Stoltenberg v Bolton; Loder v Bolton

1. [1]

   MACFARLAN JA: I agree with Gleeson JA.

2. [2]

   GLEESON JA: This appeal and related applications for leave to appeal and leave to cross-appeal concern the publication of a series of posts on a public Facebook page styled “Narri Leaks” in June and July 2015. The imputations allegedly conveyed by the posts included allegations of deliberate breaches of the Local Government Act 1993 (NSW) by the plaintiff, Mr Conrad Bolton, the Mayor of Narrabri Shire Council, deliberate corruption by Mr Bolton of the selection process for the general manager of the Council in 2015, corrupt, dishonest and intimidating actions of Mr Bolton as Mayor of Narrabri Shire Council warranting a full ICAC inquiry, and deliberate engagement by Mr Bolton in corrupt conduct by providing the Independent Pricing and Regulatory Tribunal (IPART) with information Mr Bolton knew to be false.

3. [3]

   On 14 December 2015, Mr Bolton commenced defamation proceedings by statement of claim against the first defendant, Mr Stephen Stoltenberg, who was the administrator of the Narri Leaks Facebook page and the author of the posts on that Facebook page, the subject of the defamation claim, and the second defendant, Ms Ann Loder, who was the author of certain “likes” and comments on the Narri Leaks Facebook page.

4. [4]

   The hearing below proceeded as a judge-alone trial before Payne J. The primary judge found that the six matters complained of carried imputations defamatory of Mr Bolton and that Mr Stoltenberg had no defence to five of the matters complained of. The primary judge also found that a later comment posted by Ms Loder on the Narri Leaks Facebook page specifically endorsed the second matter complained of, and amounted to secondary participation in this publication. Judgment was given against Mr Stoltenberg for damages of $100,000 and interest in the amount of $10,000, plus costs. Judgment was given against Ms Loder for damages of $10,000: Bolton v Stoltenberg [2018] NSWSC 1518 (Judgment).

5. [5]

   Mr Stoltenberg has appealed against the judgment and Ms Loder seeks leave to appeal.

6. [6]

   Mr Bolton seeks leave to cross-appeal against the dismissal of parts of his claim against Ms Loder. If successful in obtaining leave and in those challenges, Mr Bolton seeks a reassessment of damages against Ms Loder.

7. [7]

   Ms Loder and Mr Bolton both require leave to appeal because the matter in issue as between them is less than the threshold of $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r).

Factual background

1. [8]

   Mr Bolton was a councillor of the Narrabri Shire Council from 2004 to 2016 and Mayor from September 2012 to September 2016. The primary judge observed that Mr Bolton had a long distinguished history of service in the Narrabri Shire. He did not stand for re-election in September 2016 as a result of the conduct the subject of complaint in the proceedings below.

2. [9]

   The Facebook page called “Narri Leaks” was created on 13 June 2015 by Ms Rook, at Mr Stoltenberg’s request. Ms Rook was Mr Stoltenberg’s partner. “Narri Leaks” described itself as a page “Blowing the whistle on waste, poor management & worse in Narrabri Shire Council”.

3. [10]

   Ms Rook and Mr Stoltenberg were the administrators of the Narri Leaks Facebook page, which meant that they could change the photographs, modify the page, post to it and modify the posts and add links to videos, amongst other things. The primary judge found at Judgment [32]-[33]:

4. [11]

   Mr Stoltenberg was the author of many posts to the Narri Leaks page, including the six matters complained of. Five matters were posted in the period June to July 2015 and one in January 2016, after the commencement of proceedings. Each of those posts was downloaded by Mrs Beryl Bolton who took a screen shot of it. The primary judge found that Mrs Bolton did so because she was upset about the allegations being made on the Narri Leaks page about her husband. The judge rejected Mr Stoltenberg’s submission that Mrs Bolton acted as Mr Bolton’s agent in collecting this material: Judgment at [135]. Mr Stoltenberg challenges this finding.

The primary judge’s findings as to defamatory imputations conveyed by the matters complained of

1. [12]

   It is not necessary to refer to the defamatory imputations which his Honour found were conveyed by the sixth matter complained of. As to these imputations his Honour found that the defence of innocent dissemination under s 32 of the Defamation Act 2005 (NSW) had been established by Mr Stoltenberg. Mr Bolton does not challenge this finding.

2. [13]

   The primary judge found that the other five matters complained of conveyed at least some of the pleaded imputations which were defamatory of Mr Bolton. The references below to the numbered imputations are to the pleaded imputations in the further amended statement of claim (FASC).

3. [14]

   On 15 June 2015, the first matter complained of headed “Captain’s call” was uploaded to the Narri Leaks page by Ms Loder, at Mr Stoltenberg’s request. The subject matter of this post was the selection process for a new general manager of the Narrabri Shire Council to replace Ms Hood who had been appointed in December 2013. The primary judge found that the first matter complained of contained the following imputations which were defamatory of Mr Bolton:

4. [15]

   The business records of Facebook established that by 20 January 2016 the “Captain’s call” post had a “reach” of 661 and that 83 “likes, comments and shares” had occurred in response to the post: Judgment at [37], [154]. The primary judge found that the “reach” of the post records the number of people Facebook recorded as having read the post: Judgment [147]-[148].

5. [16]

   On 27 June 2015, the second matter complained of was uploaded to the Narri Leaks Facebook page beginning with the words “again, for the purpose of accurate facts”. That post made various allegations concerning the hiring of Mr Todd as general manager of the Narrabri Shire Council on about 24 June 2015. The primary judge found that the second matter complained of contained the following imputation which was defamatory of Mr Bolton:

6. [17]

   By 20 January 2016, the post had a “reach” of 797 and 124 “likes, comments and shares” had occurred in response to the post: Judgment at [41], [154].

7. [18]

   On 27 June 2015, the third matter complained of was uploaded to the Narri Leaks Facebook page beginning with the words “Again, for the purpose of accurate facts …”. The post included certain of the comments posted to the second matter complained of. The primary judge found that the third matter complained of contained the following imputations which were defamatory of Mr Bolton:

8. [19]

   By 20 January 2016, the post had a “reach” of 797 and 124 “likes, comments and shares” had occurred in response to the post: Judgment at [44], [154].

9. [20]

   On 29 June 2015, the fourth matter complained of was uploaded to the Narri Leaks Facebook page, headed “The Carton (sic) Below” at 11.44 pm. The post was viewed by Mrs Bolton 54 minutes later at 12.38 am on 30 June 2015. It was subsequently deleted by Ms Rook shortly thereafter, at the request of Mr Stoltenberg.

10. [21]

    The primary judge found that the fourth matter complained of contained the following imputations which were defamatory of Mr Bolton:

11. [22]

    On 18 July 2015, the fifth matter complained of was uploaded to the Narri Leaks Facebook page, headed “The Council’s IPART submission …” and included appended comments. At the time of this post, IPART was conducting an exercise with respect to the finances of local councils across New South Wales known as “Fit for the Future”. The Narri Leaks post referred to a submission by Narrabri Shire Council to IPART for a 30 per cent increase in rates, since reduced to 24.2 per cent, and a $19 million difference between budgeted and actual fees collected as recorded in the Narrabri Shire Council accounts over the last five years. The post included a cartoon depicting two persons, one viewing a laptop computer, the other holding a pad and pen and the comment, “Our books are balanced. 50% of our numbers are real and 50% are made up.”

12. [23]

    The primary judge found that the fifth matter complained of contained the following imputations which were defamatory of Mr Bolton:

13. [24]

    By 20 January 2016, the post had a “reach” of 1,900 and 57 “likes, comments and shares” had occurred in response to the post: Judgment at [49], [154].

14. [25]

    Mr Stoltenberg does not challenge any of the findings as to the imputations conveyed by these matters, other than the finding concerning the three imputations conveyed by the fifth matter complained of.

15. [26]

    In answers to interrogatories, Mr Stoltenberg said that he did not intend to convey any of the imputations which the primary judge found were conveyed by the five matters complained of. He also said that prior to publishing each of the five matters complained of, he or any servant or agent did not contact or attempt to contact Mr Bolton with respect to the matters complained of.

The primary judge’s reasons

1. [27]

   It is convenient first to refer to the primary judge’s reasons relating to the claim against Mr Stoltenberg. Matters relevant to the claim against Ms Loder are addressed separately below at [217]ff.

2. [28]

   No complaint is made in relation to his Honour’s statement of principles concerning proof of publication. At Judgment [116], his Honour said:

3. [29]

   His Honour found that Mr Stoltenberg was the author of the first to fifth matters complained of: Judgment at [117]. This finding is not challenged.

4. [30]

   His Honour gave the following reasons for rejecting Mr Stoltenberg’s submission that Mr Bolton had not proven that any one person had downloaded and read any of the matters complained of: Judgment at [117].

5. [31]

   The first concerned an objection by Mr Stoltenberg at trial that Mr Bolton was seeking to conduct a case outside the particulars he had given. The primary judge rejected this complaint: Judgment at [112]. After reviewing the solicitors’ correspondence relating to the request for particulars, and considering the requirements of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 15.1 and 15.19(1) and the remarks of Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-193, his Honour found that Mr Bolton’s pleading of publication was not limited by the exchange of particulars, as Mr Bolton’s solicitors refused to provide the particulars of identification that had been sought: Judgment at [130].

6. [32]

   His Honour further found that Mr Bolton was entitled to rely upon publication to Mrs Bolton who gave evidence that she had read each of the matters complained of. As indicated, his Honour found that Mrs Bolton was not the agent of Mr Bolton: Judgment at [134]-[135].

7. [33]

   Second, and in any event, his Honour held that Mr Bolton was entitled to rely on “a platform of facts” from which inferences of downloads could properly be drawn in order to establish publication and found that there were abundant facts from which the inference that each of the matters complained of was downloaded and read could properly be drawn: Judgment at [136]. Those facts comprised:

   1. (1)

      answers to interrogatories provided by Mr Stoltenberg concerning the number of hits the Narri Leaks Facebook page received in the first week from 17 June 2015, and the number of readers of the Narri Leaks website for the period June 2015 to January 2016;

   2. (2)

      Facebook posts by Mr Stoltenberg referring to the wide readership of Narri Leaks;

   3. (3)

      Facebook activity logs which were eventually tendered without objection; and

   4. (4)

      evidence of the readership of Narri Leaks given by Mrs Bolton that people in Queensland, Wellington, Adelaide and Singleton had spoken to her indicating that they had read items on the Narri leaks website, and evidence given by Mr Webb that the Narri Leaks website was discussed at local government conferences outside the Narrabri Shire at a state and national level, including at a particular mayoral function on the Gold Coast.

8. [34]

   His Honour found that Mr Stoltenberg published each of the matters complained of: Judgment at [159].

9. [35]

   No complaint is made in relation to his Honour’s statement of principles concerning proof of identification. At Judgment [187], his Honour said:

10. [36]

    His Honour found that he was comfortably satisfied that at least one person who had read each of the five matters complained of would have identified Mr Bolton as the person referred to. He gave the following reasons at Judgment [189]-[190]:

11. [37]

    No complaint is made in relation to his Honour’s statement of principles concerning common law qualified privilege. At Judgment [192]-[193], his Honour said:

12. [38]

    His Honour observed that the debate between the parties, with respect to the defence of common law qualified privilege, focused on whether Mr Stoltenberg could establish the requisite “reciprocity of duty and interest” between Mr Stoltenberg and the recipients of his publications: Judgment at [191].

13. [39]

    In addressing Mr Stoltenberg’s submissions that a distinction is to be drawn between mass media publications and specialist web pages, and that the publication in the present case was not made to an unrestricted audience, his Honour rejected Mr Stoltenberg’s submission that Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 was incorrectly decided, noting that Mr Stoltenberg’s characterisation of Narri Leaks as a “limited website publication” rather begs the question: Judgment at [195].

14. [40]

    His Honour also rejected Mr Stoltenberg’s submission that the authorities to which he referred established any generally applicable statement of principle for the purposes of the present case: Judgment at [198]-[202]. Reference was made to: Marshall v Smith [2013] WASC 452 at [33], [39]; Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428 at [10]; Trumm v Norman [2008] EWHC 116 at [33]-[37]; and Brady v Norman [2008] EWHC 2481 at [24]-[26].

15. [41]

    His Honour rejected Mr Stoltenberg’s submission, based on the particulars point, that the pleading identified a limited class of persons to whom Narri Leaks was published: Judgment at [206]. His Honour said at Judgment [207]-[209]:

16. [42]

    In rejecting the defence of common law qualified privilege, his Honour gave the following reasons.

17. [43]

    First, that Narri Leaks was downloaded and read by a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council, and that an avowed, and successful, purpose of the site was to attract readers from far beyond the Narrabri area who did not share the identified interest: Judgment at [210]. In support of this finding, his Honour referred to the four matters identified above at [33].

18. [44]

    Second, his Honour said that even if, contrary to his principal finding, the matters complained of were only downloaded and viewed by a limited class of persons within a limited subject matter, evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication, giving the following reasons at Judgment [212]:

19. [45]

    Third, whilst his Honour accepted that the finances of the Narrabri Shire Council and the appointment of general managers was an important topic in the Narrabri area, he found that Mr Stoltenberg had no duty to attack Mr Bolton’s reputation. Further, although the allegations of Mr Bolton acting corruptly and inappropriately may have been of general interest within the Narrabri community, his Honour found that Mr Stoltenberg failed to demonstrate the existence of a “special and reciprocal interest”, referring to Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195: Judgment at [213].

20. [46]

    Fourth, with respect to Mr Stoltenberg’s fall-back case that the relevant interest group was all people, wherever situated, with an interest in local government, his Honour found that there was no basis for concluding that the posts were only downloaded and viewed by a limited class of persons with an interest in local government: Judgment at [214].

21. [47]

    Having rejected the defence of common law qualified privilege, his Honour went on to find that Mr Bolton had not established malice: Judgment at [221].

22. [48]

    After setting out the terms of s 30 of the Defamation Act, his Honour continued at Judgment [223]:

23. [49]

    Mr Stoltenberg challenged the first sentence of this passage as containing error. So much was fairly acknowledged by counsel for Mr Bolton who accepted that the only issue at trial in relation to s 30 was the reasonableness of the conduct of Mr Stoltenberg in publishing the defamatory matters: s 30(1)(c).

24. [50]

    On the issue of reasonableness, his Honour referred to the observations of Giles JA in Theodore Skalkos v Joseph Assaf [2002] NSWCA 14 at [135]-[137] and Hunt AJA in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388 in relation to the test of reasonableness and the predecessor provision in s 22 of the now repealed Defamation Act 1974 (NSW). His Honour accepted that the same test of reasonableness applies under s 30, as under the former s 22 of the 1974 Act, that is, a defendant’s conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of: Judgment at [224]-[225].

25. [51]

    In rejecting the defence of statutory qualified privilege, his Honour gave the following reasons at Judgment [226]-[233]:

Issues on the appeal

1. [52]

   The notice of appeal contains 25 grounds of appeal and a total of 53 issues if sub-grounds are counted separately. It is not consistent with the requirements of the rules that the notice of appeal state “briefly, but specifically, the grounds relied on in support of the appeal”: UCPR, r 51.18(1)(e). The importance of brevity and precision in formulating the grounds of appeal cannot be overstated. Prolixity is inconsistent with the just, quick and cheap resolution of the real issues in proceedings: Civil Procedure Act 2005 (NSW), s 56(1). It also obscures apparent merit: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [70] (McHugh J).

2. [53]

   In written submissions, Mr Stoltenberg identified five issues as being raised by the appeal:

3. [54]

   This outline of the issues, which was repeated by counsel in her opening oral argument, does not serve as a substitute for the proper articulation of the grounds of appeal. This has made the Court’s task more difficult in ascertaining the real issues in dispute: Civil Procedure Act, s 56(1).

Publication: grounds 1 to 11

1. [55]

   It is not in dispute that his Honour correctly acknowledged the bilateral nature of publication for the purposes of a defamation claim, referring to Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [26]-[27] and [44]:

2. [56]

   His Honour also correctly accepted that the mere fact of posting material online does not lead to an inference that it has been downloaded, referring to Sims v Jooste (No 2) [2016] WASCA 83 at [18]-[20]. It is useful to reproduce in full the remarks of Martin CJ at [17]-[20] (Buss JA and Mitchell J agreeing) in relation to proof of publication in cases involving the internet:

3. [57]

   In oral argument, Mr Stoltenberg’s essential complaint was that the primary judge erred in allowing evidence that fell outside the particulars of publication to be admitted (ground 5). A related complaint asserted error in relying upon evidence outside the particularised case to prove publication (grounds 2, 3, 4, 9 and 10).

4. [58]

   There is a separate complaint challenging the finding that the fourth matter complained of was published at all, given that it was removed shortly after it was posted and, according to the contention, the only person who read it was Mrs Bolton, the wife of Mr Bolton (ground 1).

5. [59]

   The other complaints relating to publication are that the primary judge erred in making findings as to the extent of publication (grounds 3, 6, 7 and 8); and erred in failing to address the publication individually for each post (ground 11). With respect to these grounds, Mr Stoltenberg conceded at trial that the first and second matters complained of were published to persons other than Mrs Bolton, whilst submitting that such publication was limited to persons within the Narrabri Shire. The evidence was that the first matter complained of, it was “liked” by at least Ms Loder and Ms Rook and received comments by Mr John Hartford and “Andrew Boggabri”. The second matter complained of was “liked” by at least 12 people.

6. [60]

   Mr Stoltenberg contended that there was no evidence that the third, fourth and fifth matters were published to any person other than Mrs Bolton, that the cause of action based on publication to Mrs Bolton was outside the particulars, and in any event, the proceedings based on publication to Mrs Bolton were an abuse of process because she was the agent of Mr Bolton in reading and keeping a record of the matters complained of.

Whether erroneous admission of evidence: ground 5

1. [61]

   Mr Stoltenberg submitted that the primary judge erred in allowing evidence outside the particularised case of publication to be admitted to prove publication for three reasons:

   1. (1)

      the 1 February 2016 response clearly represented that Mr Bolton’s case was based on “readership of such a page in a small town”;

   2. (2)

      his Honour failed to consider the provisions of UCPR, r 15.19(1)(d) as applied to the first, second, third and fourth matters complained of or the issue of identification at all in this context; and

   3. (3)

      his Honour did not take into account Practice Note SC CL 4 and ss 56-60 of the Civil Procedure Act 2005 (NSW) in assessing the consequence and effect of the 1 February 2016 response:

2. [62]

   The particulars point directs attention to the relevant rules of pleading.

3. [63]

   UCPR r 15.1(1) provides that a party plead “such particulars of any claim, defence or other matter … as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet”.

4. [64]

   UCPR, r 15.19(1) is also relevant. It provides:

5. [65]

   The FASC gave the following particulars of publication under pars 4, 6, 8, 11 and 13 with respect to each of the five matters complained of:

6. [66]

   The following particulars of identification were given under pars 4, 6 and 11 of the FASC with respect to the first, second and fourth matters complained of:

7. [67]

   No particulars of identification were given with respect to the third and fifth matters complained of; Mr Bolton was specifically mentioned by name in each of these matters.

8. [68]

   The primary judge set out the relevant parts of the request for particulars and the response at Judgment [120]-[121] as follows:

9. [69]

   Mr Stoltenberg submitted that the effect of this correspondence was that Mr Bolton ultimately limited his case in relation to the matters where he was not named, to persons within the Narrabri Shire. I do not agree.

10. [70]

    The context of Mr Stoltenberg’s request for particulars was a complaint that Mr Bolton was not named in each of the first, second, third and fourth matters complained of. In fact, Mr Bolton was named in the third matter. Mr Stoltenberg sought particulars of at least one person who had read each matter complained of and who had identified Mr Bolton. The response by Mr Bolton’s solicitors was that such particulars were unnecessary, it being obvious that at least some readers would identify a person named as “Mayor” of a shire.

11. [71]

    The primary judge correctly observed that Mr Bolton refused to provide the particulars of identification which had been sought. The parenthetical statement in the response by Mr Bolton’s solicitors was in support of the position that identification particulars were unnecessary. That statement did not limit or circumscribe Mr Bolton’s case, as suggested by Mr Stoltenberg.

12. [72]

    As to Mr Stoltenberg’s complaint that he was prejudiced by the evidence given by Mrs Bolton that she downloaded and read the matters complained of, this is without merit. Mr Stoltenberg did not take any issue with the response to the request for particulars. He did not seek an order for particulars of either identification or publication; indeed, his solicitors did not respond to the 1 February 2016 letter from Mr Bolton’s solicitors.

13. [73]

    Although his Honour did not specifically set out the terms of sub-rule (d) when referring to r 15.19(1) at Judgment [124], it is plain from his Honour’s reasons that he had regard to the required particulars when considering Mr Stoltenberg’s complaint based on the response to particulars: see Judgment at [130], [139], [188].

14. [74]

    Contrary to Mr Stoltenberg’s submissions, his Honour did consider the issue of identification. Whilst his Honour accepted that an order for the provision of particulars of identification or publication might have been made if an application had been made by Mr Stoltenberg in a timely manner, he noted that there was no such application: Judgment at [129], [133]. There was no error in finding that the pleading of publication was, relevantly, unqualified: Judgment at [131].

15. [75]

    With respect to the third matter relied upon by Mr Stoltenberg, nothing in Practice Note SC CL 4 or ss 56-60 of the Civil Procedure Act had the effect of constraining Mr Bolton’s case in circumstances where, as his Honour correctly observed, no application for particulars of identification or publication was made by Mr Stoltenberg.

16. [76]

    Ground 5 is not made out.

Publication to Mrs Bolton: grounds 1, 2 and 5

1. [77]

   There are two parts to Mr Stoltenberg’s challenge to the primary judge’s finding that the matters complained of were read by and published to Mrs Bolton.

2. [78]

   The first is that evidence of publication to Mrs Bolton was outside the particulars because she was never particularised as a recipient of the matters complained of. This complaint is answered by the reasons given above in relation to the particulars point. There was no error in the finding that the publication to Mrs Bolton was within the pleading: Judgment at [134].

3. [79]

   The second aspect of the challenge is the contention that the primary judge erred in finding that Mrs Bolton was not acting on behalf of Mr Bolton when reading posts on the Narri Leaks website.

4. [80]

   The primary judge found that Mrs Bolton was not “directed to the allegedly defamatory material by [Mr Bolton]”, rather it was she who first drew Mr Bolton’s attention to the Narri Leaks site, and that far from directing Mrs Bolton to read and download material from Narri Leaks, Mr Bolton was anxious that his wife and daughter spend less time looking at the site, or better still, not engage with it at all: Judgment at [135]. None of these findings were challenged.

5. [81]

   Nonetheless, Mr Stoltenberg submitted that Mrs Bolton’s evidence established a voluntary agency to which Mr Bolton assented. I do not agree. Mrs Bolton gave evidence in cross-examination that her husband did not tell her to monitor the site and to capture the posts. There was no evidence of any assent by Mr Bolton to the asserted voluntary agency.

6. [82]

   In oral argument, Mr Stoltenberg submitted that Mrs Bolton was acting no differently to a paralegal or a solicitor in keeping a record of the posts. Again, I do not agree. That Mrs Bolton agreed in cross-examination that her purpose in capturing screenshots of the posts was to have a record in case her husband wanted to do anything about them was not evidence of agency or assent by Mr Bolton to that conduct. There is no error in his Honour’s conclusion that Mrs Bolton was not, on the evidence, the agent of Mr Bolton.

7. [83]

   Mr Stoltenberg further submitted that whether or not an agency is established, the cause of action based on a person like Mrs Bolton and/or anyone who is intimately involved in the prosecution of the claim is not actionable and is an abuse of process, referring to Duke of Brunswick v Harmer (1849) QB 185 and Jameel v Dow Jones & Co Inc [2005] 14 QB 946 at [56]. Alternatively, it was submitted that the circumstances of publication to Mrs Bolton would have attracted the defence of triviality under s 33 of the Defamation Act.

8. [84]

   One difficulty with the abuse of process argument is that the point was not pleaded or raised below. Nor, was it suggested that this is an exceptional case such that Mr Stoltenberg should be allowed to rely upon a new point on appeal: Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. In any event, this case is readily distinguishable from Brunswick v Harmer.

9. [85]

   In Brunswick v Harmer the Duke procured republication to his agent, who had purchased a back number containing the defamatory article and obtained another copy from the British Museum, seventeen years after its publication. As Lord Phillips MR remarked in Jameel at [22], the facts in Brunswick v Harmer are remarkable, whilst noting at [56]:

10. [86]

    Here, the effect of the unchallenged findings is that Mrs Bolton acted independently of Mr Bolton in downloading and reading material from the Narri Leaks web pages: see above at [80]. The present case is far removed from the facts in Brunswick v Harmer where republication was procured by an agent of the plaintiff for the purposes of proceedings. That Mrs Bolton thought she should have a record in case her husband wanted to do anything about the posts did not make the proceedings by Mr Bolton an abuse of process.

11. [87]

    As to the submission that Mr Stoltenberg might have pleaded other defences, such as under s 33 of the Defamation Act, the short answer is that he did not plead this defence and he is bound by the conduct of his case.

Admissions and documents evidencing the extent of publication: grounds 3, 6, 7 and 8

1. [88]

   Mr Stoltenberg submitted that the primary judge erred in taking into account as admissions evidencing the extent of publication, Mr Stoltenberg’s answers to interrogatories and in other contemporaneous posts. According to the submission, Mr Stoltenberg was not an expert in Facebook operations and therefore lacked first-hand knowledge of the extent of publication.

2. [89]

   Given that there was ultimately no challenge to the admissibility of this evidence, this complaint concerns the weight given to Mr Stoltenberg’s admissions as to the extent of publication of Narri Leaks in the context of the “platform of facts” from which inferences of downloads were drawn by his Honour in order to establish publication.

3. [90]

   As to Mr Stoltenberg’s answers to interrogatories, his Honour referred to two admissions: Judgment at [137], [139]. First, in response to interrogatory 95, concerning a statement on the Narri Leaks Facebook page on 17 June 2015 “We were at 9,800 people”, Mr Stoltenberg answered:

4. [91]

   After inferring that Mr Stoltenberg answered this interrogatory with the assistance of his legal advisers, his Honour found that a “hit” is the number of times that the Narri Leaks Facebook page was downloaded and viewed during the week: Judgment at [138]. There is no challenge to this finding.

5. [92]

   Second, interrogatory 97 should be set out in full:

6. [93]

   His Honour found that this answer was an admission as defined in the Evidence Act 1995 (NSW), being a previous representation made by a party, Mr Stoltenberg, that is adverse to his interests in the outcome of the proceeding, and accordingly the opinion and hearsay rules did not apply to evidence of an admission: Evidence Act, s 81. Again, there is no challenge to this finding.

7. [94]

   His Honour was entitled to take these admissions into account as part of the evidence from which inferences of downloads could be drawn in order to establish publication and the extent of publication.

8. [95]

   The primary judge found that Facebook posts made by Mr Stoltenberg were replete with references to the wide readership of Narri Leaks, and each of those posts contains admissions to which the hearsay and opinion rules do not apply: Judgment at [141]. Those admissions were made in the context of evidence that Mr Stoltenberg had set up and operated the Facebook page known as Narri Leaks, had access to the activity data recorded being a feature offered by Facebook to page hosts, and had translated that data into posts he authored.

9. [96]

   His Honour’s conclusion was amply supported by the findings at Judgment [142]-[148], which it is convenient to reproduce in full:

10. [97]

    Mr Stoltenberg did not challenge any of these findings other than the finding at Judgment [147]-[148] that the Facebook documents about “reach” were capable of demonstrating the number of people who had access to Narri Leaks posts and records the number of people who viewed each publication (ground 7). The question is whether his Honour was entitled to draw the inferences which he did from the Facebook business records.

11. [98]

    In Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, Leeming JA (Basten and Gleeson JJA agreeing) said at [91]

12. [99]

    Here, s 183 permitted the drawing of “any reasonable inferences from” the document “if a question arises about the application of the Act in relation to [the] document”. Given that ultimately there was no objection to the admissibility of the Facebook records, the question which arose from the application of the Act was the identification of any “previous representation made or recorded in the document in the course of, or for the purposes of, the business”: Evidence Act, s 69(1)(b). In this regard, his Honour found that the Facebook activity logs provide cogent evidence of publication of each of the matters complained of, giving the following reasons at Judgment [152]-[155]:

13. [100]

    In oral argument, Mr Stoltenberg submitted that the meaning of the word “reach” in the Facebook records “must be aspirational, and it is a calculation perhaps done by Facebook based on how many friends a person has”. This submission may be put aside; counsel for Mr Stoltenberg acknowledged that there was no evidentiary basis for the submission.

14. [101]

    Next Mr Stoltenberg drew attention to the difference between the Facebook records concerning the “reach” of the posts, and the number of “likes, comments and shares”. Reference by way of example was made to the first matter complained of where the business records of Facebook established that by 20 January 2016 the post had a “reach” of 661 and that 83 “likes, comments and shares” had been added to the post: Judgment [37], [154]. This submission goes nowhere. It may be readily inferred that not all persons viewing a post on the Narri Leaks page will make a response by either clicking “like” or “share” or by adding a “comment” to the post. Those persons who did so are a sub-set of the larger number of persons who viewed the page.

15. [102]

    The inference drawn by his Honour that in the context of a post, the “reach” of the post records the number of people Facebook has recorded as having viewed the post was reasonably open to be drawn from the Facebook business records and the other evidence of admissions by Mr Stoltenberg in answers to interrogatories and in his contemporaneous posts as to the “reach” of the Narri Leaks web pages.

16. [103]

    Although Mr Stoltenberg was not called to give evidence to explain or qualify his admissions in his own contemporaneous posts, it was submitted that his Honour erred at Judgment [153] in drawing an inference against Mr Stoltenberg that his evidence on publication could not have assisted him (ground 8). This complaint should be rejected for the following reasons.

17. [104]

    Of the three conditions referred to by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202 as to when the rule in Jones v Dunkel is applicable, the first and third conditions were satisfied: Mr Stoltenberg would be expected to be called in his case, not by Mr Bolton, and no explanation was offered for his absence as a witness.

18. [105]

    As to the second requirement in Payne v Parker – that the evidence would elucidate a particular matter – Mr Stoltenberg submitted that this was not satisfied because he did not have specialist knowledge concerning Facebook. The absence of specialised knowledge is no answer in the present case.

19. [106]

    In Payne v Parker at 202C–D, Glass JA explained this second requirement as follows:

20. [107]

    As indicated, Mr Stoltenberg translated the activity data recorded by Facebook into posts he authored, including specific reference to the “total reach” of 2,414 on 2 July 2015: see [97] above. Plainly, his evidence would have elucidated his use of the word “reach”, he could have put a true complexion on the facts, and it appears from his other posts that he had knowledge of the facts concerning the reach of the Narri Leaks web pages, including the number of hits. There was no error by the primary judge in drawing a Jones v Dunkel inference that Mr Stoltenberg’s evidence on publication could not have assisted him.

Oral evidence of publication outside the Shire: grounds 4, 9 and 10

1. [108]

   Mr Stoltenberg submitted that the primary judge erred in taking into account as part of the “platform of facts”, the evidence given by Mrs Bolton and Mr Webb to the effect that they had engaged in conversations with persons outside the Narrabri Shire about Narri Leaks and its attacks on Mr Bolton. The evidence of Mrs Bolton included conversations with a niece in Adelaide and relatives in Singleton. She also gave evidence that Mr Brad Pascoe, who commented on the third matter complained of, lived in Wellington at the time of the post and now lives in Junee. Mr Webb gave evidence of conversations at local government conferences outside the Narrabri Shire, including at a mayoral function on the Gold Coast. It was submitted that this evidence was too non-specific and ought to have been disregarded.

2. [109]

   The conversations which both Mrs Bolton and Mr Webb gave evidence about occurred nearly three years before they gave evidence. It can be accepted, as Mr Bolton acknowledged in his submissions, that their evidence was in general terms and they could not recall the individual posts being discussed. Mr Bolton submitted that the primary judge did not rely on this evidence as proof of an actual instance of a publication of a particular matter complained of and “took the evidence into general account as part of a platform of facts suggesting significant publication”. That submission should be accepted. I do not read the passage at Judgment [156] as suggesting that this evidence was proof of an actual instance of a publication of a particular matter complained of.

3. [110]

   Insofar as Mr Stoltenberg complained that this evidence was outside the particulars, that complaint should be rejected for the reasons given above in relation to the particulars point.

Failure to assess publication individually for each post: ground 11

1. [111]

   Mr Stoltenberg submitted that the primary judge failed to assess the issue of publication individually for each post. This ground is directed to challenging his Honour’s conclusion on publication at Judgment [157] as follows:

2. [112]

   The reference by his Honour to a “platform of facts” adopted the language used by Martin CJ in Sims v Jooste (No 2) at [18], citing Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294, in relation to proof of publication in cases involving the internet:

3. [113]

   The “platform of facts” from which his Honour drew an inference that the five matters complained of were downloaded by somebody have been referred to above at [33]. Taken together, the admissions by Mr Stoltenberg as to the number of “hits” on the Narri Leaks site – 9,800 in the first week and 21,000 in the first 10 days, that the estimated number of readers in the period June 2015 to January 2016 depending on the story varied between 5,000 and up to 35,000, that Narri Leaks was being watched all over the State, that $400 was spent “boosting” posts all over the State for all of the second week of publication in June 2015, that on 2 July 2015 719 “locals” out of a “total reach” of 2,414 hit the “Like” button; the inferences drawn from the Facebook records as to “reach” of the posts; and the evidence of Mrs Bolton and Mr Webb of readership of the Narri Leaks website by persons outside the Narribri Shire, amply support his Honour’s findings that the matters complained of were published by Mr Stoltenberg.

4. [114]

   As to the extent of publication, there was no error by his Honour in finding that publication of the matters complained of extended to persons beyond the Narrabri Shire. Mr Stoltenberg acknowledged in his post on 2 July 2015 that the number of ratepayers in the Narrabri Shire was about 6,000: Judgment at [145]. The number of ratepayers may be contrasted with the evidence of the number of “hits” and readers of the Narri Leaks site. Importantly, there were admissions by Mr Stoltenberg concerning the number of “hits” on the Narri Leaks site of 9,800 in the first week, 12,258 readers on 17 June 2015, and 21,000 “hits” in the first 10 days, and that the estimated number of readers in the period June 2015 to January 2016, depending on the story, varied between 5,000 and up to 35,000.

5. [115]

   In addition, there were the admissions by Mr Stoltenberg on 17 June 2015 that the site was “being watched … all over the country”, on 2 July 2015 that money was being spent “boosting” posts “all over the state” and that of the total reach of 2414, “they are mostly local”. Those admissions are consistent with the general evidence given by Mrs Bolton and Mr Webb of readership of the Narri Leaks site beyond the Narrabri Shire.

6. [116]

   One further matter should be mentioned concerning publication. Although not the subject of a ground of appeal, Mr Stoltenberg submitted that it is improbable that any reader, other than Mrs Bolton, opened and read all of the comments to the third and fifth matters complained of. This submission should be rejected broadly for the reasons advanced by Mr Bolton in his written submissions. It is sufficient to refer to the following matters.

7. [117]

   First, there was general evidence of the extent of publication and the high readership of the Narri Leaks page. That justified the finding of publication to at least one person.

8. [118]

   Second, the third matter complained of was “liked” by at least the two persons who “liked” the final Narri Leaks comment and also by Mr Pascoe, the last commentator in the thread. On the unchallenged evidence of Mrs Bolton, Mr Pascoe lived outside the Narrabri Shire.

9. [119]

   Third, it may be accepted that it is likely that at least some of the readers making a post would have read the entirety of the matter to obtain an understanding of the context of the discussion to which they would contribute.

10. [120]

    Fourth, and related to the previous matter, the submission contains a fundamental contradiction; according to Mr Stoltenberg’s submissions with respect to qualified privilege, readers are motivated by a special interest to read the Narri Leaks pages, yet it is suggested that they could not be bothered to read the publication in its entirety. This contradiction was raised by his Honour in closing argument and counsel for Mr Stoltenberg fairly conceded that readers were more likely to read the whole matter. There was no error by his Honour in drawing that inference.

Imputations conveyed by the fifth matter complained of: ground 12

1. [121]

   It will be recalled that the subject matter of the fifth matter complained of was a submission by Narrabri Shire Council to IPART in 2015 for a rate increase. Mr Stoltenberg challenged the primary judge’s finding that the fifth matter complained of conveyed the three imputations, which for convenience are again set out below:

2. [122]

   An understanding of this ground is assisted by reference to the fifth matter complained of. The Narri Leaks post commenced:

3. [123]

   The primary judge gave the following reasons for finding that imputations (1), (3) and (5) in the fifth matter complained of were defamatory of Mr Bolton:

4. [124]

   Mr Stoltenberg submitted that the fifth matter complained of was directed solely to Mr Ken Flower, the chair of the Council’s finance committee, and was not about Mr Stoltenberg. I do not agree. While Mr Flower was the primary target at the beginning of the post, on reading the whole of the post it was directed to both Mr Flower and Mr Bolton.

5. [125]

   Next, it was submitted with respect to imputation (1) that the primary judge took the relevant comment out of context by not referring to the word “now” in the comment “so they can hardly claim they don’t know about the unexplained $19 million now”. According to the submission, the only imputation the full comment conveyed was that there may be an issue if “they let it go forward from this point”. This submission should be rejected because it ignores the whole of the relevant section of the post. The earlier statement in the post alleged falsity of the information provided to IPART. The statement: “I would say putting up information that was knowingly false would be covered by parts a, b, c & d below – the quadrell[a]!” was a reference to the definition of “corrupt conduct” in s 8(1) of the Independent Commission Against Corruption Act 1988 (NSW).

6. [126]

   In addition, the comment about the unexplained $19 million was prefaced by the statement, “If the Mayor and Chairman of the Finance committee were to claim they didn’t know before, perhaps that’s true” which conveyed the insinuation that they probably knew this before the Narri Leaks post. This was reinforced by the cartoon in the post which suggested that the Council’s books are largely fictitious, particularly given the statement under the cartoon:

7. [127]

   It was also submitted that the pleaded imputations for the fifth matter complained of were “too high” and that the nature of the publication was to raise questions and doubts and call for an investigation and to ask Mr Ken Flower and others to clarify the situation. I do not agree. The text of the post does not merely suggest that there are grounds for investigating whether Mr Bolton has been responsible for providing false information to IPART. The ordinary, reasonable reader would not understand the fifth matter as merely an expression of concern warranting investigation. Rather, it conveyed imputations of discreditable conduct by Mr Bolton in providing information to IPART which he knew was false.

8. [128]

   There was no error in his Honour’s findings as to the defamatory imputations conveyed by the fifth matter.

Identification: grounds 13 and 14

1. [129]

   Mr Stoltenberg submitted that the primary judge erred in admitting evidence outside of the particulars of identification (Ground 13). As this ground relied upon the submissions on ground 5, it should be rejected for the same reasons given above with respect to ground 5.

2. [130]

   Mr Stoltenberg further submitted that the primary judge erred in finding that persons “dimly aware of the Narrabri Shire Councillors” would have understood the publications to be about Mr Bolton (ground 14). This ground does not accurately reflect his Honour’s finding or its context. The full passage at Judgment [189] is as follows:

3. [131]

   The point which his Honour was making in this passage was the contrast between the readers’ likely knowledge of the identity of the “Mayor” compared to their likely knowledge of the identity of the other councillors on the Narrabri Shire Council. His Honour was saying that even if readers were only very vaguely aware of who the councillors were they would have known who the Mayor was. There was no error in this finding given that the Mayor is more prominent and his identity is likely to have been known to many readers of the website devoted to issues in Narrabri.

4. [132]

   The submission by Mr Stoltenberg that the refusal to provide particulars of identification necessarily limited Mr Bolton’s case to the ordinary reasonable reader in the Narrabri Shire, has been rejected above when addressing ground 5. There was no error in admitting evidence about dissemination of the matters complained of to persons in local government circles and to persons who knew the identity of the Mayor outside the Narrabri Shire.

5. [133]

   Finally under this ground, the submission that the fourth matter complained of did not refer to the Mayor at all, should be rejected. The fourth matter attacked a “pattern of leadership style” in Council “over a 3 year period”. This was plainly an attack on Mr Bolton, who became Mayor in 2012, and any reader who knew he was Mayor would know that. There was evidence that such persons were located both within and outside the Narrabri Shire. There was no error by the primary judge in finding that Mr Bolton was identified in the fourth matter complained of.

Common law qualified privilege: grounds 15 to 24

1. [134]

   Grounds 15 to 24 contend that the primary judge was wrong in rejecting the defence of common law qualified privilege (Judgment at [215]) essentially for nine reasons:

   1. (1)

      his Honour erred in failing to take into account the findings on the issue of identification, relevantly:

   2. (2)

      his Honour erred in finding that Visscher v Maritime Union of Australia (No. 6) was correctly decided and that evidence of publication on the internet “to the world” is evidence of excessive publication: Judgment at [194]-[196];

   3. (3)

      his Honour erred in failing to recognise that absent evidence to the contrary, there is a presumption that a person who visits a specialist website and reads material on that website has the relevant reciprocal interest for the purposes of common law qualified privilege, and that the onus is on the plaintiff to prove that the publication exceeded the privileged occasion: Judgment at [197]-[203];

   4. (4)

      his Honour erred in comparing this case to the facts in Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514, which did not relate to the internet: Judgment at [204];

   5. (5)

      his Honour erred in taking into account the pleading in the FASC that each matter was in fact read in each state and territory of Australia for the purposes of the defence of common law qualified privilege: Judgment at [207];

   6. (6)

      his Honour erred in finding that the matters complained of were published to a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council: Judgment at [210]-[211];

   7. (7)

      his Honour erred in finding that publication on the Narri Leaks Facebook page was evidence of excessive publication: Judgment at [212];

   8. (8)

      his Honour erred in finding that Mr Stoltenberg did not have the requisite interest in publishing the matters complained of: Judgment at [213]; and

   9. (9)

      his Honour erred in failing to take into account in relation to the fourth matter complained of that the only evidence of publication was to Mrs Bolton, and that she necessarily fell within the privileged occasion.

2. [135]

   The disparate complaints raised by these grounds are broadly directed to two aspects of his Honour’s reasons. One concerns the findings relating to publication to persons within the Narrabri Shire. The other concerns the findings relating to publication to persons outside Narrabri Shire.

3. [136]

   In support of these grounds, Mr Stoltenberg submitted that he was a ratepayer activist in the Narrabri Shire Council who set up the Narri Leaks Facebook page, and therefore had a special interest in publishing information the subject of the matters complained of. He further submitted that Narri Leaks was a specialist website and that its readers may be presumed to have the relevant reciprocal interest for the purposes of the defence of common law qualified privilege. That reciprocal interest was identified as an interest in receiving information about matters concerning the governance of their local council.

4. [137]

   It was further submitted that readers of the matters complained of who could reasonably have identified that the publications were about Mr Bolton by use of the term “Mayor” were more likely than not to have an interest in the workings of Narrabri Shire Council. The submission continued that the primary judge erred in failing to take into account the inter-relationship between the issues of identification and qualified privilege.

Relevant principles

1. [138]

   Given the scope of the grounds of appeal, it is only necessary to refer to some matters of principle in relation to the defence of common law privilege.

2. [139]

   In Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57, Gaudron, McHugh and Gummow JJ described the defence of qualified privilege arising out of a reciprocal duty or interest in the following terms at [62]:

3. [140]

   In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5, Gleeson CJ, Hayne and Heydon JJ acknowledged at [10] that the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact, and noted that “a close scrutiny of the circumstances of each case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication is required to be undertaken”.

4. [141]

   In Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30, French CJ, Crennan and Kiefel JJ at [11]-[12] observed that the requirement of reciprocity of duty and interest is the hallmark of the common law defence of qualified privilege, although not a feature of the statutory defence, and continued:

5. [142]

   The joint judgment in Cush v Dillon emphasised at [18] the further requirement spoken of by Parke B in Toogood v Spyring (1834) 1 C M & R 181 at 193; 149 ER 1044 for statements to attract the qualified privilege:

6. [143]

   In Papaconstantinos v Holmes ‘A Court (2012) 249 CLR 534; [2012] HCA 53 at [8], French CJ, Crennan, Kiefel and Bell JJ spoke of the required interest to attract the defence of common law qualified privilege in the following terms:

7. [144]

   Turning to the specific complaints of Mr Stoltenberg.

8. [145]

   The first and fifth matters are connected. The premise of these contentions is that the class of persons named by Mr Bolton in his particulars of publication in the FASC was limited to persons in the town of Narrabri. That is not so. As explained above when rejecting ground 5, his Honour correctly found that the pleading in the FASC was not relevantly qualified by the exchange of particulars.

9. [146]

   As to Mr Stoltenberg’s contention that the readers of the matters complained of who could reasonably have identified that the publications were about Mr Bolton by the use of the term “Mayor” were more likely than not to have an interest in the workings of Narrabri Shire Council, this is answered by his Honour’s finding that Mr Stoltenberg failed to demonstrate the existence of a “special and reciprocal” interest in the readers of the matters complained of who may have known Mr Bolton and his position as Mayor: Judgment at [213]. The challenge to that finding, which is the subject of the eighth matter, is rejected below at [161]ff.

10. [147]

    The second, third and fourth matters are related. According to the submission, his Honour failed to appreciate the distinction between publication on the internet by mass media websites and non-mass media websites, such as the Narri Leaks Facebook page. I do not agree.

11. [148]

    First, his Honour correctly stated the principles relating to proof of publication of defamatory matter on the internet, including that the mere fact of posting material online does not lead to an inference that it has been downloaded: Judgment at [116] and [118].

12. [149]

    Second, applying the remarks of the High Court in Bashford at [10] that a court must make a close scrutiny of the circumstances of each case and the facts revolving around the publication, his Honour rejected Mr Stoltenberg’s argument that the required task is to be undertaken by applying a priori rules which contrast “mass media” with limited website publication”: Judgment at [194]. There was no error in that approach.

13. [150]

    Third, there was no error in rejecting Mr Stoltenberg’s submission that Visscher v Maritime Union of Australia (No 6) was incorrectly decided: Judgment [194]–[204]. Visscher concerned a website operated by the Maritime Union of Australia. Beech-Jones J rejected a submission that readers of the relevant article on the website “were, by the nature of the forum, involved directly or indirectly in the maritime industry”. That conclusion was based on the factual findings by Beech-Jones J at [200] that the relevant articles on the MUA website were freely available on the internet and that there was no basis for concluding that the articles were only downloaded and viewed by a limited class of persons with an interest in maritime safety or maritime affairs.

14. [151]

    Mr Stoltenberg submitted that both his Honour in this case and Beech-Jones J in Visscher applied a principle that making material available on the internet was of itself publication to the general public irrespective of who in fact downloaded the material. That is not so.

15. [152]

    The conclusion in Visscher was based on factual findings as to the extent of publication, not a principle of the sort which Mr Stoltenberg suggested that Beech-Jones J had incorrectly applied. Similarly, the findings of his Honour in the present case concerning the extent of publication were arrived at after a close scrutiny of the circumstances and the facts revolving around the publication on the Narri Leaks site. Contrary to Mr Stoltenberg’s submission, his Honour did not apply a principle that publication of material on the internet is publication to the general public irrespective of who in fact downloaded the material: see Judgment at [116] and [118].

16. [153]

    Fourth, the reference by his Honour to the statement of McColl JA in Lindholdt v Hyer at [154], was unobjectionable: Judgment at [204]. Lindholdt v Hyer involved a magazine left at an airport for any person to pick up and read. McColl JA said that once it is established that the matter complained of was published to the general public, the publisher has to demonstrate reciprocity of duty and interest with that audience. It is clear from the opening sentence of the following paragraph of his Honour’s reasons (Judgment at [205]), that his Honour did not equate the facts of the present case with the facts in Lindholdt v Hyer. His Honour correctly considered the facts revolving around the publication on the Narri Leaks site.

17. [154]

    The sixth matter is whether His Honour erred in finding that the matters complained of were published to a much wider audience than those residents of the Narrabri Shire Council who were interested in Council finances.

18. [155]

    In support of this contention, Mr Stoltenberg repeated his submissions with respect to grounds 3, 6, 7 and 8 concerning the extent of publication, that there was no evidence of publication to persons outside the Narrabri Shire Council. It followed, according to the submission, that the only persons who downloaded the posts on the Narri Leaks site were persons who had a reciprocal interest in the finances of the Narrabri Shire Council. This submission should be rejected for the reasons given above at [90]-[107].

19. [156]

    There was no error by his Honour in finding that there was evidence that Narri Leaks was downloaded and read by a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council. As his Honour correctly observed, an avowed and successful purpose of the site was to attract readers from far beyond the Narrabri area who did not share the identified interest.

20. [157]

    The seventh matter is whether His Honour erred in finding that publication on the Narri Leaks Facebook page was evidence of excessive publication.

21. [158]

    It should be observed that the finding of “excessive publication” was not dispositive; it was an additional reason given by his Honour for rejecting the defence of common law qualified privilege if, contrary to his principal finding, the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter; that is, assuming there was a reciprocity of interest, or a "community of interest" in what is conveyed: Papaconstantinos v Holmes ‘A Court at [8].

22. [159]

    In support of this contention, Mr Stoltenberg submitted that his Honour erred in referring to Vakras v Cripps [2015] VSCA 193, where the Victorian Court of Appeal upheld a finding of excessive publication, because Mr Bolton put forward no evidence in the present case of the type in Vakras v Cripps to prove the extent of publication.

23. [160]

    Vakras v Cripps involved two personal websites maintained by “two obscure and commercially unsuccessful artists”: at [345(4)]. The evidence indicated a much lower readership than the Narri Leaks site: at [371]-[388]. The Victorian Court of Appeal found the publication to be excessive taking into account the evidence was: (a) the articles were placed on websites which were generally accessible on the internet; (b) the defendants knew that they could limit access to their sites, but took no steps in that regard; (c) the websites were specialist websites; (d) the websites were unlikely to have been directly accessed by persons other than artists or persons with an interest in the surrealist works of the two artists; (e) the accessibility of the articles by way of Google and Bing searches; (f) there was some evidence that the articles were accessed by persons other than artists; and (g) the trial judge’s finding that it was highly likely that a large number of people had read the article was speculative and improbable: at [345].

24. [161]

    Here, the finding of excessive publication was justified by the evidence that the Narri Leaks Facebook page was generally accessible on the internet; Mr Stoltenberg took no steps to limit access to the site; and the site was accessed by persons other than residents of Narrabri Shire Council. As his Honour found, the site was accessed by a readership of the Narri Leaks Facebook page that reflected its deliberate and successful attempts to garner views and hits “all over the Shire, [and]…over the country”: Judgment at [212]. That finding was supported by the evidence of the admissions and documents evidencing the extent of publication.

25. [162]

    The eighth matter is whether his Honour erred in finding that Mr Stoltenberg did not have the requisite interest in publishing the matters complained of. Again this finding was not dispositive; it was a further additional reason given by his Honour for rejecting the defence of common law qualified privilege.

26. [163]

    As indicated, whilst his Honour accepted that the finances of the Narrabri Shire Council and the appointment of general managers was an important topic in the Narrabri area, he found that Mr Stoltenberg had no duty to attack Mr Bolton’s reputation. There was no error in that finding. Plainly the imputations which his Honour found were conveyed by the five matters answered that description, given the allegations of Mr Bolton acting corruptly and inappropriately.

27. [164]

    Mr Stoltenberg submitted that it was unclear why his Honour referred to Daily Examiner Pty Ltd v Mundine, because it was a different case to the present case.

28. [165]

    Daily Examiner v Mundine involved a regional newspaper. The subject matter of the defamatory article involved a crisis in the provision of health services to members of the Aboriginal community in the Clarence Valley and the imputations involved incompetence. This Court, in upholding the trial judge’s decision, observed at [108]:

29. [166]

    Mr Stoltenberg submitted that the “persons who choose to visit or subscribe to the Narri Leaks website as a mouthpiece for [Mr Stoltenberg’s] ratepayer activism … by their choice to download the matters complained of, they have declared their interest. As indicated, that reciprocal interest was said to be an interest in receiving information about matters concerning the governance of their local council. This submission should be rejected.

30. [167]

    First, accepting that Mr Stoltenberg failed to establish error in his Honour’s finding of the wider readership of the posts on the Narri Leaks site, Mr Stoltenberg has not demonstrated that such persons who may have known Mr Bolton and his position as Mayor could be said to have “a special and reciprocal” interest to found an occasion of qualified privilege: Daily Examiner Pty Ltd v Mundine at [108].

31. [168]

    Second, let it be assumed, contrary to his Honour’s principal finding, that the extent of publication of the matters complained of was limited to readers in the Narrabri Shire Council. That would not assist Mr Stoltenberg because there was no special and reciprocal interest to found an occasion of qualified privilege since Mr Stoltenberg had no duty to attack Mr Bolton’s reputation by alleging that he acted corruptly or inappropriately.

32. [169]

    Third, the relevant “sting” of the defamatory imputations was not germane and reasonably appropriate to the occasion: Bashford at [27], [193] and [235].

33. [170]

    The ninth matter is whether his Honour erred in rejecting the defence of common law qualified privilege in relation to the fourth matter complained of. According to the submission, the only evidence of publication of fourth matter was to Mrs Bolton, and she necessarily fell within the privileged occasion as a resident of Narrabri Shire Council.

34. [171]

    The premise of this contention is not made out. Whilst it is common ground that this post was only up for slightly more than 54 minutes commencing late at night at 11.44pm on 29 June 2015, there was evidence of publication to at least one other person, given the evidence of one “share” of this matter. In addition, his Honour found that there was evidence indicating a high readership of Narri Leaks during this period. According to Facebook records, over the week 26 June to 3 July 2015, Narri Leaks had a “total reach” of 2,414: see Judgment at [154(3)].

35. [172]

    Accepting both the late time at night at which the post was made and the short time it was available on the Narri Leaks site, there was no error in his Honour drawing an inference that at least some other readers of the Narri Leaks Facebook page would have downloaded this post, including persons from a wider audience than the residents of the Narrabri Shire Council interested in the finances of the Council and for the appointment of the General Manager: Judgment at [211].

36. [173]

    Even assuming publication of the fourth matter only to persons within the Narrabri Shire, as explained above under sub-heading (8), there was no error in his Honour’s finding that the matters complained of did not fall within the special and reciprocal interest identified by Mr Stoltenberg because Mr Stoltenberg had no duty to attack Mr Bolton’s reputation by alleging that he acted corruptly or inappropriately: Judgment at [213].

37. [174]

    The challenge to the rejection of the defence of common law qualified privilege has not been made out.

Statutory qualified privilege: ground 25

1. [175]

   The statutory defence of qualified privilege created by s 30(1) of the Defamation Act provides:

2. [176]

   As indicated, Mr Bolton conceded at trial that s 30(1)(a) and (b) were not in issue. He maintained that concession on appeal. The ambit of the dispute at trial and again on appeal was whether Mr Stoltenberg’s conduct was reasonable in the circumstances.

3. [177]

   As to the concept of reasonableness, s 30(3) provides:

4. [178]

   As to malice, s 30(4) provides:

5. [179]

   As mentioned, there is no challenge to his Honour’s finding that Mr Bolton had not established that the publication of the defamatory matter was actuated by malice.

6. [180]

   Ground 25 contended that the primary judge erred in rejecting the statutory defence of qualified privilege essentially for seven reasons:

   1. (1)

      his Honour was wrong to find that there was a requirement of reciprocity of interest under the statutory defence: Judgment at [223];

   2. (2)

      his Honour erred in finding that the presumption of honesty in Roberts v Bass with respect to malice does not also apply to the concept of reasonableness in s 30(3): Judgment at [227];

   3. (3)

      his Honour erred in applying Morgan v John Fairfax and Sons Ltd (No 2) (1991) 23 NSWLR 374 without taking into account that s 30 of the Defamation Act is concerned with the “matter” as opposed to the imputations: Judgment at [225];

   4. (4)

      his Honour erred in failing to individually assess the reasonableness of publishing each matter complained of;

   5. (5)

      his Honour erred in finding that Mr Stoltenberg had an onus to establish that he had an honest belief in each of the imputations found to have been conveyed: Judgment at [226];

   6. (6)

      his Honour erred in finding that Mr Stoltenberg’s failure to contact Mr Bolton prior to publication was independently fatal to the statutory defence: Judgment at [228]; and

   7. (7)

      his Honour erred in failing to take into account evidence that Mr Stoltenberg had sought a response from Mr Bolton about other matters and Mr Bolton had not responded, that Mr Bolton would not have responded even if he had been asked, that Mr Bolton was invited to respond but did not respond to the Narri Leaks page, and that Mr Bolton was invited to attend but did not attend a ratepayers meeting.

7. [181]

   Unlike the position at common law, there is no requirement of reciprocity of interest for the statutory defence under s 30: Cush v Dillon at [11]; Roberts v Bass at [62]; Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 at [14], fn 24. As counsel for Mr Bolton acknowledged, the finding by the primary judge that there was such a requirement was an error. However, the error was not material given that his Honour proceeded to address as a discrete issue whether Mr Stoltenberg’s conduct was reasonable in the circumstances: Defamation Act, s 30(3).

8. [182]

   At trial Mr Stoltenberg submitted, with reference to the remarks in Roberts v Bass at [96] concerning malice, that there is a presumption that he acted honestly and with a proper purpose, and therefore he believed what he was writing. The primary judge rejected this submission that the Roberts v Bass presumption of honesty is a matter to be taken into account as an implication from s 30(4), in addressing the matters concerning reasonableness in s 30(3).

9. [183]

   Mr Stoltenberg repeated this submission on appeal. The submission continued that if, for the purposes of reasonableness under s 30(3), the defendant was required to prove honesty of purpose, then the intention of Parliament that the onus of proof of malice under s 30(4) is on the plaintiff would be frustrated.

10. [184]

    Roberts v Bass involved the defence of qualified privilege at common law. Gaudron, McHugh and Gummow JJ said at [96]-[97], with respect to malice:

11. [185]

    The concepts of reasonableness and malice are distinct features of the statutory defence under s 30, with the onus of proof of each placed on different parties.

12. [186]

    Section 30(4) provides that if a plaintiff establishes malice, then the statutory defence of qualified privilege is lost. Thus, the plaintiff has the onus of proof of malice. By contrast, s 30(1)(c) read together with s 30(3) place the onus of establishing reasonable conduct on the defendant.

13. [187]

    The remarks in Roberts v Bass at [96] concerning the significance of honest belief in the truth of what the defendant published for the purposes of malice, were not directed to the concept of reasonableness under the statutory defence in s 30(3). Nor do those remarks relieve a defendant of his or her burden under s 30(1)(c) of establishing reasonable conduct in publishing the matters complained of. There was no error in the primary judge’s approach to assessing reasonableness under s 30(3).

14. [188]

    For completeness, it should be observed that the premise of this complaint – that Mr Stoltenberg believed what he was writing – was contradicted by Mr Stoltenberg’s answers to interrogatories which revealed that he did not believe in the truth of the imputations that were found to be published.

15. [189]

    These two complaints are related.

16. [190]

    As s 30(1) of the 2005 Act reproduces s 22(1) of the 1974 Act, it has been accepted that it is appropriate to have regard to the jurisprudence developed in that context: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325 at [251] (McColl JA, Beazley P and Simpson AJA relevantly agreeing).

17. [191]

    In Morgan v John Fairfax & Sons (No 2), Hunt AJA summarised a number of propositions at 387-388 in relation to the requirement of s 22(1)(c) of the 1974 Act that the conduct of the defendant in publishing the matter was reasonable in the circumstances:

18. [192]

    It is not in dispute that the primary judge correctly stated, with reference to Morgan v John Fairfax and Sons Ltd (No 2), that the Court was obliged to assess the reasonableness of publishing each matter complained of individually: Judgment at [225].

19. [193]

    Mr Stoltenberg contended that the primary judge erred in assessing the reasonableness of the publications because he failed to consider the “matter” published as opposed to the imputations; that is, his Honour did not assess the reasonableness of the publications by reference to the actual words published rather than the imputations found to be conveyed. I do not agree.

20. [194]

    That his Honour considered the actual language of the matters published, can be seen from his finding that the language used in the relevant posts was excessive. That finding at Judgment [230] was in these terms:

21. [195]

    Mr Stoltenberg further submitted that his Honour failed to consider whether it was reasonable to convey those matters that Mr Stoltenberg did intend to convey, as established by the tendered answers to interrogatories, and erroneously focused on the imputations which were found to have been conveyed. This submission was directed to the first, second and third matters complained of.

22. [196]

    As to these three matters, it is necessary to refer to the tendered answers to interrogatories, in which Mr Stoltenberg said that he “intended to convey that the crucial vacant job of General Manager ought to have been awarded on merit to the most capable and experienced candidate”, and that his belief in relation to each such imputation was:

23. [197]

    Contrary to Mr Stoltenberg’s submission, his Honour had regard to the imputations that Mr Stoltenberg intended to convey. His Honour said at Judgment [226]:

24. [198]

    His Honour’s approach was consistent with the third proposition stated by Hunt AJA in Morgan v John Fairfax & Sons (No 2) at 387. Whilst his Honour implicitly accepted the reasonableness of the imputations which Mr Stoltenberg intended to convey, he found that Mr Stoltenberg failed to establish that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed, for the reasons given at Judgment [226]-[233]. There was no error in that finding.

25. [199]

    Mr Stoltenberg submitted that the finding at Judgment [226], that Mr Stoltenberg had failed to establish that he had an honest belief in the truth of the imputations which were found to be conveyed, involved an erroneous reversal of the onus of proof under s 30(3). I do not agree.

26. [200]

    Having rejected Mr Stoltenberg’s argument based on a presumption of honesty, his Honour proceeded to deal with the substantive submission that Mr Stoltenberg believed what he was writing. Whether the defendant has an honest belief in each of the imputations found to have been conveyed is a circumstance that the court may consider relevant under s 30(3)(j). As McColl JA said in Cummings v Fairfax Digital Australia & New Zealand Pty Ltd at [257]:

27. [201]

    In finding that Mr Stoltenberg had failed to establish that he had an honest belief in each of the imputations found to have been conveyed, his Honour was correctly applying the onus of proof under s 30(3), which is on the defendant, to establish the reasonableness of the publication.

28. [202]

    Mr Stoltenberg submitted, with reference to Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 at [83], that the primary judge erred in finding that the failure to contact Mr Bolton prior to publication was “independently fatal” to the statutory defence.

29. [203]

    In Enders v Erbas, Tobias AJA (Ward and Leeming JJA agreeing) said at [83], with respect to the matters referred to in s 30(3):

30. [204]

    This statement does not assist Mr Stoltenberg. And, as counsel for Mr Stoltenberg properly accepted, the failure to contact Mr Bolton prior to publication was relevant to the reasonableness of the publication in the present case. Importantly, the evidence did not establish that the seeking or publication of a response by Mr Bolton was impracticable, or that it was unnecessary to give Mr Bolton an opportunity to respond, particularly to allegations of corruption and inappropriate conduct.

31. [205]

    The observation by his Honour that Mr Stoltenberg’s failure to contact Mr Bolton prior to publication as “independently fatal” to the statutory defence of qualified privilege, is to be read together with the immediately following paragraph at Judgment [229], which it is convenient to extract again:

32. [206]

    On a fair reading of his Honour’s reasons he did not treat the failure to contact Mr Bolton prior to publication as determinative of the reasonableness of the publications. Rather, his Honour found that “in the circumstances here”, being a reference to the findings at Judgment [226]-[228], Mr Stoltenberg had failed to prove that he acted reasonably. Mr Stoltenberg’s complaint concerns the weight given to his failure to contact Mr Bolton prior to publication. No error has been demonstrated.

33. [207]

    Mr Stoltenberg submitted that his Honour failed to take into account other circumstances, as referred to in s 30(3)(h), in assessing the reasonableness of the publication. Reference was made to two matters. First, the documentary evidence by Mr Stoltenberg for the proposition that he had sought a response from Mr Bolton about other matters and Mr Bolton had not responded, specifically to certain text messages from Mr Stoltenberg on 16 April 2014, 21 August 2014, 19 January 2015 and 10 February 2015, among a larger number of texts sent in the period from 2014 to November 2015. Second, the evidence given by Mr Bolton that he no longer wished to engage with Mr Stoltenberg, and that Mr Bolton was invited to respond but did not respond to the Narri Leaks page, and that Mr Bolton was invited to attend but did not attend a ratepayers meeting.

34. [208]

    Contrary to Mr Stoltenberg’s submission, his Honour took the documentary tender by Mr Stoltenberg into account finding at Judgment [231]-[232]:

35. [209]

    Nor is there any merit in the submission that, notwithstanding the often angry messages sent by Mr Stoltenberg to Mr Bolton over the years, the fact that Mr Bolton no longer wished to engage with him rendered the publication of the matters complained of reasonable, given the allegations of corruption and inappropriate conduct.

36. [210]

    The challenge to the finding that the publication of the matters complained of was unreasonable has not been made out.

37. [211]

    Given the conclusions above with respect to the defence of statutory qualified privilege, it is not necessary to address Mr Bolton’s notice of contention directed to seeking to uphold his Honour’s rejection of this defence on additional grounds.

Conclusion on appeal

1. [212]

   The appeal by Mr Stoltenberg has failed. There is no reason why costs should not follow the event: UCPR, r 42.1.

B. Ms Loder’s application for leave to appeal and Mr Bolton’s application for leave to cross-appeal

1. [213]

   The draft notice of appeal seeks to challenge the primary judge’s finding that a later comment by Ms Loder following a defamatory post by Mr Stoltenberg on the Narri Leaks Facebook page (the subject of the second matter complained of) was sufficient to make her liable as a secondary publisher of the defamatory post.

2. [214]

   Mr Bolton responded by serving a draft notice of contention seeking to uphold the primary judge’s decision on two bases.

3. [215]

   Mr Bolton’s draft notice of cross-appeal challenges the primary judge’s findings that Ms Loder did not publish the first and fifth matters complained of. If those challenges are established, Mr Bolton seeks a reassessment of the damages payable by Ms Loder.

4. [216]

   Counsel for Mr Bolton indicated that the Court need not determine the issues raised by Mr Bolton’s notice of contention and application for leave to cross-appeal if the Court refused Ms Loder’s application for leave to appeal.

Background

1. [217]

   Shortly after the commencement of the Narri Leaks Facebook page, posts were published on 16 and 17 June 2015 answering the rhetorical question “But who is Narri Leaks?”. The post on 17 June 2015 stated:

2. [218]

   At trial, the case against Ms Loder was put on two bases, but only the first is of present significance: Judgment at [161]-[162]. Mr Bolton contended that Ms Loder was liable for publication of the defamatory matter on the Narri Leaks Facebook page by reason of her subsequent endorsement or adoption of the Narri Leaks posts which were published by Mr Stoltenberg.

Primary judge’s reasons

1. [219]

   The primary judge addressed the secondary publisher case against Ms Loder at Judgment [165]-[169]:

2. [220]

   Applying the test stated by Kourakis CJ in Google Inc v Duffy (2017) 129 SASR 304; [2017] SASFC 130 at [133], the primary judge rejected Mr Bolton’s case that “liking” a post, on the evidence before him, constituted a level of endorsement of the publication by Mr Stoltenberg to render Ms Loder also liable as a publisher: Judgment at [171]. That finding disposed of the case against Ms Loder, except with respect to the third matter complained of.

3. [221]

   As to the third matter, the primary judge found at Judgment [173] that Ms Loder’s comment on 27 June 2015 was in a different category, given that Ms Loder wrote:

4. [222]

   The primary judge gave the following reasons at Judgment [174]-[175] for finding that Ms Loder was liable for secondary participation in the publication:

Draft notice of appeal

1. [223]

   Ms Loder’s draft notice of appeal contains four grounds directed to the single issue of whether the comment by Ms Loder following a defamatory post by Mr Stoltenberg on the Narri Leaks Facebook page was sufficient to make her liable as a secondary publisher of the defamatory post.

2. [224]

   Ground 1 asserts that Ms Loder’s comment did not amount to consent, approval or ratification by her of the defamatory material in the second matter complained of. Ground 2 asserts that the comments’ stream to the defamatory post – the subject of the second matter complained of, was not sufficient to infer that Ms Loder’s comment thereby drew the attention of others to the defamatory post. Ground 3 asserts that there must be some responsibility accepted for the ongoing publication of the defamatory matter to others, and that his Honour failed to take this into account. Ground 4 asserts that Ms Loder did not intend to publish the defamatory matter and that her attention was focused on the part only of the matter complained of and that his Honour failed to take this into account.

3. [225]

   Counsel for Ms Loder submitted that the proposed appeal raised a question of public importance and a clear issue of principle in relation to the liability of a third-party commentator on social media platforms, such as Facebook, for the defamatory publication of another person.

4. [226]

   It was further submitted that the findings against Ms Loder in the present case as a third-party commentator may cause any potential commentator to be reluctant to speak where a primary post is potentially defamatory and that would promote a chilling effect on the fine balance between the protection of reputation and freedom of speech.

Disposition of application

1. [227]

   Contrary to the submissions of Ms Loder, the proposed appeal does not involve a question of principle, or of public importance. The principles sufficient to make a person liable as a secondary publisher of a defamatory matter are well-established. Many of the cases relate to trespass to property, where hardcopy defamatory material is affixed to a building or structure maintained by another. However, as Kourakis CJ observed in Google Inc v Duffy at [124], the analogy of the property cases with the liability of a person who posts comments on a webpage is far from perfect.

2. [228]

   In the property cases such as, Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Rep 81-127 and Byrne v Deane (1937) 1 KB 818, the liability of the owner of the building or structure requires proof that the defendant is aware of the existence of the defamatory material, had been requested to remove it, had the ability to remove it and had failed to remove it within a reasonable period, leading to the inference that the defendant accepted responsibility for the continued publication of the defamatory material: Frawley v New South Wales [2006] NSWSC 248 at [15] (Simpson J).

3. [229]

   By contrast, the present case concerns the liability of a person who posts a comment on a webpage.

4. [230]

   Google Inc v Duffy involved the liability of hosts of internet servers and internet search engines. That is a different factual circumstance to the present case. In Google Inc v Duffy the plaintiff found that a search of her name resulted in defamatory extracts/snippets, as well as hyperlinks to a third-party website called “The Rip-Off Report” and Google had refused to take the material down. Given the volume of data passing through, Google could not have known of the defamatory material, but became liable once it was put on notice and refused to take action to remove the defamatory material. Kourakis CJ remarked at [124] that “… the need to ensure coherence in the approach to internet communications requires some consideration of the analogy” with the “trespass” cases as his Honour described them, before referring to Byrne v Deane and Urbanchich. The critical reasoning of Kourakis CJ at [133], which the primary judge set out in his reasons at Judgment [169], is reproduced above at [219].

5. [231]

   Ms Loder does not complain that the primary judge misstated the principles relating to her participation in the publication of the third matter complained of, except for one aspect of the remarks of Kourakis CJ in Google Inc v Duffy at [133], where his Honour cited Hird v Wood (1894) 38 Sol J 234 for the proposition that “[I]f one by words or conduct draws to the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication”.

6. [232]

   Hird v Wood involved a placard containing allegedly defamatory material put up on a roadway near where a gala event was taking place, and the defendant took up position on a stool and continually pointed to the placard with his finger and thereby attracted it to the attention of those who passed by. The trial judge held that there was no evidence of publication and directed a verdict for the defendant. On appeal, Lord Esher MR, and Lopes and Davey LJJ held that there was evidence of publication which ought to have been left to the jury and ordered a new trial.

7. [233]

   Read in the context of the passage in Google Inc v Duffy at [133], the statement by Kourakis CJ about which Ms Loder complains is unexceptional. The context of the statement was the previous sentence in [133] referring to the trespass cases and the potentiality that conduct which highlights or points to defamatory material may amount to an act of authorisation which attracts liability.

8. [234]

   Ms Loder next submitted that the primary judge misapplied the principles stated in Google Inc v Duffy by limiting his consideration to certain parts of the comments posted by Ms Loder and not taking into account her subjective intentions. The latter was a reference to Ms Loder’s evidence in cross-examination that it was not her intention to give readers the understanding that she was urging them to like the post she had made, although she agreed that “looking back on that” this was her intention.

9. [235]

   On a fair reading of his Honour’s reasons, I do not agree that his Honour limited his consideration to certain parts of the comments posted by Ms Loder. His Honour had regard to Ms Loder’s comments in the context of the whole of the third matter.

10. [236]

    As to the relevance of Ms Loder’s subjective intentions, reliance was placed upon Byrne v Deane, however that case does not assist Ms Loder.

11. [237]

    In Byrne v Deane the majority of the English Court of Appeal (Greer LJ at 830 and Greene LJ at 838) held that the proprietor and the secretary of a golf club were responsible for the continued publication of a defamatory poem about the plaintiff affixed to an internal wall of the Club house. The facts were that it was necessary to obtain the consent of the secretary to post such documents and the secretary had left it on the wall as she “saw no harm in it”. The secretary’s evidence that she saw no harm in leaving the defamatory poem on the wall of the clubhouse was relevant to whether the secretary had accepted responsibility for the continued publication of the defamatory matter, which the majority found she had.

12. [238]

    Counsel for Ms Loder acknowledged that he could not point to any authority for the proposition that the subjective intentions of the person posting a comment was relevant to whether by that conduct the defendant consented to, or approved of, or adopted, or promoted, or ratified the defamatory material. It should be observed that Ms Loder did not seek to avoid liability as a subordinate publisher by proving that she did not know, and could not reasonably have known, that the publication was likely to contain defamatory material: cf Google v Duffy at Kourakis CJ at [102], Peak J at [354], [582].

13. [239]

    This is a clear case for refusing leave. No question of principle, or of public importance is involved. There has not been shown to be any injustice to the applicants which is reasonably clear, going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

14. [240]

    There is an additional consideration here. This Court has emphasised the need for restraint in granting applications for leave to appeal in cases where the amount in issue is below the threshold of $100,000: Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126 at [4]-[5]; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at [2]-[3]; and Be Financial at [37]-[39]. That consideration is particularly significant in this case, given the small amount at issue of $10,000.

15. [241]

    Leave to appeal should be refused. It follows that it is not necessary to address Mr Stoltenberg’s draft notice of contention.

Draft notice of cross-appeal

1. [242]

   Mr Bolton’s application for leave to cross-appeal was defensive only. As Ms Loder’s application for leave to appeal should be refused, it is not necessary to address the proposed cross-appeal. The application for leave to cross-appeal should be dismissed.

Costs of the leave applications

1. [243]

   Ms Loder’s application for leave to appeal has failed. There is no reason why costs should not follow the event: UCPR, r 42.1.

2. [244]

   As to Mr Bolton’s application, there are good reasons for displacing the usual rule that costs follow the event: UCPR, r 42.1. First, Mr Bolton’s leave application was entirely defensive, having been filed in response to Ms Loder’s leave application.

3. [245]

   Second, whilst it has not been necessary for the Court to determine the merits of this application, it is not appropriate to describe the position taken by Mr Bolton as a capitulation.

4. [246]

   Third and related to the previous point, both parties acted reasonably in commencing and defending Mr Bolton’s leave application, and the conduct of the parties continued to be reasonable until the further pursuit of the leave application became futile: Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6.

5. [247]

   The proper exercise of the Court’s discretion in the present case is that there should be no order as to the costs of Mr Bolton’s application for leave to cross-appeal. This is a case where a supervening event, namely the refusal of leave with respect to Ms Loder’s proposed appeal, removed the subject of the dispute with respect to Mr Bolton’s proposed cross-appeal.

Conclusion and orders

1. [248]

   The appeal by Mr Stoltenberg has failed. Ms Loder’s application for leave to appeal should be refused. Mr Bolton’s application for leave to cross-appeal should also be refused.

2. [249]

   I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the respondent’s costs.

   3. (3)

      Summons seeking leave to appeal filed 21 November 2018 be dismissed with costs.

   4. (4)

      Cross-summons for leave to cross-appeal filed 31 January 2019 be dismissed with no order as to costs.

3. [250]

   BRERETON JA: I agree with Gleeson JA.