New South Wales District Court CITATION: Bechara v Bonacorso (No. 4) [2010] NSWDC 234 HEARING DATE(S): 17-21, 24-26 May 2010; 25 June 2010; 1, 11, 18 and 24 August 2010 (submissions) JUDGMENT DATE: 15 October 2010 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ (1) Judgment for the defendant for each of the first, second and third matters complained of. DECISION: (2) Plaintiff pay defendant's costs. (3) Liberty to restore concerning costs. (4) Exhibits retained for 28 days. CATCHWORDS: TORT - defamation - plaintiff and defendant involved in Land & Environment Court litigation - car fires at the defendant's office and family property shortly after defendant's family company wins the case - defendant visits police station twice and identifies the plaintiff, in relation to these offences, to a police officer during an interview - whether publication in terms of the matters complained of established - whether the publications - were made on an occasion protected by common law qualified privilege or pursuant to s 30 - whether s 33 defence made out - judgment for defendant Defamation Act 1974 (NSW), s 13 LEGISLATION CITED: Defamation Act 2005 (NSW), ss 30, 33, 38 and 40 Civil Procedure Act 2005 (NSW), ss 56 – 62 Adams v Ward [1917] AC 309 Ainsworth v Burden [2006] NSWCA 199 Aktas v Westpac Banking Corporation Ltd [2007] NSWSC 1261 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Bashford v Information Australia (2004) 218 CLR 366 Bechara v Bonacorso [2009] NSWDC 131 Bennette v Cohen [2009] NSWCA 60 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Cohen v Bennette [2009] HCA Trans 291 Croucher v Inglis (1889) 16 IR 774 F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159 For the Good Times Pty Ltd v Colten [2007] NSWSC 807 Fraser v Homes [2009] NSWCA 36 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Gross v Weston [2007] NSWCA 1 Habib v Nationwide News Pty Ltd [2010] NSWCA 34 Hays Plc v Hartley [2010] EWHC 1068 Hebditch v McIlwaine [1894] 2 QB 54 Horrocks v Lowe [1975] AC 135 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1; [2007] NSWSC 124 CASES CITED: Jennings v Buchanan [2005] 2 NZLR 577 Jones v Dunkel (1959) 101 CLR 298 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No 2) [2005] NSWCA 203 Lamb v West (1884) 15 LR (NSW) 120 Lewis v Daily Telegraph Ltd [1964] AC 234 Lindholt v Hyer (2008) 251 ALR 514 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Mirror Newspaper v Harrison (1982) 149 CLR 293 P & W v Manny [2010] ACTSC 50 Papaconstuntinos v Holmes à Court [2009] NSWSC 903 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 Roberts v Bass (2002) 212 CLR 1 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Shelmerdine v Mewett [1993] Aust Def R 51-075 Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 Sutherland v Neill (1887) 6 NZLR 5 The Producers' and Citizens' Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Turner v MGM Pictures Ltd [1950] 1 All ER 449 Watson v Foxman (1995) 49 NSWLR 315 TEXTS CITED: Justice David Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales (http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906) PARTIES: Plaintiff: Antoine Bechara Defendant: Paul Bonacorso FILE NUMBER(S): 5084 of 2008 COUNSEL: Plaintiff: Mr K Smark SC / Ms S Chrysanthou Defendants: Mr R McHugh SC / Ms K Rees SOLICITORS: Plaintiff: Kalantzis Lawyers Defendants: Puleo Lawyers Judgment Introduction [1] These are proceedings for defamation. The matters complained of are three slanders. The first two slanders are statements the defendant is alleged to have made to two police officers on 18 May and 6 June 2007 and the third is a claim based on a statement allegedly made to Mr Chris Hartcher MLA in June 2007, which was not the subject of evidence at the trial. Publication is denied, and defences of unlikelihood of harm (s 13 Defamation Act 2005 (NSW)) and qualified privilege (at common law and pursuant to s 30 Defamation Act 2005 (NSW)) are pleaded. The publications the subject of the claim [2] The first publication is alleged to have been made by the defendant on 18 May 2007, when he went to the Auburn Police Station and spoke the following words, or words to the same effect, to a police officer: 'I have concerns for my welfare as a result of the actions of Mr Bechara.' 'Me [sic] and other staff members at DJ Stainforth are currently taking civil action through a civil Court regarding failed business dealings with Mr Bechara and his company.' 'On 5 May 2007 a stolen vehicle was driven through the front gates of my business premises and set alight. I think that this was either done by Mr Bechara or his associates in order to damage my property.' 'I have no proof of this allegation, but I wish to provide the police with the information in case of any future incidents occurring either to myself, my staff or my business.' 'Mr Bechara has made numerous threats to all opposing parties involved in the civil matter and I believe, Mr Bechara is more than capable of carrying through with these threats.' 'I request you take note of this in case any [sic] further incidences [sic] involving me or Mr Bechara are reported.' [3] The imputations alleged to arise are: (a) The plaintiff had conducted himself in such a manner that he warranted being sued; (b) The plaintiff is a thief in that he stole a vehicle; (c) The plaintiff is a criminal in that he drove a car through the front gates of the defendant's business and set it on fire; (d) The plaintiff is a criminal in that he set out to damage the defendant's property; (e) The plaintiff had threatened the defendant; (f) The plaintiff threatens people who sue him; (g) The plaintiff is a criminal in that he has assaulted persons who had sued him; (h) The plaintiff was violent and was capable of carrying out verbal threats. [4] The second publication is alleged to have been made by the defendant on 6 June 2008, when he went again to the Auburn Police Station and spoke the following words, or words to the same effect, to a police officer: 'I have concerns for my welfare as a result of the actions of Mr. Bechara.' 'Me and other staff members of my business D.J Stainforth are currently taking civil action through a civil Court regarding failed business dealings with Mr. Bechara and his company.' 'There are other related incidences [sic] previously reported to police on 5 May 2007 and 18 May 2007' concerning Mr. Bechara.' 'Mr. Bechara and his associates are involved in corruption, offering councilors money to have development applications approved.' 'I have no proof of these allegations, but I want to inform police in case any future misfortune occurs to either myself, my staff or my business'. 'The matter has been referred to my local member Chris Archer [sic] , who will raise it before Parliament at a sitting on 6 June 2007 [sic] .' 'Mr. Bechara made numerous threats to all opposing parties involved in the civil matter and I believe, Mr. Bechara is more than capable of carrying through with these threats.' [5] The imputations alleged to arise are: (a) The plaintiff had conducted himself in such a manner that he warranted being sued; (b) The plaintiff had threatened the defendant; (c) The plaintiff threatens people who sue him; (d) The plaintiff is a criminal in that he has assaulted persons who had sued him; (e) The plaintiff was violent and was capable of carrying out verbal threats; (f) The plaintiff was corrupt in that he offered councillors money to have development application approved. The issues in these proceedings [6] The issues in these proceedings are: (a) Did the defendant publish the first and second matters complained of? (b) If so, what imputations were conveyed, and were they defamatory? (c) Were the publications made on occasions protected by the defence of qualified privilege at common law or pursuant to s 30? (d) If so, was one or both of the publications actuated by malice? (e) Were the publications made on occasions in which the plaintiff was unlikely to suffer harm? (f) If the defences fail, what damages and interest should be awarded? (g) Costs. [7] There is no defence of justification in these proceedings, and the background facts, insofar as they are set out, relate essentially to the necessary findings to be made in relation to the defences which are pleaded. I shall first set out events prior to publication about which evidence was led in these proceedings. An application for development in 2000 [8] The plaintiff, a developer, is a director of companies (hereafter called "Omaya") which in 2000 made an application to the Canada Bay Council to build home units in Chapman Street, in an area of Sydney known as the "Strathfield Triangle". [9] The defendant and his family live in this area. The family company, F & D Bonaccorso Pty Ltd, has owned 5 - 9 Chapman Street (a block of 12 units) for many years. [10] Canada Bay Council agreed to sell to Omaya the three heritage-listed buildings at 4, 8 and 13 Chapman Street, as well as a local park (which was situated at 17 - 19 Chapman Street). The only remaining property in the street situated between the plaintiff's property and the properties the council offered to Omaya was 11 Chapman Street, which was owned by a Mrs Lyons-Riley. [11] Omaya then prepared detailed plans for the building of three apartment towers 9 - 10 stories high (a total of 146 apartments) where the three heritage-listed houses and the park had been located. There were objections, and a revised development control plan was circulated by Canada Bay Council in January 2002. [12] The defendant was one of a number of local residents who objected. He attended a local council meeting (retaining a member of senior counsel, Mr Peter Tomasetti SC, to speak on his behalf) and wrote a letter on 21 November 2002 to the Department of Land & Water Conservation objecting to the proposed partial road closure (T 392). The council, however, approved the development, so the family company commenced proceedings in the NSW Land & Environment Court in February 2003. [13] Other residents also objected. For example, one resident sent a solicitor's letter to the council and made a complaint to ICAC (Exhibit 29); others attended a protest rally (Exhibit 24) and there were articles in the local newspaper. The plaintiff was involved in many of these activities as well. [14] An issue in these proceedings has been the question of whether, in the course of the development application being lodged and the subsequent commencing of litigation in 2003, there has been hostility between the plaintiff and those opposed to his development, and whether the plaintiff threatened these persons. An application for expedition and a hearing in March 2007 [15] Whether or not there was hostility between the plaintiff and local residents, by March 2007 the council, the plaintiff and the defendant were still enmeshed in pre-trial procedures in the NSW Land & Environment Court. [16] The plaintiff sought an order for expedition of the NSW Land & Environment Court proceedings. Although the plaintiff (in the witness box in these proceedings) said in his evidence before me that he was "never" troubled by delays (T 328, 340) his affidavit states that because of "these successive challenges and costs" (paragraph 21 of Exhibit 17) the development could not return a profit, and that it was now a question of "controlling the extent of losses that are suffered". [17] In addition, the litigation was taking a toll on the plaintiff and his family personally. According to paragraph 22 of his affidavit: "The financial pressure that has arisen as a result of the delay in redevelopment of the Property (such as through holding costs and interest) and the potential risk that the mortgagee may foreclose on the loan or alter the terms of the existing loan are causing me and my family much stress and personal anguish. This is exacerbated by the potential of the bank to require additional funds by us to be advanced." [18] The plaintiff went on to state on oath in this affidavit that if demolition was prohibited, it would have "significant potential financial ramifications" which were causing him "additional and heightened anxiety" (Exhibit 17, paragraph 23). He attached a letter from his financier stating that the plaintiff's companies might not be able to meet their commercial obligations unless the proceedings were resolved quickly. [19] The hearing did take place, and on 30 March 2007, Biscoe J gave judgment against the council: F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159. The plaintiff said that as soon as this judgment was handed down his bankers asked him to provide alternate security for 17 and 19 Chapman Street (T 343). He arranged for the liquidation of another of his companies, Arinson, to be terminated so that he could provide additional security to his bank. The council filed an appeal and a stay of judgment was granted by the trial judge pending the appeal. [20] The local residents held a rally on 22 April 2007 and the defendant's evidence was that during this rally he had discussions with Mrs O'Neill and Mrs Chin about their prior experiences with the plaintiff (T 406-407, 419-422). [21] The day after the rally the plaintiff's company filed a motion in the Land & Environment Court seeking to vary the injunction to permit demolition of the houses in Chapman Street but this application was dismissed. Despite this, some demolition work went ahead. On 2 May 2007 the plaintiff's companies conceded (Exhibit 9) that they had carried out demolition work without authority and consented to an interlocutory injunction not to carry out further development (T 347). [22] The next day, 3 May, the local newspaper quoted statements made by the defendant at the 22 April rally. [23] The following day, unknown persons stole and set fire to a car in what the defendant (written submissions, paragraphs 136 - 140) calls "the first firebombing". The term "firebombing" is emotive and misleading, so I have used the more neutral term "car set on fire". Whatever term is used, it was submitted on behalf of the defendant that any person finding a car set on fire has been left to burn on or outside their property would be likely to be frightened. Events leading up to the first matter complained of – The car set on fire outside the plaintiff's office on 5 May [24] On 4 May 2007 a motor vehicle was stolen and in the early hours of 5 May left, on fire, by some unknown person outside the defendant's work premises in Raglan Street, Auburn. Lidcombe Fire Brigade was called. The defendant, who had no prior notice, discovered the crime when he arrived to find burn marks and debris all over the car park and telephoned Auburn Police (T 455). [25] The defendant told the Auburn Police (T 455 – 6): "Q. You say you contacted the police, what did you do? A. Rang Auburn Police Station to see if they were aware of anything that occurred. Q. Do you remember who you spoke to? A. No, I just spoke to someone on the phone. Q. Doing the best that you can, tell her Honour what you said? A. I said there was some signs of a burnt car in the front car park and if they're aware of anything that occurred and they told me that they weren't so I asked if a police person could come down to our office to investigate further. Q. Do you remember what happened after that? A. Yeah, police officer - two ladies come down. Q. Do you remember what their names were? A. Not really. Q. It doesn't matter if you don't remember, I'm just asking if you do. Doing the best you can, can you tell her Honour what the conversation was that you had with the police officers who attended on the Monday morning at D J Staniforth? A. Yeah. I asked them if they were aware what happened and they advised me that there was a car that had been driven through the front wire fence and set alight. They told me that there was a can of petrol in there and the vehicle was deliberately lit and they told me that we were extremely lucky that the car rolled towards the wall and not towards the building otherwise the whole building could've gone up. We could've lost the whole building. Q. Do you remember saying anything to her at the time or to them at the time? A. I've asked them if they knew who it was or they've taken any fingerprints or details. I've asked them where the vehicle was. They said it was taken away by a tow truck over the weekend. Q. How did you feel when you learnt that the police officers were saying that the car fire had been deliberately lit? A. Just very - very concerned and wondered why. Very, very scared that we could've lost our whole building, whole business, and my whole livelihood. Q. Did you make an insurance claim in relation to the fire? A. Yes we did." [26] An insurance claim was made, and its contents, and the facts that these were known to the defendant, is a matter of considerable importance, since it was put to the defendant that these documents confirmed he had no reason to suspect the offenders were anyone other than joyriders (see T 615-616, 619-620). [27] On 18 May, two weeks after the fire, the plaintiff went to Auburn Police Station to inquire about the police investigation of this incident, and it is asserted that he published the first matter complained of to Sergeant Fowler. The text of what was said is examined in detail below. Events leading up to the second matter complained of – The cars set on fire on 21 May and 5 June [28] There was correspondence on 21 May between the parties about resolving the Land & Environment Court litigation. Later that same day, another car set on fire was left at the 5 - 9 Chapman Street, the premises owned by the defendant's family's company. [29] On 5 June, a car belonging to Mrs Chin was parked outside her home. It was set on fire. The defendant said he was told about this by his brother Garry the following morning (T 463). [30] After speaking to his brother, the defendant went to the Auburn Police Station and spoke to a Sergeant Silva. It is asserted that he published the second matter complained of on 6 June in the course of attending the police station. The third matter complained of [31] It was put to the defendant that in May or June 2007 he published the third matter complained of to Mr Chris Hartcher. The defendant denied this publication (T 470, 574) and Mr Hartcher was not called. The plaintiff no longer presses any claim in relation to this publication and I have entered judgment for the defendant. The demeanour and credibility of the plaintiff and defendant [32] Both parties submit that issues of demeanour and credibility are relevant to the determination of disputed issues of fact. Before going further, I should note what these submissions are, and the issues to which it is asserted they are relevant. Broadly speaking, the parties rely upon demeanour in particular as to the following issues: (a) The versions of events given by the parties of the events which are the background to the publications; (b) Whether I accept the evidence of the defendant concerning why he went to the police station and what he said to the police officers on both occasions; (c) Whether I accept the evidence of the defendant on issues relevant to qualified privilege, and in particular to malice; and (d) Whether I accept the evidence of the plaintiff on damages. The plaintiff's evidence [33] The question of whether or not I accept the evidence of the defendant depends in part on whether I accept his claims that other residents told him they were threatened by the plaintiff. The plaintiff was emphatic that he had never threatened anybody at all (T 167), by words or conduct, and that his feelings were hurt when he read the text of the COPS report obtained under subpoena recording what the plaintiff had told police officers during his two visits. He was emphatic that he had never threatened "all the parties opposing" his development (T 168) or anyone, ever. He said "My evidence is that I did not threat [sic] anybody" (T 168). He then went on to add "opposing party". I asked him for clarification and he repeated this (T 168). Mr McHugh SC then asked: "Q So you've never threatened anybody every? A I mean it's like, it's not with a human being, I mean like sometimes what do – if you say to me you shouted at someone, you say "get Lost", is that what you call a threat or you – Q Well it's an ordinary English word and I understand that you've been here from the age of eighteen? A Yeah I will try to, yes. Q And you understand what threat means? A Yes Q In your understanding of the word threat, have you ever threatened anyone? A No Q No? A No." (T 168-169) Ms Lyons-Riley's evidence [34] I shall test the plaintiff's evidence against the evidence of two of the defendant's witnesses. The first is Mrs Lyons-Riley, who was actively involved in opposing the plaintiff's company's development application, as her home was immediately adjacent and the development would have overshadowed her house (Exhibit 13 pages 3 and 28). She had letters printed out in several languages for local residents, sought to "drum up" support from other residents (T 226) and in September 2000 commenced proceedings in the Land & Environment Court to challenge the development. [35] The plaintiff was initially reluctant to identify Mrs Lyons-Riley as a resident who opposed his development (although agreeing to this at T 281), but then said he never wanted to buy her property (T 178), claiming (at T 184) that Mrs Lyons-Riley started these court proceedings "to force us to buy her [property]" (T 184). However, it was clear from the Department of Urban Affairs and Planning report of September 2000 that access through this lady's property was critical to the development (Exhibits 11 and 12) and the Council's papers for the 21 November 2000 meeting confirm this (Exhibit 13 pp 2, 24, 31 and 32). [36] The relevance of this is that Mrs Lyons-Riley said she had a meeting with the plaintiff in a coffee shop in which he said he would buy her house. He spoke to the local council on the telephone while he was with her, to find out who had lodged objections, as Mrs Lyons-Riley had yet to do so. When she asked "what about price" he said "we'll talk about that later" and she said "No, I'm going to go and lodge my objection." As she stood up to go, she said the plaintiff told her "You want to be very careful, things can happen." (T 230). [37] Mrs Lyons-Riley said she told the defendant "how frightened I had been and the things he'd said to me". Her daughter, Justina Lyons, confirmed dropping her mother off at the café and seeing the plaintiff in the café, who shook her mother's hand and sat down with her (T 706). She also gave evidence about having a conversation with her mother after this incident, in which her mother repeated what had been said (T 705-706). [38] The plaintiff strenuously denied ever meeting Mrs Lyons-Riley in the café, and called her a liar (T 281-284). Both the defendant and Mrs Lyons-Riley gave evidence about discussing such events (for example, at T 234, T 424-425). [39] The plaintiff also denied coming to her house in 2000 after an agreement to buy her house, which had been reached as a council meeting shortly before, had fallen through. Mrs Lyons-Riley described feeling as though she was "caught in a pincer trap" (T 234) and described an occasion when she saw the plaintiff parked in a car across from her home, staring at her, which frightened her. Ms Lyons-Riley described two occasions when she saw Mr Bechara outside her house: "A. It was about 8.30 at night and it was winter, it was dark. And at that stage I had an office at North Rocks and I was coming home from the office late. And as I pulled up into my street there was a four-wheel drive parked on the opposite side of the road to me and down a little bit with some people sitting in it. And I was just - it's a quiet street, I looked at it as I got out of the car. And then I thought that it was Mr Bechara so I walked toward the car and it was Mr Bechara sitting in there with an Asian man. And then I've turned and he just stared at me and I turned around and walked back across a little bit of the road to my front door and I looked back and he was just still sitting there in the car just still staring at me. And I got rather frightened and was - I was moving around as I put my key in the lock because I thought I might get shot and I went inside and told my husband and when he came out the car had driven off. … Q. You said that you recall that incident with the car where there were two people in the car. A few months later did you have another encounter with Mr Bechara? A. Yes, I did. Q. Would you tell the court please what that was? A. Well again I was coming home late in taxis because in July/August/September I worked long hours, and I was coming home late and a car followed me down my street from Parramatta Road and then pulled up on the wrong side of the road opposite me. And I got out of my car and I looked over and I realised it was Mr Bechara. Q. Was there anyone else with him? A. No, he was on his own. And I got out of my car and started walking to my face and then he - he just stared at me and then he got out of his car and he sort of propped himself up on the roof, he had an elbow on the roof and on the door and just kept standing and staring at me while I walked into my house. Q. How did you feel on that occasion? A. Very frightened, very unsure of what was going to happen. There was always a thought in my mind that I could be physically harmed, shot or bashed or something that wouldn't be good for me anyway." (T 225-227) [40] The plaintiff was cross-examined about whether he stared at Ms Lyons-Riley (T 277-281): "Q. One night in the year 2000 at about 8.30 at night, being seated in a car with an Asian gentleman, outside or opposite number 11 Chapman Street? A. What's the word agent? Real estate agent or as a race Asian? Q. From somewhere in Asia. A. Sir, one thing I can assure you is at year 2002-- Q. 2000. A. 2000? Q. The year 2000. A. Year 2000. If you said 2002 didn't you, no? Q. I don't think so and I didn't mean to. A. No, I said 2000 yeah. Q. If I did I withdraw that, the year 2000. A. Year 2000, yes. If year 2000, most of my workers are Asian, my accountant is an Asian gentleman, my financial controller is an Asian, the junior accountant is an Asian. I could have driven with them there, I could have showed them what we are buying, I could have told them which finance to, to organise, nothing wrong with that, the law allows me to drive in the street and the law allows me to take them with me isn't it. So I would have, yes, I would have gone, but don't remember specifically what day, what time. I have driven there many times. Q. What I want to suggest is that Helen Lyons Riley came home at about 8.30 and when she got out of the car she was in she made her way up to her house and as she went past your car you stared at her as she went past. Do you remember that? A. I have to put this to you and you have to listen very careful. So many times if I'm not wearing my glasses so you have to be careful to what I'm saying, yeah. Now, I took my glasses off, I can see you as a male. If I go 10 metres away I can't differentiate you between a male or a woman, but I can different shape between you or, excuse my language, or another creature. The only way I try to identify people is if I go like this and try to identify. Q. When you say that's the only way you identify somebody, do you normally carry your glasses with you? A. Sorry? Q. Do you normally carry your glasses with you? A. At all the time I've got the glasses in my pocket, I've got the glasses in the car, I've got the glasses in the office. So many times if I go in someone's car and I haven't got my glasses I feel embarrassed to say to them drive me back to take my glasses. What's wrong with that? Now I have to put my glasses back on so I can see you properly. Q. Do you tell her Honour seriously that you often go out and forget your glasses even though you cannot see properly without them? A. Many times-- Q. That's a serious answer to her Honour, is it? A. Listen. Many times I-- Q. That's a serious answer, is it? A. Listen. Q. Is it a serious answer-- HER HONOUR: Let's not talk over each other, it's difficult for the court reporter. He is saying it is a serious answer so what's your next question. MCHUGH Q. What I want to suggest to you is that in the winter of the year 2000 you sat in a car outside or across the road from Helen Lyons Riley and that is from number 11, and that when she came home you stared at her very intently as she made her way into her house. A. Can you identify to me where at number 11, why wouldn't it be in the front of number 2, for example. Why it wouldn't be - it's a very long time ago to remember. Just saying to you-- Q. Are you denying what I have just put to you? Will you please try to focus on the question? A. I am focussing on the question. I would have said to you-- Q. Would you care to answer it? A. Yes, I have interest in the area, I had interest in the street, I have driven to the street, the law allows me to drive into the street, the law allows me to take my accountant with me to organise finances. Some people only made appointment with us after hours so I have to work with their times, so nothing wrong with me going there whether 8 or 9 or 10 or 11 or any day it suited the people. I had to work with them, nothing wrong with that. Q. Would you please pay attention to the question? A. Yes. Q. We will be here for a very long time if you do not. A. No issue whatsoever, I've got all the time for you. Q. Do you deny staring at Helen Lyons Riley when she came home one evening-- A. I did-- Q. Would you please let me finish my question? A. Go please. Q. Do you deny staring at her when she came home one evening at about 8.30 at night in the winter of 2000? A. Yes, I do deny. I-- Q. That is all you were asked. … Q. The question that I am asking is this. Do you deny that one evening in the winter of the year 2000 at about 8.30 at night you sat in a car outside or opposite number 11 Chapman Street and stared at Helen Riley as she made her way to her door? Do you deny it? A. The fact I have to - I have to explain this, sir. Q. No, you don't get to explain. The question is do you deny it? A. Sorry, okay. What can you please explain to me what is the word to stare please? Q. Stare? A. Sorry? Q. Stare? A. What's the word stare? Q. To stare at somebody, it's to look at them intently. A. Okay. If I haven't got my glasses-- Q. Do you deny that you stared at her? A. Sorry, sir. I have got-- HER HONOUR: Now look, both of you please. Mr McHugh, I am appealing to you in the interest of saving my poor sore wrist from writing down all these interruptions, can we just go a bit slower and not-- MCHUGH: Your Honour, the question is simply does he deny it. It's a question he can answer yes or no. WITNESS: Sorry. MCHUGH: Or he's not sure. WITNESS: I wanted you to explain to me the word "stare". If a stare with if you look at someone without the glasses is a stare? The answer is yes. If looking at someone without the glasses it's not the stare then the answer is no. But taking me long time ago I would say to you hard to remember, but yes I have driven in the property. And you say to me at night you making it a lot worse for me to see without glasses, so I would have definitely if someone I don't identify I'm not wearing my glasses, I look at people all the time like this, that's - otherwise I cannot see. I can't identify who is the person so I would - sorry, your Honour, I'm not sure if I have answered or not. MCHUGH Q. What I want to suggest is that you stared at Helen Lyons Riley in an attempt to intimidate her. Do you deny that or do you-- A. I deny that. Now you explained it, yes, I deny I intimidate people, yes." [41] The denials of the plaintiff should be seen in context with other answers he had given a day earlier in cross-examination. At T 185-186, the plaintiff was asked: "Q. Now, do you remember towards the end of 2004 having some dealings with Helen Lyons Riley? A. With who? Q. Helen Lyons Riley? A. I've never dealt with her. It was my former partner dealing with her. Q. You say you've never had any meeting with her at all? A. I didn't - I didn't - it was my former partner dealt with her and he's the one who did the transaction with her. I don't know. I didn't deal with her." [42] The question is not whether there is objective evidence of the truth of the defendant's claim that people told him that they were threatened, but whether I should accept the defendant's evidence he was in fact told this. The plaintiff chose to challenge this evidence by denying there were any threats. [43] The plaintiff, in the witness box, sought to portray himself as a friendly person who never threatened anyone. Mrs Lyons-Riley's evidence contradicts this. [44] Mrs Lyons-Riley was at times shaking and distressed as she recounted these events. Her fear of the plaintiff was not, to my observation of her demeanour in the witness box, exaggerated or feigned. She was an impressive witness, who despite poor health and a naturally timid nature gave evidence carefully and fairly, making concessions where appropriate. Mr Tomasetti SC's evidence [45] Another witness whose evidence was in contradiction to the plaintiff's evidence was a very different kind of witness. Mr Peter Tomasetti SC is a member of the Bar specialising in Land & Environment Court work. He was retained by the Bonaccorso family company's behalf to speak at a council meeting in 2002 in opposition to the development. [46] Mr Tomasetti SC described how, after the meeting, he had stopped to speak to the defendant and his brother in the car park. The plaintiff and another man came towards them driving slowly and stopping only two or three feet from them with the headlights on, the engine running and the plaintiff and the other man staring at them. Mr Tomasetti SC got the group to move 10 or 20 feet away. The car then drove around , returned and did the same thing. [47] Mr Tomasetti SC's evidence was: "I observed Mr Bechara stare directly at me for an inordinately prolonged period and I regarded that as…an unpleasant gesture, a discourteous gesture… And a threatening gesture. Mr Bechara and… the other person in the car both stared at me directly for a prolonged period in an offensive, discourteous and threatening way. … he drove the car directly towards me and with no reason in terms of having to leave the car park via an exit or something like that, drove the car directly towards me and stopped within 2 to 3 feet of me, his bumper bar a short distance from my legs and stared at me. … he drove his car directly at me once and stopped with his headlights glaring on the group and staring at me. He then, when I moved away with the family, took his car in a wide circle and did it again, and drove his car straight at me again. …they were both looking directly at me in an unflinching, undiverted way for an inordinate length of time." (T 202 – 204) [48] The defendant, who was also present, said he was "very, very stressed and very upset because it's like I've beaten you, I'm going to get you, type of thing." (T 429). [49] The plaintiff said he could not recall the incident, had owned a silver and not a black Mercedes at the time, and that as he was short-sighted, if he was not wearing his glasses it might have looked like he was staring (T 278, 280, 303 and 304). [50] Mr Tomasetti SC was not shaken in cross-examination of this event, which had clearly left a strong impression upon him. His matter-of-fact answers and temperate and reasoned responses to questions confirm that his account of the incident is neither exaggerated nor reconstructed. By contrast, the plaintiff's explanation that he might not have been wearing his glasses in the car is implausible (and I note he gave a similar explanation in relation to an occasion involving Mrs Lyons-Riley). [51] Although the plaintiff sought to portray himself as a genial and friendly person who threatened no one, the evidence of these witnesses is to the contrary. I have referred elsewhere to the evidence of other residents, but these two witnesses are the most important – Mrs Lyons-Riley, because hers was the home most affected by the development, and Mr Tomasetti SC, because his involvement as a professional gives him objectivity. [52] Another issue that I consider relevant to the relationship between the plaintiff and the residents is the way in which the plaintiff spoke about certain other residents, such as Mrs Chin, dismissing her, and her complaints, as "a little bit mental" (T 335) and describing Mrs O'Neill as "very alcoholic" (T 350). All this evidence paints a picture of there being material which would be likely to come to the defendant's attention at the time of publication. [53] I am conscious, when considering questions of credit, of the need to exercise caution, for the reasons explained by Ipp JA in "Problems with Fact-finding" <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906>, and of the importance of contemporaneous records as a more reliable source, and I have been cautious concerning the use of credit evidence for both the plaintiff and the defendant. The defendant's evidence [54] The defendant gave evidence in a flat monotone, and frequently looked at the floor. He looked tired at the beginning of his cross-examination and even more tired when it finished four days later. [55] Some of the statements he made reveal the level of stress he was operating under: "I'm under a lot of pressure here and it's very hard to remember every little incident." (T 580) "Now all this court stuff is all way beyond me, I, a lot of it I don't understand, when I was filling out these interrogatories I wasn't told, or I didn't understand that I had to put down every little, every little specific detail down, I just generalised it as, as what occurred on the incident and I thought if I'd be cross-examined I explain the full content of what happened. So that's what I remember and what I'm saying to you now is, yep, I was aware of it and I've got there [in the interrogatory] that she's been threatened and intimidated and that relates to those incidents." [56] By T 643 I had concerns about his ability to cope and I said: "HER HONOUR: No, no, but before he comes back, look he is looking very crushed, I mean you get to know that look on witness's faces. He's really-- SMARK: Your Honour, I hope I'm not-- HER HONOUR: No, no, you're one of - I mean really if we were having a competition for the politest barrister-- SMARK: Mr McHugh would win. HER HONOUR: Well look you'd both be in the top three. But I think what we might do with future objections, if you can possibly deal with it without sending him out we might, just to take things a bit easy on him because he's been in that witness box a very long time." (T 643) [57] After estimates from counsel, I told the defendant his cross-examination would finish that day. Unfortunately this was not possible, and I had the following exchange with him while he was in the witness box: "HER HONOUR: So it's just on a minute to 4, so we've got a minute to sort things out. You can leave the witness box. Remember what I said about not discussing your evidence with anyone, that still applies. WITNESS: So we're not going to finish today. HER HONOUR: I'm so sorry. This is the thing, you see, I promised this man that we would finish today, and he's now asking me that question, and that's one of the reasons I've stopped now. SMARK: Yes, thank you, your Honour. WITNESS: Can we stay back and finish or-- HER HONOUR: I'm very sorry, Mr Bonaccorso, you'll have to come back tomorrow. Your cross-examination has not finished." (T 626) [58] The defendant became too exhausted to answer questions on the fourth day and I suggested a short adjournment: "Q. Now going to the time you went to the police the second time, that's on 6 June 2007, did you believe that Mr Bechara, this is at that time, had conducted himself in such a manner that he warranted being sued? A. I can't recall my, my thoughts then, I just, my head's in a spin at the moment. Q. All right. HER HONOUR: I think in those circumstances we should stop. SMARK: Of course, your Honour. HER HONOUR: This gentleman is obviously - I don't want him returning answers that are-- SMARK: No, of course not. HER HONOUR: When a witness says his head's in a spin, he's obviously under stress. I really think, Mr Bechara, I know you said you wanted it over? WITNESS: Yeah, I'd like to get it over. I've answered all those questions in my interlocutories when I've had time to think about it but. HER HONOUR: Is there some way that we could declare that he's answered it in his interrogatories and he's just - he's looking exhausted." (T 657) [59] The defendant's distress was obvious. He had been in the witness box for fours days and his cross-examination, although courteously done, was relentless (see also T 611, 614, 657). [60] Senior counsel for the defendant in written submissions submits that the defendant, though "obviously very tired and exhausted" did not swerve from his task of giving evidence as an honest and conscientious witness of truth (written submissions paragraph 38). As is set out in more detail below, I accept this submission. The highest any submission about the defendant's credit could go is that he is mistaken, or confused, or has forgotten something. He was not caught out in lies. This is of relevance to the findings concerning malice. [61] Senior counsel for the plaintiff submits that while the credit of the parties has some significance in this case, many of the relevant facts are either agreed or not in substantial contest. I agree with this latter contention, but note that the defendant is, however, the subject of attack on credit issues. These issues are dealt with in more detail in the section of this judgment on malice, but I will briefly outline, as examples, some of the matters raised by the plaintiff in submissions: (a) Conflicting evidence concerning the colour of the plaintiff's car: The first point made in written submissions concerning the defendant's credit is that the defendant and one of his witnesses (Mr Tomasetti SC) "could not agree" (written submissions, paragraph 21) on the colour of the car the plaintiff was driving during the incident at the car park when the plaintiff's car was alleged to have been driven to just in front of where Mr Tomasetti SC was talking to his clients, and then to have followed them when they moved to another location and driven in front of them again. The defendant said the car was silver. The plaintiff said he had owned a silver Mercedes. Mr Tomasetti SC said the car was black. The version of events given by both Mr Tomasetti SC and the defendant was generally consistent, and a difference concerning the colour of the car (it being a night-time incident) is a trifling matter. A number of the matters raised by the plaintiff as being inconsistencies demonstrating the defendant's lack of credit are of a similar kind. (b) Differences between the evidence of the defendant and that of witnesses whom he asserted had been threatened by the plaintiff: The plaintiff submits that I should not accept evidence of the defendant that a number of local residents told him they had been threatened by the plaintiff. Several of these residents gave evidence, as did Mr Tomasetti SC, a barrister who went with the defendant to a council meeting concerning the plaintiff's company's development plans. Three persons (Mrs Judy Chin, Mrs O'Neill and the defendant's father) provided medical evidence that they were unable to attend. Press-clippings about protest rallies, a COPS report for Mrs Chin's car fire, and a complaint to the ICAC were tendered. There is significant corroborative evidence from these contemporaneous records. (c) Differences between the COPS entries, insurance forms and the defendant's evidence: These are set out in more detail below. An example of the purported inconsistency between the defendant's evidence and the COPS report was that the defendant allegedly already knew the police closed their investigation the day after being told of the fire, because the CCTV camera did not work (Exhibit R). The defendant said he did not know the investigation had been finalised the day after the fire, and that "that's why I went to the police to, to investigate" (T 617) ten days later. [62] The first issue for determination is whether the defendant published the first and/or second matter complained of. Did the defendant publish the first matter complained of? [63] It was open to the plaintiff to plead that the defendant authorised or participated in the publication of the COPS report. He has not done so. Instead, the text of the first matter complained of is reconstructed from the COPS report compiled by Sergeant Fowler. Sergeant Fowler (who has since left the police service) has no independent recollection of any of the events. There are two other sources for determining what was said: the evidence of Sergeant Fowler based on his usual practice and the defendant's version of what he said. [64] It is clear, from the form of the matter complained of, the procedure for taking down information described by Sergeant Fowler, and from some obviously wrong information (such as the reference to the plaintiff's company, D J Stainforth, rather than the plaintiff's family company, F & D Bonaccorso Pty Ltd, being involved in litigation with the plaintiff and the description of the litigation between them as "failed business deals") that the summary of the defendant's complaint is neither verbatim nor in the order in which the information was given. The plaintiff submits that the question is whether the words proved convey practically the same meaning as the words pleaded, so that any variance or error is immaterial, as it is sufficient for the plaintiff to prove the substance of the words pleaded: Lamb v West (1884) 15 LR (NSW) 120. [65] A similar point was made in Sutherland v Neill (1887) 6 NZLR 5 at 10, where Williams J noted that the words must be proved, and not what the witness considered was the substance of those words. [66] Lamb v West is a very old authority, but it has received consideration more recently in Sinclair v Bjelke-Petersen [1984] 1 Qd R 484. The facts were that the person to whom the words were spoken had some difficulty repeating what was said. In a helpful review of the law, Kelly J noted: "It was necessary for the respondent to establish that the substance of the words complained of in the statement of claim were used by the appellant. That rule was expressed in Lamb v West (1894) 15 NSWLR 120 by Darley CJ at p 126 in these words: "… it has been held that if the words proved and the words laid in the declaration convey the same meaning to the mind of a reasonable man, that is sufficient, and that, to my mind, is the only safe rule." [67] In The Producers' and Citizens' Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244 at 251, Murray CJ expressed the rule thus: "The actual words spoken by the defendant must, therefore, be given by the witnesses, so far as they can recollect them, and then the inquiry will be, first, whether their recollection and accuracy can be trusted, and secondly, whether the words deposed to and accepted as having been correctly reported bear the same, or practically the same defamatory meaning as the words set out in the statement of claim." [68] In Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 470, Bankes LJ said: "Every case must depend upon its own circumstances, and no rule can be laid down as to what constitutes a substantial difference." [69] On the facts of the case, the learned trial judge properly found that, while there was obviously a difference between the statement as pleaded and the words as recalled by Mr Murphy, the substance of the words complained of in the statement of claim were used. Such conclusions are, however, factual matters in each case. Gatley on Libel and Slander (11th ed., [32.15]) notes that if the words proved materially alter or qualify the sense, the variance will be fatal. [70] The correct approach to questions of variance was considered by the House of Lords in Jennings v Buchanan [2005] 2 NZLR 577 by Lord Bingham of Cornhill: "[5] Before turning to this principal issue, it is convenient to address another point briefly but effectively argued by Mr Gilkison for Mr Jennings. He contended, quite correctly, that it is the duty of a defamation plaintiff to plead the words said to be defamatory. This, he submitted, Mr Buchanan failed to do, since Mr Speden had not been able to vouch that the words used in his report ("Jennings said he did not resile . . .") were the precise words used by Mr Jennings, and in particular was unable to say whether "resile" was a word first used by him or by Mr Jennings. Having carefully considered this submission, the Board is satisfied that it cannot succeed. Where an oral statement is complained of, it is rarely possible (in the absence of a recording, a transcript or a very careful note) for a plaintiff to establish the precise words used by the defendant. But the law does not demand a level of precision which is unattainable in practice. The plaintiff must plead the words complained of, but it is enough if the tribunal of fact is satisfied that those words accurately express the substance of what was said. Mr Speden was adamant that "resile" was not a subeditorial interpolation (unlike another expression in his report, which he identified) and insisted that he had accurately conveyed the effect of a long interview. He was not seriously challenged in cross-examination, Mr Jennings did not give evidence to put forward a different account of the interview, and the Judge plainly accepted Mr Speden's evidence (see paras [15], [16] and [49] of his judgment). It cannot matter whether Mr Jennings said "I do not resile . . ." or whether, perhaps more probably, Mr Speden asked "Do you resile . . .?" and Mr Jennings answered "No". The law of defamation, which already has its critics, would incur justified criticism if the outcome of actions were to turn on differences of language giving rise to no difference of meaning." Proof of spoken words: attention to detail is required [71] The plaintiff submits (written submissions, p.17), and I agree, that determining what was said on these two occasions assumes a double significance in this case, in that it is relevant not only to the issue of publication but also to the defence of qualified privilege. The burden of proof lies on the defendant as to the occasion of qualified privilege and the burden of proof on the plaintiff as to malice (but note, in relation to s 30, the impact of Griffith v Australian Broadcasting Corporation [2010] NSWCA 257). [72] At the time of giving evidence, both Sergeant Fowler and the defendant were doing their best to recall a conversation that they had three years beforehand. The first issue to note is the fallibility of human memory, particularly in cases where there is no reliable contemporaneous record. The plaintiff draws my attention to McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 - 319 concerning the fallibility of memory, as opposed to a reliable contemporaneous record of what was actually said, with the "relatively subtle nuances" from actual words: "Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consider­ation of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based ons 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), in the absence of some reliable contemporaneous record or other satisfactory corroboration." (Emphasis added to the same part of the first paragraph as was the subject of emphasis by McColl JA in Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [339].) [73] Watson v Foxman was recently considered in Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [339] ff. As noted, I have placed emphasis on the same portion of this paragraph as that emphasised by McColl JA, and I respectfully adopt the same method of analysis. [74] In For the Good Times Pty Ltd v Colten [2007] NSWSC 807 at [185] Young J emphasised the need for the court to pay attention to detail, explaining that a court must be careful in such a case "to look closely to what is pleaded and what is established by the evidence, and pay particular attention: (i) as to what the alleged conduct was; and (ii) the circumstances which rendered it misleading". [75] A written record of a conversation may be contemporaneous and may be recorded by a reliable person, but whether it accurately records what is said needs to be seen in context. This document is not a transcript of the conversation, or a letter the text of which is not challenged; the COPS reports prepared by each of these police officers were revised summaries, prepared from notes following a conversation which contained considerably more detail, and they contained only the information the police officer thought was relevant. Nor was this document signed statement provided by the defendant, or some other document seen or adopted by him. It is necessary to look at the structure of the conversation, the manner in which certain information was recorded while other information was discarded, and the degree to which the police officer was controlling the conversation by asking questions which the defendant said he felt obliged to answer. Above all, it is necessary to adopt the same careful and precise approach taken by McColl JA in Habib. [76] This was the case in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1; [2007] NSWSC 124 at [353] – [355], where McDougall J, under the same heading, which I have borrowed for this section of my judgment ("Attention to detail is required"), rejected the submission that precisely when and what was said was not essential, noting it was necessary for the words to be proved with "some precision". In those proceedings, as is the case here, the plaintiffs also relied upon a contemporaneous record, but the accuracy of this document was not accepted by McDougall J: "[355] It is of course the plaintiffs' case that the representations were made not only orally but also in writing, by the handing over and discussion of PowerPoint slides (in hard copy form). However, consistent with my general acceptance of the evidence given by Mr Jackson as to the meeting of 16 November 1998, I conclude that the slides in question were not handed over, nor were they shown to Mr Saville or discussed, at that meeting. Thus, to the extent that representations are to be spelled out of the meeting, they must be spelled out of what was said. It follows from what McLelland CJ in Eq said in Watson that I must be reasonably satisfied with some precision, based on actual persuasion grounded in the evidence, of the words that were said, before I can consider whether they were in fact misleading in the proved circumstances. For the reasons that follow, I feel no sense of actual persuasion, and am not satisfied on the balance of probabilities, that the representations alleged in 6FAS para 46 were made orally." [77] The fact that a contemporaneous record was made by a reliable person is not of itself sufficient to establish publication by the defendant of words reconstructed from it which are attributed to him. It is necessary that this document should record with precision what the defendant said, as opposed to what the police officer said, or subsequently added. This involves: (a) an analysis of the interview process; (b) analysis of what the defendant says he said (the police officers having little or no recollection); and (c) a review of the contents of the matter complained of to determine if that was what the defendant in fact said. The interview process [78] The first point to note is the question and answer structure of each of the interviews. Sergeant Fowler had no recollection of the conversation, but the defendant described its question-and-answer structure as follows: "A. When I first went there, I went to investigate to see if there had been any updates on the fire that occurred at our premises. Then Mr Fowler started asking me questions in relation to that. He asked me have I got any enemies or have I suspected anyone. When he asked me those questions I started thinking and it started bringing back some of the things that have occurred, about the civil action that we've had against council and the developer and the threats that he has made against me and my family, and when he asked me have I been threatened by anyone, I said, "yes." He asked me if it was the developer, and I answered, "yes." So he was asking me the questions." (T 621 lines 2-10) [79] Sergeant Fowler made the following points about the procedure of taking COPS entries: (a) It was a summary only, and "most certainly not a statement" (T 25); (b) It only records the responses of the interviewee, not the questions. This is relevant, because questions such as "who do you suspect" and reference to "enemies"; (c) It contained what he now considered were mistakes, such as the reference to D J Stainforth as the company which was involved in litigation over failed business ventures with the plaintiff (T 26); [80] The structure of the defendant's conversation, according to the defendant, was as follows: (a) The first part consists of introductory words (T 457), spoken by the defendant to the police officer at the counter. The defendant told the police he was "concerned about a fire that occurred at our premises" and gave the address so that the event number could be filed. (b) Once the event was located "I told him I was concerned for my safety and when I asked him had there been any updates I asked him if they had investigated the fire or if they'd fingerprinted it in any way and after looking in the computer he said no he couldn't find anything." (T 458) (c) The police officer said "We'll go into another room"; the defendant thought this was because it was noisy at the front counter. When they went into the other room the officer shut the door and said "You said you were concerned for your safety, why is that?" The defendant replied "It was because of the fire bombing, could have lost our business and I was scared of the ramifications." He said "we'd been taking – my parent's company, F & D Bonaccorso had been taking civil action against Canada Bay Council and a developer for some developments that occurred in the Strathfield Triangle area and we'd won many court cases and I was scared of the ramifications." He said these cases were in the Land & Environment Court. (d) Sergeant Fowler then said: "Is it the developer that you suspect?" The defendant replied "I want to state clearly that I have no proof but yes, it is a developer that I suspect." Sergeant Fowler said "Has he threatened you in any way" and the defendant replied "Yes, he's threatened me. My father, my brother, many a times, and I'm also aware of other people that he's threatened in the area". Sergeant Fowler then asked who this developer was and the defendant said "I want to state clearly that I've got no proof but it was Antoine Bechara that we've had many dealings with." (e) Sergeant Fowler asked if the defendant had any other concerns, and said that if the defendant thought of anything else, just come back and see him, because "he knew I was quite distressed". This last statement was objected to. (f) The defendant told Sergeant Fowler he "just wanted to be recorded just in case anything else happened." (T 458) [81] The defendant said that during this conversation he was "very, very stressed at the time and very upset of [sic] what could happen, I could have lost my whole business, my livelihood and that of all my employees which I take serious [sic] because I consider them my friends. If they lose their, their job it affects them and their families as well and I feel personally responsible for that." [82] The defendant said that each of these statements of fact that he made was "most definitely" (T 458), "definitely" (T 459) something that he believed to be true at the time. [83] How much of the publication asserted by the plaintiff to have been made was in fact made by the defendant? Conclusions concerning publication of the first matter complained of [84] The opening words of an article, or a headline, may often have an impact upon meaning. This slander is asserted to have commenced with the opening words "I have concerns for my welfare as a result of the actions of Mr Bechara". [85] According to the defendant, his opening words were not "I have concerns for my welfare as a result of the actions of Mr Bechara", they were "I was concerned about a fire that occurred at our premises". It was never put to the defendant that he used these words at the beginning of his conversation, or indeed that he used this precise formulation at all. What the defendant said he did say was that he was concerned for his safety "because of the fire bombing, could have lost our business and I was scared of the ramifications" (T 457). He then went straight into telling the police officer about having won "many court cases" and said again that he was "scared of the ramifications". [86] Notwithstanding the way that this claim has been elevated to the main statement, it is clear that words to a sufficiently similar effect were said. [87] What was not said, however, was that Mr Bechara was the person who drove the vehicle through the front gates of the business premises and set it alight, nor was there any reference to his associates as the alternative persons who performed these acts. The whole of the third paragraph is a reconstruction of the contents of the conversation; the language and structure is that of a written summary rather than spoken language. [88] The crucial part of this publication, and this paragraph, is whether he said the plaintiff did this, or whether he said he suspected him. The defendant had no direct evidence, and in fact told Sergeant Fowler frankly he had no evidence. He said that the conversation went: "Q. Do you remember what Sergeant Fowler said after that? A. He asked me "Is it developer that you suspect?" and I said to him "I want to state clearly that I have no proof but yes, it is a developer that I suspect"."(T 459) [89] The defendant was careful to tell the police officer he had no proof, and said he wanted no action taken; he wanted the matter recorded in case there were further "incidences" between him and Mr Bechara, the inference being that if that occurred, these events could be looked at again in this light. [90] Is this the language of guilt or of suspicion? The question whether a statement of suspicion imputes guilt was considered in Lewis v Daily Telegraph Ltd [1964] AC 234. Lord Devlin stated at 285: "It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." [91] Lewis and Mirror Newspaper v Harrison (1982) 149 CLR 293 were considered by the NSW Court of Appeal in Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915, where the Court, allowing an appeal from Simpson J, reviewed the circumstances in which a publication imputes guilt as opposed to suspicion. While Malcolm is a decision on capacity issues, I have been careful to note the obligation on the finder of fact, in a trial such as this, to look at the issue of what amounts to language of suspicion when determining whether that is in fact what was said by the defendant. [92] The defendant said he had no proof, and he wanted nothing done; he simply wanted his concerns noted in case there was further trouble. This is clearly the language of suspicion and not guilt. Accordingly I find that the defendant said he suspected the plaintiff, but had no proof. [93] As to the issue of threats, the defendant agreed that he had said that the plaintiff had made threats. The real difficulty is with the sentence "Mr Bechara is more than capable of carrying out these threats". [94] The plaintiff was asked at T 624-625: "Q. You said to him that you believed that Mr Bechara was more than capable of carrying through with threats he'd made, didn't you? A. He asked me if I suspect anyone, and I told him that I - after he asked me that I said we had civil action and we'd won a few court proceedings him, that I was scared and - where's the part about-- HER HONOUR: The bottom line. WITNESS: The bottom line? SMARK Q. Yes, it's just above the - there's two lots of two stars at the bottom. It's the second-lowest two stars, it's the paragraph beginning, "The victim further informed police," and so there's five lines there, and you can see, "He's involved in a civil matter and that he was of the belief that the person of interest was more than capable of carrying through with these threats," and what I'm suggesting to you is that you said to Sergeant Fowler-- A. I possibly did, I can't recall saying that. Q. What I suggest to you is that you did say to Sergeant Fowler that, having identified that Mr Bechara had made numerous threats, as you did, that you believed that he was more than capable of carrying through with those threats. Do you agree with that? A. I can't remember saying that. Q. You certainly don't exclude that you said that, do you? A. I don't exclude it. I'm just trying to think back what happened on that day. I can't remember exactly saying that. Q. What I suggest to you is that whatever it was that you knew, that was in your mind about Mr Bechara - okay, because it was clearly Mr Bechara that you were thinking about, wasn't it? A. That's correct. Q. Whatever was in your mind about Mr Bechara, you didn't have any particular thought in your mind about Mr Bechara actually carrying through any threats, did you? A. I was-- MCHUGH: I object, your Honour. I think my friend needs to make that more specific. SMARK: I'll do that, your Honour. HER HONOUR: Yes, I agree. Thank you, Mr Smark. SMARK Q. You've given some evidence and there's obviously been - matters have been put to you as to how far you had been told things, but you've given some evidence about being told various things by various people about Mr Bechara. Do you agree with that? A. Yes. Q. What I'm suggesting to you is that even if you had been told those things, generally speaking, those things you had been told were not things about Mr Bechara making threats and then carrying them out, they were at most about Mr Bechara making threats - at most; do you agree with that? A. No, I was concerned that he could have carried out a threat like that. Q. What, like shooting someone? A. No, like, you know, what occurred. Once the policeman asked that questions to me it started coming to mind and I thought that it possibly could have been him that - or someone associated with him could have carried it out." [95] The defendant's frank answers, in my view, make it clear that he did say he words to the effect that the plaintiff, if he made threats, could have carried them out. [96] The defendant has therefore published all of the first matter complained of except for the following passages: (a) Paragraph (3): 'I think that this was either done by Mr Bechara or his associates in order to damage my property.' [97] The result is that imputations of suspicion and not guilt are conveyed. [98] Accordingly, I am satisfied that the defendant did publish a substantial portion of the first matter complained of, but that he said that he suspected the plaintiff, and did not say that the plaintiff actually did the driving onto the property. While I could replace the word "think" in the third paragraph, a better formulation would be to replace this sentence with a sentence conveying suspicion. Since it is not appropriate to rewrite the matter complained of, I shall simply delete that sentence. In addition, the reference to Mr Bechara being capable of carrying out those threats was, I find, couched in the language of suspicion. [99] In practical terms, this would mean that imputations (b) – (d) and (g) are not conveyed, but I shall deal with each of them in the section below concerning imputations. The imputations [100] I shall consider each of the imputations in turn. Imputation (a) [101] The defendant submits that if this imputation is conveyed, it is incapable of being defamatory. [102] While an imputation that the plaintiff had been sued is conveyed, every case in this court consists of a person who sues and a person who is sued. There is nothing in the matter complained of to identify anything out of the ordinary about the case apart from "failed business dealings" (which, as I have indicated above, I find the defendant did not say, something that heightens the artificiality of this exercise). The ordinary reasonable listener would not, without more, consider such an imputation to be defamatory. This imputation is not capable of being defamatory. Imputations (b) – (e) and (g) [103] On my construction of the matter complained of, not only was the imputation conveyed one of suspicion, but there was no allegation that the plaintiff had personally stolen the vehicle or driven a car through the front gates of the defendant's business and set it on fire. Similarly, imputation (g) is not capable of being conveyed even on the terms of the matter complained of, because there is no reference to anyone being assaulted. [104] Imputation (d) is couched in the language of guilt rather than suspicion, and accordingly is not conveyed. Imputations (e) and (f) [105] These imputations are clearly conveyed by the matter complained of. Imputation (h) [106] This rolled-up imputation conveys two stings; that the plaintiff is violent and that he is capable of carrying out verbal threats. [107] The matter complained of does convey that the plaintiff is capable of carrying out verbal threats. Does it convey that he is violent? If by "violent" the intention is to say that he is violent in that he is capable of carrying out verbal threats, I will accept this poorly drafted imputation. Findings concerning imputations [108] Imputations (a), (e), (f) and (h) are conveyed but imputation (a) is not capable of being defamatory. [109] I note, however, that I have considered the defences to this publication on both bases; firstly, on the basis that the publication as pleaded by the plaintiff is made out, and secondly on the basis that the publication as I have found it to be made has been made. [110] I now consider the second publication. The second matter complained of [111] Prior to the second matter complained of, there were two further incidents of vehicles being set on fire. These were as follows: (a) On 21 May 2007 a car was set on fire outside the block of flats at 5 - 9 Chapman Street, which was the central property involved in the Land & Environment Court litigation. The owner of the vehicle took photographs (see Exhibit 20, T 637 lines 37-40). The defendant went to look at the burnt out carpark area and saw the rubbish and soot on the ground but did not see the vehicle, which had already been removed (T 464). He said that he felt "very concerned and very lucky that the whole building hadn't gone up, so very scared from that point of view" (T 466). In his evidence he said he was unaware of his parents, who owned the building, having any enemies, other than the plaintiff (T 465). (b) On 6 June 2007, while the defendant was at Auburn Council Chambers working, he received a telephone call from his brother, Gary, who said: "You wouldn't believe it but Judy Chin has just rang me, called me, her car has been fire bombed". The defendant said "You're joking", to which the defendant's brother replied "No, the window – one of the windows were smashed and it appears that they've used petrol to set it on fire". The defendant replied "Oh my God, that's three cars now". The defendant's brother told him he had asked Judy Chin if she suspected anyone, to which she had replied that she had had a heated argument with the plaintiff "not too long ago" and that "she suspected Mr Bechara had caused the fire". The defendant felt "very, very distressed and very scared at the time because that was the third fire that had occurred in a very, very short time in the area" (T 467). [112] Accordingly, the defendant became concerned and decided to go and see the police if there was any update on the first fire bombing and to see if it had been linked to the second and third fire bombings (T 468). The recollection of Sergeant Silva as to what was said [113] Evidence was given about the defendant's conversation with Sergeant Silva, who did have some recollection of some aspects of the conversation, unlike Sergeant Fowler, the recipient of the first matter complained of. Sergeant Silva described the defendant's conduct as: (a) "He was concerned. He was concerned …" (T 42, 47); (b) He looked "nervous" and "like he had genuine concerns" (T 51); (c) "He was concerned and he had signs of, physical signs, that he was concerned. He might have had bags under his eyes. I can't remember but I do remember that he was concerned" (T 54). [114] Sergeant Silva recollected that the defendant asked to speak to Sergeant Fowler, with whom he had dealt on the previous occasion. As Sergeant Fowler was not rostered on that day, Sergeant Silva asked if he could help, which was the usual practice when a person seeking a police officer came to the police station. The method of preparation of the statement [115] The conversation took place over a period of about 30 minutes, first of all at the front desk and then in an office at the side of the front counter. In the course of the interview, Sergeant Silva made some notes which he transferred to his notebook and four days later, put into a COPS entry (T 48). Sergeant Silva explained the reason for the delay as follows: "Unfortunately Auburn's very busy and I was on a shortened shift that day. I think I was only on an 8 hour shift. Not that I'm making any reason why it shouldn't have been done straight away, it's just I dare say it would've been workload and because there was no further investigation it probably would've been prioritised lower down the list." (T 48) [116] He said he copied into his own COPS entry a portion of the COPS entry made by Sergeant Fowler, in that he transferred this particular notebook entry into the COPS system, which is linked to previous COPS entries entered by Sergeant Fowler in a centralised database (T 49). This is important because in addition to copying across incorrect information about the existing litigation on foot between the plaintiff and defendant, these were words spoken by the defendant on the first occasion, while the material contained in the COPS entry sets out information from the defendant on both occasion. Sergeant Silva said his notebook entry would be a more accurate account of the conversation than the COPS entry (T 243). [117] This brings me to a consideration of the structure of the second matter complained of. The structure of the second matter complained of [118] As was the case with the first publication, I shall analyse the structure of what was said. The defendant's evidence of what occurred is as follows: "Q. Do you remember whether Sergeant Silva asked you anything at that point? A. He asked "Can I help you?" Q. What did you say? A. I said "Yes, I was concerned for my safety and some instances had occurred" and asked him about if there'd been any further updates on a fire at 12 Raglan Road, Auburn. He asked me if I had the event number and I said no I didn't have it with me and he looked it up on the computer from the address. Q. Was he able to tell you whether there'd been any updates? A. He looked in there and said he couldn't see any further updates and I told him that there'd been another two fire bombings, one at 5 - 9 Chapman Street at Strathfield and there'd just been another one today, or just occurred yesterday at a lady called Judy Chin's place which is 8A Hilt Road, Strathfield and I just asked him if they were on the computer at all." (T 468 line 48 – T 469 line 13) [119] I note Sergeant Silva clearly must have accessed the event number of the first and second car fires on the computer, as this appears in the COPS report of the second incident. What does not appear on the report is any reference to the Judy Chin car fire. [120] According to the defendant, Sergeant Silva was not able to find the incidents on the computer at the time (T 469). [121] The defendant gave evidence that Sergeant Silva asked about the defendant's concerns for his safety. Given the number of times Sergeant Silva used the word "concerned" to describe the defendant, this is a question he is very likely to have asked. According to the transcript, the defendant then replied to this enquiry as follows: "Q. Did Constable Silva say anything? Sergeant Silva? A. Yes, he said "You're concerned for your safety?" and I said "Yes, I was concerned, we've had the parents' company, F & D Bonaccorso had taken civil action against Canada Bay Council and a developer and we had won a lot of court cases and I was concerned about what had happened and what the ramifications could be and there was a lot of stuff coming out in the media as well and now there've been three fire bombings so I was, I was quite concerned?" (T 469 lines 22-29) [122] The defendant's evidence was that Sergeant Silva looked at the COPS report in relation to the first fire bombing and asked "Is it the developer in this first report [the person] that you suspect" To which the defendant said he replied "I want to state clearly that I've got no proof but yes, it is" (T 469): "Q. Now do you remember whether Sergeant Silva asked you anything about what you'd just said to him? A. He asked, he was looking in the, in the computer and he seen, he was looking at the report and he said "Is it the developer in this first report that you suspect?" and I said "I want to state clearly that I've got no proof but yes, it is". Q. Now when you said all the things that you've just told her Honour, that you told Sergeant Silva, did you believe them to be true? A. Yes. Q. And at the time you were talking to him and he was asking you questions, why did you answer them? A. Because I felt I had a duty to, to answering, being a police officer, someone of authority. Q. How were you emotionally at this point when you were talking to Sergeant Silver? A. I was, I was very scared for my safety and what could have, what else could have happened or, because there was a lot of stuff coming out in the media, a lot of stuff coming out in press, like there was two local papers in that Canada Bay area and both of them were reporting fairly heavily on it, allegations of bias by the council, a lot of DAs that had been illegally passed and approved, a sale of eleven blocks of land to one developer without any kind of tender process. The sale of two parks in the area without any kind of tender process and now that the land had to be handed back to the council there was a lot of that stuff coming out in the press and the media and I was very concerned of what the ramifications could be after losing a major development site like that, 146 units with an average price of over half a million dollars each, that's, you know, in my mind a seventy to eighty million dollar project that's just been fallen over. So I was very concerned that Mr Bechara would have been very, very upset and very, very distressed because he had a lot of pressure on him and loans that he had to repay the banks and things like that. Q. That was how you say you were feeling at the time, as you were talking to him? A. Yeah. Q. Do you remember whether he asked you anything else? A. He asked me if we've been threatened in any way and I said "Yes, that me and my father and brother have been threatened, and other, other neighbours in the area have been threatened many times before, that's why I was concerned". Q. And when you said that to him, did you believe that to be true? A. Most definitely, yes. Q. Now do you remember whether there was any mention of a member of parliament whose name is Chris Hartcher? Do you remember whether that was mentioned? A. Yes, I, I mentioned-- Q. Just before you go any further, you said yes? A. Yes. Q. Now the question I'm asking you is how was it that there came to be mention of Mr Hartcher? A. Well he asked me if I had any other concerns or knew of anything else and I said "yes". And I said I was concerned that it was going to be brought up in parliament about Canada Bay Council and the favourable treatment of one developer by, by Chris Hartcher in parliament on 6 June. Q. Now when you said that that's what you were concerned about, was that true at the time? A. Yes, it was. Q. Why did you tell Sergeant Silva that? A. Because I was concerned when it come [sic] out in parliament it'd be public knowledge and was just scared that something else might, might happen, might occur. Q. Now just dealing with that question about Mr Hartcher, and I'm not suggesting you said this to Constable Silva, in a sense I'm interrupting that, I just want to deal with the question of Mr Hartcher. How was it that you came to believe that Mr Hartcher was going to raise that matter in parliament? A. I was told by someone else. Q. Did you, yourself, have any conversation with Mr Hartcher in May or June of 2007 about that subject? A. No. Q. Do you remember if Sergeant Silva said anything else to you? A. Yes, he asked me if I had, knew of anything else and I said "Yes, I was in a meeting that my father, my brother and myself had with Mr Bechara. He advised us how he could pay councillors". Q. And what were you referring to when you said that? A. It was a meeting that we had at 19 Burwood - sorry, 19 George Street, Burwood, back in 2000 and a meeting that we had there with Mr Bechara. Q. The one about which you've already given evidence? A. That's correct. Q. Now when you said that to Sergeant Silva, was it something that you believe to be true? A. Most definitely. Q. Do you remember whether Sergeant Silva asked you anything else? A. He asked me - I can't recall but I remember him saying if we had any other concerns or anything like that to come back and see him." (T 469-471) [123] The plaintiff was not able to remember the whole of his conversation with Sergeant Silva. This makes it even more difficult to reconstruct what was said, given the way in which Sergeant Silva reconstructed the interview by copying parts of the first matter complained of and adding some (but not all) updating facts. Comparison of what the defendant says he said and the second matter complained of [124] The defendant did not say he volunteered the information that he suspected the plaintiff; he said he was asked for this information. Sergeant Silva said it was usual practice to ask a person who came to the police station in this way the name of that person and he would expect the defendant to answer such a question honestly (T 54). [125] The next part of the interview related to enquiries about the relationship between the plaintiff and defendant, in that Sergeant Silva, according to the defendant, initiated the discussion of whether the defendant had been threatened in any way. This is a very likely enquiry for Sergeant Silva to have made, firstly because there is reference to it in the previous COPS report and secondly, because it is a logical question for a police officer in such circumstances to ask and I note in this regard the description of Sergeant Silva's procedure when asking persons who come to the police station for information in order to identify potential lines of inquiry (T 47, 48 and 52). [126] The defendant's evidence was that he replied that he, his father and brother had been threatened and that other neighbours in the area had been threatened many times before, and that this was the reason for his being concerned. [127] In his evidence, the defendant said that Sergeant Silva asked about other concerns, following which the defendant said he was concerned about the favourable treatment of the plaintiff by the Canada Bay Council, and that this was going to be brought up in Parliament by a member of parliament, Chris Hartcher MLA, that evening. [128] A significant attack was mounted on the inclusion of this material in the information provided to the police. However, the defendant was not cross-examined about his assertion that Mr Hartcher MLA did in fact raise the matter in Parliament that night. This aspect of the information provided to Sergeant Silva is discussed in more detail below in the section concerning qualified privilege at common law. However, it is clear that the defendant mentioned Mr Hartcher's upcoming speech that evening as being a matter that was a part of his concerns and in response to Sergeant Silva's questions. Sergeant Silva also recalled the defendant had told him it was possible that the plaintiff's name might come up in Parliament that night and that the defendant was concerned for his safety. Sergeant Silva thought the mention of the developer's name as coming up in Parliament was "all related" to the defendant's concerns for his safety (T 55). Sergeant Silva said "I just remember about the burnt out vehicle and all that information he told me, he was concerned about all of it" (at T 54). [129] The defendant said that Sergeant Silva asked him if he knew anything else, in response to which he described circumstances where, at a meeting in November 2002 the plaintiff said he could pay councillors (T 471). [130] A comparison with this account of the conversation given by the defendant and the matter complained of contains the following significant differences: (a) The first two sentences were copied from the first matter complained of. Not only was the second paragraph not spoken, but it contains the same inaccuracy about failed business dealings. This is, however, relatively unimportant, in that it does not change the sting of the matter complained of. (b) Although there is a reference to the second car fire incident (for which Sergeant Silva looked up the incident number), there is no reference to the details the defendant provided concerning the second and third car fires which he reported to Sergeant Silva and the reasons he was concerned about them (apart from the incident number). As indicated elsewhere, I have accepted that the defendant knew about the fire bombing of Judy Chin's car, and that he went to the police station because of his concern about this third incident, as well as the incident on 18 May 2007. (c) In the course of the discussion, the defendant provided information about matters to be raised in Parliament that evening concerning preferential treatment of the plaintiff by the Canada Bay Council and described an incident in 2002 when he said he could pay councillors in offshore accounts, although it is not clear just how much of this the defendant told Sergeant Silva. Sergeant Silva just said "the matter has been referred to my local member" and gives the date when the "matter" will be raised in Parliament. This is not what the defendant states that he said. Having regard to the need for precision articulated in Watson v Foxman and the other decisions reviewed in this judgment, a statement that Mr Bechara and his associates are involved in corruption, offering councillors money to have development applications approved is not the same as telling a police officer that Mr Bechara told the defendant he could pay councillors in offshore accounts. (d) The third last and last paragraphs are restatements of the last two paragraphs of the first COPS report rather than a summary of what the defendant said to Sergeant Silva. [131] At paragraph 120 of the plaintiff's written submissions, it is submitted that I should make a finding that the defendant said words in substantially the following terms to Sergeant Silva, namely the words as set out in the second matter complained of. [132] The difficulty that I have with this submission is that five of the seven sentences in the second matter complained of essentially repeats what was in the first COPS report, with two additional pieces of information, namely the incident on 18 May and the allegation of corruption followed by the claim that "the matter" had been referred to Mr Hartcher MLA, but without the reference to the Judy Chin car fire earlier that morning. [133] If I accept the defendant's evidence that his motivation for going to the police station that morning was the discovery of a third car fire, the absence of this information from the reconstructed matter complained of is a significant omission. Conclusions concerning publication of the second matter complained of [134] Sergeant Silva has very little recollection of these events, but he was certainly able to recall the level of anxiety and concern of the defendant. There had been three car fires in a month. There had been damage to the defendant's business premises, a car belonging to a resident in the home units owned by the defendant's family, and now the defendant's neighbour Mrs Chin's car had been set fire to. Sergeant Silva agreed this was unusual and serious. [135] While I am satisfied that the defendant said things in answer to Sergeant Silva's questions, I am not satisfied that the COPS report, or any reconstruction of what the defendant might have said from it, accurately reflects or summarises what was said during this interview. There is no doubt that the defendant gave enough detail about the other two car fires for the COPS report entries to be found, and that he repeated his statements that he did not have any evidence that Mr Bechara was involved and just wanted to inform police in case of further incidents, and that he said something about what Mr Hartcher MLA would raise in parliament that night. However, the level of particularity discussed in Watson v Foxman, supra that McDougall J required in Ingot Capital Investments, supra, is not made out. I must be reasonably satisfied, with some precision, based upon actual persuasion grounded in the evidence, of the words that were said, before I can consider whether they conveyed imputations defamatory of the plaintiff in the proved circumstances. I feel no sense of actual persuasion, and I am not satisfied on the balance of probabilities, that the plaintiff can establish what was said. [136] Although the principles of law set out by McDougall J in Ingot Capital at [353] – [355], by Young J in For the Good Times Pty Ltd at [185] and by McLelland CJ in Eq in Watson at 318-319 relate to statements made in the course of business transactions, such principles should apply with equal, if not greater force to claims for damages for defamation. The High Court has held that there is no principle of "business libel" and it would be inappropriate for there to be a higher standard of precision required for statements in business than for statements about personal reputation. Given the tension between freedom of speech and protection of reputation, there are public policy reasons for requiring that an allegation of publication of a slander should require the same level of particularity as a misleading or deceptive statement in business. [137] An alternative that was put to me was that I could find a portion of the matter complained of was said, such as the reference to threats being made. That was possible with the first matter complained of, where there was more evidence of what the defendant said. However, the defendant did not visit the police station to say the same words twice. He referred to a number of other matters, which are not in the COPS report or in the text of the matter complained of, and rather than note these down, Sergeant Silva has copied across sections of the first COPS report. [138] The onus of proving publication lies on the plaintiff, and the plaintiff has failed to discharge it. Accordingly the plaintiff has failed to prove the second matter complained of as alleged. [139] In the event that I have erred in this finding, I shall set out some brief findings concerning the imputations. Imputations [140] For the reasons set out above, imputation (a) is incapable of being defamatory. There is nothing in the text of the matter complained of capable of conveying an imputation that the plaintiff is a criminal in that he has assaulted persons who had sued him (imputation (d)). The other imputations would be conveyed and defamatory. The defences pleaded [141] In the event that I have erred in finding that part only of the first matter complained of has been proved to have been published, and that the plaintiff has failed to establish the text of what was published on the second occasion, I have dealt with the defences as follows: (a) As to the first publication, I have considered whether, if the text is as pleaded by the plaintiff, the defences pleaded would be applicable; (b) I have then considered whether, if the text of this publication is made only to the limited extent that I have found it, the defences pleaded would be applicable; (c) As to the second publication, I have considered whether, it the text is as pleaded by the plaintiff, the defences pleaded would be applicable. [142] I shall first consider the defence of qualified privilege at common law for the whole of the first matter complained of, and shall start with some general statements of the principles of law involved. Qualified privilege at common law [143] Communications are protected by the defence of common law qualified privilege where the publisher has an interest or a duty (legal, social or moral, to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty in receiving it: Bashford v Information Australia (2004) 218 CLR 366 at [9]-[10], [53] and [136]-[137]. [144] As Gleeson CJ, Hayne and Heydon JJ pointed out in Bashford at [10], the width of these principles make it necessary to make a "close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned, and of the events leading up to and surrounding the publication". [145] The common interest does not necessarily arise out of the same set of circumstances, as the interests of the parties can be quite different in kind, but the occasion may still be privilege. [146] The New South Wales Court of Appeal in Bennette v Cohen [2009] NSWCA 60, considered the issue of "duty" and "interest". In Bennette v Cohen Ipp JA, at [25] extracted a list of propositions concerning duty and interest, noting the very high level of generality and obstruction of the test for common law qualified privilege and the need for "close scrutiny" of "all the circumstances of each case", which results in practice in common law qualified privilege having a relatively limited or narrow practical application. There is no closed set of criteria that must be applied or considered. In particular, at [25](d), Ipp JA noted the following guidelines: "(i) As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party; (ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion; (iii) The interest that gives rise to qualified privilege must be real and direct; (iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement; (v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and; (vi) The interest should not give officious and interfering persons a wide licence to defame." [147] Campbell JA went on to add, at [207]: "[207] I would add some explanation concerning the way in which the public interest impacts upon common law qualified privilege. It seems uncontroversial that the notion of the public interest operates as a means of limiting the sorts of reciprocal duty or interest that can give rise to qualified privilege. However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made." [148] The High Court in Cohen v Bennette [2009] HCA Trans 291 confirmed that the law relating to qualified privilege was understood in the manner explained by Campbell JA at [207]-[210], and that "Justice Campbell's account is correct": see page 7 of the transcript. [149] I propose to comment briefly on each of the matters in Ipp JA's checklist: (i) The court's approach to the "public policy" issues where a defamatory statement has been published [150] The necessary requirement is a reciprocity of duty and interest. The defamatory matter must be published pursuant to that duty to a person with the appropriate interest. The facts must be closely scrutinised: Bennette at [11]. However, the 'public policy' issues in a case such as this could not be clearer. On each occasion, a serious crime had been committed, and the defendant, a representative of his business, and of the family company, had a legal duty (s 316(1) Crimes Act 1900 (NSW)) to report each fire at their premises and assist police in their inquires. (ii) Foreign motive or purpose and the "part and parcel" test Adams v Ward [1917] AC 309 (at 327 per Dunedin LJ) [151] While matters wholly irrelevant to the privilege are not protected, the test of relevance is not a demanding one. If the extraneous material (for example, the allegations of corruption in the second slander) is part and parcel of the privileged statement, it is still protected. The relevance of the Hartcher/corruption allegation was that the statements were to be made in Parliament later that same day. It was in my view part and parcel of the second publication. [152] The identification of the plaintiff as the person suspected, or accused outright, by the defendant was, I find, not a foreign motive or purpose, as it was the job of police to investigate serious criminal offences of this kind, just as it was the defendant's obligation to report his suspicions and allegations to them. (iii) The interest must be real and direct [153] The defendant in these proceedings asserts that he had an interest and a duty as follows: (a) as a victim of crime, both at his business premises and at the premises of a block of units owned by his family company of which he was a shareholder, who was concerned for his own safety and that of his family, business and employees; he had an interest in seeing that those crimes were investigated and solved; (b) as a member of a community in which these crimes were occurring, the defendant had a similar interest; as a citizen, he had a duty to assist the police generally and to answer the specific questions posed to him by Sergeants Fowler and Silva. [154] I accept these as real and direct interests. (iv) a volunteered statement [155] In Bennette v Cohen at [21], Ipp JA noted: "[21] Whether the defendant volunteered the defamatory material, or published it in response to a situation that reasonably called for a response, is a relevant factor. In Bashford (at [73], 393) McHugh J said: Ordinarily the occasion for making a volunteered statement would be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. His Honour proceeded (at [77]): [W]here neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege." [156] The question of whether there is a pressing need, or where the defendant has a duty to make a statement to the recipient, is really what this case is all about. [157] In relation to both of the matters complained of, danger to property had already occurred. In relation to the first, and in particular the second, publication, there was a pressing need to protect both the defendant and third parties, namely his business, his employees, his parents' home and arguably the welfare of their neighbour Mrs Chin. Thus, if this is a volunteered statement, it is one falling within the exceptions referred to in Bashford. [158] However, were these publications volunteered? In my view they were not, for two reasons. First of all, in relation to both of the matters complained of, there was a police investigation already under way. In relation to the first car fire, the defendant had initiated that police investigation by telephoning police to report a criminal offence which he himself discovered (T 456) only two weeks earlier, and in relation to the second he was the spokesman for those who had an interest in the second car fire and wanted to notify police of a third such fire. Secondly, it is clear from analysis of the matter complained of that the defendant was answering police questions, and these questions included a question as to whether the plaintiff could name anyone. The plaintiff was required to give an honest answer. As to the law of qualified privilege regarded honest answers generally, Campbell JA in Bennette at [208] – [210] noted: "[208] An archetype of a statement protected by qualified privilege is when someone's former employer gives an honest answer to a prospective employer of that person who enquires about the ability and character of that prospective employee. The former employer's answer to that question is unlikely to have the slightest effect on the life of the average resident of this State. Even so, the duty of the former employer to give an honest answer when asked, and the interest of the prospective employer in finding out the truth on that topic, are of such a kind that it is nonetheless in the public interest that former employers should be free to give an honest answer to that type of question. I recognise that this archetype is one where the privilege is usually explained as arising from a duty of the former employer to give an honest answer to the question, rather than as arising from any interest of the former employer, but I doubt that that affects how the public interest operates in determining whether the statement is the subject of qualified privilege. [209] The case law quoted in the judgment of Ipp JA bears out that it is by reference to the type of communication involved in the defamatory utterance, rather than the particular defamatory utterance itself, that the public interest is to be gauged. In Toogood v Spyring Parke B said (at 193; 1050): … such communications are protected for the common convenience and welfare of society … (emphasis added) [210] The statement of Latham CJ in Guise v Kouvelis considered whether it was conducive to social welfare that the type of statement there involved should be made with impunity. In Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd Jordan CJ considered whether the common convenience and welfare of the people of New South Wales would be advanced if "Yugoslavs who had made this State their home" were free to make a particular type of statement." [159] Applying this test to the circumstances of this case, these were answers made in response to a standard police inquiry of the kind police make on a daily basis. (v) The size of the audience [160] This was a publication to one person. Other persons could not obtain access to any notes the police officer made unless they had the requisite permission to use the COPS system and were already apprised of the investigation into these car fires or were looking for information about the plaintiff in relation to criminal activities. (vi) The interest should not give officious and interfering persons a wide licence to defame [161] In Bennette, the Court of Appeal noted (at [60] – [62]) that Mr Cohen had no involvement, direct or indirect, in the litigation between Mr Mackay and Mr Bennette, no relation of principal and agent or any other business relationship or connection, and no interest in the litigation beyond the matters relevant to his position as a Greens member of parliament, in circumstances where the issues involved matters that were "personal to the litigating parties" (at [62]). There was "no relationship of trust or confidence or even intimacy" (at [61]). [162] The reverse is the case here. The defendant had the following links to each of the three car fires. [163] In relation to the first car fire: (a) This occurred at the premises of the business of which he was effectively the owner; (b) The defendant discovered the burnt out car when he arrived at work, and said "so I contacted the police" (T 455); (c) The defendant spoke to the police officers when they came to investigate the car fire, and was alarmed to hear: "I asked them if they were aware what happened and they advised me that there was a car that had been driven through the front wire fence and set alight. They told me that there was a can of petrol in there and the vehicle was deliberately lit and they told me that we were extremely lucky that the car rolled towards the wall and not towards the building otherwise the whole building could've gone up. We could've lost the whole building." (T 456) The defendant was "very, very scared" as a result. (d) The defendant made an insurance claim for damages to his work premises which was processed on 31 May (T 456); (e) His attendance at the police station on 6 June was to see if there were "any further updates"(T 468). [164] The following were matters that he identified as causing him concern: (a) the ongoing litigation between his family company (for which he was the spokesman) and the plaintiff's company; (b) the publication on 3 May of an article about the rally in which he was quoted as if he were a spokesman (T 454). [165] As to the second car fire, unlike Mr Cohen, the defendant was directly and intimately involved with the first and second car fires, and his concern about the third car fire was, given the unusual similarity of a third car fire, a matter where any inquiry he made could not be seen as officious or interfering. Whether each of the publications was published on an occasion of qualified privilege at common law [166] Citizens have an obligation to assist in the detection of unlawful or criminal acts and the identification of the wrongdoer; were it otherwise, "the ends of justice might often be frustrated": Croucher v Inglis (1889) 16 IR 774 at 778 per Lord Shand. A police officer is always interested in information of criminal wrongdoing regardless of the particular circumstances leading to the conversation with the defendant. This includes providing the names of possible suspects because: "Citizens and law enforcement have a common interest in investigating criminal activity, and the discussion of potential suspects of criminal activity is relevant to that common interest. We conclude that defamatory statements voluntarily make to law enforcement during the investigation of criminal activity are qualifiedly privileged." ( Richmond v Nodland 552 NW 2d 586 (ND 1996) at 589 per Vande Walle CJ). [167] I agree with the defendant's submissions that this is a very clear case of qualified privilege at common law (written submissions, paragraph 2). They consist of two publications to two police officers on separate occasions by the victim of two of three serious crimes (where the third crime could well be connected) where there was an urgent fear for safety, especially in circumstances where cars set on fire is a rare occurrence. Sergeant Silva gave the following evidence: "Q. Fire bombings of cars is not an every day occurrence in the area where you worked as a police officer was it? A. Yes, I'd agree with that. It's probably not a regular occurrence. Q. It would be unusual, wouldn't it, for there to be three fire bombings in the space of a couple of weeks involving a group of people who all knew each other? A. From my experience yeah that would be unusual. Q. Certainly you as a police officer on the front desk when somebody came in if they raised the subject of a fire bombing you would consider that to be a potentially serious crime? A. Yes. Q. And something where it would be appropriate to consider whether or not it needed to be investigated? A. Yes. Q. In the course of investigating you, as a police officer certainly believed that people that you spoke to, whether they be potential witnesses or possibly victims were people who had a duty to answer your questions honestly as best they could? A. Yes." (T 47) [168] The defendant had a legitimate interest to protect on each occasion, a duty to assist the police and an obligation to answer questions. The police had a reciprocal duty or interest to receive this information and the information did not exceed the privilege. [169] In practical terms, the circumstances in which a victim of crime nominates another person as the likely perpetrator are occasions the courts are likely to regard as protected occasions, particularly when the publication is made to the person who is the proper person to receive the information: Hebditch v McIlwaine [1894] 2 QB 54. The real question is whether the protection of the occasion is lost by reason of the defendant's malice, which in my view is the central issue in the case. [170] I shall first consider the issue of whether the statutory defence of qualified privilege under s 30 is made out. The defence of qualified privilege under s 30 [171] Section 30 provides: " 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward." [172] The question is whether it was reasonable for the defendant to attend the police station and say what he did to police in answer to their questions. Interest and apparent interest [173] The plaintiff submits (written submissions) that the police did not have an interest in receiving the communication, because the police were not asked to act, but to record the information for future reference. [174] I do not accept this submission. They were asked to record this information, on each occasion, in case there was a further occasion, in which case the facts of these car fires could be looked at again, with a view to determining if the plaintiff or his associates were in any way responsible. [175] There were in fact three car fires, and the interest the police had in receiving the communication was that these car fires could be linked. [176] I am satisfied that the defendant has established that each of the police officers had an interest in receiving the information on each of the occasions. Reasonableness [177] The plaintiff submits the defendant's conduct was not reasonable because: (a) He did not publish the information to seek assistance from the police or to spur any action from them; (b) He made the allegations without proof; (c) He published them knowing them to be untrue; and (d) He did not make any attempt to obtain the plaintiff's side of the story. [178] I reject these submissions for the following reasons: The first publication [179] The following factors are relevant: (a) The defendant published the information in the first matter complained of to spur action from the police in the future; (b) The proof, to the defendant, consisted of the information he had about the litigation (the "failed business dealings") and the plaintiff's threats to others; (c) I do not accept that the defendant knew these allegations to be untrue. He knew he did not have any evidence to support them, and said so, but this is very different to knowing the actual untruthfulness of the allegations; (d) The requirement in s 30(3)(h) that a person should obtain the other person's side of the story is one of the matters that a court should take into account, but this is an item in a checklist in s 30(3)(h), not a mandatory requirement. To impose the burden upon a victim of crime of having to confront any person to ask for their side of the story would be foolish and dangerous, when this is the job of the police, and where the person who was accused would be entitled to exercise his right to silence and refuse to answer. Section 30(3)(j) allows a court to take into account "any other circumstances that the court considers relevant". In my view, the obligation to ask the person accused for his side of the story should have little or no part to play where a crime has clearly occurred, and the police are the ones investigating. It is then up to the police, if appropriate, to seek this information. The second publication [180] I reject the plaintiff's arguments concerning reasonableness in relation to the second publication, for the same reasons. I note, however, that there was considerably more urgency, in that there were a further two car fires, which was a situation of greater potential danger. In addition, although a stolen car could be blamed on joyriders, there is no suggestion that joyriders took the car belonging to the tenant in the defendant's family company block of units, or the vehicle belong to Mrs Chin which was parked outside her home. [181] I now consider the issue of malice in relation to each of these defences. Malice [182] The principles relevant to malice are set out by the High Court in Roberts v Bass (2002) 212 CLR 1, Gross v Weston [2007] NSWCA 1 at [35] – [52] (per Hunt A-JA), Lindholt v Hyer (2008) 251 ALR 514, Fraser v Homes [2009] NSWCA 36 at [50] – [68] and, in relation to s 30, in Griffiths v Australian Broadcasting Corporation, supra. I have exercised caution when considering the principles of Griffiths, because the parties have not had the chance to address me on the principles of this very recent decision. [183] The defendant submits that the relevant questions are: (a) What is a proper purpose, and therefore what would constitute an improper purpose in making the publication in those circumstances? (b) What was the defendant's purpose in this case? (c) Was it the predominant motive? (d) Was it an improper purpose? Evidence of malice [184] Actual and express malice is proved by drawing inferences from proved facts (McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 at 51 per Clarke JA). It is not confined to the publication, and is a state of mind which is inferred from the acts, conduct or expressions of the defendant, whose motive "can only be inferred from what he did or said or knew" (Horrocks v Lowe [1975] AC 135 at 149 per Diplock LJ) at the time the libel was published, evaluating all the circumstances surrounding the publication including events both before and after (Turner v MGM Pictures Ltd [1950] 1 All ER 449 at 455 per Porter LJ. It is a matter of impression based upon all of the relevant evidence (Shelmerdine v Mewett [1993] Aust Def R 51-075) but it is not to be inferred lightly: Calwell v Ipec Australia Ltd (1975) 135 CLR 321, McKenzie v Mergen Holdings Pty Ltd, supra, at 43 per Mahoney JA; Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152. [185] The court may take into consideration the nature and character of the relationship between the parties, the mode, extent and language of the publication and the conduct of the defendant to show that the publication was made with malice. [186] When considering the relevant events, I should briefly summarise the following evidence concerning the state of mind of the defendant: (a) 30 March 2007 – 5 April 2007 : An application for expedition, win in court, and then a stay: The plaintiff applied for expedition of the 2007 demolition proceedings on the basis of "financial pressure" and "personal anguish" (Exhibit 17) . Biscoe J's judgment is handed down on 30 March in favour of the defendant's interests. Articles appear in the Village Voice on 3 and 5 April reporting this. On 5 April Biscoe J grants a stay. (b) 11 April 2007 – 2 May 2007 : Negotiations with the council and a loss for the plaintiff: An offer to the council to settle the Land & Environment Court proceedings is made (11 April) by the defendant; the plaintiff's company unsuccessfully brings a motion to vary the injunction (2 May). The defendant is aware of these orders and is worried the plaintiff will be annoyed and cranky: T 453 – 4. (c) 22 April – 3 May 2007 : A protest rally and discussions: A residents' rally is attended on 22 April by Mr James Knight (president of the Canada Bay Action Group), Judy Chin, Jan O'Neill, John Elias, Alex Zissis, Mr and Mrs Farlow, Elsie Miller, the defendant and others. The defendant has discussions at this rally with other residents such as Mrs Chin and Mrs O'Neill. He says he is told by all these persons of threats made by the plaintiff (T 227, 230, 405 – 7, 425, 430, 432, 436 – 7, 438, 443). An article about the rally is published on 3 May 2008. (d) 5 – 7 May 2007: A car fire: On Saturday 5 April (at 1.20 am) the Lidcombe Fire Brigade is called to extinguish a fire in a car which has been pushed through the padlocked gate of the defendant's business. There was a can of petrol in the vehicle and due to the heat the handbrake was completely burned and the vehicle had veered further down the driveway to the wall. On Monday 7 April, when the defendant comes to work, he telephones police, who come to the scene and tell the defendant he was "very lucky" and if the car had gone towards the building the whole factory could have gone up in fire. (e) 8 – 9 May 2007: A visit to Mr Hartcher MLA: There is a meeting between the defendant's family company and its lawyers with Mr Hartcher MLA, and a follow-up letter. (f) 18 May 2007: A visit to the police station: The defendant goes to the police station and publishes the first matter complained of. (g) 21 May 2007: A letter and a second car fire: The plaintiff's solicitors write to the defendant's family company complaining an offer to purchase the company properties is being frustrated by the injunction. The defendant read this (T 204) and was worried the plaintiff was "becoming very annoyed and frustrated" (T 462). That same day a car belonging to a resident is set on fire at the plaintiff's family company Strathfield Triangle block of flats, the building that is connected to the court dispute (T 463, Exhibit 20). The defendant learns of this on 22 May and goes to the premises several days later. (h) 31 May 2007: An insurance claim: An insurance claim is made for the damage caused by the first (but not the second) car fire. (i) 5 June 2007: A third car fire and a second visit to the police station: Judy Chin's car is set fire to in the street outside her home (Exhibit 26). The defendant is told about this by his brother, who says he was told by Judy Chin (T 463; Exhibit 26). He decides to go to the police station to see if there is any update on the first car fire and to see if there are links with the second and third car fires. [187] The above is a general summary of what the defendant says was the information he had in his possession. The defendant's character and credibility was the subject of a sustained attack in cross-examination, as I have already noted. Other witnesses and a Jones v Dunkel submission [188] I should add a brief note about the evidence of other witnesses on issues relevant to the defence of qualified privilege. Their evidence was of peripheral relevance at times. For example, the plaintiff denied threatening a Mr Zissis, or taking a swing at him (T 353); Mr Zissis was excused from giving evidence due to overseas travel arrangements. [189] The plaintiff submitted that I should draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) concerning the defendant's failure to call his brother (whom the defendant said spoke to Mrs Judy Chin on the morning of the fire) and father. [190] As to the defendant's father, his poor state of health was attested to by a medical certificate (Ex 30) and I see nothing sinister about a defendant tendering such a certificate at the end of the hearing rather than at some earlier stage (plaintiff's written submissions, paragraph 46). [191] I decline to draw a Jones v Dunkel inference in relation to the defendant's brother. The occasion about which he could have given evidence, namely whether or not he spoke to Mrs Judy Chin, is a matter about which there is evidence from Mrs Chin's police statement (I note Mrs Chin is another witness for whom a medical certificate was provided). The fact that he was present on other occasions is not an issue warranting a Jones v Dunkel finding. [192] The witnesses who were called by the parties in fact added little to the evidence in the case. Mr John Elias, for example, answered many questions by saying he could not remember things so long ago because his daughter had been suffering for the last eight years from leukaemia. The real question was, as the defendant's submissions correctly note at paragraph 90, not whether there were real grounds for these persons to feel threatened, but whether they told the defendant that they had been. Proper purpose [193] The plaintiff submits that the defendant was not approaching police to have his allegations investigated, nor was he seeking to present the police with any proof. He was simply accusing the plaintiff for "future reference". [194] The defendant knew he had no evidence, and said so. What he had were his suspicions, and his fear that there would be further attacks on his business or personal interests. He said as much to the police. [195] I reject the plaintiff's submissions that to go to the police to make these allegations it is necessary for the victim of crime to have actual evidence of wrongdoing, such as real evidence of "actual fear" of the plaintiff (written submissions, paragraph 189). The victim of a crime is entitled to put suspicions as well as evidence before the police because it is the police's job, not the victim's, to investigate. In the present case, the defendant very properly said he had no evidence. He did not want the police to investigate unless (and this was a very important "unless") further incidents happened. He went to the police on the second occasion because further incidents did happen. The defendant's purpose, and reports to the police [196] The plaintiff points to a number of asserted inconsistencies between the defendant's evidence and contemporaneous police or insurance records, asserting that these differences show the defendant went to the police station out of malice rather than in pursuit of a genuine inquiry as to the progress of the investigation. [197] An example of the purported inconsistency between the defendant's evidence and the COPS report was that he wanted to make inquiries about the progress of that investigation, when he knew the police had in fact closed their investigation on 8 May 2007 after learning that the CCTV camera did not work, which meant there was no investigation (Exhibit R). However, the defendant said in his evidence that he was unaware of this (T 615-617) and that "that's why I went to the police to, to investigate" (T 617). [198] The police records confirm that police only had one conversation with the defendant, and that was on the day that he reported the damage to them. There is no record that the police notified the defendant, or indeed anyone, that they had closed their investigation on 8 May 2007, which would have been the day after they received a report from the defendant of the damage. [199] The defendant had called the police to his place of business on 7 May. He was making a follow-up call eleven days later, in circumstances where an insurance claim would have to be made, and where the damage to his premises was not inconsiderable (the insurance company paid $4,183, according to Exhibit 19). [200] I accept the defendant's evidence that he did not know the police had closed their investigation the day after he had reported the incident. Whether or not he knew that the police had been told about the CCTV cameras being non-operational, there is no evidence that he was told that the police had decided, as a result of this, to close the investigation. [201] The insurance form lodged on behalf of the defendant's business (Exhibit S) describes "discussions" the loss adjuster had with the defendant and his partner, followed by a summary of events headed "Circumstances in detail." Contained in this document is the following: "It is thought that the abandonment of the vehicle was after joy riders had finished with the vehicle and prior to decamping from the area where it was dumped they have set fire to that vehicle". [202] It was put to the defendant that the car was stolen stripped, and set on fire, a regrettably commonplace procedure indicative that joyriders were the culprits: "Q. Thank you. And what I suggest to you was that at that time, that's to say on the 7th or the next couple of days, you were aware that the car had been stripped, that is to say the valuable parts of the car had been removed? A. I wasn't aware it had been stripped. I was only aware that there was petrol used to set it on fire. Q. All right. You'd certainly - at this time you had heard of cars being stolen and set on fire as a regrettably commonplace occurrence generally? A. I don't know if it's a common occurrence. I know it does happen." (T 619) [203] In fact, the evidence of Sergeant Silva was that three car fires in a month in the area were unusual, and that car fires were a serious matter. [204] The defendant on each occasion was entitled to visit the police station to inquire about the criminal damage and was obligated to answer any questions the police asked while he was there. [205] I find that the defendant's motive was to find out what was happening and to express his concerns that the car fires had, or could have, a connection with the litigation he had been involved in with the plaintiff. Knowledge of falsity [206] The plaintiff asserts that the defendant published imputations which were false, and provides no explanation for publishing these false imputations. [207] The imputations listed at paragraph 260 of the plaintiff's submissions have been found by me not to be conveyed, or not to be defamatory. The defendant never said, either to the police or to the court, that the plaintiff drove the vehicle or personally damaged the property. I reject this submission. Ongoing animosity [208] It is not disputed the defendant disliked the plaintiff (T 471). Dislike and ill-will may exist between the plaintiff and defendant, and yet the court may find actual malice to be entirely wanting: "The plaintiff must establish that any foreign purpose shown by the evidence is the dominant motive for the publication; a dislike of the plaintiff, or an indignation at what the defendant believed to be the plaintiff's conduct (together with his taking advantage of the occasion to expose that conduct) is not sufficient to establish express malice unless that is shown to be the dominant motive for the defendant's publication" ( Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51 per Hunt J) [209] In Horrocks v Lowe, supra at 151 Diplock LJ said: "Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found." [210] The defendant commenced proceedings against the Council and the plaintiff (albeit through corporate entities) in 2003 and 2006, with prior complaints going back to 2002. The defendant had won those proceedings shortly before these events, and a decision had been taken to appeal the decision of Biscoe J. It is submitted that the defendant was under pressure, because he feared the court costs of an unsuccessful appeal. By bringing this allegation, it is alleged he sought to obtain a commercial advantage over the plaintiff. [211] I do not accept this submission. The defendant was concerned about the damage to his business and, secondly, the family company, which arose from serious criminal offences. It was never explained to me what commercial advantage the defendant could gain, and there is no evidence he did so during the months or years that passed after he went to the police station. [212] It is also submitted that the defendant communicated his allegations about the plaintiff to the media (Exhibit T) and generally denigrated the plaintiff at every opportunity, without any basis whatsoever, in a "campaign to defame" (written submissions, paragraphs 266 – 271). [213] The plaintiff and defendant were effectively opponents in litigation which the plaintiff had just lost. It was not surprising, in those circumstances, that strong words would be said on both sides, and that this would end up in the media. That is not sufficient to discharge the test in Barbaro, supra. Making serious allegations without proof [214] As I have indicated elsewhere in this judgment, the victim of a crime is not required to obtain proof before providing information to the police. If the victim of a crime has a suspicion or belief as to the identity of the perpetrator, then the victim should be able to provide this information, particularly if (as occurred here) they acknowledge frankly they have no proof. The first matter complained of - false claims of fear for his safety and that of his staff [215] The plaintiff submits firstly that as there was "no civil action" commenced concerning the defendant staff, this "lie" to the police remains unexplained (written submissions, paragraph 278). I was not told what "civil action" on behalf of the defendant's staff required to be taken, or how such a civil action would entitle the defendant to make these allegations. [216] I accept that the defendant was anxious for his staff because of an attack on the building they worked in. The second matter complained of – false allegations of corruption [217] The defendant was recounting a conversation he had with the plaintiff which I have found was relevant to the occasion. I do not accept that this was malicious. False allegations of fear [218] The plaintiff submits that the defendant could not really have been afraid of the plaintiff because they continued to have meetings to resolve ongoing problems and discuss the potential purchase of the family company properties. [219] People do business with, or work with, people they fear. The defendant, on the evidence before me, had no option other than to meet the plaintiff to discuss and resolve business problems. Matters arising from the conduct of these proceedings [220] The denial of publication, the denial of intention to convey many of the imputations, and the pleading of a defence of unlikelihood of harm were reasonable steps for the defendant to take. [221] The failure to apologise, in these circumstances, was similarly not malicious. Conclusions concerning malice [222] Courts have repeatedly stated that judges and juries should be slow to draw an inference of malice: Horrocks v Lowe, supra at 152; McKenzie v Mergen Holdings Pty Ltd at 43. The improper motive must be shown to be the dominant reason for the publication: Roberts v Bass, supra at 41. This is not a burden which is lightly discharged: "It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla: Oldfield v Keogh . Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether." ( Godfrey v Henderson (1944) 44 SR (NSW) 447 at 454 per Jordan LJ) [223] Matters of public policy are relevant to malice, just as they are to other aspects of the law of qualified privilege. There would need to be very clear evidence of malice to deny a victim of crime an occasion of privilege. [224] I do not accept the submission that the defendant spoke to the police to cause the plaintiff commercial harm, rather than out of concern about the car fire (on the first occasion) or three car fires (on the second occasion). [225] The plaintiff has failed to discharge his onus concerning malice. The occasions of privilege are not lost. Accordingly, the defence of qualified privilege at common law and pursuant to s 30 succeed. The defence of unlikelihood of harm [226] Section 33 Defamation Act 2005 (NSW) provides: "It is a defence to the publication of defamatory matter if a defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm." [227] Section 33 is a new defence in the uniform legislation to all States except New South Wales and Queensland, where a form of this defence previously existed. In the case of New South Wales, s 13 Defamation Act 1974 contained a very similar provision. The formulation "unlikely to sustain any harm" [228] The formulation "unlikely to sustain any harm" appears stronger than the previous formulation of "not likely to suffer harm" but I note the acceptance in oral and written submissions by the defendant that s 33 of the 2005 Act should be interpreted in the same way as s 13 of the 1974 Act. Although the written submissions refer to these two sections as being interpreted "in a similar manner" the concession made in the course of oral submission was that they should be dealt with in the same way. Accordingly, no point it taken as to any stricter test, by either the plaintiff or the defendant. [229] The onus is on the defendant to prove the defence, and s 13 requires proof of the absence of a real chance or possibility of harm: Jones v Sutton (2004) 61 NSWLR 614. [230] Some helpful comments concerning the defence of unlikelihood of harm can be obtained from the decision of Ainsworth v Burden [2006] NSWCA 199. This is of assistance only tangentially, in that it is an appeal from a jury finding in favour of a defendant, but there is some factual similarity of a superficial nature, in that the matter complained of was a letter to the Police Commissioner and the final paragraph set out that the matter complained of was "not intended as a complaint". [231] At [24], Hodgson JA noted the following as being relevant to the circumstances of the publication: (a) The recipient was the Minister for Police, a person most likely to act upon statements or assertions in such a letter. In the present case, the recipient of the publication was a police officer. (b) The publication was made to the recipient in his official capacity as a person with power to investigate the serious allegations. The same is the case here. (c) Weight was given to the assertions by the fact that the author of the matter complained of was writing in his capacity as a former Commander of the Licensing Investigation Unit. In the present case, it could be said that the defendant was speaking in his capacity as a person asserting to have been impacted by the commission of a serious crime. (d) The publication contained serious allegations. The same is the case here. (e) There was a request that the Minister should act further in respect of these matters. In the present case, there was a request to do nothing. (f) The publication was sent out before the finalisation of an application by the plaintiff for a licence. In the present case, the publication was made at a time when the plaintiff and defendant were involved in Court proceedings. This matter, and the remaining three matters in the list set out by Hodgson JA do not have relevance to the proceedings in question. [232] Hodgson JA noted (at [26]) that police investigations were already well under way by the time of the defendant's publication. Similarly, in these circumstances there was already an inquiry under way as a result of the commission of three crimes in the area, namely three car fire bombings. [233] It is submitted by the defendant (written submissions, paragraph 153) that the allegations made to the police had not previously been made concerning the plaintiff and in particular that one of the enquirers, namely the inquiry into the first car fire bombing, had been completed in circumstances where there was no question of wrongdoing of the kind asserted by the plaintiff. [234] The critical question is, as MacCallum J noted in Papaconstuntinos v Holmes à Court [2009] NSWSC 903 at 103-105, that the circumstances of the publication are the key to the defence. This requires a careful analysis of information provided to the police and the manner in which COPS entries are kept. [235] The defendant submits that serious imputations of this kind would inevitably result in harm. It is submitted that "it is difficult to see how allegations of criminal conduct, violence and serious dishonesty amounting to corruption could ever be made in circumstances where they would be unlikely to cause harm. [236] However, the very nature of police records, and in particular COPS entries, is that it is a record of inquiry into alleged criminal activity. While it is certainly the case that COPS entries are permanent records, the fact that material is entered into a COPS entry is not of itself permissible evidence capable of establishing the truth or falsity of anything other than that an allegation was made on a particular day by one person about another person. [237] Secondly, the information provided by police officers in COPS entries is accessible only by persons authorised by law, namely other police officers, who would bring their training and skills to bear when considering such information or, as occurred I these proceedings, under compulsion of law under subpoena. It is one computer entry amongst hundreds of thousands of other computer entries. [238] Thirdly, each of these publications (namely the first publication in its full and more limited form as found by me, and the second publication) was made in circumstances where the defendant said he had no proof and asked the police to note the report in the event of future developments. The statement that a person has no proof for their suspicions, or actual beliefs of criminality, in such a context is an acknowledgement capable of contributing, in the factual circumstances of this case, to the defence being able to be made out. [239] Fourthly, for the defence of unlikelihood of harm to have any meaning, there must be an acceptance that persons who receive information of a defamatory nature but who have a duty to investigate it will go ahead and do so without thinking less of the person about whom the publication is made. It is not the job of police to think worse of a person who is suspected or accused of a crime; it is their job to investigate for evidence. In the present case, looking at the checklist in Ainsworth, the police officers in relation to each publication knew there had been a serious crime, knew that the defendant suspected (or accused, on the plaintiff's version of the publications) and knew that he frankly said he had no evidence and did not even want the matter investigated. [240] In those circumstances, a defence under this section is made out for the first publication in either form, and for the second publication. Damages [241] As I have found for the defendant, my comments concerning the amount of damages to award will be brief. [242] The purposes of an award of damages are consolation for hurt to feelings, recompense for damage to reputation and vindication. The relevant principles are set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] ff and were recently discussed by the NSW Court of Appeal in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70] ff. [243] These were each publications to one person. It is asserted, however, that there has been republication for which the defendant is liable, in the form of the COPS entry, and also "the grapevine effect and in particular those in the Sydney Morning Herald. [244] Evidence of the potential for republication is asserted to arise from the circumstances in which the plaintiff learned of these statements being made after a subpoena was issued for their production in court. As has been made clear in my judgment in Bechara v Bonacorso [2009] NSWDC 131, the plaintiff obtained the leave of that court to commence these proceedings notwithstanding the circumstances in which the documents alleged to record the slander were obtained under subpoena (see also P & W v Manny [2010] ACTSC 50, where plaintiffs similarly sought and were granted leave). It is asserted that these publications will be recorded on the COPS system indefinitely (T 16) and can be recalled by a search of the plaintiff's name. [245] The claim of the grapevine effect, in relation to computer records containing an almost infinite amount of data, is superficially not an attractive one. The person searching the records would have to have a pre-existing and specific interest as well as to be a suitably authorised person. A claim for damages for the grapevine effect has been considered and rejected in two cases involving computer records where the facts are similar. The first of these is Aktas v Westpac Banking Corporation Ltd [2007] NSWSC 1261 where Fullerton J did not consider that a claim of the grapevine effect could be made out, notwithstanding the fact that there were 30 cheques endorsed "refer to drawer". In P & W v Manny, supra, Grey J at [166] discounted a claim for damages for the grapevine effect, noting that the plaintiff was "not even interviewed." [246] As to the claim of the grapevine effect for publication in the Sydney Morning Herald (written submissions, [298]), this creates difficulties of another kind. [247] First of all, in relation to mitigation, the plaintiff's written submissions make no reference to the settlement, on 14 May 2020, of proceedings No. 20481 of 2008 between the plaintiff and Fairfax Media Publications Pty Ltd and Fairfax Digital Australia & New Zealand Pty Ltd for $75,000 plus costs. The removal of the two matters complained of from the websites was a part of the settlement. [248] The statements of claim in those proceedings (imputations 3(a), 5(a), (b), (c), (d), (e), (f), (g) and (h) were submitted by the plaintiff to convey meanings which were substantially the same or to that same effect as the meanings alleged by Mr Bechara at paragraphs 6(c), (d), (e), (f), (g) and (h), 12 (b), (c), (d), (e) and (f) and also 3(a) of the statement of claim in these proceedings. [249] The impact that this settlement has upon these proceedings is that the settlement sum may be taken into account by way of mitigation of damages pursuant to s 38(c) Defamation Act 2005. [250] In addition, if any claim is made for damages in these proceedings for the contents of the Herald articles by way of republication and/or grapevine effect, there are complex issues of law, which were not addressed by the parties. These include whether it is permissible to bring or continue proceedings which include a claim for damages for the grapevine effect or republication (or both), after the settlement of proceedings against the original publisher (see the discussion of these problems in Bracks v Smyth-Kirk (2009) 263 ALR 522). Secondly, no claim for republication or grapevine effect was made in the Statement of Claim; as the relevant publications occurred on 7 March and 9 June 2008, I would be troubled by an unpleaded claim of this kind after the expiry of the limitation period. Thirdly, the problems arising from a claim of republication only in support of a claim for damages, and not as a substantive cause of action, is a "difficult topic" (Hays Plc v Hartley [2010] EWHC 1068 at [67] per Tugendhat J) which requires careful analysis. [251] Fortunately, I do not need to concern myself with these difficult legal issues, as I am satisfied on the facts that there was no grapevine effect arising from the publications of the matters complained of. There is no evidence that the information used to compile the lengthy and carefully researched Herald articles included the matters complained of and, for the reasons explained by Fullerton J in Aktas, supra, the claim must fail. [252] The maximum damages amount for defamation (s 35) was increased to $311,000 by the Government Gazette of 18 June 2010. The plaintiff seeks an award of between $50,000 and $120,000 for each of the matters complained of, making a total of between $100,000 and $240,000 (written submissions, paragraph 58). Having regard to the principles set out in Rogers, supra, the principles behind s. 34 Defamation Act and the rationale for a cap on damages, I consider the plaintiff's claim for an award of this size to be wholly lacking in an appropriate and rational relationship with the harm he claims to have suffered. [253] The plaintiff said that he was very hurt by the Herald publications (T 162, 167, 273), which published similar allegations. In addition, according to his affidavit in the Land & Environment Court, he was very upset about the ongoing litigation between his company and the company for which the defendant was the spokesman. By contrast, I found his claim of hurt to feelings from these publications unconvincing. [254] The plaintiff's conduct and demeanour in the witness box did not impress me as that of a man who had suffered any significant hurt. The evidence of his wife and daughter barely rated a mention in the plaintiff's written and oral submissions. The defendant's written submissions, rather unkindly, dismiss their evidence as "equivocal, to say the least" (written submissions, paragraph 238). I find their evidence honest, but of little assistance. [255] The defendant submits that if I do find that imputations are conveyed that the plaintiff threatened the defendant, then I should find that "in the light of the overwhelming evidence to the contrary his denial should be rejected". As there is no plea of truth, contextual truth or mitigation, I would not take this step. Nor do I accept the submission that the damage is de minimis. [256] The imputations, while serious, contain the substantial antidote of the defendant frankly acknowledging he has no evidence. In the context of "failed business dealings", these are not allegations likely to be taken seriously. [257] Taking all of the above into account, this is a matter calling for an award of very small damages, and if I were to award damages I would award the sum of $1,000 for each publication, noting the NSW Court of Appeal's helpful remarks about damages awards in similar circumstances in Jones v Sutton (No 2) [2005] NSWCA 203. Costs [258] This case was set down for five days but took nine days. It was not possible for written submissions be provided on the ninth day (T 628-629). Although I had allowed for a three-day overflow of the five-day estimate, another trial had to be vacated as a result, and due to my other commitments the oral submissions had to be adjourned to August. The submissions could not be completed in one day, and further submissions were required. I have made an order for costs of the trial to follow the event, but as those costs will be considerable, and there are provisions in both the Defamation Act 2005 (s 40) and Civil Procedure Act 2005 (ss 56 – 62) relevant to costs, I have granted liberty to apply. Orders (1) Judgment for the defendant for each of the first, second and third matters complained of. (2) Plaintiff pay defendant's costs. (3) Liberty to restore concerning costs. (4) Exhibits retained for 28 days. ****** 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.