District Court New South Wales Medium Neutral Citation: Aaren Pty Ltd trading as Price Beat Travel v Arya [2020] NSWDC 657 Hearing dates: 19 October-23 October 2020 Date of orders: 02 November 2020 Decision date: 02 November 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 303 Catchwords: DEFAMATION – defendant dissatisfied with services she received from plaintiff travel agency concerning flight travel to India – defendant publishes post on group Facebook page – whether imputations conveyed were defamatory – capacity of plaintiff company to sue – whether plaintiff had not more than 10 employees – whether plaintiff not a 'related corporation' – defence of justification – statutory privilege defence – common law qualified privilege – malice – honest opinion – damages claim – no demonstrable proof of loss in income following publication – whether corporate plaintiff entitled to any damages other than nominal damages WORDS AND PHRASES – "employs" – Defamation Act 2005 (NSW) s 9(2)(b) Legislation Cited: Corporations Act 2001 (Cth), ss 9, 46, 50 Defamation Act 2005 (NSW), ss 3, 4, 8, 9, 25, 30, 31, 34, 35, 39 Defamation Act 2013 (UK), s 4 Evidence Act 1995 (NSW), s 140 Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), s 5B Cases Cited: Abrath v North Eastern Railway Company (1883) 11 QBD 440 ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 1 NSWLR 561 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 6) [2013] NSWSC 1651 Bristow v Adams [2012] NSWCA 166 Broome v Cassell & Co Ltd [1972] AC 1027 Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 297 IR 269 Cush v Dillon (2011) 243 CLR 298 Damevski v Giudice (2003) 133 FCR 438 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 Digby v Financial News Ltd [1907] 1 KB 502 Fair Work Ombudsman v Ramsey Food Processing (2011) 198 FCR 174 Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56 Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613; 111 IR 241 Flegg v Hallett [2015] QSC 167 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Guise v Kouvelis (1947) 74 CLR 102 Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695 Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 Ho v Powell (2001) 51 NSWLR 572 Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Holmes a Court v Papaconstuntinos [2011] NSWCA 59 Homecare Direct Shopping Pty Ltd v Gray [2008] VSCA 111 Horrocks v Lowe [1975] AC 135 Howe & McColough v Lees (1910) 11 CLR 361 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 Kernsley v Foot [1952] AC 345 Lange v Australian Broadcasting Company (1997) 189 CLR 520 Lindholdt v Hyer [2008] NSWCA 264 Makim v John Fairfax & Sons Ltd (Unreported, Supreme Court of New South Wales, Hunt J, 15 June 1990) Marshall v Megna [2013] NSWCA 30 Megna v Marshall [2010] NSWSC 686 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 Odco Pty Ltd v Building Workers' Industrial Union of Australia [1989] FCA 483 Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 Papaconstuntinos v Holmes a Court [2012] HCA 53 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 Restifa v Pallotta [2009] NSWSC 958 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Roberts v Bass (2002) 212 CLR 1 Rush v Nationwide News Pty Ltd [2018] FCA 357 Rush v Nationwide News Pty Ltd (No. 7) [2019] FCA 496 South Hetton Coal Company Ltd v North Eastern News Association [1894] 1 QB 133 State of New South Wales v IG Index plc (2007) 17 VR 80 Templar v Watt (No 3) [2016] NSWSC 1230 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Texts Cited: Defamation Bill Second Reading Speech of the Attorney General (Mr Debus, MLA), NSW Legislative Assembly, Hansard, 13 September 2005 J D Heydon, Cross on Evidence (electronic version, LexisNexis) M Irving, The Contract of Employment (2nd ed, 2019, LexisNexis Butterworths) The Hon. Mr Justice D.H. Hodgson, 'The Scales of Justice: Probability and Proof in Legal Fact-Finding' (1995) 69 ALJ 731 Category: Principal judgment Parties: Aaren Pty Ltd trading as Price Beat Travel (Plaintiff) Ms P Arya (Defendant) Representation: Counsel: Mr C Dibb for the plaintiff Ms S Chrysanthou SC and Mr N Olson for the defendant Solicitors: Redline Legal for the plaintiff Gill Lawyers for the defendant File Number(s): 2019/67916 Publication restriction: Nil INTRODUCTION THE MATTER COMPLAINED OF IS THE PLAINTIFF AN EXCLUDED CORPORATION? Evidence for the plaintiff Mr Sharma's evidence Ms Patel's evidence Documentary evidence Evidence for the defendant The parties' contentions The plaintiff's contentions The defendant's contentions Consideration Construction of 'employs' Findings on 'employees' Features of labour hire arrangements The Multi-Factor test The significance of the onus of proof Conclusion Not related to another company WERE THE IMPUTATIONS MADE OUT? Imputation A Imputation B Imputation C WHETHER IMPUTATIONS DEFAMATORY THE DEFENCES – THE EVIDENCE Evidence for the defendant Conversation with Ms Agrawal on 17 June 2018 The defendant's experience at Kuala Lumpur on 18 June 2018 The defendant's 'complaints' – 28 June to 2 July 2018 Evidence for the plaintiff Mr Sharma's evidence Ms Patel's evidence Credit Mr Sharma Ms Patel Ms Arya THE INDIVIDUAL DEFENCES Justification The parties' contentions The defendant's contentions The plaintiff's contentions Consideration Statutory qualified privilege Statutory provisions Relevant authorities The parties' contentions The defendant's contentions The plaintiff's contentions Consideration Interest Reasonableness Common law qualified privilege The parties' contentions The defendant's contentions The plaintiff's contentions The defendant's contentions in reply Consideration Reciprocity of duty (or interest) and interest Connection to the occasion Malice Principles The parties' contentions Consideration Honest opinion The parties' contentions The defendant's contentions The plaintiff's contentions Consideration Expression of opinion or statements of fact? Public interest requirement Proper material Material published on the occasion of privilege Whether material substantially true DAMAGES Mr Sharma's Evidence Loss of reputation evidence Evidence for the plaintiff Evidence for the defendant Principles for damages awards in defamation The parties' contentions The defendant's contentions The plaintiff's contentions The defendant's contentions in reply Consideration SUMMARY ORDERS Judgment INTRODUCTION 1. The plaintiff is the owner of a travel agency which operates at Harris Park, a suburb in the Greater West of Sydney. On 17 June 2018, the defendant received the news that her sister, who was residing in India and who had recently had a lung transplant, was in a critical condition. That afternoon, the defendant urgently sought to make flight arrangements to fly to Chennai to be with her sister as soon as she could. To do so, she acquired the plaintiff's services. She booked flights for herself and her child, who was then only about 18 months old. The carrier was Malaysia Airlines. The arrangements would see her the next day flying from Sydney to Chennai with a stopover in Kuala Lumpur. She had return flights booked on 3 July 2018 which followed the same flight pattern as her trip to Chennai. Because she had her infant child with her, she asked a representative of the plaintiff, Ms Megha Agrawal, who serviced her, to ensure that at all times there would be a bassinet on the plane and that the airline could provide baby food. She says that she received both verbal and written assurances from the plaintiff that the carrier would provide these facilities. 2. On 18 June 2018, after the first flight had landed at Kuala Lumpur after the completion of the first leg of the journey and before the second flight was scheduled to take off to Chennai, the defendant received information from the airline that it could not provide her with a bassinet and could not provide food for her baby. This caused significant consternation to the defendant, but because of the need to get to Chennai to be with her sister, the defendant put up with it. But in remonstrating with the Malaysia Airlines staff, the defendant claims that she felt significant embarrassment in front of the other passengers. According to her account, the airline staff had indicated to her that they had no record of any payment, and therefore had no record of any requirement, to provide the facilities for a bassinet and baby food. The defendant says that thereafter, she endured a miserable flight from Kuala Lumpur to Chennai in which, amongst other things, she could not feed her infant. Eventually, when she arrived at the hospital in Chennai on 19 June 2018, she learnt that her sister was already brain-dead. About a week later, she contacted the plaintiff to see if she could change her return flight to Sydney following her sister's death. 3. On 2 July 2018, the defendant published a post on the Facebook page of a community group called 'Desi Mums Connect (Sydney)'. The profile of this community group had three characteristics: the members were mothers; they were of Indian extraction; and they lived in Sydney. The defendant's post was, to put it neutrally, extremely critical of the quality of plaintiff's services. 4. By this proceeding, commenced on 1 March 2019, the plaintiff sues the defendant for damages for defamation arising from a publication. The defendant's post of 2 July 2018 was the 'Matter Complained Of'. The plaintiff contends that the Matter Complained Of, by its natural and ordinary meaning, meant and was understood to carry the following defamatory imputations: 1. the plaintiff cheated the defendant by charging $180 for an airline ticket for her infant daughter, but not passing on any payments to the airline; 2. the plaintiff cheated the defendant by issuing her a ticket with such false information on it that the defendant had to book another ticket to travel home from India; and 3. the plaintiff was so incompetent as a travel agent that the defendant's daughter was forced to travel all the way to India without food or a bassinet to sleep in. 1. By reason of the publication of the Matter Complained Of, the plaintiff says it has been greatly injured in its character, credit and reputation and brought into public hatred, ridicule and contempt. 2. The defendant admits the publication although contests whether it was defamatory in its natural and ordinary meaning as alleged. The defendant also relied upon a range of defences. They are: 1. justification (under s 25 of the Defamation Act 2005 (NSW) ('the Act')); 2. common law qualified privilege; 3. statutory qualified privilege (under s 30 of the Act; and 4. honest opinion (under s 31 of the Act). 1. Putting the matter very simplistically and neutrally for present introductory purposes, the defendant referred in her Defence to the circumstance that the 'Desi Mums Connect (Sydney)' was a private part of the community, being a group of mothers, with Indian background, living in Sydney. She contends that the plaintiff specialised in organising travel from Australia to India. The subject matter of the Matter Complained Of was the quality of service that the defendant received when travelling (under what she says were personal and urgent circumstances) with her 18 months old daughter and a sequence of events which she contends caused inconvenience to her during that travel. That travel had been arranged by the plaintiff. The defendant says that the publication published on the 'Desi Mums Connect (Sydney)' group Facebook page occurred after she had sent messages of complaint to the plaintiff, in which she had invited a response, but she had not received any response. She says she also warned the plaintiff of her intention to publish critical matter of them if she did not receive a proper response. 2. In its Reply, the plaintiff denies that the common law qualified privilege can subsist since the Matter Complained Of was not published on the occasion of qualified privilege or, alternatively, the occasion of privilege was exceeded. Further, if it was published on the occasion of qualified privilege or statutory privilege, the plaintiff contends that the defendant was actuated by malice in the publication of it. In this regard, the plaintiff contends that the defendant had already known of the prospect of the things she complained about at the time she made her booking and when she asked the plaintiff to arrange for a variation of her return travel to Australia, she was informed about her need to pay a fee. But, the plaintiff says, the defendant refused to pay the fee. The plaintiff says that the defendant was motivated to publish the matter complained of because of her desire to injure the plaintiff caused by her anger at being refused a waiver to pay a fee for the flight variation. The plaintiff also contends, based upon these same matters, that the defence of honest opinion is inapplicable since the defendant did not honestly hold that opinion. THE MATTER COMPLAINED OF 1. On 2 July 2018, the defendant uploaded the following post on the 'Desi Mums Connect (Sydney)' Facebook page. I will insert line referencing adopted by the parties – in Exhibit A - for ease of later reference: "3 Hello Mums, 4 I would like to share my recent experience with 5 Pricebeat Travels Harrispark. 6 I recently bought a return flight from this agent to go 7 to India. 8 It was only me and my baby were travelling along. 9 When I got my ticket from Pricebeat Travels, it clearly 10 shows that Baby bassinet and baby meal is confirmed 11 on both sides. 12 But when I boarded my flight, I was not given Baby 13 bassinet, no baby food. 14 And after asking the flight staff, I was told that baby 15 ticket, bassinet and food wasn't confirmed. 16 They also said that they haven't received any money 17 for baby to travel in their flight. 18 I was shocked to hear that. 19 I showed them my ticket and they denied to accept 20 the ticket. 21 According to them, this agent had done something 22 wrong. 23 Because airline hasn't received any money for baby to 24 travel. 25 But this agent charged me $180 for baby. 26 I was travelling for some family unforeseen mis 27 happening. 28 I was already in stress and this flight gave me more 29 stress. 30 All the way, my daughter was sleeping in my lap and 31 she was crying due to hunger. 32 I didn't have any food to give to my daughter. 33 I always confirm baby food when I book my ticket. 34 But this time, this agent cheated us. 35 Not just this. I had to face very insulting comments by 36 airline staff. They said in front of all the passengers 37 and other staff members that: Madam you haven't 38 paid anything for your baby. You should have checked 39 everything before you boarded the flight. 40 And then after I emailed this agent about the whole 41 drama happened. But he didn't reply back. 42 Because of this agent, I had to book New ticket to 43 come back from India, because this ticket has all false 44 details on it. 45 When I emailed this agent saying that I am not 46 boarding the flight again o. The way back coz of all 47 this experience, he didn't even bother to reply back. 48 I would highly suggest not to book any flight from 49 Pricebeat Travels. 50 Thanx" IS THE PLAINTIFF AN EXCLUDED CORPORATION? 1. The first issue is whether the plaintiff, as a corporation, has the capacity to sue the defendant in defamation. Section 9 of the Act provides that: "(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication. (2) A corporation is an excluded corporation if-- (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators, or (b) it employs fewer than 10 persons and is not related to another corporation, and the corporation is not a public body. (3) In counting employees for the purposes of subsection (2) (b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent." Evidence for the plaintiff Mr Sharma's evidence 1. Mr Amit Sharma is the General Manager of the plaintiff. He is married to Ms Nikita Patel, who is the sole director of the plaintiff. He is answerable to her and is subject to her authority in the running of the plaintiff's business. Mr Sharma stated in evidence that in 2018, at about the point of the post, he was one of 5 people who worked at the plaintiff's Harris Park premises. 2. He also stated that the plaintiff had an arrangement with an entity, Abyan Consultancy, which runs a Call Centre situated in Indore, in India. Mr Sharma explained the practical operation of the arrangement was such that if any of the persons in the Harris Park premises were not able to deal with calls put through to them, the calls would divert to the Abyan Consultancy call centre. He estimated that there were about 30 or 40 persons in such call centres who could potentially receive calls form persons trying to contact the plaintiff. The call centre was managed by Ms Megha Agrawal. Ms Agrawal has, so the Court was informed, an email address linked to the plaintiff's business. Mr Sharma says that he gives instruction or direction to Ms Agrawal. Another person who Mr Sharma identified as working at the Abyan Consultancy call centre was Gunjan Mehra, who was said to have managed others in the call centre. 3. Mr Sharma said that none of those people in the call centre wore any uniform associated with the plaintiff. It was a matter for Abyan Consultancy whether calls would even be received. He said that he was not notified of the extent to which calls intended to be directed to the plaintiff were answered. 4. In cross-examination, Mr Sharma's evidence about the plaintiff's dealings with Abyan Consultancy was probed. He was referred to a photograph indicating the plaintiff's name on the front door of a location in Indore. Mr Sharma disputed that that his was a logo of the plaintiff although he did not dispute that the plaintiff's name was inscribed – he added that it had been inscribed by his young daughter. In re-examination he said that his daughter had inscribed it in December 2018. He explained that it was his brother's office, in which 6 people worked. It was suggested that it numbered at least 9 employees but he did not accept that. It was pointed out that the entity 'Abyan Consultancy Pty Ltd' was not incorporated until after the post in issue in this proceeding, in 2019. 5. In cross-examination, many (up to twenty, on my count) individuals' names were referred to Mr Sharma who had email addresses apparently associated with the plaintiff's email address. Mr Sharma identified some of them as having self-described titles which also appeared to be associated with the plaintiff and Mr Sharma was asked whether these people worked for the plaintiff. He was not aware of some of them at all, and in some instances was unaware whether they worked for the plaintiff. 6. It was put to Mr Sharma that all of these individuals were paid, albeit indirectly, by the plaintiff and, further, that the plaintiff had failed to produce documents requested of it for fear that this might expose that fact, and also other circumstances to show, that the services supplied by people in the call centre were employees of the plaintiff. Mr Sharma did not dispute that the plaintiff had paid Abyan Consultancy. 7. It was also suggested that, upon his recall as a witness, he had changed his earlier evidence in which he said that he shared an office with his brother, to giving evidence (upon recall) that it was not his office, but rather that it was his family's office. His recall had occurred after Ms Patel had given evidence saying she was unaware of any office that Mr Sharma had used. Mr Sharma denied shifting his evidence and suggested that he did not completely understand the earlier questioning raised of him in this respect. 8. In re-examination, he said that in no case where anyone had supplied services and/or had received payment by the plaintiff were the terms of their work directed by the plaintiff. In relation to some of the more important persons whose names were in evidence, Mr Sharma said that the plaintiff did not pay Megha Agrawal and did not set the terms of her work. He said that the plaintiff did not pay Gunjan Mehra, nor had control over her work hours. He said that she was the team leader for the consultants and would typically contact him, or other staff for the plaintiff, if a customer of the plaintiff had raised an issue. 9. The plaintiff submitted that it ran a small travel agency employing only 5 or 6 employees. Although there were persons in an offshore call centre, they were independent of the plaintiff. Ms Patel's evidence 1. Ms Nikita Patel Sharma [1] is the sole director and sole shareholder of the plaintiff. 2. Under cross-examination, Ms Patel was asked about her awareness of the management of Abyan Consulting and the address where it did its business from in India. When it was suggested that the plaintiff shared that address, she denied the suggestion. She indicated that it was her husband, Mr Sharma, who was responsible for arrangements with that consultancy and that so far as she was aware, he did not run any business from the address. 3. She understood that an arrangement with Abyan Consulting was entered into by which the plaintiff could outsource telephone calls made to it to Abyan Consulting after hours; but had no real understanding of the details of that arrangement. Documentary evidence 1. The plaintiff relied upon an Agency Agreement entered between the plaintiff and an entity described as 'Abyan/Travel To Fly' (Exhibit I). The agreement was entered into in 2016 for a scheduled term of one year, which was due to expire in August 2017. However, Mr Sharma said that it was extended by oral agreement with Alok Verma and Manish Chawla, who are both presently in India. 2. The content of this agency agreement was as follows: "Agency Agreement THIS AGREEMENT (this "agreement"), dated as of 14 Aug 2016, is between Pricebeat Travel, Australia, with offices Located at Suite 1, 126 Maesden Street Parramatta (here in) Abyan/Travel To Fly, Indore, Incorporated, with offices located at, 1st floor, 103 Darshan Mall M.G Road, Indore M.P. WHEREAS, Pricebeat Travels engaged in businesses including travels and tour operations. WHEREAS, Pricebeat Travel desires Abyan/Travel To Fly to provide customer support and telemarketing services to customers and potential customers of Pricebeat Travel's Travel business and Abyan/Travel To Fly Indore desires to provide such services, on the terms and conditions set forth. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereby agree as follows: ARTICLE 1 DESCRIPTION OF SERVICES SECTION 1.1. Engagement OF Abyan/Travel To Fly Subject to the terms and conditions of this Agreement, Pricebeattravel here by retains Abyan/Travel To Fly to provide the Customer support and telemarketing services set forth below (collectively, the "Services"), and Abyan/Travel To Fly here by accepts such engagement. (a) Abyan/Travel To Fly provide Pricebeat Travel inbound and outbound teleservice support for Pricebeat Travel Customers who have purchased airline tickets through theSite or direct bookings/or theToll-Free Number. (b) Abyan/Travel To Fly Indore offers to handle all the backend operations of Price Beat travels and shall operate the same from its offices in India. Abyan/Travel To Fly shall access and operate all the emails and telecall services of Price Beat Travels from India. (c) Abyan/Travel To Fly will offer the above-listed services and staff services (recruitment and salaries to be paid by Abyan/Travel To Fly pursuant to the terms of this partnership agreement. In return, Price Beat Travels agrees to pay the Agency commissions based on actual sales and number of calls. (d) Abyan/Travel To Fly will also provide such additional relatedservices as set out in this Agreement (herein "Related Services") including, without limitation, the following: Abyan/Travel To Fly agrees to notify Pricebeat Travel on a daily basis all information and data pertaining to business. The parties agree that Abyan/Travel To Fly. Ltd is responsible for fulfilling such requests. Should Pricebeat Travel notice obligations significantly interfere with its primary Service activities, Abyan/Travel To Fly will notify Pricebeat travel. The parties agree that upon such notice, they will workcooperatively toward an amicable solution. (d) All customer interactions over emails, phone calls and responses would be handled by Abyan/Travel To Fly In event of any customer dissatisfaction or misconduct, Abyan/Travel To Fly will be liable and will be held responsible. SECTION 1.2. TELECOMMUNICATIONS COST PRICEBEAT assumes all expenses related to the sending of Contracts to Abyan/Travel To Fly, including provision of telecommunication lines and the bearing ofnetwork costs associated with routing Inbound Calls to the Facility. Abyan/Travel to Fly is responsible for properly equipping the Facility with the necessary hardware to receive and handle Contacts as required by this Agreement. SECTION 1.3. TRAINING & RECRUITMENT Pricebeat Travel will provide one copy of necessary training materials to Abyan/Travel To Fly on all versions and aspects of Products that are unique or specific to Pricebeat travels 's services at no charge to Abyan/Travel To Fly agrees to se said documentation for Service purposes only. Abyan/Travel To Fly agrees to use all training materials for training and support purposes for the Services only. Abyan/Travel To Fly to provide training to its employees at the Facility, which shall include (at a minimum) training on the standard types of underlying hardware, operating system andapplication (e.g. browser) software required or typically used in conjunctionwith the Travel Services. Pricebeat Travel shall have the right to review and approve thelevel of proficiency and the performance of quality Services. Training & Recruitment of the personals and their respective salaries shall paid by Abyan/Travel To Fly. Pricebeat Travel will not be involved in selection, recruitment or layoffs made by Abyan/Travel To Fly. In any event of dissatisfaction or objection with working style or customer unhappiness with the consultant, the issue will be resolved by the Manager Mr Alok Verma. SECTION 2. FEES FOR SERVICE Pricebeat Travel will pay Abyan/Travel To Fly. a sum of Rs 15,000/- (Rs Fifteen thousand per day) (Inclusive of aforesaid services and all the taxes). -6- SECTION 3. PAYMENT The fee shall be paid on or before the 10th of every month. In addition, Abyan/Travel To Fly will bill Pricebeat Travel for Related Services and such other charges as areprovided for herein on an as incurred basis (along with its regular monthly invoice). SECTION 4. RECORD KEEPING Abyan/Travel To Fly. agrees to keep accurate books of account and records (inaccordance with generally accepted accounting principles consistently applied).Such books and records shall be maintained by Abyan/Travel To Fly for a period of thee (3) years after termination or expiration of this Agreement. SECTION 5. TERMS This Agreement shall remain in effect for a period of 1 year from the agreement date. Upon the completion of this agreement the Parties may agree to extend for 1 year from the completion date. SECTION 5.1. TERMINATION FOR CONVENIENCE Pricebeat Travel may terminate this Agreement at any time during the Initial Term and any Renewal Term without cause upon at least ninety (90) days written notice to Abyan/Travel To Fly. SECTION 6. INTELLECTUAL PROPERTY Abyan/Travel To Fly agrees to disclose and furnish promptly to PRICELINE any and all technical information, computer or other apparatus programs inventions, specifications, drawings, records, documentation, works of authorship or other creative works, ideas, knowledge or date, written, oral or otherwise expressed, first made or created for and paid for by Pricebeat travel. SECTION 7. ACCEPTANCE The parties hereby acknowledge the receipt and understand of all the terms and conditions as outlined in this travel agency agreement. For Pricebeat Travel: Amit Sharma (manager) For Abyan/Travel To Fly: Alok Verma (Manager) SECTION 7.10. NOTICES Any notice required or permitted hereunder shall be deemed sufficient if given in writing and delivered personally, by facsimile transmission, by reputable overnight courier service or Australia, postage prepaid, to the addresses shown below or to such other addresses as are specified by similar notice, and shall be deemed received upon personal delivery, upon confirmed facsimile receipt, two (2) days following deposit with such courier service, or three (3) days from deposit in the Australia mail, in each case as herein provided:" 1. The plaintiff also tendered company tax returns for the plaintiff for the financial years ended 30 June 2018 and 30 June 2019; as well as financial statements for the company for the year ended 30 June 2019 [2] . The last statement, which Counsel for the plaintiff specifically referred to in his closing address, detailed wages in the amount of $265,000 for the financial year, being the year in which the Matter Complained Of occurred. Evidence for the defendant 1. The defendant relied upon an extract from the plaintiff's website which contained the statement that the plaintiff had "over 40 staff members based in Sydney, Melbourne and India…" (Exhibit 1). 2. The defendant put in evidence, over the plaintiff's objection, a company extract of Abyan Consulting Private Ltd (Exhibit 17). This indicated that the entity was incorporated on 4 June 2019, after the publication of the Matter Complained Of. 3. The defendant also tendered a bundle of emails (Exhibit 18) of persons apparently resident in India, with close resemblance to the plaintiff's email address and affiliation with the plaintiff's IT server. Some of those emails indicated that the workers occupied positions or had titles affiliated with the plaintiff. Thus, the following workers, located in India, were identified by the following titles, or offices, associated with the plaintiff: * Gunjan Mehra, Associate Director; * Megha Agrawal, Travel Consultant – Sales; * Alka Tripathi, Travel Consultant – Sales; * Kartik (surname not identified), Travel Consultant; and * Amit Sharma, Director. 1. These individuals all had email addresses linked to the plaintiff's email system and their addresses were represented to be the plaintiff's Harris Park office address. 2. Abhilash Jaiswal was identified, in a document resembling a curriculum vitae, as being the 'Director – Business Development' of the plaintiff. The parties' contentions The plaintiff's contentions 1. The plaintiff accepted that it carried the onus of proof on this issue, but noted that the civil standard applies, and also emphasised that the plaintiff was required to prove a negative: that it did not have more than 10 employees. The plaintiff noted that the wages recorded in its financial statement for the year ended 30 June 2019 (covering the events in question) indicated that wages were only about $265,000. Under the definition of the legislated minimum wage (about $719 per week, or $37,388 per year), the arithmetic suggested that there could not have been more than 7 employees (reasonably assuming that they were earning no less than the minimum wage). The plaintiff asserted that I should apply the "industrial" meaning of the word 'employee' following the Court of Appeal's decision in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [3] and follow the view that only workers with employment contracts with the plaintiff counted, for the purpose of the provision. It would go beyond Born Brands to accept that hired labour engaged by a corporate plaintiff could be regarded as the corporation's employees. 2. The plaintiff submitted, with reference to extrinsic material, that s 9 was directed to conferring an entitlement upon a 'small business' to sue [4] . This is what the plaintiff was. It is not novel for corporations to make use of the services of persons in other corporations. As the arrangement with Abyan Consultancy indicated in its terms, it is the consultancy that directs and controls the personnel. If it was necessary to consider earlier case authorities distinguishing employees from independent contractors, it should be found that the plaintiff did not exercise control over personnel in the office in Indore. There is no imperative policy (as there was in the vicarious liability cases) to treat persons deployed by Abyan Consultancy as this plaintiff's employees. The Agency Agreement indicated that the plaintiff was paying Abyan/Travel To Fly a flat fee for commission. How that was distributed to staff that this entity had retained was a matter for that entity. The defendant's contentions 1. The defendant contended that Born Brands, properly construed, did not preclude a finding that workers under labour hire arrangements or who would be regarded as employees in accordance with common law principles could be regarded as 'employees' for the purpose of the legislative provision. To admit of that possibility would be consistent with a legislative intention to limit the right in corporations to sue in defamation. 2. The defendant submitted that on the plaintiff's case, at least 5 people (including Mr Sharma) worked in the plaintiff's Harris Park offices. But once one considered the indications as to the totality of the relationship between the plaintiff and the workers in India (not to mention its other office in Melbourne), featuring their close integration with the plaintiff's business, what they were doing, how the plaintiff held them out to the public (with some of them holding themselves out as occupying certain positions with the plaintiff) and the plaintiff's own marketing of the size of its labour force, the indications were that, in accordance with the principles of vicarious liability, these workers could be regarded under common law principles as the plaintiff's employees; rather than independent contractors. Accordingly, the Court could not be satisfied that there were fewer than 10 employees. The defendant submitted that the plaintiff, who carried the onus of proof on the issue, could have produced other documents, or called other evidence, to prove it had less than 10 employees, but it did not. 3. The defendant separately submitted that the plaintiff did not prove the other aspect of the test, being that it was not a 'related corporation'. Consideration 1. The plaintiff carries the onus of proving that it is an excluded corporation [5] . Section 9 manifests legislative policy that, subject to limited exception, corporations should generally not have the capacity to sue. In this way publishers are conferred a "real and effective immunity from a defamation suit brought by most companies." [6] 2. In the extrinsic material placed before the Court, the Attorney General indicated that s 9(2) was the product not only of legislative compromise, but also a compromise within the relations between the federal and state (and territory) governments. The New South Wales Government's preference was to exclude a right to companies to sue at all, but the Commonwealth was reputed to support such right. The NSW Government's preference for outright prohibition was explicable on the basis that: "…corporations are not people and they do not have personal reputations to protect. Their interest is purely commercial. The commercial reputations they enjoy are often the product of expensive marketing campaigns and there are other legal actions, including actions for injurious falsehood, that corporations can take to defend their interests." [7] 1. However, "in the spirit of compromise", the Government agreed to a "small business exemption". Small businesses related to other companies could not sue. 2. The relevant exception relied upon here by the plaintiff is s 9(2)(b). The plaintiff is required to prove that it: (a) employs fewer than 10 persons, and (b) is not related to another corporation. Construction of 'employs' 1. Judicial exegesis of the word 'employs' in the context of s 9(2)(b) is still evolving. In obiter dicta in Born Brands at [104], Basten JA (Meagher JA and Tobias AJA agreeing) rejected a construction [8] that focussed upon the number of persons whose services a company was using in preference for the construction that the provision assumed that persons were "employees", being persons "having a contract of employment". 2. At [106] Basten JA noted a submission received by the publisher in that case to the effect that the term "employees" may not simply be limited to 'employees at common law', but could extend to individuals involved in a corporation's day to day operations and subject to its direction and control; including persons supplied by labour hire firms. But his Honour determined that as no factual issue arose concerning workers of that kind, it was "unnecessary to resolve the limits of the section." 3. The observations of the Court of Appeal were in obiter dicta because the Court of Appeal had determined that the plaintiffs had no claim in any event (at [100]). Nevertheless, both parties urged upon me, and I accept, that in clearly considered dicta of the Court of Appeal, I am bound to apply it. 4. What the Court of Appeal was rejecting in Born Brands was the construction of s 9(2)(b) which required a finding of the number of persons who were providing services to the corporation (whether they were employees of not), and instead, emphasising the requirement that the provision requires consideration of the number of employees. But in positing that the question turned on how many employees there were, I do not understand the Court of Appeal as limiting the notion of 'employee' to someone who the corporation directly engaged in a contract of employment; rather than, say workers procured by a corporation's agent or employees hired under arrangements with a labour hire firm. If it had, it would likely have foreclosed the submission advanced on the part of the respondent in the appeal in Born Brands that an employee could be interpreted in accordance with its common law meaning, and embraced those workers, procured for the corporation by an agent, who could properly be characterised as employees, having regard to common law principles. It did not. It left the question open: [106]. This it did, partly because the claim in defamation failed anyway, but also because the question which the defendant now wishes to agitate did not seriously arise on the facts in the Born Brands litigation. As the trial judge in that litigation indicated, what was in issue was whether a number of persons who happened to provide a miscellaneous range of services (such as product promoters, marketing assistants, IT services and other 'service providers') were persons who, under the prevailing but erroneous construction in Redeemer Baptist of being service providers to the corporation, met the statutory definition [9] . 5. Accordingly, I proceed on the basis that Born Brands does not preclude me from considering whether other workers, other than those directly engaged under contract with the corporation, may be characterised as employees for the purposes of the provision. 6. Whilst there is a reasonable view that the concept of employee under the Act must be construed in accordance with its own context and purpose, for two reasons, in my view, the proper approach for a trial judge to apply when construing the concept under s 9 the Act is to accept that it extends to its common law definition of "employee". 7. First, there is authority for the view that when construing legislation providing for "employees", Courts should generally apply the test of whether a worker would meet the definition of an employee under common law, absent a contrary indication (such as where the legislation in question itself indicates that the notion of an employee extends to some persons and deems them to be employees) [10] . In Aid/Watch Inc v Federal Commissioner of Taxation, the plurality in the High Court said: "Where statute picks up as a criterion for its operation a body of the general law, such as the equitable principles respecting charitable trusts, then, in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time. Further, where, as here, the general law comprises a body of doctrine with its own scope and purpose, the development of that doctrine is not directed or controlled by a curial perception of the scope and purpose of any particular statute which has adopted the general law as a criterion of liability in the field of operation of that statute" [11] . 1. As Allsop CJ recently said in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, statute can create a status that provides for consequences different to the application of common law principles [12] , but there is no indication that in the Act the New South Wales Parliament intended to depart from those principles when construing the meaning of 'employees'. 2. Accordingly, where the Act by s 9(2)(b) chooses the criteria of 'employee' (and a maximum number of them) as a condition for a corporation to sue, it picks up common law principles as to what the term means; and those principles should be applied without any necessity to construe the scope of the object of the Act which has deployed the concept of employee. 3. Secondly, the desirability of accepting the common law understanding of employee is, in my view, heightened in the context here where, as Counsel for the plaintiff pointed out, the New South Wales Parliament's enactment of s 9 was the result of a compromise between different viewpoints, at federal and state levels, as to whether corporate plaintiffs should be allowed to sue at all. Reliance upon common law principles that underscore the concept of 'employee' is likely to make it less likely that the legislative object misses its target than a construction of the purposes of the Act; which legislation does not refer to employees otherwise than with reference to their status. Thirdly, and related to the second point, the importance of adopting the common law principles will likely assist in facilitating conformity or consistency in the interpretation of the concept in other states' and territories' legislation; which is one of the statutory objects in the legislation [13] . 4. Accepting, then, that the common law principles of who is an employee are relevant, a prominent, if not the foremost, criteria for determining whether a worker is an employee of someone or is an independent contractor is whether that someone would be vicariously liable for any wrong done by the employee. This is because, as has been commented, of all the miscellany of common law doctrines applicable to parties to an employment contract, it is that which governs an employer's vicarious liability which primarily determines the common law meaning of an employee [14] . Further, where an Act uses the common law concept of employment, then subject to contrary intention, it is using the meaning arising from vicarious liability [15] . 5. This gives rise to a further complication, however. As McHugh J found in his concurring judgment in Hollis v Vabu Pty Ltd, vicarious liability does not necessarily depend upon a finding of an employer's responsibility for its employee's conduct. Vicarious liability can arise from the conduct of an agent, imputed to his or her principal [16] , or anyone the subject of the employer's direct control [17] . 6. Finally, noting the High Court's reference in Aid/Watch Inc to the statute speaking continuously from time to time, I do not accept that, to the extent that the common law shapes the conception of an employee in a way which could extend to labourers who have been procured from an agency, these hired labourers should be excluded, in principle, from attaining the status of 'employees' as that status appears in the Act, if they meet the characteristics of employees under common law principles. Findings on 'employees' 1. There is, as the defendant contends, evidence to suggest 5 workers operate in the Harris Park office for the plaintiff. I accept also that, on the basis of the accounts adduced, on the assumption that they are paid the average wage, there are fewer than 10 employees. But those accounts have been generated on the contestable premise that the plaintiff does not regard the workers located in the Indore region in India (who I will henceforth refer to, without any intended disrespect, as 'the Indian workers'), who work for the plaintiff, as its employees. 2. However, the issue is not determined by the plaintiff's subjective belief. This is why, contrary to multiple urgings by the plaintiff's Counsel, I disallowed questions raised of Mr Sharma as to what he regarded as the number of employees that the plaintiff had. The task is to be considered objectively and, as I have indicated, in accordance with common law principles. On the other hand, it might arguably have been open for Mr Sharma to give evidence as to the provenance of the Agency Agreement with Abyan/Fly To Travel, but he did not do so, not necessarily to aid in its construction, but to indicate the plaintiff's business purposes in securing labour. Features of labour hire arrangements 1. Common law principles have developed in relation to cases where corporations use hired labour as a result of arrangements with labour hire firms. In relation to labour hire arrangements, they were considered in Odco Pty Ltd v Building Workers' Industrial Union of Australia [18] . Typical features of such arrangements include a labour hire firm offering those workers 'on its books' placements with the firm's business clients. Commonly, the business client pays the firm an amount to cover the cost of the work performed by the worker placed with it, and of the service provided by the firm, with the worker in turn paid by the firm, which may also be responsible for other matters, such as leave entitlements. Such arrangements may be attractive to corporations who can obtain labour without the associated responsibility for statutory rights and protections available to employees. 2. In labour hire arrangements, an employee of a hire company may be loaned, seconded, or hired to another company (the end user) for its labour, without any change in the status of the labourer as being an employee of the hire company. The law recognises, also, that a contract of employment cannot be unilaterally assigned [19] . Labour hire arrangements, as Counsel for the plaintiff rightly says, are not illegal or regarded as illegitimate. However, as Buchanan J observed in Fair Work Ombudsman v Ramsey Food Processing, there are two questions that require exploration before the possibility that the labourer could be classified as an employee of the end user could be dispelled: first, whether the labourer is actually in an employment relationship with the hire company; and secondly, whether the hire company is actually conducting a business of its own as a hirer of labour [20] . In the absence of an employee relationship between the labourer and the hire company, and in the absence of a finding that the hire company is in business on its own account, an inference may be drawn that the hire company is acting as an agent of the end user and that there is no natural impediment to a finding that the labourer could be regarded as an employee of the end user. 3. The Court has before it a written agency agreement between the plaintiff and Abyan/Fly To Travel. I am prepared to accept, on the probabilities, Mr Sharma's evidence that it had been extended by verbal variation, even if there was no document evidencing an agreed extension of the term (beyond 14 August 2017). There was no specific requirement for the variation permitting extension of the term of the arrangement to be in writing (Section 5). It would be difficult to see, in the absence of an agreed extension of the arrangement between the plaintiff and Abyan/Fly To Travel, what obligations that the plaintiff had to pay Abyan/Fly To Travel the commission to finance its expenses, as at the date of the Matter Complained Of (2 July 2018) if it had not. 4. The title of this document is an obvious indication that Abyan/Fly To Travel, though an intermediary, is an agent and that the subject matter of what it does is (like the plaintiff) connected flight travel. There is no indication within that document, nor other documents in evidence, which suggests that it might operate a business on its own account as a genuine labour hire company (i.e. it has relationships with multiple clients). But to the questionable extent that written contracts should be treated as determinative of the real substance of the relationships [21] , production of the Agency Agreement is, as I have suggested, only one part of the contractual documentation one might expect to have placed before the Court. As was noted recently in CFMEU v Personnel Contracting Pty Ltd, it is not unexpected in the situation of genuine labour hire arrangements that the "end user" of the labour (here the plaintiff) would not have any express contract with the hired worker (the Indian workers), but rather, the relevant express contracts would be between the end user of the labour and the labour hire firm; and between the labour hire firm and the hired worker [22] . In this case, although the plaintiff adduced evidence of an arrangement with the labour hire firm, there was no evidence as to any overriding arrangement, as between the labour hire firm and the hired workers. The Agency Agreement between the plaintiff and Abyan/Fly To Travel is not conclusive of the status of the labourers who are not party or privy to it. But there was no evidence of any overarching arrangement between the agency and the Indian workers, or any individual agreements between the agency and those same workers. 5. The Court has not been equipped with documentation to establish the terms upon which the individual workers worked for the plaintiff and it is possible that, in those circumstances, a contract may be implied by conduct as between the Indian workers and the plaintiff [23] . 6. In my opinion, it is doubtful whether Abyan/Fly To Travel is a genuine labour hire firm and not just an agent for the plaintiff, and there is no demonstrable employment relationship between the Indian workers and Abyan/Fly To Travel. This means that, consistent with common law principles, the Court needs to address the question of whether, viz a viz the plaintiff, the Indian workers are employees or independent contractors. Although there is some academic criticism of dividing workers in what appear to be trilateral arrangements, the binary division remains [24] .This falls to be assessed with reference to the 'totality of the arrangement' as determined by the application of a multi-factorial test [25] . The Multi-Factor test 1. In Hollis v Vabu Pty Ltd the plurality set out [26] a range of factors in the circumstances of that case which were indicative that a bicycle courier was an employee of a courier business and not an independent contractor, such that the latter could be found vicariously liable for the tort of the bicycle courier in injuring the plaintiff. Some of the factors (at [48]-[53]) were invoked by the defendant in this case. Thus, the Indian workers were not shown to possess special qualifications, they had little control over the manner and performance of their work, and they were presented to the public as emanations of the plaintiff. 2. As often happens in this type of dispute, arguments can be made for and against each party. I take into account, and accept the force of the defendant's arguments that the Indian workers were practically absorbed in the plaintiff's enterprise; as indicated by the email addresses and common IT system. Further, they were trained from the same training manual and it appeared that they were essentially performing the same roles as those within the Australian office. It appears that they worked in an office, in Indore, which had the plaintiff's name written on the front door. I also accept the force of the argument that, as if they were wearing a uniform of the plaintiff, they were presented to the public as an emanation of the plaintiff. This was most obvious perhaps in the email addresses (and sign offs in the emails). There was little to distinguish the skill set of the Indian workers from those in Australia. 3. In terms of its operations, the workers in India were supporting the employees in the Australian office(s). This was not only when the Australian operators were otherwise engaged, or when a call was made to the plaintiff's business outside of Australian office hours (such as the call that the defendant made on 17 June 2018), but also in the business' general dealings with clients. This was vividly demonstrated by what occurred in relation to the treatment of the defendant's complaint. Although she had her initial conversation with Ms Agrawal on 17 June 2018, after she had made her complaint by email, it was Gunjan Mehra, based in India, who responded to it, on 3 July 2018. It might be noted that on the face of the email (Exhibit 3) Ms Mehra's address was listed as being the plaintiff's Harris Park address; not any Indian address. As was pointed out, in his evidence, Mr Sharma said he believed that Ms Mehra had the authority to respond to the defendant's complaint. That would constitute a rather extraordinary delegation if Ms Mehra only acted as a contractor. Also, after the defendant had made her complaint, it was Megha Agrawal who made the inquiry of Malaysia Airlines. Mr Sharma said in his evidence that she gave directions to the workers in the call centre but, critically, he gave directions to Ms Agrawal. In this way, Mr Sharma could be viewed as indirectly supplying directions and thereby informing the Indian workers how to do their work. I also agree with the defendant that, in the absence of any of the workers in the Indian office being called to give evidence, it appears that the workers were doing (and were trained to do) exactly the same thing as the employees in the Australian offices. This was an indication that no special skill set was being supplied by the workers in the Indian office, which is one indicia of a contractor [27] . There is also a real question whether Mr Verma himself, for example, is an employee or de facto manager of the plaintiff. There is a real question, generally, whether Abyan/Fly To Travel is itself independent of the plaintiff, as distinct from being thoroughly absorbed within its operations. 4. The similarity in performance of the work between employees in Harris Park and the Indian workers, the holding out to the public of the assimilation between the workers, and the integration of the Indian workers in the system are powerful indications of the Indian workers being employees of the plaintiff. To adopt what the High Court said in its conclusion in Hollis (at [57]), to the outside world, the Indian workers "were" the plaintiff. 5. There were other matters, outside of the terms of the Agency Agreement, which supported the defendant's argument that they were employees, in the form of admissions by the plaintiff. These included the content of the plaintiff's website (Exhibit 1), which relevantly referred to the plaintiff "becoming one of the largest Australian/Indian online travel agency today" and with "around the clock customer service". It was only because of the services of the workers in the call centre in India which enabled the plaintiff to make that boast, and the boast was another apparent indication of the seamless integration of the plaintiff's operations in both Australia and India. Then, although Mr Sharma disclaimed the correctness of the statement, on the spurious basis that the IT manager was responsible for its inclusion, the website stated that it had "over 40 staff members, based in Sydney, Melbourne and India" (emphasis supplied). 6. But there were factors in existence which favoured the plaintiff's argument. They rest, fundamentally, upon matters of form: the provisions in the Agency Agreement, but also Mr Sharma's description of its operation. It was Abyan/Travel to Fly which recruited the Indian workers. There was, therefore, inherently missing the idea that the plaintiff could have selected the worker on the basis of its view as to the worker's merit or, put another way, this is not an obvious manifestation of trust and confidence being reposed in the workers by the plaintiff of the kind that generates fiduciary duty. The hours that the workers worked were not shaped by the plaintiff. It was Abyan/Travel To Fly that determined how much the workers would be paid, out of the commission it received from the plaintiff. On the evidence before the Court, it was not suggested that the plaintiff could have exercised any power of dismissal over the Indian workers. Although the commission paid by the plaintiff to the agency was fixed, that did not translate into guaranteed levels of wages for the workers. But although these matters arose from one document, as I have noted, no other document indicating the formal relationships as between the plaintiff, Abyan/Fly To Travel and the Indian workers were in evidence. The significance of the onus of proof 1. The plaintiff's Counsel accepted that the plaintiff bore the onus of proving the facts in s 9(2)(b). Given that those facts are a precondition in entitling a company to sue in defamation, that concession was correct [28] . I accept, also, Counsel's submission as to the difficulty in proof of a negative. As was noted in a leading text, negative evidence is usually circumstantial or indirect and the difficulty lies when discovering a fact or series of facts inconsistent with the fact sought to be disproved [29] . Any difficulty of proof for the plaintiff cannot, however, be alleviated with recourse to the notion that the defendant has the greater means of producing evidence to contradict the negative proposition, casting an 'evidential burden' upon that party and allowing the Court to draw inferences [30] . Nor can it be suggested that the defendant has such peculiar awareness of facts as to indicate that proof by the plaintiff of a 'scintilla' of evidence is enough [31] . In this case, the opposite is true. The defendant had no knowledge of the employment arrangements in the plaintiff. But if there is a difficulty in a corporate plaintiff in proving a negative, then that is because the Parliament has intended that this should be so. 2. The plaintiff did not call Alok Verma, who executed the Agency Agreement with the plaintiff in order to illuminate whether Abyan/Travel To Fly operated its business truly on its own account, or simply as a useful intermediary to assist the plaintiff's business. He could have given information as to what sources of revenue the 'consultancy' derived from entities other than the plaintiff. He might have given some proof of the nature of the arrangement between Abyan and the Indian workers. For example, a non-exclusivity clause in such arrangement could have been decisive against the notion of employment by the plaintiff. Even a statement that the Indian workers were employees of the agency, whilst not conclusive, would have been a forceful pointer away from the notion that they could be regarded as employees of the plaintiff: it would make it difficult for the defendant to sustain an argument that there was an implied contract between the plaintiff and the Indian workers [32] . There might have been provision for how the workers' services might be terminated, which would also provide an indication that the workers were employees only of Abyan/Fly To Travel. The defendant was able to identify Baleshwar Mudliar, who in June 2019 became a director of Abyan Consultancy Private Limited, as someone who, at the time of the publication, also used the plaintiff's email address and had worked for the plaintiff. Mr Mudliar was copied in to Gunjan Mehra's email to the defendant of 3 July 2018, which was the first substantive written response to the defendant's email of 28 June 2018. He was not called as a witness either. 3. The plaintiff did not call any of the Indian workers, who might, for example, have given evidence about the skills they brought to the task, equipment that they used, what expenses they incurred, who practically guided or directed them in their tasks, or what choice they had in their working hours, which are typical criteria considered when determining whether someone was an employee or independent contractor [33] . Either through an overarching arrangement with Abyan or individually negotiated arrangements, they might have given evidence, for example, of whether or not their work for the plaintiff was exclusive of other clients of Abyan/Fly To Travel, or whether they may have been free to work for other clients. They might have given evidence which would have illuminated for the Court's consideration whether they aspired to work only on their own account, rather than merely seeking payment for their labour. The perceptions of the workers, as to whether they were contractors to, or employees of, the plaintiff, may be a significant factor [34] , but there was no evidence of this. 4. It is no answer for the plaintiff to point to the difficulties of adducing evidence from witnesses located outside of the jurisdiction as exacerbated because of the conditions associated with the current pandemic. The plaintiff did not ever seek to invoke the Court's processes [35] to obtain the evidence of witnesses residing in another jurisdiction on an issue as fundamental as its capacity to sue. It sought no adjournment or stay of the proceeding on account of any incapacity, through no fault of its own, in being able to prove its case. 5. The plaintiff, in this part of the case, had to fall back substantially on the written terms of the Agency Agreement and the testimony of Mr Sharma. For reasons to be elaborated later, I regret to say that I did not regard Mr Sharma as a wholly reliable witness. I agree with the submission of the defendant that so much of what he said was relevantly self-serving in a context where there was a paucity of documentation to establish the connection of the various persons providing services to the plaintiff. Generally, the plaintiff's reliance upon his assertions in the absence of documentation had the effect, if not design, that they were not susceptible to proper testing. This is in a context where not only was there a deficiency in the production of basic categories of documents that might evidence employment arrangements for the plaintiff, but an absence of explanation as to why they could not have been supplied. The missing witnesses that I have identified might have provided corroboration for Mr Sharma's evidence. 6. In my view, the omission to prove the content of the arrangement (whether, as likely, it was generic or, alternatively, if there were individual contracts resulting from separate negotiation with the workers) between Abyan/Fly To Travel and the Indian workers was a material deficiency in the proof of the plaintiff's case. As I have said, there was no indication that the plaintiff was incapable of calling the principal of Abyan/Fly To Travel, or produce documents of that firm which may illuminate the rights and obligations arising from the agency's relationship to the Indian workers. A corporation that markets itself as having an office in India, to demonstrate to prospective customers its scale and capacity, should, absent plausible explanation, be able to produce documents evidencing its true workings. The plaintiff's omission to do so indicates that, in a context where it carries the onus of proof, and where I have also expressed my general doubt as to Mr Sharma's reliability, favourable inferences should not be drawn in its favour from such omissions. 7. I do not mean to suggest that if any overriding written arrangement between Abyan/Fly To Travel and the Indian workers was produced, it would have necessarily been decisive. As the High Court said in Hollis v Vabu, the relationship between the parties is not found merely from the contractual terms: it is the system that was operated thereunder and the work practices imposed which go to establish the totality of the relationship [36] . Further, as Lee J said in CFMEU v Personnel Contracting Pty Ltd: "…in this area of the law… words can be chosen, not to perpetrate a sham, but to add verisimilitude to a narrative sought to be promoted by the commercially dominant contractual party." [37] Conclusion 1. Applying the evaluative and intuitive assessment that is recognised in this context, the combination of the very substantial integration of the Indian workers into the plaintiff's system, the actual powers delegated to them, the inferences that they are practically the subject of direction by Mr Sharma and their being held out as emanations of the plaintiff and the absence of evidence about the workers' rights viz a viz the agency, there are strong indications that that the Abyan/Fly To Travel agency is not a true labour hire company, running that business on its own account, but is simply an agent for the plaintiff; and that no subsisting employment arrangement with the Indian workers exists with that entity. So stated, there is no requirement to consider whether the employment of these workers has been transferred. There are also strong indications that whatever belief that the plaintiff and the consultancy had as to their respective legal rights and obligations, the plaintiff would be regarded as vicariously liable for the conduct of the Indian workers and that, under the common law, they would be treated as its employees. 2. The plaintiff's fundamental problem is that the evidentiary base is insufficient to disprove, on the probabilities, that the Indian workers are not their employees. In my opinion, it is open to the Court to infer that the failure, without explanation, to call the manager of the agency, Mr Verma, and some of the key Indian workers with whom the defendant dealt (such as Ms Agrawal and Ms Mehra) and the failure, without explanation, to produce any general agreement between the agency and all of its workers, or at least individual agreements with these workers, entitles the Court to infer that such evidence would not have helped the plaintiff to prove that they were not employees [38] . Mr Sharma purported to give descriptions of the roles of these workers. But I have not found him to be a reliable witness and he did not explain why the plaintiff was incapable of calling them as witnesses. Even if it would be inappropriate to draw a Ferrcom inference, in my opinion, where, as here, the Court is required to engage in an evaluative assessment, based upon the totality of the relations between the plaintiff, the agency and the Indian workers, this is a case where there is an insufficiency in material to base a reasonable decision [39] . For a plaintiff who carries a negative onus, in my view, that is fatal. 3. I am not persuaded that at the date of the Matter Complained Of, the plaintiff did not 'employ' the Indian workers. It follows from this that I am not persuaded that at that time, it employed fewer than 10 persons. The plaintiff therefore does not have the capacity to sue the defendant in defamation in respect of the matters it complains of. Not related to another company 1. My conclusion of the first part of the s 9 test would render it unnecessary for me to consider the second part, but lest I am wrong on the 'employee' issue, I would add the following. 2. This is, as the defendant contends, a separate and additional requirement. 3. There is no dispute that the notion of 'related company' is referable to s 50 of the Corporations Act 2001 (Cth). The provision sets out three alternatives, being that the corporation is: (a) a holding company (defined in s 9) of another body corporate; (b) a subsidiary (defined in s 46) of another body corporate; or (c) a subsidiary of a holding company of another body corporate. 4. The plaintiff raised few submissions on this aspect of s 9, save to say that the business address listed for Abyan Consultancy Private Limited was distinct from the address of the Indian call centre – although the plaintiff's Counsel acknowledged that the former registered office was in the same building. It was also noted that Abyan Consultancy Private Limited became incorporated in June 2019, only after the events the subject of this proceeding. 5. Notwithstanding my general reservations about the reliability of Ms Patel (see below in the 'Credit' section of these reasons), the plaintiff's sole director, it was not put to her that she lied when she gave evidence that the plaintiff does not own shares in another entity or that she fully owned the shares in the plaintiff; and not some other entity. That being so, I accept her evidence. 6. The defendant referred to the evidence of Mr Sharma that discussions were occurring in 2018 with Abhilash Jaiswal – who identified himself as a Business Development director of the plaintiff – to set up an in-bound agency catering for Indians who might wish to travel to Australia; and that this arrangement could be viewed as complementary to the plaintiff's operations in Australia. It was suggested that there were indications that the closeness as between Mr Sharma and Mr Jaiswal were such that the plaintiff was a related corporation to Abyan Consultancy Private Limited. The company extract of Abyan Consultancy Private Limited does not, however, indicate that Mr Jaiswal is, or was, a director. 7. Even if he was, as at the date of the Matter Complained Of, there was no other corporation, to which the plaintiff was related. Further, it would be drawing a long bow to suggest that the plaintiff – whose director was not shown to have known anything about Abyan's activities – had 'control' of the kind required to make them subsidiaries. 8. If it was necessary to find, I would have found that it was more probable than not that the plaintiff was not related to another company. 9. I now turn to the balance of the issues on the contingency that I am wrong in finding that the plaintiff lacked capacity to sue in defamation. WERE THE IMPUTATIONS MADE OUT? 1. Although she accepted that she published the Matter Complained Of, the defendant puts in issue whether each of the three pleaded imputations were made out. 2. The defendant contends that the meaning of the imputations is determined by what an ordinary reasonable reader would think. That hypothetical person is of fair average intelligence, not 'avid for scandal' but equally prone to a degree of loose-thinking and capable of reading between the lines. The meaning that an ordinary reader would attribute the Matter Complained Of may be influenced by its overall tone and tenor. For example, a publication which employs loose language and freely indulges in innuendo or speculation is likely to convey a defamatory meaning more readily than one which is carefully written or is more neutral in tone. The publisher's intended meaning, as opposed to the meaning actually understood by individual readers of the Matter Complained Of, is irrelevant [40] . Imputation A 1. The defendant cites the circumstance that account must be paid to the defendant's written English being less than perfect and contends that the statements which might be said to convey the first of the imputations should be read in the whole context of the Matter Complained Of. To the extent that money is mentioned at all, it was not her main complaint. Her main complaint was that the plaintiff failed to book a bassinet and baby food. 2. I disagree. The ordinary reasonable reader would have regarded the failure to receive the bassinet and baby food as intimately connected with the plaintiff's 'cheating', manifested by its failure to pass on to the airline (and retention of) the money. The defendant's submission ascribes primacy to the defendant's intention or subjective understanding of the Matter Complained Of. The choice of the words 'cheated us', when juxtaposed alongside the reference to the charge for the baby and the allusion to what the defendant was told by the female Malaysia Airlines staff member about not receiving the money (especially lines 14-25 & 37-38), conveys to the hypothetical ordinary reasonable reader that the plaintiff was retaining a financial benefit (the sum of $180 charged for the baby to travel) to which it was not entitled, after not having passed it on to Malaysia Airlines and that it was this retention of money that caused the situation where she was not given a baby seat or bassinet (or baby food). The ordinary reasonable reader would infer that it was because the charge for the baby travel had not been passed on that the Malaysia Airlines staff indicated to her that it had no record that the baby was to travel. Further, I agree with the plaintiff's submission that it matters not whether a publisher is actually competent in the written word. Here, although there were some very slight indications that the Matter Complained Of was compiled by a 'non-native' Australian, in my view the hypothetical ordinary reasonable reader would not have been deflected by that. There is no patent obscurity of meaning in what was written. 3. I find that the plaintiff has made out Imputation A. Imputation B 1. The defendant contested that the imputation of cheating arose from the circumstances of false information being contained on her ticket. She says that the ordinary reasonable reader would understand that the ticket had false information on it because of what its terms 'neglect' (which, in the context in which that word is used, is suggestive of 'incompetence'). 2. The plaintiff submits that the ordinary reasonable reader would understand that what was being conveyed was that the ticket had to be replaced because of the agent not having passed on to the airline the payment. 3. I agree substantially with the plaintiff's submission that, read in context (including lines 9-11 and 19-24), the ordinary reasonable reader would consider that it was not just negligence, or incompetence, which caused the details on the ticket (concerning the baby bassinet and baby food) to be false. Rather, the ordinary reasonable reader would consider that the falsely recorded information on the ticket was a manifestation or reflection of the agent's cheating her; that is, its dishonest design to retain the benefit of money paid to it as the travel agent, which it chose not to pass on to the airline. 4. I uphold this imputation. Imputation C 1. The defendant made no submission concerning this imputation. Having regard to its argument that the ticket carried false information only because of the plaintiff's neglect, it would have been difficult for the defendant to resist this imputation, had Imputation B not been established. 2. The plaintiff contends that Imputation C is a true alternative to Imputation B, and is relied upon as fall-back. 3. I accept that this imputation is a true alternative to Imputation B. Given that I have upheld the plaintiff's case in relation to that imputation, I reject Imputation C. WHETHER IMPUTATIONS DEFAMATORY 1. The defendant concedes that if the plaintiff makes out the imputations were as pleaded, then they were defamatory. 2. In the result, I find that the Matter Complained Of conveyed defamatory imputations A and B. THE DEFENCES – THE EVIDENCE Evidence for the defendant 1. The defendant gave evidence that on 12 June 2018, her 37-year-old sister was having a lung transplant in India. Following the procedure, she apparently developed an infection and was put on to a ventilator. 2. On 17 June 2018, the defendant learnt that her sister was in a critical condition. She was particularly concerned since although her family were in India, the hospital was in a region where the English language was spoken, and her family did not speak English. The defendant spoke English (as her second language) and she felt she should be on hand at the hospital. Conversation with Ms Agrawal on 17 June 2018 1. In the afternoon of that day, she telephoned the plaintiff to book a ticket to India and spoke to Ms Megha Agrawal. This was the first time that she spoke to anyone from the plaintiff. The defendant said that she had travelled through bookings arranged by her husband through the plaintiff before. She said that she had 'Googled' 'travel agents in Sydney' and the plaintiff's name appeared. 2. A sound recording (Exhibit H) of the defendant's booking call was in evidence. In her conversation, the defendant indicted that she wanted a booking for her 18 month old daughter. Ms Agrawal quoted a price for a seat for the infant. The defendant asked Ms Agrawal if a bassinet was available for her and Ms Agrawal said "Yes, and bassinet is confirmed for all sector." The defendant asked again whether this was confirmed and Ms Agrawal said "As of now, it's confirmed." The defendant also requested that her own seat be placed next to the bassinet and Ms Agrawal indicated that this should be so. However, she indicated to the defendant that (on the basis of information that she was receiving from the airline) seat numbers were not presently showing. She could, however, confirm the bassinet. Ms Agrawal also confirmed that she would get her seat alongside the bassinet and not somewhere else. There was no reference to the availability on any of the flights of baby food in this telephone conversation. 3. The defendant gave evidence that the availability of a bassinet was important, from her point of view, since because of certain health issues, she could not sit continuously for long periods. That meant that she could not have her infant child on her lap. The defendant accepted, however, that she had not specifically mentioned this to Ms Agrawal. 4. Under cross-examination, it was suggested that by a certain point of the conversation with Ms Agrawal, she had (informally) agreed about the price for tickets for herself and her child even before anything had been said about a bassinet. She disputed that there had been any agreement on price at all. It was also put to her that she had not asked Ms Agrawal about the price for a bassinet or baby meal. The defendant indicated that she expected that the ticket price would incorporate the cost of the provision of bassinet and baby food. 5. The defendant was referred to discussion about her being sent an invoice from the plaintiff, but she disputed receiving an invoice. She had not seen Exhibit D before the occasion of her giving evidence. The defendant was also referred to certain parts of her conversation with Ms Agrawal, in which the latter made reference to "it", as an attribution to the Malaysia Airlines system; which system was capable of confirming such matters as whether a bassinet had been confirmed, or whether the seat number was apparent. Counsel for the plaintiff put to the defendant that she knew that the "it" was a reference to the "Central Airline Booking System". The defendant denied that. She accepted, however, that she knew that Ms Agrawal was receiving information from another source, but the defendant declared that when communicating with the plaintiff, she was not communicating with the airline: she believed it was the plaintiff's responsibility to 'educate' its customers; and she added that she made payment to the plaintiff's account; not the airline carrier's account. 6. At about 5:47pm on 17 June 2018, Ms Agrawal sent to the defendant an email, providing a travel plan including flight details. The email supplied the plaintiff's bank account details for payment. By its terms, the travel plan did not refer to any requirement for baby meals. At the bottom of the travel plan was (in bold) a sub-heading 'Terms and Conditions'. The defendant said that she did not think to read the terms and conditions, having been asked only in the email to check the flight details. 7. At about 9:24pm on 17 June 2018, Ms Agrawal sent to the defendant an email attaching an E-ticket which confirmed a bassinet for each of the four (in total, including the return flights) flights and baby food for three of four of the flights. Upon reviewing it, the defendant understood that the availability of a bassinet for all legs and baby food for the second leg (but not the first leg) of the flight to Chennai was confirmed (as well as both legs of the return trip to Australia). After receiving this email, she had no further communication with the plaintiff before she took flight. 8. On 18 June 2018, the defendant left Sydney in transit to Kuala Lumpur, the first leg of her trip. Under cross-examination, the defendant said that when she checked in, no one at the International Airport who serviced her suggested that she did not have a booking, for herself or her infant child. She said she received boarding passes both for the Sydney leg and the Kuala Lumpur leg of the trip to Chennai. She understood that the staff had put through, or checked in, as going through to Chennai, baggage for herself (and any bag in relation to her infant). 9. The first leg of her trip, to Kuala Lumpur, was uneventful. For this leg, she received a bassinet (albeit that she said she asked for it) and she was seated in the row, towards the front, which she expected someone with a bassinet would sit in – what she called the 'bassinet row'. The defendant's experience at Kuala Lumpur on 18 June 2018 1. She said in cross-examination that when she arrived in Kuala Lumpur, there was no additional requirement for check-in. She transited to a different flight (scheduled to leave about 90 minutes after the flight from Sydney had arrived). But when boarding the flight from Kuala Lumpur the defendant said that she was directed towards the rear part of the plane when it was clear to her that mothers with young children were in the front (in the 'bassinet row'). She was ushered to a row which had rows for passengers in front of and behind where she was sitting. 2. In her evidence in chief, the defendant said that she spoke to a uniformed Malaysia Airlines staff member and said that she was entitled to a bassinet. The staff member informed her, however, that the airline did not have in its system any information regarding her entitlement to a bassinet. Although the defendant showed her the ticket to the staff member, the staff member said that she was not sure why the defendant's agent had given her (the defendant) the ticket and expressed surprise. The staff member said that the airline's system was not showing that she had paid for the baby to travel and told the defendant that she should have checked with her agent before she boarded the flight. 3. In cross-examination on this part of her exchanges with Malaysia Airlines staff, the defendant was challenged on the reliability of her recollections of what she said to the female staff member and what the female staff member said to her. When she recalled that the staff member had indicated to her that the airline carrier's 'system' did not reveal any entitlement for her to receive a baby bonnet, the defendant said that she did not recall the staff member looking at anything (such as a book, or a computer) in that connection. After she repeated her account of what was said, Counsel for the plaintiff indicated that the account she supplied in cross-examination of what was said contained no reference in the discussion on the topic of payment for the baby bassinet. Notwithstanding this, the defendant maintained that this topic had been discussed with the female staff member. It was suggested to her that the staff member might have said to her words to the effect of "Madam, you didn't pay anything extra for the bassinet or the baby food". The defendant's initial response was that she did not recall anything like that being said, though she corrected that response and indicated her denial that something like that had been said. 4. The defendant said that a male person (who she thought might have been a pilot) approached her and said words to the effect of "Ma'am, we cannot delay the flight because of your bassinet issue. If you wish, you can leave the flight. But we cannot delay the flight anymore". 5. The defendant said that she felt disheartened by these exchanges. Her infant daughter was crying. The defendant herself was concerned that her sister needed her. Between her daughter and herself, she stated that both cried all the way on the flight from Kuala Lumpur to Chennai. 6. After touching down in Chennai, the plaintiff spoke to personnel associated with the airline. She was told to register any complaint at the counter of the airport (and was given the airline's email address for this purpose) and it was suggested that she contact her travel agent. 7. Under cross-examination, she was challenged on her evidence of what she reported at Chennai airport. It was suggested that she had changed her evidence describing the female on the flight from being a "flight attendant" to being a "ground staff" member of the airline. It was also suggested that her evidence expecting Chennai airport personnel to be able to discover the names of the Malaysia Airlines staff who she says humiliated her was incredible. She denied these propositions. 8. The defendant said the next morning, after her arrival the night before, she attended the hospital where her sister was the next morning. She was told that her sister had suffered a brain haemorrhage. It was thought that she might be brain-dead but further testing might occur the next day. The defendant went away from the hospital. She returned again the following morning and was informed that her sister had suffered a heart attack and had died. 9. The defendant was in grief. She lost any focus upon her flight experience as she had to come to grips with her sister's passing and had to deal with such things as the return of her sister's body to Delhi, and the need to face other members of her family, including her nieces. She said she asked her husband to assist her to arrange a change to the details of her return flight (having earlier indicated in her conversation on 17 June 2018 that she was flexible about a return date). Her husband told her that she would need to send an email to the plaintiff to request a variation of the date and time of the return trip. 10. She did this on 26 June 2018 (Exhibit 5). Before doing so, she had not spoken to the plaintiff. In her email, she specifically indicated that she would need to extend her stay in India for another week and she wanted to extend the date of the return flight by a week. She indicated that she was flexible for date and time and stated in her email that she knew that there would be some penalties for making those particular changes. She was asking the plaintiff to request the airline to waive any penalty on compassionate grounds. The defendant said that she did not receive a response to this email. 11. Two days later, the defendant said that she spoke again with her husband on the subject of changing the date for her return. The defendant said that during the course of these discussions, she recounted her experience on the Kuala Lumpur flight to Chennai. Her husband suggested that she speak to the plaintiff. The defendant's 'complaints' – 28 June to 2 July 2018 1. So, on (Thursday) 28 June 2018 at about 7:30pm (Indian time) (apparently very early in the morning, Australian time, on 29 June), the defendant sent an email (Exhibit 6). Because of its significance, I set it out in full. It read: "I am writing this email in regards to the embarrassing and stressful situation I was put in by Malaysia airlines while travelling from Sydney to India. I made this booking from your guys a few days back. As per my ticket Baby bassinet and baby meal was confirmed all the way to India and on the way back to Sydney as well. But in the flight from Sydney to Malaysia I was provided with Baby Bassinet only. But not the baby food. When I asked for baby food, they replied that baby food was not confirmed in my ticket. And then when I changed my flight from Malaysia to India, then I was given a seat without Baby bassinet and without baby meal. After asking from airline staff, I was insulted by one of the airline staff member. It was a female staff of Malaysia airline. She insulted in front of whole flight passengers saying that I have not paid for Baby bassinet and baby food. She also said that why I boarded the flight without knowing if the Baby bassinet and baby meal is confirmed or not. I showed my ticket to that lady which clearly shows that Baby bassinet and baby meal was confirmed. But she refused to do anything for me and she kept insulting me in front of other passengers. She kept saying that you have not paid anything for your baby travel. Then a male staff member came in and said that Mam: for your baby issue we can't delay the flight. So you have to decide whether you want to stay on the seat we have provided or you want to go out of the flight. I was already in a very stressful mind because my elder sister was in hospital, fighting between her death and life. And on top of that Malaysia airlines gave me this embarrassing and hurtful stress. All the way my baby was crying due to hunger and I had no food to give her. After this bizarre and stressful experience from Malaysia airlines I have decided not to travel back with this airline on 02nd of July. Now my question to pricebeat travel is that why I was given a confirmed ticket if it was not actually confirmed by Malaysia airlines? Who is responsible for this? Who will compensate for this misbehave and insult I had to face because of you guys. I will go to ombudsman for this horrible experience I was given. You might be thinking that why I took one week to email you about the issue. So the reason is that I came to India to see my sister who was admitted in hospital in very critical condition and then after two days she passed away. Due to this misfortune happened in my family, I didn't have a chance or I would say, I was not in a mental state where I could think of making a complaint about this issue. But now, I need immediate action on my complaint. Thanx Preeti" 1. In her evidence, she confirmed the correctness of the contents of this email. She had not spoken to anyone from the plaintiff before sending the email. 2. In cross-examination, she was referred to the first sentence of her message of complaint in which she appeared to attribute to Malaysia Airlines the responsibility for the "embarrassing and stressful" situation that she had been put in. However, the defendant said that she did not know the cause of that embarrassment and distress. She was referred also to her complaint about not being supplied baby food in the first leg (Sydney to Kuala Lumpur) of the flight notwithstanding that her evidence in her examination in chief was that she did not expect baby food for this part of the flight. It was suggested to her that she attributed responsibility to Malaysia Airlines in this particular email since she believed that it was the airline carrier who had let her down. The defendant indicated that when attributing fault to Malaysia Airlines, she was only referring to the circumstance of her feeling insulted by the staff and the carrier putting her in a distressing situation. She accepted, though, that she later made complaint to Malaysia Airlines and it was this which prompted the airline's response on 18 March 2019 (Exhibit K) after the proceeding had commenced. 3. Nothing was indicated in the 28 June 2018 email to suggest that the concerns she expressed had any operative effect of her asking for a change in flight details to return to Australia, which was the subject of her email two days before. 4. The defendant said that she received no written or verbal response from or on behalf of the plaintiff on 29 June, 30 June, 1 July or 2 July 2018. 5. On 2 July 2018, the defendant emailed the plaintiff to follow up on her 28 June 2018 email (which she said had not been responded to) (Exhibit 7). She had not received any calls from the plaintiff. In the email, she (rhetorically) asked the plaintiff whether this (non-responsiveness) was how the plaintiff treated its 'valued customers' and ended the message by warning the plaintiff that she would post negative feedback on social media and foreshadowed her intention to 'escalate it' (her complaint) to the 'next level'. Asked in her evidence what she meant by negative feedback, the defendant explained that this was a post on social media. 6. Later that same day, she uploaded the Matter Complained Of to the 'Desi Mums Connect (Sydney)' Facebook group (Exhibit A), whose content is reproduced at paragraph [9] above. 7. The defendant described this Facebook group as a group comprising Indian mothers (living in Sydney) who shared experiences amongst themselves and advice; in particular in relation to issues associated with children. The defendant explained that the group was private: application to join had to be made and considered by a group administrator. 8. The defendant said that she believed this Facebook group would be interested in her post since 'everyone travelled back to India' and she wanted to share her experience in order to ensure that other members of the group (i.e. other mothers) would not face the same issues that she dealt with. She could not recall having seen the plaintiff's name on this Facebook group page before. 9. The defendant said that at the time she posted the Matter Complained Of, she believed all of what she wrote in the publication was true. Further, she admitted that at the time of the publication, she believed all of the defamatory imputations said to be arising from the post were true. 10. In response to the Matter Complained Of, also on 3 July 2018, at 6:20pm (Australian Eastern Standard Time) Ms Gunjan Mehra sent an email to the defendant (which was copied to Mr Sharma, Megha Agrawal and Baleshwar Mudliar) (Exhibit 3). The purposes of the email were evidently to refute criticisms that the defendant had made of the plaintiff and to assert that her problematic experience was "purely due to" Malaysia Airlines' fault. In the email, Mr Mehra asserted that the defendant was told that the bassinet had not been confirmed between Sydney and Kuala Lumpur, stating "Baby Bassinet and baby food was confirmed for and paid for in the other sectors and yet denied by the airline". That assumption was false. The email requested the defendant to withdraw her negative feedback against the plaintiff, failing which it threatened to take legal action against her. 11. The defendant responded to that email by sending a further email (Exhibit 13). She said that this was sent at 9:17pm on 3 July 2018. The plaintiff does not accept the timing and the time is not indicated on the copy of the email. The email attached a screenshot of part of her ticket indicating that both a bassinet and baby food were confirmed on the Kuala Lumpur to Chennai leg of the flight. She indicated in the email that she had been told by Malaysia Airlines that the baby food and baby bassinet had not been confirmed. She went on to write "So that means, you as an agent gave me a false ticket". She also blamed the plaintiff for the insulting behaviour she received from the Malaysia Airlines staff). In her evidence, she confirmed the correctness of the content of this message. 12. In early July 2018 (which Mr Sharma identified as 4 July 2018), Ms Patel, the director of the plaintiff, posted a comment on a Facebook post made by the defendant (Exhibit 8). She reiterated that the plaintiff had the capacity to request the relevant airline for "meal and seat". She indicated that the plaintiff was trying to "rectify" the issue but indicated that because of the rude nature of the defendant's other communications and her willingness to "wast(e) everyones time by doing such drama", and by mentioning the loss of her sister "to get emotional support", she was not prepared to engage in further communications. She indicated that the plaintiff was engaging its legal team. 13. It appears that also on 4 July 2018, Ms Patel made further 5 posts, in very quick succession, in the afternoon (Exhibit 11). 14. The defendant made another post (Exhibit 9). It is unclear what date it was posted to the Facebook group's site, other than the fact that it had been published by at least 9 July 2018, when it appeared on Mr Sharma's Gmail account [41] . It appeared to be, by its terms, responsive to the comment which was Exhibit 8. In it, the defendant referred to a screenshot (apparently identified in Exhibit 13) and asserted that Ms Patel had not read her post properly. She reiterated that Malaysia Airlines had informed her that it had not confirmed the baby bassinet and meal "coz they didn't receive money from the agent" and asserted that the plaintiff had given her a "fake ticket". 15. On 6 July 2018, the Matter Complained Of had been deleted from the 'Desi Mums Connect (Sydney)' Facebook group page. On 18 August 2018, 'Desi Mums Connect (Sydney)' Facebook page published an apology to the plaintiff. 16. On 1 March 2019, this proceeding commenced. 17. On 18 March 2019, the defendant received an email from Malaysia Airlines (Exhibit K). The gist of the message was that the airline had reviewed the booking details and it had been noticed that the baby meal and bassinet service "was arranged and confirmed for the flights". After being referred to this email, the defendant accepted that she had not apologised to the plaintiff or sought in some way to undo any damage that she may have caused to it. On the basis of the content of the email, she accepted that there were no suggestions within the message that Malaysia Airlines had not been paid or that a baby bassinet had not been booked. She said she believed what was written in the email. Nevertheless, she adhered to the evidence that she had given in her examination in chief that she still believed in what she wrote on 2 July 2018 and preferred the word of what (she recalled) she had been told by a Malaysia Airlines staff member to what appeared on the face of the document (Exhibit K). 18. The defendant accepted, further, that she was in Court during Senior Counsel for the defendant's cross-examination of Mr Sharma. It was pointed out that Senior Counsel had not put to Mr Sharma the proposition that Malaysia Airlines had not been paid, and that she, the defendant, acquiesced to that situation and (impliedly) it was suggested to her that she had not provided her Senior Counsel with any basis for continuing to contend that Malaysia Airlines had not been paid. The defendant indicated that when listening to that cross-examination, she harboured no expectation of what her Senior Counsel might put to Mr Sharma. 19. In re-examination, another message from Malaysia Airlines was tendered (Exhibit 16). This relevantly indicated that the baby bassinet was confirmed for both the Sydney and Kuala Lumpur legs to India, but that although an accompanying seat to the bassinet was booked for the Sydney leg, it had not been confirmed for the Kuala Lumpur leg. It also indicated that Malaysia Airlines' records suggested to it that no baby meals had been booked at all. 20. On 20 December 2019, the defendant filed a Defence. She accepted that she was responsible for its contents, including the part of the Defence setting out particulars of her defence of justification. She was challenged as to whether she had permitted a false allegation (in sub-paragraph 10(e)) to be pleaded. She did not accept that it was false. She was also referred to sub-paragraph 10(h). It was suggested that the sub-paragraph omitted to indicate that she had been told by the staff member that she had not paid for the baby meal and bassinet, but that these things were subject to availability. The defendant denied this. Evidence for the plaintiff 1. On 17 June 2018, the plaintiff issued an invoice to the defendant (Exhibit D), which indicated that payment had been made for two seats on the flights; the price for the infant seat was AUD$100. The defendant denied receiving it and there was no documentary proof as to how or when it was sent. The plaintiff did, however, refer to the content of the conversation between Ms Megha Agrawal to the defendant earlier that day in which the former indicated that she would email an invoice to the defendant. In circumstances where it appears on its face to be generated on 17 June 2018 and its sending (by email) was foreshadowed by Ms Agrawal, I think it is more probably that not that it was emailed to the defendant, although precisely when, I cannot say. Exhibit D also included a receipt of a payment made to the plaintiff, by the defendant, for the invoiced amount. Mr Sharma's evidence 1. Mr Sharma, for the plaintiff, gave evidence identifying the practice of dealings as between the plaintiff's travel agency and the airlines. He indicated that customers of the plaintiff might have the capacity to deal with the airlines themselves through links provided by the plaintiff. But other customers work through representatives of the plaintiff to provide information to the airlines through what is a Global Distribution System (GDS), to which most of the airlines are associated. The representatives are able to inform customers of seat availability for flights, prices, and manually report to the airlines special requirements for their customers. In effect, the airline will indicate that information on these matters has been received and the representative will confirm the correctness of it. 2. In this case, he indicated his belief that the defendant's needs to have a bassinet were taken to have been acknowledged by Malaysia Airlines. 3. Mr Sharma acknowledged hearing the defendant say in her evidence that she had been told her request for a bassinet had been confirmed. He stated that he was not sure whether the plaintiff was aware from 28 June 2018 of the defendant's problem with the bassinet. He said he recalled seeing the defendant's email of 28 June 2018 in the first week of July 2018. He stated, however, his belief that the defendant had spoken to staff for the plaintiff, being Megha Agrawal. He said that he had spoken to Ms Agrawal about the latter's alleged conversation with the defendant only after the post had been uploaded. He also said that Gunjan Mehra was Ms Agrawal's supervisor (Gunjan Mehra was no longer employed by the plaintiff and is located in India). 4. Mr Sharma said that he was aware of the Matter Complained Of by at least 3 July 2018. He denied being aware of it as at 29 June 2018. He stated that Ms Agrawal was authorised to communicate with Malaysia Airlines to determine what had occurred. 5. He stated his belief that it was up to Malaysia Airlines to determine whether to charge a penalty in relation to the defendant's requested variation for the return flight; indicating his belief that this was part of the defendant's complaint against the plaintiff. Mr Sharma was vigorously challenged on this evidence; and it was suggested that with reference to the content of contemporaneous evidence at the time (notably the defendant's emails of 26 June 2018 and 2 July 2018), Mr Sharma must have known that the issue concerning waiver of any penalty fee had nothing to do with her complaint about the plaintiff. 6. Mr Sharma stated that, as far as he was aware, the plaintiff had lodged 3 posts after the defendant's post. These had since been deleted. It was suggested to him that it was wrong to suggest that the defendant had publicly volunteered reference to her deceased sister when it had been Ms Patel who had raised it. I understood Mr Sharma to have difficulty accepting that proposition. 7. Mr Sharma was referred to Gunjan Mehra's email to the defendant dated 3 July 2018. Mr Sharma accepted that the first dot point asserted in the email (that the defendant had been advised that her request for a baby bassinet had not been confirmed) was false. He accepted that he had not corrected this and he accepted that the defendant had been advised that it had been confirmed. So far as he was concerned, however, the plaintiff had done its job and the difficulties which befell the defendant (and her daughter) were Malaysia Airlines' responsibility. 8. Under cross-examination, Mr Sharma identified a comment (Exhibit 8) which Ms Patel had posted and he said that he had been shown it on 4 July 2018. In re-examination, he was shown a post by the defendant which he identified receiving on 3 or 4 July 2018. When leave was granted to the defendant to further cross-examine him, it was suggested that the post he had identified was only emailed to him on 9 July 2018 and that he could not have seen the post before that date. He ultimately indicated that he was not sure. 9. Mr Sharma appeared to accept that the plaintiff received information from Malaysia Airlines as to the problem on 29 June 2018 (Exhibit 4). Although there was no record of it being conveyed to the defendant before 3 July 2018, he stated that information from Malaysia Airlines had (through Megha) verbally been conveyed to the defendant before that time. He maintained this position after being shown the defendant's email to Megha (dated 2 July 2018 – Exhibit 7) which, on its face, asserted that no reply had been made to the defendant's complaint of 28 June 2018. 10. Mr Sharma was also referred to a part of the plaintiff's Reply in which the plaintiff had set out the particulars for its contention that the defences of qualified privilege (at common law and under s 30 of the Act) were negatived because of malice. Mr Sharma accepted that he was responsible for the content of the particulars. After his cross-examination, the plaintiff withdrew particulars (a) and (b). As to particular (c), he accepted that Megha had not informed the defendant that the $100 extra fare was for her child. As to particular (d), he accepted that he was not privy to the defendant's conversation with the airline staff, but justified the contention that the defendant had given a false account of what the air crew had told her on the basis of his understanding of what airline staff tell passengers. In this respect, he explained that airlines usually keep incident reports of complaints. It was suggested that Mr Sharma made this (and other) evidence up and was prepared to lie to help the plaintiff win the case. He denied doing so. 11. It was also suggested that Mr Sharma had not produced documents in the face of requests for discovery and other coercive processes. Mr Sharma indicated that he had passed on what documents he had to his solicitor. This itself led to another call being made to flush out what had been discovered. Ms Patel's evidence 1. Ms Patel was also a member of the 'Desi Mums Connect (Sydney)' Facebook group. In her evidence, Ms Patel gave evidence about the sequence of certain posts of the Facebook page of the 'Desi Mums Connect (Sydney)' group, beginning with the defendant's impugned post on 2 July 2018. This was to the effect that, first, there was the defendant's impugned post (Exhibit A); secondly, there was a post which she could not produce, but which, amongst other things, uploaded the defendant's ticket copy; thirdly, there was a post by the defendant (Exhibit B) and fourthly, there was a post by her (Exhibit 8). 2. In cross-examination, it was suggested to her that the proper sequence of the posts was such that her post (Exhibit 8) preceded the defendant's post (Exhibit B). It became apparent that Ms Patel was unclear what the sequence was. 3. Aside from this sequencing of posts, Ms Patel accepted under cross-examination that on 17 June 2018: * the defendant had booked her ticket to fly (with Malaysia Airlines) to India; * Ms Agrawal had indicated to the defendant that she would need to acquire a ticket for her baby; * the defendant had paid $100 for a ticket for her infant child; * the defendant had asked Ms Agrawal if a bassinet had been confirmed; and * the defendant had asked Ms Agrawal if a baby meal had been confirmed. 1. The defendant's E-Ticket (Exhibit 10) emailed by the plaintiff to the defendant, was shown to Ms Patel, and relevantly indicated that in the Kuala Lumpur to Chennai leg of the flight "Infant/baby food" and "Bassinet" were each "Confirmed". Ms Patel agreed that when the defendant asked Ms Agrawal about a bassinet and a seat for her alongside her child's seat had been confirmed for all legs of the flight, Ms Agrawal had indicated that it had. But Ms Patel also said that she believed that there were conditions attached to the entitlements, owing to the circumstance that the particular flight was booked at short notice. She could not, however, readily identify where those conditions were apparent. 2. Ms Patel now knew, however, that in the defendant's flight from Kuala Lumpur to Chennai, the defendant had not been provided with either a bassinet or baby food. Ms Patel initially sought to explain these omissions on the basis that Ms Patel's infant exceeded a certain weight, but she modified her position to indicate that she did not really know why they had not been provided. 3. Ms Patel was shown a series of posts (Exhibit 11) she uploaded, in quick succession (respectively, 6:25pm, 6:27pm, 6:31pm, 6:44pm and 6:46pm), on the 'Desi Mums Connect (Sydney)' Facebook page on 4 July 2018. Her attention was drawn in particular to her post at 6:44pm in which she asserted that since the booking was made within 24 hours of the flight, meals and bassinet were 'subject to availability'. It was put to Ms Patel that no one on the plaintiff's behalf had advised the defendant before she got on her flight (on 18 June 2018) that the baby food and bassinet were subject to availability on the flight. Ms Patel answered that she was not sure. 4. Ms Patel said that she was aware that the defendant had asked to change her ticket on 26 June 2018 and she acknowledged seeing the defendant's email of that date attaching the defendant's deceased sister's death certificate. 5. She also acknowledged her awareness of the defendant's complaint to the plaintiff on 28 June 2018 and the defendant's follow-up message on 2 July 2018. She accepted that the plaintiff had not responded to those two communications until her Facebook posts on 4 July 2018. 6. Ms Patel disagreed with the proposition that the impugned post had come down from the Facebook group's page on 6 July 2018. She accepted that 'Desi Mums Connect (Sydney)' had apologised for the defendant's 2 July 2018 post on 18 August 2018. She understood it had been removed by the 'Desi Mums Connect (Sydney)' Facebook group's administrator, Priya Kharban. Credit Mr Sharma 1. I did not regard Mr Sharma as a satisfactory witness. He was prone to give non-responsive answers and sometimes long-winded speeches to advance what he perceived as answers that might support the plaintiff's case. He was prone to making assertions without adequate foundation which had the effect and, I thought, design of furthering the plaintiff's interest. An instance of this was his evidence as to when he saw a post by the defendant. He intended to suggest that he saw it before 3 or 4 July, but once shown an email indicating that it was on 9 July, he backtracked and said he could not be sure when he saw it. Perhaps a more vivid illustration of his propensity to backtrack was his change of evidence in ascribing ownership of an office in Indore to his brother or himself, but then upon his recall, and after hearing that his partner, Ms Patel, say she knew nothing about his ownership of such office, Mr Sharma said it belonged to the family. 2. Further, his willingness to acquiesce in the making of false assertions against the defendant or the false provision of information concerning the defendant, whether in correspondence from Gunjan Mehra or formal allegations in the Reply for which he was responsible, was to his discredit. 3. I am not prepared to accept at face value the correctness of his evidence unless it is independently corroborated or is consistent with objectively proven facts. Ms Patel 1. Ms Patel was very flustered when she gave her evidence. In her presentation, she was bent upon supplying unsolicited explanations on multiple occasions. Sometimes she endeavoured to use the opportunity of giving evidence as a platform to gratuitously attack the defendant. Even making allowance for the passage of 2 years since the events in question, her recollections of the basic sequencing of when posts were made was poor and below what might have been expected of a witness in her position. Her evidence was accordingly unconvincing. It was plain that Ms Patel was deeply aggrieved by what she regards as the defendant's unwarranted or unjustified complaints about her business, but I regret to say that this sense of grievance spilt over into her evidence. I regard her reliability as questionable and would be loath to accept at face value her evidence unless it is independently corroborated or consistent with the objectively proven facts. Ms Arya 1. The defendant, Ms Arya, struck me as a very intelligent person. She was well-spoken and listened intently to the questions. However, I thought that, on multiple occasions, she gave non-responsive answers that should have been susceptible to one (or two) word answers but were, instead, answered with long-winded explanations. Some of her non-responsive explanations bordered on advocacy, as illustrated on more than one occasion, and she questioned the relevance of questions in cross-examination that had not even been objected to by her Senior Counsel. I considered that to a degree she was disingenuous when she described herself as "just a simple person" despite evidence of post-graduate university qualifications and prior travel experience. She downplayed the circumstance that a business name had been registered in her name, by saying that it never operated. I also do not accept the impression that she was trying to convey that the boutique business was, essentially, still-born, where there was evidence (Exhibits M-P) to suggest some activity. Whether or not that was so, she did not dispute that the business name was set up and the act of registration suggested a person who was confident enough in her capacity to run a boutique business and all that this entails. 2. At times, she appeared to adopt entrenched positions maintaining her view that the plaintiff was entirely to blame for her misfortune even when shown documents (whose content she later accepted) suggestive that Malaysia Airlines itself may have made mistakes. She was most reticent, for example, in accepting that she now knew that Malaysia Airlines had, in fact, been paid (Exhibit C) and that (at least) a baby bassinet had been provided for in the Kuala Lumpur to Chennai leg of the flight (Exhibit 16), if not also with baby meal as well (Exhibit K), but she still stood by and believed in the imputations conveyed in the Matter Complained Of. This indicated to me an unwillingness or incapacity to admit that she may have been wrong in certain respects and dented her credibility. For these reasons I harboured doubts about her reliability, and credibility, and I would be cautious about accepting her evidence unless it is independently corroborated or is consistent with objectively proven facts. THE INDIVIDUAL DEFENCES Justification 1. Section 25 of the Act provides a defence to the publication of a defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are "substantially true", i.e. true in substance or not materially different from the truth (s 4). The parties' contentions The defendant's contentions 1. The defendant submitted that the focus of this defence was whether the sting in the imputation has been proved. Senior Counsel accepted that the real issue was what occurred as between the plaintiff and Malaysia Airlines in producing the unfortunate result for the defendant. Senior Counsel also acknowledged that the issue of truth had to be established in accordance with the requirements of s 140 of the Evidence Act 1995 (NSW) and, in particular, s 140(2)(c). Further, she acknowledged that the defendant's position was more difficult in relation to Imputations A and B than it was in relation to Imputation C, though it was reiterated that the Imputations A and B were the defendant's expression of honest opinion. 2. Nevertheless, the defendant submitted that Ms Patel provided no alternative explanation for how the problems that the defendant encountered arose. On the basis of the facts established by the defendant and the plaintiff's failure to offer an explanation, the Court was invited, at least, to infer incompetence. The plaintiff's contentions 1. The plaintiff contended that the airline's receipt (Exhibit C) was decisive of the defence insofar as it concerned Imputation A. The receipt showed that Malaysia Airlines had been paid by the defendant. Further, it was not open to the defendant to rely upon the justification defence in respect to this imputation when its Senior Counsel did not put to the plaintiff's witnesses that, as a matter of fact, the agent had not passed on the money it had received from the defendant. 2. In respect to Imputation B, the airline receipt and the Malaysia Airlines email (Exhibit K) confirmed that the plaintiff had done what it had promised to do: including having made a booking confirming a bassinet. (Confirmation of the seat in the 'bassinet' row was another matter). Consideration 1. The defence must establish justification in respect to each of the imputations. 2. Imputation A was substantially to the effect that the plaintiff 'cheated' the defendant by retaining, and not passing on to the airline, the charge for the baby travel. To impute that a travel agency cheated a customer is plainly a strong word, requiring a high level of proof (per s 140(2)(c) of the Evidence Act). It is not dissimilar, in its ordinary connotation, to deceiving a person or, put in another way, defrauding him or her. In the context here, in my view, the word suggested that the plaintiff was seeking to extract, obtain or possibly retain a financial benefit which it knew it was not entitled to. To the extent that the plaintiff's conduct which occurred after the Matter Complained Of may be relevant to illuminating the defence, that conduct manifested its belief, firstly, that it was not responsible for the defendant's experience (it was the airline who was to blame) and secondly, that the agent had an honest belief in its entitlement to retain the financial benefit that it received from the plaintiff. In my view, whatever was the explanation for what occurred with the airline, the defendant has not made out that the plaintiff defrauded her. 3. It is not enough to contend, as the defendant does, that an evidential burden was thrust upon the plaintiff once the defendant had stated certain limited or incomplete facts before asserting her conclusion that the plaintiff had cheated her where there was an incomplete basis for the conclusion. There is no reference in the Matter Complained Of to suggest that the female person who serviced the defendant had the knowledge or authority to represent, on behalf of Malaysia Airlines, what it knew about the terms of the defendant's booking. Even if such evidential burden was cast, the plaintiff adduced some evidence – albeit not itself conclusive – of an explanation by Malaysia Airlines (Exhibit K) which suggested that the airline carrier accepted responsibility. Although, as indicated, the defendant itself adduced evidence of an explanation from the airline which was different in some respects (Exhibit 16), that only underscored the fact that there was a genuine dispute as between travel agent and airline carrier as to why the defendant experienced her problems. If, as both Exhibit K and Exhibit 16 indicated, a baby bassinet was included in the instruction given to the airline, there was no truthful basis for the imputation that the charge for baby travel had not been passed on to the airline. 4. Further, I accept the plaintiff's submission that Exhibit C itself indicates that the airline was paid the sum for the baby travel and that this removed a basis for the assertion that the component of the amount paid for baby travel to the plaintiff had not been conveyed by it to the airline. 5. The defendant has not persuaded me, to the high level of proof to sustain her allegation of 'cheating', to make out justification for Imputation A. 6. As to Imputation B, it was not substantially true to say (lines 42-44 of Exhibit A) that false information that the defendant received from the plaintiff caused her to book another flight home in the absence of a fair disclosure that she acquired a new ticket because of her choice to extend the period of stay in India. For the same reason, it was also incorrect to say, as the defendant did (at lines 46 to 47) that the defendant had decided not to take the flight back with Malaysia Airline because of false information on her ticket. The falsity of ascribing the new ticket to false information on the 'old' ticket was demonstrated by her request to the plaintiff to change the details of her return flight (Exhibit 5). Still less was it then substantially true to assert that any "cheating" by the plaintiff caused her ticket to carry false information. 7. I am not persuaded that the defendant has made out the defence of justification in relation to Imputation A and Imputation B. Statutory qualified privilege Statutory provisions 1. Section 30(1) of the Act provides a defence if: 1. the recipient had an actual or apparent interest (i.e. where the publisher believes on reasonable grounds that the recipient of the material had an apparent interest in it at the time of publication) in having information on some subject; 2. the matter is published to the recipient in the course of giving to him or her information on that subject; and 3. the conduct of the publisher in publishing the matter is reasonable in the circumstances. 1. Whether a recipient has an interest is not defined narrowly, but it must be more than gossip or curiosity. As it is also interpreted in the common law defence of qualified privilege, it is insufficient that it be newsworthy [42] . 2. The 'reasonableness' referred to in s 30(1)(c) is, under s 30(3), the subject of a discretionary and non-exhaustive list of considerations, including: "(a) the extent to which the matter published is of public interest; (b) the extent to which the matter published relates to the performance of the public functions or activities of the person; (c) the seriousness of any defamatory imputation carried by the matter published; (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; (e) whether it was in the public interest in the circumstances of the matter published to be published expeditiously; (f) the nature of the business environment in which the defendant operates; (g) the sources of information and the matter published and the integrity of those sources; (h) whether the matter published contain the substance of the person's side of the story and; (i) any other steps taken to verify the information about that published; and (j) any other circumstances that the court considers relevant." Relevant authorities 1. The essential difference between this statutory privilege and the common law privilege is that in the former, there is a broader conception of "interest" than that recognised under common law qualified privilege. [43] The statutory privilege also substitutes a test of reasonableness, in the circumstances for the common law requirement of reciprocity of duty and interest. 2. The list of circumstances identified in s 30(3) owes its provenance to the House of Lords' decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205 [44] , and a number of the enumerated considerations appear to be more applicable to defamation actions against journalists than private individuals. It has been said that s 30(3) is not to be regarded as a checklist; and, as s 30(3)(j) suggests, the list is also not exhaustive of the relevant considerations [45] . 3. There is some doubt in the authorities as to whether the objective truth or falsity of what is published is relevant, with authorities pointing both ways [46] . I am inclined to agree with the view of Wigney J in Rush v Nationwide News that objective truth would support the justification defence and render the question of the applicability of statutory privilege otiose. 4. By s 30(4), the defence can be defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. The parties' contentions The defendant's contentions 1. The defendant argued that the purpose of the statutory defence is to facilitate freedom of speech, so long as it could be regarded as 'reasonable'. She argued that she was not subject to the stringent notion of fairness commonly seen in defamation claims against journalists: reference was made here to s 30(3)(f). The reasonableness of her conduct, it was suggested, was evidenced by the defendant not only making complaint to the plaintiff and seeking explanation, but then subsequently giving warning that she might cause negative feedback. 2. The defendant noted that the evidence was that the plaintiff promoted its 24 hour service to deal with its customers. Here, the same representative of the defendant who made the booking on 17 June 2018, Ms Megha Agrawal, was, on 29 June 2018, able to receive a response from Malaysia Airlines to the plaintiff's inquiry (Exhibit 4); which inquiry was prompted by the defendant's email, detailing her complaint, of 28 June 2018. Neither the contents of that response, nor any other response, had been supplied on the plaintiff's behalf to the defendant. The point, for immediate purposes, was that the plaintiff had the opportunity to respond and was also warned by the defendant on 2 July 2018, prior to the publishing of the Matter Complained Of. Senior Counsel for the defendant argued that the defendant's communications to the plaintiff on 28 June 2018 and 2 July 2018, in advance of the Matter Complained Of, amounted to a reasonable attempt to extract explanations. The plaintiff provided no explanation for its delay in its response to the defendant. To the extent that Mr Sharma suggested the existence of telephone calls between personnel on behalf of the plaintiff and the defendant between 28 June and 2 July 2018, that evidence could not be accepted: unlike other telephone recordings on 26 or 27 June 2018, no telephone recordings were adduced to cover the period from 28 June to 2 July 2018. Ms Agrawal was not called to give evidence. 3. The defendant said that the plaintiff's riposte in its Reply, impugning the honesty of her opinion, was not established. The plaintiff's contentions 1. Counsel for the plaintiff accepted that an 'apparent' interest was not a high bar for the defendant to surmount. He focussed his submissions on the lack of reasonableness of the defendant's conduct in publishing the Matter Complained Of. This was indicated in multiple ways: (most significantly) she did not believe in the truth of what she alleged, as she knew that she had been told that she did not pay extra for the bassinet; such warning as she gave was inadequate, with the warning on 2 July 2018 incorporating what she wrote on 28 June 2018 (which contained no assertion of the plaintiff cheating her and which manifested her view that it was the airline carrier which was responsible for her difficulties); following the warning on 2 July 2018 and prior to the Matter Complained Of, there were, in fact, on-going communications between the plaintiff and defendant inquiring into what had gone wrong; the imputation she was about to publish was very serious in nature; and there was no urgency to her publishing the Mater Complained Of. Consideration Interest 1. In my view, members of the 'Desi Mums Connect (Sydney)' group had at least an apparent interest (as that expression is defined) in having information on the subject of the quality of the plaintiff's services. Although, as I have noted, not all of the members of that Facebook group necessarily had an interest in using the services of a travel agency to fly to India, the defendant had reasonable grounds for believing that they were potentially interested in securing such services. It was reasonably foreseeable that many Indian mothers living in Sydney, like the defendant herself, had family or friends, if not also business dealings and other reasons, which may incline or require them to fly to India, and that the services of a travel agent may be sought to facilitate flight preparations. Section 30(1)(a) is satisfied. 2. It was not in dispute that s 30(1)(b) was satisfied. Reasonableness 1. I accept that the Matter Complained Of was of public interest: it concerned the quality of service of a corporation which had marketed itself as a leading supplier of travel agency services, with particular speciality in travel to India, and accordingly marketed itself closely to the Indian community. Reports of passengers concerning the quality of the service it supplied and whether it conformed with the passengers' expectations is engendered by legislative encouragement to consumer protection and was in the public interest. 2. I accept, however, Counsel for the plaintiff's submission that the imputation that a corporation in trade or commerce cheated a customer is very serious; and that this was not substantially less so only because it appeared in a private group's Facebook page, rather than a publication disseminated by mass media. 3. As will be shown when considering the issue of 'proper material' in the defence of honest opinion, the publication did distinguish between certain proven facts, however, as these reasons later demonstrate, it was dubious whether they were materially complete. 4. I also accept the plaintiff's submission that there was no demonstrable urgency in the publication of the statement. I have already noted that, in s 30(3)(f), there is practical recognition that the test may be higher for a mass-media organisation to meet than a private individual [47] . The Matter Complained Of indicates that the defendant relied upon and believed the information supplied by a female staff member of Malaysia Airlines about what the agent had or had not done. The defendant gave alternative descriptions of whether that person was a flight attendant, member of flight staff, or member of the ground staff. I had no confidence that she had a clear recollection of the position or role of the Malaysia Airlines staff member who spoke with her. 5. I accept that the defendant was not a journalist, but I do not think that, on that account, she is exempt from the requirement to consider the adequacy or integrity of the source [48] . She plainly accepted at face value what she was told by the Malaysia Airlines staff member, though I am unable to accept that she had a reasonable basis for reposing her faith in her. The defendant was unable to recall, for example, what (if any) information that the female staff member had before she had represented that the plaintiff had done something wrong. It could not be reasonable for the defendant to have blithely accepted the statement of an airline staff member without having been satisfied that the latter had any basis for making the representation to her about the plaintiff. But the defendant was unable to articulate what that basis was. 6. Prior to publishing the Matter Complained Of, she did not make further inquiry of the airline to determine whether the staff member's representation could be verified. The Matter Complained Of placed the worst construction on the plaintiff's behaviour, sourced as it was to a large degree upon what a female staff member from Malaysia Airlines had represented. 7. The main point of difference between the parties concerned the significance of the defendant's email of 28 June 2018 (Indian time), supplemented by her email of 2 July 2018 and the adequacy of the plaintiff's response to those communications. There are several issues in this regard. The first concerns the content of the complaint on 28 June 2018 and the extent of the warning on 2 July 2018. A further issue involves consideration of the plaintiff's conduct in relation to the correspondence it received from the defendant, given what it knew, prior to the Matter Complained Of. 8. There is force in the plaintiff's Counsel's submission that the message of complaint on 28 June 2018 gave no inkling that, within a matter of 4 days, the defendant would accuse the plaintiff of having cheated her. More than once, the message expressly indicated the defendant's belief that it was Malaysia Airlines which was responsible for her difficulties. In this regard, I do not accept the defendant's retrospective and self-serving evidence that she was effectively suspending any judgment as to who was responsible at the time of this email. It is true that, especially towards the latter part of the email, the defendant had conveyed to the plaintiff that she had a concern, and perhaps even a suspicion, that the plaintiff might also have been at fault, when she asked it why she had been given a confirmed ticket if the airline had not confirmed it. I note also that no indication as to the time within which the defendant sought a response from the plaintiff was supplied to the plaintiff; the message did demand "immediate" action, but that was an ambiguous request. That is not insignificant in the sense that by then, the 'damage' had been done to the defendant and the point of the complaint was to identify the reason for it. Though undoubtedly important to the defendant, it was a historical exercise that she was asking the plaintiff to carry out on her behalf. Objectively, there was, as Counsel for the plaintiff submitted, no urgency to that exercise. 9. The plaintiff's follow-up email of 2 July 2018 plainly gave some inkling that something damaging might occur if the plaintiff did not fulfil the defendant's expectations. But there remained no indication that, in the passage of time since 28 June 2018, the defendant had developed or formed a view that the plaintiff had been at fault, let alone had 'cheated' her. The message indicated that the defendant was aggrieved because the plaintiff had not acted upon her request that it make inquiries as promptly as the defendant had demanded (even though no time stipulation had been specified). It is one thing to foreshadow a negative rating or review about a service provider for a lack of timeliness in actioning a request by a customer to make an inquiry, on her behalf, to the airline about past events. It is another thing to publish that she felt that the plaintiff had cheated her, by retaining money that should have been passed on to the airline. 10. Even if, as I accept, s 30(3)(h) is principally directed to journalists, I again find that private citizens are not exempt from an expectation that prior to publishing defamatory statements, they will abide by an ordinary standard of fairness. I would have thought that 'reasonableness' in this context embraces fairness; even from persons who are not journalists [49] . I consider that the community standard of fairness would, in this context, have meant that if the defendant was proposing to accuse her service provider of cheating her, that matter should have been brought to its attention before publication. I find that the defendant's message of complaint on 28 June 2018, and her follow up message on 2 July 2018, did not fulfil that requirement of fairness. 11. I accept, as the defendant's Senior Counsel emphasised, that there was an omission by the plaintiff to respond fully, in writing, to the 28 June 2018 email message of complaint. But in the way that complaint was crafted, the plaintiff was reasonably entitled to think that the message was not an actual complaint about what it had done, even if she had indicated a concern about the plaintiff's involvement, but rather that it was a complaint about what Malaysia Airlines had done and that the plaintiff was being asked by the defendant to make an inquiry on her behalf. In my view, her message on that day indicated that she had not yet formed a view that the plaintiff was at fault (let alone had cheated her) and without doing so, she could not be complaining about the plaintiff. 12. The plaintiff was not inert in response to the request on 28 June 2018. Unbeknownst to the defendant, Ms Megha Agrawal was promptly in contact with Malaysia Airlines, received information in reply from Malaysia Airlines, and had not promptly passed that on to the defendant (Exhibit 4). Further, I do not accept that there was complete silence from the plaintiff in the short period from 28 June 2018 to the publication of the Matter Complained Of: some information which Megha Agrawal received from Malaysia Airlines was forwarded (by email) to the defendant on behalf of the plaintiff at 4:08pm (Australian Eastern Standard Time) on 2 July 2018 which, I was informed, was 11:38am in India (Exhibit 12). 13. There is force, also, in the submission by the plaintiff that an inquiry of the kind that the defendant was seeking from the plaintiff might not yield a complete answer quickly. On the other hand, and with the benefit of hindsight, it is a curiosity that the plaintiff did not promptly respond to the 28 June 2018 email, in effect, acknowledging that it had received the defendant's complaint, indicating that it was actioning it and would respond when it reasonably could. 14. However, the short message on 2 July 2018 does not materially assist the defendant on the issue of reasonableness. There was no indication in that message that the defendant had altered her view, indicated in her message of complaint on 28 June 2018, that although she sought information about what the plaintiff knew, she had regarded Malaysia Airlines at fault, towards the view, ultimately conveyed, that she had felt cheated by the plaintiff. The criticism in the 2 July 2018 message was criticism of the plaintiff's failure to follow up and respond to her complaint (made against Malaysia Airlines) and her request for answers as quickly as she had wanted; notwithstanding that she had not specified a time for the response she demanded. At the tail end of the message on 2 July 2018 was an indication, peremptory in tone, that she would now "escalate" the matter. It appears that, not all that much longer, later that day, without further recourse to the plaintiff, the Matter Complained Of was published. 15. There are other matters that the defendant refers to in relation to the content and tone of the Matter Complained Of: that a largely factual account was given (whatever its accuracy or completeness), which was distinct from the expression of the opinion; that she attributes information to a source (howsoever reliable or unreliable that it was); the tone was moderate; and, subsequently, the plaintiff had the capacity to engage in activities, as it did, to correct what it thought needed correction. I accept that the defendant was making it clear that she was speaking for herself, and her own personal experience, and that the ultimate end of the Matter Complained Of was to provide a reasoned explanation to a section of the community that she belonged to why she would not recommend other mothers acquire the plaintiff's services. But these particular matters, I believe, are more germane to mitigation. 16. I consider that in all of the circumstances, by publishing the Matter Complained Of, the defendant had unfairly blind-sided the plaintiff: that she had changed tack from a position conveyed to the plaintiff, in which she blamed the airline and sought the plaintiff's help to inquire of the airline; to one where, without indicating it to the plaintiff, she believed that the plaintiff had cheated her. There was no inkling in her 28 June or 2 July 2018 messages that she was proposing to broadcast that belief to her community group. 17. On balance, I am not persuaded that the defendant's conduct in publishing the matter was reasonable in the circumstances. The defence of statutory privilege fails. Common law qualified privilege 1. The rationale for this privilege is that the making of the communications promotes the welfare of society, however the privilege is qualified in the sense that the occasion must not be for some purpose or motive foreign to the duty or interest that protects the making of the statement [50] . It has been said that no narrow view should be taken of the pursuit of a duty or interest in what was said lest the defence become unduly restricted [51] . 2. The requirements for this defence were set out by Simpson J (as her Honour then was) in Megna v Marshall [2010] NSWSC 686 at [175] [52] , as follows (citations omitted): "● were the circumstances in which the communication was published (including, importantly, the subject matter of the communication and the identity of the publisher and the recipients) such as to give rise to the requisite duty or interest in the publisher, and the reciprocal interest in the recipient in receiving the publication, thus creating an occasion of qualified privilege? ● if the answer to the first question is in the affirmative, was the particular statement of which complaint is made germane or did it have sufficient connection to that occasion? (if the answer to either of the preceding questions is in the negative, then there is no call to proceed further. There is no defence of qualified privilege.) ● if the answer to both preceding questions is in the affirmative, was the publisher actuated by express malice?" The parties' contentions The defendant's contentions 1. The defendant argued that this defence reflects the law's recognition that some communications need to occur if they are made honestly and for a proper purpose, even if they are erroneous and damaging. The defendant relied upon the analogy of an employer asked to give a reference for an employee: in such a case, the employer has a duty to give an honest reference, whilst the recipient has an interest in receiving the honest (potentially erroneous and damaging) assessment. The defendant identified mothers, of Indian descent, who live in Sydney, as persons being 'interested' in the receipt of the communication. The defendant argued that the plaintiff had marketed itself as a specialist service provider of travel from Australia to India to the Indian community. The recipients had a relevant interest in learning about one passenger's unfortunate experience concerning a service provider when they might need to determine which travel agent they may use for the purpose of organising travel to India. There was a true community of interest between the recipients and the publisher: they formed a part of a 'big (Indian) mothers' group' and, because there was a requirement to apply to join the Facebook group, it was effectively a private club. The publisher's interest, which was social in nature, was her expectation that by furnishing information (if not opinions) about service providers relevant to the potential needs of other recipients, she herself would receive information relevant to her own needs as a consumer (and a mother). Thus, it was submitted, the occasion for privilege was the free exchange of information, advice and opinion about service providers who may be utilised by members of the group. 2. Further, once the occasion for privilege was accepted, the test of connection was easily satisfied. 3. The defendant argued that the plaintiff's reliance upon malice in its Reply was misconceived in circumstances where the defendant's (predominant) motive was to inform. This, she argued, could partly be inferred form the plaintiff's failure to respond in a timely way to her complaint. The plaintiff could not establish, at a factual level, the motive ascribed to the defendant – the plaintiff's submission being that the defendant was angry because she was refused release from a flight fare. Senior Counsel for the defendant argued that it was not even put to the defendant that this was her motive; in spite of her giving unchallenged evidence about what her motive was. The plaintiff's contentions 1. The plaintiff emphasised the policy or rationale for the privilege. There was no duty on the defendant's part to publish the Matter Complained Of. Reference was made to the High Court's decision in Guise v Kouvelis (1947) 74 CLR 102, where it was determined that in that case the publisher, a member of a private society, had no duty to shout to anyone that the card player was a 'cheat' and in the leading judgment of Latham CJ it was noted that the privilege should not be extended to give license to 'officious intermeddlers'. Counsel disputed that it was advantageous to society as a whole for the publication and also said that if the facilitation of 'consumer protection' justified the cloak of privilege, it would potentially capture a multitude of 'occasions' not hitherto regarded as being appropriate for privilege. Contrast was made to some of the political communication cases, such as Lange v Australian Broadcasting Company [53] and Roberts v Bass [54] , where not even the communication of that matter was protected by common law qualified privilege. The defendant's contentions in reply 1. Junior Counsel for the defendant addressed the Court on Guise. He submitted that properly understood, Guise turned not so much on the question of whether the occasion for privilege arose, but whether it was exceeded. That aspect fell within what would now be considered the 'connection' requirement for this defence. Had the defendant in Guise, an observer of the card game, set out carefully the particulars underlying his accusation against the plaintiff in that case that the latter was a 'cheat', he would have stood a greater chance of being able to invoke the privilege. He could have kept his counsel and subsequently referred a complaint to the committee. It was problematic, in any event, for the occasion to arise since there were many people in the room who were not paying attention to the card game and there were also some in the room who did not belong to the club. By contrast, this defendant did not exceed the occasion for the privilege. She set out the facts, as she understood them to be, and honestly (if erroneously) drew a conclusion before making a recommendation. Junior Counsel also noted that, although he was in dissent in the outcome, what Dixon J said in Guise has subsequently been taken to be authoritative in its exposition of the principles [55] . Consideration Reciprocity of duty (or interest) and interest 1. Some assistance in determining the question of whether there was the reciprocity of the publisher's duty and interest and the recipient's interest in receiving the matter is derived from the High Court's decision in Bashford v Information Australia (Newsletters) Pty Ltd [56] . That case, like the present dispute, concerned qualified privilege in a commercial context. The defendant had published to the subscribers of its occupational health and safety bulletin a defamatory allegation about the plaintiff. In the joint judgment of Gleeson CJ, Hayne and Heydon JJ, emphasis was placed upon the narrow focus of the subject matter of the defendant's publication and its readership. It was because the subscribers were of a narrow class (only those responsible for occupational health and safety matters) and because the bulletin only dealt with those matters that their Honours determined that the requisite reciprocity of duty and interest attracted the privilege [57] . 2. I accept the defendant's evidence identifying the nature and character of the 'Desi Mums Connect (Sydney)' group. Ms Patel, who was also a member, gave no contrary description. The defendant's post was uploaded on the Facebook group page of a subset of the Indian community in Australia: mothers who lived in Sydney. This was a group of mothers who shared information and sometimes sought and bestowed advice from and to other group members about matters affecting the bringing up of children, including young children. It was a Facebook group that was private, in the sense that application had to be made to join the group. It was not a Facebook group to the public at large. One estimate was that the private group contained 1,000 members; perhaps not a large number, but rather a small segment of the community at large and made up of persons of a single nationality. I infer that at least some proportion of those mothers would have a need, because of personal or business affairs, to travel to India. To the extent that some mothers would, by force of their circumstances, need to have infant children accompany them on their flight travel to India, information regarding the misfortune encountered by a group member, in the company of her infant child, on a flight was naturally the type of matter that members of this private Facebook group had an interest in learning about. Members of this private Facebook group had a sufficient interest in receiving information about the quality of services supplied by a travel agency. I also accept that the plaintiff specialised in organising travel from Australia to India and, further, had marketed and advertised its services as such. The members of the private Facebook group would have been the sort of demographic that the plaintiff would target with its advertising and marketing. 3. To adapt what Gummow J said in Bashford regarding the significance of legislation [58] , legislative recognition having been accorded to facilitating consumer protection, the provision of a report and recommendation with respect to a consumer's experience of a corporation's supply of services in commerce may assist in facilitating that legislative objective. The defendant could also be said to have a social interest in publishing to her community group subject matter as to whether her rights, or at least, expectations, as a consumer of services in trade and commerce had been infringed. The defendant and all other members of the particular private group had a 'community of interest' in the free exchange of information, advice and recommendations regarding the quality of services that they had received in trade or commerce. The defendant would have expected to have her act in informing her 'mothers' club' of a report about her experience of a commercial event and a recommendation about the commercial supplier reciprocated by other group members informing her of notable incidents that they had encountered when acquiring services in trade or commerce; particularly those incidents affecting their children. 4. I do not accept the plaintiff's submission that publication here could not be taken to serve the common convenience and welfare of society as a whole. That is to present a false dichotomy as between interest of society at large (or the interest of the state of New South Wales) and the interests of private clubs, associations or small communities (including ethnic communities) which make up society. As Griffith CJ said in Howe & McColough v Lees [59] : "The reference to society does not mean that the person who makes the communication is under an obligation to publish, and is justified in publishing, it to the public at large, but that the interests of society in general require that a communication made under such circumstances to the particular person should be protected." 1. As noted, this was not only, as Senior Counsel for the defendant described it, a big "mothers' group", but it was effectively a private club made up mothers of Indian descent; plainly, enough, women with children. Some of those mothers, I consider I can infer, may have difficulty in speaking or writing in the English language and therefore experience some difficulty, or disadvantage, in participating in the commercial life of society generally. For some of them, they have very small children. This is not to say that all Indian mothers within this private Facebook group would necessarily have these characteristics. But many likely would. It is in the interest of society, or the state of New South Wales more generally, that 'clubs' of this kind develop, so that those facing disadvantage, and possibly even marginalisation or isolation, can be assisted with the help of others to participate in the life of the community and, more pertinently, in its commerce. It might be said that the members of this private Facebook group were, to adopt what the Irish statesman and philosopher Edmund Burke described, one of society's 'little platoons'. 2. I find that the occasion for the privilege is established: the relationship between the defendant and the members of the private Facebook group was one in which the advantages which the law deems are to be had from free communication should enjoy a significance over and above the accuracy of what was conveyed by the Matter Complained Of. Connection to the occasion 1. In Bashford (at [22]), in the joint judgment of Gleeson CJ, Hayne and Heydon JJ, the following passage from the judgment of Dixon J in Guise (at 117) was quoted with approval: "Qualified privilege gives no licence to defame. It denies the inference of malice that ordinarily follows from showing that false and injurious words have been published. If the occasion is privileged the further question which arises is whether the defendant "has fairly and properly conducted himself in the exercise of it." 1. In Guise, a club committee member watched a game of cards being played. He believed that he saw one of the players cheating and he effectively declared as much in the room. By majority, the High Court held that the occasion was not privileged: the member was under no duty to shout to the room that the plaintiff was a crook even if he believed that he was. There is a superficial resemblance to Guise in this case, in the sense that in the context of an event at a private club, attended by members (and some visitors), the publisher conveyed a substantially similar defamatory imputation about a member of the club. However, as Dixon J pointed out (at 122-123), the point of the member declaring the card player to be a cheat was not to inform other players, or other committee members (some of who may not have been observing the game), but to demand justification for alleged misconduct. It was analogous to an adverse character reference given by an employer about a former employee. The fact that others heard that reference did not take away the occasion; although it might have been relevant to proof of malice. Such community of interest as there was between the maker of the statement and the interest of the crowd, as the recipients, was only incidental. In this way, it could be seen that the recipients lacked the requisite interest in the hearing of the slander. 2. I consider that Guise is distinguishable. In this case, unlike Guise, prior to the Matter Complained Of, the defendant had sought justification from the plaintiff (however inadequately, as I have found) before publishing the Matter Complained Of. Further, here the Matter Complained Of was directed to the supply of information and a recommendation to third parties and was not an ostensible challenge to the plaintiff. I accept the defendant's evidence when she said that she wanted to inform other members of her own private 'club' – i.e. her Facebook group – of her troubles so that others might avoid the experience that she had encountered with her child. The defendant reported her experience with the ultimate intention of expressing a recommendation. The reference to the defendant being cheated was, for reasons to be elaborated in the defence of honest opinion below, a comment or opinion which was incidental to the purposes of informing and recommending a discrete community about the quality of a service provider's services in trade or commerce. In my view, the connection between that opinion with the occasion of privilege exists here. This is not a case where the imputation was extraneous to the publication. The opinion contributed to the ultimate recommendation. The Matter Complained Of comprised of the experience of a consumer, who happened to be an Indian mother with a young child, which was recounted and the imputations were the inferences she drew from her subjective understanding of the facts. The expression of her opinion, or the inferences she drew from the facts, as she perceived them to be (even if unreasonably based) were related to the privileged occasion. Further, to the extent that it is necessary for the publisher to establish that each imputation (rather than just the Matter Complained Of) was connected to the occasion of the privilege [60] , I find that both of the imputations were so connected. Malice Principles 1. Proof of express malice destroys qualified privilege [61] . 'Malice', in this context, means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not her belief in the truth of the matter [62] . The focus is therefore entirely upon the publisher's state of mind and, in particular, her intention. It is not enough, however, for the plaintiff to establish the defendant's ill-will, improper motive, absence of reasonable grounds for belief, irrationality or mere recklessness. 2. It is possible that honest belief in the truth of what is published may not sufficiently negative express malice if the occasion for the privilege was misused; such as where the dominant motive is not the desire to perform the relevant duty, but to give vent to personal spite or ill-will towards the plaintiff [63] . 3. However, if the defendant knows that the statement was untrue when they made it, this is almost conclusive of malice, unless the publisher is under a legal duty to publish the defamation [64] . Where there is recklessness in the sense of wilful blindness (such as where there was a failure to inquire when the publisher was on notice that what they were about to publish may be false) that may be equated to knowledge of falsity and therefore regarded as malicious; or where mere recklessness is coupled with other matters, this may also be suggestive that the publisher used the occasion for improper motive [65] . 4. The plaintiff carries the onus of proving that the publisher did not have an honest purpose. Further, even if the Court rejects the publisher's evidence of positive belief in the truth of what was published, it does not follow from this that the plaintiff has proved that the publisher did not believe in the truth or had an improper motive. The subsequent discovery by the defendant that the material published was untrue requires no publicised correction or apology – the issue relates to the publisher's state of mind at the time of publication [66] . Further, where there are mixed motives, the plaintiff must prove that the improper motive was the dominant reason for the publication [67] . Finally, although the form of the publication may be extravagent, such as where the language is excessive or extreme such as to be suggestive of spite or ill-will, courts should be cautious before finding malice based on extravagant language alone [68] . 5. The plaintiff's particulars of malice in its Reply (after amendment) were (paragraph 3) put as follows: "(c) the defendant knew that the $100 extra fare was the air fare for her infant child and was not a charge for a bassinet or baby food; (d) the defendant's statement in the matter complained of that the aircrew told her that the $100 had not been passed on was false; (e) the defendant knew that she had been issued a separate ticket for the daughter Bella for the $100 charge and that the daughter would not have been allowed to travel at all without such a ticket; (f) the defendant was informed of the facts above at the time of making the Booking; (g) because of particulars (c) to (f) above, the matter complained of was published in the knowledge that it was false in a number of material respects; (h) following the death of the defendant's sister, the defendant telephoned and asked the plaintiff to rebook her return journey to an earlier date and was told that there would be a fee imposed for the charge in itinerary. The defendant refused to pay any fee. The defendant was motivated to publish the matter complained of by a desire to injure the plaintiff because the defendant was angry at being refused a no-fee flight change." The parties' contentions 1. Senior Counsel for the defendant argued that the plea of malice was hopeless, having regard to the improper motive ascribed to the defendant by the plaintiff. 2. But Counsel for the plaintiff submitted that although the plea was not made out by all of the particulars, it was made out under particular (d) (read with (g)). He submitted that once it was shown that the defendant knew that what she was informed by the Malaysia Airlines staff member (that the $100 had not been passed on) was false, but went on to make the imputation anyway, this was almost conclusive of the issue of malice without the plaintiff needing to establish any other actuating motive. Consideration 1. As I have noted, the privilege is not defeated because the defendant came to subsequently understand, following the Matter Complained Of, that the money representing the component to baby travel had in fact been passed on to Malaysia Airlines. The information that the plaintiff relies upon to establish the fact of payment surfaced in March 2019 (Exhibit K) and some unspecified date after that (Exhibit 16). There was no information which the defendant received prior to publication of the Matter Complained Of which falsified the account the defendant claims she received from the Malaysia Airlines staff member which the defendant knew of before the publication of the Matter Complained Of. 2. Accordingly, the plaintiff is unable to point to knowledge of the falsity of what is contained in particular (d) at the time it was made. 3. The plaintiff made no further submission to indicate how the defendant did not have an honest motive. This relates to Imputation A. 4. Generally, the choice of the expression "cheated us" was extravagant and has not been shown to be justified by objectively proven facts, for reasons to be shortly shown, or even proper material at the time it was conveyed. Nevertheless, it represented the defendant's opinion at the time and was incidental to her purpose of informing and recommending. It has not been shown to be actuated by malice. With malice not being proven, I find that the defence of common law qualified privilege is made out in relation to Imputation A. 5. In relation to Imputation B, the particulars of malice pleaded do not sufficiently sustain the plea. It was not pleaded that the defendant knew that it was false to attribute to the plaintiff's conduct the defendant's need to get another ticket on the flight home and, further, even if it had been pleaded, this might have afforded an additional potential factual footing for the plea, but the motive particularised in (h) was not made out in the evidence. Malice does not defeat the opinion in relation to Imputation B. Honest opinion 1. Section 31 of the Act provides a defence to the publication of a defamatory matter if the defendant proves that: 1. the matter was an expression of opinion of the defendant rather than a statement of fact; 2. the opinion related to a matter of public interest; and 3. the opinion is based on "proper material". 1. In this area, there is a long established distinction between a statement of fact and an expression of opinion. The defendant carries the onus of proving that the relevant statement would have been understood by the ordinary reasonable reader as an expression of opinion and not as a statement of fact [69] . The defence is also protective, in certain circumstances at least, of statements of inference or conclusions [70] . It is necessary for the tribunal of fact to consider the circumstances in which the publication is made, the context, the relationship between the material relied upon and the opinion and the surrounding circumstances. It might be said that it is more likely that a statement is expressed as an opinion rather than a statement of fact if it is preceded by other information in the article; thereby enabling the reader to judge for himself or herself whether or not what the publisher then says is well-founded [71] . 2. To make out the defence, the defendant needs to identify the material within the matter on which the opinion purports to be based. This must fall within one of the categories in s 31(5). By its pleading of the Defence (at sub-paragraphs 12(b)(i) and 12(b)(ii)), the defendant indicated reliance upon substantial truth or, alternatively, publication on an occasion of privilege. 3. The defence is defeated if, as the plaintiff has pleaded in its Reply, the defendant did not honestly hold the opinion at the time the defamatory matter was published (s 31(4)(a)). The parties' contentions The defendant's contentions 1. The defendant contends that the defendant had set out in the Matter Complained Of a statement of facts as to what had happened to her and concluded, on the basis of those facts which were substantially true (and hence 'proper material), that she had been cheated by the plaintiff and she expressed that view. This was sufficient to engage this defence. 2. Senior Counsel referred to the awkwardness of the text and contended that the opinion is directed to the 'sting', which arises from the Matter Complained Of, about that matter. Here, it was that the plaintiff had "cheated" (Imputations A & B) her. 3. In relation to Imputation A, the defendant submitted that line 34 of Exhibit A was a conclusion which followed lines 6 to 33. Because the matters were set out, it was contended that the ordinary reasonable reader could make up his or her mind whether the conclusion drawn by the defendant was correct; or whether the facts might have given rise to other alternative conclusions. But the point was that the 'build up' of facts put the conclusion into the realm of opinion, and not statement of fact. 4. The defendant submitted that it was plain, having regard to the low bar for the requirement [72] , that the opinion involved a matter of public interest – it was sufficient that it involved consumer protection. 5. As to the requirement (defined in s 5) for proper material, it was submitted that lines 6 to 33 were substantially true, and Ms Patel, the sole director of the plaintiff, admitted as much. Senior Counsel emphasised, in this regard, that the requirement for 'proper material' does not mean that every relevant fact needs to be stated in the Matter Complained Of: so long as there was a rational connection between the opinion and the facts in the Matter Complained Of, this was enough. However, she acknowledged, in this respect, that a Court is not bound by the facts as the defendant characterised them to be. 6. Finally, once it was found, as it should be found, that the defendant expressed her honest opinion, her defence was not defeated on the basis that she did not honestly hold the opinions. The defendant gave evidence that she believed the truth and content of the two imputations that I have found. The plaintiff's contentions 1. The plaintiff contended that the hypothetical ordinary reasonable reader would construe the imputations as a report, and not comment, or opinion. It was not the case of a clear demarcation between a reporting of her experience and a conclusion. Any conclusion that the plaintiff had 'cheated' her was so intermingled with the report as to be indistinguishable from the report [73] . Consideration 1. Although the provision requires characterisation of the Matter Complained Of, as a whole, the defence is essentially directed to the Matter Complained Of, rather than the imputations pleaded [74] . The 'sting' was the expression that "this agent cheated us". Expression of opinion or statements of fact? 1. In my view, the ordinary reader would understand that defendant was expressing an opinion and not stating facts. I accept the plaintiff's submission that lines 4-33 set out a 'substratum of fact' [75] and that the 'sting', which appears in line 34, is a deduction or conclusion, or comment on the basis of that substratum of fact. The ordinary reasonable reader would divine that the defendant's method was to lay out the facts (as she perceived them to be), hence the introductory statement "I would like to share my experience" (line 4). The facts were that she had not received the baby bassinet or baby meal (though this had been confirmed by the plaintiff) because, according to what she had been informed by the Malaysia Airlines staff member, the airline had no record of a ticket being paid for a baby (in addition to her own). I also accept that the imputation was made with the defendant's broader purposes not only of supplying information about an event, but also a recommendation. In other words the reference to being "cheated" was not simply a gratuitous slur, but was, in itself, the basis for a recommendation overall. 2. This was not a case of the opinion being intermingled with the facts, as the plaintiff contended. Public interest requirement 1. In respect to each imputation, this again is a matter on which the defendant carries the onus of proof [76] . I find that the opinion related to a matter of public interest for two reasons. 2. First, it is accepted that the conduct of a corporation, in the course of trade or commerce, can be a matter of public opinion [77] . The plaintiff's website markets its prominence as a service provider and it emphasised its specialty in servicing Indians in their travel plans to fly to India. 3. Secondly, even if it was not a corporation, the travel agency, like other agencies, is engaging in a commercial enterprise, whose activities include marketing and advertising in order to attract custom. In my view, by doing so, it impliedly opens itself up to inviting public criticism or discussion [78] . Mr Sharma accepted this, and did not complain, in principle, to the plaintiff being the object of bad 'reviews'. 4. The plaintiff did not seriously contest that this requirement was satisfied. Proper material 1. By s 31(5), 'proper material', for the purpose of this defence, may mean material that is substantially true or published on an occasion of qualified (or absolute) privilege. The expression 'substantially true' is also defined (in s 31(4)) to mean "true in substance or not materially different from the truth". The latter expression is intended to exclude slight inaccuracies of detail [79] . 2. By s 31(6), to the extent that the opinion is not based on proper material, the defence will not fail provided the opinion might reasonably be based on what is the proper material contained in the rest of the matter which is published. This is an objective test. Material published on the occasion of privilege 1. Because I have found that the material was published on an occasion of qualified privilege, I find that the defendant's opinion was based on 'proper material.' The defence of honest opinion is, accordingly, made out on that basis. 2. If, however, I am wrong about my conclusion about the applicability of the defence of qualified privilege, I now provisionally express my view as to whether the material was substantially true; which was the alternative basis relied upon by the defendant to sustain its contention that the opinion was based on proper material. Whether material substantially true 1. In this regard, it is necessary for the defendant to prove that the facts stated in the material upon which the opinion was based were substantially true. If the facts stated in the Matter Complained Of, upon which the opinion is based, are not true, or are materially incomplete, it will be impossible for the reader to make a proper assessment of comment, and this negatives the possibility that the opinion could be fair [80] . 2. When pleading the two imputations, the plaintiff did not specify any place where the conduct which was the subject matter of the Matter Complained Of occurred. It was unnecessary for it to do so. But the defendant, in her justification defence, did rely upon the venue or place where the subject matter of the Matter Complained Of occurred. In one of her particulars of truth (sub-paragraph 10(h)), the defendant relied upon the circumstances concerning what occurred when she boarded the flight with her daughter, in Kuala Lumpur. On the undisputed facts, when reference was made in the Matter Complained Of to her flight experience, (at lines 12-22 and 35-38 of Exhibit A), the defendant was referring to the experience she encountered when boarding on the Kuala Lumpur leg of the flight to Chennai. The plaintiff filed a Reply, but although it did not expressly allude to sub-paragraph 10(h), it pleaded in paragraph 1 of the Reply that save insofar as the Reply made admissions, it joined issue with the allegations in the Defence. 3. This gives rise to a question as to whether the matter complained of conveyed to the ordinary reasonable reader a venue, or place, where the conduct occurred and if so, what was that venue or place. In my view, the ordinary reasonable reader reading the Matter Complained Of, which contained in its title an express reference (after the name of the Facebook group) to "Sydney", would have interpreted the defendant as describing a flight from Sydney, or Australia, to India. As it happens, the flight to India was broken up into two legs, from Sydney to Kuala Lumpur and from Kuala Lumpur to Chennai, and the return flight from Chennai to Sydney was correspondingly broken up into the legs from Chennai to Kuala Lumpur and Kuala Lumpur to Sydney. But an ordinary reasonable reader reading the Matter Complained Of would miss this information. The writer referred (at line 12) to when she boarded her flight. That would ordinarily be understood to be a reference to what occurred when she first boarded a flight, which would be taken to have occurred in Australia (Sydney). The writer thereafter only referred to (at line 6) a return flight (expressed in the singular) which was ordinarily suggestive of two flights; one from Australia (Sydney) to India and from India to Australia (Sydney). 4. Viewed in that light, the defendant cannot establish that the factual matrix to sustain the opinion reflected in Imputation Awas based on facts which were substantially true without clear disclosure, within the Matter Complained Of, that the difficult experience and the communications occurred on the Kuala Lumpur leg and not from when the plaintiff first boarded her flight with her daughter in Sydney. In other words, contrary to what the defendant submitted, the facts to sustain the opinion referred to in the Matter Complained Of were materially incomplete. At lines 12-13, the ordinary reasonable reader would be left with the impression that when the defendant had boarded her flight from Sydney or elsewhere in Australia, she had not been given a baby bassinet and baby food. When she boarded in Sydney, she did in fact receive a bassinet (but she did not receive baby food since she did not ask for baby food on that first leg of the flight to Chennai). It was only on the Kuala Lumpur leg to Chennai that she first encountered a problem with the bassinet. It was not true to say that she did not receive a baby bassinet when she boarded her flight in Sydney/Australia. Further, in circumstances where she accepted that she did not request baby food on the Sydney/Australia to Kuala Lumpur leg, without indicating that she had made no request for that particular leg of the flight to India, it was misleading to assert (and implicitly complain) that she was not given baby food, in the Sydney/Australia leg to Kuala Lumpur. This is not, in my view, an omission of insignificant detail. In my view, it would make a very substantial difference to the ordinary reasonable reader, when deciding whether to agree or disagree with the defendant's opinion that the plaintiff had cheated her, to know that the defendant did receive a bassinet in the Sydney to Kuala Lumper leg of the flight, and also a (front) seat in a 'bassinet row' since it would indicate that the plaintiff had actually conveyed to the airline the defendant's instruction to have baby travel and, further, that following the plaintiff's payment to the airline for that travel, the bassinet had in fact been supplied (in the first leg of the flight). It would make a substantial difference to the ordinary reasonable reader, when considering the defendant's opinion that the plaintiff had cheated her, to know that the defendant had not requested baby food for the Sydney to Kuala Lumpur leg, since, again, that would indicate to the ordinary reasonable reader that her omission to receive the baby food on the leg from Sydney to Kuala Lumpur was not the result of the plaintiff failing to arrange for it or paying the airline for it, but that it was the result of the defendant's specific request for that particular leg of the flight to India. 5. If lines 12-13 are materially incomplete and therefore substantially untrue, as I consider that they are, then, in my opinion, it is difficult to also avoid the conclusion that lines 14-24, 28-33 and 35-39 are also incomplete or inaccurate. As to lines 14-24, the ordinary reasonable reader would be left with the impression that the exchange with the 'flight staff' (not a member of the 'ground staff' who the defendant identified at one point in her cross-examination) also occurred in Australia and not in some subsequent leg of the trip to India, from Kuala Lumpur. As to lines 28-33, the ordinary reasonable reader would have been left with the impression that from the moment the flight took off from Australia, no bassinet was available, when it was in fact available for part of the journey, and she did not have any food to give to her daughter, in circumstances where the defendant had accepted that in the Australia to Kuala Lumpur leg of the trip, she did not expect the airline to provide the food for that particular leg of the flight. If she had the bassinet for the Australia to Kuala Lumpur leg, and if, as she asserted, her infant daughter was sleeping in her lap "All the way" (line 30), from Australia, it would have been because of the defendant's choice that this be so when, at least for this particular leg, the bassinet was in fact available. It was also not correct to say that the baby was crying all the way if the ordinary reasonable reader interpreted that as being a commencement point of Sydney, since the defendant had indicated that the first leg from Sydney to Kuala Lumpur was uneventful. The same vice infects lines 35-39, which I consider an ordinary reasonable reader would also interpret as also occurring in Sydney, before the initial flight took off. 6. This would leave lines 4-11 and 26-27 as the part of the substratum of fact that was substantially true. In my opinion, for the purposes of 31(6), the opinion at line 34 could not be based upon that attenuated factual substratum. Further, without the information which the defendant obtained from the flight staff (lines 16-24), which appears to be a reference to the same exchange at lines 14-17, the opinion that the plaintiff had cheated, in the sense of not passing on money it had received from the defendant to the airline, could not reasonably be sustained. 7. There is an additional difficulty for the defendant with reference to Imputation B concerning the reason for her getting a new ticket. It was substantially not true that any falsity of information on the ticket resulted in her booking a new ticket for the return flight to India. Even if there was false information on the ticket, and even the plaintiff was responsible for that circumstance, the falsity of the information had no causal effect upon the return flight. Although it may be accepted that the defendant might have had suspicions and possibly even a loss of confidence in the plaintiff, the predominant reason, which was not in any way indicated in the Matter Complained Of, for the 'new ticket' was the change in date for the return flight back to Sydney occasioned by the defendant's decision to stay longer in India than she had originally intended, as indicated in Exhibit 5. Further, the telephone recordings of the defendant's husband and representatives for the plaintiff (Exhibit H) do not clearly evince that it was a grievance that the defendant felt cheated which explained the request for the new ticket. In this respect, the defendant's husband might be treated as the defendant's agent for the purpose of making the request such that his statements may be viewed as being made with the defendant's authority. The omission of the information was not insubstantial. 8. Accordingly, after applying s 31(6), the opinion could not be based upon proper material to the extent that the facts in the matter complained of were substantially true. It is therefore unnecessary to consider whether the defence of honest opinion could be defeated based on the plea that she did not honestly hold the opinion, in respect to both Imputations A and B. 9. But as I have found, the opinion is based upon proper material to the extent that it arises from an occasion of common law qualified privilege, which I have found was not defeated by the plea of malice. DAMAGES Mr Sharma's Evidence 1. Mr Sharma said that he was holidaying in Fiji when he learnt of the post. He stated that many people (numbering more than 100) had called him and referred to the post. 2. In cross-examination, he was referred to emails which suggested that he was aware of the defendant's email of 28 June 2018 to the plaintiff complaining about her treatment. Mr Sharma suggested that Ms Gunjan Mehra was authorised herself to engage with Malaysia Airlines to ascertain information relating to the defendant's complaint. He himself was ignorant, however, of her complaint to that point. It was suggested also, that he was aware of her post on 2 July 2018. Ms Gunjan Mehra sent an email on 3 July 2018. 3. Mr Sharma accepted that the defendant's post was not the first bad review that the plaintiff had received by June 2018. There were many before, although it was not possible to divine whether they were real or fake. 4. Ms Patel did not give evidence in respect to this particular issue. Loss of reputation evidence Evidence for the plaintiff 1. The plaintiff called several witnesses who spoke to the plaintiff's reputation before and after the post. 2. Mr Karan Luthra, a real estate agent, testified to his satisfactory experience with the plaintiff since 2014 and that the plaintiff had a good reputation in the circles in which he moved, prior to July 2018. This was, he explained, partly because of the plaintiff's involvement in community events for not for profit associations. He testified to hearing discussion amongst people he knew about the subject post and the 'shock' that certain persons manifested when the subject of the post was brought up, and concern as to what it might mean in relation to several of their own bookings having been made with the plaintiff. He estimated that about 100 people had expressed concern about their bookings. 3. Under cross-examination, Mr Luthra accepted that he is a friend of Mr Sharma, though he emphasised that his friendship developed after the subject post. It was suggested to Mr Luthra that he was aware that the defendant was not the only person who had published a negative view of the plaintiff. In answer to this, Mr Luthra distinguished between negative views and what he thought about the post. He accepted, however, that he was giving evidence as an advocate for the plaintiff and he still personally thought that the plaintiff had a good reputation. 4. Mr Yogesh Sharma, a promoter of Indian concerts in Australian cities, was also called to give evidence. He also had positive dealings with the plaintiff since 2014 and stated that other people (artists) with whom he associated had positive dealings with the plaintiff as well. His view was that the plaintiff supplied a dedicated service, being prompt at answering questions and flexible enough to deal with changes to such things as altered flight times. He said that he had received positive feedback from people he knew about the plaintiff. Then, after the subject post was made in July 2018, he saw it and its content surprised him. He stated that some people had even questioned him whether this was the travel agency with which he was associated. Mr Sharma was not cross-examined. 5. Mr Sumit (Sam) Sharma was called. He is in the entertainment industry. He also appears to be an avid user of social media: he had business links to two business Facebook groups and his own social Facebook group, which carried a similar sounding name as the 'Desi Mums Connect (Sydney)' group: this being called the 'Desi in Sydney' social group. He said that 'Desi' meant Indian. 6. Mr Avinav Pandya was called. He is an IT manager who saw the post in 2018. He knew of Mr Sharma, the plaintiff's General Manager, well before the plaintiff was incorporated. He said that people he knew who were aware of the plaintiff regarded it as providing a 'nice' service, but after July 2018, he said that the view was afoot that there was a 'question mark' about the quality of its service since then. 7. Under cross-examination, Mr Pandya accepted that he was a Facebook friend of Ms Patel, the plaintiff's director. He was familiar with websites issuing ratings for travel agencies. He accepted that he was aware, after the subject post, that reviews of the plaintiff were 'mixed' (some good and some bad) and he said that although he presently considered that the plaintiff had a good reputation, it still had a question mark over it. 8. Ms Mittu Sawhney was called. She was the only female called amongst the witnesses who gave 'reputation evidence'. She herself is a mother. She said that she had been a member of the 'Desi Mums Connect (Sydney)' Facebook group and estimated that the group numbered in the thousands. She became familiar with the plaintiff's services from about 2014. She believed that prior to July 2018, the plaintiff had a good reputation in the market and was known as providing good services. She indicated, also, that it had a presence within the commercial community, sometimes gifting travel to India to award winners in charity events. She said that since July 2018, she heard people start to express doubt in the plaintiff. She personally felt sympathetic to the nature of the complaint made by the defendant and understood why young mothers, with infant children, in a like position to the defendant might regard it as 'too much hassle' to deal with the plaintiff. Ms Sawhney was not cross-examined. 9. Finally, Mr Pratik Sethi was called as reputation witness. Mr Sethi is an employee of an IT company. He first came to know of the plaintiff five to six years ago. He explained that he used its services not only because it was very cheap but also because of its good service. In the circles he mixed in, he said he heard that this reputation amongst the Indian community was that it supplied a good service. After the subject post, however, on 2 July 2018, he heard at least one (male) ex-colleague query him as to why he was 'backing' the plaintiff in the light of what appeared to have happened. He said that some of his wife's friends had said similar things (to his wife). He indicated that the sentiment was that problems of the kind that the defendant claimed that she had experienced would be avoided if passengers received the services of a 'bigger agent'. In cross-examination, Mr Sethi accepted that he was a Facebook friend of Mr Sharma, the General Manager of the plaintiff. 10. I accept that all of these reputation witnesses gave evidence honestly. I was most impressed, however, with the evidence of Ms Sawhney and, to a lesser extent, Mr Sethi. It was not surprising that many of these persons accepted that they were Facebook friends to either Mr Sharma or Ms Patel. Facebook 'friendships' cover a range in terms of the quality of friendships: they do not necessarily connote deep association, as evidenced, for example by regular face to face contact. Ms Sawhney impressed me the most of these witnesses given the perspective that she was able to offer by being a young mother and her reaction, or what she understood as the particular community's reaction, to the post was very predictable and plausible. This was, in effect, that it was not worth the trouble for young mothers with very small children to wish to avail themselves of the plaintiff's service. Evidence for the defendant 1. After the proceeding commenced, the defendant conducted some searches on Google of reviews of the plaintiff. She extracted a series of them (Exhibits 14 & 15), which, collectively, indicated complaints about their services from other customers. The plaintiff did not accept these as genuine, suggesting that some, or all, of them may have been 'fake' reviews. Principles for damages awards in defamation 1. Damage to the plaintiff's reputation is presumed upon proof of publication: Bristow v Adams [81] . Ordinarily, the three purposes of an award of damages are: 1. consolation for hurt to feelings; 2. recompense for damage to reputation (including business reputation); and 3. vindication of the plaintiff's reputation. 1. However, where the plaintiff is a company, it may only recover damages for loss to its pocket, being a loss of income or goodwill, and cannot recover for hurt feelings [82] . 2. Each matter complained of in an action for defamation constitutes a single cause of action, even where each matter contains multiple actionable imputations: s 8 of the Act. A court may assess damages for all causes of action in a single award of damages: s 39 of the Act. Section 34 of the Act provides that there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. Section 35 of the Act provides that there is maximum damages amount, which in this case is $421,000. 3. The Court may take into account evidence that the making of the defamatory imputation had an especially adverse impact on a plaintiff's reputation in the eyes of some group or class in the community: Reader's Digest Services Pty Ltd v Lamb [83] . In my view, the characteristics of the private Facebook group here would have made the members particularly sensitive to the defendant's complaint. The award of damages should be "sufficient to convince a bystander of the baselessness of the charge": Broome v Cassell & Co Ltd [84] . 4. Damage to reputation can still occur even where persons do not believe the allegations made against a plaintiff, or were sympathetic towards the plaintiff: Morgan v Odhams Press Ltd [85] . Thus, the circumstance that many of the reputation witnesses were friends of the plaintiff (whether of the 'Facebook' friend variety or otherwise) is not determinative. The parties' contentions The defendant's contentions 1. The defendant submitted that any award should be small, given that the Matter Complained Of was removed after only 3 days and it was, at any rate, directed at a relatively small audience; many of whom may not have seen it in any event. The plaintiff had also received an apology on 18 August 2018 by the private group Facebook page on which the Matter Complained Of appeared. 2. It was submitted also that, as was apparent in the plaintiff's initial response (Exhibit 3) to the Matter Complained Of, it lied when it advanced its first point in that response. The plaintiff's contentions 1. The plaintiff accepted that a corporate plaintiff cannot obtain an award reflecting solatium. What mattered to it was vindication. Counsel specifically indicated his instructions that the plaintiff does not seek a large award, but it should not be derisory either. The defendant's contentions in reply 1. Junior Counsel for the defendant submitted that in light of the plaintiff's expressed position during closing address, damages should be no more than nominal damages. This was because there was no evidence of any diminution of the plaintiff's financial position after the Matter Complained Of, or any indication that any such diminution in the plaintiff's position could be attributed to the Matter Complained Of. In circumstances where there was no demonstrable loss of income, it was possible for a corporate plaintiff to recover substantial damages for loss of goodwill, but this was predicated upon at least an expectation of loss of goodwill. Accordingly, no monetary value could be ascribed to the policy of compensating a company for loss of reputation and the vindication interest could be accommodated sufficiently by an order for nominal damages. Consideration 1. It is presumed that publication of a defamatory matter causes some injury to reputation. 2. Although I accept the submission that a corporate plaintiff must establish that it has been injured in its pocket, the proof of such damage is not easily quantifiable. That is especially so in relation to the concept of 'goodwill' in a corporation. But as Lord Keith of Kintel said in Derbyshire County Council v Times Newspapers Ltd [86] , the entitlement arises because of the tendency of the defamatory matter to damage its business. One manifestation of this is that consumers may be reluctant to deal with it. Lord Keith's observations were cited with approval in Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [87] . I do not, however, accept the defendant's submission that the plaintiff's inability to produce a document showing the effects on the plaintiff's economic bottom line caused by the defamatory matter should sound in no loss. 3. There is, also, force in the submission advanced by the plaintiff's Counsel that, for practical purposes, it would be difficult for a corporate plaintiff, who has been defamed, to call witnesses to say that they have decided to refrain from acquiring its services. The defendant, however, is also correct when it says that such 'reputation' witnesses as were called by the plaintiff were Facebook or other friends or associates of the plaintiff and none of them went so far as to say that they have decided to cease any business association with the plaintiff. If that was right, the evidence of all of the reputation witnesses would have been inadmissible, but the defendant did not object to it, in principle. 4. That evidence, however, is not decisive. As Ms Sawhney, a friend of the plaintiff, indicated, reading the defamatory matter gave her cause to question whether it might be "too much hassle" to engage with the plaintiff on a business level. If she, as someone who had hitherto enjoyed a productive association prior to the Matter Complained Of, had that reaction, I consider that, beyond the presumption of presumed loss of reputation, it may reasonably be inferred that other Indian mothers, with young children, planning on flying to India, and who, unlike Ms Sawhney, had not enjoyed a satisfactory previous association with the plaintiff, but who had seen the Matter Complained Of, would be very reluctant to engage with the plaintiff. 5. That said, the matter was deleted within the space of a few days. The reach of the publication was narrow: the Facebook group was private and had, maybe, a thousand members. It is not appropriate to speculate upon the extent of the publication beyond the group. I agree with Senior Counsel for the defendant's description of it as a limited publication. I accept also as relevant, the matters referred to by the defendant, which I summarised at [209] above. 6. I accept that the award should not just be assessed with reference to vindication, which might theoretically sound in only nominal damages, but also by reference to loss of reputation which, though difficult to quantify, is presumed and proven. 7. I would have awarded the plaintiff the sum of $10,000. SUMMARY 1. To recapitulate, my findings are as follows: 1. the plaintiff has not proven that it has the capacity to sue; 2. the defence of justification would have failed; 3. the statutory defence of qualified privilege would have failed; 4. the defence of common law qualified privilege would have succeeded; 5. the defence of honest opinion would have succeeded; and 6. if the defendant's liability was established, I would have awarded the plaintiff the sum of $10,000. ORDERS 1. I order that: 1. There be Verdict and Judgment for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceeding, as agreed or as assessed. 3. Liberty to apply to vary the costs order is granted on 14 days' notice. 4. Exhibits may be returned within 28 days. ********** Endnotes 1. Also known as Nikita Patel. With no disrespect, I shall refer to her as Ms Patel. 2. The 2019 company tax return and 2019 Financial Statements were admitted subject to a limitation that they were admissible only in relation to the 'employee' issue under s 9 of the Defamation Act 2005 (NSW). 3. (2014) 88 NSWLR 421 per Basten JA (Meagher JA and Tobias AJA agreeing) at [104]. 4. Defamation Bill Second Reading Speech of the Attorney General (Mr Debus, MLA), NSW Legislative Assembly, Hansard, 13 September 2005. 5. Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 per Grove J at [6]. 6. Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 per Bromwich at [79]-[81]. 7. Defamation Bill Second Reading Speech of the Attorney General (Mr Debus, MLA), NSW Legislative Assembly, Hansard, 13 September 2005. 8. Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 per Nicholas J at [21]-[22]. 9. Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 6) [2013] NSWSC 1651 at [43]-[46]. 10. ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 per Lander J at [14], per Buchanan J at [127]; M Irving, The Contract of Employment (2nd ed, 2019, LexisNexis Butterworths) [2.8]-[2.9]. 11. (2010) 241 CLR 539 at [23]. 12. (2020) 297 IR 269 at [8]. 13. Section 3(a) of the Act. 14. CFMEU v Personnel Contracting Pty Ltd (2020) 297 IR 269 per Lee J (Allsop CJ and Jagot J agreeing) at [63]; ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 per Perram J at [27]-[28]; Irving, supra, at [2.6]-[2.7]. 15. Irving, supra at [2.8], p 60. 16. (2001) 207 CLR 21 at [73]-[74]. 17. Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 at [30]. 18. [1989] FCA 483; confirmed on appeal in Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104. 19. Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613; 111 IR 241 at [64]. 20. (2011) 198 FCR 174 at [63]. 21. CFMEU v Personnel Contracting Pty Ltd per Allsop CJ at [21]. 22. (2020) 297 IR 269 per Allsop CJ at [5], per Lee J at [65]. 23. Homecare Direct Shopping Pty Ltd v Gray [2008] VSCA 111 at [60]-[74]; Damevski v Giudice (2003) 133 FCR 438 at [81]-[88]; Irving, supra [3.29], pp 160-161. 24. CFMEU v Personnel Contracting Pty Ltd (2020) 297 IR 269 per Lee J (Allsop CJ at [9] and Jagot J at [41] agreeing) at [72]. 25. Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [44]-[45]. 26. (2001) 207 CLR 21 at [42]-[45]. 27. Hollis v Vabu at [48]. 28. Abrath v North Eastern Railway Company (1883) 11 QBD 440 at 457, cited in J D Heydon, Cross on Evidence (electronic version, LexisNexis) [7070]. 29. Ibid at [7070]. 30. Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 1 NSWLR 561 at 565. 31. Ibid at 565. 32. Irving, supra, [3.26], p 156. 33. Hollis v Vabu at [48]-[49], [56]. 34. ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 per Lander J at [16]; per Buchanan J at [122]. 35. For example, Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), s 5B. 36. (2001) 207 CLR 21 at 33 [24]. 37. (2020) 297 IR 269 at [117], see also Allsop CJ at [21]. 38. Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 per Handley JA at 418. 39. Ho v Powell (2001) 51 NSWLR 572 per Hodgson JA (Beazley JA agreeing) at [14]; Ho was cited with approval in the joint judgment in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 at [169]. See also The Hon. Mr Justice D.H. Hodgson, 'The Scales of Justice: Probability and Proof in Legal Fact-Finding' (1995) 69 ALJ 731 at 734-736. 40. Rush v Nationwide News Pty Ltd (No. 7) [2019] FCA 496 at [74]-[77], [80], [84]-[85]. 41. Another version of it appeared as Exhibit B. 42. Restifa v Pallotta [2009] NSWSC 958 at [46]. 43. Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [104]. 44. The decision was itself later abrogated by legislation: Defamation Act 2013 (UK) s 4. 45. Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56 per White JA at [100]. 46. Against the proposition that it is relevant is Makim v John Fairfax & Sons Ltd (Unreported, Supreme Court of New South Wales, Hunt J, 15 June 1990). In favour of the proposition is Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [328]-[330]. Wigney J doubted the correctness of Hockey in this respect in Rush v Nationwide News Pty Ltd [2018] FCA 357 at [140]-[141]. 47. Templar v Watt (No 3) [2016] NSWSC 1230 per McCallum J at [76]. 48. Flegg v Hallett [2015] QSC 167 at [189]-[190]. 49. Flegg v Hallett at [191]. 50. Papaconstuntinos v Holmes a Court [2012] HCA 53 at [8]. 51. Cush v Dillon (2011) 243 CLR 298 at [22]. 52. In terms apparently endorsed in the appeal: Marshall v Megna [2013] NSWCA 30 per Beazley JA, (Allsop P and Hoeben JA agreeing) at [94], [98]. 53. (1997) 189 CLR 520. 54. (2002) 212 CLR 1. 55. Holmes a Court v Papaconstuntinos [2011] NSWCA 59 at [82]. 56. (2004) 218 CLR 366. 57. Ibid at [26]. 58. In that case, compliance with occupational health and safety legislation: at [142]. 59. (1910) 11 CLR 361 at 368. 60. Bashford per Gummow J at [135]. 61. Roberts v Bass (2002) 212 CLR 1 at [75]. 62. Ibid at [79]. 63. Horrocks v Lowe [1975] AC 135 per Lord Diplock at 150. 64. Roberts v Bass at [83]. 65. Ibid at [84]-[85]. 66. Howe & McColough v Lees (1910) 11 CLR 361 per Griffith CJ at 372; Lindholdt v Hyer [2008] NSWCA 264 per McColl JA at [142]. 67. Roberts v Bass at [104]. 68. Lindholdt v Hyer [2008] NSWCA 264 per McColl JA at [144]. 69. John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 per Giles JA (Ipp JA agreeing) at [29]. 70. State of New South Wales v IG Index plc (2007) 17 VR 80 per Nettle JA at [48]. 71. Kernsley v Foot [1952] AC 345 per Lord Porter at 356-7. 72. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 per McColl JA at [123]-[172]. 73. Feldman v Polaris Media [2020] NSWCA 56 per White JA at [61]. 74. Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695 at [43]-[44]; Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 per McCallum J at [52]. 75. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 per Gleeson CJ at [4]-[9] and per Gummow, Hayne and Heydon JJ at [68]. 76. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 173. 77. South Hetton Coal Company Ltd v North Eastern News Association [1894] 1 QB 133 per Lord Esher at 140. 78. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 per Dawson, McHugh and Gummow JJ at 220-221. 79. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138]. 80. Digby v Financial News Ltd [1907] 1 KB 502 per Collins MR at 507-508; John Fairfax Publications Pty Ltd v O'Shane per Giles JA (Ipp JA agreeing) at [50]. 81. [2012] NSWCA 166 per Basten JA at [20]-[31]. 82. New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 per Handley JA (Powell JA agreeing) at 305-7; also Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 per McCallum J (as her Honour then was) at [27]-[28]. 83. (1982) 150 CLR 500 at 507. 84. [1972] AC 1027 at 1071. 85. [1971] 1 WLR 1239. 86. [1993] AC 534 at 547. 87. [2012] NSWSC 1136 per McCallum J at [28]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2020