader that the association, albeit under his leadership, is engaged in money-motivated unethical behaviour, which the plaintiff seeks to protect from unwelcome scrutiny by a corruption watchdog. In that sense, I think the publication is capable of conveying imputation (c) and did convey that imputation.
44. [44]
    Imputation (d) is derived from the thought bubble’s words. The figure depicts the plaintiff contemplating influencing public officials, including Queensland Parliament members, to oppose the creation of such a body at the urging of the fourth defendant lest he “ruin everything” of the status quo. The bags of money behind the figure depicting the acronyms “ALP” for the Australian Labour Party and “LNP” for the Liberal National Party suggest not ill-gotten gains but the political funding protecting the association’s interests. Again, I do not accept the plaintiff’s contention that it represents personal ill-gotten gain by the plaintiff, but instead, it represents the unscrutinised political relationships and gain of the association. Nor do I accept that it implies to a reasonable reader that the plaintiff intended to act dishonestly and without integrity for personal gain, seeking to corruptly influence public officials. But it highlights the close relationship with, and perceived power and ease of access to, the government and speaker to lobby against the fourth defendant’s use of his position and mode for agitating for an anti-corruption commission. It follows that the figure depicts the plaintiff contemplating meeting public officials, including Queensland Parliament members, for an improper purpose to oppose the creation of such a body at the urging of the fourth defendant lest he “ruin everything” of the status quo for an improper purpose of protecting the associations unethical practices. In that sense, I think the publication is capable of conveying imputation (c) and did convey that imputation.
45. [45]
    Imputation (e) is based on the caricature of the plaintiff holding a chain restraining the LGAQ Ethics Manual, depicted as a book-like figure. Chains symbolise slavery, leading a reasonable reader to infer that the plaintiff unethically subjugated the ethical standards the LGAQ should have provided to local government.
46. [46]
    I accept the plaintiff’s argument regarding that imputation (f). It is based on the post’s statement, “Those in power rarely welcome increased scrutiny,” and the accompanying caricature. The caricature depicts the plaintiff as a powerful figure contemplating silencing “that bloody Rob Pyne” by speaking to the government and the Speaker. References to the LGAQ and the controversy over the plaintiff’s criticism of the fourth defendant’s use of parliamentary privilege further support this interpretation. Therefore, the publication is capable of conveying imputation (f) and did convey that imputation.
47. [47]
    Imputation (g) follows from the words, “… but the ordinary decent people in government roles (who are often the victims) need us to maintain the rage!” The word “victim” means a sufferer from an adverse action or agency. I agree with the plaintiff’s submission that an ordinary reasonable reader would have inferred that decent people in government were being adversely affected by “those in power,” a class that included the plaintiff as the LGAQ executive head, and that is why they did not welcome increased scrutiny. The accompanying caricature would have reinforced this idea by illustrating what those in power did not want to be scrutinized: the fourth defendant’s revelations under parliamentary privilege and the undermining of the ethical standards the LGAQ should have provided to local government. But I do not accept, as being utterly unreasonable for the reasons already discussed for Imputation (c) & (d), the interpretation the resistance of scrutiny was to protect that the ill-gotten gains (represented by the bags of money behind the figure’s tail). Nevertheless, with that small reservation, I find that the publication is capable of conveying imputation (g) and did convey that imputation.
48. [48]
    Therefore, I find that the 1st Rob Pyne Publication was capable of, and did in fact convey, the imputations (c), (d), (e), (f) and (g).

2^nd Rob Pyne Publication

“We all put our recyclables in the bin, doing the right thing. After that, the truth is a disgrace! Corruption is rife and it is no surprise that local government is at the heart of the crooked behaviour.

Please watch this doc @ http://www.facebook.com/abc4corners/videos/10154861721440954”.

49. [49]
    The plaintiff alleges that the following imputations are contained in the 2^nd Rob Pyne publication:

    1. The plaintiff was at the heart of crooked behaviour; and
    2. further and alternatively, the plaintiff contributed to corruption being rife.
50. [50]
    I have already found that an ordinary reasonable reader is able to identify the plaintiff in the 2^nd Rob Pyne Publication as a key individual associated with “local government”, which is slated as being “at the heart of the crooked behaviour” where “corruption is rife!”
51. [51]
    Whilst the wording draws the reader to watch the Facebook report of the ABC program Four Corners and its wider context of improper recycling practices in local government, the publication must be read in the context of the surrounding discourse. It is made in the context of the call for the anti-consumption commission, use of parliamentary privilege, reactive posts and comments by others, and the 1st Rob Pyne Publication.
52. [52]
    It seems to me to plainly follow that, both imputation (a) and (b) are capable, and in fact conveyed, by the 2^nd Rob Pyne Publication.

3^rd Rob Pyne Publication

“Those in power are the problem. Rather than attack the cause of systemic corruption they are attacking and trying to discredit me. The politics of ‘power and privilege’ by insider groups has dominated for too long and it is time to smash it open!”

53. [53]
    The plaintiff asserts that the following imputations are contained in the 3^rd Rob Pyne:

1. the plaintiff was, with others, a member of insider groups, including the LGAQ, who had dominated for too long; and
2. further and alternatively the plaintiff was, with others, not prepared to attack the systemic cause of corruption; and
3. further and alternatively the plaintiff was, with others, the problem; and
4. further and alternatively, the plaintiff with others, deserved to be smashed open; and
5. further and alternatively, the plaintiff was facilitating and further and alternatively, allowing systemic corruption.

54. [54]
    Again, context remains important to considering the alleged imputations, including the earlier publications by the fourth defendant, other posts and comments, and the continuing controversy regarding parliamentary privilege.
55. [55]
    I have already found that an ordinary reasonable reader would identify the plaintiff in the 3^rd Rob Pyne Publication as being within one of “Those in power” who had publicly engaged in criticism of the fourth defendant, and therefore “Rather than attack the cause of systemic corruption, they are attacking and trying to discredit me”. He was also the head of one of the “insider groups” that long dominated with “power and privilege” as described in the 3^rd Rob Pyne Publication.
56. [56]
    The last sentence of this post supports imputation (a), particularly considering the first two sentences. In this context, the LGAQ and its CEO, the plaintiff, could be seen by a hypothetical ordinary and reasonable reader of the Rob Pyne Facebook pages as one of the “insider groups” that have “dominated for too long”. Therefore, imputation (a) is capable, and in fact conveyed, by the 3^rd Rob Pyne Publication.
57. [57]
    As for imputations (b) and (e) the plaintiff argues that, due to the plaintiff’s criticism of the fourth defendant in the course of the public controversy, which involves the plaintiff attacking the fourth defendant and necessarily trying to discredit him, these words were previously observed as identifying the plaintiff. However, as the argument goes, in the minds of the ordinary and reasonable reader of the fourth defendant’s Facebook page, they also ascribe to the plaintiff in his doing so a desire not to attack the systemic cause of corruption.
58. [58]
    I disagree. It seems to me that the alleged imputations (b) and (e) could only arise from a strained, forced, or completely unreasonable interpretation, especially when considering the context of the public discourse, other posts, comments, and the publication itself. In my view, the public discourse, including the plaintiff’s criticism, was focused on the fourth defendant’s reckless use of parliamentary privilege and not a failure of preparedness to “attack the cause of systemic corruption” and not to somehow facilitate or allow systemic corruption. Therefore, I do not believe that a jury could reasonably interpret the publication as conveying the imputations claimed by the plaintiff in (b) and (e). Consequently, I do not accept that these imputations are capable of being, or were actually, conveyed by the third Rob Pyne publication.
59. [59]
    The first sentence of this post clearly supports imputation (c) through its literal wording. The plaintiff is identified as one of “those in power” who collectively form “the problem.” Similarly, imputation (d) is derived from the literal words, “it’s time to smash it open,” by reference to the “insider groups,” including the LGAQ under the plaintiff’s leadership, who were engaging in the politics of “power and privilege.” Therefore, imputations (c) and (d) are capable, and are in fact conveyed, by the 3rd Rob Pyne Publication.

4^th Rob Pyne Publication

“I have never dodged a bill or traded while insolvent in my life. Never taken an overseas trip at ratepayer/taxpayer expense or taken money from developers. Those who want to silence me need to be held to account and these weak little men with big expense accounts need to understand, “you are not scaring anyone” and people are awake to you!”

60. [60]
    The plaintiff asserts that the following imputations are contained in the 4^th Rob Pyne publication:

    1. the plaintiff had acted in a way which inappropriately silenced the fourth defendant; and
    2. further and alternatively, the plaintiff needed to be held to account;
    3. further and alternatively, the plaintiff should be aware that people were awake to his wrongdoing.
61. [61]
    The plaintiff emphasis that the context is important in determining the imputations because of the regular readership of the fourth defendant’s Facebook page, including the public controversy of him using parliamentary privilege, but also the proximate 1^st, 2^nd and 3^rd Rob Pyne publications.
62. [62]
    I have found that an ordinary reasonable reader is able to identify the plaintiff in the 4^th Rob Pyne Publication as being within the class of “those who want to silence” the fourth defendant, who “need to be held to account” and as a member of the class of “weak little men” who “people are awake to”.
63. [63]
    The plaintiff relies upon the third sentence of this post as the basis for imputations (a) and (b).
64. [64]
    While I disagree that the imputation is derived from the wording “must be held to account”, it seems to me that “those who want to silence” the fourth defendant, which included the plaintiff, did so for the improper purpose of “scaring” the fourth defendant and anyone of his supporters, then their intimidatory purpose is suggestive of “inappropriate” conduct. Imputation (b) is capable of being conveyed by reference to the third sentence. Stating that the plaintiff, among others, “must be held to account”, as distinct from being called to account, suggests that the plaintiff must face punishment or other forms of sanction or condemnation to account for past wrongful actions. In contrast, being called to account simply requires a person to explain their actions. Therefore, the 4^th Rob Pyne Publications does have the capacity to convey, and did, in fact, convey the pleaded imputation (a) and (b). Imputation (c) is also, therefore, capable of being conveyed by the last sentence that “people were a wake- up to his wrongdoing”, for which the plaintiff “must be held to account”.
65. [65]
    Therefore, the 4^th Rob Pyne Publications does have the capacity to convey, and did convey the overlapping pleaded imputations (a), (b) and (c).

5^th Rob Pyne Publication

“When will this government act on corruption? The evidence is overwhelming. If the premier will not announce a Commission of inquiry into corruption in government administration, the parliament should with true confidence and demand a state election. We must stop the rot!”

66. [66]
    The plaintiff alleges that the following imputations are contained in the 5^th Rob Pyne publication are that the plaintiff:

    1. amongst others, the plaintiff was subject to overwhelming evidence of corruption; and
    2. further and alternatively, the plaintiff, amongst others, ought because of that corruption, be the subject of government action; and
    3. further and alternatively, the plaintiff, amongst others, was contributing to the rot of corruption.
67. [67]
    Of course, the relevant context includes the public discourse of the fourth defendant’s use of parliamentary privilege, the attribution of corruption and need for a corruption commission in the 1^st Rob Pyne publications, other proximate posts and comments in the fourth defendant’s public Facebook page, and the cumulation of the series of the 2^nd 3^rd and 4^th Rob Pyne publications.
68. [68]
    I have found that an ordinary reasonable reader to identify the plaintiff in the 5^th Rob Pyne Publication as a key individual “in government administration” about which there is a call for the government to act on corruption and for the premier to announce and inquiry into “corruption” to “stop the rot”.
69. [69]
    It follows from the literal interpretation that imputations (a), (b) and (c) are capable of being conveyed, and were conveyed, by the 5^th Rob Pyne publication.

Were the imputations conveyed in the publications defamatory of the plaintiff?

70. [70]
    The test for defamatory matter is whether the published content is likely to make an ordinary reasonable person think less of the plaintiff, considering all aspects of a person’s standing in the community.^[34] While general community standards are not part of the test, they may be relevant when assessing the impact of an imputation on the plaintiff’s reputation, particularly for determining damages.^[35]
71. [71]
    I have found the fourth defendant’s publications conveyed the following imputations:

72. [72]
    In my view, each of the imputations found in the 1^st, 2^nd, 4^th and 5^th Rob Pyne Publications are likely to make an ordinary, reasonable person think less of the plaintiff, but I do not think so in relation to the imputations found in the 3^rd Rob Pyne Publication.
73. [73]
    The 1^st, 2^nd, 4^th and 5^th Rob Pyne Publications are sensationalist in tone and pregnant with insinuation and suggestion of improper conduct and wrongdoing, which invites readers to adopt a suspicious approach and repeatedly invites conjecture. Whereas, even amidst the negative context surrounding the publications, I think that an ordinary reasonable reader is sufficiently familiar with political workings to see that the imputations derived from the 3^rd Rob Pyne Publication use a different tone for statements of broader political application and are unlikely to make an ordinary, reasonable person think less of the plaintiff. This is because: “insider groups” insinuate internal organisations (not individuals) who have an advisory influence on the political workings of government rather than carrying an improperness connotation; “dominated for too long” is an observation about the groups’ effective policy influence, again not an implication of wrongdoing, but a desire to disrupt that dominance; “power and privilege” is widely used as a descriptor of those perceived with higher social economic status who gain positions of authority, but without implying misuse of their entitled background; the publication makes general observations about the nature of the groups, to which the LGAQ belongs, without suggesting that the LGAQ or, and even less so the plaintiff, engaged in unethical or improper domination; and it is preferable to the legitimate role in government systems, rather than as a personal indictment of the plaintiff.
74. [74]
    Therefore, the imputations in the 3^rd Rob Pyne publication would likely be seen as factual observations, rather than defamatory statements that could harm the plaintiff’s reputation in the eyes of an ordinary, reasonable reader.
75. [75]
    The fourth defendant, having raised no positive defences, is liable for defaming the plaintiff as found in respect of the 1^st, 2^nd, 4^th and 5^th Rob Pyne Publications,^[36] and damages will be assessed based on all of the imputations found for each of those publications.

ASSESSMENT OF DAMAGES

76. [76]
    By virtue of section 6(2) of the Defamation Act 2005 (Qld) (the Act), the operation of the general law in relation to the tort of defamation is not affected, except to the extent expressly or by necessary implication it provides otherwise. Subsection (3) provides that:

“Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the Defamation Act 1889 had never been enacted.^[37]”

77. [77]
    Pursuant to s 34 of the Act, the amount of damages must reflect “an appropriate and rational relationship to the harm sustained by the plaintiff”. The section reflects the three purposes of compensation at general law.
78. [78]
    In Rogers v Nationwide News Pty Ltd [2003] HCA 52^[38] Hayne J (Gleeson CJ and Gummow J agree) refer to Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44,^[39] to affirm the three main purposes of damages in defamation: first, they provide consolation to the plaintiff for the personal distress and hurt caused by the publication; secondly (and often considered with the first), they offer reparation for the harm inflicted on the plaintiff’s personal and professional reputation; and thirdly, they aim to vindicate the plaintiff’s reputation by influencing the opinion of others.
79. [79]
    All three purposes of consolation, reparation and vindication are relevant here and a single amount must be awarded to serve each purpose and there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
80. [80]
    The recent Court of Appeal decision in Nine Network Australia Pty Ltd & Ors v Wagner & Ors^[40] clarified the principles for awarding damages when multiple defendants are sued for multiple defamatory publications. The principle of indivisible harm was central to this case, as the harm caused by multiple defamatory publications was treated as one.
81. [81]
    Here, applying those principles, the respective defendants should be classified as a separate tortfeasor, a joint tortfeasor, or several concurrent tortfeasors. Separate tortfeasors act independently, while joint tortfeasors collaborate in committing the defamatory act, and several concurrent tortfeasors cause indivisible harm through separate but related acts. Indivisible harm occurs when multiple acts contribute to a single, undivided injury that cannot be apportioned among the tortfeasors. In those circumstances, each tortfeasor will be liable for the entire harm if their conduct is a cause of that harm, regardless of whether they acted together or separately. The courts have consistently rejected the need for a global damages approach, instead supporting separate awards for different harms caused by each defendant. But, double recovery is not permitted, ensuring fair compensation for the plaintiff while preventing overlapping compensation for the same harm. Further, separate awards must be made for any aggravated damages (where all defendants do not jointly engage in the aggravating conduct) such that the same amount is not to be assessed against several concurrent tortfeasors for aggravating conduct.
82. [82]
    Since the defendants’ respective and multiple applications are made in the context of the broader Facebook discourse, I think that the first and fourth defendants are properly to be classified as several concurrent tortfeasors, each causing indivisible harm through their respective publications but avoiding double recovery. The circumstances of the defendants’ numerous, disjointed, separate, and different publications warrant separate awards of damages against each defendant and disparate consideration of aggravated damages.
83. [83]
    In the circumstances here, where the first and fourth defendants have now been adjudged liable for the imputations, some damage to the plaintiff’s reputation is presumed. Any allowance on account of consolation and reparation should reflect the subjective impact of the defamation upon the plaintiff.
84. [84]
    The assessment of damages in defamation is governed by the general principles of tort concerning causation and remoteness of damage.^[41] In Carson v John Fairfax & Sons Ltd,^[42] McHugh J said in relation to damages being ‘at large’ that:

“No doubt the rough-and-ready process by which juries assess damages in a defamation action is not one which appeals to the many sophisticated minds of the spreadsheet generation. It does not, as the speech of Lord Shaw makes plain, purport to be a scientific, or even a pseudo-scientific, process. There are no columns and rows into which the components of the verdict can be conveniently placed, no relationships which can be made the subject of mathematical formulas. The assessment depends upon nothing more than the good sense and sound instincts of jurors as to what is a fair and reasonable award, having regard to all the circumstances of the case. That is why the damages are said to be ‘at large’.”

85. [85]
    The plaintiff must show causation as a pre-condition for the recovery of substantial damages for a defamatory wrong. It is sufficient that wrongful conduct is just one of several conditions sufficient to produce that damage.^[43] Causation is a factual question decided by common sense and experience.^[44] The issue is whether the injuries and damage suffered by the plaintiff were caused or materially contributed to by the defendant’s wrongful conduct.^[45] A defamatory wrong need not be the sole or predominant cause of damage; it is enough that it materially contributed to the damage.^[46] Once the plaintiff shows causation, the evidential burden shifts to the defendant to disprove causation or entitlement.^[47]
86. [86]
    As Lord Diplock said in Broome v Cassell & Co Ltd:^[48]

“The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him.”^[49]

87. [87]
    Similarly, in Carson v John Fairfax & Sons Ltd,^[50] McHugh J said that the damage produced by a defamation:

“… affects the feelings, sense of security, sense of esteem and self- perceptions of the person defamed. As a natural consequence, a defamation excites the anger and resentment of the victim and often enough generates a desire for retribution.”

88. [88]
    Additional factors that are pertinent to assessing the level of the harm, also relevant here, caused by a defamatory publication include the seriousness of the accusations made in the publication, the manner and extent of its distribution, the identity and situation of the recipients and their connection with the particular plaintiff and any subsequent effects experienced by the recipients as a result of the publication.
89. [89]
    By operation of s 35 of the Act, in defamation proceedings, damages for non-economic loss are capped, subject to an exception that the court can order a defendant to pay damages exceeding that maximum damages amount, currently $487,500, if, and only if, the court is satisfied that the circumstances of the publication of the defamatory material warrant an award of aggravated damages. The provision does not set the upper limit of a range of damages that may be awarded for non-economic loss in defamation proceedings, but instead, merely sets a cap, which applies after damages have been assessed in accordance with s 34 and general law; aggravated damages do not need to be awarded separately; and the proviso enables the court to exceed the cap if convinced that the circumstances of the publication of the defamatory matter warrant an award of aggravated damages.^[51]
90. [90]
    Under s 36 of the Act, if a defendant’s malice or state of mind affects the harm suffered by a plaintiff, it is relevant to the award of damages. However, an innocent state of mind on a defendant’s part does not mitigate damages unless the plaintiff believes it to be the case. By s 37 of the Act the plaintiff cannot be awarded exemplary or punitive damages.
91. [91]
    Section 38 provides a list of factors for mitigating damages, placing the onus on a defendant to prove these factors. The provision effectively prevents double compensation for the same loss by considering the similarities or differences in the defamatory imputations and the type of publication and its audience.^[52]
92. [92]
    Section 39 grants the court discretion to assess damages in a single sum for multiple causes of action, provided it serves the statutory purpose of providing effective and fair remedies for harmed reputations. However, separate sums must always be assessed for each plaintiff against each defendant.^[53] The assessment of damages for non-economic loss is necessarily imprecise due to factors like the broad reach of defamatory statements, prolonged effects, lack of a market value for harm, and subjective and impressionable evaluation.^[54] In cases of multiple defamatory publications by a single defendant, although mindful of overlap, a single sum can be awarded considering the cumulative impact on the plaintiff. Multiple defamatory publications, especially in social media proliferation and personal impact, may justify aggravated damages, potentially exceeding statutory caps.
93. [93]
    The discretion under s 39 must be exercised judicially and in accordance with the general law where multiple defendants of the liability of separate, joint and several concurrent tortfeasors in the absence of express exclusion by the Act.

Consolation for personal hurt and distress

94. [94]
    The plaintiff seeks ordinary compensatory damages for hurt and distress, a substantial component of damages for non-economic loss, as distinct from the claim for aggravated damages.
95. [95]
    A plaintiff’s personal hurt and distress include hurt feelings, anxiety, loss of self-esteem, indignity, and outrage.^[55] Additionally, the grief or annoyance caused by the defamatory statement,^[56] the anxiety and uncertainty experienced during litigation,^[57] including media coverage of proceedings,^[58] are also compensated. The harm might lie in the plaintiff’s perception of what others think of them rather than actual changes in others’ attitudes.^[59] The seriousness and falsity of the defamatory statements are relevant to the level of personal hurt and distress and, therefore, affect the amount of compensatory damages.^[60] Likewise, the plaintiff’s knowledge of the extent and mode of publication, including the grapevine effect, is relevant.
96. [96]
    The plaintiff impressed me as an intelligent, quietly spoken, effective and competent communicator who generally maintained a calm composure, with a typical display of annoyance when facing the first and second defendants during cross-examination over eight days.
97. [97]
    The plaintiff was 61 to 62 years old at trial and is now 65. He has had a distinguished career in local government administrative services and holds degrees in business and economics, as well as post-graduate qualifications in strategic corporate communications from the University of Melbourne and political campaign management from George Washington University. Over his extensive career, he held several prominent positions, including as CEO of the LGAQ from 1992 until his retirement in 2021. He also served on various boards, such as the Queensland Treasury Corporation, the Bruce Highway Trust, and the Sporting Wheelies Board for 20 years. He has received several honours, including appointment as a Member of the Order of Australia in 2018 for his significant contributions to local government, disaster recovery, and people with disabilities, a Public Service Medal in 2000 for outstanding service in local government, the Centenary Medal in 2001 in recognition of 500 leaders in Australia at the time the Centenary, National Emergency Management Medal for his efforts in the 2011/2012 natural disasters. He enjoyed coaching athletics and contributed to the community through amateur sports.
98. [98]
    Consistent with his professional success and resilience, the plaintiff showed no apparent emotional distress. This is explicable since his evidence over eight days was predominately given by evidence in chief, and he was on his prescribed psychiatric medication. However, he did show some vocal and expressive annoyance when he was confronted by the first and second defendants during cross-examination and he was able to describe the impact he experienced due to defamatory publications.
99. [99]
    Throughout his testimony, Mr Hallam recounted numerous instances where the defamatory statements caused him significant emotional turmoil. He felt that the publications, particularly those from the first and fourth defendants, were part of an orchestrated campaign against him, which left him feeling powerless and deeply anxious.
100. [100]
     He described feeling angry, bewildered, and deeply hurt by the publications, which he treated as accusatory and damaged his public good reputation, particularly in local government, as follows: