BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111

DISTRICT COURT OF QUEENSLAND CITATION: BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111 PARTIES: BEAUTYFULL CMC PTY LTD ACN 155 002 627 (first plaintiff) and MARK SCRUTON SOWDEN (second plaintiff) and KATE SCRUTON BELCHER (third plaintiff) and MARGARET JOANNE SCRUTON (fourth plaintiff) v CLAIRE ELIZABETH HAYES (defendant) FILE NO: 2222/2020 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 16 June 2021 DELIVERED AT: District Court at Brisbane HEARING DATE: 15 and 16 March 2021 JUDGE: Reid DCJ ORDER: 1. Judgment for the 1st plaintiff in the sum of $20,660. 2. Judgment for the 2nd plaintiff in the sum of $20,660. 3. Judgment for the 3rd plaintiff in the sum of $12,912. 4. Judgment for the 4th plaintiff in the sum of $30,990. 5. The defendant, whether by herself, her servants or agents is prohibited from causing to be published whether orally or in writing or by email or electronic means, or by way of publication on any social media platform such as but not limited to Facebook, Instagram, Twitter, TikTok, Reddit, any -- 1 of 30 -- 2 publication which has the effect of defaming the first, second, third or fourth plaintiffs. 6. I will hear submissions as to costs. CATCHWORDS: DEFAMATION – INJUNCTIONS – where publications complained of distributed on social media platforms – where plaintiffs sought injunction to restrain defendant from distributing further publications – where imputations alleged in publications were intentionally false – where injunction granted DEFAMATION – DAMAGES – where plaintiffs sought aggravated and compensatory damages – whether conduct of defendant improper or unjustifiable – whether reasonable reader likely to give social media post credence – where plaintiffs incurred injury to reputation, public hurt and embarrassment – where damages awarded LEGISLATION: Civil Proceedings Act 2011 (Qld) s 58 Defamation Act 2005 (Qld) s 9, 25, 33, 36, 38 CASES: Brose v Baluskas & Ors (No 6) 2020 QDC 15 Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89 Gluyas v Junior 2013 VSC 3 Hocken v Morris [2011] QDC 115 Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 COUNSEL: A P J Collins for all plaintiffs The defendant was self-represented SOLICITORS: McInnes Wilson Lawyers for all plaintiffs Introduction [1] Each of the plaintiffs sues the defendant for damages, including aggravated and compensatory damages, together with interest, and seeks an injunction restraining her from further publishing any defamatory publication concerning them. There are four allegedly defamatory publications. What is called the first publication is said to be defamatory of the first and fourth plaintiffs. The second publication relates to all plaintiffs and the third and fourth publications, which are themselves closely related in time, relate only to the second and third plaintiffs. The defendant defends the matter on a number of grounds, including that the publications pleaded are not defamatory of the plaintiffs, or any of them. Furthermore, the defendant pleads that publication of the first and second publications, if defamatory of one or more of the plaintiffs, -- 2 of 30 -- 3 was justified under s 25 of the Defamation Act (“the Act”) as it was substantially true.1 In relation to the third and fourth publications, the defendant makes similar pleas but also pleads the defence of triviality under s 33 of the Act. [2] Many of the matters pleaded in the plaintiffs’ case were admitted in the defence, deemed to be admitted because of the defendant’s failure to respond to a notice to admit facts, or are undisputed on the evidence. Background [3] The first plaintiff conducts a cosmetic medical clinic, referred to as BeautyFULL. It is an “excluded corporation” within the meaning of s 9(2) of the Act. The second plaintiffs is currently the company’s sole director, secretary and manager. The fourth plaintiff is the mother of the second and third plaintiffs and is a general practitioner of significant experience, having been first registered as a medical practitioner in 1978. BeautyFULL was founded by the third and fourth defendants in January 2012. The fourth plaintiff at all times owned one third of the business. She was a director of the first plaintiff until she resigned from that role on 25 December 2018. The third plaintiff is a nurse and works in the clinic. She was until 25 December 2018 also a director but on that date resigned from that role. The third plaintiff is trustee for a family trust which owns two thirds of the shareholding of the first plaintiff. [4] Since about 1998, the fourth plaintiff has also worked as a general practitioner at a clinic in Morningside. She gave evidence that in that role, she had referred a number of patients for COVID-19 tests prior to the end of March 2020. [5] The defendant was employed by the first plaintiff as a receptionist at the clinic from 15 August 2016 to 16 October 2018. She is now the partner of Guy Belcher who was, until 2018, married to the third plaintiff. Mr Belcher was until 17 July 2018 a director of the first plaintiff. [6] Shane Mundey has been a client of BeautyFULL since 19 August 2019 and was at least in May 2020 in a relationship with the third plaintiff. [7] In 2018, the defendant had an Instagram account with 1,844 followers. The first plaintiff also conducted its own Instagram account with 19,700 followers. 1 Defamation Act 2005 (Qld). -- 3 of 30 -- 4 [8] After the defendant left her employment with the first plaintiff in October 2018, she has had some ongoing mental health issues including periods of hospitalisation. [9] It can be seen that the parties’ personal circumstances were such that there was significant potential for disagreement. The first publication [10] Prior 30 March 2020, the first plaintiff’s Instagram account included images of the fourth plaintiff, widely known to customers of BeautyFULL and of the Morningside clinic as Dr Margaret. It also included images of the third plaintiff. An image of the fourth plaintiff was uplifted onto the BeautyFULL Instagram account at about that time with the caption: “Dr Margaret serving during COVID-19.” A trophy, such as one might receive for winning a sporting competition, was below it, presumably to indicate to those who viewed the post that the first plaintiff and those involved in the company were proud that the fourth plaintiff was “serving during COVID-19.” [11] The fourth plaintiff had at that time either stopped work, or was about to stop working, in the BeautyFULL clinic, which closed its doors at about that time due to the effect of COVID-19 and the then Government regulations. The reference to her serving during COVID-19 was said in her evidence, and that of the second plaintiff, to be a reference to her working at the Morningside clinic to which I earlier referred. She did refer patients at that clinic for testing for COVID. [12] For some reason, the defendant took exception to the Instagram post. I have no doubt her doing so was motivated by unexplained anger and resentment towards BeautyFULL and those associated with it, including the second, third and fourth plaintiffs. The defendant did not however give evidence at the trial and so the reason for her taking exception to the post was never properly explained. [13] It is not disputed that on or about 30 March 2020 the defendant caused to be posted on her Instagram account the same photo of the fourth defendant, taken by her from the first plaintiff’s Instagram post. In the defendant’s post, the face of the fourth defendant has been blacked out, although her hair is still visible and the word -- 4 of 30 -- 5 “Margaret”, although ruled through, was very clearly still able to be read. The ruling through of her name did nothing to disguise the fact that the photo was of “Dr Margaret”. [14] The defendant’s post of the fourth defendant was part of a “story” by the defendant on Instagram. The defendant in that story next published the following comment: “Before you watch my story I am not naming and shaming but when I see a company upload a FAKE photo that a medical practitioner is going to work on the frontline during the Covid-19 crisis, it’s disgusting and disrespectful to the people who are actually putting their lives at risk to save others.” [15] The defendant’s story then included three photographs of the third plaintiff , extracted from the first plaintiff’s Instagram page, together with partial signage of the first plaintiff’s BeautyFULL logo. The defendant then posted the following words: “The same uniform was given to one of the staffs mother to wear and fake it that she’s working on the frontline. How do I know this?” [16] There is then this further post: “Because I used to work there and I ordered the uniforms off www.springspawear.com”. [17] The defendant then posted: “I would love to thank the REAL hero’s that are working day and night to save lives.” Followed by the words: “CORONAVIRUS (COVID-19) it’s such a serious situation that I don’t understand why a company would lie about it.” [18] That story, posted by the defendant, is referred to as the first publication. [19] Despite the defendant’s assertion that she was not “naming and shaming” it appears to me that this is exactly what she intended by her story. [20] A feature of Instagram, and other social media platforms, is that they are often infected by personal grievances aired in an obnoxious manner and are often not a reliable source of information. In this regard, see the observations of Muir DCJ in -- 5 of 30 -- 6 Brose v Baluskas & Ors (No 6) 2020 QDC 15.2 That is, in my view, of particular relevance in this case. It is less probable that people who read the defendant’s story – or her other posts to which I shall subsequently refer – would accept the truth of what she wrote than if it had been published on a more reliable platform such as in a newspaper, a media outlet’s Instagram account or respectable blog. In short, a reasonable reader is unlikely to have given the defendant’s posts much credence because of the very manner she expressed herself on a social media platform. [21] There is no doubt that the defendant intended readers of her Instagram story, especially those who might also be familiar with the plaintiffs, or any of them, to know that the photo of the doctor shown in the first of the photos in the first publication and whose “serving during COVID-19” had been lauded in the first plaintiff’s post, was the fourth plaintiff and that the business involved was BeautyFULL. [22] The plaintiff pleads extrinsic facts relevant to the first publication. These are the subject of a non-admission in the amended defence but in any case, are all established by the evidence. They are: (a) The fourth plaintiff was a registered medical practitioner; (b) The fourth plaintiff actively participated in and conducted medical services as part of her engagement with the first plaintiff; (c) The fourth plaintiff was publicly associated with the first plaintiff’s business; (d) The fourth plaintiff was promoted by the first plaintiff and known by customers of the business of the first plaintiff and members of the public as “Dr Margaret”; (e) The first plaintiff’s website and social media contained a photograph and testimonial of the fourth plaintiff; (f) The photograph referred to in the defendant’s story was of the fourth plaintiff; (g) The fourth plaintiff was frequently associated with, and provided services to, customers of the first plaintiff; and 2 Brose v Baluskas & Ors (No 6) 2020 QDC 15 at [69]. -- 6 of 30 -- 7 (h) As at the date of publication, there existed in Australia a pandemic generally known as the COVID-19 crisis. [23] Whilst the appropriate test is whether an ordinary, reasonable person with knowledge of the extrinsic facts would have reasonably understood the publication as referring to the fourth plaintiff, and by association the first plaintiff also, evidence of people in fact understanding that the publication referred to those plaintiffs, including hearsay evidence of that understanding, is admissible. [24] I readily conclude an ordinary reasonable person with knowledge of the extrinsic facts set out earlier would have concluded the publication referred to the fourth plaintiff, and also by association the first plaintiff. The evidence at the trial of each of the second and fourth plaintiffs and of a witness, Camille Teairiki, confirm they each so concluded, as did persons who the second and fourth plaintiffs spoke to about the publication. I accept the truth of those witnesses evidence about such matters. I also accept that a number of abusive messages were left on the first plaintiff’s Instagram and Facebook accounts but were deleted, understandably, by the second plaintiff who did not want them to remain there. Those messages included that those who left them thought, because of the defendant’s publication, that the first and fourth defendant had engaged in inappropriate conduct. I repeat however what I said earlier about a reasonable reader, whilst concluding the post related to the first and fourth plaintiffs, would not give it much credence. [25] In circumstances where the defendant had worked in the first plaintiff’s business for over two years, up to October 2018, it was likely that some of the defendant’s followers knew of BeautyFULL and may have themselves been followers of the first plaintiff’s Instagram account. I accept, as I have indicated, the evidence of the second plaintiff that following the post by the defendant, he was contacted by a number of people indicating they had made a connection between the defendant’s post and the first plaintiff’s business. I also accept that the fourth plaintiff was spoken to by a number of her work colleagues at the Morningside clinic who also drew that connection after reading the defendant’s story. [26] The plaintiffs plead in paragraph 12 of the statement of claim that the natural and ordinary meaning of the first publication communicated the following imputations concerning the first plaintiff: -- 7 of 30 -- 8 (a) That the first plaintiff has caused an entirely fabricated representation to be made that the fourth plaintiff, as a medical practitioner, was involved in the frontline in the COVID-19 crisis; (b) That the first plaintiff had fabricated a photograph to be uploaded on the first plaintiff’s social media for the purposes of promoting the first plaintiff’s business; (c) That the first plaintiff knowingly caused the dishonest representation to be made that employees or associates of the first plaintiff had falsely asserted that the plaintiff, being a medical practitioner, was at the forefront of dealing with the COVID-19 crisis when she was not; (d) That the first plaintiff had dishonestly taken advantage of the existence of the COVID-19 crisis to cause a knowingly false representation to be made as to its activities for commercial gain or publicity; (e) That during the COVID-19 crisis, it engaged in conduct which was disgusting and disrespectful to the people who were actually putting their lives at risk to save others. [27] Additionally, in paragraph 14 of the statement of claim it is alleged the publication communicated similar imputations concerning the fourth plaintiff together with the additional imputation: “That the fourth plaintiff engaged in unethical conduct as a medical practitioner by permitting herself to be the subject of a promotion about her professional activities which the fourth plaintiff knew to be fake”. [28] In such circumstances, it is said the first publication was defamatory of both the first and fourth plaintiffs, causing damage to their reputations and, in relation to the fourth plaintiff, public hurt and embarrassment. [29] In the amended defence, the defendant admits the first publication as pleaded in the statement of claim but denies the publication was known to those possessed of the extrinsic facts set out in the statement of claim to be referenced to the first or fourth plaintiffs. I do not accept that to be so for the reasons I have set out herein. -- 8 of 30 -- 9 [30] Whether the pleaded imputations are established is addressed by considering whether an ordinary and reasonable reader of the defendant’s Instagram story would have understood the publication conveyed those meanings. The ordinary and reasonably reader was described by Kaye J as:3 “Someone who is not “avid for scandal”, and who is neither “unusually suspicious nor unusually naïve”. Equally, the hypothetical “ordinary reasonable” reader has been described as an ordinary person, who does not live in an ivory tower, and who reads between the lines in light of his or her general knowledge and experience of worldly affairs. Thus, the ordinary reasonable reader does engage in a degree of loose thinking. In this respect, it is important to bear in mind that the ordinary reasonable reader is a lay person, and not a lawyer, and such a person has a much greater capacity for implication than a lawyer. On the other hand, it is necessary to bear in mind the distinction between the reader’s understanding of what the article is stating, and a judgment or conclusion, which the reader may reach as a result of his or her own beliefs and prejudices, after reading the article; the defamatory quality of the material is to be determined by the former, and not the latter, proposition.” [31] Courts do not take a narrow view of the meanings conveyed to reasonable readers.4 [32] In my view, the defendant’s denial that the first publication was of and about the first and fourth plaintiffs is absurd. The words “Dr Margaret” are clearly able to be read in the defendant’s story. The purpose of drawing a thin line through the word “Margaret” in her post is baffling since it did nothing to hide that name from readers. The fourth plaintiff was widely associated with the BeautyFULL business conducted by the first plaintiff and was also widely known to customers of that business, and of the Morningside clinic, by that name. I have no doubt that the defendant intended to post the story so as to identify the fourth defendant as the doctor referred to. She clearly knew readers of her story who knew, or knew of, the fourth plaintiff would conclude correctly, that she was referring to a post of the fourth plaintiff. I find also there were significant numbers of persons who read her post and who knew or knew of the fourth plaintiff and of her connection to BeautyFULL. 3 Gluyas v Junior 2013 VSC 3 at [22]. 4 Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 per White J at [68]. -- 9 of 30 -- 10 [33] The defendant’s post was incorrect in at least two material ways. The post of the fourth plaintiff by the first plaintiff did not assert that the fourth plaintiff was “going to work on the frontline during the COVID-19 crisis” as the defendant asserted. It is said only that she was “serving during COVID-19.” In my view, that post by the first plaintiff would convey to an ordinary reasonable reader of the post that the fourth defendant was continuing to work as a doctor during the COVID pandemic. It says nothing about such work being “on the frontline,” whatever that term may mean. The photo is not in that regard “fake” as the defendant asserted. Secondly, the defendant’s assertion is in any case false because since at least 1999 the fourth plaintiff was working not only at BeautyFULL, but as a GP at the Morningside General Practice clinic and in that capacity had provided medical services in about March 2020 including referral of patients for COVID-19 testing. In that sense, she was “working on the frontline”. The defendant did not give evidence at the trial but it is very probable that she knew of the fourth defendant’s working at the Morningside clinic because of her own involvement at the BeautyFULL clinic. Almost certainly, she had knowledge of the fourth plaintiff’s work practices. [34] I have no difficulties in concluding that the first publication by the defendant concerned the first plaintiff and the fourth plaintiff and was defamatory of them. [35] It is necessary I consider the defendant’s pleaded defence of justification. It is alleged that each of the imputations pleaded in paragraphs 12 and 14 of the statement of claim is substantially true. These are the imputations earlier referred to in paras 26 and 27 hereof. [36] The onus in relation to such a defence rests on the defendant. The defendant led no evidence in support of that defence. [37] It is alleged in para 42(2) of the amended defence that: “The ordinary reasonable reader would have understood the photograph to mean that the Fourth Plaintiff was contributing to the public fight against COVID-19 by: (a) treating patients that had contracted that virus; (b) testing members of the public to ascertain whether or not they contracted that virus; -- 10 of 30 -- 11 (c) working in a public hospital or other public health facility to relieve the workload of other medical practitioners and/or nursing staff who were involved in providing frontline support for COVID-19.” [38] It is said the fourth defendant was not providing any of those services and was not “serving during COVID-19”. [39] As is apparent from what I have already said, in her role at the Morningside Clinic, the fourth plaintiff was treating patients who may have contracted COVID-19 or who were suffering symptoms consistent with having done so and was having such patients tested to ascertain whether or not they had contracted the virus. She was also working in a medical facility, being the general practice at Morningside, where she was involved in treating people such that other medical practitioners were relieved of some of their workload of treating such patients. I accept her evidence about such matters. [40] The assertion in the defence that the fourth plaintiff was not providing any of those services set out is therefore incorrect. [41] The assertion in the defence that the first plaintiff had published the photograph of the fourth plaintiff which was false and misleading, which had been fabricated and was used to promote the BeautyFULL business in a way which was dishonest, disgusting and disrespectful to people that were providing services in aid of the treatment of COVID-19 was without any foundation whatsoever. [42] The first plaintiff’s post of the fourth plaintiff does not convey the meaning which the defendant attributes to it. In my view, the publication would have meant to a reasonable reader only that she was working as a doctor during the pandemic. It did not necessarily mean that she was treating and referring patients with COVID-19 or relieving those who were doing so. Insofar as she was working in the first plaintiff’s business up until it closed, it being a beauty clinic and not a clinic directly dealing with people who had COVID-19, any reasonable reader, aware of the nature of the business, would not have considered she was directly treating COVID-19 patients. [43] However, many patients who knew her, including those who knew her from her work at the Morningside Clinic, knew that she did work there with those who might have been thought to be possibly suffering from COVID-19. Insofar as the publication -- 11 of 30 -- 12 might have conveyed such meanings as the defendant ascribes to them they were therefore true. [44] The defence of justification with respect to the first publication therefore fails. [45] It can readily be seen that the defendant’s story did, and was intended to, defame each of the first and fourth plaintiffs. The imputations I have referred to would tend to lower the first and fourth plaintiffs reputation in the estimation of ordinary reasonable memories of society. The second publication [46] On 2 May 2020, Shane Mundey was at his home in Kangaroo Point with two friends, Mitchell Donnelly and Bianca Anderson. [47] The defendant came to Mr Mundey’s house early in the morning of that day, between about 1.00 am and 3.00 am. It is clear from a video taken at that time by Mr Mundey that the defendant was in an extremely agitated and aggressive state. Why she was like that is unknown to me. The defendant, it is to be remembered, did not give evidence at the trial. [48] The evidence of Mr Mundey is therefore uncontradicted by any other evidence. His evidence is in many respects strongly supported by the short video. [49] Mr Mundey says in his affidavit, and said in evidence, that he had never previously met the defendant. He said he had never spoken to her on the phone. I infer however that due to his friendship with the third plaintiff he at least knew who the defendant was. He says that she contacted him on Instagram “using a fake photograph, name and an account”. He said he admitted her to his house when she arrived. I assume this means that he admitted her not knowing the person he was admitting was the defendant, but recognising she had contacted him on Instagram. [50] Inside the house, it became apparent she was in fact the defendant and not the person who he thought she was. Her behaviour inside the house was appalling. Only part of it is recorded on a video. It shows her berating and swearing at Mr Mundey. He said in evidence that he and his two friends constantly asked her to leave. They can be heard asking her to do so on the video. She refused to do so. I infer it was because of her conduct that Mr Mundey commenced to video it. According to Mr Mundey, -- 12 of 30 -- 13 she was in the house for a period of about 35 minutes. Whilst most of that was the subject of an audio recording, it was not played at the trial. The video itself is only very short and is taken immediately before Ms Anderson can be seen pushing the defendant out the door. [51] It does however show the angry and agitated state the defendant was in. She swore repeatedly. She refused to leave. She berated Mr Mundey for recording the incident, something which was, in the circumstances, understandable he would do. Curiously she called Mr Mundey the wrong name, referring to him as Mark rather than Shane. This does tend to support the fact of Mr Mundey’s uncontradicted evidence that he had never previously met the defendant. [52] The video ends with Ms Anderson pushing the defendant out the door and shutting it. [53] Two further things can be said about the video. [54] There is nothing in it to show any event which would have caused any physical injury to the defendant. Pushing her out the door was done without any real physical force. Furthermore there is nothing said in it to indicate that anything done on the night had any involvement with BeautyFULL, or with any of the individual defendants. [55] In cross-examination, Mr Mundey confirmed that he had previously been in a relationship with the third plaintiff. [56] Mr Mundey denied questions asked of him by the defendant suggesting he had assaulted her when she had visited his home on 2 May. She suggested this occurred after Mr Donnelly had pushed her out of the door and shut it. Mr Mundey denied ever assaulting her and denied ever going outside after Mr Donnelly had shut the door. [57] In circumstances where the defendant gave no evidence, I accept the evidence of Mr Mundey about what happened at his home. It is consistent with the video. I find the defendant gained entrance to Mr Mundey’s house by means of some deception and there berated and abused him for a lengthy period, perhaps for much of the 35 minutes she was inside. I find he did not assault her. I also find that, in any case, anything that there occurred was unrelated to any of the plaintiffs. Thus, even if he had assaulted her, it was because of her conduct inside the house and was unrelated -- 13 of 30 -- 14 to the plaintiffs, or any of them. There is no evidence that the plaintiffs knew of the defendant’s visit and no evidence that anything Mr Mundey did was on behalf of any of them, influenced by them or even recounted to them. [58] Although he was at some stage in a relationship with the third plaintiff, and was from April 2019 a client of BeautyFULL, there is nothing to link anything Mr Mundey may have done to the defendant at his premises on 2 May to the plaintiffs or to any of them. [59] Following the defendant’s visit to Mr Mundey’s home, she made a complaint of assault against him to the police. He says in his affidavit that the allegations were false and that no charges were ever laid against him. I accept both those matters. [60] It is also for the purposes of the proceedings admitted by reason of the notice to admit facts to which the defendant failed to respond, that: 1. The Queensland Police Service investigated the allegations the defendant made against Shane Mundey; 2. Subsequent to that investigation by the police the defendant was charged with an offence of trespass against Shane Mundey of and relating to the allegations; 3. On 13 October 2020 the defendant pleaded guilty in the Brisbane Magistrates Arrest Court to the offence of trespass committed against Shane Mundey. [61] That she was so charged, and pleaded guilty, is unsurprising having regard to the video evidence which I have seen. Her conduct in it is quite appalling and shaming of her. [62] On 10 May 2020 the defendant caused to be published a further story on her Instagram account, sequentially as follows: 1. A post showing a picture from inside the Princess Alexandra Hospital, with the location tag “PRINCESS ALEXANDRA HOSPITAL, BRI” followed by the words “If you want to know how I ended up here”. There is then an arrow, linking a reader to the next photo in the post. -- 14 of 30 -- 15 2. A photograph of the defendant’s face, and a separate photo of her lip, with the words “with these injuries” followed by the words “one week before”. There is then a further arrow indicating to click to the next photo. 3. There is then a post of photographs of the defendant’s left eye and left side of the face showing bruising, a photo of her knee showing bruising and a photograph of her eye showing bruising together with the words “I was a victim of physical assault causing bodily harm” and the words “If you would like to ask about it. I’m happy to answer.” She then writes in capitals “HASHTAG STOP ASSULT” [sic]. 4. The next post contains the words “who assaulted you” together with a photograph of the defendant dressed in the work uniform she had previously worn as an employee of the first plaintiff. Under the photograph are the words “beautyfullcmc.” [63] Having posted the name of the first defendant she then curiously says “I cannot legally say names” followed by the words, in bold, “but my ex employer of 3 yr is involved.” She then writes “if you would like to ask about it I’m happy to answer.” [64] There is then further discussion, apparently with someone who was communicating with her about whether her “man” had “done that”. She gives a very supportive response concerning her partner. She then says, “I legally can’t go into detail but I was attacked… thank God for my amazing boyfriend.” [65] A feature of this publication is that it was posted late on the evening of 10 May, and taken down late the following day. As a consequence, the opportunities for members of the public who were followers of the accounts or otherwise to have read it was limited. [66] The plaintiffs allege in the Statement of Claim that this publication, referred to collectively as the second publication, was defamatory of each of them. It is said that the publication was known, by those possessed of knowledge of the extrinsic facts particularised in the pleading, to be of and referring to each of them. [67] The particularised extrinsic facts which I find are proven by the evidence, including that of Ms Teariki, are: -- 15 of 30 -- 16 (a) the first plaintiff conducted a business known as “BeautiFULL CMC; (b) the business, owned by the first plaintiff, was operated and conducted by the second plaintiff, third plaintiff and fourth plaintiff who were the natural persons who dealt and communicated with members of the public and customers of the business on an ongoing basis; (c) the defendant was formerly an employee of the first plaintiff; (d) when employed by the first plaintiff, as part of her employment, the defendant wore the work uniform depicted in the posts referred to in the publication; (e) the defendant was recognizable to customers of the first defendant from the content of the photograph of her in the work uniform; (f) the defendant as at the time of the second publication had ceased her employment with the first plaintiff; (g) customers and clientele of the first plaintiff were aware the defendant had ceased her employment; (h) any physical assault on the defendant could only have been undertaken by natural persons. [68] It is alleged the second publication communicated defamatory imputations which can be summarised as follows: (a) that the first plaintiff had permitted natural persons, being one or more of the second, third and fourth plaintiffs, who operated and conducted the business, to assault the defendant; (b) that the first plaintiff had an involvement with the natural persons who perpetrated the assault upon the defendant; (c) that the persons who assaulted the defendant did so with the consent of the first plaintiff and worked with the first plaintiff, causing injuries to the defendant; (d) that the second, third and/or fourth plaintiffs had unlawfully assaulted the defendant or caused or been involved in the assault of her, causing significant injuries to her such as to require hospital admission. [69] An issue which it seems to me arises with respect to the second publication is whether the assertion that the defendant was assaulted and “I cannot legally say names…but my ex-employer of 3YR is involved” conveys an imputation that not just the company -- 16 of 30 -- 17 who was her employer was involved, but that each of the individual plaintiffs were so involved. [70] In McCormick v John Fairfax & Sons (1989) 16 NSWLR 485, Hunt J at 487 said: “A liable upon the whole of the class may be the subject of complaint by a member of that class who is not otherwise individually pointed to in what was published only if the matter complained of can be fairly be read as defaming each member of that class. In determining whether the matter is capable of such an interpretation, the size of the class, the generality of the charge and the extravagance of the accusation may all be considered, although none is conclusive.” [71] There are, it seems to me, a number of features of this case which justify a finding that each of the individual plaintiffs is entitled to recover damages. The first plaintiff is a family company. There are only two shareholders, the third and fourth plaintiffs. The second plaintiff is the Manager of the CEO. It was not said that an unnamed individual associated with the company was responsible for the assault. Instead, the defendant said that the first defendant, being her ex-employer “is involved”. In my view, the nature of that allegation is such that each of the plaintiffs has been defamed. The small size of the group who operated the family business means, inevitably, that a re-do of the second publication would conclude that each of the three people was involved when, in fact, no assault in fact occurred. [72] It is clear the defendant’s post of 10 May was intended to convey to those who read it that she was the victim of an assault which caused her to be hospitalised. It is a feature of the publication that it includes a photo of her dressed in the uniform she had previously worn when working with the first defendant. The photo also has the words “beautyfullcmc” displayed and the comment that her “ex-employer of 3 yr is involved”. [73] It is in my view clear that an ordinary reasonable reader, aware of the extrinsic facts set out in the Statement of Claim, which I find proven, would have readily understood the second publication to be referring to the first plaintiff’s involvement in her assault. In circumstances where any such assault must necessarily have been perpetrated by individuals, I also find such reader would have understood the individual plaintiffs, who were the owners and operators of the business, were involved in the attack upon her. -- 17 of 30 -- 18 [74] The fourth plaintiff was the doctor involved with each client of the business. She was a shareholder of the business from 5 January 2012 and a director from then until 25 December 2018. Her association with the business, including her involvement as the first plaintiff’s doctor as at May 2020 would, I find, mean such a reasonable reader would have concluded she had caused or was involved with or approved of the underlying assault of the defendant. She gave evidence she received about half a dozen comments from employees of the Morningside clinic about this publication. The second plaintiff also gave evidence of receiving abusive communications by phone and over social media. [75] I accept the evidence of each of the second plaintiff and fourth plaintiff concerning people contacting each of them about the second publication, helping to establish the connection between the defendant’s post and them. [76] The third plaintiff’s involvement in the business, as alleged in paragraph 1(m) of the Statement of Claim, is that she: “was widely known and identified by her patients, persons who attended BeautyFULL CMC, the followers of (that business’s) Instagram site, the website and members of the public as ‘Nurse Kate”. [77] She has been a registered nurse since 8 March 2007, a co-founder of the business, an employee of the business known by her work with the first plaintiff and by reason of her photo being used on the business’s Instagram account and otherwise being referred to in the Instagram account. [78] She however gave no evidence at the trial and so there is no evidence of anyone advising her of their belief she was involved in the assault or of any distress or embarrassment or other adverse consequences to her of the publication. [79] Nevertheless, I accept an ordinary reasonable reader, aware of the extrinsic facts set out, would reasonably conclude, because of her role as a nurse for many years since the inception of the business in 2012, and her ownership in what can be seen as a family business, that she too was involved in the alleged assault of the defendant. [80] In so concluding I am mindful of the defence in which the defendant pleads, inter alia; -- 18 of 30 -- 19 1. that the plaintiffs have not identified anyone to whom the matter was published who also possessed knowledge of the extrinsic facts; 2. the pleaded extrinsic facts are not reasonably capable of identifying the plaintiffs or any of them; 3. neither plaintiff was identified in the second publication; 4. the pleaded imputations do not reasonably arise; 5. a defence of justification under s 25 of the Act, because, it is alleged, if the imputations alleged were conveyed by the publication and were defamatory, they were substantially true. The particulars of such justification are that the third plaintiff was in a personal relationship with Mr Mundey, the third plaintiff was “the majority owner and co-director of the first plaintiff, Mr Mundey worked onsite at the first plaintiff’s premises and was promoted in posts on the first plaintiff’s Instagram account receiving treatment at the clinic.” [81] In circumstances where I found Mr Mundey did not assault the defendant, indeed where there was in fact no evidence at all that he did, and where the defendant chose not to give evidence, it is not difficult to dispose of the justification defence. [82] Furthermore, the fact of any personal friendship between Mr Mundey and the third plaintiff, her involvement with the BeautyFULL business and the fact he was a client of the business, does not even begin to establish that, even if he did assault the defendant (and I emphasise I find he did not), that would justify any conclusion that the plaintiffs, or any of them, were involved in any such assault. [83] The pleading of justification is instead a reflection on the defendant’s sense of self- justification for her outrageous conduct shown in the video recording and her animosity towards the plaintiffs evident in her conduct of the whole of the action. [84] In the circumstances, I find the second publication to be defamatory of each of the first, second, third and fourth plaintiffs. -- 19 of 30 -- 20 Third and fourth publications [85] The third publication involves the defendant speaking on the telephone on 11 May 2020 to Jordan Koumis, who knew the second and third plaintiffs. She then communicated with him by Facebook messages (the fourth publication). [86] The two communications were only minutes apart. The close proximity in time is in my view relevant to the contextual meaning which should be ascribed to them. Effectively, they can be read together. [87] It is not necessary to set out the full communications, but in the phone conversation the defendant told Mr Koumis: (a) that all her “email, social media, my cloud… everything” had been hacked and she “assumed” it was by “Kate and Mark”; (b) that “Kate emails herself from my email”. [88] In the fourth publication, the Facebook messages, the defendant wrote that: (a) she knew Mr Koumis and his partner, Dior, were not involved. (I note Dior had previously worked at BeautyFULL with the third plaintiff and the defendant); (b) she had been “set up and bashed up to the point of me ending up in hospital”; (c) she was “now being framed in court”; (d) she’d had five psychiatric admissions since she left the employment of the first plaintiff as a result of “what I have been through”; (e) “Kate” had made problems with AHPRA for “Kaitlyn” and with Mr Koumis’ partner Dior (Kaitlyn, like Dior, was a former employee of the first plaintiff); (f) the defendant said she needed Dior “to delete something on her account. Otherwise she may get into trouble”; (g) the defendant’s partner, Guy Belcher “has messages from when they were married about Kate framing Dior for something illegal”. -- 20 of 30 -- 21 [89] It is admitted in the defendant’s pleadings that the third publication concerned the second and third plaintiffs but, curiously, it is denied that the fourth publication concerned them. [90] In circumstances where the fourth publication was only minutes after the third publication, and having regard to the content of the two publications including the reference to the first names of the second and third plaintiffs, Kate and Mark, I find the fourth publication did concern each of the second and third plaintiffs. It is self- evident that the third publication referred to them. The name of the third plaintiff, Kate, is mentioned numerous times and it was also mentioned in the fourth publication. The statement that she “assumed it was Kate and Mark” who hacked her social media accounts in the third publication and the statements in the fourth publication that she’d been set up and bashed, ending up in hospital and had “been through absolute hell with these people” causes me to conclude the fourth publication concerned the second plaintiff also. The use of the plural “these people” is of some importance in coming to that conclusion. [91] I accept that in relation to the third plaintiff, the two publications carried imputations that: (a) she had improperly gained access to the defendant’s social media accounts; (b) she had hacked those accounts, or some of them; (c) she had made false allegations to AHPRA against two employees of the first plaintiff, Kaitlyn and Dior, and she had falsified matters so that it appeared Dior had acted illegally; (d) such incriminating material remained accessible on Dior’s computer and so needed to be deleted; (e) she was involved in the defendant being “set up and bashed” requiring hospital treatment and had suffered psychiatric illness. [92] The plaintiffs’ counsel submits that the following imputations concern and are defamatory of the third plaintiff: (a) She had gained unauthorised access of the defendant’s email, social media and cloud account; -- 21 of 30 -- 22 (b) She had set up the defendant to be bashed; (c) She had caused injury to be inflicted so as to cause the defendant’s admission to hospital; and (d) She had caused her to be admitted for psychiatric issues to a hospital on five occasions – I accept that to be so. [93] I also accept the publications were defamatory of the second plaintiff because it was imputed he too had improperly accessed those accounts, to assist the third plaintiff in improperly hacking those accounts. So too I accept the publications implied the second plaintiff had been involved in the “bashing” of the defendant and that his behaviour contributed to the defendant suffering psychiatric illness. The proximity in time between the third and fourth publications means they ought to be read as one. The reference to Mark in the phone conversation causes me to conclude he was identified as being involved in the physical attack ordered in the fourth publication also. [94] In circumstances where the defendant neither gave nor called evidence, I do not accept she had any belief, or basis for believing, either the second or third plaintiffs illegally or at all accessed her personal accounts on social media. I do not accept she had any belief that any email had been sent from her account improperly. Nor was there any basis for believing that the second or third plaintiff were involved in her being bashed or requiring psychiatric treatment. [95] I also reject the suggestion the defendant is entitled to rely on the defence of triviality under s 33 of the Act in relation to the third and fourth publications. The publications were not such that it could be said either defendant was unlikely to sustain harm, even though the publication was to only one person, Mr Koumis. The very personal nature of the defamatory comments and the significant nature of the allegations assist me in so concluding. Publications generally [96] I find that the imputations alleged in each of the publications were intentionally false. There is simply no basis to support what the defendant said or wrote in any of the -- 22 of 30 -- 23 publications. Her assertions were in complete disregard of the rights of the plaintiffs and appear to have been motivated by anger towards each of them, for reasons which are not explained but, I assume, are related to the circumstances of her former employment with the first plaintiff. [97] The defendant’s response to the plaintiffs’ solicitor’s notice of concerns of 15 May 2020 supports the view I have formed that the defendant’s conduct was because of such unexplained anger. She initially responded: “BAHAHAHAHHAHAHAHAHAHAHHAHAHAH” [98] Five minutes later she responded: “Send it to my real account next time not the fake one claiming to be Claire Hayes (me). You got caught in you’re fucked up games you’ve committed identity theft for setting up a debit card, mirroring my phone and ILLEGALLY ACCESSING MY MEDICAL RECORDS. Get a fucking life, how embarrassing you go to so much effort and time being obsessed with my life. Grow up and PLEASE STOP HARRASSING ME!” Damages [99] I note the first plaintiff is an excluded corporation and, being a corporation, has no emotional aspect to its claim. [100] The approach to assessing damages in a matter such as this has been considered by Applegarth J in Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89.5 The following principles can be extracted from his Honour’s judgement: (i) An award of general damages is to: (a) provide reparation for the harm done to the person and/or business reputation of the person defamed; (b) give consolation for distress or hurt; (c) vindicate the plaintiffs’ reputation. 5 See Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89 at [25] – [57]. -- 23 of 30 -- 24 A single amount can be awarded for such reparation, vindication and consolation (ii) The damages should be at least the minimum necessary to signal to the public the vindication of the plaintiffs’ reputation; (iii) There must be an appropriate, rational relationship between the harm sustained and the damages. In this context, harm includes the effect on reputation, hurt feelings, distress and worry, humiliation, fear, anger and resentment and can include such damage as a result of a failure to apologise; (iv) It is not necessary for a plaintiff to call witnesses to say they have thought less of the plaintiff as a result of the defendant’s publication. Damage for defamatory publication is presumed; (v) The cause of action concerns the tendency of an imputation to lower the plaintiff’s reputation. Proof of actual loss is unnecessary. Nevertheless, in order to receive more than nominal or moderate damages for reparation from the harm, proof of harm to reputation is generally required; (vi) General damages for consolation is a solatium, rather than monetary compensation for harm and relates to the psychological effect on the plaintiffs’ feelings, esteem and self-perception; (vii) In assessing damages for vindication, one looks to the attitude of others and the damages necessary to have vindicated the plaintiff’s damaged reputation. An award must be sufficient to convince a person to whom the publication was made, or to whom it was spread along the grapevine, of the baseness of the defamatory comment. In so assessing such damage, one must take account of the fact that, by pursuing its remedy, a plaintiff may have in fact brought the publication into the public domain; (viii) Damages may be increased if there is a “lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”. Such conduct may occur at any time to, and including, the trial. [101] The plaintiffs, in addition to compensatory damages, also claim aggravated damages. His Honour said at para 37 of Cerutti, relying on a passage from a decision of Costello and Abbott v Random House Pty Ltd (citation omitted): -- 24 of 30 -- 25 “The concept of ‘aggravated damages’ is not, whether calculated separately or not, a different ‘head’ of damage. It focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant.” [102] Such damages can be increased by a refusal to apologise and by the conduct of the defence. Running a defence without a proper basis can permit an award of aggravated damages. This can be because running an unjustifiable defence can increase injury to a plaintiff’s feelings and cause increased indignity. Such an award must have an appropriate and rational relationship to the injured feelings and should not contain an impermissible punitive element. The defendant’s failure to give any evidence to explain or in any way to justify any of her publications is illustrative of her lack of concern for the hurt she inflicted on each of the plaintiffs. [103] Having regard to s 36 of the Act, malice is of relevance only insofar as it aggravates the plaintiff’s hurt and distress. [104] A separate award need not be made for aggravated damages but, if justified, can enable a court to make a higher award of damages than would otherwise be made. In doing so, a Judge should give reasons explaining the extent to which damages are increased on account of the defendant’s conduct warranting an award of aggravated damages. Findings [105] The publication of the post concerning the fourth plaintiff’s work during COVID-19 and of the alleged assault upon the defendant were clearly designed to cause hurt and distress. The defendant’s conduct of her case thereafter clearly indicates a lack of any remorse or contrition. [106] I accept that although there is no evidence that the first plaintiff has suffered loss of business reputation, I do find that she has suffered some financial loss and that the fourth plaintiff may also have had her reputations injured. But the extent of such damage is not great. I referred earlier, in paragraph 20, to the fact that the use of Instagram to publish the first (and also the second) publications and the emotive and inflammatory language used by the defendant means that a reasonable reader was -- 25 of 30 -- 26 unlikely to have given the posts much credence. I accept however some readers did do so. [107] More particularly, I find the second and more especially the fourth plaintiffs suffered significant distress and hurt as a result of the publications about them. I do not find, in circumstances where the third plaintiff did not give evidence, that she suffered any significant distress, humiliation, anger or resentment but accept there was some damage to her reputation. Although the defence of triviality fails in relation to the third and fourth publications, the fact the publication was to only one person, Mr Koumis, is relevant. I am confident his attitude to each of the second and third plaintiffs is governed by his own experience of them and not by the defendant’s false and inflammatory remarks. There is however the distress to those two plaintiffs resulting from the third and fourth publications. [108] In all cases, the defendant’s conduct of the proceedings, and refusal to acknowledge her wronging of each of the plaintiffs, is demonstrative of her lack of bona fides. So too is her refusal to have made any apology and the manner in which she conducted her trial. [109] Her failure to give evidence to explain or in any way to justify any of her publications is illustrative of her lack of concern for the hurt she has inflicted on each of the plaintiffs. [110] In all cases, the defendant’s conduct of the proceedings and refusal to acknowledge her wronging of each of the plaintiffs is demonstrative of her lack of bona fides. So too is her refusal to apologise. Damages may, as I have said, be increased by way of aggravated damages if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable. In my view, the circumstances of each publication and the defendant’s refusal to acknowledge the plaintiffs’ hurt and humiliation justifies an award of aggravated damages for each of the involved plaintiffs. [111] In Cerutti (supra), the defendant had written to the plaintiff, a chartered accountant, and to his firm, alleging dishonest practices by him. Importantly, the letter was sent to the governing body of chartered accountants, to the Institute of Company Directors and to a North Queensland building society of which the personal plaintiff was a -- 26 of 30 -- 27 Director. The plaintiff was asked to provide a response to the CPA and did so, apparently to that body’s satisfaction. [112] The second defendant wrote a letter of apology. [113] As in that case, a significant part of any award in this case reflects the need for the award to be sufficient to demonstrate the baselessness of the defendant’s publication. [114] An award of $5,000.00 compensatory damages for the plaintiff’s company and $3,500.00, together with $2,000.000 and $1,500.00 respectively for aggravated damages, was made by the trial judge in that case. The awards were increased on appeal to a total of $20,000.00 instead of $7,000.00 to Mr Cerutti and $10,000.00, instead of $5,000.00, to his company. [115] In Cerutti, Applegarth J, with whom McMurdo P and Gotterson JA agreed, said at [54]: “An appropriate award for general damages may fall within a fairly broad range, depending upon the circumstances. Those circumstances include the seriousness of the defamation, the extent of publication, the evidence about actual harm to reputation and injured feelings and the need for vindication.” [116] In assessing the extent of the second and fourth plaintiffs’ personal hurt and distress, I recognise that some of their distress appears from the evidence to relate to issues that arose between them, and the defendant, as a result of her making allegations concerning the conduct of the business to AHPRA. Not all of their personal angst arises as a result of the subject publications. [117] The plaintiffs’ counsel, in written submissions, submits that the first plaintiff should receive damages in the sum of $100,000.00 together with interest, the second and third plaintiffs’ damages in the sum of $97,500.00 together with interest and the fourth plaintiff damages in the sum of $180,000.00. [118] I do not accept that such damages are commensurate with the nature of the defamation, or with comparative awards referred to in [50] to [61] of those written submissions.6 6 Written Submission of Plaintiffs’. -- 27 of 30 -- 28 [119] The damage suffered to the reputation of the parties in this case can be contrasted with that suffered by the plaintiff in Hocken v Morris.7 In that case, the plaintiff and the defendant were neighbours living in the same street in Samford. They did not however know each other. For some inexplicable reason, the defendant posted copies of a Crime Stoppers poster concerning the well-known case of the missing child, Daniel Morcombe, to which were added the hand-written words, in large block letters, “YOU WILL BE BOUGHT TO JUSTICE MICHAEL HOCKEN”. [120] The trial judge, Dorney QC DCJ, found that in all some 60 or 70 posters had been put up by the defendant, though to some extent the activities of the plaintiff and others in removing the posters, together with the limited area of publication, resulted in His Honour moderating the damages. Importantly, His Honour said that while he accepted the defamation was serious: “It is unlikely, given the plaintiff’s standing in the local community, that the actual harm done to his reputation was substantial, even though the personal distress and hurt that he underwent was.” Similar considerations apply in this case. [121] In my view, the distress, hurt and the need for vindication of the plaintiff’s reputations by way of a judgment was significantly greater in that case. In that case, His Honour awarded damages of $75,000. [122] In all of the circumstances I would award damages, including aggravated damages as follows: 1. To the first plaintiff, on account of the first and second publications, the sum of $20,000.00 2. To the second plaintiff on account of the second, third and fourth publications, the sum of $20,000.00 3. To the third plaintiff on account of the second third and fourth publications, the sum of $12,500.00. 7 [2011] QDC 115. -- 28 of 30 -- 29 4. To the fourth plaintiff, on account for the first and second publications, the sum of $30,000.00 [123] In the case of the second, third and fourth plaintiffs, I have increased aggravated damages by 50%. [124] The approach to an award of interest was concluded by Applegarth J in Cerutti and follows.8 There are, in my view, no reasons not to allow the plaintiffs interest from 11 May 2020, the date of the 3rd and 4th publications and a day after the 2nd publication. Pursuant to s 58 of the Civil Proceedings Act,9 the awarding of interest is discretionary. In Cerutti, Applegarth says that it is traditionally allowed at three per cent. I will do so. [125] The plaintiff also seeks an injunction restraining the defendant from publishing further defamatory publications concerning them. In support of that application, the plaintiff’s counsel refers to the fact of her separate publications in March and May 2020, and her refusal to apologise together with the general nature of her conduct of the trial. It is appropriate she be so restrained. I will allow interest at three per cent per annum on damages from 11 May 2020. I therefore calculate interest as follows: 1st Plaintiff $660.00 2nd Plaintiff $660.00 3rd Plaintiff $412.00 4th Plaintiff $990.00 [126] In my view, an appropriate form of the injunction is as sought in [14] of the plaintiff’s counsel’s supplementary submissions. I will order: The defendant, whether by herself, her servants or agents is prohibited from causing to be published whether orally or in writing or by email or electronic means, or by way of publication on any social media platform such as but not limited to Facebook, Instagram, Twitter, TikTok, Reddit, any publication which has the effect defaming the first, second, third or fourth plaintiffs. 8 See Cerutti at [89]. 9 Civil Proceedings Act 2011 (Qld). -- 29 of 30 -- 30 Judgment 1. Judgment for the 1st plaintiff in the sum of $20,660. 2. Judgment for the 2nd plaintiff in the sum of $20,660. 3. Judgment for the 3rd plaintiff in the sum of $12,912. 4. Judgment for the 4th plaintiff in the sum of $30,990. 5. The defendant, whether by herself, her servants or agents is prohibited from causing to be published whether orally or in writing or by email or electronic means, or by way of publication on any social media platform such as but not limited to Facebook, Instagram, Twitter, TikTok, Reddit, any publication which has the effect of defaming the first, second, third or fourth plaintiffs. 6. I will hear submissions as to costs. -- 30 of 30 --