New South Wales Supreme Court Tucker v Echo Publication Pty Ltd & Anor [2005] NSWSC 865 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 23,24,,25,26,27, May 2005 7,8,9,10,14,15,16,22,23 June 2005 JUDGMENT DATE : 1 September 2005 JUDGMENT OF : Patten AJ at 1 DECISION : See paragraph - 124 LEGISLATION CITED : Defamation Act 1974 Jackson v John Fairfax & Sons (1981) 1 NSWLR 36 Turner v MGM Pictures (1950) 1 All ER 449 Leotta v Public Transport Commission (NSW) 50 ALJR 666 CASES CITED : Bashford v Information Australia (Newletters) Pty Ltd (2004) 78 ALJR 346 Radio 2UE Pty Ltd & Anor v Parker (1992) 29 NSWLR 448 Adam v Ward (1917) ACR 309 Broome v Cassell (1972) AC 1027 Ross Tucker - Plaintiff PARTIES : Echo Publication Pty Ltd - First Defendant Fast Buck$ (aka) John Anderson - Second Defendant. FILE NUMBER(S) : SC 20472 of 2000 Mr T Hale SC with M. S. White -and Mr R Foreman - Plaintiff COUNSEL : Mr B. A Connell - First Defendant Fast Buck$ (aka) Mr J. Anderson - Second Defendant Elliot & Sochachi - Plaintiff SOLICITORS : Banki, Haddock & Fiora - First Defendant Fast Buck$ (aka) J. Anderson (Self) - Second Defendant LOWER COURT JURISDICTION : - 124 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST PATTEN AJ 1 September 2005 No: 20472 of 2000 ROSS TUCKER v ECHO PUBLICATIONS PTY LTD & FAST BUCK $ (aka JOHN ANDERSON) JUDGMENT INTRODUCTION: 1 His Honour: The Plaintiff (Mr Tucker) sues upon defamatory imputations contained in, what purports to be, an "advertisement" headed "The Ethics of Journalism" published in the newspaper Byron Shire Echo of 7 December 1999. A copy of the publication, hereinafter called "the subject article", is attached to this judgment. 2 The First Defendant (Echo) was sued as the publisher of the defamatory imputations and the Second Defendant (Fast Buck$) as the author. Echo admitted publication and Mr Fast Buck$ admitted authorship. 3 At a hearing pursuant to s7 A of the Defamation Act (the Act), a jury found that the subject article contained the following two imputations defamatory of Mr Tucker: 1. That (Mr Tucker) acted dishonourably in his negotiations to settle a claim for compensation by a former employee in that he made an offer of settlement which, after it was accepted by the former employee, he refused to honour. 2. That (Mr Tucker) is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language. 4 A Mr Harold Ross (Mr Ross) was originally named as a plaintiff jointly with Mr Tucker, but the jury hearing the matter under s7A of the Act found that the subject article contained no imputation defamatory of him. Accordingly, he took no part, except as a witness, in the proceedings before me. 5 By its Amended Defence, Echo pleaded substantial truth under s15 of the Act; contextual truth under s16; qualified privilege under s22 and at common law; comment under ss32, 33 and 34; and matters in mitigation of damages. Although it will be necessary for me to return to the defences in greater detail, it is appropriate for present purposes that I list the contextual imputations as pleaded by Echo:- "1. (in relation to imputation 1 above) only that Mr Tucker is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language; 2. that Mr Tucker behaved abusively to an employee by shouting at her, insulting her, making sexist remarks and using obscene language; 3. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so that it made under award payments to Leanne Potts; 4. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to fail to pay Leanne Potts compensation in excess of $7,000 as ordered by the Industrial Relations Court for under award payments; 5. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to apply pressure on Ms Potts in order to delay and avoid paying her entitlements as ordered by the Industrial Relation Court for under award payments; 6. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that the paper's closure/reduced circumstances were due to Ms Potts and "the mad industrial laws"; 7. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that Ms Potts was incompetent, disloyal and slack in her performance of her job; 8. that Mr Tucker as a proprietor of the Saturday Star Newspaper behaved in a ruthlessly unfair manner to Ms Potts. 6 The Amended Defence filed by Mr Buck$ by leave in the course of the trial was couched in informal terms and failed to identify the legal issues, which he wished to agitate. Later in the trial, he sought to file a Further Amended Defence in virtually the same form as the defence of Echo. I refused him leave to do so because, at least the defences of qualified privilege and fair comment, which he wished to raise were apt to cause prejudice to Mr Tucker, which could not be remedied except by an adjournment. Having regard to the history of the matter and previous orders made by judges of the court, I took the view that it was inappropriate for the matter to be further adjourned. In the result, I approach the claim against Mr Buck$ as if he pleaded defences of substantial truth and contextual truth and comment THE EVIDENCE OF MR TUCKER: 7 Mr Tucker, who now lives in Mullumbimby and describes himself as a farmer, said that he has lived in the Byron Shire since February 1991 and has been a member of the Byron Shire Council since later that year. 8 For the most part, however, his previous career was in the military. After leaving school, he obtained, in 1966, a certificate in hotel and restaurant management from East Sydney Technical College and for about a year worked as a trainee manager at the Wentworth Hotel, Sydney. In 1967, he was called up for national service for a period of two years, during which he obtained a short service commission, converted to a long service commission at the end of his national service. He served in the Australian Army for about 24 years as an officer in the Catering Corps, rising to the rank of lieutenant colonel and achieving appointment in his last four years of service as Director of Army Catering, responsible for catering in the whole of the Australian Army. As such he was in charge of the posting, promotion, training and administration of approximately 1,600 personnel, male and female, throughout Australia and in some overseas postings. He himself served at various locations throughout Australia and in Vietnam, during the conflict there. He also served for periods in New Guinea, Singapore, the United Kingdom and New Zealand. 9 Questioned by Mr Hale SC who, with Mr White and Mr Foreman appeared for Mr Tucker, as to his management style and philosophy, particularly in dealing with subordinates, there was the following exchange: "Q. You had to deal with members of the Army on a day to day basis? A. Yes, I did. Also in that job I was dealing with outside specialists. I had to deal with commanders at all levels. I was responsible for the day to day control and in developing soldiers' careers and their aspirations. You had to talk to commanding officers about their soldiers, how they were performing, so that meant dealing with commanders about their soldiers and what their plans were, and how they meshed with their commander's plans for that soldier. Q. Did you over that period of time develop a manner in dealing with, particularly, subordinates? A. I believe I did. My view very much was that we were dealing with young men and women, and I had the view very fine Australians. At that stage I guess I saw myself somewhat in the role as a father in that I was starting to deal with soldiers who were very much the same age as my own son and daughter, for one reason, but they were coming to us as young people, well motivated with basic skills, but high potential. Therefore, you need to work closely with them, be aware of what their aspirations are and how it might be possible to fulfil them and advise them as to how to progress their careers. Q. Did you develop any particular techniques in dealing with members of the Army, particularly subordinates? A. My fundamental approach that I took was to take young soldiers, particularly young soldiers as opposed to others with a bit more service, and always take them at face value. What they told me I accepted that as being the truth, and therefore if they had a particular wish or desire for a location, for a course, we would do our level best to provide that and give them solid information as to when that might occur. Another technique I used to use, I travelled around Australia continually, and made a very concerted effort to visit every unit and formation at least once a year to make myself available for people to come and see me in an interview form, to let me know what their concerns, wishes and aspirations were. I also had responsibility for going to our overall personnel managers to recommend people for promotion, courses and the like. I tried to act as the interface between them with that information that was going forward to the overall personnel managers, and what the soldiers were receiving. Finally, in managing soldiers, I used to take the worst case scenario. In essence, if a soldier, for example, wanted a posting to Brisbane, I would gauge what the possibility of that was likely to be, what the scope was and inevitably told them the least likely outcome in the hope that that was not the outcome and that a better outcome would occur. Q. Did you have a view during this period of time about a superior officer abusing subordinates or belittling them or shouting at them? A. I certainly did. Q. What was that view? A. (a) I wouldn't do it and (b) it wouldn't be tolerated in the Australian Army and has never been, in my experience." 10 After telling Mr Hale that in the Catering Corps there was no limitation on the employment of women and that it relied heavily on recruiting women, Mr Tucker said that apart from being conscious of physical limitations, his approach was to treat women "very much the same as men", and that he spoke civilly and treated all personnel under his command with respect. 11 He married his second wife, Jennifer, in 1987, she being an officer in the Australian Army with the rank of major. On his retirement from the army they moved to a property at Mullumbimby purchased some years previously. He was familiar with the area as his family had lived there since 1968 and he had spent most of his army leave with them. Presently, he raises beef cattle on 53 acres, very close to the main township of Mullumbimby. 12 He was first elected as a councillor of Byron Shire in September 1991 and was re-elected in 1995, 1999 and 2004. On three occasions, he has been a candidate for the popularly elected mayor. He said that while his views would be categorised as conservative, he is not, and never has been, a member of a political party. 13 He said that he became personally acquainted with Mr Buck$ whom he also knew by the name John Anderson and that for about a year they were fellow councillors, Mr Buck$ having been elected at a by-election in 1998 but not standing for re-election in 1999. He also became familiar with the Byron Shire Echo published by Echo. He said that he formed the view that it gave insufficient attention, or unduly unfavourable attention, to the conservative side of politics and that it provided an inadequate coverage of sporting issues within the Shire. 14 In the result, Mr Tucker, in conjunction with Mr Ross, incorporated a company, Comptran Pty Ltd (Comptran), secured premises at 16 Mill Street, Mullumbimby in a complex owned by Mr Ross, and commenced to publish a weekly newspaper. The first edition, on 18 January 1997, was called the Mullumbimby Star, a name which was changed to The Saturday Star on 24 January 1998. Hereafter, I will simply refer to it as "the Star". The newspaper, which became available for distribution each Friday night or Saturday morning, was free to readers and earned its income solely from advertising. 15 The first editor of the Star was Ms Leanne Ellis, who was replaced in May 1997 by Ms Sue Gardiner. She remained as editor until the paper closed as a weekly publication, in September 1999. The shareholders of Comptran were Mr Tucker and Mr Ross and its activities were financed by loan funds. Initially, they contributed $15,000 each but, during 1998, the loan made by Mr Ross was reduced and Mr Tucker increased his loan to $46,000. In January 1999, his wife made a loan of $17,000 and, in May 1999, a loan of $80,000 was obtained from the Commonwealth Bank which, at least in part, was used to reduce shareholders loans. 16 From its commencement, the Star employed its editor on a full-time basis. There were other employees, a graphic artist, initially Ms Gardiner before she became editor, a sales manager, Ms Cheryl Lindsay, and several part-time employees. Of these, four or five were employed to sell advertising. Mr Tucker explained that they were employed part-time because the newspaper was small and the Byron Shire, which it covered, had a number of discreet urban areas some distance apart from each other, Mullumbimby, Brunswick Heads, Byron Bay and Ocean Shores, where the market for advertising was largely located. As the advertising for each weekly issue had to be gathered in a short space of time, mainly on Mondays and Tuesdays, it would be beyond the capacity of a smaller number of full-time employees. Moreover, he said that when the newspaper advertised for sales staff, interest was predominately displayed by people wishing to work part-time, in order to meet family and other responsibilities. He said there was flexibility allowed in the working hours of the part-time employees. 17 Mr Tucker said that his own role was to work with the editor in the actual production of the paper. This included making decisions as to the number of pages to be published and the allocation of space between editorial material and advertising. He also sought to accommodate particular requests of advertisers conveyed to him by the sales staff. He said that although he had contact with the staff in the course of these activities, he was not involved in directing them in relation to their duties. 18 As to the time he actually spent in the office, Mr Tucker said that it was irregular but he would usually be there on a Monday, on a Thursday afternoon when the paper was being put together and on a Friday. He would attend to Council duties on a Tuesday and would fit in other requirements of the newspaper with his farm responsibilities. 19 He said that Mr Ross was essentially concerned with accounts and staff management. His brother, Duncan, an accountant by profession, dealt with the payroll and otherwise assisted Mr Ross, whom, he said, lived within 50 metres of the office and could attend it daily for at least a short period. Neither Mr Tucker, nor Mr Ross drew a salary for their work and Mr Duncan Tucker, who has since died, performed his work on an honorary basis. He said that full-time employees were employed according to the relevant industrial award and this was the responsibility of his brother. 20 His wife, Jennifer, during 1997, when she had a full-time occupation elsewhere, performed small tasks at the newspaper, such as proof reading, banking etc. but, in January 1998, gave up her other position and devoted more of her time and attention to the newspaper. 21 The office of the Star was a single room which Mr Tucker said had dimensions of about 5 metres by 12 metres. It was furnished with a number of desks and chairs. There was also a small alcove kitchen and sink. Mr Tucker did not have a desk to himself, but shared one according to who was in the office at the time. 22 The normal deadline for receiving editorial material was midday, Wednesday, and for advertising material, close of business on Wednesday. The paper was set up on Thursday afternoon, into Thursday night, and taken to the printer between mid-night on Thursday and 6am Friday. 23 In July 1997, Mr Tucker first came into contact with Ms Leanne Potts, a woman of considerable significance to this case. According to Mr Tucker, she telephoned him, seeking employment as an advertising sales person. He invited her to submit a formal application and, according to his evidence, told her that at the time he was looking for someone to sell classified advertising material on a commission basis. 24 As a consequence of the telephone communication, it seems that Ms Potts furnished a curriculum vitae and, in addition, wrote to Mr Tucker, the letter exhibit E: "Leanne Potts 9 Helen Street South Golden Beach NSW 2438 21 July 1997 Mullumbimby Star 26 Mill Street Mullumbimby NSW 2482 Dear Mr Tucker In reference to our telephone conversation this morning, July 21st, I have taken the liberty of furnishing you with my current resume, please feel free to contact me if you require more information. I am confident to accept a trial period of commission only. I await to hear from you in favour and am looking forward to an interview with you at your convenience where you can view my portfolio. Yours faithfully LEANNE POTTS" 25 According to Mr Tucker, following receipt of the letter, he had a meeting with Ms Potts, during which he said that he was willing to employ her for 1 or 2 days per week, and pay her on a commission basis of 12 and a half percent. He said that she agreed to this proposition and commenced work on 28 July. The wage records of Comptran show that for the week ended 2 August 1997, she was paid the gross sum of $120, which included a motor vehicle allowance of $30. 26 Mr Tucker said that he was "very happy" with the amount of advertising secured by Ms Potts during her first week. He said that a commission of twelve and a half percent on that advertising would, however, have only produced commission of between $50 and $60. Recognising that as inadequate, he arranged that $120 be paid, as recorded in the wage records. During that first week, Ms Potts worked on 2 days. 27 According to the records, in her second week, Ms Potts was paid $200 of which $50 was attributed to a car allowance. $11 tax was deducted. Mr Tucker said that he explained this payment to Ms Potts by pointing out that the commission agreed upon did not provide an adequate income. Instead, he said that she would be paid $200, which he intended to increase to $250. 28 In each of the following 2 weeks, that is the weeks ending 16 August 1997 and 23 August 1997, according to the wage records, Ms Potts was paid $250. As to how many hours or days of work this represented, Mr Tucker said, "That varied and was very much up to Ms Potts as to the hours she worked and the days she worked, but it was not a full week, more inclined to be 2 or 3 days and a part day. It varied". There was no system for recording the hours she actually worked. 29 In the week preceding 30 September 1997, Mr Tucker said that he had a further conversation with Ms Potts, which took place in the presence of Mr Ross. According to Mr Tucker, the thrust of the conversation was that the proprietors of the newspaper were very satisfied with Ms Potts' performance and wished her to work full time. He said her response was, "No, no, I will not work full time. I have my family, my children to take care of and I cannot work full-time, but I will work for you for $70 per day". He said that if she had agreed to work full-time, she would have been paid the award salary. 30 His evidence was to the effect that her proposal to work for $70 per day was accepted and the records show that for each of the weeks ending 30 August 1997, 6 September 1997, 13 September 1997, and 20 September 1997, she was paid $350. 31 For the week ending 27 September 1997, the records show that Ms Potts was paid $166. This came about, according to Mr Tucker, by virtue of the fact that at the beginning of that week, she rang the office to say that she was not able to come to work as she was suffering from a migraine headache. A similar message was received on each of the two succeeding days. On the Thursday of the week, Mr Tucker received a telephone call from a Dr James who told him that Ms Potts, his patient, had injured her foot and was in Mullumbimby Hospital. 32 The day following the conversation with Dr James, Mr Tucker, with Mr Ross, visited Ms Potts in the hospital. He said to her, "Don't worry about not being at work, don't worry about not being paid, we will organise some money to come to you. Concentrate on getting well and getting back to work". 33 Mr Tucker said he left it to his brother to determine what should be paid to Ms Potts. Apart from the sum of $166 paid for the week of 27 September 1997, $160 was paid for the succeeding week, ending 4 October 1997. According to Mr Tucker, Ms Potts did not work at all during either week. 34 In respect of the week ending 18 October 1997, the wage records show she was paid $315. They contain a reference to her working half-day on 14 October. Asked about this, Mr Tucker replied, "Yes, I recall that she worked that week, but it was not for a full week and she indicated to the paper that she had a half day off and would not be there for half a day". 35 There was then a reversion in the weeks ending October 25, 1997 and November 1, 1997 to the payment of $350 per week. The wage records indicate that this sum was paid to her for each of those weeks. 36 At about the end of October 1997, it seems that a proposition was put to all sales staff, whereby they would be paid wholly on commission and each would be allocated a particular town or district, exclusively. This proposal, as it seems, was unanimously rejected and not pursued further. It is not, I think, of any relevance to these proceedings. 37 For the week ending 8 November, 1997 and the 3 succeeding weeks, the wage records show that Ms Potts was paid $413. According to Mr Tucker, this arose from the fact that the offer of full-time employment to Ms Potts was repeated and, on this occasion, accepted. Mr Tucker said that it was his understanding that $413 represented the payment fixed by the award. 38 In the latter part of 1997, Comptran employed 2 Job Start employees, Graham Waters and Ceinwyn Ubrihien, whose salaries were subsidised. It seems plain that, for whatever reason, tension developed between Ms Potts and these new employees, particularly Mr Waters. She made it known about the office that, in her view, the work they performed did not justify the salaries paid. There was a particular incident on Friday, 28 November when Ms Potts verbally attacked both Ms Ubrihien and Mr Waters regarding the performance of their duties. Mr Tucker heard of the incident when he called at the office about 3pm. Ms Gardiner told him that both Ms Lindsay and Ms Potts were, at that time, discussing the situation with Mr Ross at his house, a short distance away. After speaking briefly to Mr Ross on the telephone, Mr Tucker proceeded to his house and, as he was let in, Ms Lindsay left. Ms Potts was sitting at a table and both Mr Ross and Mr Tucker sat down with her. In the presence of Ms Potts, Mr Ross said that there had been a dispute in the office that morning, that Ms Potts was very unhappy about the performance of Mr Waters and Ms Ubrihien and had demanded that they be sacked. Mr Tucker gave the following evidence as to what then transpired: "I said to Harold and Leanne, "The episode that happened this morning down in the office is unsatisfactory and inappropriate and cannot be allowed to happen again and the two staff will not be sacked on the demand of another employee. That will not happen". Ms Potts was visibly unhappy with that and said, "I will not be dictated to, you will not tell me what to do, I will not work here if those two are working here". She then got up to leave. Harold Ross said "Go home, think about it, talk to your family about it, talk to your husband about it. I will come and visit you over the weekend and we will discuss this further". Ms Potts left. I spoke briefly to Mr Ross to say, "I will not be agreeing to sacking two staff on the demands of another employee". Mr Ross agreed with me. I then left and went up to the paper. Mr Ross stayed at the house." 39 On the following Monday, 1 December, Mr Ross reported to Mr Tucker that he had spoken to Ms Potts and that she did not intend to return to work, which is what in fact eventuated. She did, however, call at the office the following day and seek a reference from Mr Tucker, which he gave in the following form: "Leanne Potts commenced employment with the Mullumbimby Star in July 1997 as an advertising salesperson. She is a highly competitive salesperson who dramatically increased the advertising content of our newspaper." 40 Asked in evidence about Ms Potts as an employee, Mr Tucker said that she was a good employee in some ways, "difficult in other ways". He said that she was very good at getting advertising and selling advertising space but, in effect, there were problems in her working relationships with other members of staff. Asked about his contact with her during the course of her employment at the newspaper, Mr Tucker said that he would have spoken to her once or twice a week, about "daily pleasantries", not substantive matters, and had never personally seen her behave inappropriately towards other staff members. He had never had cross words with her, including during the conversation at Mr Ross' home on 28 November. He said that meeting was tense but there were no cross words. He specifically denied ever saying to Ms Potts words to the effect of, "You should be at home. I suppose you make your husband cook dinner. You would not last long with me", or " I could imagine what your house is like, it would be a pig sty". He also denied swearing at, or in front of her; or being abusive to; or belittling her; or shouting at her; or using obscene language to her or in her presence. He further denied that when she called to ask for a reference and said, "Can we work something out. I don't want to leave like this", he "screamed" at her. He denied saying, "I don't give a fuck" in response to her saying, "How can you do this? I have a family and it's Christmas, you are not going to get away with this. You have picked the wrong person to do this to". Mr Tucker said that as the whole of the office comprised a relatively small room, everyone present would not have been able to avoid hearing "a screaming match". 41 Mr Tucker said that Ms Potts, subsequently, brought proceedings in the Industrial Relations Commission for unfair dismissal, but later abandoned them. She also commenced proceedings before the Chief Industrial Magistrate for alleged breach of the award in regard to her wages. He said that his understanding was that the Department of Labour and Industry asserted that there was no provision for Ms Potts to be employed on a part-time basis and, accordingly, that whatever the arrangements made for her employment, she was entitled to be paid as a full-time worker. He said that it was his understanding that Comptran dealt with Ms Potts in accordance with its legal obligations. 42 Mr Tucker said that he left it to Mr Ross to deal with the proceedings before the Chief Industrial Magistrate which, ultimately, led to a judgment on 27 August 1999 for $8,523.29 being entered against Comptran, comprising fine and court costs $552, witness expenses $629.40, professional costs $300, and underpaid wages $7,041.89. He said that his understanding was that the judgment was based on a finding by the Chief Industrial Magistrate that, for the whole of the period of her employment, Ms Potts was entitled to be paid the award and allowances appropriate to a full-time employee, irrespective of the days she actually worked. 43 He said that he then formed the view that, having regard to its other obligations, it would be difficult for Comptran to pay the amount ordered to be paid, immediately, and that, if possible, payment should be deferred until the end of the year or early 2000. He said that debts were owed to the company by advertisers who had been slow in paying, but by the end of the year he anticipated that Comptran would have sufficient cash resources to enable the debt to be paid. 44 Although Mr Tucker left the carriage of what occurred thereafter to Mr Ross, it is not in issue that solicitors Messrs Wroth Wall, acting for Ms Potts, registered the orders of the Chief Industrial Magistrate in the Local Court at Mullumbimby and, with a view to enforcing the order, issued a summons requiring Comptran Pty Ltd, or a director, to attend court and be examined as to the assets and liabilities of the company. It is also common ground that at Mullumbimby Court House on 23 November 1999, negotiations were conducted between Mr Ross and Ms Potts' solicitor, Ms Melissa Begg, of Wroth Wall regarding payment of the amount due under the Chief Industrial Magistrate's order. One proposal by Mr Ross was for a down payment of $1000 and the payment of the balance over a period of time, by instalments. 45 At one point, it seems clear, that Ms Potts, through Ms Begg, offered to accept $4,000 in full satisfaction of all outstanding money. There is an issue as to whether that offer, conveyed to Mr Ross, was accepted or not, a matter which is relevant to the first of the two imputations upon which Mr Tucker sues. His evidence on the subject of the debt due by Comptran was as follows: Q. At the time did you have a view as to whether the company, Comptran, would be in a position to make that payment? A. Yes, I was in the view - I was of the view that the company had, had to pay that amount but it would not be able to pay it at the time of the award, at the time of the decision but that later in the year or early in 2000 the company would be in a position to pay that amount. Q. And from what resources would, in your view, the company have been able to make that payment? A. From its own resources. We had outstanding moneys owed to us by advertisers who were slow in paying and Mr Ross was in the process, through the Local Court, of pursuing those potential bad debts and money was coming in and we were pledged that certain moneys would be coming in and be paid by that time. Q. Now you have already touched on this, certain documents about the intention of Comptran was required to be provided to a court, is that correct? A. That is correct. Q. And what was your understanding of those proceedings themselves in 1999? A. My understanding was that Mr Ross and my brother, Duncan, went to the Court, met with the solicitor for Mrs Potts and as a result of that there was negotiation that Comptran would pay a thousand dollars to cover court costs and that the residual amount would be paid off over a period of time. Q. Now I think you subsequently became aware that there was a sum of $4,000 which would be accepted? A. Yes. Q. Is that correct? A. Yes. My understanding was while our financial documents were being tendered to the Court it was agreed by Mrs Potts' solicitor that we were not in a position at that stage to pay the full amount, therefore we would go to time payments and then an offer came from Mrs Potts, through her solicitor, for a payment of $4,000. Q. To your understanding, to your knowledge, did that figure of $4,000 come from Mrs Potts' solicitors or did it come from your side? A. It definitely came from Mrs Potts and Mrs Potts' solicitor. Q. (Exhibit D shown) Can you remember seeing this letter? Did Mr Ross ever show you this particular letter? A. I don't believe so. Q. It has been suggested in the matter complained of, the article, that there was a particular arrangement for the payment of the debt which had been agreed between Mr Ross and Ms Begg - this is the payment of the debt by Comptran. Are you aware of what I am talking about? A. Yes. Q. And that you were somehow involved in the welshing on the arrangement. I want to ask whether, at the time, you were aware of anything of that sort? A. Not welshing on the arrangement. Q. What was your understanding of what occurred? A. My understanding, an offer was made on behalf of Mrs Potts by Melissa Begg for $4,000, that - I was aware of that offer. There was confusion with us at Comptran, at Saturday Star, whether that was the $1000 to cover the legal costs plus $4,000 or whether the $4000 was in complete retirement of the judgment. Mr Ross, as I understand it, spoke to Melissa Begg and the clarification that I became aware of, that $4000 was the global finalisation of the amount. We agreed to the payment of $4000. The problem we had was accessing that $4000 then and there but we knew we would have money later in the month, early in the next month. We went back or Harold Ross went back to agree to the $4000 and then a deed of agreement or some sort of agreement as to the amount in draft was put forward. Q. That was to Mr Ross? A. To Mr Ross. Q. Did you see it? A. No, I did not see that. Q. Mr Ross told you about it? A. Yes he did and there was a sticking point with it in that Mrs Potts stuck with the amount of $4000 but the amount was to be paid within seven days. That was not - I was told that was not what was agreed in the negotiations between Harold Ross and Melissa Begg at Melissa Begg's office. Q. And subsequently an agreement was in fact reached between Comptran and Ms Begg on behalf of Mrs Potts? A. There was some to-ing and fro-ing up to, getting up to Christmas, some to-ing and fro-ing to just before Christmas and then early in January 2000 we were in a position to pay the $4000. That offer was made to Ms Begg. It was accepted and that finalised the matter. 46 Support for Mr Tucker's contention that no concluded agreement was made with Ms Potts at the time of, or immediately following, the return of the examination summons in the Local Court, is to be found in Ms Begg's letter of 30 November 1999, which reads as follows:- "Re: Leanne Potts v Comptran Pty Ltd I refer to your letter of today concerning the recent negotiations to settle the above matter. Your letter recounts a sequence of events during the course of the negotiations with which we cannot concur. Our position of the current status of the negotiations is as follows: 1. On Tuesday 23 November 1999 I conducted a public examination of Comptran Pty Ltd (represented by Mr Harold Ross – director) at Mullumbimby Local Court in accordance with an examination summons issued by the Registrar on 12 October 1999. 2. During the course of the above examination, an offer was put by my client of the satisfaction of the judgement debt of $7,075.89 plus expenses to be made by Comptran Pty Ltd by the upfront payment of $1,000 (for out of pocket expenses associated with the hearing in the Industrial Court) and then monthly instalments of $250 per month up to the full amount of the judgment debt in response, Comptran Pty Ltd offered to make the payment of the $1,000 up front but was unwilling to pay more than $100 per month for the remainder of the amount of the debt. The parties left the Mullumbimby Court House on the 23 November with no agreement between them but with these offers on the table; 3. On Wednesday 24 November 1999, our client Ms Potts instructed us to communicate to Comptran Pty Ltd the additional offer that an upfront payment of $4,000 would satisfy the entire debt. Accordingly I communicated the offer to Mr Harold Ross by telephone at approximately 4.00pm on 24 November 1999. Mr Ross informed me at that time that he would "get back to me" with a response the next day; 4. At approximately 1.00pm on Thursday 25 November 1999, I received a telephone call from Mr Harold Ross during which he asked me (words to the effect of) "Does the $4,000 include the $1,000 from the previous offer?" I answered that it did, having interpreted the question as enquiring whether the global figure of $4,000 to be paid in satisfaction of the debt included the out of pocket expenses of $1,000, not that the method of payment for the $4,000 would be in accordance with the $1,000 up front and the $250 per month. 5. It was always the intention of our client during these negotiations to accept payment of the reduced amount of $4,000 in satisfaction of the total judgment debt on the condition that the whole amount was received up front. 6. During the telephone conversation between myself and Mr Ross on 25 November 1999, Mr Ross indicated that the offer could be accepted. This acceptance was communicated to our client and upon her instructions an agreement was prepared by us outlining the arrangement for payment by Comptran Pty Ltd of $4,000 within 7 days from the date of the agreement. 7. A copy of the Agreement was made available by us to be picked up by Comptran Pty Ltd from our office on the morning of Monday 29 November 1999. The agreement was subsequently picked up by Mr Ross on the morning of Tuesday 30 November 1999, who later telephoned this office at which time the discrepancy between the position of the parties became apparent. The letter from Mr Ross today indicates that he interpreted our conversation of 25 November 1999 as an offer having been made which was not the intended position, it seems apparent that a miscommunication has occurred which is regrettable. We have been instructed that Ms Potts is unwilling to accept any payment of the judgment debt at the reduced amount of $4,000 in any other manner than the total amount upfront within 7 days from the date of the agreement. As a result, unless other arrangements can be agreed upon between the parties as to the payment of the judgment debt, our client will be immediately seeking to enforce the judgment debt at the full amount." 47 According to Mr Tucker's testimony, he first became aware of the suggestion that he "welched" on an agreement with Ms Potts, when he saw the subject article. 48 In the meantime, Mr Tucker said that he and Mr Ross decided to close the Star as a weekly newspaper and its last edition was published on 25 September 1999. However, commencing 30 October 1999, they published under the same name, a monthly newspaper and the first edition contained the following article by Mr Ross (exhibit K): "The New Look Saturday Star: For some weeks the closing of the Saturday Star as a tabloid has been the subject of all sorts of conjecture and reasoning especially by the Echo's David Lovejoy. The Echo's reporting and editorials blamed Ross Tucker (how strange) and the lack of business support. Therefore the starting of the paper was a mistake. Even Max Eastcott was to blame. The saviour of the Shire was out and about with large signs on his "bomb" during the election campaign. This had no influence on our decision to suspend activities. A lot of people in this Shire will always believe any sort of garbage they read about us but I will attempt to set the record straight. The Saturday Star ran for almost three years and would have battled on for a long time had it not been for the mad industrial laws in this country and one of our former employees. The ex-employee was employed to sell advertising on a casual basis and could work any time or day that she wished. Our first mistake!! She was in our employ for eighteen weeks in which she worked five days a week for 6 weeks, four days a week for 2 weeks, two days a week for 7 weeks and one week never worked at all. This ex-employee fought with every person in the office and eventually insisted that I sack two of our other employees or she would leave. When I refused she quit. She then took us to court for unfair dismissal, which was dismissed by the Magistrate of the Tweed Heads Court. Next we got a visit from a bureaucrat from the Department of Industrial Relations who insisted we pay this former employee full wages for every week she was in our employ plus a car allowance of $187 per week plus holiday pay for the full eighteen weeks, even though only six full weeks of the eighteen were worked and one week she never worked at all. He advised that at the time of her employment there was no provision in the advertising sales award for part time employees and whatever hours worked she was to be paid as a full time employee. We offered an alternative payment. It was rejected, and we were taken to the Chief Magistrates Industrial Court in Sydney and ordered to pay approximately $8500 for the days the ex-employee did not work. As a direct consequence we decided to close down which resulted in five very faithful and excellent employees losing their jobs. The Saturday Star is back in a new format and we will continue to keep residents informed of issues on a monthly basis. We will publish the new look Saturday Star at the end of each month, which means that we will be able to cover two Ordinary Meetings of council plus all the other meetings in between. This will no doubt upset any one whether a developer, greenie, staff or straight who may try to sneak something through! We'll be watching!! 49 Mr Tucker said that the Star as a monthly newspaper was produced entirely by his wife, Mr Ross, and himself and had no paid employees. Asked by Mr Hale why he ceased weekly publication of the newspaper, he responded that, in effect, the size of the paper meant that it was not in a position, financially, to employ sale staff on a full time basis. He added that it was also his view at the time, that, in light of the Chief Industrial Magistrate's decision, it was not possible to employ sales staff on a part-time basis. 50 Mr Tucker testified that he first read the subject article on Wednesday 8 December, but at that stage did no more than scan it, "It didn't have a very deep impression upon me". However, that evening when his wife came home, she seemed upset and said, "Have you read that article? What are you going to do about it?" He replied, "Don't worry about it, there has been a lot of this stuff, don't read too much into it". She then demanded that he read it carefully, adding that she had felt "most uncomfortable" by the reaction about the town, of people whom she knew well. 51 Mr Tucker said that he became angry at the fact that what was in the article was upsetting his wife and sat down to read it closely. Asked as to his reaction after doing so, he answered: "A. I was angry and frustrated. I felt that while there had been many attacks upon me by The Echo and by Fast Buck $ , they were generally in relation to my activities as a councillor and my work in local government and I guess I had grown used to just accepting that goes with the territory. It was about me as an individual, about my reputation, about how I conduct business, about how I treat money and how I handle money and how I handle debts and I was very, very angry that it was such, such, I think, a vicious attack, quite untrue." 52 Mr Hale then asked Mr Tucker about the two imputations found by the jury and there was this exchange: "Q. Firstly, if I can go to imputation 6E, the jury has found that this article conveyed the following imputation: that the plaintiff acted dishonourably in his negotiations to settle a pay claim for compensation by a former employee in that he made an offer of settlement which, after it was accepted by the former employee, he refused to honour. Now, firstly, is that imputation true? A. Yes that is, that is -- Q. I am asking whether that is the case? A. No, that is not the case. That is not true. Q. Now, how does it make you feel, knowing that this imputation has been conveyed in this newspaper? A. It is embarrassing and hurtful in that in the area where we live people who are dishonourable and do not honour their debts very quickly become outcasts. I, I, in that area, have credit virtually everywhere. Anything I do at the farm, any machinery breakdown, fuel, tyre repairs, anything I get on credit. It is booked up and that only happens because when you do get your accounts, you pay them promptly. You don't debate them - if there is an obvious error, certainly, but you don't go in disputing them and you preserve those relationships. This article is saying I am dishonourable and I welsh on deals, I cannot be trusted. That is very hurtful and hurtful not only to me but in the eyes of people that I know respect and I hope might enjoy some respect. That is something that attacks my character. Q. How does it fit with your code of behaviour, somebody having the background you have both in the Army and since the Army? A. It is a complete anathema and it is just something - had I behaved dishonourably, let's say in the Army for 24 years, I would not have had what I consider to be a reasonably successful career as an officer. I would not have stayed there. I would not have enjoyed the Army the way I have. It is completely the antithesis of how I think and in the culture in which I have been brought up as a child, and as a soldier, in all of my dealings. Q. And with your constituency (if I might call it that) of the older, more traditional people who live in Byron, how do you see issues of honour affecting them? A. Very markedly. I think it is something that they hold very dear, older traditions or older values, their older behaviour, and an article such as this chips at my standing in the eyes of those people. Q. As a councillor how have you sought to approach the discharge of your duties - and I am thinking in terms of whether you have approached it on the basis that they should be followed honourably? A. Well I have, I have tried always to be open and very clear about where I stand on matters. I have always respected confidentialities when they have been put before me and I have tried - and I think succeeded - to be consistent in my behaviour so that people know when they approach me that's how I will behave. I think I have succeeded that way and yet this would indicate to the contrary. Q. And perhaps I should ask, had it not been for the suggestion of the payment of $4000 by Ms Begg, did you have a view as to what sum of money Comptran would pay in order to discharge the debt? A. It would be the 7,000. It would pay the full amount. It would pay the full amount. Q. And out of what would it be paid? A. It was always hoped that it would be paid out of the funds coming into Comptran from the debtors. Should that fail, should that fail then the obligation would, we would take up, we would recognise - Harold Ross and myself would take up the obligation to honour that. It was always felt the debtors and the amount there was capable of sustaining that. Q. If I can turn to the second of the imputations, which is 6G, again the jury has found that the article conveyed an imputation that you are a domineering employer in that you abused employees by belittling them and shouting at them, using obscene language. Now, that is what the jury has found has been conveyed. Are you such a person? A. I am not. Q. Do you, in the context of employment, amount to a domineering employer? A. No. Q. Do you abuse employees? A. No. Q. Do you belittle them and shout at them? A. No. Q. What about using obscene language? A. Definitely not. Q. And did you conduct yourself in that respect with regard to Ms Potts? A. I did. (sic) Q. And having regard to your long involvement in the Army and the role in personnel which you held, how does that affect, or having that background, what is the impact of the imputation? A. The imputation indicates that I am a person that just would not last in the Australian Regular Army as an officer responsible for soldiers, would not be given command. If you cannot deal with your subordinates and cannot deal with your peers and your superiors, you just would not, you would not be given command. I would not be given the responsibility of soldiers. I would not have had a career in the Army for 24 years as an officer. You just don't deal with soldiers like that. Q. How does an allegation like that fit with the conduct of your professional career? A. It does not fit. It does not fit at all. It is just - I have never conducted myself that way. Q. Also having regard to your code of conduct, what do you say about the plaintiff dealing with employees in the manner described in this imputation which the jury has found conveyed? A. Could I have that question again? Q. Yes. How does this imputation fit with your code of conduct? A. It does not fit. That is not the person I am. Q. Did you have any concerns as to how your constituency might react to the article insofar as it relates to an imputation such as this second one? A. Yes, I felt that many in the - my constituency or those that would generally support me would be very concerned about such, such allegations and they would, they would consider them and question what sort of person I am. That concerned me greatly. Q. At the time of the publication did you have any concerns about the impact this might have on your political career, this is the publication of this newspaper? A. Yes I did. Essentially we had only just come out of an election three months earlier in September. However, this, it is that type of article that chips away at a person's reputation and their character and can do some lasting damage. I was concerned that it would erode my support. 53 Mr Tucker proceeded to give evidence about his feelings when relations, including his brother, Duncan, and friends, in the days following, spoke to him about the article. He said he was also angry that the article had been published without any reference to him as to its truth, particularly as, although they were in competition, he thought that he and Mr Ross had a civilised relationship with the proprietors of the Byron Shire Echo. He composed a letter demanding an apology, which he hand-delivered to the editor, Mr Lovejoy, on 10 December 1999 at approximately 4pm. No apology was printed or offered. He explained the effect upon him of the failure to apologise thus: "The problem with not getting an apology is that you are unable to defend yourself in the eyes of people who read the article and question what sort of person you are. People ask me repeatedly, the question asked of me after the article was, "What are you doing about it". I have asked for an apology in the next edition of the Echo and in many ways that in part indicates you are not taking this lying down and there has been an error made. With no apology the whole matter is left open as to whether it is true, whether it is partially true, whether it is false and you have to justify and defend yourself against everything in the article." 54 After delivering the letter to Mr Lovejoy, he went, as was his custom on Friday afternoon, to the Ex-Services Club, which he said was one block away from the offices of the Echo. Asked by Mr Hale to describe what happened when he went into the RSL Club, he gave further evidence as follows: "A. When I went in there, there was a group of about five or six men there that I normally drink with on a Friday afternoon. When I walked in they went quiet, they stopped conversation. One of that group, a Ray Tilgmer, he partially separated himself, stepped away from the group one step. Q. How many were in this group approximately? A. Five or six and it's the same group each week. Q. Before he spoke to you, when you observed what happened, did you form a view as to what was happening? A. Yes, I formed a view for these blokes to stop talking, they were talking about me and the article. It takes a lot to stop these blokes talking so I was very confident what they were talking about. Q. What was your reaction to that? A. I felt a little uneasy but I know these people well but I still felt uneasy and Ray Tilgmer separated himself from the group and said, "What's this about, the article in the Echo this week and what are you doing about it?" My answer was, "I have just this minute come from the Echo office where I have given them a letter asking for a retraction and apology in next week's edition." Things then started to free up with this group and there was restrained talk about the article and my response was that it was a bunch of allegations and they were all untrue. Q. What was your overall response to this incident being the reaction of your normal Friday night drinking group as it were? A. I thought about it and it made me feel very uncomfortable and essentially not immediately but within a week or two I ceased going to the Ex-Services Club and drinking with these people as a regular -- Q. Why was that? A. I felt uncomfortable. There was no apology. A lot of the procedure had been my wife would drop me at the Ex-Services Club on Friday night around about five o'clock and then she would later come back six, 6.30 and we would go off and have a meal somewhere with some of these people and their wives. That was the procedure we would fall into. My wife felt uncomfortable with that arrangement and I felt uncomfortable and that I still had to defend myself with people who I was friends with." 55 Over the following weeks, he said that he noticed a marked difference in the way people reacted to him, compared to previously. The article was raised with him by several fellow councillors and by members of the Council Management staff. The tenor of the enquiries to him was, "Is there truth in the article?". He said that he could do no more than deny that there was any truth in the imputations, denials which were rendered more difficult by the fact that he had to concede that Comptran had been in dispute with Ms Potts. He said he thought his denials achieved varying degrees of acceptance – "I thought some people thought it had got to be true. I didn't feel confident that I was convincing people that the allegations were false, but that followed through to people I knew". He was unsettled by the somewhat forthright statement to him by a Mr Theodossiou, coach of the A-grade football side of the club with which he was involved, "Is this true? This better not be true". He said that this statement made him feel that it was now severely in question whether he continued to be held as a man of integrity and entitled to trust and respect. 56 He said that it came as a shock when long time friends, Mr and Mrs Towers, proprietors of Ray Towers Carpets who had been advertisers in the Star, ceased advertising and, at the same time, their social relationship terminated, although not with any acrimony. 57 Initially, he said that his wife also was very upset with the article and that this hurt him and made him angry. Generally, he said that he felt that he was "always on the defensive for things I hadn't done. It seemed terribly unfair". 58 Asked by Mr Hale as to his reaction to the fact that imputations, which he knew to be untrue, were published of him, he replied: "A. The reaction is anger because its wrong and there is no easy quick way to redress it or if there was that option wasn't taken up, that they persisted that the allegations persisted, the imputations persisted is unsettling and it impacts on your general life and your state of mind and you think about it. I would have thought about this article and what was said in there numerous occasions rather than put it out of my mind and the times when you could put it out of your mind it only takes a small reaction from someone which you feel is conscious of it or says something to you, then it becomes a very live document in your head again so it is extremely unsettling." 59 As to other matters contained in the subject article, Mr Tucker said that nobody connected with Comptran paid money to a Mr Wilson in settlement of a defamation claim as alleged; that he had never said, or implied, that Ms Potts was incompetent, disloyal or slack in her performance of the job; that he never tried to recover the reference that he gave her; and that he has not made any attempt to contact Ms Potts since the first week of December 1997. He also said that, so far as he was aware, Mr Ross never claimed that Mr Fast Buck$' sign caused the paper a lot of damage; or that any threat was made to Ms Potts to, "do a further story in the November issue if she didn't compromise"; or that the article headed The New Look Saturday Star was in any way intended to put any pressure on Ms Potts; or that he had done anything to stop her obtaining other employment; or that he had arranged for the hearing before the Industrial Magistrate to be held in Sydney rather than on the North Coast. He said that if Ms Potts had withdrawn her resignation in the days following 28 November 1999, he would have permitted her to recommence work immediately. 60 At the conclusion of Mr Tucker's examination in chief, there was the following question and answer: "Q. Just finally, the article was published in December 1999, proceedings have been on foot for some period of time, what effect have these proceedings and the article itself had upon you? A. I think the effect of the article has been to by degrees it's affected my confidence particularly in the public domain and meeting people. I have certainly become somewhat withdrawn from public activities and social contact, I suppose more than public activities, than I was prior to the article. The duration of this case has been I think emotionally draining. It has been quite a stressful matter. I must say I am pleased to be at this position right here and now in the hope there might be some finality to it." 61 Mr Tucker was closely cross-examined by Mr Connell, counsel for Echo, over a lengthy period. He conceded that, personally, he had the capacity in the latter half of 1999 to raise a loan in order to pay the amount ordered to be paid by Comptran, if he had been minded to do so. He also conceded that on occasions in the latter half of 1999, there were credit balances in the bank account of Comptran, which exceeded the amount due under the order. However, he denied, having regard to the obligations of Comptran in respect of the bank loan of $80,000 that, in reality, there were ever sufficient credit funds available. 62 He agreed that he approved for publication the article, written by Mr Ross, headed The New Look Saturday Star, on 30 October 1999, and at that time he was aware that the Industrial Registrar had refused the application by Comptran to pay the fine, court costs, and professional costs, totalling $852, by instalments of $100 per month. The letter conveying such information, exhibit 1D-7 dated 11 October 1999, also intimated that Ms Potts had rejected the application to pay the amount due to her by instalments. 63 However, Mr Tucker denied that the article published on 30 October 1999 was approved by him because of his anger towards Ms Potts and he also denied that it was designed to injure her. He said that he did not think Ms Potts would find the article offensive as it constituted a factual statement, in brief, of her working history and the outcome of the proceedings before the Chief Industrial Magistrate. 64 As to Mr Tucker's understanding of the basis of the Chief Industrial Magistrate's decision, there was this exchange with Mr Connell: "Q. (Shown exhibit K) When you approved that article for publication, what I suggest to you was that, knowing that the Chief Industrial Magistrate had accepted Ms Pott's version of events that she was full-time and had rejected Mr Ross' version of events that she was part-time, that you were simply refusing to accept the umpire's decision? A. That is not so. Q. Why do you say that? A. First of all, I don't know what evidence Ms Potts gave and my interpretation was that, irrespective of whether Ms Potts worked full-time or part-time, because the award was silent on the matter she would be paid a weekly wage because that was what the award specified. The award had no casual or part-time allowance and was silent on the matter and my understanding was that, irrespective of what she worked, she would be paid a full week's wages in accordance with the award. Q. Looking at the second column of the article, about three inches down, or two inches down, it says, "We were ordered to pay approximately $8500 for the days the ex-employee did not work"? A. Yes. Q. The Court had found she did work those days to your belief? A. The Court ordered us to pay money for the days she did not work; that was my belief. Q. Your belief was, and you have already conceded this, that the Court had found that she was working in fact full-time? A. No, no, that's not correct. Q. I suggest that was your understanding? A. I repeat it, that was not my understanding." 65 As Mr Tucker was not a direct party to the negotiations with Ms Begg his evidence as to his knowledge of the course of them was important and Mr Connell cross-examined him upon this subject. His testimony was to the effect that, after Mr Ross attended Mullumbimby Local Court on 23 November 1999, he reported to Mr Tucker that he had made an offer on behalf of Comptran to pay $1,000 and the balance of the court order at the rate of $100 per month. He also reported a counter-offer to accept payment by an initial instalment of $1,000 with the balance, either at $500, or $250, per month. He said that he and Mr Ross decided to reject that counter. 66 On 24 November 1999 Mr Ross conveyed to him a further offer made by Ms Begg, namely that Ms Potts would accept $4,000. He said there was some confusion between them as to whether the sum offered was $4,000 in total or $4,000 plus the up front sum of $1,000 mentioned the previous day. The cross-examination then continued: "Q. So you and Mr Ross discussed the offer and decided to accept it? A. We decided to accept the quantum, yes. Q. You decided to accept the offer? A. No, the quantum, the amount of 4000 as opposed to 7000. Q. I suggest to you that you and Mr Ross agreed that he would speak to Miss Begg and accept her offer? A. No, that is not correct. The quantum was agreed, both Mr Ross and I agreed with the quantum - of that there is no question. Time to pay-- WITNESS: The time frame in which it was to be paid was not definitive and we were of the view that we would be able to pay by January 2000 because of the money coming in from debtors, but not able to pay it then, and that was not clear. CONNELL: Q. You gave that evidence yesterday, didn't you, that you intended to pay the full amount by January at the latest? A. Yes, that's correct. Q. You are suggesting, are you not, that you were going, realistically, to reach an agreement with Ms Begg on behalf of Ms Potts to reduce the amount outstanding from more than $7000 to $4000 but changing the time period over which the money would be paid? A. I am not suggesting that. I am saying that the time frame was not defined and clear and had yet to be negotiated. It was part of the negotiations that were still going on and further to that, the payment of the 7000 in January was an obligation that we had taken upon ourselves, but the payment of the 4000 in January was something that Comptran itself looked very strongly like being able to meet from the money that was coming in from debtors. Q. Surely if you intended to ensure yourselves that Mrs Potts was paid the full amount, you would have made sure that Mr Ross conveyed that to Ms Begg at the time, would you not? A. Not necessarily, no. Q. Did you think it was fair to Ms Potts to be paid less than the full amount the Court ordered? A. It was never our intention (sic) to pay the full amount the Court ordered; it was our intention to pay over time. Q. Your evidence yesterday was that you intended to pay it, at the latest in January, wasn't it? A. If the negotiations fell through and nothing could be agreed, then that was an obligation that we would have taken upon ourselves, both as individuals and with the company. Q. Because you thought it was only proper that the lady be paid the full amount of the judgment? A. It is not only a matter of "proper"; that is what has to be. It is a valid award against us and it had to be satisfied. Q. Then why did you not cause the entire amount to be paid? A. Because at the time we were not capable of paying it and the matter was under negotiation, and while those negotiations were going on you keep your options open." 67 In any event, within a few days thereafter, Ms Begg prepared a document which Mr Ross collected from her office on 30 November. Following a telephone conversation with her, he wrote the following letter dated 30 November 1999 (omitting formal parts): "I refer to the Agreement drafted by your office that I collected this morning and our subsequent telephone conversation at approximately 10am today. Last Wednesday (November 24) afternoon the negotiated position that was considered by Comptran was to be $4,000 of which $1,000 was to be paid now and the residual of $3,000 was to be paid in monthly instalments of $250. On Thursday we spoke further and agreed to settle this as above. The draft agreement received does not reflect the position above. Accordingly, Comptran does not agree to this settlement." 68 Mr Tucker told Mr Connell that he did not see the draft agreement collected by Mr Ross, but did see his letter of 30 November 1999 and Ms Begg's reply of the same date contained in paragraph 46 above. 69 A further letter was sent by Ms Begg dated 16 December 1999 as follows: "I refer to your letter of 10 December 1999 and to the negotiations generally that have taken place in respect of this matter and advise that my client is willing to settle her claim on either one or other of the following bases: 1. She will accept a lump sum payment in the sum of $4,000 to be paid within seven (7) days, in full and final satisfaction of the Judgment; or 2. She will require the full amount of the Judgment, being $7,348.59 as at today's date, to be paid by way of instalments as follows: (a) An initial lump sum of $1,500.00 to be paid within seven (7) days. (b) Payment of $500.00 per month thereafter until the full amount of the judgment has been paid. I look forward to hearing from you in respect of the above." 70 Negotiations for payment of the outstanding sum then seem to have broken down, and Ms Begg, on behalf of Ms Potts, issued a writ of execution, whereunder the Sheriff seized property in the office of Comptran. It may be inferred that this fairly rapidly led to further negotiations and, in the result, Comptran paid $4,000 to Ms Potts on 14 January 2000, which, in effect, she agreed to accept in full satisfaction of what was due to her. This arrangement was evidenced by a written agreement signed by the parties on 14 January 2000. It is, perhaps, noteworthy that the document does not identify any consideration moving from Comptran to support Ms Potts acceptance of $4,000 in satisfaction of the much larger sum due. 71 It was put to Mr Tucker by Mr Connell, that his treatment of Ms Potts was "ruthlessly unfair". He replied: "A. I do not agree, I think the quantum was agreed, the quantum that Ms Potts through her solicitors put to us, we accepted that and at the actual time that the money and the method of payment was not agreed was subject to negotiations, ongoing negotiations through the December, through the Christmas/New Year break, from early in the New Year, we were able to continue to negotiate and monies had come in as we had forecast they would and we were in a position then to write that cheque and Comptran was in a position to write that cheque and that is what happened it." 72 As to the terms of Ms Potts employment, it was put to Mr Tucker that she had a number of conversations with Ms Lindsay, as a consequence of which, it was agreed that Ms Potts would commence working on a commission basis for the first 3 weeks of her employment and, thereafter, would earn "$352 to $400 on a full time basis". Mr Tucker denied this and said that, in any event, Ms Lindsay had no authority to make such an arrangement. 73 As to the hours Ms Potts worked, Mr Tucker denied that she was in the office every day and denied that she worked long hours. When it was suggested that on Thursdays she worked well into the night, he replied, "Not so, in fact, Ms Potts would come in and generally finish and be gone by 4, 5 o'clock, once the ads were in. On occasions she did stay when there were problems with the setting of the type or the ads she had taken and she wanted done a certain way. Generally, the advertising requisitions would be in and their work was finished and there was no work to be done while the paper was being produced". 74 Challenged by Mr Connell as to his conduct towards Ms Potts, Mr Tucker denied that she was the only employee of the newspaper who had substantial experience in the industry; or that she complained to Mr Tucker of not receiving her correct pay in the second week of her employment; or that he became angry and "yelled at her" after she made a remark about Mr Ross; or that he had given the staff an ultimatum, "it's commission or nothing, there is the door, work it out" when proposing to sales staff that they should be paid on a commission basis; or that he refused to pay Ms Potts, when asked, the award wage, "like normal people"; or that Mr Ross said to her (in the presence of Mr Tucker) , "We would love to pay you an award wage but we can't, the paper is not making any money"; or that Mr Ross had said to her, "I promise as soon as the paper becomes profitable you will be the first to be paid an award wage"; or that Ms Potts said, "I will work for $300 a week plus a car allowance, plus $55 to proof read the paper"; or that Ms Potts ever did, in fact, proof read the paper; or that he said to Ms Potts, "We are going to hire some new sales staff. We are going to hire a man because it is about time that we had some pants in the office, there are too many skirts"; or that in a normal working week, Ms Potts worked between 8.30am and 7.30pm; or that she worked later on Thursday nights, sometimes till midnight; or that Ms Potts wrote stories, including sports reports and stories on fishing clubs; or that he stood in front of her at her desk and said, in a loud voice, "Your house must be a pigsty, the way you leave your desk"; or that he said to Ms Potts in September 1997, "It is a pity you are not on Job Start. We could pay you properly"; or that she complained to him about the wages being paid to the two Job Start allowance employees and when she did he shouted at her, "That's none of your business. This is my paper. I will do what I want. I run this paper not you"; or that she said to him, "I'm carrying these people. They are a waste of space and time. I'm doing their work as well as mine. They don't bring anything in and you pay them more than me and you won't pay me a proper wage. Why have you got them"; or that he said to her, "Don't worry. We will be rid of them by Christmas". He completely denied an alleged incident at Mr Ross' house in October 1997 when it was claimed that he "banged his fists on a glass table" and shouted at Ms Potts, " I'm sick of you. I own this business. How dare you treat Graham like this. This is unacceptable behaviour". 75 Mr Tucker also denied that during the period of her employment he constantly commented adversely upon Ms Potts; or that he "dressed her down"; or that he said, "You always cause trouble. I have had enough of you"; or that she said to him, "You're trying to get rid of me, aren't you? I'm sick and tired of your bullying. Why don't you pay me proper wages?" 76 Mr Tucker further denied that, in the four weeks preceding 28 November 1997, Ms Potts said to him, "You're not training the staff properly. That 's why they are not getting advertisements"; or that on an occasion when Mr Waters did not appear for work, Ms Potts said to him, "If I did that you would sack me"; or that he said to Ms Potts, "Don't be so stupid. I told you to mind your own bloody business"; or that he said to Ms Potts, "You're causing trouble. You are making it all up. Are you that bloody stupid? – or that he said to Ms Potts, "You're causing trouble again. You're bloody stupid"; or that she said to him, "The basic problem here is that the staff are not experienced enough, I am doing all the work and you won't pay me proper wages. You're just using me"; or that Ms Potts said to him, "This is not good enough, either he goes or I go"; or that he said to Ms Potts, "Well you can go"; or that at the meeting at Mr Ross' house on 28 November 1997, he said to Ms Potts, "I'm running this business, Don't tell me who I can hire and fire"; or that Mr Ross said, "Calm down, Ross, let's sit down and talk about this rationally"; or that in the week following 28 November 1997 Ms Potts said to him, "Ross I would like to work this out. It is not fair. I need a job. It's Christmas"; or that he shouted at her and said, "The way your attitude is, even the way you were speeding in this morning and parked next to me, this is my business. You don't have a fucking job here". Mr Tucker added, in relation to the last mentioned denial, that his conversation with Ms Potts, in the week following the events of 28 November, was confined to her request that he provide her with a reference. When it was ready, he said that she "virtually snatched the reference from me and left". 77 Further cross-examined as to his understanding of the position of part-time employees under the industrial award, Mr Tucker maintained that after the decision of the Chief Industrial Magistrate, he believed that any employee, whether working part-time or not, would have to be treated as a full-time employee and paid accordingly. I interpolate that this was plainly not the case, there being an express provision to the contrary in the award itself. Moreover, Mr Tucker's evidence as to his understanding of the position was, on one view of the matter, somewhat undermined when it emerged during further cross-examination that after the Chief Industrial Magistrate's decision, he made no attempt to offer full weekly award entitlements to other part-time employees, even though, for reasons which I found hard to understand, he would not agree that if Ms Potts was entitled to be paid as a full-time employee, all other part-time employees should be treated in the same fashion. The unstated explanation may be that he thought that if a part-time employee such as Ms Potts could be "found' to be a fulltime employee, other part time employees were susceptible to a similar finding. In any event, the evidence ultimately established beyond question that the magistrate found in Ms Potts' favour because he concluded that throughout the period of her employment she was employed, as a matter of fact, on a full-time basis. It was not held, nor was it open to be held, that if she were in fact employed on a part-time basis, she was entitled to be paid as though she were a full-time employee. I will make further reference to this subject when dealing with the evidence of Mr Ross, but I think nothing really turns on, what is probably Mr Tucker's defective present recollection of his understanding of a somewhat technical industrial issue in 1999. 78 On any basis, it is possible to accept that Mr Tucker feared, that following the decision of the Chief Industrial Magistrate, employees whom he regarded as part-time employees would be held to be full-time employees. As it seems to me, this might well arise from an expectation that they would work five days a week without any stipulation as to the hours they would work on those days, and without any record being kept of such hours. 79 Mr Tucker denied to Mr Connell that he ever spoke to the management of the Coolamon Nursing Home, with whom he was friendly, about Ms Potts and there was no evidence called in the defendant's case to the contrary. 80 He told Mr Connell that he stood for office as mayor and also as councillor in the election held in September 1999. He was successful in obtaining re-election as a councillor but failed to secure the office of mayor, albeit being runner-up in a field of 8 or 9. He was re-elected to the council at the election in 2004 and was again runner-up for mayor, losing by about 750 votes. 81 Mr Buck$ cross-examined Mr Tucker and at one point in the cross-examination touched upon a subject which has caused me some concern. There was this exchange: "Q. One point there - I understood you to say that you paid Leanne Potts $70 a day and during one week $350 was paid. One week sounds to me like full time, but you lead us to believe Leanne Potts did not want full time because she had too many other commitments. Can you reconcile that? A. Certainly, it was Leanne Potts who wanted to be paid $70 a day; that was her request; and the number of days she worked we left up to her to determine and she would advise us of how many days she worked and those days were not prescribed in starting at, let's say, nine o'clock and concluding, let's say, at five o'clock, but how she could best fit in her employment with those commitments she had to her family. Q. So you were prepared to pay her $70 a day without any commitment as to minimum hours? A. That's right." 82 In answer to Mr Hale in re-examination, Mr Tucker said that it was not his practice to look at the bank statements of Comptran as they came into the office. He said that they were put in a tray for his brother, Duncan. During 1999, he said that at any particular time he had no precise understanding of how much money was in the company's bank account. 83 In re-examination Mr Hale also asked Mr Tucker about his feelings, in light of the cross-examination by Mr Buck$. There was this exchange: "HALE: Q. If I might turn to another issue and that is the questions that were put to you by Mr Buck $ , I think certain questions were put to you this morning, certain allegations were made about your honesty this morning by Mr Buck $ , can you recall that? A. Yes I do. Q. How does that make you feel that in a public forum it may be suggested you are a dishonest person? A. Like other allegations I have had, when I am called corrupt and dishonest and someone states that I may be dishonest, they are comments that hurt, yes, they give rise, they make me feel hurt, they really do. Q. Also this morning Mr Buck $ asked you about failure to disclose your pecuniary interest as a councillor? A. Yes. Q. Perhaps you might tell us how important the disclosure of pecuniary interest is in relation to the integrity of a councillor like yourself? A. Disclosure of interest has two parts, there is disclosure of an interest that might be non-pecuniary and then there is a disclosure of a pecuniary interest wherein relationships between a councillor and the matter, be that a person or the subject that is before council may convey either an advantage, financial advantage or even a financial disadvantage that a person should declare that interest and withdraw so that the councillor doesn't have any effect in the decision in a matter that may be of benefit to that councillor. Now, breaches of those conflicts of interest, or failure to declare them, go very much to the honesty and integrity of the individual and throughout my 14 years on council I have been very conscious of it, feel very strongly about it and have tended to continually overstate any conflict of interest that may occur. By that I mean if I even suspect that there is a conflict of interest I will declare it. The onus is on the individual to declare, it is not on a member of staff or for the mayor to say, "I believe you might have a conflict of interest". That may well happen as the mayor or some of the staff giving some guidance, but it is the responsibility of the individual to declare that interest and I have always been extremely conscious of it, and as I say, if there is a hint or even a hint of a perception of it, I declare conflict of interest both pecuniary and non-pecuniary. Q. How does it make you feel that Mr Buck $ suggested this morning that you may have breached this pecuniary interest obligation? A. Again it is an attack on my honesty and integrity and it is extremely irritating. Q. Also Mr Buck $ made reference to improper association that you had with certain senior staff? A. Yes. Q. I think you denied that? A. Yes. Q. Again, how does that make you feel that such an allegation is made in open court like that by Mr Buck $ ? A. That again makes me angry and I have worked there, my time on council, to get on well with people. I see that as the way you are able to do business and to suggest my relationships with staff is highly offensive and that makes me angry." 84 Finally, Mr Hale asked Mr Tucker what impact the fact that he had been under cross-examination for almost three days had upon him and he replied, "It is stressful, I guess it put a fair bit of pressure, I suffered headaches, and I may probably not eat as I should, it has been stressful, I feel under pressure." WITNESSES IN MR TUCKER'S CASE: 85 A number of witnesses gave evidence in support of Mr Tucker. Some restricted themselves to evidence of his reputation, some as to other matters in issue. Several witnesses were able to testify, both as to his reputation and as to other relevant matters raised in the action. Foremost, perhaps, was his partner in the newspaper, Mr Harold Ross. 86 Mr Ross, a resident of Mullumbimby and the Byron Shire since age 14, said that initially he was a dairy farmer, but he became a businessman with property developments in the area. Those developments included the Ross Industrial Estate, which comprised some 14 industrial units. He said that he has known Mr Tucker since the early 1990s as a result of mutual community interests and they have been friends for some time. He said that their political views are in sympathy. 87 He testified as to the formation of Comptran in 1996 and the establishment of the Star with Mr Tucker. At first, his home was next door to the newspaper office, but subsequently he built a new house, a very short distance away. He said that initially he and Mr Tucker invested $15,000 each in the newspaper but he withdrew part of his contribution to finance his new house and, at the same time, Mr Tucker, increased his investment. Subsequently, in 1999, when the business required further funds, they obtained a business loan from the Commonwealth Bank. At one stage, Mrs Tucker also advanced some money. 88 He said the neither he, nor Mr Tucker, had any prior experience with newspapers, but an editor, Ms Leanne Ellis was hired, who did have some experience as did another employee, Ms Brenda Bartlett. By mid 1997, Ms Gardiner had replaced Ms Ellis as editor but Ms Bartlett was still employed and Ms Lindsay was employed as sales manager. There were a number of sales persons employed part time. 89 Mr Ross said that Mr Duncan Tucker would come into the office on Friday afternoons, balance the books and pay the staff. He said there was a copy of the relevant award behind his desk. Dealing with the circumstances surrounding the employment of Ms Potts, he said that he initially interviewed her with Mr Tucker when it was explained that she would be required to fill classified advertising by telephone from the office for a commission of 12% on her sales. He said that he could not recall any discussion about the days she would work but said that everyone worked Mondays and Tuesdays. 90 Within a week, Mr Ross concluded that Ms Potts was very good at selling classified advertising but, under the arrangement agreed to, her commission amounted only to about $50, which he said did not reflect the amount of work she had done. He said that Mr Tucker and he had agreed, instead, to pay her $120 as "more in line with her work". 91 As to the payment recorded in the wages book of $200.00 for the week commencing 9 August 1997 and $250 for the week commencing 16 August 1997, Mr Ross said, in effect, that he and Mr Tucker concluded that her efforts justified considerably more than the commission to which she was entitled under the agreement. 92 On or about 23 August 1997, Mr Ross said that he had a conversation with Ms Potts at which she was asked whether she would work full-time and sell display advertisements as well as classified advertisements. The proposal was that she would work full-time 5 days a week at the award wage. According to Mr Ross, she declined the proposal and said she did not wish to work every day but would work for $70 per day, on the days she chose to do so. He said that up to this conversation she had only been working on the solicitation of classified advertisements, work she performed on a telephone from the office. Display advertising involved calling at business establishments; taking photographs; preparing copy etc. 93 Ms Potts proposal that she would work for $70 a day, whatever days she wished, was agreed to. Asked whether he had any concern as to how many hours a day she might work, Mr Ross replied, "No, not at all, no, as long as the ads came in on the Thursday I was quite happy with that". 94 Mr Ross supported Mr Tucker's testimony about the occasion when it was proposed to all sales staff that they work on commission. He said that he and Mr Tucker concluded that sales staff paid on commission might "try a little bit harder to get us a few more ads". However, he said that as nobody was interested in the proposal, the idea was dropped. 95 Mr Ross said that it was his practice to call in at the office almost every day, at about 8am, but only for a short period. He said that Mr Tucker generally came in every day for a period, but "some days you might not see him at all for a couple of days". 96 Referring to the period when, according to the wages book, the wages paid to Ms Potts were significantly reduced, Mr Ross said: "A. We had a phone call from Dr James at the hospital, who said that Leanne was in hospital. She had a crushed foot and her husband had run over her foot with an industrial cleaner while he was cleaning the Ocean Shore Shopping Centre - that was his occupation - and she was helping him and he run over her foot and he was concerned about her mental health because she was agitated about not being able to work and not having money to buy groceries and feed her family. So Ross and I went up to the hospital and saw her; I told her not to worry about - we would pay her something so she could buy some groceries for the week, and when she got back to work we would go back to whatever wage she was on." 97 Mr Ross said that Ms Potts was off work for 2 weeks and he "just said to Duncan, pay her some money for those 2 weeks and he has paid her $166 or $160, I have no idea how he worked that out. That's what he paid her". Asked what led to Ms Potts being paid $413 a week, Mr Ross replied, "Well we had employed two job start people and they were to work from the office selling classifieds so Leanne no longer needed to sell classified advertising. So I wanted her to go and sell displays full-time. So I offered her again a full-time job to go and sell displays all the time, and she agreed to that". He said it was his understanding that $413 per week represented the award at the time for full time work. 98 According to Mr Ross, in the first week she was paid as a full-time employee, Ms Potts complained about Mr Waters and Ms Ubirien and the way they went about selling classified advertising. He said that she told him, "You should just sack them, you should just sack them, they're hopeless, especially Graham. He doesn't do his job. You need to sack him". Mr Ross said he pointed out that they were both employed under a subsidy scheme which lasted until Christmas and that he could not sack them. 99 As to the events of 28 November 1997, Mr Ross said that Ms Lindsay telephoned him and said that there had been an argument between Mr Waters and Ms Potts, which resulted in Ms Potts walking out of the office and telling Mr Waters to do the work himself. Ms Lindsay proposed a meeting after lunch to take place at his house, close by. He said that she and Ms Potts arrived together and sat at his dining room table. He said, "Now Leanne, what's all this about?" she replied, "I can't work with Graham Waters. He is just hopeless. If you don't sack him I'm going to leave". Mr Ross responded, "I don't want you to leave but I can't sack Graham, but he will be leaving in a few weeks time when we close for Christmas". Ms Potts then said, "I'll continue", or words to that effect. Mr Ross then telephoned the newspaper office, and spoke to Mr Tucker. He asked him to come to his house, which he did, arriving just as Ms Lindsay left. 100 Mr Tucker sat at the table with Ms Potts. Mr Ross said that there had been an argument between Ms Potts and Mr Waters and that Ms Potts had decided to leave but now she proposed to continue. Mr Tucker said, "That's all right but behaviour and outbursts like happened this morning in the office are not acceptable as it upsets the other staff and makes everyone feel uncomfortable". At this Ms Potts became angry and said, "I don't regret what I have said". Mr Ross said "Just leave it Leanne, go home and I'll call down and see you on Sunday". Ms Potts then left the house. Mr Ross denied that during the meeting, Mr Tucker yelled or swore at Ms Potts, or banged the table. Asked if he ever saw Mr Tucker abuse or swear at Ms Potts, he replied, "No, no, that wasn't his nature", adding that he had never heard Mr Tucker abuse or swear at any member of the staff at any time, "he got on fine with all the staff, but he was firm with what he wanted done, like, he never left any doubts in anyone's mind about what he wanted done". 101 Later in the day, Mr Ross received a telephone call from Ms Potts' husband to say that there had been a mistake in his wife's pay which was $50 short. Mr Ross checked and found that this was so and took a cheque for $50 to Ms Potts at her home on the following Sunday. He had a conversation at their kitchen table with Ms Potts and her husband. According to Mr Ross, during this conversation Ms Potts said, "I don't know what to do", and he replied, "I think you should take a week off or come back and work just as a casual, a couple of days a week". Ms Potts, thereupon turned to her husband and said, "What do you think?", to which he replied, "It's up to you". She then said to Mr Ross, "No I won't be back". 102 The following day, Monday 1 December, Mr Ross said he went to the office at his usual time, about 8am and said to the staff present, "Leanne is not coming back, everyone has to pick up her work load for this week". He denied that he told anyone that she had been sacked and said that she had not in fact been sacked. So far as he was concerned she could have returned to work either as a part time employee, or on a full-time basis, according to her own choice. 103 Mr Ross said that Ms Potts did not appear in the office on the Monday but did come into the office on Tuesday 2 December when she requested a reference, which Mr Tucker wrote out and gave to her. She later called at Mr Ross' house in tears and said, words to the effect that it wasn't fair that Mr Waters still had a job while she didn't. Soon after she commenced proceedings in the Industrial Relations Court for unfair dismissal, but those proceedings were dismissed for want of prosecution. 104 The following August, Inspector Frost from the Department of Industrial Relations called at the office and inquired about the terms of employment of Ms Potts. Mr Ross said that he told him that Ms Potts had terminated her own employment and had been variously employed, "casual, part-time and full-time over the period of her employment". According to Mr Ross, Inspector Frost then said, "Did you realise that the award is silent on casual and part-time employees, and if they work one day a week, you have to pay them a full week". 105 Subsequently, Comptran, was prosecuted for a breach of the award and the company received a summon returnable before the Chief Industrial Magistrate in Sydney. Mr Ross said that he appeared for the company on the return of the summons himself, without legal representation. He was armed with the letter exhibit Q from the NSW Department of Industrial Relations dated 5 January 1999, containing the paragraph: "Clause 25, Area, Incidence & Duration of the above mentioned award states, "This award does not apply to part-time casual employees. Therefore rates of pay and conditions of employment for part-time employees shall be negotiable, except for annual leave, long service leave and parental leave which is governed by other NSW industrial legislation." 106 He said that he showed the letter to Inspector Frost, who was present, and to a lawyer appearing for the prosecution. Mr Ross claimed that the letter seemed to come as a surprise to Inspector Frost. What next transpired, according to the testimony of Mr Ross is contained in the following exchange with Mr Hale: "Q. Then you went into the court? A. Yes, we went into the court. Q. You were opposed by a barrister? A. Yes. It was nothing like what I expected. I thought we were going in to settle just on the holiday pay, which was $600 or something and I went in there and I was completely out of my depth, every time I spoke the barrister spoke and the Magistrate told me I couldn't stand up when I should have stood up and so on and I wanted to get out of there. Q. Did you try and put before the court the letter of 5 July 1995? A. Yes, I tried. Q. Was it accepted? A. I don't think so. Q. Subsequently later that day was a judgment entered against the company in excess of $7000? A. Yes. Q. How long did the case go? A. It went the full day and it went to the next morning for half an hour. Q. Did Mrs Potts give evidence? A. Yes. I had no idea what I was doing. Q. Did you ask Mrs Potts any questions? A. I did but I can't remember what they even were I was that nervous. Q. What was your state of mind during the course of the hearing? A. I was in a state of shock. Q. After the judgment was entered what happened? A. As I walked to the lifts the barrister from the DIR was with me. Q. They were with you? A. Yes. Q. Did one of them say something to you? A. The barrister said to me, "Apply to pay by instalments". That is all that was said. Q. He or she? A. She. Q. Did you then return to Mullumbimby? A. Yes. Q. What was your understanding at that time of the basis of the decision? A. The decision was we had to pay at the end for all the days she didn't work. Q. Why was that - and this is your understanding? A. Because it was as Mr Frost said, the award was silent so you had to pay even if they worked one day, you had to pay for a full week. Q. Did Mrs Potts give any evidence she had to work full time? A. No. Q. When you returned to Mullumbimby did you explain to Mr Tucker what had occurred? A. Yes. Q. What did you say to Mr Tucker? A. I said to Ross I was just hopeless, we had got done and we had to pay Leanne for every week she was in our employ a full week's work, even if she worked two days. She had two weeks off in hospital, for all those weeks we had to pay her a week's wages. Q. Did you say why, did you say anything about the award? A. I just said they didn't accept our letter." 107 Mr Ross said that subsequently he had a conversation with Mr Tucker concerning, what he understood to be, the consequences of the decision of the Chief Industrial Magistrate. The position he took was that they could not continue the paper with casual staff, as everyone had to be employed on a full-time basis. As a consequence, a decision was made to close the newspaper, a decision that Mr Ross said would not have been taken if it were not for the Chief Industrial Magistrate's judgment. The last edition of the Star as a weekly newspaper was published on 25 September 1999. 108 In the meantime on 6 September 1999, Comptran had written to the Industrial Registrar seeking time to pay the judgment of the Chief Industrial Magistrate, which required the company to pay the total sum of $8,523.29. 109 Sometime before 23 November 1999, Mr Ross received an examination summons returnable at Mullumbimby Local Court on that date and requiring the production of company documents. He attended court with Mr Duncan Tucker and with company documents. There he conversed with Ms Begg in what, apparently, was a conference room, rather than the main courtroom. He said that Ms Begg questioned Mr Duncan Tucker about the company's financial affairs, in a meeting which lasted up to an hour. During the meeting, Ms Begg said that Ms Potts was prepared to accept instalments of the amount due to her by way of a down payment of $1,000 and the balance at the rate of $250 a week. Mr Ross said that he rejected that proposal but made a counter-offer to pay $1,000 deposit and $100 a month. That offer was left open, but the following day Mr Ross said that Ms Begg telephoned him and said that Ms Potts would accept $4,000. According to Mr Ross, upon reflection, he was unclear how the amount of $4,000 was to be paid and telephoned Ms Begg asking in effect whether the $4,000 included the $1,000 and understood her to say yes. He then said, "Well in that case se will accept that". 110 Within a day or so, Ms Begg told him that she had prepared a draft agreement, which Mr Ross went to collect at her office, apparently about 9am on 30 November. He said that he read the draft and observed that it provided for $4,000 to be paid within 7 days, a condition which he said, in effect, was contrary to his understanding of the agreement. He immediately telephoned Ms Begg and told her so and he said Ms Begg accepted that there had been a misunderstanding. He, thereupon, wrote to Ms Begg's firm, a letter dated 30 November 1999 which omitting formal parts read: "I refer to the Agreement drafted by your office that I collected this morning and our subsequent telephone conversation at approximately 10am today. Last Wednesday (November 24) afternoon the negotiated position that was considered by Comptran was that the total payment was to be $4,000 of which $1,000 was to be paid now and the residual of $3,000 was to be paid in monthly instalments of $250. On Thursday we spoke further and agreed to settle this as above. The draft agreement received does not reflect the position above. Accordingly Comptran does not agree to this settlement." Ms Begg's reply to the letter also dated 30 November 1999 is set forth above at paragraph 46. 111 Mr Ross told Mr Hale that he did not at any time tell Mr Tucker that he had reached an agreement with Ms Begg on behalf of Comptran Pty Ltd to pay Ms Potts $4,000 immediately. He said his intention had always been to pay the sum due, but to seek to pay it by instalments. 112 Following receipt of Ms Begg's letter of 30 November 1999, there were further inconclusive negotiations and the issue of the writ of execution referred to earlier. Ultimately, as I have mentioned, payment of $4,000 was made by Comptran in January 2000, which Ms Potts agreed to accept in full settlement of the judgment debt. 113 Mr Ross said that at the time of writing the article, exhibit K, he believed what he said to be true. He said the reference to the Echo was intended to include the reference to a report in the Echo whereby, "it inferred we had closed down to avoid paying Ms Potts and the court". 114 As to the financial position of Comptran at the time of publication of the Star as a monthly newspaper on 30 October 1999, Mr Ross said, "The paper had gone from an income of $225,000 a year with a $80,000 loan to a paper that had an income of $15,000 per year with a $80,000 loan. We had to get rid of the $80,000 loan, pay Leanne and have enough money to keep the paper". He added that reducing the bank loan "was the most important thing". 115 As to the subject article, Mr Ross said that his attention was first directed to it by his son. He obtained a copy and – "I was appalled that anyone could print this stuff". At the time he said he was still in negotiations with Ms Begg. 116 In cross-examination, Mr Connell put to Mr Ross that in the days following 23 November 1999, he had reached a concluded agreement with Ms Begg to pay $4,000 up front to Ms Potts in full settlement of the judgment. He denied this. He also denied that within 6 weeks of Ms Potts commencing employment he said at a staff meeting, "The paper is not making any money, the sales staff will have to be paid on a commission basis". Mr Ross said that at the meeting referred to, there was no more than a proposal that the sales staff might be interested in working on a commission basis. Although he conceded that at commission rates of twelve or twelve and a half per cent, staff would not earn much from commissions on classified advertising, he said that it would be quite different in relation to display advertising. 117 Mr Ross told Mr Connell that he never heard Mr Tucker exhibit anger towards Ms Potts; yell at her, swear at her or say to her, "How dare you speak to Harold like that, who do you think you are, get out of the office", or at the staff meeting when the subject of commission was raised say, "Get out, get out, its commission or nothing". Mr Ross denied that Ms Potts ever said in his presence that she wanted an award wage, "like normal people get", or that he ever said to her that when the newspaper became profitable, she would be the first to be paid an award wage. 118 According to Mr Ross, the only time Ms Potts made any complaint about wages was when she complained that the Job Start pair were receiving more than her and were not doing as good a job. Mr Ross said that he responded by pointing out that, in fact, she was paid more than the job start employees. That proposition, I interpolate, is supported by the wage records, in respect of the period when, according to the evidence of Mr Tucker and Mr Ross, Ms Potts was a full-time employee. 119 Mr Ross denied that when he and Mr Tucker visited Ms Potts in hospital, she said, "How much are you going to take out of my pay? The paper is nearly full of advertising and I am making a great deal of money for you". He also denied that Mr Tucker said to her, in his presence, "We are going to hire some new sales office staff. We are going to hire a male because we need more pants around here, there are too many skirts". Mr Ross also denied that, prior to the hearing before the Chief Industrial Magistrate, he approached Ms Lindsay and asked her to sign a statement to the effect that Ms Potts only worked part-time. 120 A witness, whose evidence I regard as very significant, both as to the reputation of Mr Tucker and as to other issues raised in the litigation, was Ms Gardiner, the editor of the Star from May 1997 until publication as a weekly newspaper ceased in October 1999. At the time Ms Potts commenced her employment, she had been in office as editor for about three months. 121 Ms Gardiner grew up in the Mullumbimby area and after leaving Mullumbimby High School obtained the degree of Bachelor of Arts in Journalism at the University of Queensland. From commencement of her employment with Comptran, she worked on a full-time basis. She wrote advertisements until her appointment as editor, following the resignation of Leanne Ellis. Also working in the office when she became editor was Ms Bartlett in administration, the advertising manager, Cheryl Lindsay and part-time sales staff, working under her. She said that both Mr Tucker and Mr Ross were accustomed to come into the office quite frequently, for varying periods. There was also Mr Tucker's brother, Duncan, who worked on the books of account on a casual basis and Mr Tucker's wife, Jennifer, who proof read the newspaper on a Thursday night and called occasionally at other times. In the absence of either Mr Tucker or Mr Ross, she managed the staff. 122 Ms Gardiner said that Leanne Potts became employed part-time in sales. When she was in the office, Ms Potts used one of the desks allocated to sales staff but did not have a desk dedicated to her use. 123 Ms Gardiner said that Ms Potts was apt to criticise the work performance of others in the office, in particular, the two employed later in 1997 as part of a job assistance program – "She would talk down to them, condescend, sneering …….". She told Ms Gardiner that she did not think that they were up to the job. 124 In the later part of Ms Potts' employment, according to Ms Gardiner, there was tension in the office whenever she was present. She said that Ms Potts spoke to her quite regularly about work and personal issues. For instance, Ms Gardiner said that she regularly sought advice about her relationship with her husband, sometime debating the same issue more than once on the same day. She said this type of conversation became more regular as Ms Potts' employment continued. 125 She said that Ms Potts became erratic in her work habits, "You could not guarantee that the day that she was supposed to work, she would be there". She recalled an occasion when Ms Potts was involved in a "yelling match about some incident", at the conclusion of which "she stormed out". On that particular occasion, Ms Gardiner followed Ms Potts in her car and ended up having a very long conversation with her on the side of the road, at Billinudgel, about 12 minutes drive from the office. Asked what they talked about, Ms Gardiner replied, "Just re-hashed the same issues we had already been over countless times, her personal issues and her work issues". Ms Gardiner was not able to persuade her to return to the office that day. 126 According to Ms Gardiner, Ms Potts' duties required her to be out of the office about one-third of the time, mostly for the purpose of picking up copy from advertisers. The remaining two-thirds of the time, she spent for the most part on the telephone in the office. 127 Mr Hale took Ms Gardiner to the subject of Mr Tucker's relationship with the staff in the office and there was this exchange: "Q. During your observation of Ross Tucker what did you observe about the way in which he interacted with staff? A. Most of the time he was very a jovial presence in the office, teasing people. Q. Did you ever see him shout abuse at anybody in the office? A. Not shout abuse, no I didn't. Q. Did you ever see him swear at any employee? A. No I didn't. Q. Did you in fact ever see or hear Mr Tucker swear? A. I have heard him use bloody, blasted, but normally in a jovial, teasing way, that bloody thing, it drives me mad. Q. And that's the manner in which you have heard him? A. Yes. Q. In terms of his interaction with Miss Potts, did you ever see him shout at her? A. No, I don't think so. Q. Abuse her? A. No. Q. Swear at her? A. No. Q. Yell at her? A. No, he may have raised his voice at her but there is a difference between raising your voice and yelling and shouting." 128 Ms Gardiner said that Mr Ross interacted with employees in much the same way as Mr Tucker. She said that staff, including Ms Potts, would regularly discuss articles in the Byron Shire Echo, "Pretty much painting Ross as an ogre". She said, "We used to marvel and wonder about the discrepancy between the man we were employed by and the man depicted by the Echo and we were unanimous that Ross was a good boss and we couldn't understand what they were going on about". She said that Ms Potts was present during these conversations and appeared to agree with the sentiments expressed. She could not recall Ms Potts, at any time in her presence, criticising Mr Tucker. Asked by Mr Hale whether, in the weeks or months prior to her departure, the manner of Ms Potts changed in any way, Ms Gardiner replied, " Her behaviour was unsettled and erratic and it became more frequent". Ms Gardiner was not present in the office on 28 November 1997 when the argument between Ms Potts and Mr Waters occurred, and only learned about it afterwards. Later she was told that Ms Potts was not returning but said that neither Mr Tucker, nor Mr Ross, ever told her that Ms Potts had been sacked. 129 At about the time the Star closed in September 1999, Ms Gardiner said that Mr Ross and Mr Tucker gave her reasons for the closure, "They told me that the industrial relations ruling that Leanne Potts was involved in, that basically the ruling was that they had to pay part-time staff full-time, that was the last straw, that it was not financially viable". 130 Ms Gardiner said that her mother drew her attention to the subject article, about the time of publication. She told her that her friends had seen it and had been talking about it and, "they basically raised doubts about Ross". Ms Gardiner said that, in that period, when she went into the shops of Mullumbimby, people who knew of her previous association with the Star would raise the article with her. She said that within a matter of weeks she spoke to Mr Tucker about it and when asked what she noticed about him, replied, "It was the tone of voice, and I know his kind of voice, when he was upset about things. It's what he doesn't say which tells you that he is upset. He tends to brood on things and he would have said, I would have drawn his attention to it and he would have said something like, Yeah, and he was very unhappy about it". 131 Having spent most of her life around Mullumbimby up to December 1999, Ms Gardiner said that she moved in circles which encompassed both those who had lived in the area for generations, whom she described as "the old traditional people", and less conservative newer arrivals. There was this further evidence given in response to questioning by Mr Hale: "Q. What was his reputation in the circles in which you moved? A. In the more old traditional people, there was high respect, in the other people there was, sometimes there was respect, grudging respect, sometimes there was out right hatred. Q. In the more traditional circles, what was Ross Tucker's reputation in terms of honesty and integrity? A. Impeccable. Q. What about in terms of his reputation, in terms of the manner in which he behaved? A. Once again impeccable. Q. What was his reputation in dealing with women? A. Once again impeccable, no question. Q. In the circles in which you moved have you ever heard it said that Mr Tucker was the sort of person who abused employees by belittling them or shouting at them? A. No. Q. Have you ever heard it suggested that he was the sort of person who would shout and abuse and use obscene language when speaking to employees? A. No. Q. Have you ever heard it suggested that Mr Tucker was a dishonourable person? A. No. Q. Or a person who would welch on deals? A. No." 132 In cross-examination by Mr Connell, Ms Gardiner denied that the newspaper "was very often a pretty tense place for people to work" and that there were a number of people who were "pretty unhappy". Although she agreed that Mrs Bartlett had moments of unhappiness, she denied that Mrs Bartlett was unhappy a lot of the time, and she also denied that moral at the newspaper was "pretty bad". She acknowledged that Mr Tucker sometimes had heated arguments with Ms Ellis, in which voices were raised. 133 In re-examination, Mr Hale asked Ms Gardiner about the disagreements which, according to her evidence, Mr Tucker had had with Leanne Ellis. There was this exchange: "Q. Could you describe the nature of those disagreements; what was the issue? A. I can't remember the exact issue, like if it was that story, or if it was just an overall sense of what direction we're going. So I can't tell you. Q. And when you say it's an argument, could you describe the level of debate that you're talking about? A. Just two people putting their points very firmly. Q. Was it hostile? A. It could get - you know, both of them could get hostile, yeah, as it accelerated. Q. Sorry? A. Wouldn't start off full on, but it could accelerate and be both sort of this is what I think, and the other one, coming back with what they think. Q. That is what you're describing? A. Yeah I think that's what happened. Q. Over editorial policy? A. Yeah I think that happened a couple of times." 134 Mr Hale also raised with Ms Gardiner her evidence that Ms Potts discussed personal problems with her: "Q. Mr Connell asked you certain questions which I think was to this effect, that it was not uncommon for women to discuss their personal problems, and I think you agreed? A. Yeah, at lunch times. Q. Was the manner in which Mrs Potts discussed her personal problems with you consistent with the normal way women discuss their problems? A. No, it was much more intense. Q. Would you please describe? A. It was a repeated broaching of the same subjects, sensitive subjects, about whether she should leave her husband. No-one else in the office was coming to me and asking me that question. Q. With what regularity would she raise this topic? A. Couple of times a week." 135 Another witness able to give evidence, both as to Mr Tucker's reputation and as to other issues raised in the case was Ms Brenda Bartlett, who since 1978 has lived in the Mullumbimby area. She had some magazine and newspaper experience including a period with the Byron Shire Echo, prior to being contacted by Mr Ross in either 1996 or 1997 and asked to work for the Star, when it commenced publication. She became an employee from the commencement until weekly publication ceased in September 1999. Initially, Ms Bartlett said that she was involved with data imput but later became involved in other aspects of the newspaper. She became its graphic artist; was responsible for putting advertising copy into the computer and was responsible for liaising with the sales staff in relation to the positioning etc. of advertising copy. 136 Ms Bartlett met Ms Potts when she commenced with the newspaper in July 1997. According to Ms Bartlett, Ms Potts thereafter was rarely in the office. As to her relationship with other staff, there was this exchange with Mr Hale: "Q. What did you observe about the way in which she got with other employees? A. Mostly okay but she was an aggressive person and she could cause quite - just the way she spoke, you sort of went "uh" and got your back up? Q. How did you get on with her? A. Not very well I'm afraid; I started off okay. Q. Why was that? A. Because she was totally uncooperative. She knew deadline was 2 o'clock and it would be 6 o'clock before she got it back - sometimes she didn't bother even bringing it in, so it was very frustrating. Q. Can you recall the relationships she had with Graham Waters? A. Volatile. Q. In what way? A. She yelled and screamed and swore and all the time she just lauded it over him and the other sales team at that time." 137 She said that Mr Tucker was always at the newspaper office on Thursdays and that he was there regularly at other times, but not for the whole day. She gave this evidence regarding Mr Tucker's relationship with other staff: "Q. What did you observe about the way in which he dealt with staff? A. Fine. Q. Did you ever observe him swearing at staff? A. Never. Q. Did you in fact ever observe him swearing? A. Never. Q. Did you ever-- A. Oh, pardon me, he did say bloody once. Q. Did you ever observe him abusing staff? A. Never. Q. Did you ever observe Mr Tucker yelling at any employee? A. Never." 138 She said on occasions she spoke to both Mr Tucker and Mr Ross about what she described as Ms Potts' "total disruption". She said that Mr Tucker dismissed her complaints with comments, such as, "Come on Brenda, she's good at her job", and Mr Ross took the same attitude. Refreshing her recollection from a diary, parts of which became exhibit 1D-46, Ms Bartlett gave evidence of various incidents involving Ms Potts from which it appeared plain that she disliked Ms Potts and regarded her as a disruptive influence in the office. Taken to the last day on which Ms Potts worked for the Star, namely, 28 November 1997, Ms Bartlett said she had a clear recollection of the events of the day. She said that as soon as Ms Potts entered the office that day, she started yelling and swearing at Mr Waters, who held up his hands in a gesture as if to stop her. She then turned to Mr Duncan Tucker and said, "Where's my pay?". Both Ms Bartlett and Mr Duncan Tucker said words, to the effect of, "Calm down Leanne", who, according to Ms Bartlett, then "stormed" out but immediately returned once again to demand of Duncan Tucker, "Where is my pay?". At one point, in response to Mr Duncan Tucker's request that she "calm down", she told him to "Shut up". 139 As to Mr Tucker's reputation in the community, Ms Bartlett said that he was regarded as an honourable and honest man, who was very approachable. She had never heard it suggested that Mr Tucker was a man who would welch on deals; who would abuse employees or would shout at employees in obscene language. 140 When Mr Connell, in cross-examination, suggested to Ms Bartlett that the newspaper was a very unhappy work environment, she replied, "No, I am sorry, I didn't. We had a lot of hassles – it was a brand new paper and there were a lot of teething problems". When it was suggested there was conflict between the staff, she replied, "A lot of conflict between the staff, no – conflict with the computer. There was – the other editor, Leanne Ellis, she could cause friction". 141 Cross-examined to the effect that entries in the diary gave the lie to her evidence that the office environment was a pleasant workplace, she conceded that on occasions there were robust conversations between various staff members, including Mr Duncan Tucker, but she maintained her position that Mr Ross Tucker did not behave towards the staff in any untoward manner whatsoever. She pointed out that of necessity, in the days leading up to the production of the newspaper there was considerable pressure and mistakes were made which, on occasions led to critical responses by Mr Tucker and Mr Ross. 142 Mrs Jennifer Tucker said she married Mr Tucker in 1987, she too being an officer in the Catering Corps. She retired with the rank of major in 1991 and moved with her husband to Byron Shire in the same year. From 1994 until 1998, she was employed as a cook with Meals on Wheels but, nevertheless, assisted with the newspaper from time to time on an honorary basis. Although she met Ms Potts on occasions, she said that she did not have much contact with her. In February 1998, she left her employment with Meals on Wheels and became a full-time employee of the newspaper, becoming involved in administration and payroll duties, in conjunction with Mr Duncan Tucker. 143 She made it her business to make inquiries as to the provisions of the relevant award in relation to part-time employees and upon that subject wrote to the Department of Industrial Relations seeking information. In light of the reply received to her letter, she came to the belief that the award had no application to part-time employees. She said that she was involved in a discussion about the closing down of the Star about a month before the last weekly edition on 25 September 1999. Asked why the newspaper was closed, she replied, "By that stage we had had the judgment from the Magistrates Court on Ms Potts' claim for under payment and the implication was, as I understood it, that all of our part-time casual employees would need to be paid a full-time wage and the paper could not afford to do that". 144 She confirmed that when publication of the Star as a monthly newspaper commenced at the end of October 1999, the only people working on production were her husband, Mr Ross, and herself. 145 In relation to the subject article, Mrs Tucker said that her attention was drawn to it by an acquaintance in a supermarket. This prompted her to obtain a copy and take it home. Having read the article her initial reaction was, "I just couldn't believe it. I was shocked and the closer I read it, I just became very upset". Later she spoke to her husband and asked him to read the article carefully, after which she said he became "very quiet, quite withdrawn". She said that she knew that this reaction indicated anger. The next day she had business in Mullumbimby township where a female acquaintance asked her if the article was true. She told her husband about this and of her conversation the previous day when the article was first drawn to her attention. She suggested that he call for a retraction and apology. 146 She said that Mr Tucker did type out a letter seeking a retraction and she drove him to the office of Echo so that he could deliver it, after which she drove him to the Ex-Service Club where he normally drank with male friends on a Friday afternoon. It was her practice to join the men about an hour later. When she returned to the club, "I noticed that I was being looked at, and it was in such a way that made me feel quite uncomfortable". This feeling of discomfort caused her to seek out her husband and remain with him, rather than follow her usual practice of joining a group of women. In the group of men with her husband, she said, "Things were a bit strained and there wasn't a relaxed flow of conversation". As a consequence, she and Mr Tucker left the club earlier than usual. She said that since that night their social life has changed. They rarely go to the club which they used to frequent each Friday night. She has also noticed a change in her husband: "Ross had changed. Ross always used to tell me that I shouldn't worry about what was written about him. He used to say that whilst people he didn't respect were writing these things it didn't concern him, but when people he did respect started saying things about him he would then get concerned and that's what happened. People that he respected showed that they doubted and he was hurt by that. I guess he was angry that things had been said that just weren't true and he was uncomfortable in company." 147 Asked further about her observations, there was this exchange: "Q. From your observation, how did those circumstances affect Ross? A. Well, they affected him very much. When I left the Army in 91 he didn't ask, he retired before I did and there was no discussion on his part that I leave the Army. My career was still moving forward. It was my decision to be with him in Mullumbimby, a place which he had known and loved for a long time and I think Ross felt personally responsible that eight years after he had made quite a major decision in my life, that I was in a position where I was feeling uncomfortable and embarrassed in company, which he had never seen before because being in the Army we were quite social. I was a very confident person and I guess this just knocked me. Q. And the impact upon him of your upset? A. Well, if I'm upset, he's upset. Ross has known from the time he left the Army and became involved in local politics that I have been there supporting him and it was very upsetting, a very stressful time for us actually and I don't recall a time when things were so bad. A real low point." 148 Mrs Joan Towers said that she has been in business with her husband in Mullumbimby, Ray Towers' Carpets since 1982. She met Mr Tucker about 1991 when they were both members of the Mullumbimby Chamber of Commerce. Thereafter, Mr Tucker and his wife became involved socially with Mr and Mrs Towers. In the period from 1991 to 1999, Mrs Towers said that she never observed Mr Tucker abuse anyone or swear at anyone. As to his conduct towards women, she said, "Ross is a very, the way I would describe him, a gentle man as well as a gentleman and I have never seen him derogatory to women or about women". Asked about Mr Tucker's reputation, she said, "Everybody thought very highly of him because of his army record and their dealings with him. They thought he was, as I said before, a gentleman". She had never heard it suggested that he was a dishonourable person; or a dishonest person; or a person who did not honour his contractual obligations; or that he welched on deals; or that he was a domineering employer who abused his employees; or that he shouted and used obscene language. 149 The business Ray Towers' Carpets became an advertiser in the Star and Mrs Towers said that, as a consequence, members of the staff of the newspaper came to their business regularly to obtain advertisements and copy. She said that never once in her hearing did any of the women who came to their shop say anything derogatory about Mr Tucker. 150 She said that she read the subject article about the time it was published -"I was amazed because I didn't believe that anything that was printed in it was related to the Ross Tucker that I knew". Asked how it affected her view of Mr Tucker, she said, "Well, I wondered if there was a side of him that I hadn't known and that – in the back of my mind somewhere I thought, well, maybe he may have said these things or he may have treated his staff that way, if it's printed in the paper". She said she was referring to what was said in the article about him swearing at Ms Potts and about his reference to her children. 151 Mrs Towers said that when she spoke to Mr Tucker about the article he told her that what was said about him was not true and that he was seeking an apology. Subsequently, she said members of her family and friends referred to the article in conversation with her, their general reaction being of surprise, that Mr Tucker would act in the way depicted. She said about a dozen customers of the shop also commented about the article, saying things like, "Why have you got this paper on your desk, when it looks like Ross is a crook because of what he is doing in the paper". 152 Mrs Towers said that as a result of the subject article, Ray Towers Carpets stopped advertising in the Star – "we decided that sometimes guilt by association sticks in customer's minds and our business was too important to us to be associated with the insinuations in the paper and so we decided to withdraw our advertising". She said that this action was deferred for a period while they waited for Byron Shire Echo to publish an apology. She said in her mind, "If there wasn't an apology, maybe there may have been something in what was said". She said advertising with the Star was resumed after Mr Tucker told her that he was taking the matter to court. 153 Mr Donald Page, the member for Ballina in the Parliament of NSW, said that he has represented that seat continuously since 1988 and that it has within its boundaries the area of Byron Council. He said he was acquainted with Mr Tucker, who "has a reputation as being a conservative person who wants to see traditional values upheld. He is a person who is not afraid to say what he thinks and is seen by quite a few people in the community as being a person who supports conservative values". Asked further about Mr Tucker's reputation, Mr Page said, "His reputation in the community, as far as I am aware and certainly the feedback to me, is that he is an honourable person. You may not like everything he says but he has a reputation of being an honourable person". His evidence was to the effect that Mr Tucker did not have a reputation as a domineering employer who abuses employees; or as someone who belittles employees; or is given to shouting and using abusive language; or as someone who would refuse to honour an agreement. 154 Asked about the possible impact of the first imputation found by the jury, particularly upon that section of the community likely to be political supporters of Mr Tucker, Mr Page replied, "Well, the implication here is that he acted dishonourably and among his supporters I would think they would think that was very much out of character. It is out of character in terms of my understanding and contact with Mr Tucker during the time that I have known him; that kind of allegation would be surprising and I think potentially quite damaging to Mr Tucker, because people would not be expecting him to be behaving in any dishonourable way". 155 Mr Lawrence Anthony gave evidence to similar effect as the evidence of Mr Page. Mr Anthony was the member for Richmond in the Australian Parliament from 1996 until 2004, the area of Byron Council being included within his electorate. He was a minister in the Government for 5 years. He said that when he read the subject article he was surprised by its references to Mr Tucker whom he had known in a number of different capacities in the community. Asked whether it forced him to question his views about Mr Tucker, he answered, "There was a seed of doubt sown. As I said, I had very straight forward dealings with Ross over a fairly long period of time because he was a member of the Byron Shire Council and I regularly used to meet with councils. Elements that came out were – I was surprised by his personality, that he was abusing people because that was not the type of person I knew, yes. It raised an interest". Asked about references to the use of obscene language, Mr Anthony responded, "Well, it's not the Ross Tucker I know at all". 156 Regarding Mr Tucker's reputation, Mr Anthony said, "Well, my view, and certainly the view amongst the people I mixed with, he was very courteous, he was polite, he was honourable in his business dealings, yes, that's the view I had". He said, in effect, that Mr Tucker did not have the reputation of a man who welched on deals; of a domineering employer who abused employees; of a person who belittled employees or a person who used obscene language. He added, "I always thought Mr Ross Tucker was a pretty straight shooting type of guy. He had had an army career, he was a farmer as well – I suppose there were some other points I would have had in common with him. He always had a pretty good reputation. Although politically, people had very robust views on Mr Tucker, and I suppose with me too, in my former life". 157 Mr Anthony Parker, a licensed real estate agent, but formerly manager of the Mullumbimby branch of the ANZ bank, said that he met Mr Tucker about 1990 and thereafter continued to meet him on social occasions. They became friends and had a mutual involvement with the Mullumbimby Rugby League Football Club. Asked as to Mr Tucker's reputation in the period up to 1999, he replied, "Well, Ross always enjoyed a good reputation in the town and with my circle of friends and with other people, they all found Ross to be a hard working man, an honest man and very fair, so he had, he enjoyed a good reputation in town". He said that he had never heard any suggestion that Mr Tucker was dishonest or that he was a man who "welched" on deals. 158 Mr Parker said that he had occasion to speak to Mr Tucker soon after reading the subject article. He said that Mr Tucker seemed upset and agitated about it and said, "Fast Buck$ is not going to get away with it". A number of people thereafter spoke to him about the article and asked whether there was any truth in it. 159 Mr Rheinhart Tilgner was another witness called in Mr Tucker's case who gave evidence as to his reputation. Mr Tilgner, a retired businessman living at Mullumbimby, said that he met Mr Tucker in 1990 or 1991 and that he and his wife became friendly with Mr Tucker and his wife. He said he made contributions to Mr Tucker's political campaigns and that his business advertised regularly in the Star. 160 As to Mr Tucker's reputation, he said, "He was known as a straight shooter. We all knew he was a councillor and we knew – well pardon the expression, that he would cut through the bullshit very easily and he was one of those guys who could come down to facts and realities very quickly, cutting through all this, I don't know how to say it, cutting through the unnecessary things that were going on and he would come up with a clear and pre-defined sort of answer and it made sense most of the time". As to his honesty, Mr Tilgner said, "That was part of it, when you got an opinion from Tucker in all the dealings I have had with him, he was known as an honest person. I have never heard anybody say he was dishonest or lying about anything. If he did, I don't know about it, but his reputation was such that he was known as an honest man amongst my friends". 161 Regarding the honouring of obligations, Mr Tilgner said, "When Mr Tucker said something, he would follow it up. That was his reputation. It is a done deal. You do a deal with him, a handshake over the fence. You don't have to, or need any paperwork, so to speak". Mr Tilgner said that Mr Tucker's behaviour towards his wife and other friends' wives, "was always impeccable and that he was well liked". 162 He also said, in effect, that it was not part of Mr Tucker's reputation that he abused employees; or that he shouted and used obscene language when dealing with employees. His reaction was "disbelief" when he read the subject article but his wife suggested to him that if the article were true, they should consider their relationship with Mr Tucker. 163 On the Friday following the publication, Mr Tilgner went to the RSL club as was his usual practice to meet a group of friends who included Mr Tucker. Initially, Mr Tucker was not present and there was discussion about the newspaper article. Questions were raised as to whether it could be true. He expressed his doubts but said that if it were true, he would be very disappointed and would speak to Mr Tucker about it. While the group was still discussing the article, Mr Tucker arrived. Mr Tilgner described his mood as "stressed out". Mr Tilgner said he took Mr Tucker aside and asked him whether the things published in the article were true. Mr Tilgner accepted Mr Tucker's denial as truthful. They then rejoined the group as to which Mr Tilgner gave the following evidence: "Q. What was his mood like during that therapy session that afternoon at the pub? A. Well it is hard to describe, like somebody that just had been betrayed by his best friend or dismay that you get from something happening to you kind of thing. Q. Was he quieter than normal? A. Yes, definitely. Q. How did the rest of the group act towards him? A. Well I of course went back to the table and Ross Tucker joined of course and I would think by then they knew he was denying it all and it sort of, yeah, I don't think everybody was quite convinced, 100 per cent convinced, but well, you are polite, as you are with the person you always have a drink with and, I mean you don't accuse somebody of something you don't know the full story about, so." Later, he said that his wife and he agreed to accept Mr Tucker's denials and continued to support him. 164 Mr John Walpole who retired recently from the Australian Army with the rank of colonel, knew Mr Tucker during their military service. He described Mr Tucker as "a good leader – good leaders don't abuse or swear at soldiers". He said that his approach to female soldiers, who were a significant proportion of the soldiers in the Catering Corps, was to treat them the same as he treated male soldiers. He never observed him abusing females, or acting towards female soldiers in a sexist way. As to Mr Tucker's reputation prior to 1999, Mr Walpole said, "He was a well-thought of officer who worked hard and looked after his men and women, he looked after their welfare and their training. I would say that he was popular because he was easy to get along with, but also fair, firm and fair, and would also have got the job done and was very well thought of. He also was the first officer in the corps to be selected to attend command and staff college, which was a feather in his cap and it showed to the rest of the army just what a fine officer he was". He said that he had never heard him described as dishonourable and that his reputation was as someone who stuck to his word. 165 Mr Charlie Lynn, a member of the Legislative Council of NSW since October 1995, and previously from 1965 until 1986 a member of the Australian Army, said that, in the course of his army service, he met Mr Tucker about 1967 or 1968 and they attended Staff College together in 1981. Within army circles, Mr Lynn said Mr Tucker's reputation was very high and he was highly regarded and highly respected. He said that his reputation, in respect of trust and integrity was beyond question. Asked about the way Mr Tucker inter-reacted with soldiers, particularly with subordinates, Mr Lynn replied, "Roscoe is a natural leader and you know, yes, he is a natural leader. He is one of those blokes that if you went to war, you would want him in the platoon beside you". He said that he never observed him abusing or yelling or swearing at subordinates. 166 Mr Lynn said that in the Catering Corps there were a lot of female soldiers. Asked how Mr Tucker inter-acted with them, he replied, "Just normal. You know formal. No different to the males soldiers. I mean they were pretty conscious of that". Asked whether he ever observed Mr Tucker abusing or swearing at females soldiers, he replied, "No, no. It is not his character. Roscoe is known for his – he's got you know, humour and I, I would go so far as to say he was one of the characters in the army". 167 Mr Lynn said that Mr Tucker's name is often mentioned, from time to time, in parliamentary and political circumstances as a person with conservative views in the Byron Council Area. Asked as to Mr Tucker's reputation in those circles, he replied, "Well, it is pretty much the same as it was in the army. It is beyond question. People who have spoken to me have the highest regard, the highest respect for him. 168 Finally, in Mr Tucker's case, I make reference to the evidence of Mr Maxwell Eastcott- Layton. Mr Eastcott-Layton was general manager of Byron Council in the period from 1993 until 1996, during which time he had, what appears to have been, a close association with Mr Tucker. He said he had the opportunity to observe Mr Tucker's inter-reaction with employees and other staff of the council, as to which he said, "He was a fair but fairly demanding person, demanding in the sense that he expected a certain quality of work from the staff, but he was certainly a fair person and honest in his dealings with the staff. In relation to Mr Tucker's reputation, Mr Eastcott-Layton said that he had a reputation for being fair; for being honest; for being very community minded; and for being a good representative for the community of representative of Byron. In wider circles in which Mr Eastcott-Layton moved, he said, "Mr Tucker was certainly held in high regard as an elected councillor. He was seen to be someone who is honest, who was approachable, and certainly a hard worker on behalf of the constituents. 169 Although Mr Eastcott-Layton was not living in the Byron area when the subject article was published, he was told about it and subsequently spoke to Mr Tucker about it by telephone. He said Mr Tucker said words to the effect, "I just don't know where they would have got this information from or why they would print it". CASE FOR THE DEFENDANTS: 170 Echo, in support of its case, called oral evidence from Ms Michelle Campbell, Ms Cheryl Lindsay, Ms Melissa Begg and Ms Leanne Potts. No oral evidence was called by Mr Buck$. 171 Ms Campbell, a solicitor, conducted the prosecution of Comptran in 1999, before the Chief Industrial Magistrate. She said that Ms Potts testified to the effect that, from the outset, she was employed on a full-time basis. 172 Ms Cheryl Lindsay worked for the Star, first as part-time sales representative, and then as advertising manager. During the course of examination in chief, Mr Connell sought to have her allocate or apportion responsibility as between herself and other staff members, including Ms Potts, for advertisements which appeared in a bundle of issues of the Star shown to her. Although Ms Lindsay attempted to do so, it became, in my opinion, a very inconclusive exercise, meaning by that no criticism of Ms Lindsay. Frequently, however, as it seemed to me, more than one staff member was shown to be involved, depending, in particular, upon whether the advertisement related to a regular advertiser or not. In the result, upon this issue, I did not find Ms Lindsay's evidence to be of much assistance. In any event, it was admitted by Mr Hale that Ms Potts was an effective sales person and that was not at issue in the case. 173 Although she worked only part-time, Ms Lindsay said that she attended the office most days and that, according to her observation, Ms Potts also attended the office most days. She said that she also regularly telephoned Ms Potts when they were not together in the office to discuss work related matters. Ms Lindsay testified that, on a few occasions, she had seen Mr Tucker in apparently angry conversation with Ms Potts, but she did not actually hear any words used. One of those occasions was after the sales representatives meeting when the subject of payment by commission was suggested. She said that she could also recall Mr Tucker saying on one occasion, "What we need around here is more pants than skirts", but she could not recall his demeanour when he said this. 174 On 28 November 1997, Ms Lindsay said that she was asked to go to Mr Ross' house and when she arrived, Mr Ross told her that Ms Potts would no longer be working for the newspaper. According to Ms Lindsay, Ms Potts arrived at about the time Mr Ross was telling her this and seemed distressed and upset. She said Mr Ross said to Ms Potts, "There is nothing I can do. It's over". The response of Ms Potts was to say that she wanted her job back, to which Mr Ross replied that it would not be possible and that "Mr Tucker would not bend on the issue". 175 She said that Mr Tucker himself then arrived and she left at the same time. A short time later, however, Ms Lindsay said that she met Ms Potts who was crying and shaking and very distressed. According to Ms Lindsay, Ms Potts told her that Mr Tucker had said to her, "I don't care about you or your f…… kids", or words to that effect. 176 In cross-examination by Mr Hale, Ms Lindsay said that she had not been contacted about giving evidence in the case until a matter of days before the hearing and that she had had no previous occasion to contemplate the events of 1997 about which she testified. She agreed that with the passage of time her recollection may not have been as good as it would have been at an earlier time. 177 Ms Begg, said that she could recall being in a room at the courthouse, allocated by the Chamber Magistrate, with Mr Ross and discussing proposals for the payment of the judgment debt by instalments. She also examined documents of Comptran produced by Mr Ross. 178 Ms Begg said that the following day she received instructions, by telephone, from Ms Potts that she would take an upfront payment of $4,000 in full satisfaction of the judgment debt and she later conveyed an offer in those terms to Mr Ross, by telephone. According to Ms Potts, Mr Ross telephoned her the following day and after verifying that the offer to take $4,000 included the sum of $1,000 for out of pocket expenses, which had been discussed previously, said that the offer to accept $4,000 up front in satisfaction of the judgment debt was accepted. She said that she thereupon conveyed the acceptance to Ms Potts and set about drafting a document to give effect to the agreement. This document was approved by Ms Potts and Ms Begg was instructed to make it available to Mr Ross, which she did, leaving it in her office for him to collect. 179 Asked what happened next, she said, "There was – became apparent in communication that there was a breakdown in negotiations once the draft document – draft agreement was picked up". She said she reached this conclusion in light of a telephone conversation with Mr Ross, but could not recall precisely what he said to her. She said she responded to Mr Ross with words to the effect that she thought the terms of the agreement reached were clear and she could not understand any misunderstanding. Following this telephone conversation, she said that she decided to put something in writing to record what had occurred from her client's point of view and thereupon drafted and sent the letter dated 30 December 1999, quoted above at paragraph 46. 180 It appears from Ms Begg's evidence that she next spoke to Mr Ross on 7 December. She said it was an uncomfortable conversation for her because she was accused of leaking information from the public examination on 23 November. Towards the end of the conversation however, they discussed the furtherance of negotiations, during which, as it seems, Mr Ross offered, on behalf of the company, to pay a total of $4,000 by instalments of $1,000 up front and $500 a month thereafter. She, apparently, succeeded in raising the initial payment part of the offer to $1,500. She conveyed the offer to Ms Potts in a telephone conversation at 5pm on 7 December. Subsequently, she received a letter from Mr Ross dated 10 December, omitting formal parts, as follows: "The offer by Ms Potts to reduce our debt to her to a once only and final payment of $4,0,00 is a generous offer and we are grateful to her for trying to clear this matter. As your are aware from the examination of our finances it is not possible for us to raise $4,000 in a lump sum, we are however committed to finalizing this matter as soon as possible. The Saturday Star is closed as a tabloid but is being circulated as a newsletter type production which is self funded but will not produce extra funds for the Saturday Star. The Saturday Star does however have funds in bad debt accounts of which I envisage will be collected over a six month period. While we cannot raise the $4,000 in a lump sum we can offer Ms Potts $1,500 immediately with payments of $500 per month for five months payable on the 10th of consecutive months beginning 10th January 2000. Once again we are committed to finalizing this matter and an early response to this offer would be appreciated." 181 Ms Begg then wrote to Comptran on 16 December, again omitting formal parts, as follows: "I refer to your letter of 10 December 1999 and to the negotiations generally that have taken place in respect of this matter and advise that my client is willing to settle her claim on either one or other of the following bases; 1. She will accept a lump sum payment in the sum of $4,000 to be paid within seven (7) days, in full and final satisfaction of the judgment; or 2. She will require the full amount of the judgment, being $7,348.59 as at today's date, to be paid by way of instalments as follows: (a) An initial lump sum of $1,500 to be paid within seven (7) days. (b) Payments of $500 per month there after until the full amount to the judgment have been paid. I look forward to hearing from you in respect of the above." 182 Mr Ross replied by letter of 21 December 1999, omitting formal parts: "We refer to your letter of 16 December and the request therein by Ms Potts to settle this matter. We have considered further our current financial situation and have been given guarantees by a number of our debtors that they will finalise their account by the end of this month. That is by the end of December 1999. We therefore give an undertaking to you that we will forward a cheque to the value of $4,000 to your office by 22 January 2000. This will occur irrespective of whether our debtors honour their guarantees. We ask that you put this to Ms Potts with our regret that this matter cannot be finalised earlier." 183 Subsequently a formal agreement was signed whereby Ms Potts agreed to accept $4,000 in satisfaction of the judgment debt due to her, and $4,000 was in fact paid. In the meantime, as indicated earlier, Ms Begg had issued a writ of execution and the Sheriff had seized some furniture etc. in the office of the Star. 184 In cross-examination Mr Hale put to Ms Begg that she would not, in her letter of 30 November 1999, knowingly put forward a false version of events. She replied that it was a "sanitised" version and that there were nuances which were not communicated in the letter. 185 Ms Begg was cross-examined at some length about the negotiations she conducted in the period up to 30 November 1999. The thrust of the cross-examination, as I understand it, was to establish that her letter of 30 November 1999 correctly recorded what had occurred. She, on the other hand, sought to maintain her understanding that an agreement had been reached, and was accurately reflected in the draft agreement. 186 I now turn to make reference to the evidence of the final witness in Echo's case, Ms Leanne Potts. Prior to her employment by Comptran in July 1997, she had experience of working for newspapers at Port Macquarie, Armidale and Caboolture. She claims that her first contact with anyone at the Star was by telephone with Ms Lindsay. This seems inconsistent with the fact that she sent the letter quoted in paragraph 23, referring to a conversation with Mr Tucker. However, her evidence was that she was then asked to an interview which was actually conducted by Ms Lindsay, although in the presence of Mr Tucker, who said very little. She said that Ms Lindsay told her a full-time position was available, and that she agreed to work for the first two weeks on commission only, "to prove to Cheryl and to Ross Tucker that I could do the job". She said she started about 29 July 1997 and thereafter worked Monday to Friday from 8.30am to 5 or 6pm, or sometimes later particularly on Wednesdays and Thursdays when, if necessary she worked to 8pm or 9pm. 187 Towards the end of the first week of her employment, she said that she had a conversation with Mr Ross, which he initiated, during which, "He said that I did a very good job on the paper with the classifieds. He said he would love to be paying me more, and he said by the commission that was structured, he had actually given me extra in my pay". She said that the following week she had a further conversation about her remuneration but this time with Cheryl Lindsay. She said that she told Ms Lindsay that she would continue to work on commission for the rest of the week but wanted a salary like everyone else in the company after her commission period finished. She said that Ms Lindsay replied that she would see Mr Tucker and Mr Ross about it and added that she was only working for $200 per week and that she had signed an agreement to do so. Ms Potts said she told her that she was not prepared to work for such a sum. None of that conversation was incidentally put to Ms Lindsay. 188 Subsequently, she said she had a conversation with Mr Ross – "I said to Harold that I won't continue working, that I won't continue working for commission and I will not continue, and I would definitely not work for $200 a week. He said the paper was struggling, and most of the other employees were working for that, I just said no, I couldn't, I wasn't going to do that". 189 In the third week of her employment, she said that Mr Tucker and Mr Ross spoke to her, early on a Wednesday evening. Mr Tucker said, "You're doing a really great job. Just keep your hard toe boots on and don't worry about the other employees in the office". She said that after the third week when she received $250, she spoke to Ms Lindsay and Mr Ross and asked why it was only $250 – "They just told me that the paper wasn't making a lot of money and a lot of people were working on that account". Again, this conversation was not put to Ms Lindsay, nor was any conversation concerning the remuneration of Ms Potts. 190 According to Ms Potts, she continued to complain about the level of her salary to Ms Lindsay and to Mr Ross. She said that her complaint to Ms Lindsay was that she had been told that she was going to get a proper wage and Ms Lindsay replied, "Look this is the best I can do, I will go and see Ross Tucker, I will go and see Harold Ross about it for you". Later she said that Mr Ross and Mr Tucker offered to pay her $300 per week, to which she responded, "I am still really not happy with that". She said that Mr Ross, "repeated quite a lot to me that he wasn't taking wages, the paper was doing very poorly". 191 She then gave evidence about the sales staff meeting at which it was suggested that all sales staff be paid only on commission. Her version of what followed as recorded in the transcript was: "A. And I said, "That doesn't work, if the sales staff go on commission, why can't the whole lot of the staff, like the editorial staff, because I don't feel that is fair", and Ross Tucker said that I was being ridiculous, "You can't work out a commission basis on editorial staff", and I just said, "I don't think it is ridiculous that you are prepared to put - Ross Tucker, you are prepared to put all of us on commission - so you just can't do that", and Ross Tucker got quite enraged with the comment I made that "You just can't do it". Q. Did he say anything? A. Yes, Ross Tucker proceeded to tell the story about Harold started out working on commission, how everyone started out with nothing and he built his business up by doing that way, and this is what Harold ended up with, a lovely house. I just said, "I don't understand how that works, because you couldn't do that on commission basis on such a low commission scale that you were proposing to us". So he got quite really angry, because I questioned - Ross Tucker got quite angry because I questioned the story. I questioned the story and I thought it was really unreasonable to be saying that. Q. What happened next? A. Well, he yelled at me about - I said, "Clearly obviously I have missed out on something along the way, because I can't have a big house on what Ross pays, not on a commission of 10 to 12 percent you can't, that advertising". He then got quite red in the face and said, "That's it, that's the way it is going to be", quite angry." 192 Following this meeting, Ms Potts said she went home and during the afternoon either Mr Tucker or Mr Ross telephoned her and asked her to attend a meeting in the office about 6pm. She attended that meeting and what happened there was recounted by her in her testimony as follows: ""So I did get there. There was Harold Ross and Ross Tucker there behind the desk and I sat in front of the desk. Ross Tucker and Harold both had a discussion with me, both of them were - we were talking the three of us together - and had a discussion about how the Tony Carsberg Holden in Mullumbimby, how they all worked on commission. I just said, "They are selling cars, we are selling advertising, they are selling brand new cars there". I said, "It is just not relevant to even compare the two". They asked me what I was happy with. Both Harold and Ross Tucker asked me what sort of pay would I be happy with, and I just said, "I would like a normal wage, just like a normal person gets a normal wage, that didn't - who work very much, and I would just like a normal wage, like normal everyday people get". Also Harold and Ross Tucker said, "Well what do you think is fair" and then expressed again that I think what is fair - I felt that I was under pressure---- Q. Sorry, just what was said please? A. Well Ross Tucker - I said I wanted a normal wage again, a normal type of wage. "I am not greedy, I am not really unreasonable, I would like a normal wage", and Ross Tucker said to me, "Well, we will have to think about it", and Harold then said to me, "No, we don't need to think about it, that's fine, what you want you can get". And then they said, "Would you be happy with"---- Q. I am sorry, who said what? A. I have just been thrown, sorry. Q. You were saying somebody said something? HIS HONOUR: Q. "Would you be happy with" - who said this? A. Harold Ross and Ross Tucker, they both were discussing it, like together to me. Like talking to me together, if you understand what I mean. So both of them did say figures like together, like, as "$75 a day, plus a car allowance, a normal car allowance", and Ross Tucker actually said, "Well that's sort of the best we can do at this stage", and I agreed to it. But I didn't really - well I did---- CONNELL: Q. Can we please confine it to who said what. You said that Tucker said something about - I gather the gravamen of what you said is Mr Tucker proposed a figure to you. Can you remember what he said to you about that, what did he say to you, what did he propose to you? A. I actually can't recall the finer details of it, really I can't. I really can't recall the really finer details. I mean, there was a couple of things, a couple of matters, like a couple of figures. Like the proposal was quite "$70 a day, $75 a day", it wasn't just one, "Would you be happy with that", okay." 193 Ms Potts said she was again unhappy with the wages she received the following Friday, believing that they were too low and that they did not contain a component which she said she had agreed with Mr Ross and Mr Tucker on the previous Wednesday evening, namely, that she would be paid an allowance for proof reading the newspaper on the Thursday night. She said she then spoke again to Mr Ross: "I just said that it wasn't agreed upon, like, "We discussed it a week ago Harold, and this is not what we agreed upon, there was no proofreading money in it, there was no - like, the long hours I did". He said, "This is the best we can do with the situation" again. I asked to speak to him outside. "This is the best we can do with the situation and we are really happy with you" and along the same lines that was said again. I had to ask again." 194 At that stage Ms Potts said that she was working Monday to Friday from 8.30am until about 7pm and a lot later on Wednesday and Thursday evenings. 195 During September 1997, Ms Potts said she had further discussions with either Mr Ross or Mr Tucker in relation to her remuneration. Those discussions, according to her evidence, again involved Ms Lindsay. She said she asked Ms Lindsay why the job start employees were receiving more money than herself. Ms Lindsay could give her no explanation so she raised it with Mr Ross who told her that it was because half their wages were subsidised by the Government. She told Mr Tucker that this was unfair and he in reply told her to "mind her own business", which made her angry. 196 In relation to Graham Waters, she said that she would smell alcohol on him, each morning, that he was "really abrupt" and that he didn't accept assistance from her. She said that she told Mr Tucker, on more than one occasion, that he couldn't do the job and that he would not do what he was told. She said Mr Tucker's invariable response was that it was "his business". She said she also made complaints to Mr Ross about the incompetence of Mr Waters. 197 During his examination of Ms Potts, Mr Connell asked about an occasion in October 1997, when she had a meeting at Mr Ross' house and she proceeded to give evidence about such a meeting, although I am not convinced that she was not confusing it with the meeting on 28 November. In any event her evidence on the subject was to my mind, confused and confusing. It illustrates, perhaps, the difficulty I have experienced in accepting her as a reliable witness. The transcript commencing with Mr Connell's question records: "Q. Was there an occasion in October that you had a meeting at Mr Ross's house? A. Yes. Q. Can you tell me about that incident please and just taking one step at a time what took place and who said what to whom? A. In the October was that, did you say, I am sorry? Q. Yes? A. There was an argument in the office about Graham and Cheryl Lindsay was there and Graham was there and the young girl and I was quite upset and I went to Mr Ross's, he actually took me there, had to take me out of the office, and it was brought up about -- HIS HONOUR: Q. Where did you go? A. Harold Ross's house. CONNELL: Q. What took place there? A. Harold and I discussed about Graham and the other young lass and he said "You know I really understand that, you know, that he's hopeless and he can't get ads and can you just bear with us with it" and I said I could "But it's, you know, Mr Tucker treats me so bad about it like saying" - I said to Harold that "He's saying I am being unreasonable and should mind my own business" and I just, yeah, and Ross Tucker had rang at Harold's house and I heard Harold say "don't come down like at the moment" and he rang again and that is what happened and he just said "we just can't sack them like that". Q. Who said that? A. Harold Ross said to me "I understand how frustrating it is and I understand that". He said, "I totally understand. Because of the Jobstart or Jobseek thing, in the rules we just can't sack them". I said "I understand that, I totally understand that Harold, I totally understand it but it's just really unfair the way I get treated by Mr Tucker and the way he gets treated by Mr Tucker" and he, Mr Ross, also agreed with me about that. HIS HONOUR: Q. What did he say? A. Mr Ross said "I totally agree with you about that but you have got to understand my position" and I said, "What was that" and he just said he couldn't, they couldn't sack them or that because of the Jobstart. CONNELL: Q. Mrs Potts, you made reference to the fact that you said to Mr Ross, you referred to treatment by Mr Tucker, what were you referring to? A. Just over when I want to bring up with Mr Tucker about Graham's incompetence and that, that he would yell at me and tell me to mind my own business and said that I was always causing trouble. Q. You said he would yell at you. Did this happen on one occasion or more than one occasion? A. Quite a few occasions, not just about Mr Waters either, it was about Mrs Bartlett, Brenda Bartlett. Q. What was the incident with Mrs Bartlett or incidents, please? A. That the workload was too heavy for her and I -- Q. I need to know what you observed, what your observation was that you were talking about? A. I don't quite understand what you are wanting me to answer there? Q. You just referred to incidents with Mrs Bartlett, between Mr Tucker and Mrs Bartlett? A. Yeah. Q. I want you to describe those incidents, what you saw and heard? A. About myself? Q. No, about Mrs Bartlett? A. What I saw? Q. Yes? A. That she was terribly, terribly slow on the computer and then she would say to Mr Tucker that I kept pushing the deadline later and later and she couldn't cope with all the ads and that I don't treat her well and I actually heard Mrs Bartlett say, like in front of me, say -- OBJECTION (HALE) -- I mean Ross Tucker was there. Q. She said something to you in the presence of Mr Tucker? A. Yes. Q. And what was that? A. That I was being a smart arse, and bringing in, you know, just dumping all the ads on her that she couldn't cope with. I was just doing it, you know, in front of me. Q. Did Mr Tucker say anything to you on that occasion? A. That I was unreasonable to Brenda and I treat Brenda badly. Q. And did you respond? A. I said "I treat her the same way she treats me. I tried to treat her really nicely but she doesn't treat me nice". Q. Returning to the meeting in October, you have given evidence as to your discussing these events with Mr Ross. What happened next at that meeting? A. Ross Tucker then come down to the house and then Ross Tucker continued to say that I cause trouble in the office, "you don't run the place". I tried to say to him -- Q. Sorry, what was the tone of his voice when he said that to you? A. Like really hard and -- HIS HONOUR: I will take the short adjournment. CONNELL: Q. You were giving evidence as to a meeting at Mr Ross' house? A. Yes. Q. You recall where you were up to? A. No, sorry. Q. You recall you gave evidence that you were saying to Mr Ross that you were unhappy about things Mr Tucker had done? A. Yes. Q. Do you recall that? A. Yes. Q. Can you tell me, have you finished your evidence as to what you said to Mr Ross on that topic? A. About how Ross Tucker treats me all the time; I said that to Mr Ross. Q. Who said what next? A. And he said, "I know" - Harold Ross said, "I know, it's really frustrating" and I said, "No, it's more than frustrating because Ross Tucker yells at me about things, about Graham's incompetence when I bring it up, and Brenda Bartlett's incompetence. Q. Did he say anything in response? A. "I understand that" and he said that Ross Tucker is not tactical. Q. What happened next? A. Ross Tucker come to the house. Q. What happened then? A. I wanted to - I went to say - I want to talk, like, discuss the situation with you - to Ross Tucker - about what Graham has done and Brenda and what they have done, and he just kept yelling, keeps yelling and you couldn't keep - how would I say it - you would go to discuss something with him, to discuss it and he wouldn't discuss it. It was just all about yelling at me, telling me it's not my business. He was saying, you know, it's not my business - couldn't get a word in edgeways, and he just went on and on and on about not my business, yelling. I tried to explain to him the way I was feeling and how unfair it was and he always said over and over again, and he yelled, got really angry, that it's not my decision. I said, "I do understand that, that it's not my decision, but it's not fair" - and what I can recall he was always - it didn't matter what I said, it didn't matter what I said - he would just talk over the top of me. Q. Did you react in any particular way? A. Mmm, a lot of times in that particular time I tried to discuss with him, as I said, things in the office. Yes, I did - I looked out the window - I was sitting in Harold's - looked over Harold's table and looked out the window. He left, and when he would leave sometimes I walked to my car and tried to clean myself up and try and go back to work. Q. Did you go back to work? A. On that particular occasion, yes. Q. What did you do in the office? A. Pardon? Q. Did you do anything in the office on that afternoon, do you recall? A. Why did you go to the office? A. Back to the office? Q. Yes? A. On that first afternoon, yes. Q. Yes? A. Yes, I had to go back to get my pay." 198 Ms Potts gave evidence of an occasion on which Mr Tucker complained about the untidiness of her desk which she shared with him and described it as a "pigsty". Mr Tucker said, according to her testimony, "Your house must be like a pigsty". This was said in Mr Ross' presence and he said, "I have seen her house and it wasn't a pigsty". 199 In relation to the events of 28 November 1997, Ms Potts said she had an argument about a work related subject with Mr Waters, which ultimately involved Mr Duncan Tucker. This led to Ms Lindsay telephoning Mr Ross who asked Ms Potts and Ms Lindsay to go to his home. She did so, arriving at about the same time as Ms Lindsay. Her evidence as to what happened at Mr Ross' house on this occasion in the presence of both Mr Ross and Ms Lindsay was: "A. Harold then said to me that Duncan and Graham had told him what happened in the office, it was an outburst. I said to Graham - I said to Harold, "I mean, this is ridiculous. I'm doing all this work and I've worked half the night to get the adds - it surely can't be blamed on to me, you know, this can't keep being blamed on me, and being yelled at me all the time, and told to shut up and he can do what he wants", so I can't remember the precise answer - there was Cheryl, Harold and I. He discussed at Christmas time, "I'll get rid of them, I am going to get rid of Graham Waters. I understand that he's incompetent but you've just got to put up with it". I said, "I don't have to just put up with it". Ross Tucker then rang Harold Ross. I heard Harold Ross say to Ross Tucker, "Just don't come at the moment, don't come at the moment, just calm down, don't come". Then there was further discussion about Graham with myself and Harold, about him taking my folder and my file with the gardening feature in it and said, "He doesn't do anything. Why is he doing that?" He said, "You have just got to be patient". Ross Tucker than rang again and Cheryl was also there and he said, 'No, not at the moment, don't come down at the moment" - that's what I heard Harold then say. A couple of minutes later Ross Tucker then come down to the house, which was only like five doors up from the office, and Ross Tucker walked in and started yelling - sitting in the corner of the kitchen, started yelling at me, "I will not tolerate that sort of behaviour in my office". I said to Ross Tucker, "Just a minute, he was into my stuff, he swore at me. He also stuffed up the paper yesterday and I had to work back really late." He said, "I don't care", he said, "I had to send him home; he's stressed out. You've abused him" and he was screaming at me, just going, "Who do you think you are?" and he's saying, "You don't run this office. I do". He was yelling, and I just sat there and again I couldn't get a work in edgeways. I said, "So that's OK for him to do it but if I say something about it or say something, it's not OK". "This is my business. You don't run it. You don't decide who goes and who stays". I said, "I'm not trying to do that" and I got terribly upset. He kept yelling at me about how unacceptable my behaviour was. I kept saying to him, "Well, what about Graham's behaviour, what about Graham's behaviour?" Cheryl also interjected and said, "This is just not the first time. Just hang on a minute". Harold just sat there and just said - once he said to Ross Tucker, "Calm down, just lets all calm down". He said, "I won't calm down" and he was screaming and said, "You are trouble from day one". He was just yelling at me how I was trouble from day one and the thing I mainly remember is again not being able to get a word in and putting my side across, you know, to say what had happened, and I actually said, "You weren't in the office Ross, you weren't in there. I was in there. You weren't there, and neither were you Harold. I know what happened". He said, "I've heard from Duncan what happened" - Duncan, that was his brother, and I just said, "Well", and then he just said my attitude, I had a really bad attitude towards everyone, "It isn't just Graham, it was Brenda, everyone in the office" - I had a bad attitude and he will not tolerate it, just called me unprofessional, screamed at me that I was unprofessional, and in the end I actually just sat there. I didn't answer back. I just let him keep yelling at me. I just sat there in the end. Q. What happened next? A. Then he still was yelling and said, "I won't tolerate it" and he left, and then I just sat there and Cheryl and Harold were there and said - Harold actually said, "Oh, don't take it to heart too much". I said, "How can I not take it to heart Harold. How can you not take it to heart" and Harold said, "Oh well, you know". I just said, "It's not fair, it's just not fair, all the time I'm trying to do my best and its not fair that Graham gets away with it and he gets paid for it." He said, "Oh, I understand that" and then Cheryl left and Harold said, "Just wait, hold on for a while before you get your pay and go up then". So I did, walked in, walked around the corner in my car and I thought for a fair while about what had happened, walked in got my pay from Duncan Tucker. Ross Tucker was there, didn't speak. Got in the car, went home, crying all the way home. Again when I opened my cheque it was short again and it wasn't signed again." 200 Ms Potts said that Mr Ross called at her home two days later, Sunday 30 November. He brought a cheque to replace the unsigned cheque and, "he told me that I wasn't to come into the office again, leave it for a couple of weeks and you can come in one or two days a week". According to Ms Potts, she responded, "No, it's not fair. No, I work there full-time. No, it's not right", to which Mr Ross replied, "Well that's the way it's got to be, because Ross Tucker, Ross, you know, is still very stressed out about the situation that happened on Friday". She said that she called into the office the following Tuesday and asked Mr Tucker for a reference, which he provided. She said that she asked to speak to Mr Tucker in the alleyway outside the office and that they there had a conversation which she recounted as follows: "………. I said to him that "I would like to sort things out with you about employment", and he started yelling again and saying, "I run this business. You think I'm going to sack people just on your demand". He was screaming that and he goes like - and I just want to talk and I said, "It's not fair that he gets paid more and he doesn't do it", and Ross Tucker kept yelling at me, "I own this business. I run this business. You have no say in this business." I said, "I really need my job back, I really do. I want to work it out. I like my job, I need my job. I have three children. I have - it's nearly Christmas time." He knew - I can't say that - I said, "You know I need the money. I've got three children and its Christmas time" and he just screamed at me, I've got nothing to talk to you about and I don't give a fuck about you or your kids or what time of the f...ing year it is" and walked back inside." 201 About two hours after this conversation, she said that she met Ms Lindsay and told her what Mr Tucker said when she mentioned that it was Christmas time and she had 3 children. 202 Ms Potts then gave evidence about the proceedings she took in the Industrial Relations Commission and before the Chief Industrial Magistrate. Her evidence in regard to those matters was largely uncontentious and did not depart, in substance, from what I have previously related. 203 On or about October 30, 1999, Ms Potts said that her husband directed her attention to an article in the Star, exhibit K reproduced at paragraph 48 above. Asked her reaction to it, she answered, "It was just unbelievable that someone could write something like that. I was just really really upset. I was worried about what he would do to me and the place of employment I was working and I was devastated, I was upset. I mean, it is not true". Ms Potts said that she identified herself as the ex-employee referred to in the article. 204 She said that various people spoke to her about the article, in what I infer was an upsetting way. About a week or so later, Mr Buck$, whom she also knew as John Anderson, telephoned her in reference to the article and they arranged to meet, some days later. She related her conversation with Mr Buck$ in these terms: "Q. This is what you said to him, is it, "The main reason I am really upset"? A. Yes. Q. Yes, keep going? A. I said, "I am really upset, I am losing jobs over this, I don't know what to do, what can I do about this, how can I go about it". Q. What did he say? A. I said would you like to have a look at the orders at what happened because I took them along to show John, and he looked at the orders of what had happened in the industrial courts. He talked to me about - - Q. What did he say? A. To the best of my knowledge he asked me what had happened in the industrial courts. John also asked me about the hours I worked. I then told him the hours I had worked. Q. Well what did you say to him? A. That "I worked really really hard, I worked really hard, I worked my arse off and this is what I got, and there is nothing that I can do about it. I don't know what to do about it anymore", and I said to him, "I feel like I have got to justify myself to everyone". I showed him the reference that Ross Tucker had wrote for me which I said to him, I said to John, "Totally contradicts the reference of what he wrote about me here". He also asked me what hours I did. He asked me about the unfair dismissal. We discussed that. Q. What did you say to him? A. I said, "Another thing was that the case was dropped in the unfair dismissal". I said to John, "It was not dropped. So it was implied in this that it was dismissed. In actual fact it was heard and I had to get back to the Judge whether I wanted to go ahead with it in a couple of weeks or not, and he advised me that I should get a lawyer and I advised him that I couldn't afford a lawyer, and he said, 'I really think you need a lawyer to be able to do this successfully' and I couldn't afford a lawyer". And I said to John, "In fact what was written in here was like I had lost and it was dismissed against Ross Tucker and Harold Ross, when in actual fact that is what did not happen". Q. That is what you said to Mr Fast Buck$? A. Yes, and we also went through the article and I just said that my money was due. I said to John, "How come when my money was due, why would they close down the paper and now re-open it?" Like, I didn't understand that, and you know - so we discussed things like that, and he asked me did I want - that he would write a story, and I said yes I would. And I just said to him, "I am sick and tired of justifying myself to people in this community when this - I want my story to be told"." 205 Ms Potts said there were two further conversations with Mr Buck$, her evidence as to those conversations being as follows: "A. I honestly can't remember the exact - I will try and remember the exact, what it was about the article that he was writing that he asked me about, whether it was true or false. It was along them lines. Yeah, I actually remember now looking at this; he asked me about "The ex employee fought with every person in the office and eventually insisted that I sack two of my other employees or she would leave, when I refused she quit". He asked me what was that, "What was your take on that, is that true" and I said, "No, it wasn't". I did have quite a few arguments with people but it wasn't personally, it was like my ads being done wrong. So that was not right. Or incompetence. He also asked me about - I am trying to think - John said, "Did you believe that it really was you that closed the paper down". I said, "Definitely not". It wasn't a long conversation, it was just mainly clarifying some points and every single point I can't recall. Q. You said you are clarifying some points, but are you able to recall what each point was, or what some of the points were. Can you recall the subject matter? A. Well yes, about that I fought with everyone in the office. The subject also came up about - he said to me - I actually said to John, "It makes me look like I am really really incompetent" and he said to me, "Yes" and I said, "I want that put in because I am not incompetent" and he said, "Yes". Other points that he clarified with me, we discussed. Q. Do you recall what the points were? Take your time, do you recall the subject matter? A. Yes, the five very faithful employees that lost their job due to me. Q. Do you recall what was said about that? A. That I said that was just utterly ridiculous, it was just utterly ridiculous and I didn't know who - I said to John - I don't know who the five very faithful employees were, I knew one of them was Sue Gardiner, and that's all I knew". I said to John, when I recollect on that later, "I caused them to lose their jobs? That is what is wrote in the article. Not only was it written that I am incompetent, it is also saying that I have lost other people's jobs over it", so because I was angry and I wanted to get that point across to John. HIS HONOUR: Q. You are only being asked what you said to him? A. Yes, so I said that to him. CONNELL: Q. You said what to him? A. "How can they write after two years that five very faithful employees lost their jobs because of me?" Q. Do you recall any other subject matter of the discussion with him on that occasion? A. That I started to negotiate - I said to John that I started to negotiate, I was starting to negotiate with Harold Ross and Ross Tucker through my solicitor, with Melissa Begg. Q. And did you say anything further about the subject matter on that occasion? A. I just wanted to know when it was coming out because I was a bit frightened about it, because I said to John that, "Everything that I have done so far, no matter what I do", I said to John, "No matter what I do, everything, there is an excuse about why they do it. Like, is that going to be used as another excuse why they are not going to pay me my money?" and John said, "Probably". Q. Was there any other topic of discussion on that occasion? A. No, not on that occasion, not that I can recall. Q. Was there another occasion on which you spoke to him? A. Yes. Q. What was that occasion? A. I can't remember how long afterwards. It wasn't that long before - afterwards. First when John rang I said that I was having the examination summons in place to start, you know, to see why I wasn't getting paid, and that I had told my solicitor - this is what I said to John - that I told my solicitor that I wanted some sort of confidentiality, you know, once this was over I didn't want anymore stories wrote about anything. And I told John that I agreed to that but they didn't agree to it, which was quite disappointing. I said to John, "I am just finding it unbelievably hard, how this can happen, and keep dragging on and on and on". John had actually said to me, "Why are you trying to settle for $4,000, they owe you more than that". He said to me, "Why would you even do that". I said, "I just want it over with". That's what I said to John, "I have had enough, I just want it over with, I am sick of defending myself every day, I am so sick of defending myself in public every day". He said, "Fair enough, I wouldn't personally do that but that is entirely up to you". He wrote me out a part of what the article he had wrote, which I was quite happy with it. There was a few things that I can't particularly remember that weren't right that I corrected me in and said no, that didn't happen that way or - it could have been in the industrial court part, I'm not quite sure. But to my recollection it was - yeah, he - I am just trying to think - I am just really having trouble recalling that part of it. Q. I would ask you to have exhausted your recollection. Can you recall more, or can you recall more of what was said or not? A. I am just finding it really hard to remember right at this moment that part. I did say when John read some of the article out, not all of it, that I was very happy with it, it was finally "someone's going to see my side of it", I said to him, and he said to me, "Well, let's hope so"." 206 Asked by Mr Buck$ in cross-examination, "How much time did Ross Tucker spend at the office?, Ms Potts replied, "He spent every single day there, except in the afternoon on Tuesday or Wednesday afternoon when there was a council meeting and sometimes in the morning if the council meeting went over to the next day". She said that mostly he was in the office before her, she arriving between 8am and 8.15am and he was there until about 5pm. On Thursday, she said he was there to 4 o'clock the following morning or whenever the paper was finished. She said that Mr Ross spent much less time in the office. 207 When Mr Tucker was in the office, she said that they worked "quite a lot" at the same desk and conversed together. 208 Ms Potts denied to Mr Hale that she was having matrimonial problems during 1997 and she also denied that she spoke to Ms Gardiner up to two or three times a day regarding her marriage. She agreed that she had personal difficulties with Mr Waters and with Ms Bartlett. She said that she had no problems working with Ms Ubirien and she though she got on "quite well" with Ms Gardiner. She said that she did not "get on" with Mr Tucker but "got on" with Mr Ross "much better than Mr Tucker". She agreed with Mr Hale that she felt under some stress during October 1997. Pressed as to how she came to telephone the Star in the first place seeking employment, there was a lengthy exchange which I will reproduce because it is again illustrative of what I regard as Ms Potts' uncertain memory: "Q. So did you offer to work on commission for the first couple of weeks? A. Yes, I did. Q. Are you sure about that? A. Yes, I am very sure, it was in my letter, very sure. Q. You told us yesterday you were a little bit uncertain about the newspaper where the advertisement was placed which you answered - can you remember that? A. I was - I am very uncertain. I was trying to think last night and - yeah. Q. Can you remember when you were actually employed by the newspaper that there was an advertisement in the Northern Star in which the newspaper advertised for staff? A. No, I don't recall that. I recall putting an ad in our newspaper for staff while I was working there, in the Mullumbimby Star, I recall that. Q. Can you recall an advertisement in the Northern Star on 20 September 1997 in which the newspaper - this is the Star advertised, "Want advertising staff for local free newspaper, apply 684 3820 or shop 17 Ross Industrial Complex" - can you remember any such advertisement? A. No, but I do recall Mr Tucker and Mr Ross and Miss Lindsay discussing it. Q. I suggest to you that the very first occasion in which the Star advertised in the Northern Star was on 20 September 1997. Would you disagree with that? A. No, I don't know, I can't answer that. Q. You can't ? A. I can't answer that; like, I'm not, like I said, I'm not one hundred percent certain. Q. If that were the case, it would be quite clear that you never answered any advertisement in the Northern Star? A. If that were the case? Q. Yes? A. Yeah, well, I suppose if that's the case, yeah. Q. In fact, you didn't answer an advertisement in the Northern Star, did you? A. I don't know; like I said, I'm really unclear about it. Q. You did not answer an advertisement from the Mullumbimby Star, did you? A. I said I was unsure; I'm not certain; I did see an ad in a paper about wanting staff, sales staff. I honestly had never heard of the paper and I honestly had never heard of the paper and I am really unsure about it. Q. Would you accept that there was no advertisement in June or July 1997 in either the Northern Star or the Mullumbimby Star, advertising for employees for the Mullumbimby Star. Would you accept that? A. No. Q. Do you suggest there was an advertisement in the Mullumbimby Star? A. I am unsure, I am unsure about that. Q. In your - - A. Look, I can't recall; I honestly am unsure about it. I was looking for work, I know that; I was looking to change my career path. I went for quite a few jobs at that time to be quite honest, so - - Q. Do you suggest because of the number of jobs you applied for that you might be in error in thinking that you answered an advertisement? A. I could well be 'cause I'm not one hundred percent sure. Q. On Friday when you were asked in which newspaper the advertisement was, you immediately responded, "The Mullumbimby Star". Can you remember that? A. Yes. Q. When you answered on that occasion did you have any uncertainty as to whether you were accurate in your answer? A. No, not until after I left. Q. So might we take it that on Friday afternoon you were certain in your own mind that you answered a newspaper advertisement in the Mullumbimby Star, but after you left the witness box, you had some doubts? A. No, no, I had thought about what had happened that afternoon and I just couldn't, like, really recall, like, my first instinct is when you go for a job you see it advertised in the paper so that is how I go for jobs. I either go for them through my job network or through what's advertised, and that is how I have always gone for jobs. Q. If we might return to the question. You have told us that when you answered a question on Friday and said it was the Mullumbimby Star in which the advertisement appeared, you told the court you were clear in your mind that that answer was correct. Is that what you tell the court? A. Right now? No, I'm not then - - Q. Perhaps we can go back one step. On Friday afternoon you were asked the question "In which newspaper did the advertisement appear" and on Friday, under oath, you said it was the Mullumbimby Star. Can you remember that? A. I do remember saying that. Q. And you have told us that at the time you gave that answer you were certain in your own mind that the answer was accurate - correct? A. Yes, at that time, at that moment, yes. Q. Yesterday when I asked you questions as to which newspaper it was in, you had some doubts - correct? A. Yes. Q. But something must have happened to cause you doubt as to whether the answer was accurate - correct? A. Yes. You did. Q. What was it that led you to have doubts about the accuracy of your Friday answer? A. What you said to me, and I thought about it over the weekend. Q. But I never asked you any questions on Friday? A. Yes, you did. HIS HONOUR: I don't think so. WITNESS: He asked me was I - was that what I did, and when I come away from the court, over the weekend I had a really good think about it and like, I just kept saying I can't recall. HIS HONOUR: You may be confused, but Mr Hale did not start to question you until yesterday. HALE: Q. The fact of the matter is that you rang the Mullumbimby Star and asked for a job, didn't you? A. Yes, that's what - yes. Q. You spoke to Mr Tucker? A. No, I didn't speak to Mr Tucker. Q. You are absolutely certain about that, are you? A. Yes, as far as I can remember I spoke to women. Q. You are absolutely certain about that? A. The first time I rang the Mullumbimby Star, is that the question? - the very first time. Q. Yes? A. No, no, I didn't speak to Mr Tucker. Q. You say you did not speak to Mr Tucker until the job interview with Cheryl Lindsay. Isn't that what you tell the court? A. That's what I can recall, yes. Q. Do you have any doubt about that? A. I may have some doubt about it, yes. Q. You have no recollection of Mr Ross being present on this job interview? A. No, not that I can remember. Q. So he might have been there but you can't recall? A. He might have been there, yes, he might have been there. Q. At the time you attended the job interview, you knew that both Mr Tucker and Mr Ross were the proprietors of the newspaper, didn't you? A. By the second week, yes, when I went in there, yes, or maybe the phone call, the second phone call that Cheryl Lindsay made to me. Q. Do you say that Cheryl Lindsay was the one who was conducting this interview? A. Yes. Q. (Shown exhibit E). Have a look at that letter. Is that your signature? A. Yes, that's mine, yep. Q. That was a letter you wrote to Mr Tucker, wasn't it? A. Yes, he was the proprietor. Q. That was as a result of a telephone conversation that you had with him that morning? A. No, I had a telephone conversation with Cheryl Lindsay. Q. You sent in your resume with this letter, didn't you? A. That's right. Q. It is addressed to "Dear Mr Tucker" - do you see that? A. That's right. Q. It says, "In reference to our conversation this morning"- you see that? A. Yes. Q. "Our" can only mean you and Mr Tucker, can't it? A. No, I always write to whoever - I have had a lot of interviews - even in my last job with managers, I always find out who I am going to work for and I always address my letters to the owner or the owners of the business. Q. Let's understand this. You say that you had a telephone conversation with Cheryl Lindsay the morning you rang up and, as a result of that telephone conversation, you sent in your resume - correct? A. Yes. Q. You then say you had a subsequent telephone conversation with Cheryl Lindsay in which you discussed with Cheryl Lindsay whether she had received your resume - correct? A. Yes, because she was not available when I got there, as I said. Q. You say the first occasion on which you spoke with Mr Tucker was during the job interview itself - correct? A. Yes. Q. And this letter of 21 July was the letter in which you sent in your resume - correct? A. Yes - can I just read the letter first please? I'm just wanting to see the trial period, just seeing if it's the same letter. Q. You see that - that's the letter in which you sent in your resume? A. I was double checking it. Q. It was the letter you sent in with your resume after you were speaking to Cheryl Lindsay and, possibly Miss Gardiner, correct? A. Yes. Q. And you say you had never heard of Mr Tucker before? A. No, I hadn't. Q. You knew nothing about the newspaper, you tell us? A. That's correct, I didn't. Q. Why did you address the letter to Mr Tucker? A. 'cause I asked Cheryl Lindsay who the proprietor was. Q. So you asked Mrs Lindsay who the proprietor is? A. The owner of the paper - was it locally owned. Most newspapers are not locally owned any more in this country. Q. So you tell us that in this first telephone conversation when you are answering this advertisement, you speak to Cheryl Lindsay and, amongst other things, you ask who owned the newspaper - is that correct? A. Can you say that again? Q. You say in this first conversation you had with Cheryl Lindsay - - A. Yes. Q. - - you, amongst other things asked who the proprietors were? A. That is I think the second conversation. Q. Sorry? A. I think the second conversation. Q. The second conversation after she already had the resume? A. No - so it would be the first. Q. And so you asked in this first conversation, did you, who the proprietors are. Is that what you say? A. Yes, of course. Q. And you are told Mr Ross and Mr Tucker? A. Actually I was only told Mr Tucker. Q. The letter begins, "Dear Mr Tucker: In reference to our telephone conversation this morning"? A. Mmm. Q. That is clearly a reference to your conversation with Mr Tucker, isn't it? A. No. Q. So you say - - A. I mean, that could have been a mistake on my part. Q. I see? A. I mean, I did have quite a few telephone conversations and I also did say on Friday that I was unclear on how many conversations I had with Cheryl Lindsay. Q. So when we read the words "In reference to our telephone conversation", we should read this letter as meaning your conversation with Cheryl Lindsay, not your conversation with Mr Tucker. Is that what you tell us? A. Yes. 209 Later Mr Hale cross-examined Ms Potts as to the basis upon which her employment with the Star commenced: "Q. Do you say your understanding at the time of the first interview was that you were to be employed full time for the first few weeks? A. Yes. Q. You say at all times you were to be a full time employee - is that what you say? A. I don't say that at all times. I asked Cheryl Lindsay before I went in there and when I was - I asked her on the telephone and then I asked her because I had already had - I had a full time job. Q. Do you deny that when you were first employed by the newspaper you were employed as a casual - do you deny that? A. The first two weeks I was on a commission basis only, so I don't know whether - you can't define a commission basis only as full time, or one hour a week on commission only. In sales, commission only for the first couple of weeks, I didn't agree to do it, as stated in the letter, and that was the agreement that was - that Cheryl and I had discussed - - Q. When you were first employed - - A. - - and Ross Tucker and that 'cause I had a full time job. Q. When you were first employed, as you understood it, you were employed as a casual? A. For the first two weeks, yes. Q. So when you began your employment you knew that you were being employed as a casual? A. No, I knew I was being employed on commission only; it was not casual. Q. Do you deny there was, in the first couple of weeks, any mention about being a casual? A. Casual was not brought up 'cause it was - - Q. I suggest to you, you were told that you would be employed as a casual on commission when you first were employed by the newspaper? A. No, I wasn't told I was going to be employed as a casual, or I wouldn't have gone there in the first time. I need a full time job. I had a full time job." 210 Ms Potts was closely cross-examined by Mr Hale about the various conversations, to which she deposed, relating to her salary. She said that in a discussion with Mr Ross, in the alley next to the office, she made reference to the fact that she was told during her first interview that she would be paid the award wage. There was then this exchange: "Q. You were told in the interview that you would be paid the award wage? A. Yes, and I agreed to work on commission to prove to the paper that I could actually do the job, which I regret enormously now for doing that. Q. Would you agree that in your evidence on Friday and in your evidence yesterday, at no point did you make any reference to being told at the job interview that you would be paid the award wage; would you agree with that? A. No, I can't recall, but I thought I made myself really clear that I did say it was a full time job, and a proper wage. I don't understand that. Q. Would you agree with me that a conversation in which Ms Lindsay and Mr Ross said you would be paid an award wage would be a pretty important aspect of the conversation, wouldn't you agree with that? A. Well yes. Yes, I may have left that out, and it wasn't done deliberately or dishonestly left that out. I mean, it wasn't. Like I said, I needed a full time job, that was the basis I went there, and Cheryl knew that. I had a full time job. I needed that, I had three children." 211 Ms Potts completely denied the incident, deposed to by Ms Gardiner, to the effect that Ms Potts on one occasion stormed out of the office and drove away, to be followed by Ms Gardiner, who later had a conversation with her by the side of the road at Billinudgel. 212 Questioned by Mr Hale as to those present during the incident in the office involving Ms Potts and Mr Waters, on 28 November, Ms Potts said that she was certain that apart from Mr Waters, Mr Duncan Tucker and Ms Sue Gardiner were there. She could not recall whether Ms Bartlett was present. She denied that immediately she entered the office, she, "started yelling" at Mr Waters, but agreed that, following the argument with him, she stormed out in anger. 213 Asked whether she told Mr Duncan Tucker to "shut up", she agreed that she had. Asked why, she replied: "A. Because he thought it was quite okay for Graham to stand up to me and say to me that "Who the F do you think you are?" and he just, Duncan just sat there right next to him while Graham was standing over me saying "Who the F do you think you are?" and Duncan said "Just go away" and then I just said "No, I'm not going to be personally attacked like that Duncan, no." and he said "Just go away" and I said "Just shut up Duncan"." 214 There then followed this exchange between Mr Hale and Ms Potts: "Q. What you are suggesting to the court is that you in no way provoked -- A. No, Graham provoked it. Q. Graham provoked it. Your behaviour at all times was reasonable, was it? A. No, at all times it wasn't reasonable but Graham provoked it. Well, sorry, I take that back. Yes, it was reasonable under the circumstances that I was put in. Q. And was your behaviour reasonable in the October argument which led to the meeting at Mr Ross' house? A. Yes. Q. Was your behaviour reasonable in the argument which ultimately led to you meeting Ms Gardiner at Billinudgel? A. My behaviour? Q. Yes? A. Yes. Q. It's always the other person's fault, is it? A. I'm not saying that. I did not say that." 215 Mr Hale asked whether Ms Potts had confused a meeting at Mr Ross' house, which she said occurred in October, with the meeting on 28 November, her last day at work. To the question, "You say there were two meetings at Mr Ross' house", he received the reply, "There possibly may have been more meetings at Mr Ross' house as well". Mr Hale then asked, "Dealing with arguments with staff", to which Ms Potts replied, "sometimes, other times, no". Later in the cross-examination Mr Hale turned to question Ms Potts about her handwritten statement made very shortly after 28 November 1997, in support of her application to the Industrial Relations Commission, seeking relief from an alleged unfair dismissal. The first three paragraphs in the statement, exhibit 1D-27 read: "Friday 28th November 1997 at the Mullumbimby Star I had an argument with another member of the staff. Proprietors Harold Ross and Ross Tucker were not present when the argument took place, it was approx 5 minutes long. I proceeded to find Harold Ross and discuss what had happened in the office, I also rang the Sales Manager Cheryl Searson Lindsay, Cheryl then arranged with Harold Ross for us all to meet at Harold's residence. We proceeded and had the meeting and all matters were sorted out. Cheryl Searson Lindsay then left. After Cheryl Searson Lindsay left the other proprietor arrived and said before we go any further he would not tolerate what happened in the office the discussion then proceeded into a verbal argument between myself and the proprietor Ross Tucker." 216 The transcript then records: "Q. Then if you look at the third paragraph it says, "After Cheryl Lindsay left the other proprietor arrived". You see that? A. Yep. Q. And the other proprietor was Mr Tucker? A. Yeah. Q. So Ms Lindsay left before Mr Tucker arrived? A. I am not quite sure. Well, I do recall now that with Harold and Cheryl that we did have a meeting and it was quite sorted out, like we had all sorted it out, the three of us. So obviously that is actually what happened if the memory, if I wrote it at that short time obviously I have made a mistake and I didn't mean to be dishonest but I often, like because there was a lot of meetings that we had been talking about, and a lot of meetings we had been talking about yesterday and today, I mean obviously this is right because it happened straight after but it is not intended to be dishonest, your Honour. Q. It is just your memory has failed you? A. Just as I was reading this because I have not seen this again, I remember things like I said, like I proceeded to find - I didn't say that yesterday because I didn't remember that, that little part, you know, and I remember I could not find Harold at his house after it had happened because I did want to speak to him. Things like that, yes. I mean eight years later, yeah. Q. So you would now accept that Cheryl Lindsay did not interject during the discussion with Mr Tucker? A. On that occasion maybe not, if that is the way I wrote it, maybe not but she did --." 217 As to Ms Potts attendance to her employment, particularly in its latter stages after her discharge from hospital, there was the following evidence: "Q. You say the week after you came out of hospital you worked Monday to Friday? A. No, I didn't. Q. How many days? A. I never said that. Q. Then how many days did you work? A. I came out - I was in there - that following week I would have gone back on the Wednesday, your Honour, or the Thursday, approximately. Q. I suggest to you that you did not work at all that following week? A. Yes I did and I can prove that I did. Q. Now you used to ring up from time to time and say you were not coming in because you were suffering from a migraine, didn't you? A. Yeah, there was a couple of times I did, like I only worked half a day, I had a migraine. I actually remember that one day I was very very ill with a migraine and I think it was taken out of my pay half a day. The day I actually worked, well two days I worked from home and when I brought in the ads, by the time I got to the office to Brenda and gave her all the ads for that week, I had a shocking migraine, yes, and I didn't hang around that evening, I gave her the ads. I was just too sick and I went home, which I was totally honest about that and that was also marked in the diary and things like that, so, yeah, so, you know. Q. And some days you just did not turn up for work? A. That is not true. Q. And some days you only worked for a couple of hours? A. That's not true. Q. When? A. That evening I didn't stay, the deadline evening, no, I didn't stay, I did have a migraine, and there were times I think actually I said to Mr Ross and Mr Harold, you know, I would only work half a day. Maybe I did have a full day off from time to time, not a lot, and was only a couple of occasions and I actually, if you are talking about generosity, said "Don't pay me for that day Mr Ross" and he said "I will give you half a day's pay". I clearly remember that. Q. For a period of almost three weeks you stopped making any visits to clients, isn't that correct? A. When was that, I don't understand what you are saying? Q. Immediately after the accident that you had? A. No, I didn't, no. Q. Between 22 September and 13 October you did not drive to any clients? A. Craig Lindsay took me, my father took me, Harold Ross took me on a number of occasions to clients. I could not drive. Yes, you are right, I could not drive but I was taken. Harold Ross took me to Byron on a couple of occasions actually in Harold's car." 218 In the Plaintiff's case in reply, over Mr Connell's objection, I allowed Mrs Tucker to give evidence as to the impact the trial has had upon her husband. She said that he has become "very withdrawn – he is spending a great deal of time alone. As much as possible he is avoiding contact with people in the community". CREDIBILITY OF WITNESSES: 219 The two witnesses whose evidence was significantly in dispute were Mr Tucker and Ms Potts. I formed a very favorable opinion of Mr Tucker's evidence and I assess him as an honest, careful, truthful and reliable witness. His answers to questions were direct and responsive. He was not unwilling to give answers which may have been perceived to be contrary to his interests. Moreover, his evidence was corroborated on many points, some significant, some minor, by other witnesses and by documentary material, including the wages records of Comptran. 220 On the other hand, I regret to say, that I formed a very unfavorable opinion of the evidence of Ms Potts. She was, in my view, throughout her testimony, vague, unresponsive, confused and internally inconsistent. Moreover, in many respects, she put herself in conflict with the unchallenged evidence of other witnesses in the case. I find myself unable to accept her evidence as reliable, except to the extent that it received independent support. In reaching this conclusion, I should add that it was reached notwithstanding careful consideration of the comprehensive, detailed and helpful submissions of Mr Connell on the subject of credibility. 221 I was also very impressed with the evidence of Ms Gardiner. I regard her as an honest and truthful witness and her recollection of relevant maters as reliable. Likewise, I regard Mr Ross and Ms Bartlett as honest witnesses who did their best to assist the court. The possible tension between the evidence of Ms Bartlett and some of the entries in her diary were, I think, adequately explained by her and I do not regard the matter as of any significance. 222 Whilst I do not doubt the honesty of Ms Lindsay, I regard her recollection of relevant events as somewhat imperfect. She readily conceded that she had not been asked to take her mind back to the events of late 1997 until very recently. For instance her potentially important evidence as to a conversation with Ms Potts, soon after the meeting in Mr Ross' house on 28 November 1997, was not supported by Ms Potts herself, who gave evidence to the effect that a conversation similar to the one related by Ms Lindsay occurred on a later occasion. THE EMPLOYMENT OF MS POTTS: 223 It seems appropriate that I make findings regarding the nature of the employment of Ms Potts by Comptran. As my findings do not agree with those of the Chief Industrial Magistrate, I commence this section of the judgment by pointing out, that the parties before the Chief Industrial Magistrate are not the parties before me. Unfortunately, a transcript of the proceedings is not in evidence and counsel indicated that it is not available. The detail of the evidence given by Ms Potts is accordingly not known, but it perhaps may be assumed that she gave similar evidence to the evidence she gave before me. Mr Tucker was not present before the Chief Industrial Magistrate and obviously gave no evidence. Mr Ross did give evidence but it is not clear what he said. I accept his testimony that he went to the Chief Industrial Magistrate armed with a letter from the Industrial Registrar which he though would carry the day. As it appears, however, the issue which he said he was prepared to meet, namely, that a person employed part-time was not subject to the award was not the issue agitated before the magistrate. Seemingly, the magistrate merely had to determine whether to accept Ms Potts' evidence that from the outset she was employed on a full-time basis. It is likely that Mr Ross provided little or no assistance on that issue. 224 In light of what I have said above, I prefer the evidence of Mr Tucker and Mr Ross where it conflicts with the evidence of Ms Potts. I am satisfied that until the week of 8 November 1997, Ms Potts was employed as a part-time employee only. In that capacity, she could choose the days and hours that she worked, adequate performance being the only criterion. Her employment was not governed by the award. THE AMENDMENT OF PARTICULARS: 225 In relation to its defences Echo provided detailed particulars. As to imputation 2 and contextual imputations 1 and 2, the particulars only referred to Ms Potts. Towards the end of the trial, Mr Connell sought leave to amend the particulars so as to introduce the alleged conduct of Mr Tucker towards Ms Ellis, Ms Lindsay and Ms Bartlett. Mr Hale opposed this, on the basis that he had, so he submitted, carefully conducted his case within the particulars provided. On the other hand, Mr Connell submitted that much evidence had emerged during the hearing as to staff relationships generally in the Star office and as to the workplace atmosphere prevailing there. He submitted that in accordance with cases such as Leotta v Public Transport Commission (NSW) 50 ALJR 666, the particulars should be amended to meet the evidence. 226 Although I accept that the amendments sought by Mr Connell could potentially cause prejudice to Mr Hale's client, particularly in so far as they refer to Ms Ellis, who did not give evidence in the case, I think on balance, that I should permit the amendments to be made. In light of the view I have formed about the matter, the amendments will not affect the outcome for the reason that, for the most part, if not exclusively, the evidence said to support the amended particulars is either that of Ms Lindsay, whom I regard as unreliable, or the diary of Ms Bartlett, which I do not regard as probative, except to the extent that it conforms with her oral evidence. THE TRUTH OF THE IMPUTATIONS: 227 In relation to the first imputation, that Mr Tucker acted dishonorably in his negotiations to settle a claim for compensation by Ms Potts, there is a fundamental difficulty in the attempt by the defendants to establish substantial truth within s15 (2)(a) of the Act. It is that Mr Tucker, as was common ground, was not personally involved in the negotiations for the payment of the judgment secured by Ms Potts. According to the evidence, only Mr Ross was so involved and any dishonourable conduct by Mr Tucker must necessarily depend upon what Mr Ross told him and what he said to Mr Ross. Only the evidence of Mr Tucker and Mr Ross can bear upon this. 228 Another difficulty is that nothing was due, by Mr. Tucker personally, to Ms Potts, the obligation being that of Comptran. As it seems to me, even if Ms Begg, contrary to her letter of 30 November 1997, believed that a concluded agreement had been reached, there is room to conclude that Mr Ross (and through him Mr Tucker) genuinely misunderstood the situation up to the point that Mr Ross collected and read the draft agreement prepared by Ms Begg. Such a circumstance is supported, in my view, by the speed with which Mr Ross acted to notify Ms Begg, orally and in writing, that the draft did not represent what was agreed. I accept Mr Tucker's evidence that he was not informed by Mr Ross that there was a concluded agreement in terms of the draft. Whatever Mr Ross' understanding was, or perhaps should have been, the issue before me on the first imputation is whether it was proved that Mr Tucker acted dishonorably by making an offer of settlement, which, after it was accepted, he refused to honor. Leaving aside the question that, according to the evidence, the offer of settlement relied upon was actually made on behalf of Ms Potts to Mr Ross, I am satisfied that it was not established that Mr Tucker acted dishonorably and, indeed, if it were necessary, I would be satisfied affirmatively that Mr Tucker, throughout the negotiations, acted with complete propriety to the limited extent that he was involved in them. 229 The second imputation that Mr Tucker was a domineering employer, in that, "he abuses employees by belittling them and shouting at them, using obscene language", depends to a large extent upon my assessment of the atmosphere in the office of the Star and the evidence as to Mr Tucker's treatment of his staff, particularly female subordinates. There is a wealth of evidence, which I accept, to the effect that if he behaved as suggested by the imputation, it would be very much out of his normal character. In that connection I refer particularly to the evidence of Mr Walpole and Mr Lynn, who knew him well when he was commanding both men and women in the Australian Army. 230 Although the condition imputed to Mr Tucker is that he was a domineering employer, the claim that he used obscene language to female employees is, in my view, the real sting in the imputation. As to that, evidence of truth is scanty to the point of non-existence. It is really limited to some vague testimony of Ms Potts, which received support from no one and I do not accept it. 231 There is no doubt in my mind that work at the Star could be demanding at times, and tempers occasionally were strained and voices raised. A single, not particularly large, and open room accommodated the staff of half a dozen or so, albeit not all together all the time, or even most of the time. However, there were obviously stressful periods, particularly on Thursdays when the newspaper was being finally put together for publication. 232 It seems reasonable to conclude that Mr Tucker was a meticulous and, at times, demanding employer who liked matters attended to properly, according to the order which he laid down. Unsurprisingly, there were robust arguments about work related issues from time to time. However, even if Mr Tucker was sometimes a party to the arguments and his voice was one of those raised, this, as it seems to me, is a far cry from categorizing him as a domineering or abusive employer, let alone one accustomed to shout at employees in obscene language. The quite independent evidence of Ms Gardiner and Ms Bartlett, whose evidence I prefer to that of Ms Lindsay to the extent of any conflict, supports the proposition that Mr Tucker was, in truth, an exemplary employer who generally treated his staff with respect, consideration and good humour. On the evidence, that is how I would categorize him. As I indicated earlier, I do not regard the somewhat cryptic diary entries of Ms Bartlett as of any significance, in the light of her oral evidence. 233 In the result, I am satisfied that both imputations found by the jury in relation to Mr Tucker were not matters of substantial truth. In light of that conclusion it becomes unnecessary to consider whether they related to matters of public interest and/or were published under qualified privilege or to determine whether, in any event, they were published with malice. THE DEFENCE OF CONTEXTUAL TRUTH – SECTION 16 DEFAMATION ACT: 234 The subject article, in my opinion, contains the contextual imputations defamatory of Mr Tucker set forth in paragraph 5 above. Of course, to be of assistance to the defendants under s16 of the Act, those imputations must be of substantial truth. None of them are, in my opinion. 235 For the most part, what I have said above provides reasons for my conclusion that contextual imputations 1 and 2 are not matters of substantial truth. I should add that two arguably sexist remarks by Mr Tucker were referred to in the evidence, namely, an alleged statement to Ms Potts, " You should be at home, I suppose you make your husband cook dinner, you wouldn't last long with me", and a statement allegedly made to Ms Lindsay, "What we need around here is more pants than skirts". Both were denied by Mr Tucker and, in each case, I prefer his denial to the evidence of Ms Potts and Ms Lindsay. In any event, even if true, I would not regard the remarks as significant. 236 Contextual imputation 3 asserts that Mr Tucker conducted the affairs of the Star newspaper so that it made under award payments to Leanne Potts. The relevant award, namely, the Advertising Sales Representatives (State) Award of 19 May 1993 as amended provided, by a notation at the end of Part A, "This award does not apply to part-time or casual employees". As I have found that Ms Potts did not become a full-time employee until the week of 8 November 1997, I am of the opinion that the award did not apply to her employment until that week. For the remaining four weeks of her employment, she was paid $413 per week which, as it seems, was the rate payable under an amendment to the award of 1 May 1995, but was slightly less than the amount payable under a further variation in force as at July 1997. However, I accept that Mr Tucker left to Mr Duncan Tucker, the payment of award rates to staff where that was their entitlement, and had no relevant personal knowledge. Accordingly, in my opinion, the imputation that Mr Tucker conducted the affairs of the newspaper so that it made under award payments to Ms Potts was simply not established as a matter of substantial truth. 237 Contextual imputation 4 was that Mr Tucker conducted the affairs of the newspaper so as to fail to pay Ms Potts compensation as ordered by the Chief Industrial Magistrate. There is no doubt that Comptran never paid to Ms Potts the full amount of the judgment awarded against it. It finally paid $4,000 in January 2000, which she agreed to accept in full satisfaction of the judgment debt. Mr Tucker, moreover, undoubtedly had some knowledge of the negotiations conducted by Mr Ross regarding the payment of the judgment debt by instalments, and of the offer by Ms Potts to take a lesser lump sum in full satisfaction. 238 However, there was evidence of the somewhat straitened financial circumstances of Comptran in the latter half of 1999, and there was also evidence that the newspaper was always unprofitable. There could, I think, be no criticism of Mr Tucker and Mr Ross in their efforts to extend the time for payment until such time as funds were available. There was evidence to the effect that this was all they were seeking to achieve and I accept that evidence, even though Mr Tucker and Mr Ross may have been partly motivated by a feeling of injustice, not entirely unwarranted, in my opinion, at the Magistrate's decision. This factor, at least, provided a reason for Mr Tucker not being motivated to pay Ms Potts out of his own pocket. I see no reason why he should have done so. 239 In my opinion, imputation 4 was not shown to be a matter of substantial truth. The most the defendants established, in my view, is that Comptran delayed, for a period of several months, paying a judgment debt. On the evidence there were, in my view, legitimate reasons for such delay, arising from the financial position of the company. During the delay, perfectly proper negotiations were conducted with Ms Potts, first in relation to payment by instalments, and then at her behest, for immediate payment of a lesser sum in full satisfaction. If she was unhappy with the course of events, it was open to her to take enforcement action, as indeed she did. 240 In any event, in my opinion, even if contextual imputation 4 was a matter of substantial truth, it would not so affect Mr Tucker's reputation that the imputations of which he complains did not further injure it (See Jackson v John Fairfax & Sons) (1981) 1 NSWLR 36 per Hunt J at page 39). As it seems to me, the damage to the reputation of a business man and public figure by the publication of an imputation that he refused to honour a contractual obligation is very different in character from an imputation that he conducted the affairs of a company so as to fail to pay compensation ordered by a court. 241 Contextual imputations 5 and 6, at least in part, relate to the article published in the Star on 30 October 1999, exhibit K. The article, reproduced above at paragraph 48, did not name Ms Potts, but she was undoubtedly identifiable, at least by those who knew her and those with a passing familiarity with the affairs of the Star. It would be unsurprising if the article offended her but that is not the issue here. However, I accept the evidence of Mr Tucker and Mr Ross that it was not the intention of the article to apply any pressure to Ms Potts. 242 As indicated above, both Mr Tucker and Mr Ross testified to the effect that the closure of the Star in its weekly form was directly related to, what they understood to be, the finding of the Chief Industrial Magistrate that, notwithstanding their part time arrangement with Ms Potts, she was to be treated as a full-time employee and paid accordingly. This, I accept, created in their minds the possibility that they would need to treat other employees, whom they regarded as employed part-time, on a similar basis. It may be, of course, that the real cause of the problem was the inadequate manner in which Mr Ross, on behalf of Comptran, presented its case to the Chief Industrial Magistrate. Nonetheless, I accept that the decision to cease publication on a weekly basis was directly related to the decision of the Chief Industrial Magistrate, that the article of 30 October 1999 honestly reflected the reasons for such decision and that it had no more sinister purpose. The gratuitous comment about the State's industrial laws was, in my opinion, beside the point, and there was no evidence to support the claim in the subject article of a threat by the proprietors of the Star to write "a further story in the November issue if she didn't compromise". The defendants have not proved imputations 5 and 6 as matters of substantial truth. 243 Contextual imputation 7 again relates to the article exhibit K. The article did not, in my opinion, impute that Ms Potts was either incompetent or disloyal. To the extent that the article imputed that she was "slack" in her employment, it was, in my opinion, factual. In that connection, I accept the evidence of Ms Gardiner and Ms Bartlett. It follows that the imputation that Mr Tucker participated in the publication of false claims about Ms Potts was not a matter of substantial truth. 244 For reasons already given, I am not satisfied that Mr Tucker's behaviour towards Ms Potts was other than impeccable. Accordingly, contextual imputation 8 is not a matter of substantial truth. 245 In light of the above findings, it is unnecessary to consider whether the contextual imputations relate to matters of public interest or were published upon an occasion of qualified privilege. QUALIFIED PRIVILEGE DEFAMATION ACT SECTION 22 AND COMMON AW: 246 Echo pleaded the defence of qualified privilege. 247 In NSW the common law defence of qualified privilege is supplemented by Section 20 to 22 of the Act. Section 22 is in the following terms: "(1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (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 publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant: (a) the extent to which the matter published is of public concern, (b) the extent to which the matter published concerns the performance of the public functions or activities of the person, (c) the seriousness of any defamatory imputation carried by the matter published, (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (e) whether it was necessary in the circumstances for the matter published to be published expeditiously, (f) the sources of the information in the matter published and the integrity of those sources, (g) 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 publisher to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward. 248 In reply to the defence of qualified privilege Mr Tucker pleaded that Echo was actuated by express malice. Such malice was particularised as follows: (i) (Echo) intended to convey the imputations pleaded in the Statement of Claim and did not believe in the truth of the imputation, or was recklessly indifferent to the truth of the imputations which is to be inferred from its failure to make any or any reasonable inquiries of the Plaintiffs, Comptran Pty Ltd, The Saturday Star, Leanne Potts or Fast Buck $ before publishing the matter complained of. (ii) (Echo) deliberately used the occasion of the matter complained of for the purpose of attacking and discrediting (Mr Tucker) which is to be inferred from the excessive and unduly derogatory language of the matter complained of, the inclusion of material irrelevant to the ostensible occasion of its publication, the failure to make inquiry as referred to in (i) above, and the publication of other matter defamatory of (Mr Tucker) both before and after the publication of the matter complained of. (iii) The inclusion by (Echo) of particular of truth B(xiii) in its Defence in these proceedings. 249 Particular of truth B (xiii) referred to above reads, "The Plaintiff had the personal, financial resources with which he could have put the Saturday Star in funds to satisfy its obligations to Ms Potts but chose not to do so". 250 In its answers to interrogatories, Echo admitted that it did not make any inquiries of Mr Tucker or any other person with a view to ascertaining whether the material contained in the subject article was true. 251 There are a number of reasons why, in my opinion, the defence of qualified privilege, either under s22 of the Act, or at common law cannot be maintained. 252 As to whether the subject article was published on a privileged occasion, I adopt the test propounded by Lord Atkinson in Adam v Ward (1917) ACR 309 at 334: "It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential." 253 The difficulty of applying the above principle to the facts of any particular case have been highlighted in many authorities, some of them being referred to in the joint judgment of Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 78 ALJR 346 at paragraph 10. Bashford raised the issue of reciprocity, the principles being discussed in the joint judgment at paragraph 23 and following, omitting citations: "Was there, in this case, that reciprocity of duty or interest between maker and recipient of the matter of which complaint was made which would make the occasion of its communication privileged? What legal, social or moral duties or interests were engaged between the respondent as publisher and those subscribers to whom it published its Bulletin? The respondent described its Bulletin, on the masthead of the publication and in the advertising material it distributed, as "plain English guide to workplace health and safety". The subscribers to the Bulletin were persons responsible for health and safety in the workplace, not any wider audience. By accepting subscriptions, the respondent undertook to publish a periodical of the kind it described – a guide to workplace health and safety. The subject of the guide was rightly identified in the Court of Appeal as important to society as a whole. The dissemination of information about that subject to those responsible for it was rightly held by the primary judge and the three judges in the Court of Appeal as advancing the common convenience and welfare of society. The matter of which complaint was made concerned the use which persons other than the copyright owner might make of material safety data sheets containing safety information about hazardous materials. The fact that the respondent voluntarily embarked on its publishing venture and charged subscribers for its Bulletin required no different answer. There will be cases where an occasion is privileged but where both maker and recipient of the matter complained of have voluntarily undertaken the reciprocal duties which make the occasion privileged. Howe & McClough was such a case. Sometimes, as again was the case in Howe & McClough, there may be a contract between the maker and the recipient. Unlike Macintosh, however, no adverse consequence followed in this case from the publisher having a motive to profit from the publication. The material which the respondent sought to publish was not, as Lord Macnaghten described the subject of the respondents' business in Macintosh, "the characters of other people". Rather, the material concerned how to keep people safe from workplace injury. What set the respondent's Bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership. Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest between make and recipient which attracted qualified privilege. The circumstances of publication were, therefore, very different from those in which the general news media deal with matters of political or other interest. The premise for the development of the common law that was made in Lange v Australian Broadcasting Corporation was that only in exceptional cases had the common law recognised a duty to publish or interest in publishing defamatory matter to the general public. To hold that the occasion of publication of the matter complained of in this matter was privileged does not challenge that premise. In the present matter there was no publication to the general public. The occasion of the publication of the matter of which the appellant complained was rightly held in the courts below to be a privileged occasion." 254 In my opinion, the only basis upon which the subject article could be regarded as being published on an occasion of qualified privilege is as a reply by Ms Potts to the Star article, exhibit K. In my view, otherwise, the community at large in the Byron Council area had no duty or legitimate interest in receiving the publication. Although Mr Tucker was a member of the council, nothing in the subject article related to the performance of his public duties. In my opinion, with the single qualification mentioned, the subject article did no more that feed idle curiosity or a desire for gossip. Publication by Echo and Mr Fast Buck$ could in no way be said to arise out of a legal or moral duty. 255 However, Ms Potts was entitled to reply to the attack made upon her by the article, exhibit K, and she was entitled to do so through the Byron Shire Echo, which circulated in much the same area as the Star. Echo had, I think, a legitimate interest in defending Ms Potts and, to the extent it did so, derived her privilege. 256 Although it is clear law that Ms Potts was entitled to defend herself with vigour and, in the process, make defamatory remarks against her accuser, she was required to keep to defence and not proceed to offence. As Lord Oaksey put it in Turner v MGM Pictures (1950) 1 All ER 449: "There is, it seems to me, an analogy between the criminal law of self defence and a man's right to defend himself against written or verbal attacks. In both cases he is entitled, if he can, to defend himself effectively and he only loses the protection of the law if he goes beyond defence and proceeds to offence. That is to say the circumstances in which he defends himself, either by acts or by words, negative the malice which the law draws from violent acts or defamatory words. If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queensbury Rules in your defence." 257 In my opinion, the subject article went far beyond matters relevant to Ms Potts rebuttal. The subject article made allegations against Mr Tucker, quite unrelated to any possible attack by the Star upon Ms Potts, which moreover, did not even purport to constitute her defence to the attack. Rather the subject article, read as a whole, was merely a vehicle for Mr Fast Buck$ and Echo, gratuitously, to make extremely derogatory and unsubstantiated allegations against Echo's competitor and its proprietors. Any privilege derived from Ms Potts was, in the process, in my opinion, well and truly lost. In other words, in my view, Mr Fast Buck$ and Echo in writing and publishing the subject article went far beyond the purpose for which any privilege existed. 258 I reject the defence of qualified privilege. COMMENT – DEFAMATION ACT SECTIONS 32, 33, 34: 259 Section 30 of the Act provides: "(1) for the purposes of this section, but subject to subsection (2) proper material for comment means material which, if this Division had not been enacted, would, by reason that it consist of statement of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest. (2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest. (3) The defences under this Division are available as to any comment if, but only if-- (a) the comment is based on proper material for comment; or (b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. (4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based. 260 In my opinion, the defence of comment must also fail. 261 Upon the test to be adopted in determining whether the defendants were making comments or statements of fact, Clarke JA said in Radio 2UE Sydney Pty Ltd & Anor v Parker (1992) 29 NSWLR 448: "The test applied for deciding this question has been stated in a variety of ways. It is sufficient for present purposes to adopt what Reynolds JA said in Petritsis (at 182) "whether the ordinary recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered." It will be seen that the test directs attention to the matter which was published by the defendant and requires the jury to determine whether, in the context of the whole of that published matter, the relevant statements made or published by the defendant were statements of fact or were comment, that is, expressions of opinion or conclusions on facts stated in the material or known to the recipients of the published matter. In these circumstances the resolution of the question whether the relevant statements were made as comments or statements of fact could not depend upon the form of the imputation which obviously enough, would not be seen by the recipients of the published matter. Furthermore, it should not be overlooked that the imputation specified in a statement of claim must be taken to include all imputation which do not differ in substance: Morosi v Mirror newspapers Ltd (1971) 2 NSWLR 749 at 771; Bob Kay (at 512). Accordingly, it is open to a jury to find in favour of a plaintiff on the issue of the meaning of the published material even though it concludes that that meaning is somewhat different to the meaning pleaded in the statement of claim provided that the difference between the two meanings is not one of substance. For these reasons I would agree with the view expressed by Hunt J in Bob Kay that the form of the pleaded imputation cannot dictate whether a defence of comment succeeds or fails. This was the position at common law and in my opinion remains the position under the Act. 262 In relation to this aspect of the matter, I agree with the submissions of Mr Hale that, considering imputations 1 and 2 in the context of the relevant parts of the subject article, the defamatory imputations were conveyed as fact and not as comment. That is how, in my opinion, the ordinary reasonable reader would receive them. In any event, however, the defence of comment would fail as the statements of fact upon which each comment, if it was a comment, were made, were not matters of substantial truth in accordance with my previous findings and were, accordingly, not proper material for comment for the purposes of s30. Nor in my view did any comment relate to a matter of public interest. DAMAGES: 263 As, in my opinion, all the defences raised by the defendants fail, there will be a verdict for Mr Tucker and it is accordingly necessary that I assess the damages to which he is entitled. Mr Tucker seeks both damages and aggravated damages. In respect of the latter, he relies on the failure of Echo to retract the matter complained of and apologise when requested to do so. He also relies upon the failure of the defendants to make inquiries prior to publication and the falsity of the imputations. 264 Echo pleaded in mitigation of damages: "1. The circumstances in which the plaintiff proves publication of the matter complained of was made. 2. The substantial truth of such of the plaintiff's imputation (g) and/or the first defendant's contextual imputations as are found to be matters of substantial truth. 3. The contents of the matter complained of had been conveyed in substance to many residents of the Byron Bay area by Fast Buck $ , including by way of his car sign." 265 I should say at the outset that, in my opinion, none of the matters pleaded by Echo should have the effect of mitigating the damages to which Mr Tucker is entitled, as I have found none of the imputation or contextual imputations were matter of substantial truth. There was insufficient evidence to make any finding in relation to mitigating circumstance 3. 266 The circulation of the Byron Shire Echo was, as I have already indicated, 17,000 copies. Its principal distribution in the area of the Byron Council, however, resulted in a targeting of the very people to whom Mr Tucker was likely to be known, either personally or by reputation. He was, I am satisfied, a well-known businessman and community spirited resident apart from being a member of the Shire Council. 267 I am also satisfied, on the evidence, that Mr Tucker was held in high regard as a man of honesty and integrity, who had made a very worthwhile contribution to the community in which he lived. The evidence was somewhat ambivalent as to whether the subject article caused permanent damage to his reputation, in that there was evidence from people who knew him that they did not believe the defamatory imputations, even though they initially raised questions. Moreover, there was evidence that since the publication of the subject article, he has been re-elected to the council and was again runner-up in the contest for mayor, by popular vote. On the other hand, however, I infer that there was, at the time of publication at least, damage to his reputation, some of which is likely to have continued. 268 More significant, in this case, I think is Mr Tucker's entitlement to damages for emotional and physical distress, which I assess as very considerable. Included in this are components for the anxiety and uncertainty which he has had to endure in relation to this litigation. He is also entitled to damages for his injured feelings; loss of self-esteem; sense of indignity and sense of outrage, all of which, on the evidence, he experienced as a consequence of the defendants' publication. 269 Apart from damages for injury to reputation and distress, Mr Tucker is entitled to a sum of sufficient size to vindicate his position, namely, in the words of Lord Hailsham LC in Broome v Cassell & Co (1972) AC 1027, a sum "sufficient to convince a bystander of the baselessness of the charge". 270 Mr Tucker's claim to be entitled to aggravated damages should also, in my opinion, succeed. I identify his knowledge of the falsity of the allegations against him; the failure of Echo to publish a retraction and apology when given the opportunity to do so; the failure of the defendants to inquire of Mr Tucker before publication; and the conduct of the trial by both defendants, in so far as they maintained throughout, the truth of the two imputations, the truth of the contextual imputations, and, what I regard as a defence of qualified privilege lacking in bona fides. Not only did Echo call positive evidence with the intent of establishing the truth of the imputations but both its counsel and Mr Fast Buck$ cross-examined Mr Tucker in a hostile fashion. These matters, I accept, increased the hurt to Mr Tucker's feelings, as was made clear by the evidence of his wife given in the case in reply. I infer also that the reporting of the case in the area of the Byron Council was likely to increase the hurt to his feelings. There was evidence of at least one report of the trial, albeit a fair report, published in the Byron Shire Echo, itself. 271 Taking all these matters into account, I assess damages at the sum of $125,000, which should be awarded against both defendants. Mr Tucker is also, in my view, entitled to interest, which I will award at 2% per annum from the date of publication. Interest should, in my opinion, be calculated on the whole amount of the damages. I assess it at $14,329. 272 Cost should follow the event. 273 I make these orders. 1. Verdict and judgment for Mr Tucker against both defendants in the sum of $139,329, inclusive of interest. 2. Order both defendants to pay Mr Tucker's costs. 3. Exhibits may be returned. I CERTIFY THAT THIS AND THE PRECEDING 123 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR JUDGMENT OF ACTIING JUSTICE PATTEN ……………………….. ASSOCIATE 06/09/2005 - import to publish - Paragraph(s) 1 - 273 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.