[2025] SADC 14

Applicant: MULARA TOPEZ In Person Second Respondent: VINCENT COULTHARD In Person Seventh Respondent: CHERYL COULTHARD-WAYE No Attendance Eighth Respondent: NICHOLAS DUMMELL In Person Ninth Respondent: CLAYTON CRUSE In Person Hearing Date/s: 02/07/2024, 03/07/2024 File No/s: CIV-23-009462 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Minor Civil Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. TOPEZ v COULTHARD & ORS [2025] SADC 14 Judgment of his Honour Auxiliary Judge Chivell 20 February 2025 DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION Action for defamation against four respondents- arising out of four separate publications. Whether publications carried defamatory interpretations. Defences of justification, contextual truth, honest opinion and qualified privilege raised. Action dismissed by Magistrate – Application for review pursuant to s 38(6) of the Magistrates Court Act. Held: - Consideration of defences of justification, contextual truth, honest opinion and qualified privilege. Second, seventh and eight respondents liable in relation to at least one defamatory imputation arising from publications. Decision of Magistrate is rescinded. 1. Judgement in favour of the applicant in the sum of $12,000 against each of the respondents jointly and severally. 2. Dismissal of action against ninth respondent affirmed. 3. Each party to bear their own costs. -- 1 of 55 -- Magistrates Court Act 1991 (SA); Defamation Act 2005 (SA); Migration Act 1958 (Cth); Magistrates Court Act 1991 (SA); Uniform Civil Rules 2020 (SA), referred to. Topez v Adnyamathanha Traditional Land Association RNTBC, Coulthard & Ors [2023] SAMC 98; Radio 2UE Sydney Pty Ltd v Cheserton [2009] HCA 16; (2009) 238 CLR 460 ; Briginshaw v Briginshaw (1938) 60 CLR 336 ; Blake v John Fairfax Publications Pty Ltd [2001] NSWSC 885; Fairfax Media Publications v Zeccola [2015] NSWCA 329; Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384; Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204; Love v The Commonwealth, Thoms v The Commonwealth [2020] HCA 3, (2020) 270 CLR 152; Mabo & Ors v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1; The Commonwealth v Tasmania [1983] HCA 21; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; Yarmirr v Northern Territory (Croker Island) (1998) 156 ALR 370 ; Sampi v Western Australia [2010] FCAFC 26; Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) ALR 483 ; Mason v Tritton (1994) 34 NSWLR 572 , considered. -- 2 of 55 -- TOPEZ v COULTHARD & ORS [2025] SADC 14 1 This is an application for review of a decision by a Magistrate in a minor civil action pursuant to s 38(6) of the Magistrates Court, 1991 (SA). The decision under review is the dismissal of a claim in defamation brought by Ms Topez against the respondents. 2 The second respondent Ms Coulthard filed an application for ‘cross review’1 ostensibly on behalf of all four respondents. In his application, Mr Coulthard indicated that the respondents wanted the Magistrate’s decision upheld. He also submitted that the Magistrate could also have upheld qualified privilege, and honest opinion, without providing any specifics. Since three of the respondents appeared personally at the hearing, they were able to put more specific submissions then. 3 The only respondent who raised the defence of qualified privilege2 to an alleged imputation was the ninth respondent, Mr Clayton Cruse, in relation to his letter to the ATLA Advisory Board.3 4 The defence of qualified privilege was not otherwise raised before the Magistrate and was not dealt with by Her Honour in her judgment since she had upheld Mr Cruse’s earlier defence of contextual truth. 5 Although mentioned in the application for review, the issue was not raised further before me. 6 Although 37(7)(e) of the Magistrates Act requires me to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’, I will not consider the defence of qualified privilege other than in relation to Mr Cruse. Both parties were represented by solicitors and chose to file extensive pleadings in the Magistrate’s Court proceedings, and I consider that it would be unjust to consider the defence in relation to the other respondents after such extensive hearings before the Magistrate and before me. 7 None of the parties to the litigation was represented by counsel, either before the Magistrate or before me. The applicant has a degree in law. 8 The trial before the Magistrate occupied seven sitting days. There were over 700 pages of transcript, and there are now seven volumes of documents, and a number of other miscellaneous documents before the court. The review proceedings occupied one and a half days and produced another 164 pages of transcript. 1 FDN 3. 2 Defamation Act, 2005, s 28. 3 Amended Defence, [26.7]. -- 3 of 55 -- [2025] SADC 14 2 9 Rule 3.1(h) of the South Australian Uniform Civil Rules 2020 (UCR) provides that a party appearing before a Court must: (h) use reasonable endeavours to ensure that the time and costs incurred are reasonable and proportionate to— (i) the importance and value of the subject matter of the proceeding or step in the proceeding; and (ii) the complexity of the issues in the proceeding or step in the proceeding. 10 Rule 391.2(b) of the UCR, which applies specifically to minor civil actions, provides that the objects of the rules applicable in such cases include: (b) facilitate the just, efficient, timely and cost-effective resolution or determination of the issues in the proceeding 11 The amount claimed in damages is $12,000.00, the jurisdictional limit for minor civil actions. 12 If money was the only issue in the proceeding, then it could be said that UCR r 3.1(h) and UCR r 391.2 (b) have been given scant regard. 13 However, the issues in this case are far more important than money. As the Magistrate observed: 4 The respondents are Adnyamathanha First Nations people from the greater Flinders Ranges area of South Australia, and members of the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC (ATLA). All of the publications complained of arose in the context of an underlying, long-standing controversy between the parties concerning the applicant’s identification of an Adnyamathanha person and her spiritual practices. The respondents do not accept that the applicant is an Adnyamathanha person.5 14 This is clearly a very emotionally charged area for all parties concerned. The applicant claims that she has suffered much hurt and distress as a result of the respondents’ attitude. 15 As for the respondents, they clearly regard these issues as fundamental to their culture and to their connection with the land on which they live. 16 For example, Mr Coulthard spoke of the respondents thus: 6 We are the Flinders Ranges People, so we've got very strong cultural ties with our land and it's our responsibility to keep our culture strong, hence why we're here today before you, and as we've done so in the past through this law system. 4 [2023] SAMC 98 at [2]. 5 [2023] SAMC 98 at [6]. 6 T135.18-22. -- 4 of 55 -- [2025] SADC 14 3 17 Mr Cruse said: 7 We engaged in this process, as Ms Vozzo pointed out, because we feel we have an inherent obligation to protect our culture, to make it known that we don't agree with things that are happening in our community. 240-odd years of colonisation hasn't ceded that right and moving through this process isn't going to stop other people from encountering challenging things that happen in our community. 18 Consequently, I could not avoid the feeling that, by hearing this case, I was intruding upon an area that should be determined by Adnyamathanha people. However, since the jurisdiction of the Court has been invoked, I am obliged to do what I can to determine the legal issues between the parties. The Publications 19 The action is bason upon four separate publications, one by each of the respondents. I will briefly summarise them: • The first publication involved a posting on Facebook by the first respondent Mr Coulthard on 27 March 2020. I will set out the text of the publication later in these reasons. The applicant claims that the publication contains five false and defamatory meanings, basically that she had made false and mischievous accusations about his conduct while he was a board member of the Adnyamathanha Traditional Lands Association (ATLA); • The second publication involved another posting on a Facebook page by the seventh respondent, Ms Coulthard-Waye, on 7 August 2019. The applicant claims that the posting has four false and defamatory meanings concerning her claims to be an Adnyamathanha person and her spiritual practices; • The third publication involved another Facebook posting, this time by the eight respondent, Mr Dumell, on or around 19 April 2020. In the posting, Mr Dumell makes a number of derogatory references to the applicant. The applicant says the posting contains four false and defamatory imputations which concern her dealings with an elderly Adnyamathanha man, Uncle Ken McKenzie, and which suggested that she was taking advantage of him; • Finally, the fourth publication involved an email sent by the ninth respondent, Mr Cruse, to members of the ATLA Special Advisory Board on 1 July 2020. The applicant claims that the email contains five false and defamatory imputations concerning her dealings with ATLA, and which suggest that she is a fraud who was acting for her own benefit and to the detriment of the Adnyamathanha Community. 20 I will discuss all of these alleged imputations in turn. In summary, the Magistrate held that each of the publications contained defamatory imputations of and concerning her. However, her Honour also held that each respondent had made 7 T137.25-31. -- 5 of 55 -- [2025] SADC 14 4 out the defence of justification and/or contextual truth in relation to each defamatory imputation, and dismissed the action. 21 The applicant seeks a review of these conclusions. Legal Principles 22 The magistrate based her conclusions upon the relevant legal principles.8 There was no challenge to her Honour’s approach in the application for review. I agree with her Honour’s statements of principle and gratefully adopt them for the purpose of these reasons: “3. Elements of Defamation 3.1 Overview [57] An action for the tort of defamation is comprised of publication by the respondent to another person of material defamatory of the applicant. [58] The elements of the tort can be described as follows: 1. the respondent participates in the publication to a third party of a document or other material; 2. the document or material contains a passage alleged to be defamatory; 3. the passage conveys an imputation; 4. the imputation is about the applicant; 5. the imputation is damaging to the applicant’s reputation. 3.2 Elements 1 & 2 - Publication [59] The first two elements which require communication of the matters complained of to at least one third party were not in issue in the present case. The respondents admitted they were the respective publishers of the matters complained of, and it was self-evident by the method and nature of publication of each of the matters complained of that they were published to at least one third party. [60] The applicant did not press the claim that Mr Coulthard was a publisher of the Second Publication together with Ms Waye. There was also a dispute about whether Ms Waye was the publisher of the Second Facebook Post. Nothing turns on this point because the relevance of the Second Facebook Post appears to be only as context for the Second Publication. 3.3 Element 3 – Imputations [61] All of the respondents deny the publications complained of convey the imputations alleged by the applicant. Alternatively, the respondents say that the imputations were not defamatory. 8 [2023] SADC, [57]-[80]. -- 6 of 55 -- [2025] SADC 14 5 3.3.1 Applicable principles - ordinary reader [62] The test as to whether the pleaded imputations arise from the publications is an objective one. It is the understanding that would be formed by ordinary, reasonable recipients of the communication as assessed by the trier of fact. [63] The Court is to determine the meaning of words by the manner in which fair minded ordinary reasonable persons in the general community would generally understand the published words (referred to as ‘the ordinary reader’). [64] The ordinary reader is of average intelligence, does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood. Rather, the ordinary reader forms a general impression of the meaning from the words used and consequently, may imply meanings quite freely and will be prone to do so when the publication is derogatory. [65] The approach to the interpretation of the publication differs from the way in which a lawyer might interpret the words in a logical, precise or analytical manner, or only drawing implications if they are both necessary and reasonable. 3.3.2 Applicable principles - True innuendo [66] Words may bear a meaning different from that which might be conveyed to the ordinary reasonable reader by true innuendo. When a true innuendo is pleaded, evidence may be given of special (extrinsic) facts known to those to whom the matter was published which would lead a reasonable person knowing those facts to conclude that the words have another, defamatory, meaning. 3.4 Element 4 – Identification [67] Mr Coulthard and Mr Cruse admit that the applicant was expressly identified by her former name in their respective publications comprising the First and Fourth Publications. Mr Neville and Ms Waye dispute that the applicant was identified in their respective publications comprising the Second and Third Publications. 3.4.1 Applicable principles [68] The test about whether the imputation is about the applicant is objective: it is the understanding that would be formed by ordinary, reasonable recipients of the communication as assessed by the trier of fact. [69] A person may be identified in a publication expressly by name or impliedly from the publication or by reference to extrinsic facts known to some members of the audience of the publication. It is sufficient that some reasonable members of the audience would believe that it referred to that person. [70] In Cummings v Fairfax Digital Australia & New Zealand Pty Limited; Cummings v Fairfax Media Publications Pty Limited the Court said that: ... there must be something in the publication that, in the circumstances, would reasonably lead one or more persons acquainted with the plaintiff to believe that the plaintiff was the person to whom the publication referred… (Citations omitted.) -- 7 of 55 -- [2025] SADC 14 6 3.5 Element 5 – Defamatory meaning [71] To the extent that the publications complained of convey the imputations alleged by the applicant, the respondents say that the imputations were not defamatory. 3.5.1 Applicable principles — Defamatory meaning [72] The applicant bears the onus of proving, on the balance of probabilities, that the publication bears a defamatory meaning i.e., damaging to the applicant’s reputation. [73] The test of whether the publication bears a defamatory meaning is objective: it is the understanding that would be formed by ordinary, reasonable members of the community by reference to community standards as assessed by the trier of fact as to whether it is calculated to damage the applicant’s reputation. [74] There is strict liability in respect of this element of defamation. It does not matter whether the respondent intends, knows or ought to know that the matter is damaging to the applicant’s reputation. [75] A publication is defamatory if the words convey a meaning or assert or attribute an act or condition (and imputation) to a person which would tend to cause ordinary reasonable people to think less of the person about whom the words are published. The defamatory nature of imputation is ascertained by reference to general community standards, not by reference to sectional attitudes. [76] The concept of ‘reputation’ in the law of defamation comprehends all aspects of a person’s standing in the community. A person’s reputation may be injured if the words hold the person up to contempt, scorn or ridicule or tend to exclude him or her from society. The Court may also assess whether an imputation is likely to cause others to shun or avoid the applicant. [77] In Radio 2UE Sydney Pty Ltd v Cheserton, 51 the High Court said:9 The general test for defamation is relevant to all imputations which are said to have injured a plaintiff’s reputation in some respect. The likelihood that the ordinary reasonable person may think the less of a plaintiff because of the imputations is assessed by reference to that person’s general knowledge and their knowledge of standards held by the general community, as they may apply to what is said about the plaintiff. 3.5 Defences [78] To the extent that the Court finds that the publications conveyed defamatory imputations, the respondents rely on one or more of the common law and statutory defences of justification, contextual truth, honest opinion, and qualified privilege under sections 23, 24, 28 and 29 of the Defamation Act 2005 (as it applied at the time of the publications). 4 ISSUES [79] The issues for determination (to the extent necessary) are: 9 [2009] HCA 16; (2009) 238 CLR 460 at [60]. -- 8 of 55 -- [2025] SADC 14 7 1. Is the applicant identified in the Second and Third Publications? 2. Do the pleaded imputations arise from the publications? 3. Are the imputations conveyed by the publications defamatory of the applicant? 4. Are any of the pleaded defences made out by the respondents? [80] The Court will need to make an assessment of damages for any defamatory publication where no defence is made out. Background 23 In order to understand the context in which these publications were made, it is important to understand some of the history of the Adnyamathanha people and how it is that the applicant claims to be part of them. 24 Again, I can do no better than quote from the Magistrate’s judgment: 10 1. BACKGROUND 1.1 Ancestral claim 21. The applicant is a 67-year-old woman. She was born at Woodville South, South Australia, to Nancy Lea Hill who was 18 years old at the time. Mrs Hill is the daughter of Alice Jean McBride. Mrs Hill was born in Broken Hill, New South Wales, on 15 November 1937 when Ms McBride was 22 years old. Ms McBride was also born in Broken Hill. 22. The applicant says that her father, Stanley Gordon Hill was adopted, and his biological parents are unknown. She acknowledges having Irish and Afghan ancestry but says that she did not know the identity of three of her grandparents. The applicant says she had been uncertain about her precise identity, prior to March 2012, although, she thought it included Aboriginality. 23. In March 2012, the applicant visited Nepabunna, a small community in the northern Flinders Ranges, on the so-called Grandmother Drum Tour event which she was managing. The applicant says that on that occasion an Adnyamathanha Elder, Kelvin Johnson, told her that she was Adnyamathanha and welcomed her spirit back home. 24. There was conflicting evidence about whether or not Uncle Kelvin said what is attributed to him. At trial, Uncle Kelvin denied having welcomed the applicant’s spirit back to Adnyamathanha Country. 25. At some stage after Uncle Kelvin’s ‘welcome’, the applicant met a Senior Adnyamathanha Elder, Kenneth Ross McKenzie who told her that his cousin Gordon Coulthard may be her maternal grandfather. Uncle Ken subsequently made affidavits to the effect that the applicant is Uncle Gordon’s granddaughter. He is also seen and heard on a video (recorded by the applicant’s sister on 1 December 2014) telling this story. 26. Uncle Gordon died in 2012 and there was no evidence about his views on Uncle Ken’s story. There was also an unresolved issue as to whether Uncle Ken suffered 10 [2023] SAMC 98 at [21]-[48]. -- 9 of 55 -- [2025] SADC 14 8 from dementia and other mental health issues and, if so, for how long. Uncle Ken was unable to give oral evidence at trial due to ill health. Sadly, he has since passed away. 27. Nonetheless, it was not disputed that Uncle Ken was a knowledgeable and well- respected Senior Elder. Uncle Ken’s testimony about Adnyamathanha culture played an important role in the recognition by the Federal Court of Australia in 2009 of the Adnyamathanha people having native title rights over large areas of the northern Flinders Ranges. However, there was much more evidence before the Federal Court which contributed to the success of the native title claims, as discussed further below. 28. The applicant says that Uncle Ken is a Senior Law/Lore Man and had the authority to claim her as Adnyamathanha. The respondents dispute that Uncle Ken is a Law/Lore Man and held this authority in the manner asserted by the applicant. While Uncle Ken had gone through the ceremonies involved in the first stage of initiations called Vadnapa (where details of men’s lore were gained), he was not old enough to have gone through the final stages before ceremonies stopped in 1947. 29. Nevertheless, and without intending any disrespect to Uncle Ken, objective evidence proves that Gordon Samuel Coulthard could not have been the applicant’s biological maternal grandfather. Uncle Coulthard was born between 1930 and 1932 which made him between 5 and 7 years old at the time the applicant’s mother was born in 1937. 30. At no stage has the applicant presented credible evidence proving any other lineage to an Adnyamathanha descent or any other Aboriginal tribe. Until relatively recently, the applicant relied solely on her claim to be a descendent of Uncle Gordon based on the authority of Uncle Ken as a Senior Lore Man to ‘declare the Applicant as belonging to the Adnyamathanha tribe’, her apparent resemblance to members of the McKenzie family and her acceptance as an Adnyamathanha person by some members of the Adnyamathanha community. 31. The applicant conceded at trial that she still does not know who her Aboriginal ancestors are. 32. To be clear, I make no finding as to the applicant’s Aboriginality. It was not possible to determine whether or not the applicant has Aboriginal ancestry on the available evidence. I also acknowledge the inherent difficulties of proof of Aboriginal descent faced by the applicant due to a lack of written family records, incomplete genealogy data and the passing of Elders. 33. Nevertheless, in these proceedings, the relevant claimed lineage to an Adnyamathanha ancestor at the time of the publications complained of was Uncle Gordon which was an impossibility. I take judicial notice of the biological impossibility of Uncle Gordon impregnating the applicant’s grandmother when he was aged between 5 and 7 years old. In any case, Uncle Ken did not ever suggest that Uncle Gordon was that young when ‘he was running with a girl called Alice McBride and that she was pregnant to him’. According to Uncle Ken, these events occurred when both he and Uncle Gordon were employed by the McBride family who owned Wooltana Station. 1.2 Spiritual practices 34. The applicant conducts in person and online courses, programs and events described as sacred ceremonies, cultural teachings and indigenous initiation experiences. She -- 10 of 55 -- [2025] SADC 14 9 offers to teach traditional spiritual law and indigenous cultural lore to the general public. The applicant has a healing practice which she says is based on traditional indigenous knowledge and ‘Ignite Your Spirit’ therapy. 35. The applicant has promoted these activities including her business of hosting educational workshops using, among other things, her identification as Adnyamathanha. 36. Over time, the applicant has claimed an elevated status among First Nations people. She claims to be a First Nations Elder, an Adnyamathanha and a Senior Lore Woman with traditional indigenous knowledge ‘sourced from Senior Law Elders who taught [her] for over 50 years’ including Adnyamathanha and other First Nations Elders and Senior Lore Men from other First Nations. The applicant says that the Senior Law Elders have given her teachings referred to as the ‘New Dreaming’, which she describes as the ‘re-emerging sovereignty of Aboriginal Lore’. 37. The applicant says that she has been instructed by the law Elders to share this knowledge around the world and ‘to get those teachings out there’ otherwise ‘people won’t know how to look after themselves.’ Among other things, the applicant says she is the ‘holder of Grandmother Lore’ and ‘co-founder and facilitator of Australian Senior Women’s Tribal Council’. 38. In an excerpt from the speech given by the applicant at her law graduation held in July 2022 at the Australian National University, she says: Australia is poised on the brink of a New Dreaming, a long ago held prophecy declared by the old people, our traditional sovereign peoples, as a time when ‘black and white’ (‘red’ and ‘yellow’, all of us) will walk together with traditional law returned in a new way. I invite the class of 2022 to walk with me, with us, with the sovereign peoples of Australia, into a ‘New Dreaming’ where we might learn more about each other and be unified in our work together. The traditional lore/law of men and women are, for the very first time, walking together and I extend a special invitation to all of you as a Senior Lore Woman to come to the centre, to Alice Springs towards the end of July, to experience the world’s oldest living culture and to meet the sovereign peoples of this country friendship, as we heal our stories together. The gathering is called ‘Wirritjin’ which means ‘New Dreaming’. 39. The applicant also claims to be ‘an initiate of high degree’ having received initiations and teachings from the highest authority who holds the ‘Women’s Aboriginal Law Staff’. She says that she stepped up in seniority when her Senior Law Elder passed in March 2020. The applicant also refers to herself as the ‘Spirit Woman. 40. The respondents dispute that the applicant has the claimed authority of a First Nations Elder, Adnyamathanha or a Senior Lore Woman and holder of Grandmother Lore. 41. The applicant does not claim that her beliefs and teachings are part of Adnyamathanha culture and denies engaging in any conduct that was disrespectful to Adnyamathanha people or made a mockery of Adnyamathanha sacred land, spiritual beliefs and culture. Alternatively, the applicant denies that she was intentionally disrespectful to Adnyamathanha people, their land, spiritual beliefs and culture. -- 11 of 55 -- [2025] SADC 14 10 42. The respondents claim that carrying out spiritual activities that are culturally inappropriate to Adnyamathanha culture and spiritual beliefs while claiming to be Adnyamathanha is itself offensive and dangerous to Adnyamathanha people. 1.3 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 43. Adnyamathanha people have native title rights over about 41,000 square kilometres through the northern Flinders Ranges, approaching the South Australian border with New South Wales. In his judgment, his Honour Justice Mansfield summarised why it was appropriate to make the proposed consent determination of native title: [18] “Native title rights and interests” are defined in s 223 (1) of the NT Act as: the communal, group or individual rights and interests of Aboriginal peoples … in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples … ; and. (b) the Aboriginal peoples … , by those laws and customs, have a connection with the land or waters; and. (c) the rights and interests are recognised by the common law of Australia. [19] The evidence before the Court in support of the applications includes a Native Title Report from an anthropologist, the evidence taken during a preservation of evidence hearing, and witness statements. [20] The Native Title Report (the Ellis Report) was prepared by Bob Ellis, an anthropologist with thirty years of experience working with the Adnyamathanha people. The Ellis Report was accompanied by the Adnyamathanha Genealogy, a published work on Adnyamathanha families that is being relied on as establishing the relevant families that make up the Adnyamathanha society. Mr Ellis also interviewed six claimants on a number of topics identified by the State as requiring clarification. [21] In October 2007 the Court conducted a preservation of evidence hearing at Hawker and at a number of sites around the Flinders Ranges. Two senior Adnyamathanha men, Ken McKenzie and Stuart Patterson, gave evidence over three sitting days. [22] Thirteen witness statements were gathered from the Adnyamathanha claimants to address outstanding issues following the Ellis Report and the preservation of evidence hearing. [23] All the material was assessed by the State’s expert anthropologist, Dr David Martin. Based on Dr Martin’s assessment, the State identified certain outstanding issues requiring further clarification which were addressed by way of the material in the witness statements. [24] In support of the applications for consent determinations of native title, the State of South Australia has filed extensive written submissions on behalf of the State and the claimants. Those submissions refer to the Ellis Report, the interviews, the transcript from the preservation of evidence hearing and the -- 12 of 55 -- [2025] SADC 14 11 witness statements, which all speak of the Adnyamathanha people and their connection to the claim area. [25] The relevant native title claim group, the Adnyamathanha people, and its society, is clearly identified (and is a relevant society for the purposes of s 223 of the NT Act). The term “Adnyamathanha” refers to a much larger group than that term originally described, and the evidence shows that different researchers have identified different “tribes” or language groups within the claim area, some of which are well supported, the other more inferential or doubtful. Despite this, the interviews and witness statements substantiate contemporary custom of claimants to identify as Adnyamathanha whilst acknowledging they are also, for example, Kuyani, Pirlatapa, Wailpi or Yadliyawara. There are a number of other subgroups. The Ellis Report shows that the contemporary Adnyamathanha society is comprised of those traditionally closely related groups, and that the ethnographic records suggest those groups have a long history of inter-marriage, co-residence and joint ceremonial activities allowing them to be characterised as an appropriate traditional society for native title purposes (Ellis Report at [145]). [26] I am satisfied that the level of detail provided by the applicants to identify the native title claim group and its society satisfies the requirements of the NT Act. [27] The evidence also addresses the relationship between the claim group’s society and the society in the determination area at sovereignty. The earliest recorded ancestors for the contemporary Adnyamathanha society are traced back to the mid-19th century. The evidence shows that those ancestors were living and observing traditional laws and customs in the relevant areas at that time. It is easy to infer that ancestors of those persons occupied the proposed determination area at sovereignty, and that the current claim group is directly linked to them. [28] The evidence shows a substantially uninterrupted observance of traditional laws and customs since sovereignty, albeit not necessarily homogenous in the level of its observation, and notwithstanding varying levels of knowledge and enforcement amongst the Adnyamathanha people. One of the key features of the normative society is the division of the Adnyamathanha people into two matrilineal moieties, Matheri and Arraru. Its importance is recognised and observed by all the Adnyamathanha people interviewed, including younger claimants. The moiety system retains its significance to the younger generation. The moieties traditionally governed many other aspects of Adnyamathanha life, including ceremonial practice, burial arrangement and decision making processes. The latter is evident through the composition of boards dealing with land issues such as the Vulkathunha Gammon Ranges National Park Co-Management Board, where equal numbers of Matheri and Arraru people are appointed to the board, and other boards representative of the Adnyamathanha people. [29] In addition, the continued use of the Adnyamathanha language amongst many of the Adnyamathanha people, including in social contexts where it is often the language of choice, and the encouragement to the younger generations to continue its vibrancy is a strong identifier of ongoing Adnyamathanha custom and identity. So too is the ongoing knowledge of muda (also mura) or Dreaming traditions. That was particular evident during the preservation evidence of Ken McKenzie, as well as in other statements and interviews. The -- 13 of 55 -- [2025] SADC 14 12 Adnyamathanha people have been promoting and protecting their cultural heritage for many years, including establishing structures for the identification and protection of sites through the cultural and educational centre at Iga Warta near Nepabunna. [30] There are additionally, other laws and customs for which there is contemporary evidence including: • The traditional way to butcher and cook kangaroo; • Speaking with and respecting spirits in the land; • Age based hierarchy; • Physically maintaining and protecting sites of significance; and • Maintaining gender and status based restrictions in relation to Dreaming Law. [31] In my view, the material demonstrates the uninterrupted observance of many traditional laws and customs since sovereignty by the Adnyamathanha people, thereby defining their society, by actively promoting and protecting their cultural heritage for many years. [32] The evidence further demonstrates a connection to the determination area by the group’s traditional laws and customs. In particular, the key criteria by which the Adnyamathanha people assert rights and interests in a claim area is descent from an Adnyamathanha ancestor. It shows that the Adnyamathanha country is for all Adnyamathanha people, even though there are some areas where particular people should be consulted about particular parts of the claim area because of their special associations with it. Those associations derive from seniority, and in earlier times seniority associated with initiation ceremonies, and particular historical connections through ancestry and exposure to those areas. [33] The material before the Court also shows that the Adnyamathanha people are recognised by other Aboriginal people as controlling the enjoyment of rights and interests in the claim area. That is exposed by contacts from other Aboriginal people to Iga Warta and Nepabunna seeking permission to visit the area. [34] Further, the relationship between the laws and customs of the Adnyamathanha people and the rights and interests claimed by the applicants is demonstrated by the practising of all the rights and interests claimed by the Adnyamathanha people, both by those who still live on the country and by those who make conscious efforts to return to the area and engage in traditional activities. [35] The material relied upon by the parties in support of the proposed consent determinations, in my view, adequately addresses the requirements of ss 223 and 225 of the NT Act and the appropriateness of making the proposed consent determinations. I accept their submission that the Ellis Report and the interviews and evidence support the recognition of native title rights and interests possessed by the native title claim group, as defined by s 223 and explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. -- 14 of 55 -- [2025] SADC 14 13 44. These findings provide important context to the underlying dispute and publications complained of by the applicant. 1.4 ATLA 45. ATLA is a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and the registered native title body corporate under the Native Title Act 1993 (Cth) in respect of all Adnyamathanha land the subject of consent determinations of native title by the Federal Court of Australia. 46. ATLA has some 700 members. Eligibility for membership requires a person to be at least 18 years old and identify and be recognised as an Adnyamathanha person. 47. ATLA was placed under special administration by the Registrar of Indigenous Corporations (ORIC) on 26 March 2020 to address chronic and severe problems of record keeping in relation to meetings, memberships, directorships and spending. 48. Prior to ATLA being placed under special administration, there were some 25 directors appointed to the board of management representing the eight core Adnyamathanha groups (ATLA Board). 25 As to the applicant’s background, the Magistrate said: 11 93. The applicant was formerly named and known as Deborah Lea Nanschild. 94. On 18 March 2014, the applicant changed her name to Mulara Topez. She also refers to herself as Sri Devi Mulara, Aunty Mulara and Grandmother Mulara. 95. The applicant is the managing director of a consultancy business known as the ‘Centre for Leadership Excellence’. She presented as an astute, well-educated and articulate person. She commenced her career as a teacher in around 1977. Most recently in 2022, she completed a Juris Doctor of Law at the Australian National University. The applicant has an extensive curriculum vitae which reflects an active life of learning, research and teaching. 96. The applicant was not an entirely credible or reliable witness. As noted earlier, I did not accept the bona fides of the applicant’s identification as Adnyamathanha. Magistrate’s Findings on credibility – the Applicant 26 The Magistrate formed a negative view of the applicant’s credibility. Her Honour found that:- • the applicant could not have held a genuine belief that she was Adnyamathanha based on the information known to her at the relevant time;12 • the applicant was ‘opportunistic’ in her self-identification;13 • the applicant had made false statements about the Aboriginality for personal gain.14 11 [2023] SAMC 98 at [93]-[96]. 12 [2023] SAMC 98 at [99]. 13 Ibid. 14 Ibid. -- 15 of 55 -- [2025] SADC 14 14 27 The Magistrate observed that the applicant maintained that she had a genuine belief that she was Adnyamathanha even when conceding that the only basis for that belief was the implausible story from Uncle Ken that she was the granddaughter of Uncle Gordon Coulthard. 28 These findings were based on evidence that the applicant had made a statutory declaration in 2015. The declaration was made for the purpose of an application to register her business on the Supply Nation Indigenous Directory. In that form she declared: I am of Aboriginal or Torres Strait Islander descent, or both; I identify as an Aboriginal person or Torres Strait Islander person, or both; I am accepted as such by the Adnyamathanha community in which I currently live or formally lived. 29 Her Honour said that answers one and two were, on the applicant’s admission, based on the implausible story of Uncle Gordon McKenzie being her grandfather, and that answer three could not have been the subject of a genuine belief because Mr Coulthard had made it clear in correspondence in 2013 and 2014 that there was no general acceptance of her claims.15 30 On the basis of these findings, the Magistrate held, ‘on the Briginshaw standard,’ that it was more likely than not that the applicant knew, at the time she made the declaration in 2015, that her claim of Aboriginality was ‘false and misleading’.16 I observe that this conclusion does not sit well with the Magistrate’s statement, quoted earlier, that ‘I make no finding as to the applicant’s Aboriginality’.17 31 In Briginshaw v Briginshaw, Dixon J (as he then was) said: 18 Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 15 [2023] SAMC 98 at [104]. 16 [2023] SAMC 98 at [103]. 17 [2023] SAMC 98 at [32]. 18 (1938) 60 CLR 336 at [362]. -- 16 of 55 -- [2025] SADC 14 15 The First (Vincent Coulthard) Publication 32 This was made on 27 March 2020 by the second respondent, Mr Vincent Coulthard. It took place on two social media sites - the Adnyamathanha News Page on Facebook and the Adnyamathanha Yara Page, also on Facebook. 33 The passages complained of are as follows: 19 When the character assassination of myself and ATLA began eight years ago, I was accused of having stolen one million dollars. This followed the board taking a decision that Deborah Nanschild would not be permitted to carry out her spiritual practices on our land and although we have won in court against Ms Nanschild on many occasions, members of the so-called reform group have continued to spread lies about myself and ATLA. … I believe these rumour mongers and liars have played a large part in the decision to place ATLA under administration. I hope these people understand the hurt and pain this will be causing to our old people. 34 The applicant says that the words carry five imputations based on the natural and ordinary meaning of the words used. These were: 1. The applicant made deliberately false accusations about Mr Coulthard’s conduct while on the board of ATLA with a view to damaging his reputation and that of ATLA; 2. The applicant was a member of a reform group that was deliberately spreading lies about Mr Coulthard and ATLA; 3. The applicant caused ATLA to be placed in an unjust and unwarranted special administration by spreading lies and rumours about Mr Coulthard and ATLA; 4. The applicant had embarked on a course of conduct aimed at harming ATLA and its old people as retribution for being prevented from carrying on spiritual practices on Adnyamathanha land; 5. The applicant has been the subject of many adverse court decisions which confirm that she spreads lies about Mr Coulthard and ATLA. 35 I will deal with each alleged imputation in turn. First Imputation 36 This was that ‘the applicant made deliberately false accusations about Mr Coulthard’s conduct while on the board of ATLA with a view to damaging his reputation and that of ATLA’. 19 [2023] SAMC 98 at [7]. -- 17 of 55 -- [2025] SADC 14 16 37 As to that imputation, Mr Coulthard: • denied that the Facebook post bore any defamatory meaning; • alternatively, if the imputation was defamatory, he raised the defences of justification, contextual truth and fair comment on a matter of public interest. 38 As to this imputation, the Magistrate held that: The ordinary reader would form the general impression that the Coulthard Facebook Post was fundamentally about ATLA being placed under special administration; and the large part played by ‘the so-called reform group and others' in ORIC's decision to do so by making baseless claims and spreading lies and rumours.20 39 Her Honour found on the basis of this conclusion that the first imputation arose from the Facebook post and carried a defamatory meaning, in that it “conveys that the applicant is dishonest and vindictive”.21 Justification 40 The Magistrate referred to s 23 of the Defamation Act 2005 (as it was when the publication was made) as follows: 22 It is a defence to the publication of defamatory matter at common law and under s.23 of the Defamation Act if the respondent proves, on the balance of probabilities, that the defamatory imputations carried by the matter of which the applicant complains are substantially true (Justification Defence). The notion of substantial truth is meant to convey that ‘slight inaccuracies of detail which do not affect the substance of the charge will not prevent the success of the plea’ (Potts v Moran (1976) 16 SASR 284, 306 (Bray CJ) (‘Potts’)). However, every defamatory part of a publication must be true (Howden v Truth & Sportsman Ltd (1937) 58 CLR 416, 420 – 421 (Dixon J)). Where a defamatory publication contains more than one sting, it is not a defence to a claim to prove that one aspect of the publication is true or substantially true. A respondent must prove that all of the defamatory imputations conveyed are true before a complete defence is established (Potts at 306). 41 In his defence, Mr Coulthard had pleaded the following particulars of justification for this imputation:23 • he is a senior Adnyamathanha man; • he is a former CEO of ATLA; 20 [2023] SAMC 98 at [136]. 21 [2023] SAMC 98 at [149]. 22 [2023] SAMC 98 at [151]-[153]. 23 Defence, [12.4]. -- 18 of 55 -- [2025] SADC 14 17 • he had been the subject of numerous false and malicious attacks by the applicant, including: • the writing of a letter dated 26 January 2018 sent by the applicant to all of the directors of ATLA accusing them of ‘embezzlement, fraud, and improper dealings’; • the applicant claiming to be a ‘Senior Adnyamathanha woman’ presuming to speak for ‘our Adnyamathanha history and culture’ (the ‘ATLA letter’); • the writing of another letter dated 11 February 2013 to the Office of the Registrar of Indigenous Corporation (DRIC) accusing him and others of fraud and embezzlement and stealing over $1,000,000 from ATLA (the ‘ORIC letter’); • in the same ORIC letter, likening him to Robert Mugabe; • writing a letter to the ‘Transcontinental’ newspaper published on 27 March 2013 accusing him of trying to deceive people in a letter he had earlier written to the newspaper, and accusing him and others of ‘unexplained spending of a substantial amount of money and questionable use of credit cards’ and being responsible for ‘years of mismanagement’ (the Editor’s letter). 42 These publications resulted in a flurry of litigation in both the Magistrates Court and the District Court of South Australia and the Supreme Court of Queensland. 43 The Magistrate made the following findings of fact:24 I infer from the circumstances in which the applicant sent the 2013 Letters outlined above and the language, content, and tone of the 2013 Letters, that the applicant’s actions were deliberate. In my view, the applicant did not have reasonable grounds to believe in the truth of the serious criminal allegations made in the 2013 Letters even if the source of these allegations were former directors and ATLA members. None of these persons gave evidence. Nor was there any other evidence adduced capable of grounding a belief in the truth of the allegations at the time. In my view, the applicant demonstrated a reckless indifference as to the truth of these ‘extravagant and sensational’ allegations. She admitted the falsity of these allegations when she withdrew, discontinued and abandoned all the defences filed on her behalf in the first District Court proceedings in 23 June 2014. The applicant subsequently admitted that the 2013 ORIC Letter and the 2013 Editor’s Letter contained defamatory allegations about Mr Coulthard, ATLA and others in her apology and retraction of 19 September 2014. The applicant also submitted that the allegations in the 2013 ORIC Letter have been proven to be true supported by evidence to the Court (at JTB tabs 60, 68, 72, 74, 76, 77, 93 and ASTB, 3 & 4). Putting aside the temporal issue, I do not accept that the referenced material proves the truth of the allegations. While the key findings of the KordaMentha forensic 24 [2023] SAMC 98 at [190]-[191]. -- 19 of 55 -- [2025] SADC 14 18 review of transactions recorded for accounts operated by ATLA and by the former trustee of the ATLA Trust, Cramond Pty Ltd raise issues about payments to directors and other individuals, none of the documents referenced by the applicant prove the truth of the specific allegations that the applicant made in the 2013 ORIC Letters that Mr Coulthard or the other plaintiffs embezzled funds and committed fraud, committed rape or Mr Coulthard’s comparison to Robert Mugabe. Nor does anything relevant arise from the decision of the Honourable Chief Justice in ATLA v Rangelea Holdings Pty Ltd ([2023] SASC 51). 44 On the basis of those factual findings, the Magistrate found that the imputation carried by the defamatory words was substantially true.25 45 The applicant challenged the Magistrate’s findings on the basis that her Honour’s statement that none of the people who gave the applicant the information which formed the basis of the ORIC letter gave evidence was incorrect. She said that ‘Uncle Charlie Jackson and Uncle Wilfred Strangways did give evidence’, but she was referring to the 2015 trial,26 not the trial of this matter. 46 Such a factual error does not take anything away from the Magistrate’s findings that the ATLA letter, the ORIC letter and Editor’s letter in 2013 were written with a view of damaging Mr Coulthard’s reputation and that of ATLA. That was obviously true. 47 I make the same comment about the applicant’s complaint that the Magistrate’s finding that the applicant published the ORIC letter to people other then the Registrar of ORIC was incorrect. If that finding was mistaken, that also takes nothing from the truth of the imputation. 48 I see no reason to interfere with the Magistrate’s finding that the first imputation was substantially true. Her Honour’s conclusions on that issue are obviously correct. Second Imputation 49 This was that the ‘applicant was a member of a reform group that was deliberately spreading lies about Mr Coulthard and ATLA’. 50 In his defence Mr Coulthard, made the same denials and raised the same alternative defences as related to the first imputation. 51 Her Honour was not satisfied that the applicant was sufficiently identified in the context of the Facebook post, so her Honour said that the alleged imputation was not carried. Her Honour said: 27 The Coulthard Facebook Post, however, does not specifically say that the applicant is a member of the reform group and refers to others including non Aboriginal people spreading 25 [2023] SAMC 98 at [159]. 26 Applicant’s written case, [9.2]. 27 [2023] SAMC 98 at [138]. -- 20 of 55 -- [2025] SADC 14 19 lies. I consider that the 2nd Coulthard Imputation requires a strained interpretation of the Coulthard Facebook Post. 52 Ms Topez pleaded that this imputation arose if not directly, then by way of true innuendo when the following extrinsic facts well known to the Adnyamathanha community are taken into account: 28 • since about March 2012, the Applicant, ATLA, the Respondents and other persons in the Adnyamathanha community have been involved in a dispute concerning whether the Applicant is an Adnyamathanha person (Underlying Dispute); (original emphasis). • since 28 May 2013, the Applicant has been involved in various litigations in South Australian Courts with ATLA, the Respondents, Terrance Coulthard, Janet Coulthard, Michael Anderson, and Glenise Coulthard being four well-known persons in the Adnyamathanha community and are former directors of ATLA, and Sharon Meagher; another well-known person in the Adnyamathanha community (the Legal Disputes); • the Underlying Dispute has caused, or otherwise exacerbated the Legal Disputes; and. • by notice dated 25 March 2020, the Registrar of Aboriginal and Torres Strait Island Corporations determined that ATLA is to be under special administration from 26 March 2020 to 30 June 2020 (SOC [12.4]). 53 As to this, her Honour said: 29 In my view, even if proven, the Coulthard Extrinsic Facts did not provide a factual basis upon which the reasonable person could conclude that the First Publication carried those imputations. These facts did not address: • the applicant’s membership of the reform group relevant to conveying the 2nd Coulthard Imputation; • how the applicant was the cause of ATLA being placed into special administration relevant to conveying the 3rd Coulthard Imputation; • how the applicant’s conduct was aimed at harming the old people relevant to the 4th Coulthard Imputation. 54 In her written submissions, the applicant wrote:30 Regarding the second imputation, while the publication does not expressly say the Appellant is part of the reform group, her name is mentioned in the same sentence as where the reform group is mentioned. 55 The sentence from Mr Coulthard’s first publication that the applicant is referring to is: 28 [2023] SAMC 98 at [146]. 29 [2023] SAMC 98 at [148]. 30 Document FDN6, [16.1.1(2)]. -- 21 of 55 -- [2025] SADC 14 20 … although we have won in court against Ms Nanschild on many occasions, members of the so-called reform group have combined to spread this about myself and ATLA. 56 I agree with the Magistrate that this sentence does not give rise to an imputation that the applicant was a member of the reform group, even with the ‘extrinsic facts’ pleaded by the applicant. Third Imputation 57 This was that ‘the applicant caused ATLA to be placed in an unjust and unwarranted special administration by spreading lies and rumours about Mr Coulthard and ATLA’. 58 Once again, Mr Coulthard denied the defamatory meaning, and raised the same defences. 59 Her Honour found that the ordinary and natural meaning of the words of the Facebook post did not give rise to the imputation that the applicant caused ATLA to be placed under special administration. 60 Her Honour said: 31 In my view, an ordinary reader reading the Coulthard Facebook Post as a whole would not form the impression that the applicant personally caused ATLA to be placed under special administration. An ordinary reader would form the impression that the so-called reform group and others who spread lies contributed to, but that this was not the sole cause of, ORIC’s decision to place ATLA under special administration. The 3rd Coulthard Imputation is a strained and unnatural interpretation of the language used. 61 Her Honour also rejected the applicant’s contention that this imputation arose by way of true innuendo for the reasons I have already outlined in (p17). 62 I agree with the Magistrate that the pleaded imputation does not arise from the publication complained of, even with the assistance of the ‘extrinsic facts’ pleaded by the applicant. Fourth Imputation 63 This was that ‘the applicant had embarked on a course of conduct aimed at harming ATLA and its old people as retribution for being prevented from carrying out spiritual practices on Adnyamathanha land’. 64 Mr Coulthard pleaded the same defences in relation to this imputation. 65 After amending the pleading of this alleged imputation, the Magistrate held that the following imputation arose from the Facebook post by Mr Coulthard: 32 31 [2023] SAMC 98 at [140]-[141]. 32 [2023] SAMC 98 at [143]. -- 22 of 55 -- [2025] SADC 14 21 As to the 4th Coulthard Imputation, I consider that an ordinary reader would understand the Coulthard Facebook Post to mean that the applicant has embarked on a course of conduct aimed at harming ATLA (but not its old people) as retribution for being prevented from carrying out spiritual practices on Adnyamathanha land. 66 Her Honour said: 33 As to the 4th Coulthard Imputation, I consider that an ordinary reader would understand the Coulthard Facebook Post to mean that the applicant has embarked on a course of conduct aimed at harming ATLA (but not its old people) as retribution for being prevented from carrying out spiritual practices on Adnyamathanha land. The reference to the old people was specifically used to describe the impact of the decision of ORIC to place ATLA under special administration rather than any conduct of the applicant aimed at harming the old people. Consistent with the inquisitorial nature of a trial of a minor civil claim and the approach mandated under s.38(1) of the Magistrates Court Act 1991 where the parties are not strictly bound by their pleadings, I find that the First Publication conveys an amended form of the pleaded imputation, namely that an ordinary reader would understand the Coulthard Facebook Post to mean that the applicant has embarked on a course of conduct aimed at harming ATLA as retribution for being prevented from carrying out spiritual practices on Adnyamathanha land (Amended 4th Coulthard Imputation). 67 Her Honour rejected Ms Topez’s contention that the imputation that the applicant aimed at harming ATLA’s old people arose by way of true innuendo. She held that, even with the pleaded extrinsic facts mentioned above,34 the publication did not carry the imputation that the applicant’s conduct was aimed at harming old people. 68 The Magistrate held that what she called the Amended 4th Coulthard Imputation was defamatory. Her Honour said: 35 • the Amended 4th Coulthard Imputation, that the applicant has embarked on a course of conduct aimed at harming ATLA as retribution for being prevented from carrying out spiritual practices on Adnyamathanha land similarly conveyed that the applicant was vindictive by deliberately embarking on a course of conduct aimed at harming ATLA. Justification 69 The Magistrate held that the amended imputation was substantially true. Her Honour said: 36 In my view, the Amended 4th Coulthard Imputation was proven to be substantially true based on an objective assessment of the circumstances in which the applicant sent the 2013 Letters set out above and the temporal connection between Mr Coulthard informing the 33 [2023] SAMC 98 at [143]-[144]. 34 Paragraph [41] hereof. 35 [2023] SAMC 98 at [149]. 36 [2023] SAMC 98 at [192]. -- 23 of 55 -- [2025] SADC 14 22 HATW organisers of ATLA’s opposition to the event and the nature, content and tone of the applicant’s communications which followed. 70 The applicant did not specifically refer to this imputation in her written submissions, however, I assume that her objection to it is the same as her objection to her the Magistrate’s ruling in relation to the first imputation discussed above. 71 I consider that the Magistrate’s ruling that the 4th amended imputation was substantially true should he upheld for the same reasons that applied to the first imputation. The evidence was overwhelming that the imputation was true. Fifth Imputation 72 The fifth imputation pleaded was that the ‘applicant has been the subject of many adverse court decisions which confirm that she spreads lies about Mr Coulthard and ATLA’. 73 The Magistrate found that the imputation arose from the Facebook post and was defamatory. Her Honour said: 37 the 5th Coulthard Imputation, that the applicant has been subject of many adverse court decisions which confirm that she spreads lies about Mr Coulthard and ATLA, conveys that a court has confirmed that she has these traits and engaged in such behaviour. 74 There was no challenge to this finding by Mr Coulthard. Justification 75 The Magistrate held that Mr Coulthard had not proved that this imputation was substantially true, because the merits of the allegations that the applicant was telling lies were never heard and determined in any of the previous court proceedings. Accordingly, the defence of justification failed. Contextual Truth 76 Mr Coulthard sought to avail himself of this defence, which arises from the common law and s 24 of the Defamation Act 2005 as it was in 2020. The section reads: 1) It is a defence to the publication of defamatory matter if the defendant proves that— a) the matter carried 1 or more imputations that are substantially true (contextual imputations); and b) any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 37 [2023] SAMC 98 at [149]. -- 24 of 55 -- [2025] SADC 14 23 2) The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains. 77 Her Honour referred to Blake v John Fairfax Publications Pty Ltd38 where Levine J explained the defence of contextual truth as follows: It is to operate in circumstances where a publication conveys various imputations, substantially different one from the other, but in respect of which the plaintiff elects to sue on one or some only. It entitles the defendant properly to defend the action by pleading the other imputations not sued upon, and justifying them to bring about a just result that otherwise an undeserving plaintiff, by reason of what was in fact published of that plaintiff, should not succeed. 78 In ‘Defamation Law in Australia’,39 Mr Patrick George writes: If the matter conveys a number of defamatory imputations, the defendant must have a defence to all such imputations. If the defendant seeks to defend the truth of the defamatory matters, he or she may: (a) … (b) To the extent that the defendant cannot prove that all of the defamatory imputations of which the plaintiff complains are substantially true: (i) … (ii) …. (iii) Prove that the matter complained of carries contextual imputations that are substantially true, by reason of which the defamatory implication of which the plaintiff complains (that are not contextual imputations) do not further harm the reputation of the plaintiff under the defence of contextual truth. 79 In his defence, Mr Coulthard repeated the particulars he gave of the justification defence. 80 The Magistrate held that the particulars relied on do not identify any contextual imputations arising from this publication. 81 However, her Honour identified a number of contextual imputations, which she said arose by way of true innuendo from “well-known extrinsic facts” which were pleaded by Mr Coulthard in relation to the first publication, namely:40 • the applicant admitted publishing letters to ORIC and other persons that contained lies about Mr Coulthard, ATLA and the other plaintiffs in the first District Court proceedings; 38 [2001] NSWSC 885. 39 4th Edition, Lexis Nexis, 2023, [20.1], p445. 40 [2023] SAMC 98 at [202]. -- 25 of 55 -- [2025] SADC 14 24 • the applicant admitted knowing those lies were of a serious and grave nature that would and did cause harm and distress to Mr Coulthard, ATLA and the other plaintiffs; • the applicant was found by the Magistrates Court in the Prior Defamation Claim to have disrespected Adnyamathanha sacred land; to have been culturally inappropriate on Adnyamathanha land; and to have disrespected Adnyamathanha spiritual beliefs and culture. 82 Her Honour concluded: 41 Based on my earlier findings, I am satisfied that the above contextual imputations are substantially true and that the 5th Coulthard Imputation does not further harm the applicant’s reputation. 83 In Defamation Law in Australia,42 Mr Patrick George writes: The defendant’s ‘contextual imputations’ must be separate and distinct or differ in substance from the imputations of which the plaintiff complains.43 This means that the facts, matter, and circumstances which justifies each imputation should be different. Linguistic difference in the form of each imputation do not establish that they are different in substance if the evidence which would justify each imputation is ultimately the same.44 The scope of an imputation pleaded by the plaintiff must be taken to include all implications which do not differ in substance, or are less injurious, or which are that shades, nuances and graduation of meaning of imputation.45 However, the contextual imputations need not differ in kind. 84 I accept that the ‘extrinsic facts’ identified by the Magistrate ‘differ in substance’ from the 5th Coulthard Imputation, but I consider that the 5th Coulthard Imputation further harms the applicant’s reputation beyond the harm done by the three extrinsic facts the Magistrate found proved in relation to the 1st Coulthard Imputation. For this reason, I find that the defence of contextual truth should also fail. Fair Comment 85 Because the Magistrate upheld Mr Coulthard’s defence of contextual truth, she did not proceed to answer his other pleaded defence to the 5th Coulthard Imputation, namely fair comment on a matter of public interest, also known as the ‘honest opinion defence’. 86 Section 29(1) of the Defamation Act 2005 provides: (1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was an expression of opinion of the defendant rather than a statement of fact; and 41 [2023] SAMC 98 at [203]. 42 4th Edition, LexisNexis, 2023, [20.5], p450. 43 Fairfax Media Publications v Zeccola [2015] NSWCA 329. 44 Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384. 45 Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204. -- 26 of 55 -- [2025] SADC 14 25 (b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. 87 The 5th Coulthard Imputation, that the applicant was the subject of many court decisions which confirm that she spreads lies about Mr Coulthard and ATLA, is a statement of fact, not the expression of an opinion. Even if it was the expression of an opinion, it could not be said that it was based upon ‘proper material’ as defined in s29 (i)(c) above. There was no material before the court that proved that a court had confirmed that the applicant told lies. 88 For those reasons, the defence of honest opinion also fails. 89 The second respondent has no defence to the claim of defamation in relation to the 5th Coulthard Imputation. The Magistrate’s dismissal of the claim against Mr Coulthard should be rescinded. The Second (Cheryl Coulthard-Waye) Publication 90 This was multi-faceted. Firstly, it consisted of another post on the Adnyamathanha News Facebook page on 7 August 2019, which featured a screenshot of the applicant’s webpage.46 The applicant’s webpage contained information about a program called ‘Level Two Artu Law Circle’ that the applicant was conducting across a number of locations in New South Wales in the Piliga area, and in the Flinders Ranges in South Australia. The applicant is described as ‘Grandmother Mulara’. The website carries a photograph of a person who appears to be the applicant kissing the forehead of another woman who is wearing a red headband. A reproduction of the webpage is exhibited at p 8 of the Magistrate’s judgment. 91 Secondly, the publication consisted of comments published by the seventh respondent, Ms Cheryl Coulthard-Waye, on 7 August 2019 on the Adnyamathanha News Facebook page which concerned the image just described, and responded to comments posted by other people, on the Facebook page. The relevant parts of Ms Coulthard-Waye’s comments were as follows: 47 Cheryl Waye - If you say you’re Uncle Gordon Coulthard’s family well get DNA to prove it Indie woopha Cheryl Waye You should be ashamed if yourself. … Loralee Anderson - What date. I will be listening out Cheryl Waye - Loralee Anderson Hey sis let’s go it’s happening at Mt Chambers 46 https://grandmotherwisdom.com.au/womens-law-lore-circles/ 47 [2023] SAMC 98 at [10]. -- 27 of 55 -- [2025] SADC 14 26 Cheryl Waye - Loralee Anderson on the 6,7,8th September Sis Loralee Anderson - Cheryl Waye thanks Cheryl Waye - Loralee Anderson we should go and put padlock with chain on gate or across ramp sis Cheryl Waye - I am willing if you are sis Cheryl Waye - It’s a initiations ceremony for the women’s sis Cheryl Waye - This is not allowed there, why can’t she listen, and if she claims to be Adnyamathana why doesn’t she have DNA to prove us wrong … Cheryl Waye - What is she hiding, also the red headband doesn’t belong in our land Cheryl Waye - Paul Keath it’s in the Adnyamathana news Cheryl Waye - Sorry sis the dates are 30, 31/8 and 1/9 at Mt Chambers Adnyamathanha News - Cheryl did you give Mr Keath the go ahead to write the article? Cheryl Waye - Adnyamathanha News until I know who you. Are I won’t be. Commenting !!!!!!!!!¡!!! Adnyamathanha News - sorry I thought it goes without saying once I was responsible for running the ATLA page but Im no longer employed by ATLA and so I have changed the name to Adnyamathanha News but it is me Vince. Cheryl Waye - Sorry bro, yes I have spoken to Keith a about Namschild and us artinis have to send him a group photo of us and he is going to contact the editor of newspaper in byon bay so we can tell our story to let the town knw about her apparently the townspeople don’t like her Cheryl Waye - Adnyamathanha News I am yet to get group photo Cheryl Waye - Broz is Namschild staying at Wilpena???? I want to go up and see her Adnyamathanha News - Cheryl no they normally stay at Rawnsley as Tony Smith protects them. He rang the cops on us before. Cheryl Waye - Thanks Broz Vince Coulthard - Loralee, are you liking the fact that Tony Smith got the cops on us or are you liking the fact that these worshippers are staying at Rawnsley Park? Isn’t Rawnsley Park still on Adnyamathanha Yarta? Renee Jessica Andrew - Adnyamathanha News nunga our beautiful uncle Marilyn R Coulthard - Shame Debra -- 28 of 55 -- [2025] SADC 14 27 Paula-Jean Fielding - Hey Nan Judy Johnson you might want to take a look at this, speak with my mothers up there on this? Desiree Fielding-Long Rita Fielding Joycee Fielding Joelwyn Johnson Taryn Wilton Janine Wilton Jasmine Wilton. 92 The applicant alleges that the publication contained the following false and defamatory meanings or imputations: 1. the applicant was knowingly lying about being an Adnyamathanha person; 2. the applicant was conducting female circumcision (the Adnyamathanha meaning of ‘Indie Woopha’) as part of a women’s initiation ceremony; 3. the applicant was wilfully and in knowing disregard for the wishes of all Adnyamathanha people planning on conducting spiritual practices on Adnyamathanha land which should not be permitted; and 4. the applicant is a person who poses such a risk to the locals in other places where she may reside that they need to be warned about her.48 93 In her defence, Ms Coulthard-Waye denied that the comments she published were defamatory. Alternatively, she pleaded defences of justification, contextual truth, and fair comment upon a matter of public interest. These pleas applied to all four imputations alleged by the applicant. First Imputation 94 This was that ‘Ms Topez was knowingly lying about being an Adnyamathanha person’. 95 The Magistrate held that this imputation was conveyed by the natural and ordinary meaning of the publication and was defamatory of the applicant because it asserts that the applicant is dishonest.49 96 I agree that the imputation was conveyed and was defamatory. Justification 97 The Magistrate held that this imputation was substantially true. Her Honour said: 50 Ms Waye relies on the long-standing and unresolved dispute between the applicant and Adnyamathanha community about the applicant’s ancestry and the applicant’s refusal to undergo DNA testing to prove the substantial truth of the 1st Cheryl imputation (FDN 27 Defence, [17.2], Particulars of Justification (a) & (b)). 48 [2023] SAMC 98 at [11]. 49 [2023] SAMC 98 at [221]. 50 [2023] SAMC 98 at [225]-[233]. -- 29 of 55 -- [2025] SADC 14 28 As already stated I have not drawn any adverse inference from the applicant’s refusal to undergo DNA testing. Nevertheless, I am satisfied that, at the time of the Second Publication, the applicant was knowingly lying about being an Adnyamathanha person because she had no reasonable basis for believing it to be true. The applicant knew that it was biologically impossible to be a direct descendant of Uncle Gordon given his age at the time her grandmother fell pregnant with her mother. The applicant has persisted with her self-identification as Adnyamathanha for years despite knowing the implausibility of the lineage to Uncle Gordon and even after she was challenged by Mr Coulthard and other members of the Adnyamathanha community and failed to substantiate it with any credible evidence. I do not accept the applicant’s assertion to the effect that it was reasonable for her to rely on Uncle Ken’s authority to make her Adnyamathanha. The evidence of a senior Adnyamathanha Elder and Uncle Ken’s sister, Aunty Beatrice, conceded that Uncle Ken may have got it wrong about Uncle Gordon. She speculated that there may have been another connection within the McKenzie family based on the applicant’s apparent resemblance to McKenzie family members. It is unnecessary for me to consider the applicant’s submissions about adoptive relationships or her most recent claimed descent from Uncle Archie McKenzie because the relevant claimed ancestral connection was Uncle Gordon. The applicant must have turned her mind to the requirements of proving her claimed Aboriginality when she completed the Supply Nation statutory declaration on 25 June 2015. As stated earlier, the applicant did not have a reasonable basis for believing the truth of the statements she made about her Aboriginality in the Supply Form. In conclusion, I find the 1st Cheryl Imputation to be substantially true. 98 The truth or otherwise of this imputation lies at the centre of this long running dispute. Aboriginality 99 There have been various definitions of ‘Aboriginality’ over the years, most adopted by government departments for administrative purposes. By 1992 however, issues of land rights, Aboriginal Corporations and mining royalties had come to the foreground. In that year, the High Court of Australia decided Mabo & Ors v Queensland (No 2). In the judgment of Brennan J, the following passage appears:51 Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among these people. 51 [1992] HCA 23; (1992) 175 CLR 1. -- 30 of 55 -- [2025] SADC 14 29 100 This became known as the ‘tripartite test’ namely; 1. The person concerned is of Aboriginal decent. 2. The person concerned self identifies as an Aboriginal person; 3. The person concerned is accepted as an Aboriginal person by the Elders or other people enjoying traditional authority in the community in which he or she lives. 101 It is generally accepted that all three criteria must be satisfied, and that is the clear meaning of Brennan J’s words, particularly having regard to his Honour’s use of the conjunctive ‘and’ between the three criteria he identified. 102 The issue of ‘Aboriginality’ was closely examined by the High Court in Love v The Commonwealth, Thoms v The Commonwealth.52 That case concerned whether an Aboriginal person could be regarded as an ‘alien’ for the purpose of s 51 (xix) of the Constitution, the Migration Act 1958 (Cth) and the Australian Citizenship Act 2007 (Cth). 103 Mr Love was born in Papua New Guinea (PNG). His father was an Australian citizen by birth, and his mother was a PNG citizen. He had held a permanent residency visa since 1984, when he was five years old. He had never been an Australian citizen. He is descended through his father from Aboriginal people who inhabited Australia prior to European settlement. He self-identified as a member of the Kamilaroi Group, and is recognised as such by one member of that group. 104 Mr Thoms was born in New Zealand. His father was a New Zealand citizen. His mother was an Australian citizen by birth. He had resided in Australia since 1994, being the holder of a special category visa. He had never been an Australian citizen. Mr Thoms is descended from Aboriginal people who inhabited Australia before European settlement. He self-identified as a member of the Gunggari People, and is accepted by members of that community. He is a common law holder of native title to land recognised by the Federal Court after a claim by the Gunggari People. 105 Both Mr Love and Mr Thomas had been living in Australia as holders of visas. They were regarded as citizens of the countries in which they were born. 106 Having committed criminal offences, both Mr Love and Mr Thoms had their visas cancelled by the Minister for Immigration pursuant to s 501 of the Migration Act 1958 (Cth). They thereby became ‘unlawful non-citizens’ pursuant to ss 13 and 14 of the Migration Act. 107 Three members of the High Court (Kiefel CJ, Gageler J and Keane J) held that Mr Love and Mr Thoms were ‘aliens’. Four of the judges (Bell, Nettle, 52 [2020] HCA 3, (2020) 270 CLR 152. -- 31 of 55 -- [2025] SADC 14 30 Gordon and Edelmen JJ) held that Mr Thoms, having satisfied all three criteria in the tripartite test, could not be regarded as an ‘alien’, since he was an Aboriginal person. 108 In the case of Mr Love, Nettle J held that the facts presented to the Court were insufficient to hold that he was an Aboriginal person. 109 The High Court accepted Brennan J’s tripartite test for ‘Aboriginality’ for the purpose of its decision, and that it was necessary that all three criteria in the test be satisfied.53 110 Nettle J said:54 Axiomatically, a person cannot be a member of an Aboriginal society continuously united in the acknowledgment of its laws and customs unless he or she is resident in Australia. Nor can a person be a member of such an Aboriginal society unless he or she is accepted as such by other members of the society according to the traditional laws and customs of the society deriving from before the Crown’s acquisition of sovereignty over the Australian territory. Thus, for present purposes, the most significant of the traditional laws and customs of an Aboriginal society are those which allocate authority to elders and other persons to decide questions of membership. Acceptance by persons having that authority, together with descent (an objective criterion long familiar to the common law of status) and self-identification (a protection of individual autonomy), constitutes membership of an Aboriginal society (452): a status recognised at the “intersection of traditional laws and customs with the common law”.55 111 Those judges who found that Mr Love was not an ‘alien’, Bell J, Gordon J and Edelman J, did so on the basis of a concession by the Commonwealth as to his Aboriginality rather than as a matter of principle.56 112 Two of the judges expressed some qualification of the tripartite test in Mabo (No 2) as follows: The observation made by Bell J that:57 The special cases do not raise consideration of the circumstances, if any, in which a person who is not within the Mabo [No 2] test may nonetheless establish that he or she is an Aboriginal Australian. The observation of Edelman J that:58 The tripartite test was applied in Mabo [No 2] as a means to identify those members of a particular sub-group of indigenous people who enjoy continuing connection with particular land. It can be usefully applied in this case. However, it is not set in stone, particularly as 53 See Kiefel CJ at [23], Bell J at [79], Gageler J at [116], Keane J at [191-192], Nettle J at [271], Gordon J at [291], Edelman J at [458]. 54 At [271]. 55 The Commonwealth v Tasmania [1983] HCA 21; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; Sampi v Western Australia [2010] FCAFC 26. 56 See Bell J at [79], Gordon J at [388] and Edelman J at [462]. 57 At [80] and see the case cited at footnote 110. 58 At [458]. -- 32 of 55 -- [2025] SADC 14 31 an approach to determining Aboriginality as the basis for those fundamental ties of political community in Australia which are not dependent upon membership of a particular sub- group. 113 In Ward on behalf of the Miriuwung and Gajerrong People v Western Australia59 Lee J observed that the reference by Brennan J in Mabo [No 2] to ‘biological descent’ involves a ‘broad understanding of descent, not the application of a narrow and exclusive test’. His Honour added:60 Relationship between people, and their relationship with land, do not depend solely, or necessarily on biological descent. 114 Also, in Yarmirr v Northern Territory (Croker Island)61, Olney J held that membership of an Aboriginal community could be acquired by adoption irrespective of biological descent. 115 In Native Title in Australia,62 Professor Richard H. Bartlett wrote: The difficulties in proof of membership were acknowledged by Brennan J in (Mabo No 2).63 116 Brennan J said: There may be difficulties of proof of boundaries or of membership of the community or of representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. 117 In Mason v Tritton,64 Kirby P (as he then was) said: It is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788. 118 The applicant argues that Uncle Ken McKenzie acknowledged her and her sister as Adnyamathanha. The problem with this assertion is that his acknowledgement was obviously based on his understanding that Uncle Gordon Coulthard was her grandfather, when it is now generally accepted that, as the Magistrate said, this was ‘biologically impossible’.65 This was confirmed in evidence by the second respondent Mr Coulthard who had conducted research into his family’s history which established that Uncle Gordon would have been about five years old when the applicant’s mother was born.66 119 Aunty Carolynanha Johnson gave evidence that the applicant was ‘welcomed back to Adnyamathanha country’ by family members and that there was ‘general 59 (1998) ALR 483 at [503]. 60 Ibid, at [530]. 61 (1998) 156 ALR 370 at [70]. 62 Butterworth, 2000, [8.61]. 63 Mabo v Queensland (No 2) (1992) 175 CLR 1 at [51-2]. 64 (1994) 34 NSWLR 572 at [588]. 65 Judgment, [227]. 66 T91. -- 33 of 55 -- [2025] SADC 14 32 acceptance of her by the people at community meetings in 2014, 2017 and 2020’. Ms Johnson said that in evidence,67 but she also acknowledged that she had no information about the applicant’s heritage apart from Mr McKenzie’s claims.68 120 The second respondent Mr Coulthard conceded in evidence that the “reform group” is made up of “dissident Adnyamathanha people”,69 including senior Adnyamathanha people such as Mr Charles Johnson, whom he respected.70 121 The seventh respondent, Ms Coulthard-Waye also gave evidence that ‘in that reform group there were a lot of Miss Nanschild’s (applicant’s) supporters who were Adnyamathanha’.71 122 The applicant also referred to the evidence of Aunty Beatrice McKenzie, whom she described as a ‘Senior Adnyamathanha Woman’. Ms McKenzie referred to an occasion in 2017 when the applicant paid for several Adnyamathanha women to travel to Willow Springs and then on to Arkaroola.72 She said that the applicant was welcomed as an Adnyamathanha woman. She said she believed that the applicant was related to Uncle Archie McKenzie because the applicant looked like his sister Alice McKenzie. She was the ‘splitting image’ of her.73 As for Uncle Ken saying Uncle Gordon Coulthard was the applicant’s grandfather, Ms McKenzie said:74 At first I thought he was mixed up with my cousin Gordon, but then if its wrong, its Uncle Archie. 123 The applicant’s evidence about this issue was, in summary, that she knew the name of her maternal grandmother, but the name of her maternal grandfather is unknown.75 It was not her claim that she was descended from Gordon McKenzie – this was what she was told by Adnyamathanha Elders.76 Her family was told by a relative that they were a quarter each of Aboriginal, Afghani, Irish and Scottish.77 She self-identifies as an Adnyamathanha Elder, but her teachings are not based on Adnyamathanha culture.78 124 There is also the evidence of Mr Robert Ellis who is widely recognised and respected as an authority on the history and culture of the Adnyamathanha people. He said that the second respondent, Mr Coulthard, often assisted people to identify 67 T386. 68 T385. 69 T57. 70 T52. 71 T109. 72 T681-683. 73 T684. 74 T684. 75 T401. 76 T404. 77 T441. 78 T580. -- 34 of 55 -- [2025] SADC 14 33 their forbears if they thought they had Adnyamathanha heritage.79 Mr Ellis said that Adnyamathanha people would approach the task of identifying a person claiming Adnyamathanha heritage by referring to whether they were known to senior members of the community, to determine whether they knew the person’s lineage. The genealogy, which was prepared at the South Australian Museum by Adnyamathanha people with his help, would be consulted to determine if there was helpful information there. The record of the person’s contribution or participation in Adnyamathanha community events such as weddings, funerals and other events would also be assessed.80 125 On the evidence, all of these factors were referred to by the community in relation to the question whether the applicant was of Adnyamathanha descent. 126 It must be emphasised that it is not for the applicant to demonstrate that she has a reasonable basis for believing that she is of Adnyamathanha descent – it is for the seventh respondent, Ms Coulthard-Wayne to demonstrate that she is knowingly lying. 127 In that legal context, and having regard to the evidence I have outlined, I conclude that there were insufficient grounds for the Magistrate to conclude that the imputation that the applicant was knowingly lying about being an Adnyamathanha person had been proved to be substantially true. 128 The onus was on Ms Coulthard-Waye to prove that the imputation was true, and she failed to do so. Although the Magistrate formed an unfavourable opinion as to the applicant’s honesty as a witness, the inference from the evidence referred to above, that the applicant was relying on the statements of Uncle Ken McKenzie and others that she had Adnyamathanha heritage and had an honest belief about that, however objectively questionable that belief might have been, has not been disproved on the balance of probabilities. 129 The defence of contextual truth does not assist the seventh respondent, because the imputation arising from the publication clearly does further harm to the applicant’s reputation. Finally, the defence of fair comment or honest belief cannot succeed because it cannot be said that the imputation is based on “proper material” as required by s 29(5) of the Defamation Act 2005. 130 I conclude that the seventh respondent has no defence to the applicant’s claim in defamation based upon the first imputation in the Second Publication. Second Imputation 131 This imputation was that the applicant was carrying out female circumcisions as part of a woman’s initiation ceremony. 79 T165. 80 T168. -- 35 of 55 -- [2025] SADC 14 34 132 The Magistrate held that she was not satisfied that the publication carried that meaning. She said: I was not satisfied that an ordinary reader would interpret the publication based on the natural and ordinary meaning of the words used in a way that conveyed the 2nd Cheryl Imputation that the applicant was conducting female circumcision as part of a women’s initiation ceremony. Ms Waye says (and I accept) that the expression ‘Indie (sic) Woopha’ has the meaning of ‘white vagina’ and not ‘female circumcision’ in the Adnyamathanha language. It was used as derogatory term to refer to the applicant as a white female. This interpretation is also consistent with how the expression is used in the Cheryl Facebook Comments in reference to the ancestral claim (i.e., ‘If you say you’re Uncle Gordon Coulthard’s family well get DNA to prove it Indie Woopha’). The expression was not used in that part of the comments dealing with the women’s initiation ceremony. 133 The applicant also relied on an allegation of ‘true innuendo’ to establish that the imputation arose from the publication. The Magistrate rejected this contention.81 134 I accept that the Magistrate’s understanding of the term ‘Indie Woopha’ is correct on the evidence. The publication does not contain any imputation that the applicant was performing circumcision. The imputation that she was participating in a women’s initiation ceremony does not, without more, imply that female circumcision was a part of such ceremonies. 135 I agree with the Magistrate that the Second Cheryl Publication did not carry the imputation alleged by the applicant. Third Imputation 136 This was that Ms Topez was ‘wilfully and knowingly in disregard for the wishes of all Adnyamathanha people by planning on conducting spiritual practices on Adnyamathanha land which should not be permitted’. 137 The Magistrate held that the publication did carry that meaning and was defamatory. 82 Her Honour observed:83 I consider that such traits and behaviours would fall short of the values and attitude held by the general community towards Aboriginal people, their spiritual beliefs and culture. A reasonable member of the general community would expect the applicant to be honest and respectful towards First Nations peoples’ spiritual beliefs and culture and not to engage in activities forbidden by those beliefs and culture on traditional land. Assessed against these standards, an ordinary reasonable person would think less of the applicant. 81 [2023] SAMC 98 at [220]. 82 [2023] SAMC 98 at [213], [231]. 83 [2023] SAMC 98 at [222]. -- 36 of 55 -- [2025] SADC 14 35 Justification 138 In considering whether this defence was made good, her Honour said: 84 The overall effect of the evidence of the recognised Adnyamathanha Witnesses, including the Adnyamathanha Elders called by the applicant in the Prior Defamation Claim, about Adnyamathanha culture was that: • Adnyamathanha people are very strong in their culture and language and have a continued strong connection to country, culture, and kinship; • in Adnyamathanha culture, Adnyamathanha people are responsible for what other Adnyamathanha people do so that if one of their people do the wrong thing it could come back on all Adnyamathanha people – ‘spiritually we could get affected’; (T236 [23] – [29].) • in Adnyamathanha culture, Adnyamathanha people also have obligations for people who enter their land as much as possible to ensure they are safe and that what they do while they are there is culturally appropriate and respectful – ‘we like to know who is coming and who is going from our yarta’; (T381 [28] – [29].) • Adnyamathanha ‘Muda’ are the traditional creation song lines of the Adnyamathanha Country and do not include the applicant’s concept of ‘New Dreaming’ nor the creation of new song lines; • Adnyamathanha culture does not include women’s initiation ceremonies; • Adnyamathanha women cannot hold and/or teach men’s law/lore; • it is inappropriate for Adnyamathanha women to wear red headbands – ‘…not even a red jumper…It’s taboo because that belongs to another tribe’s…laws and customs…’;( T231 [11] – [15]) • the concept of opening portals at ‘Grid Point 44’ located on Adnyamathanha is not part of Adnyamathanha culture; • Adnyamathanha culture is set up around a strong kinship system where people need to know where they fit in and where others who believe they have links to Adnyamathanha people fit in. Central to this is the identification of Adnyamathanha lineage; • while acknowledged as incomplete and not entirely accurate the Adnyamathanha people have a well-researched and comprehensive genealogy which was used in connection with their native title claims. 139 This evidence was compared unfavourably with that of the applicant: 85 I did not consider the applicant to be a reliable witness on matters relating to her spiritual practices and activities and what occurred on Adnyamathanha land. The applicant’s 84 [2023] SAMC 98 at [235]. 85 [2023] SAMC 98 at [237]-[242]. -- 37 of 55 -- [2025] SADC 14 36 evidence was at times contradictory to public statements about events she organized or hosted. For example, while denying that she engaged in any opening of the portals at Grid Point 44 during the 2013 HATW event, the applicant wrote a ‘poem’ which included the following statements: Thirty five people assembled in a creek bed in the South Australian desert, at Grid Point 44 for a ceremony with the blessing of the Traditional Custodial Elder on who’s (sic) Mother’s land we assembled. This was an important gathering, we knew why we were here, to open the portal for the new energy to come in. … We linked to other grid points throughout the world Using the Blue Flame Creating new songlines Healing the new earth Mulara – Custodian Grid Point 44 Sacred Songlines (This poem was the subject of findings in the Earlier Magistrates Court Defamation Action at [75]-[84].) Any activity of the nature described by the applicant (as opening the portal) was not part of Adnyamathanha culture nor permitted on Adnyamathanha land. The applicant was well aware of ATLA’s opposition to her carrying out this type of activity during the 2013 HATW event. While I was not satisfied on the available evidence about exactly what spiritual activities the applicant planned and/or engaged in on Adnyamathanha land between 2014 and 2018, the applicant’s own Grandmother Mulara website promoted the planned ‘Level Two Artu Law Circle’ as travelling to different locations including the Flinders Ranges in August 2019 ‘for women who have undergone level one initiation or equivalent’. The applicant describes this ‘circle’ (and the other circles) as a ‘deeply sacred journey’. The applicant says that she has never claimed that these circles were part of traditional Adnyamathanha culture, spiritual beliefs and practices. Rather, the applicant’s evidence was to the effect that these activities were part of the ‘New Dreaming’ and teachings of indigenous knowledge that the applicant had been told by elders of other First Nations to share with the world in her role as Senior Lore Woman. The applicant said: … I’ve been instructed by my law elders to go that way, to go and learn from this one, from this other one and they all said, and this is the – pretty much what the teachings in summary are about, they said there’s a new dreaming coming where black and white will walk together. They said ‘You’ve got to get those teachings out there girl or people won’t know how to look after themselves’… (T416 [31] – [40].) Nevertheless, the applicant’s description of the planned Level Two Artu Law Circle indicates that it involves sacred spiritual practices concerning women’s initiations. I was satisfied based on the evidence as a whole that women’s initiations are not part of Adnyamathanha traditional culture or spiritual beliefs; and that any activity referred to as -- 38 of 55 -- [2025] SADC 14 37 women’s initiations would be forbidden on Adnyamathanha land and considered deeply offensive to Adnyamathanha women. 140 Her Honour concluded that this defence was made out in relation to this imputation. I agree. The evidence identified above provides ample evidence for the conclusion that the third implication is substantially true. Fourth Imputation 141 This imputation was that the applicant posed such a risk to the locals in other places where she may reside that they need to be warned about her- the Magistrate held that, for the same reasons as she expressed in relation to the second imputation, this imputation did not arise from the publication, even having regarded to the extrinsic facts pleaded. Her Honour said that the facts pleaded ‘do not provide a factual basis for interpreting the comments as a warning to locals in other places of the risk the applicant apparently posed’.86 142 I agree with his conclusion. Third (Nicholas Dumell) Publication 143 This publication has five aspects. Firstly, it involves the publication on around 19 April 2020, of a video on YouTube. The video depicts the applicant and another woman sitting with Uncle Ken McKenzie, an Adnyamathanha Elder.87 144 Secondly, the publication consists of comments made on Facebook by the eighth respondent, Mr Nicholas Dumell, about the video. Mr Dumell is a nephew of the second respondent, Mr Vince Coulthard. The comments are alleged to have been made on or around 19 April 2020. They were made in the course of a conversation involving other people and included: 88 Dirty white bitches should be ashamed of taking advantage of my mitta ... whoever supports them will suffer. 145 This was an apparent reference by Mr Dumell to the image depicting Ms Topez and another woman sitting with Uncle Ken McKenzie. 89 Nanga ... you support udnyu that mock our culture. I’m not disrespecting your father. I love him and he knows that. 146 This was an apparent response by Mr Dumell to Jaqueline Crawford, who had scolded Mr Dumell for disrespecting her father, Mr McKenzie. Debra nanschild the white trash on his right. 86 [2023] SAMC 98 at [220]. 87 [2023] SAMC 98 at [12]. 88 [2023] SAMC 98 at [14]. 89 [2023] SAMC 98 at [14]. -- 39 of 55 -- [2025] SADC 14 38 147 This was an apparent response by Mr Dumell to Dawn Stuart-Likouresis, who had asked who the two women or ‘udnatus’ in the photograph were. 148 The applicant alleges that the publication carried the following false and defamatory meanings: 90 1. the applicant was taking advantage of a respected Senior Adnyamathanha Law man; 2. the applicant mocks Adnyamathanha culture; 3. the applicant should be ashamed for taking advantage of Adnyamathanha people; and 4. the applicant is a worthless person who does not deserve support and should be disrespected as ‘white trash’ and, or a ‘dirty white bitch’. First Imputation 149 The applicant says that Mr Dumell’s comments give rise to the imputation that Ms Topez was ‘taking advantage of a respected senior Adnyamathanha law man’. This was an obvious reference to Uncle Ken McKenzie. 150 Mr Dumell pleaded that the imputation does not arise because there were two other women depicted in the video and it was unclear as to whom he was referring. 151 The Magistrate rejected this argument and held that the imputation did arise. It was clear that Mr Dumell was referring to the applicant because he referred to her by her former name and as ‘the white trash on his right’.91 I agree with this conclusion. 152 The Magistrate held the imputation to be defamatory.92 I agree with this conclusion. Justification 153 The Magistrate held that this imputation was substantially true. Her Honour said: 93 I am satisfied, on the balance of probabilities, that the 1st and 3rd Nick Imputations were substantially true because: • irrespective of whether or not Uncle Ken suffered from dementia, he was elderly and vulnerable; • the applicant knew that Uncle Ken’s story about Uncle Gordon was implausible but continued to flagrantly use the story for her own advantage including in the promotion of her consulting businesses. A most egregious example of this was the 90 [2023] SAMC 98 at [15]. 91 [2023] SAMC 98 at [14]. 92 [2023] SAMC 98 at [247]. 93 [2023] SAMC 98 at [264]-[265]. -- 40 of 55 -- [2025] SADC 14 39 application for registration of her business on the Supply Nation Indigenous Directory; • the applicant obtained at least three sworn statements from Uncle Ken (in 2015, 2016 and 2017) reaffirming his story about Uncle Gordon being her grandfather, including to support her application for registration with the Supply Nation; • posting the video on her YouTube account, was to the applicant’s advantage in the sense that she was reliant on Uncle Ken’s cultural authority to support her claim to be Aboriginal and give credibility to her teachings about the New Dreaming and the creation of new song lines The definition of the word ‘ashamed’ in the Oxford English Dictionary includes the meaning: Affected with shame; abashed or put to confusion by a consciousness of guilt or error; disconcerted by a recognition that one’s actions or circumstances are in any way not to one’s credit. In my view, a reasonable person in the general community would view the applicant’s conduct as outlined above as shameful. 154 I would readily agree that if the applicant had been ‘taking advantage’ of Uncle Ken McKenzie, then the characterisation of that behaviour as ‘shameful’ is correct. 155 However, it is not clear to me where the evidence for that conclusion is. 156 The Shorter Oxford Dictionary94 defines ‘take advantage of’ as to ‘avail oneself of circumstances, use one’s opportunities, esp (especially) unfairly’. 157 In my view there is no evidence that the applicant was taking unfair advantage of Uncle Ken McKenzie. None of the witnesses said so. 158 The evidence was clear that Uncle Ken McKenzie was a respected Elder. He played a prominent role in the Native Title case in the Federal Court in 2009.95 159 Having regard to the onus of proof, which is on the respondent, to establish the truth of this imputation, I disagree with the Magistrate that it has been proved that the imputation is substantially true. 160 It may well be that the applicant was availing herself of circumstances, or using her opportunities, but it has not been established that she did so in an unfair way by taking advantage of Uncle Ken McKenzie’s infirmities. There was a substantial body of opinion in the Adnyamathanha community who also supported the applicant, and who valued Uncle Ken McKenzie’s opinions. 161 The defence of justification for this imputation should fail. 94 Clarendon Press, Oxford, 1993, p31. 95 Evidence of Robert Ellis, T180. -- 41 of 55 -- [2025] SADC 14 40 Second Imputation 162 This is that the applicant ‘mocks Adnyamathanha culture’. 163 The Magistrate also accepted that this imputation arose from the publication (it was Mr. Dumell’s specific accusation that the applicant supported people who ‘mock our culture’). This was a clear reference to the applicant and was defamatory. 164 Like the first imputation, the Magistrate held that the behaviour described in the publication would fall below the standards of the general community who would expect the applicant to be respectful of First Nations Elders and their culture, and that an ordinary reasonable person may think less of the applicant based on the assertions in the imputation.96 I agree. Justification 165 The Magistrate held that this imputation was also substantially true, for the reasons she had earlier expressed, and for these further reasons related to the applicant’s behaviour: 97 • continuing to publicly claim to be Adnyamathanha based on Uncle Gordon’s lineage; • her self-proclaimed elevated status as a First Nations Elder and a Senior Lore Woman with traditional indigenous knowledge ‘sourced from Senior Law Elders who taught [her] for over 50 years’ including Adnyamathanha First Nations’ people and other First Nations while claiming to be Adnyamathanha; • continuing to publicly promote herself, her businesses and/or spiritual practices by reference to her being Adnyamathanha without making it clear that the spiritual practices and/or activities offered are not part of Adnyamathanha culture. In my view, the applicant’s own promotional material was misleading and capable of misrepresenting Adnyamathanha traditional knowledge and cultural practices and activities. See for example the program for the Sacred Dreamtime Mystery School 2014 which includes the following statements: “The program is a smorgasbord of Aboriginal, Native American and other First Nation’s peoples knowledge, understanding and teachings (depending on available facilitators) with participants able to step towards initiation under Aboriginal Law. … Mulara Topez is the lead facilitator. She’s an initiated woman with the Nyoongah tribe (WA) and holds Law of the White Whale Dreaming. She has also learnt from Law Women and Law Men in the Kimberley, Larrakia (Darwin), Anangu (NT), Waka Waka & Gubi Gubi (Qld), Yuin (NSW) and Wiradjuri (NSW) as well as from her elders in Adnyamathanha, Banggarla, Mirning and Arabana country (SA).” 96 [2023] SAMC 98 at [280]. 97 [2023] SAMC 98 at [268]. -- 42 of 55 -- [2025] SADC 14 41 • publicly claiming to conduct a men’s lore program, sacred women’s initiation ceremonies through the Flinders Ranges. The applicant posted the following statement on her Grandmother Mulara Facebook page: “After 6 weeks on the road, journeying through the Flinders Ranges, Adelaide Hills, country NSW, conducting a men’s lore program, sacred women’s initiations, and ceremonies, I returned home to Qld…” At trial the applicant did not deny posting the above statement but said she had ‘misstated’ her role in this Facebook post and was only the coordinator. I considered the applicant was untruthful about her role in light of other public statements made by the applicant about her programs. For example, the applicant promoted the ‘stunning unique Men’s Lore program’ … ‘returning by popular demand’ and the Artu Circles on her Grandmother Wisdom’s website; • claiming to open the portals at Grid Point 44 during the 2013 HATW event; • wearing a red headband while engaging in her spiritual practices while identifying as Adnyamathanha; and • posting the video on her YouTube account which suggested that the song was part of Adnyamathanha ‘Muda’ based on Uncle Ken’s status as a Senior Law Man and his cultural authority when the applicant knew that the last initiation ceremonies were held in 1947 and Uncle Ken had only reached the first stage. 166 I am unable to agree that the matters identified in the above passage from the Magistrate’s judgment demonstrate that the applicant “mocks Adnyamathanha culture”. 167 The word “mock” carries a specific meaning – in this context, the closest meaning provided by the Shorter Oxford Dictionary is “hold up to ridicule, deride with scornful words or gestures; scoff at; use ridicule; act or speak so as to show scorn; jeer.” 168 The most that has been established is that the applicant showed a disregard to the wishes of some Adnyamathanha people by her spiritual practices on Adnyamathanha Land. The evidence accepted by the Magistrate was that the applicant sought to present herself as an Adnyamathanha person who had undertaken learning in relation to Adnyamathanha culture to the extent that she had established herself as an elder in their community. She presented herself as respectful of Adnyamathanha culture rather than a person who mocks it. 169 In my view, the Magistrate’s ruling that this imputation was substantially true cannot stand. 170 As to the defence of contextual truth, I consider that this imputation does further harm to the applicant’s reputation, so this defence also fails. Finally, the defence of honest belief also fails because it cannot be said that the imputation is based on proper material as required by s 29(5) of the Defamation Act 2005. -- 43 of 55 -- [2025] SADC 14 42 Third Imputation 171 This was that Ms Topez ‘should be ashamed for taking advantage of Adnyamathanha people’. This was essentially the same imputation as the First Imputation discussed above. For the same reasons, the Magistrate also held that this imputation was substantially true. For the reasons I expressed in relation to the First Imputation, I am unable to agree with this conclusion. There is no evidence that the applicant was taking advantage of anyone. For the same reasons as I gave in relation to the First Imputation, the defence of justification, contextual trust and honest belief must fail in relation to the Third Imputation. Fourth Imputation 172 This is that the applicant is a worthless person who does not deserve support and should be disrespected as “white trash” and/or “dirty bitch”. 173 The Magistrate formed that the imputation did arise from the words used in the Third Publication. I agree. However, her Honour held that although the imputation is offensive and vulgar, it was not defamatory.98 She noted that “white trash” is a colloquial and derogatory term for very poor white people, and that “bitch” is a general term of abuse for women.99 174 I refer back to the Magistrate’s outline of the elements of defamation, and, in particular, element 5, which requires that the publication bears a defamatory meaning. Her Honour said, quoting Radio 2UE Sydney Pty Ltd v Chesterton:100 “A publication is defamatory if the words convey a meaning, or assert or attribute an act or condition … to a person which should tend to cause ordinary, reasonable people to think less of the person about whom the words are published. The defamatory nature of the imputation is ascertained by reference to general community standards, not by reference to sectional attitudes.” “The concept of “reputation” in the law of defamation comprehends all aspects of a person’s standing in the community. A person’s reputation may be injured if the words hold the person up to contempt, scorn or ridicule, or tend to exclude him or her from society. The Court may also assess whether any imputation is likely to cause others to shun or avoid the applicant.” 175 In Defamation Law in Australia (quoted earlier),101 Mr George writes: “It has become quite common for material to be published, particularly on social media, in an abusive, menacing or threatening way. Words can be abusive, vulgar or objectionable without being defamatory. Words might injure a person’s pride without injuring his or her reputation.” 176 If the imputation was confined to the words “white trash” and “dirty bitch”, it may be that they were merely “abusive, vulgar and objectionable” without 98 [2023] SAMC 98 at [251]. 99 [2023] SAMC 98 at [253]. 100 [2009] HCA 16. 101 [11.6]. -- 44 of 55 -- [2025] SADC 14 43 injuring the applicant’s reputation. However, when these words are uttered in the context of an imputation that the applicant is a “worthless person who does not deserve support and should be disrespected”, I consider that the imputation has crossed the line into defamation. 177 The Magistrate did not deal with the defences of justification, contextual truth or honest belief in relation to this imputation. It seems unlikely that an imputation couched in such vulgar language could ever be proven by the respondent to be substantially true, except in an extreme case. That is not so in this case. The same applies to the defences of contextual truth and honest belief. 178 I conclude that the eighth respondent, Mr Dumell, has no defence to this defamatory imputation. 179 The Magistrate’s dismissed of the action against Mr Dumell is also rescinded. Fourth (Clayton Cruse) Publication 180 This concerns a letter written by the ninth respondent, Mr Clayton Cruse. Mr Cruse is also a nephew of the second respondent, Mr Vincent Coulthard. The letter was sent to members of the ATLA Special Advisory Board, on 01 July 2020 and was in the following terms:102 Nangga Urrunha Sorry for the late notice, but I am also an apology for today’s meeting – I will be teaching at that time. I also look forward to reading about the discussion that will take place. For what it is worth, I believe we need to find a time and place to talk about ALL things Adnyamathanha, which seems to be the desire of the advisory group. With COVID restrictions easing, is a face-to-face meeting possible later this year Bevan and Brian? With this in mind, I believe the below needs to be discussed openly and honestly – outside of the governance of any new ATLA: 103 - Debra Nanschild • This woman has had a tremendously negative impact on both ATLA, in terms of finances (court proceedings), as well as individuals and families. There are Adnyamathanha people who have had their financial and family lives turned upside down trying to hold this woman – and those within the Adnyamathanha community who support her – to account. She has cost ATLA tens of thousands of dollars, with people using ATLA monies to finance their court cases. Personally, she has had my house valued, for what purpose I can only imagine. • I would like to discuss and make public (to ATLA Members) the names of all Adnyamathanha people who have had dealings with this woman, in terms of 102 The words complained of are in bold type. 103 [2023] SAMC 98 at [16]. -- 45 of 55 -- [2025] SADC 14 44 supporting her to undermine our Nation. Alternatively, anyone who has been involved with Nanschild should NOT be able to fill positions on any new ATLA. It should be noted that Nanschild is what is referred to as a ‘new age fraud’ and is/was in court proceedings for the same issues with Aboriginal people and groups in NSW. If she is Adnyamathanha, why won’t she produce heritage documents that would clarify this? • I am also aware that there may very well be people on the advisory group who were/are involved with Nanschild, and I believe that if this is the case, then those individuals’ positions on any new ATLA is fraught, and they should be removed. We need to be a united people. We are not currently united, and there are many reasons for this. If we cannot talk about these things openly and honestly, and in a safe space where people will not be issued with notices from individuals’ lawyers for speaking their mind, then we are failing ourselves as a group. While I will not be present today to discuss my concerns with you all, I will be using my position to raise these again, when I see fit. I hope the discussion today goes well. Sincerely Clayton 181 Ms Topez claims that the letter carried five false and defamatory imputations about her. These were: 1. The applicant has deliberately set out to cause detriment to ATLA and financial and emotional stress to its members; 2. the applicant had a hidden financial motive against Mr Cruse; 3. the applicant has deliberately undermined the Adnyamathanha community and other indigenous communities in New South Wales; 4. the applicant is a fraud who sets out to take advantage of vulnerable indigenous communities to her own benefit and their detriment; 5. the applicant is so dangerous and detrimental to the Adnyamathanha people that anyone who has associated with her should be prevented from participation in ATLA’s future governance. 182 The Magistrate held that each of these five implications arose from the letter, and was defamatory. Her Honour said: 104 I consider that each of the Cruse imputations bear a defamatory meaning. The imputations assert that the applicant is dishonest and vindictive and behaves in a manner intended to cause harm to ATLA, the Adnyamathanha community and other indigenous communities in NSW to obtain some advantage or benefit and/or to cheat or deceive those communities. 104 [2023] SAMC 98 at [274]. -- 46 of 55 -- [2025] SADC 14 45 These traits and behaviours would tend to cause ordinary reasonable people to think less of the applicant when assessed against the standards of the general community who place high value on honesty and integrity and who would expect the applicant to be respectful and not to seek to cheat or deceive First Nations people. 183 I agree with the Magistrate that these imputations arose from the publication and were defamatory of the applicant. 184 Mr Cruse pleaded defences of justification, contextual truth, qualified privilege, and fair comment on a matter of public interest in relation to all five imputations alleged by the applicant. 1. Justification The Magistrate held that, in relation to each of the five imputations, she was not satisfied that the imputation was substantially true: a. as to the first imputation, that the applicant had deliberately set out to cause detriment to ATLA and financial and emotional stress to its members – her Honour held that she was not satisfied, to the Briginshaw standard, that the applicant deliberately set out to cause financial and emotional stress to ATLA’s members, even if that was a likely consequence of her actions;105 b. as to the second imputation, that the applicant had a hidden financial motive against Mr Cruse – her Honour held that the alleged fact upon which this imputation was based, that the applicant had obtained a valuation of his house, had not been proved;106 c. as to the third imputation, that the applicant had deliberately undermined the Adnyamathanha community and other indigenous communities in New South Wales – her Honour held that although the applicants’ spiritual practices had the potential to undermine these communities, it had not been proved that the applicant had deliberately acted with that intention;107 d. as to the fourth imputation, that the applicant is a fraud who set out to take advantage of vulnerable indigenous communities for her own benefit and their detriment – her Honour held that it had not been proved that the applicant had acted deliberately or with the intention to take advantage in the manner described;108 and e. as to the fifth imputation, that the applicant was dangerous and detrimental to the Adnyamathanha people that anyone who has 105 [2023] SAMC 98 at [280]. 106 [2023] SAMC 98 at [283]. 107 [2023] SAMC 98 at [286]. 108 [2023] SAMC 98 at [290]. -- 47 of 55 -- [2025] SADC 14 46 associated with her should be prevented from participating in ATLA’s future governance – her Honour held that this allegation had not been proved either, having regard to the seriousness of the allegation.109 185 I agree with the Magistrate that none of these imputations had been proven to be substantially true. 2. Contextual Truth The Magistrate held that the following “contextual imputations” arose from the fourth imputation, that the applicant is a fraud who set out to take advantage of vulnerable indigenous communities for her own benefit and their own detriment:110 a. the applicant holds herself out to be an Adnyamathanha person without a proper basis to do so for personal gain; b. by holding herself as an Adnyamathanha person, the applicant misrepresents her personal spiritual beliefs as being part of Adnyamathanha culture in a way which is offensive, and potentially damaging to its future existence; and c. the applicant makes misrepresentations abhorrent to Adnyamathanha people that she can teach men’s law. 186 I do not accept that these “contextual imputations” arise form the Cruse’s publication. The allegation in subparagraph 2.1 is inconsistent with the Magistrate’s earlier finding that it had not been proved that the applicant is a fraud motivated by financial gain, and the others do not arise from the publication but from the general evidence in the trial. This is contrary to the requirements of s 24(a)(1)(b) of the Defamation Act 2005, which provides that the contextual imputation must arise from the particular prohibition complained of. 187 Furthermore, I do not accept that the defamatory imputations of which the applicant complains do not further harm the reputation of the applicant because of the contextual truth of the imputations, as is required by s 24(a)(1)(b) of the Act. The defamatory matters complained of are much more serious and clearly do further harm to the reputation of the applicant. 188 As to the applicant’s complaint that the contextual imputations identified by the Magistrate were not raised during the hearing, this may be so but they were pleaded in Mr Cruse’s defence111 so they were before the court. I reject the applicant was denied procedural fairness in relation to this matter. 109 [2023] SAMC 98 at [291]. 110 [2023] SAMC 98 at [294]. 111 FDN 77, [26.6]. -- 48 of 55 -- [2025] SADC 14 47 189 I conclude that the defence of contextual forth does not arise in these circumstances. 3. Honest Opinion 190 This defence was not considered by the Magistrate since her Honour upheld his contextual truth defence. Section 29(1) of the Defamation Act requires for such a defence to arise, the defamatory material must consist of an expression of an opinion rather than a statement of fact; that it relates to a matter of public interest; and it is based on “proper material”. The “proper material” upon which the opinion is based must be either substantially true, or published on an occasion of absolute or qualified privilege, or was contained in a public document, or was a fair extract from a public document, or was a fair report of any proceedings of public concerns.112 191 In my view, the defamatory material in Mr Cruse’s publication does not fit any of the categories set out in s 29(1) of the Defamation Act, and so the defence does not arise. Qualified privilege 192 As to the defence of qualified privilege raised by Mr Cruse, his pleadings113 raised the following matters:- • Mr Cruse was a member of the ATLA Advisory Board; • The letter was sent only to the other members of the ATLA Advisory Board, the administrators of ATLA and their legal counsel; • The recipients had an interest in receiving the information about the applicant as she had been a party to the previous litigation concerning ATLA and its directors; • The letter contained information about the governance of ATLA: • The recipients were under a duty of confidentiality in relation to the information in the letter; • The letter was an expression of Mr Cruse genuine concerns 193 Section 28A of the Defamation Act provides:- 28—Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that— 112 Defamation Act 2005 (SA) s 29(5), s 26, s 27. 113 Amended defence, FDN 77, [26.7]. -- 49 of 55 -- [2025] SADC 14 48 (a) the recipient has an interest or apparent interest in having information on some subject; and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account the following factors to the extent the court considers them applicable in the circumstances: (a) the seriousness of any defamatory imputation carried by the matter published; (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; (c) the nature of the business environment in which the defendant operates; (d) whether it was appropriate in the circumstances for the matter to be published expeditiously; (e) any other steps taken to verify the information in the matter published. (3a) Subsection (3) does not— (a) require each factor referred to in the subsection to be taken into account; or (b) limit the matters that the court may take into account. (3b) It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege under subsection (1). 194 Having regard to the matters contained in s 28(3) above, I consider that, in all of the circumstances, the conduct of Mr Cruse in publishing the material was reasonable. I do so with considerable hesitation, particularly having regard to my conclusions as to Mr Cruse’s other defences, but the circumstances where a duty of confidentiality existed, more latitude should be extended them would be appropriate of Mr Cruse had published the letter more widely. 195 I conclude that the other requirements of s 28(1) and (2) of the Defamation Act have also been met. 196 I uphold the defence of qualified privilege in relation to Mr Cruse’s letter. The applicants claim against Mr Cruse should be dismissed. -- 50 of 55 -- [2025] SADC 14 49 Outcomes 197 To summarise my findings, in relation to each alleged imputation: 1. As to the publication by the second respondent, Mr Vincent Coulthard: a. As to the first alleged imputation, that the applicant made deliberately false accusations about Mr Coulthard’s conduct while on the board of ATLA with a view to damaging his reputation and that of ATLA – I agree with the Magistrate that the imputation was defamatory. I also agree that the imputation was substantially true; b. As to the second alleged imputation, that the applicant was a member of a reform group that was deliberately spreading lies about Mr Coulthard and ATLA, I agree with the Magistrate that the publication does not sufficiently identify the applicant, and so the imputation does not arise; c. As to the third alleged imputation, that the applicant caused ATLA to be placed in an unjust and unwarranted special administration by spreading lies and rumours about Mr Coulthard and ATLA – I agree with the Magistrate that the imputation does not arise from the publication; d. As to the fourth alleged imputation, that the applicant had embarked upon a course of conduct aimed at harming ATLA and its old people as retribution for being prevented from carrying out spiritual practices in Adnyamathanha Land. The Magistrate held that after deleting the words “and its old people”, the imputation did arise and was defamatory of the applicant. I also agree that the imputation, as amended, was substantially true. e. As to the fifth imputation, that the applicant has been the subject of many adverse court decisions which confirm that she spreads lies about Mr Coulthard and ATLA – I agree with the Magistrate that Mr Coulthard had not proved that this imputation was substantially true. However, I do not agree that this imputation does no further harm to the applicant’s reputation. In my view, Mr Coulthard’s defence of contextual truth should fail, as should his defence of fair comment or honest opinion. 198 For these reasons, the Magistrate’s order that the claim against Mr Coulthard should be dismissed is rescinded and in its place there will be an order that the applicant’s claim against Mr Coulthard, in relation to the fifth imputation, is upheld. -- 51 of 55 -- [2025] SADC 14 50 2. As to the publication by the seventh respondent, Ms Coulthard-Waye: a. as to the first alleged imputation, that the applicant was knowingly lying about being an Adnyamathanha person – I agree with the Magistrate that this imputation arose from the publication and was defamatory of the applicant. However, I disagree with the Magistrate’s conclusion that Ms Coulthard-Waye had proved that she was knowingly lying about her Adnyamathanha descent. In my view, Ms Coulthard-Waye’s defence of substantial truth fails in relation to this imputation. I also conclude that her defences of contextual truth and fair comment / honest opinion also fail. 199 For these reasons, the Magistrates order that the claim against Ms Coulthard- Waye should be dismissed should be set aside, and in its place there will be an order that the applicant’s claim against Ms Coulthard-Waye, in relation to the first imputation, is upheld. b. as to the second imputation, that the applicant was carrying out female circumcision as part of the women’s initiation ceremony – I agree with the Magistrates finding that the imputation that the applicant was performing female circumcision does not arise from the publication; 1.3 as to the third imputation, that the applicant was “willingly and knowingly” in disregard for the wishes of all Adnyamathanha people by planning on conducting spiritual practices on Adnyamathanha Land which should not be permitted – I agree with the Magistrate that this imputation arose from the publication and was defamatory of the applicant. I also agree with the Magistrate that Ms Coulthard-Waye has proved that this imputation was substantially true. 1.4 as to the fourth imputation, that the applicant is a person who poses such a risk to the locals in other places where she may reside that they need to be warned about her – the Magistrate held that this imputation did not arise from the publication. I agree. 3. As to the publication by the eighth respondent, Mr Nicholas Dumell: a. as to the first alleged imputation, that the applicant was taking advantage of a respected Adnyamathanha Law man, the Magistrate held that this imputation did arise and was defamatory of the applicant. I agree. However, I do not agree that Mr Dumell had proved that this imputation was substantially true. The dismissal of the applicants’ claim against Mr Dumell is set aside and in its place there will be an order that the applicants’ claim based on the first imputation is upheld. b. as to the second alleged imputation, that the applicant mocks Adnyamathanha culture, the Magistrate accepted that this imputation arose from the publication and was defamatory. I agree. However, I do -- 52 of 55 -- [2025] SADC 14 51 not agree that Mr Dumell proved that this imputation was substantially true, or that the defences of contextual truth or honest belief / fair comment, avail the respondent. Like the first imputation, the ruling should be that the applicant’s claim in relation to this claim in also upheld. c. as to the third imputation, the outcome should be the same as for the first imputation. The third alleged imputation was that the applicant should be ashamed for taking advantage of Adnyamathanha people. For the same reasons, the defences of justification, contextual truth and fair comment / honest belief do not avail the respondent. d. as to the fourth alleged imputation, that the applicant is a worthless person who does not deserve support and should be disrespected as “white trash” and/or “dirt bitch”, the Magistrate held that the imputation did arise but was not defamatory. I disagree. I also conclude that the defences of justification, contextual truth and fair comment /honest belief do not arise. The applicants claim based on this imputation is also upheld. 4. As to the publication by the ninth respondent, Mr Clayton Cruse: a. As to the first alleged imputation, that the applicant has deliberately set out to cause detriment to ATCA and financial and emotional distress to its members – the Magistrate held that the imputation did arise from the publication and was defamatory. Her Honour also held that he was not satisfied that the imputation was substantially true. Her Honour held that the defence of the contextual truth was established by Mr Cruse. I do not agree with this conclusion. I also conclude that the defence of fair comment I haven’t relief was not available to Mr Cruse either. b. As to the second alleged imputation, that the applicant had a hidden financial motive against Mr Cruse, the outcome is the same as in [4.1] above. c. As to the third alleged imputation, that the applicant has deliberately undermined the Adnyamathanha community and other indigenous communities in New South Wales, the outcome is the same as in [4.1] above. d. As to the fourth alleged imputation, that the applicant is a fraud who sets to take advantage of vulnerable indigenous communities to her own benefit and their detriment, the outcome is the same as in [4.1] above. e. As to the fifth alleged imputation, that the applicant is so dangerous and determined to the Adnyamathanha people that anyone who has associated with her should be prevented from participation in ATLA’s future governance, the outcome is also the same. -- 53 of 55 -- [2025] SADC 14 52 200 For these reasons, I consider that the Magistrate’s orders in relation to Mr Cruse should be upheld. The action against Mr Cruse should be dismissed. Damages 201 In light of the fact that the applicant has established that three of the four respondents has defamed her on the basis that at least one defamatory imputation arose from each of their publications, I must consider the applicant’s claim for damages, having regard to the fact that the jurisdictional limit of the court in minor civil claims is $12,000.114 202 The applicant has chosen to join separate and distinct causes of action against each of the three respondents who are liable in damages in this action. This is permissible under s 8(1) of the Magistrates Court Act.115 Having done so, the applicant is entitled to recover no more than $12,000, no matter what the total of damages against the respondents might have been.116 203 It is clear from the evidence in this case that a substantial number of the defamatory imputations arising from the respondents’ publications have been found to have been substantially true. 204 The damage to the applicant’s reputation as a result of these imputations is substantial. However, the defamatory imputations for which the respondents have no defence were also serious and damaging. It is necessary that I assess the total damages which should be paid to the applicant in relation to them. It is clear to me that each of the respondents would have been liable for damages to the applicant in an amount which would exceed $12,000. 205 It is therefore just, in my view, that I make an award of damages to the applicant in the sum of $12,000 for which each of the three respondents is jointly and severally liable. Costs 206 This is an unusual case, and I have outlined my concerns about adjudicating upon the cultural and spiritual matters which form the background to these proceedings earlier in these reasons. 207 In these unusual circumstances, I consider that it is appropriate to make no order for costs of the proceedings. Each party should bear their own costs. 114 Magistrates Court Act, 1991 (SA) s 3(2). 115 Verco v State Corporation No 2822 [2005] SASC 403 at [22] per Bleby J. 116 Verco, at [25]. -- 54 of 55 -- [2025] SADC 14 53 Orders 1. Pursuant to s 38(7)(d)(ii) of the Magistrates Court Act, 1991 (SA), the judgment of Magistrate Vozzo delivered on 31 July 2023 in (2023) SAMC 98 is rescinded, and in lieu thereof I order that there be judgment in favour of the applicant in the sum of $12,000.00 against the second, seventh and eighth respondents jointly and severally; 2. The Magistrate’s dismissal of the action against the ninth respondent is affirmed; 3. Each party to bear their own costs. -- 55 of 55 --