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Amory v Maynes [2024] PGNC 167; N10816 (17 May 2024)

N10816

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 267 OF 2017 (CC2)

BETWEEN:
DONNA AMORY
Plaintiff

AND:
JEANETTE MAYNES
First Defendant

AND:
NEALE BROWN
Fifth Defendant

Waigani: Shepherd J
2020: 10^th December
2024: 17^th May

DEFAMATION – whether comments on internet Facebook page were defamatory of plaintiff – elements to establish cause of action in defamation – Defamation Act Ch. 293, ss. 2, 5, 10, 24 – statutory defence of truth – claim in defamation dismissed.

Cases Cited:

Papua New Guinean Cases
Baker v Lae Printing Pty Ltd [1979] PNGLR 16
Chibelle v Maru (2015) N6589
Opi v Telikom PNG Limited (2020) N8290
PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288
Warka v Agai (2017) N6589

Overseas Cases
Boyd v Mirror Newspapers [1980) NSWLR 449
Hanson v Border Morning Mail Pty Ltd (1988) ATR 80 at 188
Hutton v Jones [1909] UKLawRpAC 57; [1910] AC 20

Counsel:
Ms D. Doiwa, for the Plaintiff
Mr S. Nutley, for the First and Fifth Defendants

DECISION

17^th May 2024

1. SHEPHERD, J: The plaintiff claims that she was defamed by posts on social media published by the first and fifth defendants. The plaintiff seeks general and compensatory damages.
2. The plaintiff’s claims in defamation against the second, third and fourth defendants in this proceeding have been settled.
3. I conducted a trial in respect of the plaintiffs’ claims against the first and fifth defendants on 10 December 2020. On completion of the evidence at trial, which was unusually prolix, counsel for the parties requested an adjournment so that they could file comprehensive written submissions. I accordingly directed the parties’ counsel to file their submissions by 1 February 2021. Submissions for the first and fifth defendants were filed by due date. Submissions for the plaintiff were late filed on 7 April 2021.
4. In this decision, a reference to “the defendants” is a reference to the first and fifth defendants, unless the context indicates otherwise.

BACKGROUND

5. The plaintiff, who is presently aged 60 years, is an Australian citizen. At the time of trial the plaintiff and her husband Gary Amory were residents in Port Moresby and were both employed here.
6. Prior to coming to Papua New Guinea in 2015, the plaintiff and her husband were residents of Mackay, prior to that Townsville and Ingham, in Queensland where they had operated various building construction businesses trading under similar business names such as GCA Construction Management Group, GCA Builders and GCA BUILD.
7. According to the plaintiff, when she and her husband were in Queensland they owned a company known as GCA Construction Management Group Ltd which allegedly traded under the business name GCA Builders. The defendants dispute that business name as they say that no business has ever been registered with that name by the Australian Securities and Investments Commission (ASIC). The defendants say that a business name GCA BUILD was registered with ASIC on 1 July 2004 but that business name was cancelled on 28 January 2008. The defendants also say that GCA Construction Management Group Pty Ltd was registered with ASIC on 16 April 2010 but ceased on 13 October 2012.
8. Be that as it may, the plaintiff says that in or about 2009 GCA Constructions Management Group Pty Ltd allegedly trading as GCA Builders went into administration as the company had no revenue stream. The company was sued by many of its creditors, including subcontractors, for services rendered but which were never paid.
9. In 2010 the first defendant sued the plaintiff personally for certain signage services which the plaintiff had requested the first defendant to provide for marketing purposes.
10. It is an agreed fact that on 27 October 2010 the first defendant obtained default judgment in her favour against the plaintiff granted by the Queensland Civil and Administrative Tribunal (QCAT). The default judgment was for A$7,277.62 and related to signage services which the first defendant had rendered to the plaintiff at her request but which had not been paid.
11. It is also an agreed fact that as at February 2020, almost three years after the commencement of the plaintiff’s filing of this National Court proceeding WS No. 267 of 2017, the judgment debt of A$7,277.62 owed by the plaintiff to the first defendant in the QCAT case had still not been paid by the plaintiff or by any of the defunct family companies associated with the plaintiff and her husband.
12. After arriving in Papua New Guinea in the first half of 2015, the plaintiff obtained employment in June 2015 as floor manager with the Royal Papua New Guinea Yacht Club (RPYC) in Port Moresby. She says she was then promoted to assistant manager. However, her employment was abruptly terminated by the RPYC in December 2015.
13. The reason for the termination of the plaintiff’s employment with the RPYC was because of an adverse comment regarding the plaintiff which the first defendant had posted on the RPYC’s Facebook website page on 3 December 2015. The first defendant’s comment was directed to the RPYC’s Commodore Kilroy Genia and her post gave a link to the first defendant’s own blog site where there was a YouTube link to an Australian television program on Channel 9’s A Current Affair program hosted by Tracy Grimshaw, which had aired on Australian national television on 31 January 2012 and which directly concerned the plaintiff.
14. When viewers clicked on the YouTube link, they could see and hear Ms Grimshaw introducing the show for A Current Affair on that occasion with the words:

“She is an ex-policewoman who is accused of using her knowledge to rort the system and leave others out of pocket. We tracked her down to find out why.”

15. A screen shot of the opening sequence of this television program was presented in evidence at trial: annexure “D2” to the first defendant’s affidavit filed 11 December 2019 (Exhibit D1-3).^[1] The screen shot has the caption:

“Tonight, our investigation into one woman’s slide from law enforcer to law evader”.

The screen shot depicts Ms Grimshaw in front of a large television screen bearing a likeness of the plaintiff wearing sunglasses and the following words:

CON POLICE WOMAN

16. Persons who visited the first defendant’s blog were able to readily access this presentation on A Current Affair. The video clip runs on YouTube for 5 minutes 28 seconds. The show has references to the plaintiff by name and gives extensive details of the plaintiff’s history as told by dozens of people claiming to be unpaid creditors of the plaintiff.
17. The plaintiff’s amended statement of claim filed on 20 June 2017 pleads at paragraph 17 ^[2] that the first defendant posted a photograph of the plaintiff on the RPYC’s Facebook and the following comment:

Attention: Commodore = Kilroy Genia

Please find some information here that may be of importance in relation to your Acting General Manager – Donna Amory pictured here.

http://jeanettemaynes.com.au/2012/02/01/donna-amory-thief/

“Donna Amory THIEF! – Jeanette Maynes’ Blog”

18. The plaintiff also pleads at paragraph 17.1 of her amended statement of claim that the defendant placed the following disparaging comments by other persons about the plaintiff on the RYPC’s Facebook page:

Jeff Turner - Fair dinkum, the acting manager of the RPYC? Good luck with that one kiddies

Cameron Kennedy - true? Eesh

Simon Joseph Koum - Found this on the net

Sheryll Scott - How the hell did she get the visa

Cath Porter - Probably because of no convictions

Sheryll Scott - She has been issued with several court orders to repay over AUD250K to various business she and her husband owe money to

Jordan Seladi - Good luck to the yacht Club. I will show this to my directors, they live there

Jeff Turner -Let us know when the committee sacks her

Mark Stewart - What do they say? Missionaries, mercenaries and misfits. She seems to be an unpleasant mix of the latter two. Hope she gets biffed out

Jeff Turner -She would have to. Unless she pays someone

Trish Chalmers - Wish I had that article about the missionaries and misfits! If I recall it was in Cleo in the late 70’s!

Fredrick Vada - Hey, I remember her!

Rachael Thomson - Hmmmmm!!!!

Caroline Kitchen - What happened to background checks?

19. However, the evidence at trial established that these comments were never on the RPYC’s Facebook page. They were on the private Facebook page of Cath Porter. These comments were not directly accessible to readers of the RPYC Facebook page.
    
20. As for the fifth defendant, the plaintiff pleads at paragraph 33 of her amended statement of claim as follows:
    33. On or about 15^th December 2015, the Fifth Defendant shared in the First Defendant’s blog and wrote:

33.1 “Oh dear, this woman is the devil. Hope they aren’t trusting her near money as she has a shocking history where ever she goes. Don’t clubs or potential employers google “before” they hire these days?”

33.2 “... They have been scamming for over 20 years too Michelle, goes from Darwin to Perth to South Australia back to Mackay and they “ALWAYS” leave without paying bills, they were paid in full for the Motel (Troppix) and left Ingham with tens of thousands owing and court cases left right and centre. They will never pay so we will hound them to the end of the earth until they are put in Jail where they both belong so they can stop ruining other people’s lives”.

33.3 “... Donna and Gary Amory, are liars, frauds and cheats. I do not blame you for thinking otherwise though because they are very good at what they do”.

21. The plaintiff claims that these social media posts of the first plaintiff and allegedly of the fifth plaintiff were defamatory of her. It is those posts that resulted in the plaintiff’s commencement of this suit.
22. The defendants plead that their posts on the RPYC’s Facebook page concerning the plaintiff were true and fair at the time of publication. The defendants have pleaded the statutory defences of truth, protected publication, public interest, fair comment, qualified privilege and good faith under the Defamation Act Ch. 293.
23. The plaintiff’s claim against the RPYC as second defendant and her claims against the third and fourth defendants in this proceeding have been settled, leaving the plaintiff’s claims against the first and fifth defendants intact. It is the plaintiff’s claims against the first and fifth defendants that progressed to trial on 10 December 2020. The second, third and fourth defendants are no longer parties to this suit.

ISSUES

24. There are three elements that must be proved on the balance of probabilities in a civil cause of action in defamation. Those elements are:
    • the defendant made a defamatory imputation in relation to the plaintiff
    • the defendant published it
    • the publication was unlawful in that it was not protected, justified or excused by law: Defamation Act, Sections 5, 24.

See Baker v Lae Printing Pty Ltd [1979] PNGLR 16; Chibelle v Maru (2015) N6589.

25. It is not disputed by the first defendant that she published her comment on the RPYC’s Facebook page. There is some doubt as to whether the fifth defendant published the comments attributed to him on the RPYC’s Facebook page. However, the publication element is conceded, at least by the first defendant. So the primary issues in this suit are:

(1) Were the defendants’ comments defamatory of the plaintiff?

(2) If the defendants’ comments were defamatory, was their publication unlawful?

If both of these two issues are decided in favour of the plaintiff, a cause of action will be established and the defendants will be liable in damages. If only one of these two issues is decided against the plaintiff, her case will fail.

ISSUE 1: WERE THE COMMENTS OF THE DEFENDANTS DEFAMATORY OF THE PLAINTIFF

26. Counsel for the plaintiff submitted that the respective comments said to have been published by the defendants on the RPYC’s Facebook page were defamatory of the plaintiff.
27. Section 2 of the Defamation Act defines defamatory matter as follows:

2. Definition of defamatory matter

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which –

(a) the reputation of that person is likely to be injured; or

(b) he is likely to be injured in his profession or trade; or

(c) other persons are likely to be induced to shun, avoid, ridicule or despise him,

is a defamatory imputation.

(2) An imputation may be expressed directly or by insinuation or by irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

28. The question of whether a statement contains a defamatory imputation is determined objectively according to the standards and reactions of a reasonable person. It is irrelevant whether the publisher of the statement intended it to be defamatory or to do any harm to the plaintiff’s reputation. Authority for this proposition is provided by Hutton v Jones [1909] UKLawRpAC 57; [1910] AC 20; Boyd v Mirror Newspapers [1980) NSWLR 449; Warka v Agai (2017) N6589.
29. My assessment of the comments published by the first defendant on the RYPC’s webpage, taken in conjunction with the content of the program on Channel 9’s ‘Current Affair’ accessible via the YouTube link on the first defendant’s blogsite is that objectively speaking they prima facie impute directly or by insinuation that the plaintiff:

a. is a thief

b. is a person who habitually cons people out of their money

c. does not pay her just debts when due or at all

d. is dishonest

e. who uses her knowledge as an ex-policewoman to rort the legal system

f. no employer should employ her.

30. As to the fifth defendant’s comments allegedly published on the RYPYC’s Facebook webpage, I find that from the perspective of an ordinary person reading those comments, they prima facie impute directly or by insinuation that the plaintiff:
    1. has a history of non-payment of her bills
    2. has been scamming people for more than 20 years
    100. and her husband left Ingham owing tens of thousands of dollars to people
    4. is a liar
    5. is a fraudster
    6. is a cheat.
31. The imputations conveyed by the comments of both defendants were likely objectively to injure the reputation of the plaintiff and to injure her in her employment with the RPYC and also with future employers elsewhere but particularly in Papua New Guinea. I find that taken at face value the defendants’ comments were defamatory imputations concerning the plaintiff within the meaning of s.2(1)(a) and (b) of the Defamation Act. The plaintiff has proven on the balance of probabilities that the defendants’ respective comments as published on the RPYC’s Facebook website were objectively defamatory of her.

ISSUE 2: WAS PUBLICATION OF THE DEFENDANTS’ COMMENTS UNLAWFUL? OR DO ANY OF THE STATUTORY DEFENCES RELIED ON BY THE DEFENDANTS APPLY?

Defence of Truth

32. The primary defence that the defendants rely on is the statutory defence of truth. Section 10 of the Defamation Act states:

10. Protection: Truth

For the purposes of this Act, it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication complained of should be made.

33. The first defendant has given extraordinarily detailed evidence in support of her defence that her comments on the RPYC’s Facebook page that the plaintiff is a thief, does not pay her debts and is con artist are true. I do not propose to set out in extenso all of that evidence. But I set out hereunder an overview of some of the more salient aspects of the first defendant’s evidence in this regard.
34. The plaintiff deposes at para. 10 of her affidavit sworn on 3 April 2017,^[3] which is annexure “C1” to the first defendant’s affidavit filed on 2 December 2020 (Exhibit D1-6), that:
    10. To the best of my recollection I have no criminal or other legal issues either pending and or decided against me professionally and personally in Australia and or Papua New Guinea.
35. The plaintiff deposes at para. 5 of her affidavit filed on 20 June 2019^[4] (Exhibit P-2) that:
    5. Nobody has even sued me personally for owing any monies to them. I was never found guilty by a court of law in Australia that I was indebted to anyone. I will substantiate my claims at trial.
36. The plaintiff deposes at para. 4(e) of her affidavit filed on 13 November 2020^[5] (Exhibit P-4):

4 (e) All of the debts referred to by the First Defendant are either false debts or they are directly related to my husband’s administration but none of those debts are owed by me personally.

37. At item 21 of the parties’ Statement,^[6] the plaintiff’s response to the defendants’ allegation that she has a reputation for debt-dodging and tricking people into providing goods and services to her and to her companies and leaving a trail of debts across Queensland was this:^[7]
    21. The Plaintiff personally did not owe anybody any money. The Company, GCA Constructions Management Group Pty Ltd is the one owing money to these people that the First Defendant is alleging here.
38. In rebuttal, the first defendant has given very lengthy evidence that these contentions by the plaintiff are lies. The first defendant contends that the plaintiff is a serial litigant who, together with her husband, has sent many of their companies to “the bottom of the harbour”, leaving multiple creditors without payment. Listed below, taken from pp. 34 to 36 of counsel’s submissions for the first defendant but citing references to matters specifically adduced in evidence at trial in this proceeding, are particulars of:
    • the Australian companies in which the plaintiff previously held office or was a shareholder
    • a selection of some the plaintiff’s court issues, adjudications and court orders in Australia in the name of the plaintiff personally, professionally and with her husband.
39. Annexure “A1” to the plaintiff’s affidavit filed on 11 December 2019 (Exhibit D1-3) is a summary of the Australian and Papua New Guinea companies in which the plaintiff has been involved. Those companies, indicating the plaintiff’s involvement, are:

(1) Donna Amory was a Secretary of DUNRITE BUILDERS (N.T.) PTY LTD at 1 Landsborough Terrace, Bakewell, NT 0832 (Appointment 22-08-1997; Ceased 22-4-2004)

(2) Donna Amory was a Director and Secretary of INVESTACORP PTY LTD at 1 Landsborough Terrace, Bakewell, NT 0832 (Appointment 09-07-1998; Ceased 15-08-2004)

(3) Donna Amory was a Director, Secretary and Shareholder of REDLIUB PTY LTD of 15 Covell Street, Ingham, QLD 4850 (Appointment 01-09-2009; Ceased 12-08.2012

(4) Donna Amory was a Director, Secretary and Shareholder of REDLIUB PTY LTD STENIBAC DISCRETIONARY TRUST

(5) Donna Amory was a Director, Secretary and Shareholder of GCA CONSTRUCTION MANAGEMENT GROUP PTY LTD of 13 Trembath Crescent, Kirwan, QLD 4817 (Appointment 16-04-2010; Ceased 13-10-2012)

(6) Donna Amory was a Director, Secretary and Shareholder of GND CONSTRUCTIONS PTY LTD at 15 Covell Street, Ingham QLD 4850 (Appointment 11.01.2010; Ceased 03-06-2012)

(7) Donna Amory was a Director, Secretary and Shareholder of OBEJAYS PTY LTD at 1339 Riverway Drive, Kelso, QLD 4815 (Appointment 30-03-2011; Ceased 14-02-2014)

(8) Donna Amory is a Director of AMRAK CONSULTING & CONSTRUCTIONS (PNG) LIMITED 1-116347 at Section 27, Allotment 13, Kranget, Madang, Madang Province, Papua New Guinea (Incorporation Date: 16-11-2017)

(9) Donna Amory is a Director and Secretary of AFS PACIFIC LIMITED at C/- Kuria Lawyers, Section 29, Lot 11, Vanama Crescent, Lawes Road, Port Moresby, Papua New Guinea (Incorporation Date: 07 Nov 2018).

40. Further particulars of the following companies are contained in ASIC extracts which are Annexures “A2” to “A4” of Exhibit D1-3:
    • DUNRITE BUILDERS (N.T.)PTY LTD
    • REDLIUB PTY LTD
    • GND CONSTRUCTIONS PTY LTD
    • GCA CONSTRUCTION MANAGEMENT GROUP PTY LTD
    • OBEJAYS PTY LTD
    • INVESTACORP PTY LTD
41. Particulars of the PNG companies in which the plaintiff holds corporate office, namely AMRAK CONSULTING & CONSTRUCTION (PNG) LIMITED and AFS PACIFIC LIMITED, are contained at Annexures “A5”to “A8” of Exhibit D1-3.
42. Annexures “A9” to “A24” to Exhibit D1-3 are extracts from the records of the Queensland Building and Construction Commission (QBCC), the Queensland Civil and Administrative Tribunal (QCAT) and the Supreme Court of Queensland which state that Donna Amory personally (and variously with her husband and their companies) was adjudicated as owing the following debts:

QBCC:

Claimant: Petela Contractors Pty Ltd
Respondent: Donna Amory
Adjudicated Debt: A$35,534
Date of Determination: 23/11/2010

QCAT:

Supreme Court of Queensland

Brisbane Registry: No. BS 7514 of 2010 Holcim (Australia) Pty Ltd v GND Constructions Pty Ltd & Gary Charles Amory & Donna Marie Amory Default Judgment: A$43,067 dated 20 July 2010

43. Annexure “A13” to the affidavit of the first defendant filed 2 December 2020^[8] (Exhibit D1-6) is a copy of a statement of claim in proceeding D4 of 2012 in the Warwick Registry of the District Court of Queensland – Jacaranda Cooperative Housing Society Ltd -v- Donna Marie Amory and Gary Charles Amory – for a debt of A$229,665.67 plus interest owing under a mortgage, the address for the defendants having been given as 12775 New England Highway, Hodgson Vale, Qld 4352.
44. Of particular significance is Annexure “B1” to the first Defendant’s affidavit filed 2 December 2020^[9] (Exhibit D1-6). This is evidence of the content of Channel 9’s A Current Affair program broadcast on 31 January 2012 titled “Con PoliceWoman” and which was accessible via the YouTube link on the first defendant’s blog site associated with the comment which the first defendant placed on the RPYC’s Facebook page. The evidence of the content of that broadcast includes the following:

Tracy Grimshaw (Presenter):

“Tonight, our investigation into one woman’s slide from law enforcer to law evader”.

“She’s a former cop who’s using her knowledge of the law for no good and leaving behind dozens of people who have been ripped off and owed hundreds of thousands of dollars.”

“Donna Amory is a former cop with a habit of not paying her bills, both personally and as a Director of Companies with her husband Gary.”

“She is an ex-police woman who’s accused of using her knowledge to rort the system and leave others out of pocket. We tracked her down to find out why ...”

“We spoke to a former landlord of Gary and Donna’s who told us he’s owed $24,000 in unpaid rent and property damage.”

“What’s worse, we have a list of 30 other businesses here in North Queensland who also say the Amory’s owed them money.”

“Some of these companies have also gone to Court and got judgements against the Amory’s, ordering them to pay and yet these people tell us they haven’t received a cent”

“Howard says an agent recommended the Amory’s and he let them in. Now he says they owe him $5,000 in rent and refused to leave. I asked her to leave and she said, her words, her exact words were, “Come and F-ing get me out you dog.” ”

“Darren Gardine says the Amory’s company rented equipment from him and never paid for it even though a Magistrate ordered them to. I can’t believe how they get away with it. I’d like my 14 and a half grand back Gary if you’re watching”.

“Donna, how do you sleep at night owing all this money, what kind of person does this Donna?”

“There are others who claim the Amory’s, or one of their companies, owe them money, they include former employees, a law firm and a local council.. If you’ve had any dealings with them, let us know.”

45. 4.41 minutes into the video footage of the program is footage of a large banner advertising the logo and signage which the first defendant designed at the request of the plaintiff. ^[10] This is evidence of the professional design services which the first defendant invoiced the plaintiff for and which is the judgment debt of A$7,277.62 which has never been paid by the plaintiff or by any company associated with the plaintiff.
46. Also forming page of Annexure “D” to the first defendant’s affidavit filed on 27 June 2019 (Exhibit D1-2) is a webpage showing that there were 1,615,630 hits for persons who “liked” Channel 9’s reportage in A Current Affair on Donna Amory and that 1,709,663 people were following that reportage.
47. Annexure “D6” to the first defendant’s affidavit filed on 11 December 2019^[11] (Exhibit D1-3) is an article by journalist Kathleen Skene that was published in the Townsville Bulletin newspaper on 4 February 2012. The article is headed “Trail of debt and deceit” and depicts a photograph of the plaintiff and her husband. The article contains, among others, the following statements:

“A Townsville couple has been accused of ripping off dozens of businesses and leaving a trail of unpaid creditors across Australia.

Gary and Donna Amory, franchisees of Outback Jack’s in Cannon Park, are defending several civil court cases and appear to have ignored several court orders for them to pay their bills.

People across the state and beyond claim the couple owe hundreds of thousands of dollars to up to 40 creditors ranging from young employees to small and large business owners.

It is understood there are bankruptcy proceedings under way against one or both of them.

Ms Amory did not want to defend the claims this week.

She said her solicitor would call the Bulletin with a statement.”

48. The article in the Townsville Bulletin refers under a subheading “A tale of woe” to the following claims as being outstanding and unpaid by the plaintiff and her husband:
    • A$77,000 for electrical work in Ingham
    • $7,500 to a graphic designer for logo and website work^[12]
    • $24,000 in rent to a local business
    • $2,000 in rent for a home near Ingham
    • $2,500 for a trailer company
    • More than $1,500 to a southwest Queensland veterinary practice
    • About $5,000 to a Townsville office supply business
    • About $14,500 to a Townsville plaster business.
49. Nikki Nunnari deposes in her affidavit filed in support of the defendants on 27 June 2020 (Exhibit D1-9) that she was the former building administration manager for a Townsville-based construction company CEC Group. Ms Nunnari says that while she was working with the CEC Group she was involved in both civil and residential construction for that company. She deposes that she was recruited by Donna and Gary Amory in 2010 to work for them as an independent contractor for several housing projects which the Amorys had secured at Douglas and Charters Towers in Queensland. There was some initial confusion over which of the Amorys’ companies was engaging Ms Nunnari’s services as a contractor but Ms Nunnari says at paragraph 98 of her affidavit that she advised the plaintiff that as of 23 June 2010 she would be submitting monthly invoices to GCA Constructions Management Group for her management fees and services.
50. Ms Nunnari deposes at paragraphs 99 to 123 of her affidavit to the following matters in connection with GCA Constructions Management Group which transpired after June 2010:^[13]
    99. I noted that as there was only one main bank account, all project revenue went into this account. And every expense (both private and business) came out of the same account.
    100. I noted that $99,252.00 had been paid out to solicitors between April 4^th, 2008 and November 26^th, 2009.
    101. I noted that the Douglas and Charters Towers projects had commenced while accounts remained outstanding for some subcontractors and suppliers who had worked on the Ingham Hotel project two (2) years earlier.
    102. For the next four (4) months, as well as being involved with the day to day operations, which including pacifying clients and creditors alike, I brought all the systems inline with prescribed company procedures, and negotiated payment plans with creditors that, up until May 2010, I never knew existed. This was achieved in conjunction with their accountant.
    103. Most creditors were relieved to find that they did not have to deal with Donna, who they told me they considered Donna to be arrogant, argumentative and at times unduly offensive when requesting that their alleged overdue payments be paid.

115. Early in 2010, A Current Affair aired a program about Donna Amory. The title of the program was Donna Amory, Con Woman. I recognised her as the same Donna Amory I knew from 2010. The program listed a number of creditors unknown to me. I was not surprised to hear what those creditors had to say about her. I had heard it before two years earlier when I was working with her.

116. After the program aired, the email I had sent Jeanette Maynes on September 23^rd, 2010 appeared on the internet.
117. I located the post. It was on Jeanette Mayne’s Blog.
118. As I read the posts on the blog I became aware that an email address that had been set up for me when I was working with Donna at GCA Constructions was being used some 17 months after I had left the business by someone impersonating me. (see attachment “O”)

Annexed hereto and marked “O” is a copy of the Screenshot from Jeanette Maynes’ Blog dated 5 February 2012.

119. I was furious that my name should be mentioned online as being an associate of Donna Amory. I did get my dates confused when I responded to Jeanette’s comment about me being an accomplice to thieves.
     120. Jeanette commented that I should tell whoever wrote the original comment to stop using my email address.
     121. I responded accordingly and advised that it was not me that had posted the comment. (see attachment “P”)

Annexed hereto and marked “P” is a copy of the Screenshot from Jeanette Maynes Blog dated 9 February 2012.

122. Jeanette apologised and offered to delete the comment she made about me.
123. I knew there was only one person who would do such a thing.
51. After referring to a particular contractor of the Amorys named Karl May, who Ms Nunnari says it is obvious had not been paid by GCA Constructions, Ms Nunnari continues at paras. 126 to 130 of her affidavit:^[14]
    126. ...There are real responsibilities as a Director and as a responsible person, in terms of the financial solvency of a business, and that it is not enough to merely put up a shingle, begin trading and banking the revenue without thought to compliance requirements or payment to subcontractors, suppliers and staff.
    127. However, I witnessed that this is the process Donna Amory repeated time and time again, over a period of some 20 years from Roma in South Queensland, through to Dundee Beach in the Northern Territory, to Ingham, then Townsville, Mackay.
    128. I watched the A Current Affair program with sadness. The $24,000 referred to in the program was the lease for 51 Carmel Street, the property leased to Donna and Gary by Phil James at Paradise Outdoor Signs.
    129. The reporters of the A Current Affair program painted a true picture of Donna, the woman I too has recognised in 2010 as a charlatan, a con artist and a pathological liar due to her persistent conduct.
    130. I shudder to think of the people and organisations that Donna has left in her wake of misappropriation and disaster over the past 10 years since I left the company.
52. Given all of this evidence and more, the defendants pose the question: If any of the content of the program on A Current Affair was untrue, why have Donna and her husband not sued Channel 9 in defamation? And if any of the content of the article which appeared in the Townsville Bulletin on 4 February 2012 was not true, why have Donna and her husband not sued the proprietors of that newspaper?
53. A copy of an email from Channel 9’s legal unit at Nine Entertainment Company dated 2 June 2017 addressed to the fifth defendant forms part of Annexure “D” to Exhibit D1-6. The email states:

Subject: RE: Donna Marie Amory

Dear Neale,

A search of our records since January 2012 indicates that the Nine Network was never sued by either Donna or Gary Amory in relation to any story broadcast on a Current Affair or in relation to any other matter.

Kind regards,

Nine Legal

54. The fifth defendant has given evidence that he witnessed first-hand the plaintiff and her husband cheating unsuspecting and trusting creditors in his home town of Ingham by leaving a trail of debt. He also disputes that he placed the derogatory comments ascribed to him by the plaintiff on the RYPC’s website on 15 December 2015. He says that someone else masquerading as him placed those comments there.
55. This is what the uncontested evidence of the fifth defendant is in his affidavit filed on 23 November 2020^[15] (Exhibit D2-1):
    1. My name is Neale Brown. I am a Signwriter born on the 6^th of July 1958 and reside at 10 Fanning Street, Ingham, Queensland.
    2. I first met Donna Amory in or about 2007 when they first came to Ingham to build the Tropixx Motel as the Motel was built on land that we actually owned previous to the Motel Group and is immediately next to my in-laws.
    3. I do not know of the other Defendants except for Jeanette Maynes who I have been in contact with through our Signwriting Business since about 2013. I kept in touch with Jeanette over the years as she is a Graphic Designer and we both have similar business interests.
    4. When I was first served with a summons back in 2017 over alleged posts on a Blog I was quite confused and my first reaction was it was just another scam. I proceeded to research every bit of information available and also searched for the blog. It was not available anywhere as I now know it was removed a couple of years earlier.
    5. I did however note that the A Current Affair story is still the first thing that comes up in a Google search of “Donna Amory”. I have seen some small sections of what is alleged to be posts on that Blog in the affidavits I have read. I have also seen a screenshot of what looks like an old Facebook Profile of mine above some posts. As far as I am aware the Blog I am alleged to have posted in on does not have any profile pictures on it so to me that has to be false. I have also seen that I have now been accused of sharing the A Current Affair Story which is totally false as well. I have never ever shared that story and it is typical of Donna Amory to throw false accusations in left right and centre.
    6. I also saw a few comments from a Neale Brown among the literally hundreds of other comments and personally didn’t ever recall posting them at all, in fact I still to this day deny that the person posting under Neale Brown was not me although to clarify I do certainly consider Donna to be a very convincing Con Woman of the highest level.
    7. It is a fact that anyone can post on most blogs or Facebook under an alias or simply under their own name and there are also plenty of people with same name as myself. I saw at least a dozen names posting on that blog that I could identify as people I know.
    8. My family has been in business in Ingham for over 60 years and being a small tight knit community we all know each other quite well and quite often share information that may of interest and at the time the Amories came to town questions arose about their history. When Gary and Donna started racking up local debts the word soon got around and all the feedback was the same.
    9. One of the standout traits of Donna Amory is to use the legal system as her defence which is fine when used correctly but in her case it is being used in a sinister way to try to protect herself from having to honour her debts. Donna is a very convincing liar and is willing to do whatever it takes to escape her commitments or pay her debts, good people need to take a stand and speak out not be scared of a system that does not allow us to make a stand.
56. It is clear from the evidence adduced for the plaintiff at trial that after the A Current Affair investigation into the steps which the plaintiff and her husband took to avoid payment of creditors was broadcast on Australian national television on 31 January 2012, the repercussions from that broadcast made day-to-day life for the plaintiff and her husband increasingly difficult.
57. The plaintiff deposes at paras. 6 and 7 of her affidavit filed on 13 November 2020^[16] (Exhibit P-4) as follows:
    6. I left Australia [in 2015[ because I could not work and live there and my continued presence there was causing my family a lot of grief and hardship. My continued presence in Australia was affecting my parent, children and grandchildren and for their sake, I left Australia in the hope of making a fresh start in PNG.
    7. Since coming to PNG I have had no contact with the First and Fifth Defendants and was happy to put the whole saga behind me, until the First Defendant posted her comments and the link to the ACA programme on the Facebook page of the Yacht Club. The First Defendant has cyberstalked me from Australia to PNG.
58. The first defendant has responded to the plaintiff’s allegation of cyberstalking by stating that she had no idea where she could locate the plaintiff after the plaintiff failed to appear in court in Australia for the second time on 12 July 2011 in connection with the debt of A$7,272.62 which the plaintiff owed the first defendant. The first defendant says at the foot of page 7 of her affidavit filed on 19 November 2020^[17] (Exhibit D1-5) that it was not until late 2015 that she was alerted to the fact that plaintiff was now in Papua New Guinea. The first defendant states:

The First Defendant was notified of the Plaintiff’s whereabouts via email in December 2015. The First Defendant does not know the person who sent the email. The location was cited as PNG, there was no cyberstalking involved.

59. I observe for the record that a notice to admit facts was filed by the defendants’ lawyers on 11 December 2019.^[18] That notice set out 255 facts relating to the various adjudication of judgment debts against the plaintiff, her husband and their companies and businesses in Australia as well as matters arising out of the A Current Affair program and the affidavit material filed by the parties in this proceeding up to that date.
60. Order 9 Rule 27(2) of the National Court Rules provides that if the party on whom a notice to admit facts does not, within 14 days after service, serve a notice disputing any fact specified in the notice, that fact shall be taken to be admitted.
61. In this instance, the plaintiff by her lawyers filed a notice disputing facts almost a year later on 23 November 2020.^[19] The notice stated that the facts alleged in the defendants’ notice filed on 11 December 2019 were “irrelevant to the proceedings and therefore frivolous and vexatious” and were an attempt to entrap the plaintiff. A close perusal of the defendants’ notice to admit facts shows that the majority of the facts set out in that notice which the plaintiff was given the opportunity to either admit or deny were highly relevant to the proceedings. This in itself is evidence of evasion by the plaintiff to confront her own misleading statements in her affidavit material filed up to that date.
62. Reverting now to the law applicable to the totality of the evidence adduced for the parties at trial, the protection afforded by the statutory defence of truth in s.10 of the Defamation Act has two elements:

(1) A defendant must prove that the defamatory matter is true in substance and effect. It is irrelevant whether a defendant had a genuine belief in the truth of the matter. It is the objective test applied by the Court that determines the truth of an otherwise defamatory matter: Hanson v Border Morning Mail Pty Ltd (1988) ATR 80 at 188.

(2) The statement must be for the public benefit that the matter be published. The question whether the public discussion of a subject is for the public benefit is by virtue of s.13(b) of the Defamation Act a question of fact.

63. In the present case I find that these two requirements have been satisfied, both by the first defendant and by the fifth defendant.
64. Firstly, I find that the first defendant’s comment posted on the RPYC’s Facebook page addressed to the Commodore and giving a link to the first defendant’s blog page which had a heading “Donna Amory Thief!”, when seen in the context of the link to the program on A Current Affair and all the supporting evidence adduced at trial for the defendants, is substantially true. The plaintiff and her husband did have a long history of avoiding by underhand means payment of personal and company debts in the Northern Territory, Queensland and elsewhere in Australia which deprived legitimate creditors of payment for their services. The plaintiff and her husband did leave a trail of debts behind them in Australia when they came to Papua New Guinea in 2015 which effectively stole the services that were provided to them by their creditors by not paying debts when due, then running their companies and businesses into administration or insolvency to avoid paying their creditors, only to re-start new businesses under similar or different names to avoid creditor detection and liability to pay genuine debts.
65. The defendants had the onus in this proceeding to prove the truth of their comments. They have well and truly discharged that onus on the balance of probabilities.
66. Secondly, I find that it was in the public interest that the comment made by the first defendant was published. The first defendant was, and still is, an aggrieved unpaid creditor of the plaintiff to the extent of $7.277.62 I do not accept the plaintiff’s evidence that the debt owed to the first defendant is a debt owed to the plaintiff by one of her defunct family companies. The first defendant did have a judgment or decision of QCAT for the plaintiff to pay her the sum of $7,277.62 right up to 3 June 2016 for services which the first respondent had rendered to the plaintiff at the plaintiff’s request. After the plaintiff, by her own admission, came to Papua New Guinea in 2015 to avoid the aftermath of the A Current Affair program, unpaid creditors had a right to know where they could locate the plaintiff. The first plaintiff put the RPYC Commodore on notice as to the plaintiff’s financial history and at the same time alerted many others back in Australia as to where they could now locate the plaintiff. There is a public interest component in the first defendant’s comment and blog which I am satisfied has been proved.
67. As to the fifth defendant, he has point-blank denied that he ever placed any comment on the RYPC’s Facebook page on 15 December 2015 or at all. I accept the truth of the fifth defendant’s denial. He has unwittingly been caught up in a web of litigation in Papua New Guinea and has been wrongly accused. I find that no evidence in rebuttal of the fifth defendant’s evidence was led at trial and no submissions were made for the plaintiff to counter the fifth defendant’s denial of any online misconduct. But even if I am wrong in this regard and the evidence were to be shown to have proven that the fifth defendant posted the comments attributed to him by the plaintiff, this does not detract from the fact that the public, particularly unpaid creditors of the plaintiff, had an interest in knowing of the plaintiff’s whereabouts after she and her husband came to Papua New Guinea. The fifth defendant was well aware of the plaintiff’s history of deception when she and her husband left the small township of Ingham leaving unpaid debts in their wake.
68. For these reasons I find that the two elements necessary for a defence of truth to succeed have been established to the satisfaction of the Court.

(b) Other Defences

69. The defendants have also pleaded a raft of further statutory defences allowed for under the Defamation Act, namely the defences of protected publication (section 5), reports of matters of public interest (section 8(2)(c), fair comment (section 9(1)(a), (b)(ii), (c)(ii)), qualified privilege (section 11) and good faith (section 12).
70. However, as the defendants have convincingly demonstrated that their defence of truth has been proven on the evidence, I see no utility in the Court embarking on yet another consideration of the evidence vis-à-vis the further statutory defences pleaded by the first defendant and the fifth defendant.

CONCLUSION

71. I find that the defendants’ primary defence of truth has succeeded. This is sufficient to render lawful the publication of the defamatory matters complained of by the plaintiff. The plaintiff has therefore failed to establish a cause of action in defamation. This proceeding will be dismissed.
72. As to costs, the general rule is that these follow the event, which means that the successful party is awarded a contribution towards its legal costs paid for by the losing party on a party/party basis on the scale set out in Table 1 of Schedule 2 of the National Court Rules. However, an award of costs is always within the discretion of the Court. As the scale of party/party costs has not been revised since the National Court Rules came into operation in 1983 it is, in my view, way out of step with fees presently charged by lawyers to their clients. The Court may therefore, depending on the circumstances of the case, award costs to a successful litigant on a solicitor/client basis (also known as costs on a lawyer/client basis) or on an indemnity basis.
73. An award of solicitor/client costs is compensatory. An award of costs on an indemnity basis is punitive. As to the distinction between solicitor/client costs and indemnity costs, see Opi v Telikom PNG Limited (2020) N8290.
74. There are many circumstances when an award of solicitor/client costs is warranted, such as where there is no defence on the merits, where the other party failed to explore and exhaust all prospects of having the matter settled without court action, where there has been defiance by the other party in complying with court orders or where the successful party has generally had to incur unnecessary expenses through unmeritorious litigation: PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288.
75. I am satisfied that in the present case the defendants have had to unnecessarily incur substantial legal costs in defending this proceeding. The plaintiff will therefore be ordered to pay the defendants’ costs of and incidental to this proceeding on a solicitor/client basis, such costs to be taxed if not agreed.
76. There was no compulsion for the plaintiff to have persisted with this defamation proceeding against the first defendant and the fifth defendant. The plaintiff’s claims against the second, third and fourth defendants were settled. Her notice of discontinuance of this proceeding against those defendants was filed on 23 August 2018.^[20] The plaintiff obtained monetary compensation as a result of that settlement. But by continuing to pursue this suit against the first and fifth defendants, the plaintiff voluntarily took the risk of exposure of her past financial history being aired in depth by this Court.

ORDER

77. The terms of the Court’s formal Order are these:

(1) The Plaintiff has failed to establish a cause of action in defamation and this proceeding against the First Defendant and the Fifth Defendant is dismissed.

(2) Subject to any prior interim orders as to costs, the Plaintiff shall pay the costs of the First Defendant and the Fifth Defendant of and incidental to this proceeding on a solicitor/client basis, such costs to be taxed if not agreed.

Judgment accordingly.
_____________________________________________________________
Makap Lawyers: Lawyers for the Plaintiff
Fiocco & Nutley: Lawyers for the First Defendant and Fifth Defendant

^[1] Trial Book, Volume 2 at page 395.
^[2] Trial Book, Volume 1 at page 7.
^[3] Trial Book, Volume 2 at page 768.
^[4] Trial Book, Volume 1 at page 251.
^[5] Trial Book, Volume 2 at page 497.
^[6] Trial Book, Volume 2 at page 779. The parties’ Statement of Agreed and Disputed Facts was filed on 30 January 2020. A copy of the Statement is annexure “D8” to the affidavit of the first defendant filed 2 December 2020 (Exhibit D1-6).
^[7] Trial Book Volume 2 at page 779.
^[8] Trial Book, Volume 2 at page 680.
^[9] Trial Book, Volume 2 at pages 751 to 755.
^[10] Trial Book, Volume 2 at page 752.
^[11] Trial Book, Volume 2 at pages 756 and 757.
^[12] This is a reference to Jeanette Maynes, the first defendant in this proceeding WS No. 267 of 2017.
^[13] Trial Book, Volume 2 at pages 412 and 413.
^[14] Trial Book, Volume 2 at pages 413 and 414.
^[15] Trial Book, Volume 2 at pages 582 and 583.
^[16] Trial Book, Volume 2 at page 498.
^[17] Trial Book, Volume 2 at page 567.
^[18] Court document no. 65.
^[19] Court document no. 93.
^[20] Court document no. 40.