New South Wales Supreme Court CITATION : Field v Nationwide News Pty Limited [2009] NSWSC 1285 HEARING DATE(S) : 31 March 2008, 1 April 2008, 2 April 2008, 3 April 2008, 4 April 2008, 7 April 2008, 8 April 2008, 9 April 2008, 10 April 2008, 11 April 2008, 14 April 2008, 15 April 2008, 16 April 2008, 17 April 2008, 18 April 2008, 6 May 2008, 21 October 2008, 11 December 2008, 10 February 2009, 11 February 2009, 12 February 2009, 13 February 2009, 16 February 2009, 17 February 2009, 25 February 2009, 26 February 2009, 27 February 2009, 2 March 2009 JUDGMENT DATE : 26 November 2009 JUDGMENT OF : Johnson J at 1 DECISION : 1. Verdict and judgment for the Defendant. 2. Plaintiff is to pay the Defendant's costs of the proceedings. CATCHWORDS : DEFAMATION - second-stage trial after jury trial under s.7A Defamation Act 1974 - eight imputations - two general imputations that Plaintiff was unfit to manage Jenolan Caves House and was incompetent in the management of Jenolan Caves House - six specific imputations alleging bad management in particular respects - substantial truth - contextual truth - qualified privilege - fair comment - fair protected report - verdict for the Defendant Defamation Act 1974 (NSW) Wrongs Act 1958 (Vic) LEGISLATION CITED : Civil Law (Wrongs) Act 2002 (ACT) Defamation Act 1989 (NT) Defamation Act 1957 (Tas) Evidence Act 1995 CATEGORY : Principal judgment Singleton v Ffrench (1986) 5 NSWLR 425 Greek Herald Pty Limited v Nikolopoulos (2001) 54 NSWLR 165 Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716 Ali v Nationwide News Pty Limited [2008] NSWCA 183 HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302 Howden v Truth & Sportsman Limited [1937] 58 CLR 416 Sutherland v Stopes [1925] AC 47 Green v Schneller [2000] NSWSC 548 Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 Millane v Nationwide News Pty Limited [2004] NSWSC 853 John Fairfax Publications Pty Limited v Jones [2004] NSWCA 205 CASES CITED : Hepburn v TCN Channel 9 Pty Limited (1984) 1 NSWLR 387 Chakravati v Advertiser Newspapers Limited (1998) 193 CLR 519 David Syme & Co Limited v Hore-Lacy [2000] 1 VR 667 Nationwide News Pty Limited v Moodie (2003) 28 WAR 314 Elliott v West Australian Newspapers (2008) 250 ALR 363 John Fairfax Publications Limited v Zunter [2006] NSWCA 227 Kriss v John Fairfax Publications Pty Limited [2007] NSWSC 830 Petritsis v Hellenic Herald Pty Limited [1978] 2 NSWLR 174 John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Rogers v Nationwide News Pty Limited (2003) 216 CLR 327 Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511 Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 Triggell v Pheeney (1951) 82 CLR 497 Coyne v Citizen Finance Limited [1990-1991] 172 CLR 211 PARTIES : Archer Field (Plaintiff) Nationwide News Pty Limited (Defendant) FILE NUMBER(S) : SC 20421/05 COUNSEL : Mr C Evatt; Mr R Rasmussen: Ms L Evans; Ms EM Picker (Plaintiff) Mr TD Blackburn SC; Mr J Hmelnitsky (Defendant) SOLICITORS : Bale Boshev Lawyers (Plaintiff) Blake Dawson Waldron (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Johnson J 26 November 2009 20421/05 Field v Nationwide News Pty Limited JUDGMENT 1 JOHNSON J: Since their discovery in the mid-19th century, Jenolan Caves have been a memorable feature of New South Wales natural history. Generations of citizens have visited Jenolan Caves. In 1895, the Government architect, WL Vernon, was commissioned to erect an elegant guesthouse and Jenolan Caves House was built (Exhibit Q). The isolated, bushland setting of Jenolan Caves House permitted visitors convenient accommodation whilst they engaged in speleological pursuits. 2 The Plaintiff, Archer Field, commenced his association with Jenolan Caves House in the early 1990s. By 2005, Mr Field was the manager and director of Jenolan Caves Resort Pty Limited (T21-22). As will be seen, by that time, a number of difficulties were affecting the Plaintiff and Jenolan Caves House. The Present Proceedings 3 On 20 November 2005, the Defendant, Nationwide News Pty Limited, published two related articles on page 11 of the "The Sunday Telegraph". The articles were critical of Jenolan Caves House and the Plaintiff. The articles were published with headlines which stated "MP Compares Jenolan Caves House to Fawlty Towers", "A Holiday to Forget" and "Basil Would be Proud of Them". The articles were accompanied by five photographs with captions. The articles referred to the fictional Torquay hotel depicted in the memorable British television series of the 1970s, "Fawlty Towers". 4 The Plaintiff sued the Defendant for defamation. Pursuant to s.7A Defamation Act 1974 (NSW), a trial took place before Bell J and a jury on 13 November 2006. The jury found that the article carried each of eight defamatory imputations relied upon by the Plaintiff. 5 Using the numbering relied upon at the s.7A trial, the imputations found were: * Imputation 7(a) - the Plaintiff is unfit to manage Jenolan Caves House; * Imputation 7(b) - the Plaintiff was incompetent in the management of Jenolan Caves House; * Imputation 7(e) - the Plaintiff managed Jenolan Caves House so badly that a hungry guest arriving after 7.00 pm had to wait until breakfast to have a meal; * Imputation 7(f) - the Plaintiff managed Jenolan Caves House so badly that the floors were watery and the carpet stained; * Imputation 7(g) - the Plaintiff was so negligent in the management of Jenolan Caves House that electrical cords in the games room were tangled and hazardous; * Imputation 7(h) - the Plaintiff managed Jenolan Caves House so badly that the staff were rude to guests; * Imputation 7(i) - the Plaintiff managed Jenolan Caves House so badly that the rooms were filthy; * Imputation 7(n) - the Plaintiff managed Jenolan Caves House so badly there was no hot water for the shower in the room provided for Clair Weaver. 6 A strike-out application was heard by Nicholas J on 20 April 2006 with respect to some, but not all, of the imputations. No challenge was made concerning imputations 7(a) and 7(b). His Honour observed at [17]-[18]: "17. In the circumstances of this case it seems clear enough that imputations 7(a) and 7(b) are allegations in general terms of the propensity of the [Plaintiff's] unfitness to manage Jenolan Caves House and his incompetence in its management. 18. In my opinion the other imputations are properly characterised as imputations of bad management in the particular instance alleged in the particular imputation." 7 As will be seen, the parties approached the imputations at the post-7A hearing before me in the manner identified by Nicholas J. Imputations 7(a) and 7(b) are general imputations concerning the Plaintiff's management of Jenolan Caves House. The remaining six imputations concern particular instances of bad management by the Plaintiff. 8 By its Further Amended Defence filed 25 February 2009, the Defendant relied upon the following New South Wales and interstate defences: (a) New South Wales - (i) substantial truth (paragraph 13(a)); (ii) contextual truth (paragraph 13(b)); (iii) qualified privilege at common law and/or pursuant to s.22 Defamation Act 1974 (NSW) (paragraph 13(c)); (iv) comment (paragraph 13(d)); (v) fair protected report under s.24(2) Defamation Act 1974 (NSW) ; (b) Victoria - (i) truth (paragraph 14(a)); (ii) contextual truth at common law with respect to imputation 7(n) (paragraph 14(b)); (iii) qualified privilege at common law (paragraph 14(c)); (iv) comment (paragraph 14(d)); (v) fair and accurate report within s.3A(1) Wrongs Act 1958 (Vic) (paragraph 14(e)); (c) South Australia - (i) truth (paragraph 15(a)); (ii) contextual truth at common law with respect to imputation 7(n) (paragraph 15(b)); (iii) qualified privilege at common law (paragraph 15(c)); (iv) comment (paragraph 15(d)); (v) fair and accurate report at common law (paragraph 15(e)); (d) Australian Capital Territory - (i) truth (paragraph 16(a)); (ii) contextual truth at common law with respect to imputation 7(n) (paragraph 16(b)); (iii) qualified privilege at common law (paragraph 16(c)); (iv) comment (paragraph 16(d)): (v) fair report for the purposes of ss.115, 128(1) and 128(4)(a) Civil Law (Wrongs) Act 2002 (ACT) (paragraph 16(e)); (e) Northern Territory - (i) truth (paragraph 17(a)); (ii) contextual truth at common law with respect to imputation 7(n) (paragraph 17(b)); (iii) qualified privilege at common law (paragraph 17(c)); (iv) comment (paragraph 17(d)); (v) fair report for the purpose of s.26(4)(a) Defamation Act 1989 (NT) (paragraph 17(e)); (f) Queensland - (i) truth (paragraph 18(a)); (ii) contextual truth at common law with respect to imputation 7(n) (paragraph 18(b)); (iii) qualified privilege at common law (paragraph 18(c)); (iv) comment (paragraph 18(d)); (v) fair report at common law (paragraph 18(e)); (g) Western Australia - (i) truth (paragraph 19(a)); (ii) contextual truth at common law with respect to imputation 7(n) (paragraph 19(b)); (iii) qualified privilege at common law (paragraph 19(c)); (iv) comment (paragraph 19(d)); (v) fair report for the purpose of s.354(1) Criminal Code (WA) (paragraph 19(e)); (h) Tasmania - (i) truth (paragraph 20(a)); (ii) contextual truth at common law with respect to imputation 7(n) (paragraph 20(b)); (iii) contextual truth for purpose of s.18 Defamation Act 1957 (Tas) (paragraph 20(c)); (iv) qualified privilege at common law (paragraph 20(d)); (v) comment (paragraph 20(e)); (vi) fair report at common law (paragraph 20(f)). 9 The Defendant carries the onus of establishing one or more of these defences with respect to each imputation. If no defence is made out, it will be necessary to assess damages to which the Plaintiff is entitled. 10 Under s.9(2) Defamation Act 1974 (NSW), the actionable imputation or wrong is the imputation which has been found by the jury under s.7A(3) to be carried by the matter complained of, and to be defamatory. The meaning of a pleaded imputation is a matter to be determined by the Court: Singleton v Ffrench (1986) 5 NSWLR 425 at 428. When determining the meaning, it is important to consider the imputation in the context of the material by which the imputation was conveyed: Greek Herald Pty Limited v Nikolopoulos (2001) 54 NSWLR 165 at 172-173 [19]-[23]. Each alleged imputation is to be considered in the context of the entire article: Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716 at 1721 [17]. The Newspaper Article 11 The publication in "The Sunday Telegraph" on 20 November 2005 comprised the following elements (using the paragraph numbers contained in Exhibit A): (a) the headline "A Holiday to Forget" followed by an article under the by-line of Linda Silmalis (paragraphs 1-16); (b) the headline "Basil Would Be Proud of Them" followed by an article by Clair Weaver (paragraphs 17-24); (c) the headline "MP Compares Jenolan Caves House to Fawlty Towers" (paragraph 25) under which were located three photographs - the dining room (paragraph 29), a foyer area (paragraph 30) and the games room (paragraph 31); (d) in the centre of the page, two photographs are juxtaposed - a photograph of Jenolan Caves House (paragraph 32) next to a photograph of John Cleese and Prunella Scales (as Basil and Sybil Fawlty) standing in front of Fawlty Towers (paragraph 34). 12 A copy of the article is Annexure A to this judgment. Annexure A depicts the interrelationship between the published photographs and their captions and the articles themselves. It will be helpful, at this point, to set out the text of the articles, inserting the paragraph numbers utilised for the purpose of the proceedings. The article by Ms Silmalis was as follows (paragraphs 3-16): "3 It is meant to be a place of respite for the thousands of international and local tourists who make the trek to the world-famous Jenolan Caves. 4 But according to NSW Environment Minister Bob Debus, the overnight experience at the heritage-listed Jenolan Caves House could almost be likened to a stay at Fawlty Towers. 5 Dirty toilets, rude staff, filthy rooms and below-average meals are among the 60 complaints the Government received this year alone from unhappy guests. 6 As one couple stated: 'We are not amused.' 7 Fed up, the State Government will introduce legislation to break its 99-year lease and take control of the property. 8 The lease was brokered by the Greiner government, but the lessee company was later purchased by another operator, Archer Field, who took over management of Caves House, operating under the name of Jenolan Caves Resort Pty Ltd. 9 The Sunday Telegraph has been told five default notices have been issued to Mr Field in the past year covering asbestos issues and late rent payments. 10 While visitor numbers to the limestone caves have risen, the occupancy rate at Jenolan Caves House has dropped from 60 per cent in 1990 to 30 per cent last year. 11 Mr Debus said the complaint letters showed guests were unimpressed with their hotel stay. 12 'We want a stay at Caves House to add to the fantastic experience of being at Jenolan, not one that visitors would prefer to forget,' Mr Debus said. 13 A Bilgola Plateau visitor said: 'The experience is, without a doubt, the worst dinner experience we have ever encountered, anywhere - appalling.'' 14 A visitor from Eastwood said: 'Caves House is an insult to the paying public - completely unsatisfactory.' 15 The Sunday Telegraph tried unsuccessfully to contact Mr Field. But in a letter sent to MPs this month, Mr Field said the former Jenolan Caves Trust (set up by the Government to manage the tourist precinct but disbanded in 2004) had breached its obligations in ensuring the caves were commercially and environmentally sustainable. 16 This included providing tourists with drinkable water, catering for self-guided cave tours and developing transport in the region. " 13 The article by Ms Weaver was as follows (paragraphs 19-24): "19 It didn't take long before I felt I was staying at Fawlty Towers. 20 Upon our arrival the teenage receptionist, sitting on a chair held together with masking tape, informed me last orders for dinner had closed at 7pm. 21 Hungry after a three-hour drive from Sydney, there was no option but to wait until breakfast. And so after choosing a room that smelt the least mouldy and sprouted the fewest cobwebs, I set out to see if the guest house lived down to its reputation. 22 First were the ladies' bathrooms. To get there, I followed a distinct odour permeating the second and third floors. The 'most horrifying' award went to a bathtub coated in dead bugs and dirt. Not to mention the cockroach in a shower, rusty toilets and leaking taps. 23 Gagging I hurried back to my room for a hot shower. Alas, there was no hot water. 24 Still, at least no one mentioned the war." 14 It will be observed that: (a) the article by Ms Silmalis refers to the Plaintiff on three occasions and purports to recite critical comments made by Mr Bob Debus, then the New South Wales Environment Minister, with respect to Jenolan Caves House and related matters; (b) the article by Ms Weaver recounts aspects of her experiences on a recent visit to Jenolan Caves House, including the cleanliness and quality of rooms and other related issues. Evidence in the Proceedings 15 A substantial volume of documentary material was tendered by the parties at trial and a large number of witnesses were called by the Plaintiff and the Defendant to give evidence. 16 The Plaintiff called witnesses who fell into the following broad classes (with some overlaps): (a) the Plaintiff - he gave evidence concerning reputation, the impact of publication of the matters complained of, his role with respect to Jenolan Caves House between 1990 and 2005 and his response to complaints made concerning the property by guests and others; (b) other persons who gave evidence concerning the Plaintiff's reputation and the impact of the publication on those persons - Bruce Stracey, Andrew Richardson, Roger Hann; (c) satisfied guests of Jenolan Caves House, including persons who were friends or associates of the Plaintiff and others who were strangers only - Suzanne Janas, Pamela Coghlan, William Coghlan, Frank Forwood, Eric Mansfield, Roger Davis, Elizabeth Yuill, Jane O'Ryan, Amanda Lopez, Phillip Harper, Stephen Potter, Martin Cotton, Janice Burgess, Heather Stock, Steven Harrison, Kylie Crowe, Simone Quinn, Dennis Smith, Nicholas Finch, Janice McKellar, Russell Thorning, Adrian Canceri, Delma Hicks; (d) former or continuing employees at Jenolan Caves House who gave evidence concerning the state of the premises and their observations concerning the nature and quality of services provided - Geoffrey Mason, Brian Cook, Lorraine Duffy, Terrie Honeysett, Kornelia Vidler, Michael Corfield, Craig Walker, Jane Ewen, Patricia Smith. 17 The Defendant called witnesses in the following broad categories: (a) the journalists directly involved in the writing and photography depicted in the subject article - Linda Silmalis, Clair Weaver and Kristy Miller; (b) Ms Weaver's partner, Ross Bilton, who accompanied her during the stay at Jenolan Caves House; (c) dissatisfied guests who had stayed at Jenolan Caves House - Winston Terracini and Peter Shapero. 18 The Defendant served statements and associated documents with respect to a further 18 witnesses. Mr Evatt, counsel for the Plaintiff, stated that he did not object to the tender of these statements and that he did not wish any of the authors to attend for cross-examination (T1375-1376). Mr Blackburn SC, for the Defendant, and Mr Evatt agreed that the approach to be taken to evidence which has been admitted by consent, with the witnesses not being required for cross-examination, was that expressed by Tobias and McColl JJA in Ali v Nationwide News Pty Limited [2008] NSWCA 183 at [110]-[112]. Where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence: HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302 at [86]-[87]; Ali v Nationwide News Pty Limited at [112]. 19 Evidence to be assessed upon this basis falls within the following categories (Exhibit 35): (a) dissatisfied guests of Jenolan Caves House - Leigh Cowan (Tab 1), Henry Hirschhorn (Tab 2), Peter Haydon (Tab 3), Ian Irvine (Tab 4), Cathy Padgen (Tab 5), Geoffrey Cowan (Tab 6), Ricardo Macchetta (Tab 7), David Reid (Tab 8), Milan Stojanovic (Tab 9), David Thorne (Tab 10), Elizabeth Gee (Tab 12); (b) former employees of Jenolan Caves House - Karly Strangwidge (Tab 15), Gary Liccardo (Tab 16); (c) public officials and others who inspected Jenolan Caves House for a range of purposes including food safety, fire safety and asbestos removal - Raffaele Tambasco (Oberon Council) (Tab 11), Anthony Grant (NSW Fire Brigades) (Tab 13), Trent Lee (Environmental Geologist, Parsons Brinckerhoff) (Tab 14), James Smith (Project Manager, Department of Commerce) (Tab 17), Paul Williams (Manager of Maintenance and Capital Works Projects, Jenolan Caves Reserve Trust) (Tab 18). 20 In addition, I admitted a large number of documents as business records under s.69 Evidence Act 1995 (Exhibit 23). In broad terms, these documents fell into three classes: (a) documents containing complaints by guests which were directed to (principally) the Jenolan Caves Reserve Trust ("the Trust") or the Office of Fair Trading and which were referred to the Plaintiff, whose written response formed part of the relevant business records; (b) complaints from guests directed to the Trust or the Office of Fair Trading, where the business records did not contain any written response from the Plaintiff to the complaints; (c) complaints by guests to the Trust or the Office of Fair Trading without any consequential records created within the Trust or the Office of Fair Trading. 21 The Plaintiff was cross-examined with respect to documents contained in these three classes. A number of the guests, whose complaints to the Trust or the Office of Fair Trading were admitted, gave evidence (Mr Terracini and Mr Shapero) or provided statements which were tendered, without objection, by the Defendant (Exhibit 35). 22 I approach the determination of the issues arising at trial upon the basis that, with respect to the Defendant's guest evidence, the greatest weight will be given to evidence where the guest was called, or where the guest's statement was tendered without objection. 23 Less weight will be given to guest complaint evidence in Exhibit 23 where the complainant was not called as a witness by the Defendant nor a statement of the witness tendered without objection. Within Exhibit 23 are documents which demonstrate that a number of complaints were brought to the attention of the Plaintiff at the time. The Plaintiff was cross-examined by reference to documents in Exhibit 23. 24 With respect to the statements of the Defendant's witnesses admitted by consent and without the requirement for cross-examination (Exhibit 35), I see no reason not to accord significant weight to the evidence contained therein. This evidence is in a different category to the business records. The Defendant intended to call each of these 18 witnesses to give evidence, but the Plaintiff indicated that the statements of these persons could be admitted, by consent, without them attending for cross-examination. The Plaintiff had an opportunity to challenge or test the evidence of these 18 witnesses, but decided not to do so. This situation may be contrasted with the position with respect to the business records (Exhibit 23). With respect to complainant guests who did not give evidence or make a statement, the Defendant did not call these persons and the weight to be attached to the business record evidence must be assessed upon the basis that the Plaintiff did not have an opportunity to test, by way of cross-examination, the authors of the various records. 25 It remains a matter for the Court to assess the totality of the evidence, oral and documentary, for the purpose of making findings of fact which are required for the purposes of the proceedings. The Plaintiff and Jenolan Caves House 26 In this part of the judgment, I will trace shortly the involvement of the Plaintiff with Jenolan Caves House. Much of the material touching upon this topic is not controversial. One particular area of controversy, however, is whether the Plaintiff played a managerial role at relevant times at Jenolan Caves House. I will consider this issue separately, later in the judgment. The Plaintiff 27 The Plaintiff was born in 1948. He obtained a Bachelor of Economics degree from the University of New England in 1973 and a Masters of Business Administration from the Australian Graduate School of Management in 1985-1986. From 1975 until 1991, the Plaintiff was involved in aspects of primary industry (Exhibit B). 28 The Plaintiff was the principal owner, along with his family, of Rosecharm Pty Limited ("Rosecharm") which in turn was the sole owner of Jenolan Caves Resort Pty Limited ("JCR") (formerly Silkbard Pty Limited ("Silkbard")) as trustee company for the Caves House Unit Trust (Exhibit 2, paragraph 2). From 2 July 1990, the Plaintiff was a director of JCR. JCR was lessee of Jenolan Caves House under a 99-year lease executed on 2 July 1990 with the NSW Tourism Commission as Lessor (and Silkbard as lessee) (Exhibit O; Exhibit 2, paragraph 3). Rosecharm, JCR and the Jenolan Caves Unit Trust obtained consent from the Trust for the Plaintiff to control the lease and manage the property (Exhibit 2, paragraph 4). 29 Between 1991 and 1994, the Plaintiff was responsible for the operation of Jenolan Caves House as well as other properties owned and operated by the Peppers Hotel Group outside Sydney (Exhibit 3, paragraph 10). Between 30 December 1994 and 9 December 2005, the Plaintiff managed the JCR business and property (Exhibit 2, paragraph 7). From December 1994 until December 2005, the Plaintiff lived at Jenolan Caves House and performed work administering and operating Jenolan Caves House and associated businesses, and carrying out restoration and other work on the site at least six full days per week (Exhibit 3, paragraph 13). Jenolan Caves House 30 The resort or hotel which I will compendiously describe as Jenolan Caves House is located in the Kanangra Boyd National Park west of the Blue Mountains in New South Wales. The nearest town to Jenolan Caves House is Oberon. Jenolan Caves House is set amongst bushland in a comparatively remote location. 31 Caves House is the oldest part of the complex. More recent additions to the complex included Mountain Lodge (motel-style rooms), the Gate House (with some private rooms) and the Cottage (with bunk-style sleeping quarters) (Exhibit Q). 32 Caves House itself comprised a three-storey building containing rooms and common areas, including a lounge, library and a games room. Dining options at Jenolan Caves House included Chisolms Grand Dining Room, Jeremiah's Bar (attached to Chisolms Grand Dining Room) and Trails Bistro. The complex contained conference facilities. In addition, a souvenir and gift shop, "Things Jenolan", operated within the complex. Also lying within the complex was an area (described colloquially by the staff as "St Trinians"), being a first-floor wing housing female hospitality students who worked as trainees through the Jenolan Caves Hospitality School (Exhibit 35, Tambasco statement, Annexure Z). 33 The Plaintiff described the different parts of the complex in the following way. Jenolan Caves House was a guesthouse providing accommodation for visitors and guests. The Gatehouse was referred to as a backpacker lodge, and was used effectively as a school lodge when schools came and stayed and visited the caves. Mountain Lodge was a 30-room hotel built in about 1985. Events Leading up to Publication on 20 November 2005 34 Before embarking upon an examination of the various defences raised by the Defendant with respect to the imputations, it is appropriate to set out the events leading to publication of the articles in "The Sunday Telegraph" on 20 November 2005. In the course of reciting these events, a number of factual findings will be made. This part of the judgment will focus upon the acts of journalists employed by the Defendant who were involved in the preparation and publication of the articles in question. The Genesis of the Story 35 Ms Silmalis has been employed as a State political writer with "The Sunday Telegraph" since November 2002 (Exhibit 30). On 5 November 2005, Ms Silmalis read an article published that day in "The Daily Telegraph" about Jenolan Caves under the headline "Cave Visitors Face Poison Water Fears", in which mention was made of the Plaintiff and Mr Debus, the Environment Minister. Around that time, Ms Silmalis got the idea of writing a story about Jenolan Caves. 36 On about Tuesday, 15 November 2005, Ms Silmalis made a telephone call to Chris Ward, the Media Spokesman for Mr Debus. That conversation was to the following effect: Ward: "Hello." Silmalis: "Hi Chris, it's Linda Silmalis from The Sunday Telegraph speaking." Ward: "Hi Linda." Silmalis: "Do you have any leads for a story about Jenolan Caves?" Ward: "There's new legislation being considered in Parliament to revitalise the Jenolan Caves. The operator of Jenolan Caves House isn't paying his rent and the place is a dump - we want him out. Bob made some comments in Parliament about it being like Fawlty Towers but everyone missed the story. I think it was in Hansard on about the 12 th of October. Have a read and let me know if you want to write a story about it." Silmalis: "Thanks Chris, I'll have a look. Bye." Ward: "Bye." 37 After this conversation, Ms Silmalis obtained from the internet a copy of the Hansard report of 12 October 2005 in the Legislative Assembly of the Second Reading Debate for the National Parks & Wildlife Amendment (Jenolan Caves Reserves) Bill. After reading the Hansard report, Ms Silmalis spoke to Sharon Labi, the Chief of Staff at "The Sunday Telegraph", who agreed that it was a good story and asked Ms Silmalis to write it. 38 Given the issues raised in these proceedings, it is appropriate that I set out an extract from the speech in reply of Mr Debus in the Legislative Assembly on 12 October 2005 (Exhibit 30, Annexure B): "By way of background, as I said, in 1990 the Greiner Government entered into a 99-year lease for Jenolan Caves House, covering accommodation, food outlets and a souvenir shop. In February 1995 the Field family purchased the lessee company and has continued as lessee at Jenolan Caves House, operating as Jenolan Caves Resort Pty Ltd. Although visitation at the caves has been increasing steadily over the past several years, the level of increase has not been reflected at Caves House. This is a most significant distinction. There has been a fall-off in visitation at Caves House, but not at the caves as a whole. The present lessee has been unable to make rent payments on time and has failed to implement a satisfactory building maintenance program over a protracted period. The Government assisted Jenolan Caves Resort by providing a 3½-month moratorium on rental payments, followed in mid-2004 by a further extension of time for rental payments ranging from four to 10 weeks. The lessee sought a further extension of the moratorium but unfortunately the trust was not in a position to offer any further assistance. As a significant contributor to the local regional economy, the trust is dependent on this rental income to meet its obligations in managing the karst conservation reserves, providing educational activities for schools and discount packages for pensioners, and employing the staff of the trust. Negotiations were under way with the lessee to reach a joint approach in providing integrated services to visitors and to renegotiate the current lease, especially in regard to rental payments and the duration of the lease. However, the lessee proved unco-operative during the process of developing a joint approach to an integrated management solution at Jenolan Caves. This, combined with the lessee's continued inability to meet his obligations under the lease, resulted in the termination of negotiations and the formal issue of default notices. Interestingly, the lessee and his advisers, almost eight months after the termination of negotiations, reached the conclusion that this Government was right all along and that an integrated approach was the way to go. Did the lessee address any of the concerns that led to the termination of negotiations? Unfortunately, he did not. Instead, he came up with the variation whereby the Government was expected to contribute $2 million per annum in forgone rentals and $1.5 million in direct payments to prop up the lessee and undertake marketing on behalf of Jenolan Caves House. Now there are suggestions that we should delay implementing this urgent revitalisation package to further hide the fact that the mess was created by the original conditions under which the lease was negotiated. There is no point in carrying out further investigations into the leasing arrangements at Jenolan Caves because we know that the model implemented by the Greiner Government is dysfunctional. Nevertheless, before we resolve the issue we need to address the problems with the present lessee. We often hear allegations raised by the lessee that the Government has failed to address asbestos issues at Caves House. Those issues were raised again by the honourable member today, but the lease is absolutely specific: the responsibility for the asbestos is clearly with the lessee. Similarly, there are allegations that the Government is not supplying potable water to Caves House. Those allegations were raised again today by the honourable member. More than 15 years of testing by the Department of Health shows that the Government has been supplying drinking water that complies with the Australian guidelines. In addition, other areas supplied with water by the same infrastructure that supplies Caves House have experienced no problems of the sort alleged by the lessee. If the House followed the advice of those opposite, Caves House would be in the running to host a new series of Fawlty Towers. I will quote from some of the guests of Caves House who have written to the trust complaining about its management over recent years. I remind the House again that the management system was essentially put in place by the former Government. A Bilgola Plateau visitor said: The experience is without a doubt, the worst dinner experience we have ever encountered, anywhere … appalling. A visitor from Eastwood said: Caves House is an insult to the paying public … completely unsatisfactory. These are unsolicited letters from respectable, middle-class people who live in Bilgola and Eastwood. Someone from Western Sydney wrote a letter saying: Caves House was filthy and unorganised … it was so bad that they ran out of complaint forms on the Sunday morning …[I am] not amused. Someone from Pennant Hills wrote: I recently stayed in Caves House, the room occupied by me was not very clean and the toilet and bathroom were dirty. The people to whom I have spoken told me how disappointed they were with the deterioration of Caves House … [needs] immediate attention. Nothing better articulates the present management problems at Caves House than a letter from the president and 34 members of the Killara Probus Club. In my experience, the Killara Probus Club is not quite the most revolutionary organisation in the southern hemisphere. Indeed, if I had to choose an organisation that represented the soul of respectability and social responsibility I might well choose the Killara Probus Club. Mr Andrew Humpherson: Over the Labor Party? Mr BOB DEBUS: Far over the Labor Party. That club wrote me a very courtly letter. It said: We received what can only be described as appalling treatment at Caves House … we would certainly question the ability of the management to run such an establishment … Killara Probus is a friendly group of people who have shown great tolerance over many hundreds of outings that have been conducted through the years. For the future of your wonderful Jenolan Caves, we suggest that you take some remedial action to ensure this kind of incident does not happen again. I feel obliged to accept the importunities and cries for assistance from the Killara Probus Club more keenly than I feel such requests from most people. Those members say the Government has to do something and I propose to do it. The Jenolan Caves Trust has formally issued the lessee with notices to urgently resolve the problems once and for all. We cannot stand by and allow this kind of thing to continue. Through this bill the Government is committed to remedying the unsatisfactory leasing situation at Caves House. We want a stay at Caves House to add to the fantastic experience of being at Jenolan, not one that visitors would prefer to forget. I urge all members of the House to support the bill and not to tolerate any further delays, so we can ensure that the State's cave networks - not least Jenolan Caves - get the revitalisation they urgently deserve and that the Killara Probus Club so manifestly expects. I commend the bill to the House." 39 Thereafter, Ms Silmalis spoke again to Mr Ward on a number of occasions in the course of her preparation of the article. On or about the afternoon of Tuesday, 15 November 2005, a conversation to the following effect took place: Ward: "Hello?" Silmalis: "Hi Chris, it's Linda Silmalis again. I've read the Hansard and have a few questions. Can you confirm that a number of complaints have been made about Caves House?" Ward: "Yes, and there were additional complaints that were not mentioned in Hansard." Silmalis: "Can I obtain copies of the letters that contained the complaints?" Ward: "No, I would prefer if you stuck to what was said in Hansard, because this could be a litigious matter." Silmalis: "How many complaints have been made?" Ward: "Around 60." Silmalis: "Can you give me an exact number?" Ward: "I'll look into it." Silmalis: "Thanks, bye." Ward: "Bye." 40 Later that day, Ms Silmalis and Mr Ward had a further conversation to the following effect: Ward: "Hello?" Silmalis: "Hi Chris, it's Linda again. Could I get some background on how the lease of Jenolan Caves House came about?" Ward: "The lease is for 99 years and was brokered by the Greiner government in the late 80s." Silmalis: "Who is the operator of the hotel now?" Ward: "Archer Field." Silmalis: "I've noticed in Hansard a mention of Archer Field being behind in his rental payments?" Ward: "Yes, there have been several default notices issued." Silmalis: "How many?" Ward: "Five." Silmalis: "Did these notices cover asbestos as well?" Ward: "Yes." Silmalis: "Have you checked how many complaints were made?" Ward: "You can say there were 60 complaints." Silmalis: "Can you tell me what the objective of the new legislation is?" Ward: "The aim of the Bill is to get out of the lease arrangement with Archer Field." Silmalis: "Thanks, bye." Ward: "Bye." Attempts to Contact the Plaintiff for Comment Before Publication 41 A controversial issue at the hearing concerned efforts made by Ms Silmalis to contact the Plaintiff for comment with respect to the proposed article. Evidence touching upon this topic was given by Ms Silmalis and Michael Richardson, a member of the Legislative Assembly. The Plaintiff also gave evidence concerning this issue. 42 Ms Silmalis testified that, on about Wednesday, 16 November 2005, she attempted to contact the Plaintiff for comment. She wished to obtain a response from the Plaintiff to prepare for the article. Ms Silmalis considered that it would make the article more interesting if it had a response from the Plaintiff. She obtained the phone number for Jenolan Caves House by way of a "google" search and called the number, speaking to a male at reception whose name she cannot recall. A conversation to the following effect ensued: Male: "Hello?" Silmalis: "This is Linda Silmalis. I am a reporter from The Sunday Telegraph. Could I please speak to Archer Field?" Male: "Sorry, he's not here at the moment, can you speak to someone else?" Silmalis: "No, I need to speak to Mr Field. Can you ask him to call me? My phone number is [xxx] and my mobile is [yyy]. " Male: "I'll pass it on, bye." 43 Thereafter, Ms Silmalis had a further conversation with Mr Ward to the following effect: Ward: "Hello?" Silmalis: "Hi, it's Linda Silmalis speaking. I wouldn't mind seeing some of the complaint letters about Jenolan Caves House." Ward: "I think the Minister would prefer you to stick to Hansard." Silmalis: "Okay. By the way, I gave Archer Field a call and left a message for him." Ward: "He probably won't call you back." 44 Ms Silmalis stated that the Plaintiff did not return her call. It was the evidence of the Plaintiff that he did not receive any message that Ms Silmalis was attempting to contact him. The Plaintiff said he had no prior notice that the article was to be published in "The Sunday Telegraph", and that he learned of it for the first time on that day. The Plaintiff stated that there was a system for messages to be referred to him if persons telephoned him at Jenolan Caves House, and that no message was passed on to him in accordance with this system. 45 On Thursday, 17 November 2005, Ms Silmalis sent an email to Ms Labi, copied to Steve Moorehouse (the Picture Editor at "The Sunday Telegraph") to provide them with some background to the article. The email included the following (Exhibit 30, Annexure D): "By the way, the lessee of jenolan caves house is a bloke called archer field - he's the one the govt is trying to evict. He's apparently engaged some lawyers … he will not return my calls … if we can pap him … I don't know what he looks like … again, here are some of the 60 complaints the govt has as its legal defence to boot him out." There followed the Hansard extract referring to a number of complaints from guests at Jenolan Caves House. Ms Silmalis explained in cross-examination that "pap him" meant "photograph him" (T1582). 46 Ms Silmalis states that on about Thursday, 17 or Friday, 18 November 2005, she made a telephone call to Mr Richardson, then the Shadow Environment Minister. Ms Silmalis was aware that Mr Richardson had made positive comments regarding Jenolan Caves House in other media outlets and in Hansard. Ms Silmalis gave the following account of her conversation with Mr Richardson: Richardson: "Hello?" Silmalis: "Hello, this is Linda Silmalis from The Sunday Telegraph. I am writing a story about Jenolan Caves House and am trying to get in contact with Archer Field for comment." Richardson: "Yes, there's lots of problems with the water at Jenolan Caves." Silmalis: "This is a different issue, I'm focusing on what Bob Debus said in Parliament. I need to balance the story - can you help me?" Richardson: "Mr Field wrote a letter to me which he copied to Bob Debus." Silmalis: "I'd be interested in getting a copy." Richardson: "Okay, I'll come and give it to you." Silmalis: "Do you have Archer Field's mobile number?" Richardson: "No, I don't." 47 Ms Silmalis stated that thereafter Mr Richardson provided to her a copy of a letter dated 4 November 2005 from the Plaintiff to Mr Richardson. It is apparent, from the published article, that Ms Silmalis used this letter as a basis for expression of the Plaintiff's side in response to what had been said in the Legislative Assembly about Jenolan Caves House. 48 Over objection, I permitted the Plaintiff to call Mr Richardson in reply (T1609). Mr Richardson is a member of the Legislative Assembly of New South Wales. His evidence related to a single issue. Ms Silmalis gave evidence in the Defendant's case of a conversation she had with Mr Richardson in which she sought from him (unsuccessfully) the Plaintiff's mobile phone number. Mr Richardson gave evidence concerning his conversation with Ms Silmalis in November 2005. In examination-in-chief, he stated that he had three telephone numbers for the Plaintiff at that time - a home phone number, a Jenolan Caves House phone number and a mobile phone number. In chief, he said "I gave her at least his home number and probably his number at Caves House as well" (T1610.14). Under cross-examination, it became increasingly clear that Mr Richardson had a very limited recollection of the conversation. He had no recollection of discussing with Ms Silmalis a letter which the Plaintiff had written to him, nor that he offered (and provided) a copy of this letter to her. I accept that this topic was discussed between Ms Silmalis and Mr Richardson and that a copy of the letter was provided to her. It was put to Mr Richardson in cross-examination that he had provided the Plaintiff's business phone number to Ms Silmalis (T1615). Mr Richardson's cross-examination concluded with an acknowledgement that he did not recall which of the Plaintiff's telephone numbers he provided to Ms Silmalis (T1616). I accept that Mr Richardson was doing his best to give an accurate account of the telephone conversation he had with Ms Silmalis more than three years before. I accept that he provided a telephone number for the Plaintiff to her, but I do not accept that it was the Plaintiff's home telephone number. In the end, as I have observed, Mr Richardson was entirely uncertain as to which telephone number he provided to Ms Silmalis. 49 I express the following conclusions with respect to efforts by Ms Silmalis to contact the Plaintiff before publication of the article. I accept that Ms Silmalis did contact Jenolan Caves House where a message was left for the attention of the Plaintiff. Although the message did not provide any detail concerning the proposed article, it was sufficiently clear that a journalist from "The Sunday Telegraph" wished to speak personally to the Plaintiff concerning Jenolan Caves House. The contemporaneous public controversy with respect to aspects of Jenolan Caves House provided a clear context for her call. The contemporaneous email of Ms Silmalis to Ms Labi confirms that she was seeking to contact the Plaintiff, although mention is made of "calls" in this respect, when Ms Silmalis made one call only to the Plaintiff. 50 Mr Richardson does not contend that he provided the Plaintiff's mobile telephone number to her. Mr Richardson's recollection of the conversation is understandably vague, given the distance in time and the lack of any particular need for him to recall this aspect of it. If Mr Richardson provided a telephone number to Ms Silmalis (and he may have done so), the likelihood is that it was the work telephone number for the Plaintiff at Jenolan Caves House. 51 I accept that Ms Silmalis obtained from Mr Richardson a copy of the letter of 4 November 2005 from the Plaintiff to Mr Richardson. Thereafter, she utilised this letter for the purpose of including a form of comment or response by the Plaintiff to the matters which had been raised in the Legislative Assembly. Although the evidence indicates that only one attempt was made by Ms Silmalis to contact the Plaintiff for comment, her conversation with Mr Richardson, and her incorporation in the article of aspects of the Plaintiff's written response to what had been said in Hansard, constituted a reasonable effort on her part to insert a measure of balance in the article. 52 I accept the evidence of Ms Silmalis that, from a journalistic point of view, a "stoush" between the Plaintiff and the Minister would heighten the level of interest in the article (T1589). There was no good reason for Ms Silmalis not to seek a response from the Plaintiff, and the inclusion of parts of the letter in the article is inconsistent with a reckless approach being adopted by her in this respect. Some Challenges to the Article by Ms Silmalis 53 It was the evidence of Ms Silmalis that the only sources used by her for her article were the speeches in the Legislative Assembly on 12 October 2005 recorded in Hansard (Mr Richardson and Mr Debus in reply), together with information provided orally by Mr Ward and the Plaintiff's letter to Mr Richardson dated 4 November 2005. In the course of her article, Ms Silmalis stated: "Dirty toilets, rude staff, filthy rooms and below average meals are among the 60 complaints the Government received this year alone from unhappy guests." (emphasis added) 54 Mr Evatt submitted that Ms Silmalis had fabricated or embellished parts of this paragraph, in particular the reference to "60 complaints … received this year alone …". He submitted that Hansard did not support this statement with Mr Debus being recorded as saying "I will quote from some of the guests of Caves House who have written to the Trust complaining about its management over recent years" (Exhibit 30, Annexure B). Further, Mr Evatt submitted that the statement of Ms Silmalis did not attribute to Mr Ward words to the effect that 60 complaints had been received "this year alone" from guests of Jenolan Caves House. Mr Blackburn SC submitted that the Court should accept Ms Silmalis' account that any information that she obtained outside Hansard had come from Mr Ward (T1569-1674). 55 Ms Silmalis was not able to locate contemporaneous notes of her conversations with Mr Ward. The contemporaneous material which is available is confined to the Hansard speeches and emails sent in November 2005. Reference was made above at [45] to the email from Ms Silmalis to Ms Labi at 1.19 pm on 17 November 2005, in which Ms Silmalis says "Here are some of the 60 complaints the govt has as its legal defence to boot him out". The email did not state that these 60 complaints had been made "this year". 56 I bear in mind that Ms Silmalis came to make her statement for the purpose of this case some three years after the publication. I do not accept that Ms Silmalis fabricated or embellished intentionally the article. In my view, one or other of the following explains this aspect of the article: (a) Mr Ward told Ms Silmalis that there had been 60 complaints in that year, and Ms Silmalis relied upon Mr Ward's statement to this effect; (b) Ms Silmalis was left with the impression from her conversations with Mr Ward that there had been 60 complaints in that year, although Mr Ward had not made an express statement to that effect. 57 As I have said, I do not accept that Ms Silmalis fabricated or embellished intentionally the statement that 60 complaints had been made in that year. In reaching this conclusion, I bear in mind the fact that Ms Silmalis had contacted Mr Richardson, and obtained from him the Plaintiff's letter which was used for balancing purposes in her article. Such an approach is not consistent with fabrication or intentional embellishment of this feature. 58 As between the alternatives referred to at [56] above, I am satisfied that the more likely explanation is that Mr Ward did say words to that effect to Ms Silmalis, who then placed them in the article. The absence of reference to this, in her accounts of conversations with Mr Ward in her statement, may be explained by the passage of time between the relevant events and the preparation of the statement. I will consider later in this judgment submissions made by the parties concerning the number of complaints from guests about Jenolan Caves House, and the findings which ought be made in the light of that evidence. For present purposes, however, I am satisfied that what Ms Silmalis placed in the article in this respect was sourced to statements by Mr Ward, in various conversations which Ms Silmalis had with him for the purpose of preparing the article. I accept that Ms Silmalis believed that she was being provided with accurate information by Mr Ward. 59 Mr Evatt challenged the accuracy of other aspects of Ms Silmalis' article with respect to "dirty toilets, rude staff, filthy rooms" and "asbestos issues". I will return to these submissions when dealing with the imputations. For present purposes, it is sufficient that I record my conclusion that the terms used by Ms Silmalis in these respects had their origin, in substance, in the account given by Mr Debus in the Legislative Assembly on 12 October 2005. Ms Weaver Travels to Jenolan Caves House 60 On about Thursday, 17 November 2005, Ms Labi informed Ms Silmalis that Ms Weaver, another journalist at "The Sunday Telegraph", was being sent to Jenolan Caves House. Ms Silmalis did not speak to Ms Weaver prior to her visit. 61 Ms Weaver commenced employment as a journalist with the Defendant in September 2005. Before then, she worked as a journalist in the United Kingdom from 2000 to 2004. Ms Weaver had worked as a Flight Attendant with British Airways from about 1998 to 2000 and had experience in the hospitality industry, running a ski chalet in France for a season from about December 2004 to April 2005 (Exhibit 26; T1435-1436). 62 During the course of Thursday, 17 November 2005, Ms Labi, the Chief of Staff, contacted Ms Weaver by telephone and a conversation to the following effect took place (Exhibit 26, paragraph 10): Weaver: "Hello, Clair speaking." Labi: "Hi Clair, it's Sharon. Are you able to go to Jenolan Caves for a story tonight?" Weaver: "Sure, what's the story?" Labi: "Keep it quiet, but Linda Silmalis is writing an article about Jenolan Caves House and how there have been lots of complaints. Can you drive up there tonight and stay there, and do a first person piece on your experiences? We'll book you a rental car." Weaver: "No problem." Labi: "Great, I'll speak to you about it when you're back in the office." 63 Thereafter on 17 November 2005, Mr Moorehouse, the Picture Editor, forwarded to Ms Weaver the email which Ms Silmalis had sent to Ms Labi and Mr Moorehouse (see [45] above). Soon after, Ms Weaver did a "google" search for "Jenolan Caves House" and obtained a telephone number to book a room. When she called the number provided on the website, a woman told her that it was not the correct number and gave her another number to call. She called that number and it was Jenolan Caves House. The phone was answered by a female receptionist. Ms Weaver formed the impression that the receptionist sounded young and very vague. Ms Weaver did not tell the receptionist that she was a journalist. A conversation to the following effect took place: Receptionist: "Good afternoon, Jenolan Caves House." Weaver: "Hi, I'd like to book a room for tonight." Receptionist: "There's hardly anyone here. Don't bother booking, just come down and walk in. There are lots of rooms available and it will be much cheaper." Weaver: "How much cheaper?" Receptionist: "I'm not sure - a bit cheaper maybe." Weaver: "What type of rooms are available and which are the most expensive." Receptionist: "All types are available. There are three different types. The Grand Suite is the most expensive." Weaver: "What is the difference between the rooms - what is the Grand Suite?" Receptionist: "It is a room with a king size bed and 2 other rooms, one adjoining." Weaver: "Ok, thanks for that. Goodbye." 64 During the afternoon of 17 November 2005, Liz Deegan, the Deputy Editor of "The Sunday Telegraph", called Ms Weaver into her office. Ms Deegan was aware that Ms Weaver had just moved to New South Wales after growing up in Perth, and then living in the United Kingdom and Europe for about eight years. Ms Weaver did not know anything about Jenolan Caves. A conversation to the following effect ensued: Deegan: "Have you heard of Jenolan Caves House?" Weaver: "No." Deegan: "It's a bit of an institution - it used to be a bit of a holiday destination before people used to travel overseas as much. People would have fond memories of staying there when they were younger. Your role is to go up there and give an objective account of how you found it to stay as a guest." 65 During the afternoon, Ms Weaver rang her partner, Ross Bilton, and asked him whether he wanted to travel to Jenolan Caves House with her. He agreed to do so. Ms Weaver picked up the rental car and then drove home to pick up Mr Bilton. They set out in the rental car from Balmain at about 6.00 pm. During the journey, Ms Weaver received a telephone call from Kristy Miller, a photographer with "The Sunday Telegraph". Ms Miller informed Ms Weaver that she was coming up to Jenolan Caves House the next morning to take some photographs, and that she intended to be there around 7.00 am or 7.30 am and that they would meet for breakfast. Ms Weaver and Mr Bilton Arrive at Jenolan Caves House 66 Ms Weaver and Mr Bilton arrived at Jenolan Caves House at about 9.00 pm (T1443). The temperature was about 12○C. As they approached, Ms Weaver saw a blackboard out the front of Jenolan Caves House upon which was written (in chalk) words to the effect "half price for walk-ins". They walked in the side door of Jenolan Caves House through the games room and the lounge area which, according to Ms Weaver, smelt like her grandparents' house with a "musty kind of damp smell" (T1447.39). 67 Ms Weaver observed a youth about 18 or 19 years of age sitting at reception. This was Geoffrey Mason, a witness called in the Plaintiff's case. After being asked to move their vehicle to the top car park, Mr Weaver and Mr Bilton returned to reception where a conversation to the following effect ensued: Weaver: "Hi, we'd like to book a room. What rooms do you have available? Can we have a look at some different ones?" Receptionist: "Sure. Here's the keys to 2 different rooms, just go up the stairs over there." 68 According to Ms Weaver, she was handed the keys to Rooms 302 and 315 (Exhibit 26, paragraphs 25-26). Mr Mason states that he handed Ms Weaver keys to Room 303 and, to the best of his memory, Room 316 (Exhibit T, page 1). Ms Weaver said that she made notes in a Spirax notebook whilst she was at Jenolan Caves House (T1443-1444). According to her notes (Exhibit AC), the rooms which she and Mr Bilton entered initially were Rooms 302 and 315. The tax invoice provided to Ms Weaver with respect to her stay recorded the room as Room 303 (Exhibit F). Ms Weaver acknowledged, in cross-examination, that it was possible that it was Room 303, although she remembered it as Room 302 and it was possible that the tax invoice was wrong (T1454-1455). I accept Ms Weaver's contemporaneous notes as being the more accurate record. Having regard to the evidence generally concerning the administration of Jenolan Caves House, I do not consider that the reference to Room 303 on the invoice is persuasive, let alone decisive. 69 On this issue, the Plaintiff relied upon the evidence of Suzanne Janas, who stayed in Room 303 on the evening of 19 November 2005. Ms Janas had a satisfactory stay, with hot water coming through after about two minutes (T379). Photographs of Room 303 were tendered (Exhibit G), being photographs taken on 21 November 2005 after the articles were published (T58). The evidence does not advance the case on this issue, as I am satisfied that Ms Weaver and Mr Bilton stayed in Room 302. 70 Upon arrival, whilst standing at the reception area, Mr Bilton noticed that there was masking tape on the back of the receptionist's chair which gave him the impression "that it was holding the chair together" (Exhibit 29, paragraph 14). Ms Weaver did not notice the chair initially but, following Mr Bilton mentioning it to her, she observed it when she and Mr Bilton returned to the reception area after visiting the two rooms. She observed brown plastic masking tape wound around the seat and around the back of it, which was clearly visible and "looked like it was securing the whole chair" (Exhibit 26, paragraph 27). Mr Mason acknowledged the state of the chair in cross-examination (T879.34): "Q. By the way, the chair that you were sitting on in reception had a great big bit of masking tape on it, didn't it? A. Yes. Q. Is that right? A. Yes. Q. Why was that? A. 'Cause it was a black vinyl sort of chair with a cushion under it. It had a tear or a split in it so there was just tape holding it, where the tear was, just to stop it getting worse." 71 Ms Weaver and Mr Bilton went upstairs on their own and inspected two rooms, which I accept were Rooms 315 and 302. According to Ms Weaver, Room 315 was a larger room with a clean new-looking bathroom which appeared to have been renovated, unstained carpets, with a mouldy and musty smell, cobwebs in one corner, dust around the windows and was cold (Exhibit 26, paragraph 25). Mr Bilton described the first room as "old fashioned but adequately decorated", which appeared to be clean but was "a bit wiffy, with a mildewy smell" (Exhibit 29, paragraph 18). 72 Ms Weaver described the second room (Room 302) as having satisfactory features such as the first room without the mouldy smell, although the room was cold and "had a little blow heater which didn't do much" (Exhibit 26, paragraph 26). Mr Bilton described the second room as being similar to the first, but without the smell (Exhibit 29, paragraph 19). Ms Weaver Asks for Some Food 73 Ms Weaver and Mr Bilton returned to the reception area. Ms Weaver recounts a conversation to the following effect with the receptionist (Exhibit 26, paragraph 27): Weaver: "We'll take Room 302 please." Receptionist: "No problem. That'll be $140 including breakfast." Weaver: "Is the hotel busy?" Receptionist: "No." Weaver: "Is it possible to get something to eat, even if it's not a proper meal?" Receptionist: "No, the last orders were at 7 pm and the chef has already left to go home to Oberon." Weaver: "So will we have to wait until breakfast?" Receptionist: "Yes." 74 Mr Bilton recalled the conversation as follows (Exhibit 29, paragraph 20): Weaver: "Hi, we'll take Room xxx." Receptionist: "Okay." Weaver: "Can we get some dinner?" Receptionist: "No, the chef's gone home. It was a quiet night, so he's left." Weaver: "Is there any food we can buy?" Receptionist: "No, they're shutting up the bar so there's no bar food either." Weaver: "Ok, thanks anyway." 75 According to Ms Weaver, she and Mr Bilton went upstairs at about 10.00 pm. On the first floor, they passed the Explorer's Bar. A young girl with braces was pulling the metal shutters over the bar closed. A conversation to the following effect ensued: Weaver: "Could I buy a bottle of wine?" Staff Member: "Yes, here's the wine list." Ms Weaver states that she bought a bottle of white wine and charged it to the room. 76 Mr Bilton gives a similar account of this event, describing the young girl as "probably 16 or 17 years old" (Exhibit 29, paragraph 21). Both Ms Weaver and Mr Bilton observed other young persons in the Explorer's Bar, whom they assumed were staff members. 77 Mr Mason gave a different account concerning the availability of food. As this issue was the subject of a separate imputation (imputation 7(e)), it is appropriate to set out Mr Mason's version and to record my findings on this issue. 78 According to Mr Mason, Ms Weaver asked "What do we do about dinner?" and he replied "I will ring the dining room to double check, but I think the last dinner sitting was at 7.30 pm". He said that he phoned Elise Wilson, the Dining Room Manager, and said words to the effect, "A late check in has arrived, can they come up and get some food and a bottle of wine?". Mr Mason states that Ms Weaver then said, "No, do not worry about the food, but I might go up and get a bottle of wine" (Exhibit T, page 1). This account is drawn from a draft statutory declaration which Mr Mason said that he prepared, at the Plaintiff's request, within a few days of 20 November 2005 (T869-870). In evidence-in-chief, Mr Mason was asked (T864.25): "Q. …. Did you have any discussion with Miss Weaver about the dining room or her having dinner? A. To the best of my memory, I recall saying that the last dinner booking was at 7.30. Q. Yes. And then did you say anything else about her ability to have dinner or her having dinner or having something to eat, just from memory? A. No it wasn't unusual if we had a late check in to sometimes send meals up to the room, maybe just some chips or something. If it was outside the time dinner was booked, there was a chance they could. Q. It wasn't unusual to have what? A. They could just whip something up, some fish and chips or something in the kitchen and then send it up to the room. Q. Can you remember whether you told Miss Weaver that? A. I can't recall, sorry. Q. What did she say about wanting a meal, to the best of your recollection? A. 'Don't worry about it. I will just have some wine'. Q. 'Don't worry about it, I will have some wine'? A. (No verbal answer). Q. Did you make any arrangements for her to get some wine? A. No, I sent her up to the dining room and - and the staff there took care of it." 79 In cross-examination, Mr Mason was asked (T876.1): "Q. Now, Mr Mason, I think you said earlier in your evidence that you told Ms Weaver that the last dinner order was at 7.30 ? A. Yes. Q. In fact the chef had left by the time that Ms Weaver came in, is that right? A. He may have been, I didn't work in the dining room. That is why I would have rung dining room. Q. Did you say to Ms Weaver something like 'The last orders were at 7pm and the chef has already left to go home to Oberon'? A. I could have said that, I can't remember my words on the night. Q. And is this possible, did Ms Weaver say something like this to you, 'So we'll have to wait until breakfast ?' And you said 'Yes'? A. I wouldn't have said that without ringing the dining room to check first. Q. Is it possible that you did ring the dining room to check? A. Yes." 80 Mr Mason was cross-examined concerning the employment of trainees at Jenolan Caves House (T884.33): "Q. There were a large number of trainees employed at Caves House, weren't there? A. Yes. Q. And those trainees were by definition people who had not had any previous experience working in the hotel industry? A. Not necessarily. When I started there I took the position understanding that it was a traineeship to get a certificate to learn hospitality operations. I know there was another staff member whose parents owned a resort, so I guess everyone was different. Q. There weren't very many staff members whose parents owned a resort, were there? A. No. Q. Do you agree with the proposition I am putting to you, that virtually all of the trainees had not had previous experience working in hospitality? A. I don't know. I can't speak for anyone else. It could be possible. " 81 I accept Ms Weaver's and Mr Bilton's account of the conversation concerning availability of food. There are a number of reasons for this conclusion. Firstly, it is improbable that, having raised the question of the availability of food, Ms Weaver would abandon the topic in the manner suggested by Mr Mason. I accept that Ms Weaver and Mr Bilton had travelled from Sydney, and it is understandable that they would want something to eat following their journey. Further, given the purpose of the trip as a type of undercover fact-finding visit with respect to Jenolan Caves House, it is unlikely that Ms Weaver would not seek a concluded response to the request for food. In addition, I found Ms Weaver and Mr Bilton to be credible and straightforward witnesses. I have no reason to doubt their account. Their account is also supported by Ms Weaver's contemporaneous notes (Exhibit AC). In my view, Mr Mason is mistaken in his recollection. The conversation would have meant nothing to him at the time, and several days passed before he was asked to recall what had happened. It is noteworthy that a bottle of Rosemount wine could be provided at the bar at the not insubstantial cost of $40.00 (Exhibit F), yet no food could be offered to Ms Weaver. 82 In reaching this conclusion, I have also taken into account the evidence of Brian Cook, a witness called by the Plaintiff. It was Mr Cook's evidence that he worked as a chef at Chisolms Restaurant from about May to September 2005, before becoming on-site manager, a position which he continued to occupy in November 2005. Mr Cook stated that the normal procedure as at November 2005 involved guests who arrived after 8.00 pm being offered a meal and, if the dining room had ceased service, guests could choose off a menu and food would be sent to their room (T958). Whatever the normal procedure ought to have been, I accept that what occurred on the evening of 17 November 2005 is as testified by Ms Weaver and Mr Bilton. 83 As will be seen when I turn to broader issues of management and procedures at Jenolan Caves House, great caution must be taken in accepting statements as to how Jenolan Caves House was intended to operate, or what normal procedure was said to be. With respect to Mr Cook, I note that he was a chef who had been appointed to perform managerial activities not long before November 2005. I do not overlook the fact that Mr Cook would have taken the articles published on 20 November 2005 as being critical of his performance. Whatever his hopes may have been concerning the operation of Jenolan Caves House, the evidence of Ms Weaver and Mr Bilton (and Ms Miller) points to a substantial gap between his hopes and reality. Ms Weaver and Mr Bilton Explore the Premises 84 Ms Weaver and Mr Bilton walked upstairs to their room and had a glass of wine. She had a packet of chips in her bag which they ate. Ms Weaver examined a brochure in the room with information about Jenolan Caves House in it which advertised, amongst other things, pastries and yoghurts as part of the continental breakfast. 85 Between 10.00 pm and 11.00 pm, Ms Weaver discovered that there was no mobile phone reception in Jenolan Caves House and went downstairs to ask the receptionist if there was a pay phone. He responded that the pay phone was not taking coins and allowed her to use the reception phone. The receptionist moved away from the desk whilst Ms Weaver made a call to Ms Labi, leaving a voicemail message that she had arrived at Jenolan Caves House. When Ms Weaver left the room, she took with her Mr Bilton's digital camera for the purpose of taking photographs. After using the telephone, Ms Weaver went into the public ladies' toilet opposite the reception area. She observed, amongst other things, that two of the taps were turned on and running, the toilet bowls were rusty and old and the toilet with the worst rust was running. In addition, one of the fluorescent lights was not working and was flickering, there was hair tangled in one of the plug holes, the radiator was covered with rust and dust and was cold, there was a multi-coloured towel with black edges and the room was cold. 86 Ms Weaver then returned to the third floor. She noticed along the corridors that the carpet was "really water stained" and, in particular, there were "big patches of stained carpet near an armchair on the third floor" (Exhibit 26, paragraph 34). This observation is significant as it relates to a specific imputation (imputation 7(f)) as to which more will be said later in this judgment. 87 Ms Weaver observed communal bathrooms on the third floor, one for women and one for men. She entered the women's bathroom and tried to take photographs (Exhibit 26, Annexures B, C and D). She observed that the bathroom was "in a pretty disgusting state", noting that it had "a musty, damp smell, slightly like effluent or sewerage", the flyscreen on the window was covered with cobwebs, there was thick dust on the window ledges which were covered with dead bugs, cobwebs and dirt, the toilet bowls had rust marks streaked inside them, there were dead bugs in the bath, the shower heads in the showers were mouldy and rusty, the radiator was covered with rust, the room was cold and there was a bar of soap by the sink which was old, dried up and had a crack down the centre (Exhibit 26, paragraph 36). 88 Ms Weaver then entered the men's bathroom on the third floor which she stated was in a similar condition to the women's bathroom, although a smaller room. According to Ms Weaver, the photographs were not turning out well, so she returned to her room to seek the assistance of Mr Bilton. Whilst Ms Weaver had been exploring Jenolan Caves House, Mr Bilton had stayed in their room, continuing to drink wine and read the newspaper. He had a shower or a bath (he cannot recall which) at one stage during the night and there was hot water (Exhibit 29, paragraph 25). 89 Ms Weaver asked Mr Bilton to accompany her to assist with the photography. They first went to the communal bathroom on the third floor. Mr Bilton described this bathroom as "really disgusting" with "hundreds of dead insects in the bath, in the sinks and on the floor", with one of the toilets being old and rusted "so the water was stained and looked very unpleasant", the tap in one of the sinks was broken and was "sprouting water", there was a "corrugated iron radiator which was all rusted away" which "looked as old as the house, probably a hundred years old" and there were cobwebs in the bathroom window (Exhibit 29, paragraph 27). He said he took some photographs of the bathroom, but that he no longer has those photographs. 90 Ms Weaver stated that she and Mr Bilton went downstairs to the communal bathroom on the second floor, which she considered was in even worse condition than the third-floor bathroom. In the second-floor bathroom, Ms Weaver observed that one light did not turn on, the toilets were in "a disgusting state", the toilet bowls were rusty with a warped cistern on one of them and there was a cockroach on the floor of one of the showers which she photographed (Exhibit 26, Annexure F). In addition, the showers were mouldy on the showerheads and between the tiles, there were cobwebs all over the window as well as dead bugs and dust on the windowsill, and the bath was covered in dead bugs and dirt. A number of these images were recorded in photographs taken the following morning by Ms Miller (Exhibit 26, Annexures E, G, H and I). Perusal of these photographs supports the description given by Ms Weaver of the state of the bathroom or bathrooms in question. 91 Ms Weaver and Mr Bilton returned to their room and Ms Weaver got into the shower. She stated that the water was lukewarm for about 10 seconds, but then turned cold. She turned the cold tap off so only the hot tap was running, but there was no hot water for the duration of the shower. The water was ice cold (Exhibit 26, paragraph 40). Mr Bilton informed Ms Weaver that he had a shower (or bath) whilst she had been downstairs and that he had "hot water for about five minutes" (Exhibit 26, paragraph 41). 92 Ms Weaver and Mr Bilton retired to bed. Ms Weaver stated that it was extremely cold in the room and she put on the small heater which provided little assistance in warming the room. Mr Bilton confirmed that it was extremely cold, but observed that "there were plenty of blankets provided and the bed was comfy" (Exhibit 29, paragraph 30). Observations and Events on Friday, 18 November 2005 93 Ms Weaver woke at about 6.30 am - 7.00 am on Friday, 18 November 2005. The room was freezing. Ms Weaver got into the shower, the water was initially lukewarm for about 10 seconds, but went cold before she could wash her face. She ran the shower for three minutes but it remained cold (Exhibit 26, paragraph 44). 94 Ms Weaver and Mr Bilton went downstairs for breakfast. When they walked in to the dining room at about 7.30 am, she observed only one other couple there. Mr Bilton said there were about a dozen tables, and only four or so were taken and it did not appear that there were many people staying at Jenolan Caves House (Exhibit 29, paragraph 33). 95 Ms Weaver observed a family of four coming in for breakfast as well as two other couples, the waiter observing that "the Hotel is never busy mid week" (Exhibit 26, paragraph 49). 96 Ms Weaver ordered the continental breakfast and Mr Bilton ordered the cooked breakfast. They both asked for coffee, but the waiter brought them tea. He took the tea away and brought coffee which Ms Weaver described as "really weak and disgusting" and she could not drink it (Exhibit 26, paragraph 47). 97 The breakfast was buffet style. Ms Weaver observed that (contrary to the brochure in the room), there were no pastries or yoghurts, the bread for toasting was "cardboardy" and did not taste very nice and the continental breakfast consisted of miniature boxes of cereal, canned grapefruit, a handful of dried fruit and some milk and orange juice. Mr Bilton described the cooked breakfast as "pretty ordinary", with the eggs seeming to be "powdered or reconstituted", tasting "very bad" and "like the eggs they provided as rations at army camp" (Exhibit 29, paragraph 34). 98 Mr Bilton stated that the chef came out during breakfast and enquired whether they had had a nice breakfast. Mr Bilton responded that it was fine - he felt that he could not say that the food was not nice because he felt sorry for the chef. 99 Ms Weaver obtained mobile reception and received a message from Ms Miller, saying she was running late. Ms Miller arrived between 8.00 am and 9.00 am. She met Ms Weaver and they went to Ms Weaver's room. Ms Miller had a large camera with her. Thereafter, Ms Weaver and Ms Miller went to various parts of Jenolan Caves House and Ms Miller took photographs. Whilst this was happening, Mr Bilton went out for a walk. 100 Photographs were taken in the dining room which Ms Miller described as "damp and musty with a bedraggled atmosphere" (Exhibit 32, paragraph 11, Annexures A, B and C). 101 Ms Miller observed that, in the common areas and hallways near the lift, there were watermarks and stains on the carpet and she took photographs of the carpet (Exhibit 32, Annexures D, E and F). The photographs in Annexures E and F depict the third-floor foyer, an area described by Ms Weaver as being wet. This scene was portrayed in one of the photographs published in the article. 102 Ms Weaver and Ms Miller entered a communal bathroom which Ms Miller described as "filthy" (Exhibit 32, paragraph 14). Ms Miller took photographs of the bathroom (Exhibit 32, Annexures G, H and I). She took photographs of bugs in the bathroom (Exhibit 32, Annexures J-V). Ms Miller took photographs of cobwebs in the windows and bugs on the windowsills (Exhibit 32, Annexures W and X). Photographs were taken of the shower which was mouldy and dirty (Exhibit 32, Annexures Y-BB). The heater was covered with rust and Ms Miller photographed it (Exhibit 32, Annexures CC-DD). A photograph was taken of a dead cockroach on the bathroom floor (Exhibit 32, Annexure EE). A photograph was taken of the toilet which had a rusty bowl (Exhibit 32, Annexure FF). 103 Ms Weaver and Ms Miller went to reception and asked if they could look at some other rooms. Keys to three other rooms were provided for this purpose, including Room 321. The first two rooms were, according to Ms Weaver, "not too bad", they "smelled musty and had only a few cobwebs" (Exhibit 26, paragraph 56). Room 321 smelt musty and mouldy and a tap was running in a basin in the corner of the room. Photographs were taken of these rooms (Exhibit 32, Annexures GG-MM). 104 Ms Weaver and Ms Miller went downstairs to the games room. There were a number of arcade games in the room which, according to Ms Miller, had tangled cords out in the open between the games. There were three adaptors in one power point. Ms Miller described the games room as "very dirty" with "dust and rubbish everywhere" and she took photographs of the room (Exhibit 32, Annexures NN-QQ). Mr Bilton went to the games room and observed that the wiring "looked overloaded and in a big tangle from each of the sockets" with dead insects and cobwebs in the room and on the wires (Exhibit 29, paragraph 40). These observations relate to imputation 7(g). 105 Ms Miller took photographs of the bistro which was empty (Exhibit 32, Annexures RR-TT). She took a number of photographs of paint peeling off walls, however she cannot recall which room this was in (Exhibit 32, Annexures UU-BBB). 106 Ms Miller went outside and took some photographs of the surrounds of Jenolan Caves House (Exhibit 32, Annexures CCC-LLL). 107 At this point, Ms Miller parted company from Ms Weaver and Mr Bilton, and headed towards her car along a pathway which ran beside a tennis court. She observed that the tennis court was unusable, with no net, no lines marked, there was dirt and sand everywhere, overgrown grass and the fence had holes in it. She took photographs of the tennis court (Exhibit 32, Annexures MMM-OOO). Ms Weaver (Exhibit 26, paragraph 61) and Mr Bilton (Exhibit 29, paragraph 43) also observed the apparently disused tennis court. 108 Mr Bilton provided his overall impressions of Jenolan Caves House as being "long past its best" and needing "a lot of money put into it to make it a nice place to stay". He observed that the common bathrooms that he saw were disgusting and should not have been in use. He observed that most of the staff "seemed as if they were on school holidays doing extra work", being youngsters who "looked to range from 15 to 17 years old" with the oldest staff member he saw being the chef. Mr Bilton did not see anyone acting in a managerial role. Mr Bilton observed that "Fawlty Towers" was "a fair description of the hotel" (Exhibit 29, paragraph 49). Return to Sydney 109 According to Ms Weaver, she and Mr Bilton checked out of Jenolan Caves House at about 10.00 am (Exhibit 26, paragraph 61). Mr Bilton's recollection was that the check-out time was around midday (T1550). They returned through Oberon to Sydney. Ms Weaver returned to her office between 2.00 pm - 3.00 pm on Friday, 18 November 2005 and wrote her story, using the notes she had made whilst at Jenolan Caves House. Ms Weaver's story was originally 450 words long when she filed it but, at the request of Ms Deegan, it was cut down to a 250-word version which she filed on Saturday, 19 November 2005. 110 Ms Weaver did not meet or speak to the Plaintiff when she was at Jenolan Caves House. She stated that she did not contact anyone else when writing the story, it was completely derived from her own experiences (Exhibit 26, paragraph 67). 111 I accept as credible and reliable the evidence of Ms Weaver, Mr Bilton and Ms Miller concerning their observations at Jenolan Caves House on 17 and 18 November 2005. Many of their observations are supported by photographic evidence depicting aspects of the premises. The evidence of these witnesses, and the photographic evidence, constitutes a virtual snapshot of Jenolan Caves House as at 17-18 November 2005. In forming this view, I have had regard to the evidence of the Plaintiff, Mr Mason, Mr Cook, Ms Ewen and Ms Smith concerning particular aspects, including the third-floor carpet, the cleanliness of rooms and bathrooms and the state of cords in the games room. Reference will be made to this evidence, when the individual imputations are considered later in this judgment. 112 I accept that Ms Weaver attended the premises for the purposes of providing an objective description of what she observed and experienced, and that she did so. I do not accept that there was a predetermined intention to attack Jenolan Caves House irrespective of what was observed and experienced during the stay. Publication on 20 November 2005 113 The articles were published, together with a selection of photographs taken by Ms Miller, in "The Sunday Telegraph" on 20 November 2005. Following publication, Ms Silmalis received approximately three emails about the article from persons who had stayed at Jenolan Caves House and had unsatisfying experiences. The author of an email dated 21 November 2005, Peter Haydon (Exhibit 30, Annexure S), was a witness for the Defendant whose statement was admitted without objection and who was not required for examination (Exhibit 35, Tab 3). Another email to Ms Silmalis from Toni and Mark Holmes dated 21 November 2005 was highly critical of Jenolan Caves House (Exhibit 30, Annexure G). On the other hand, a letter from SD Wilson, posted to Clair Weaver on 25 November 2005, spoke in favourable terms of a stay at Jenolan Caves House (Exhibit AD). The Plaintiff's Involvement in Management of Jenolan Caves House 114 A central issue in the proceedings is determination of the role of the Plaintiff in management of Jenolan Caves House, an issue critical to the truth of the general imputations 7(a) and 7(b), and the remaining six specific imputations. 115 On 4 October 1996, JCR entered into a management agreement with Harvey World Travel Investments (No. 1) Limited with respect to the management of Jenolan Caves House for a term of two years (Exhibit C; T26). On 10 January 1997, JCR entered into a further management agreement with Harvey World Travel Investments (No. 1) Limited with respect to Chisolms Restaurant (Exhibit D; T27). Further management agreements were entered into between JCR and entities which took over the Gatehouse, the gift shop, Trails Bistro and the motel (T27). 116 The Plaintiff maintained that after these management agreements were entered into in 1996 and 1997 respectively, he did not manage Jenolan Caves House or Chisolms Restaurant (T28.21). He nominated as managers of Jenolan Caves House between 1996 and 2005 Lorraine Duffy, Terrie Ward (now Honeysett), Ivet Kolotova, Adrian Austin, Penny Goldhargen, Rhonda Bowden and, in 2005, Brian Cook (T28-29). These persons were required to live at the property and they did so (T29). The Plaintiff nominated as managers of Chisolms Restaurant between 1997 and 2005 David Jacobs, Lorraine Duffy, Rhonda Bowden, Justin Cicelli and Brian Cook, with these persons living on the premises (T29-30). In his evidence-in-chief, the Plaintiff maintained that he visited Jenolan Caves House not very frequently - in the period from 1995 until 2003, he was there 20%-25% of the time and about a day a week thereafter (T30). He said his purpose in attending the premises was to make sure that the operators complied with the management agreements (T30.32). Mr Evatt asked the Plaintiff (T31.3): "Q. Did you have the day-to-day management or not? A. No. Q. You didn't. I take it, however, you had a financial interest in the management of Caves House and Chisolm's Restaurant? A. Yes. JCR the company had a financial interest. Q. What was that financial interest--- A. Under the--- Q. --- which the company had? A. Under the management agreements they got either a sixth or a fifth of the turn-over, and four fifths or five sixths went to the operator. So they were franchise-style management agreements that were based on turn-over." 117 Mr Field was cross-examined concerning his role in the management of Jenolan Caves House. He was careful to maintain a position distancing himself from management of Jenolan Caves House. His approach is exemplified in the following extract (T161-162): "If a guest complained to the resort or to the trust about the resort, it was for the most part you, wasn't it, Mr Field, who dealt with the complaint? A. No. Of course that's not correct. Q. If somebody wrote to the resort and complained about something that had happened, made a complaint about the service or something else, for the most part it was you who would respond in writing, wasn't it? A. Again, that's not correct. If it became very troubled, depending on which operator or which manager was in place, they would refer things to me that they felt should have been referred to JCR because it affected more than one business. But there were five or six businesses down there and obviously I had to take a responsible role if one of those businesses said - if there was a situation where Chisolm's thought that the accommodation had done something wrong or the accommodation thought the bistro had, I would take a leadership role where I would say, 'What's the problem?' We would try and deal with the problem, but there were problems that were outside my control, and if matters were referred to me as a director I would deal with them. Q. You had overall management of the resort, didn't you? A. No. Q. You could countermand the directions of staff at the resort? A. I generally didn't. If there was something that was urgent and it had to be dealt with, I might say to Gina, 'Gina, I'd carry that person's bag to their room,' but that was my job, to make sure that the operators ran the businesses according to the contracts which were approved by the Government and referred to in the lease. Q. Mr Field, you held yourself out to the public, I suggest to you, as the manager of the hotel? A. I was the manager of the resort. You keep saying the same thing. I was the manager of JCR that owned the property. Q. You held yourself out to be the manager of the resort? A. Of the real estate, yes. Q. You held yourself out to the public as the overall manager of the resort? A. You keep doing this. There was a company called Jenolan Caves Resort and I held myself out to be the manager of Jenolan Caves Resort and the director of that particular company. Q. It was you, for example, who had the final say as to whether any refunds would be granted to dissatisfied customers? A. If it became a dispute between the operators, it was a matter that was referred to." 118 Along similar lines, the Plaintiff was asked in cross-examination (T163): "Q. Mr Field, if a dissatisfied guest demanded to speak to the manager, more often than not the staff referred the guest to you; that's correct, isn't it? A. That's not correct. The manager of the resort, yes, they always would if I was at the property, but I generally wasn't. If I was there, of course they would. If someone said, 'Who owns the property?', someone would say, 'JCR was owned by the Field family.' Well, it was not. It was owned by Rose Charm, but as far as the staff were concerned they probably assumed that as I was the director of Jenolan Caves Resort they would assume it was me. Q. Are you saying that you accept that the staff at the resort assumed that you were the manager of the resort? A. I'm sure they assumed I was the manager of JCR, yes. Q. No, no, Mr Field, the effect of the answer that you just gave was this: That you told the court that the staff assumed that you were the resort manager. That's the effect of the answer you just gave, wasn't it? A. Would you like to read it back to me then? I'm sorry. I'm not trying to get tongue tied. I'm trying to say as clear as a bell that the operators believed and should have believed that under the lease they were duty bound to comply with their duties as contracted to them. As far as the word 'resort' goes, you seem to be interchanging it between all the enterprises there and the company JCR and there is a difference." 119 The Plaintiff was cross-examined by reference to a letter he had written on 2 August 2004 to a dissatisfied guest, Kerry Renshaw (Exhibit 1; Exhibit 23, Tab 57). In that letter, the Plaintiff said (emphasis added): "JHM Services Pty Limited will reimburse you for the full cost of your dinner. This is $45.00 per person. I have also forwarded you by mail a complimentary accommodation and breakfast voucher to compensate you for the inconvenience of the hot water. No doubt this will not make the experience of last weekend any better, however, having been the General Manager for nine years , there has only been very seldom problems of this magnitude." This letter was written on the letterhead of "Jenolan Caves Resort" with the Plaintiff signing above the words "Archer Field, Director" . 120 Mr Blackburn SC asked the Plaintiff (T168.13): "Q. You are saying there unequivocally, Mr Field, aren't you, that you were the general manager of the resort and had been for nine years? A. That's correct. Q. Now go over the page? A. Sorry, you seem to have overlooked that the company that was reimbursing it was not JCR but JHM Services and I remembered discussing this particular problem. It was the 2nd of August which is when there was no hot water. We did that earlier today. Q. Who do you say was the manager of the resort when this letter was written in August 2004--- A. There were--- Q. if not yourself? A. The manager of the resort was me. The manager of JHM Services was a bloke called Adrian Austin and Ivet Kolotova. She was fully trained. She went to a hotel school in Europe. She was very skilled. She found that was a very debilitating period of her life, and so did I, and so would you have." 121 The Plaintiff was cross-examined with respect to an affidavit sworn by him on 27 February 2007, for the purpose of proceedings commenced that year before the Industrial Relations Commission of New South Wales (Exhibit 2). He was asked (T174-175) (emphasis added): "Q. This is an affidavit that you swore, or one of the affidavits that you swore in those proceedings? A. That's correct. Q. And can I direct your attention to paragraph 7 of that affidavit, that is the paragraph that begins, 'Between 30 December 1994'? A. Yes. Q. Do you see that paragraph? A. Yes. Q. What you say there is this : 'Between 30 December 1994 and until 9 December 2005, I managed the JCR business and property .' A. Yes. Q. 'And during the whole of that period, I was paid no remuneration whatsoever upon an understanding with JCR that I would be remunerated at a market price at a later time.' A. Yes. Q. You say there and on oath that in that period, you managed the JCR business and property? A. Yes. Q. Do you see that? A. Yes. Q. And Mr Field, when you say the JCR business and property, I take it that you are referring by the use of the word 'business' to the business of Jenolan Caves Resort Pty Ltd and by the word property, you are referring to the resort itself ? A. The real estate, yes. The word property means property . Q. No, not the real estate, Mr Field. The asset, the resort, the guesthouse. That is what you meant by that, wasn't it ? A. No ." 122 The Plaintiff stated that JHM Services Pty Limited ("JHM") took over the management function of Harvey World Travel Investments (No. 1) Limited (T290). He was cross-examined concerning the relationship between JCR and JHM, both being corporations with which the Plaintiff was involved. The Plaintiff was asked (T290-292) (emphasis added): "Q. Let's look at the JCR side of it. You presumably would be the person on behalf of JCR who would write to the manager of JHM pursuant to this clause in the event of some kind of dispute as to standards of quality, you would be the person on the JCR side, wouldn't you? A. Yes, that's correct. Q. Who would be the person on the JHM side, Mr Field, to whom you would have written, yourself? A. No, the manager, if there was issues with the management, yes. Q. Do you mean by the manager, some person who you regarded as being the person who managed Caves House, is that what you mean by the manager? A. Yes. Q. There were never any communications, were there, between JCR and JHM pursuant to this clause or similar clause in the management agreement with JHM? A. There are disputes between JCR and JHM managers from time to time. Q. By that you mean disputes between JCR and the individual who you regarded as, you say you regarded as being the manager of Caves House? A. Yes. Q. There were never any such complaints I suggest between JCR and JHM because you effectively were JHM and you realised it would be pointless to write such a letter? A. That's not correct. I am not going to keep talking to you but it was the duty of JCR to ensure JHM carried out, its managers carried out their job properly and it did do that properly . Q. But Mr Field in the ultimate result the person who called the shots at JHM was you, wasn't it ? A. I was a director of JHM . Q. You were the only director of JHM after December 1998 ? A. I didn't manage the businesses of JHM . Sorry, the answer is so I didn't call the shots, I was a director of the company and acted accordingly. Q. After December 98 who called the shots at JHM? A. I think the first person would have been Terri Ward. She was there for some years. Brian Cook was the last one. Q. Who was Terri Ward? A. She was the manager. Q. So what she said, she was in charge of JHM was she, not yourself? A. No, she was in charge of the hotel. I know we are doing this, she was Caves House Manager and had a duty accordingly to comply with the agreements or the standards. Q. Who was the person who would discipline or direct, sorry, what is the name of this person you have just mentioned, the lady? A. Terri someone or other, Terry Wotherstone, something, she was Terri Ward. Q. Was he the first, you say she was the first manager at Caves House after JHM took over the management role? A. To the best of my recollection, yes. Q. Who gave her her orders, Mr Field ? A. Her orders were set by the capacity of the business to perform properly and that was her job, she managed . Q. Are you trying to avoid answering my question? A. Sorry, when she was employed by JHM she was offered a job, her description was well described, her details, I am not going to say, it was an arrangement or contract or agreement that she was required to stand by. Q. If JHM had to give her instructions or directions or orders Mr Field who gave them to her? A. Such as, sorry? You mean to say if she was overspending or what did you have in mind? Q. Any direction as to how she should carry out other functions and do her job, who gave her such directions? A. If it was in the scope of operations there was a operations manual she had to comply with. If she was in breach of it, it would certainly come to the director. If I found out about it and I would explain to her something wasn't going right. As a director that's my job, exceptions, I deal with exceptions. Q. Who in JHM gave this lady directions that she should comply with the procedures manual? A. To the best of my knowledge she was instructed to pursue the procedures manual that was in place at the time when she was employed and make sure that she had a capacity to run the business accordingly. There was a procedures manual all the time. Q. Is that the best answer you are going to give me to the question I asked? A. It was a document, it was quite finite." 123 The Defendant submitted that the Plaintiff played a practical role in the management of Jenolan Caves House and that he was the controlling mind and hands of JCR and JHM. It was submitted that the evidence revealed that he played a direct role in aspects of the day-to-day management of Jenolan Caves House in a number of respects. The Defendant submitted that the evidence concerning the Plaintiff's management role is so overwhelming that his effort to deny or confine any management role is patently untrue. 124 Mr Evatt submitted that the Plaintiff played a role as director of JCR and was involved, in a number of respects, in aspects of Jenolan Caves House. He submitted, however, that this did not lead to a conclusion that the Plaintiff managed Jenolan Caves House or was involved, in a practical way, in the day-to-day running of the premises so that it could be fairly said that he was managing the property. Reference was made to the meaning of the word "manage" in The Macquarie Dictionary where the verb is defined as "1. To bring about; succeed in accomplishing … 2. To take charge or care of: to manage an estate. 3. To dominate or influence (a person) by tact, address or artifice. 4. To handle, direct, govern, or control in action or use …". The noun "manager" is defined to mean "1. One who manages. 2. One charged with the management or direction of an institution, a business or the like. 3. One who manages resources and expenditures, as of a household. 4. A person in charge of the business affairs of an entertainer or group of entertainers. 5. A person in charge of the performance and training of a sporting individual or team". Mr Evatt submitted that the Plaintiff did not manage Jenolan Caves House in any of the senses accommodated by the ordinary meaning of the word. 125 I am comfortably satisfied, on the balance of probabilities, that the Plaintiff played a practical role in the management of Jenolan Caves House. The evidence demonstrates that this role was not confined to remote and occasional action on the part of the Plaintiff, in his capacity as director of JCR and JHM. In a direct and real sense, the Plaintiff took charge of Jenolan Caves House. He handled, directed, governed and controlled Jenolan Caves House and its business activities. There are a number of aspects of the evidence which have led me to this conclusion. 126 Firstly, the Plaintiff himself, in his affidavit in the 2007 Industrial Relations Commission proceedings (Exhibit 2) and in the Summons filed in those proceedings (Exhibit 3), contended that he played a role in the management and conduct of the business at Jenolan Caves House. I am satisfied that the Plaintiff was and remains a "hands on" person, who engaged himself closely in the control of activities of Jenolan Caves House in a wide variety of respects. This is understandable. The premises are located some distance from Sydney. Although the evidence revealed there were regular staff working at Jenolan Caves House during the relevant period, there was a significant number of trainees engaged there, clearly being persons of very limited experience. Given the Plaintiff's significant involvement in JCR and JHM, it is to be expected that he would play a practical and intensive role in the operations of the business being carried out at Jenolan Caves House. 127 It is the unchallenged evidence of Karly Strangwidge (Exhibit 35, Tab 15) that, in about November 2003, she had a telephone interview with the Plaintiff who offered her a traineeship position at Jenolan Caves House (Exhibit 35, Tab 15, paragraph 5). Ms Strangwidge stated that the Plaintiff prepared the staff roster (Exhibit 35, Tab 15, paragraph 14), and that it was very difficult to get the Plaintiff to approve days off, other than those provided for on the roster (Exhibit 35, Tab 15, paragraph 15). Ms Strangwidge stated that, even though she was a trainee (born in 1985), the Plaintiff gave her a lot of responsibilities when she was working at Jenolan Caves House (Exhibit 35, Tab 15, paragraph 16). When she completed her traineeship in January or February 2005, she said that the Plaintiff continued to pay her trainee wages. She met the Plaintiff about a pay rise, and he said to her words to the effect of "I'm not going to give you a pay rise at this stage. You're an idiot" (Exhibit 35, Tab 15, paragraph 19). She stated that the Plaintiff would not buy a cordless phone for reception, which made it difficult for staff members to answer the phones when they were carrying out nocturnal cleaning activities (Exhibit 35, Tab 15, paragraph 21). Ms Strangwidge spoke of an occasion in about May 2005, when the Plaintiff called reception whilst she was performing cleaning on the night audit and did not hear the telephone. The Plaintiff came down from "his house on the hill", took her into the billiard room and yelled at her, with her screaming back at him (Exhibit 35, Tab 15, paragraph 23). 128 Ms Strangwidge stated that, in about June 2004, the Plaintiff asked her to work as the maitre d' in Chisolms, because he could not find anyone else to take over when the maitre d' quit (Exhibit 35, Tab 15, paragraph 30). She said that the Plaintiff would usually "put the kids who mucked around or behaved badly on housekeeping duties", and that this often led to guestrooms not being cleaned (Exhibit 35, Tab 15, paragraphs 39-40). She stated that she lived in the staff accommodation known as St Trinians when she was working at Jenolan Caves House and that, with some of the other staff, she approached the Plaintiff and told him of various problems concerning the premises, with his reaction being either to dismiss them, or to say that something would get done but with nothing then eventuating (Exhibit 35, Tab 15, paragraphs 49-57). Ms Strangwidge said that she found the Plaintiff "to be a very scary boss" (Exhibit 35, Tab 15, paragraph 64), with "no people skills", and that he would yell at staff when mistakes were made (usually as a result of inexperience) with his favourite catchphrase being "you're an idiot" (Exhibit 35, Tab 15, paragraph 65). Ms Strangwidge believed that the Plaintiff "managed the hotel very badly" (Exhibit 35, Tab 15, paragraph 66). 129 I have not considered the unchallenged evidence of Ms Strangwidge in isolation. It is to be taken with other evidence bearing upon this question. Her evidence points to the Plaintiff, between 2003 and 2005, exercising on-the-ground functions and responsibilities concerning the selection and retention of staff, rostering, allocation of work duties and matters of that sort. All of this, it seems to me, fits quintessentially into the role of a manager of premises such as a hotel. 130 Secondly, the evidence revealed that the Plaintiff represented himself as playing a significant role in the management structure at Jenolan Caves House at critical times. For example, the February 2004 management structure diagram for JHM (Exhibit 33) depicted the Plaintiff as "Managing Director", with Alison Jones his "Assistant" and with a direct line of responsibility running down to Annette Dwyer and then Jane Ewen and Susan Johnston as 'housekeeping", with a further direct line running from them to "casual housekeeping and trainees". The Plaintiff's email of 22 September 2004 (Exhibit 33A) described this document as "the structure diagram we have on display in Caves House". 131 Thirdly, the oral and documentary evidence pointed to the Plaintiff being a principal, if not the principal, point of contact when complaints were made concerning Jenolan Caves House by guests, whether onsite or by letter. By way of example, I accept the evidence of Mr Terracini that a conversation took place between the Plaintiff and himself in the Chisolms dining room during Mr Terracini's unhappy stay in February 2003, as part of his Chambers' conference, at Jenolan Caves House. There had been a series of problems with hot water (or the absence of it), cleanliness, meals and other issues. Mr Terracini gave the following evidence (T469-470): "Q. Later that evening, that same evening in the dining room, did Mr Field say something to you about how it was all going? A. He said that he had great difficulty getting staff. Q. If I can just take you through the conversation. Did Mr Field approach you later in the evening or during the evening? A. He did. Q. Did he say something to you? A. He he addressed a number of the complaints that we had made to him and said words to the effect that, 'It was almost impossible to get good staff. They are hopeless. They need a kick in the heels, or kick in the backside', or something along those lines. And I said, 'Well, that's not our problem. You know, the staff appear not to know what they are doing'. And he said they were trainees and he was doing again the best he could but they were all hopeless and he couldn't get good staff." 132 The Plaintiff denied this conversation with Mr Terracini (T99): "Q. Well, what was your attitude when you spoke to Mr Terracini? A. Mr Evatt, I don't recall Mr Terracini raised any complaint about anything to me at the time and I particularly asked him how everything was and he … gave me an affirmative answer. He never said anything that I'm aware of that would have led me to believe he was complaining. Q. Did you say to Mr Terracini words to the effect, 'The staff are hopeless, we can't get good staff around here. Mistakes are made. It's difficult to accommodate everyone'? Did you say anything of those things to him? A. Definitely not and it's a lie. I mean, as if I would say someone who is involved in a business like that was hopeless. If I thought it, I would have gone to the manager and I would have said, 'So and so looks like she's no good', or something, 'You ought to speak with them'. It is not my job to do it but I am certainly I wouldn't have said to a third party that someone was hopeless out of the blue. I am not stupid." 133 I accept the evidence of Mr Terracini and do not accept the evidence of the Plaintiff on this issue. As I record later in this judgment, I have formed the view that the evidence of the Plaintiff, on any controversial issue, ought not be accepted unless it is corroborated by independent and reliable evidence. For present purposes, the point is that the Plaintiff spoke to Mr Terracini in a way which was consistent with his performance of a managerial role onsite at Jenolan Caves House. 134 In passing, I note that I accept the evidence of Mr Terracini and Mr Irvine (who was not required for cross-examination) concerning their experiences at Jenolan Caves House during the Chambers' conference in February 2003. The Plaintiff called Mr Canceri who attended the conference as a person accompanying another floor member. Mr Canceri was not a member of Mr Terracini's floor. As Mr Canceri's evidence progressed, it became increasingly apparent that he had a limited recollection of the weekend in February 2003, and he conceded as much (T1352, 1354). I do not think his general and vague recollection that the weekend was satisfactory stands in the way of acceptance of the cogent evidence of Mr Terracini and Mr Irvine to the contrary, which was supported by contemporaneous documentation. 135 The evidence includes a number of letters written by the Plaintiff to dissatisfied guests or to representatives of the Trust. All of these are written on the letterhead of "Jenolan Caves Resort", with the Plaintiff signing his name above the words "Archer Field, Director". The content of the letters, and their frequency, shed considerable light upon the true role of the Plaintiff with respect to Jenolan Caves House in the relevant period. It is noteworthy, as well, that there do not appear to be any letters written to dissatisfied guests by anyone other than the Plaintiff. In the course of this lengthy litigation, it is clear that large numbers of documents have been produced from a variety of sources for consideration by the parties. The absence of any correspondence written by persons at Jenolan Caves House other than the Plaintiff, dealing with areas of complaint by guests, is itself significant. 136 Fourthly, there is evidence of the Plaintiff, as the representative of Jenolan Caves House, dealing with public authorities and staff on a number of important practical issues, including fire safety, food safety, the hot water supply and asbestos. This evidence is contained in a number of statements in Exhibit 35, which were admitted by consent and without the makers of the statements being required for cross-examination. Of particular significance in this respect are: (a) the statement of Mr Tambasco (Tab 11) an officer of Oberon Council, with respect to food and fire safety issues; (b) the statement of Trent Lee (Tab 14) concerning asbestos issues and his dealings with the Plaintiff in July 2005 in this respect; (c) the statement of Gary Liccardo (Tab 16), who commenced as a maintenance worker and plumber at Jenolan Caves House in July 2005, and spoke of his dealings with the Plaintiff (whom he described as "the manager of the hotel and his company held the lease over the hotel" - paragraph 6) concerning the hot water system and related issues; (d) the affidavit of James Alexander Smith sworn 26 March 2008 (Tab 17) concerning asbestos issues and building reports for Jenolan Caves House between 2003 and 2005; and (e) the statement of Paul Williams (Tab 18), the Manager of Maintenance and Capital Works Projects at the Trust, concerning asbestos and fire safety issues from 1991 and his dealings, in that context, with the Plaintiff. 137 All of this evidence reinforces the conclusion, arising from other evidence, of the direct involvement of the Plaintiff in the day-to-day management of a wide range of aspects at Jenolan Caves House. 138 I am comfortably satisfied that the Plaintiff played a critical role in the practical management of Jenolan Caves House, at least in the period 2003 to 2005, so that this aspect of the imputations has been established as being substantially, if not wholly, true. The Plaintiff as a Witness 139 The Defendant submitted that the Plaintiff was a discreditable witness. Particular reference was made, in this regard, to his emphatic denial that he was involved in the management of Jenolan Caves House which, the Defendant submitted, when regard is had to the totality of the evidence, ought lead to a conclusion that the Plaintiff's evidence was knowingly misleading. 140 The Defendant submitted that the Plaintiff's lack of credit is an important matter to consider in weighing the evidence, especially in circumstances where little of the Defendant's evidence was subjected to challenge, and where the Plaintiff's case depended so heavily on his assertions about his role at Jenolan Caves House. 141 Mr Evatt acknowledged that aspects of the Plaintiff's evidence were unsatisfactory (T1737). He acknowledged that the Plaintiff was "very pedantic" and "punctilious", but rejected any suggestion that the Plaintiff had lied or tried to fabricate evidence. He submitted that the Plaintiff had been in the witness box for a long time and had been subjected to lengthy cross-examination but, on the whole, had done well. Mr Evatt acknowledged that, at times, the Plaintiff did not answer the question, but submitted that this was not deliberate but flowed from an inability to follow the question (T1737). 142 It is the case that the Plaintiff spent a long time in the witness box in this trial. His examination-in-chief was lengthy (T19-149) and his cross-examination was even lengthier (T151-227; T237-365; T391-458; T495-663; T672-816; T820-856; T891-912). When the hearing resumed in February 2009, the Plaintiff gave further evidence (T1195-1201; T1234-1244; T1268-1274; T1357-1359; T1402-1415) before being re-examined (T1416-1425). In all, the Plaintiff was examined in chief for 90 pages, cross-examined for 677 pages and re-examined over nine pages. 143 I accept that the Plaintiff has been engaged in litigation on a number of fronts since 2005, and that this has taken its toll on him. 144 From time to time during the Plaintiff's evidence, Mr Evatt himself made comments concerning the Plaintiff's non-responsive answers or asked the Court to remind the Plaintiff of the need to give direct and responsive answers to questions (see, for example, T262; T279; T504; T505-516). 145 The Plaintiff's evidence was marked by frequent long and irrelevant answers in cross-examination. Regularly, his answers would involve a type of speech or address as if he was arguing the case. He was an advocate in his own cause. It was clear that he has strong feelings about events surrounding Jenolan Caves House, and the circumstances leading up to the cessation of his involvement with that business. However, there were a number of features of the Plaintiff's evidence which caused me to have substantial reservations about it, and to form the view that I should look elsewhere for independent corroborative evidence before relying upon it. 146 I am satisfied that the Plaintiff's denial of a practical management role on his part at Jenolan Caves House was false. Under cross-examination, it became clear that he had given accounts in other proceedings, when it suited his interests, which acknowledged, in substance, that he played a practical role in the management and conduct of the business carried on at Jenolan Caves House. This issue is not to be determined by a pedantic test as to whether he bore the title "manager" or carried out the traditional functions of a hotel manager. As observed earlier in this judgment, this issue ought be considered by reference to evidence concerning the conduct and activities of the Plaintiff at Jenolan Caves House, in the years leading up to and including 2005, in connection with guests, staff, regulatory authorities, the Trust and others. 147 I formed the view that the Plaintiff is a somewhat obsessive individual who was and is likely to become involved in micro-management, in a hands-on way, of a business such as that conducted at Jenolan Caves House. The view may readily be formed, by reference to the evidence, that little occurred at Jenolan Caves House of which the Plaintiff was unaware. 148 Some further observations may be made. The description of the words and actions of the Plaintiff given by Mr Terracini bears some resemblance to the manner and speech of the Plaintiff, as described in the unchallenged evidence of Ms Strangwidge. Mr Terracini had a clear recollection of the Plaintiff speaking of the staff as "hopeless" (see [131] above) and Ms Strangwidge referred to the Plaintiff commonly addressing staff as "idiots" (see [127] above). Mr Terracini gave evidence of the Plaintiff's manner and gesticulations when discussing guest complaints with him in February 2003 and this description accurately described the Plaintiff's manner as a witness when under pressure in the witness box. 149 Further, the Plaintiff's evidence fluctuated between denials that many of the events complained of by guests had occurred at all, and statements of ignorance on his part as to whether such events had occurred, despite the fact that the two positions were irreconcilable. His approach in the witness box bore some resemblance to the occasionally pugnacious approach adopted by him in correspondence with complaining guests, demanding from guests the names of persons involved in incidents complained of, whilst pressing for further particulars. 150 Another feature of the Plaintiff's evidence did not assist him. Despite a clear warning concerning his obligations as a witness under cross-examination, the Plaintiff spoke to three persons during adjournments about topics raised in cross-examination (T623-624). 151 A memorable example of the Plaintiff's approach in the witness box with respect to a guest's complaint, was his reaction to a complaint made by Peter Shapero. Mr Shapero organised a weekend at Jenolan Caves House in July-August 2004 for a number of staff (and their families) of a plumbing company. Mr Shapero was a project manager with that business. He and his group had a number of complaints about Jenolan Caves House, which he took up with the Trust and the Office of Fair Trading (Exhibit 23, Tab 63). As will be seen, Mr Shapero was called by the Defendant at the present hearing. 152 The Plaintiff was cross-examined concerning notes in his diary for 4 August 2004 (Exhibit 4). He was asked (T540.5): "Q. (Exhibit 4 shown.) If you look at Wednesday 4 August, which is the second page of that exhibit, right down the bottom on Wednesday 4 August there's an entry that says 'Peter Shapero' and a telephone number and 'Girl with green baseball cap, solid build, pissed, backward. Offered key to bar at 12.00 o'clock. Pulled Brendan out of toilet.' Do you know what that's all about? Is that a cast from the staff? A. I recall Peter Shapero. The rest I can't comment on. Mr Shapero, for some reason, as I recall, Mr Shapero was in the billiard room and there were a couple of staff in the billiard room and Mr Shapero decided to pull his pants down and take one of the staff into the toilet with him. I am quite clear about that because somebody went down and got the manager, and I can't recall the circumstances that clearly, and Brendan I think was a bloke that worked there and he went in to save the girl's position and I believe that a scuffle occurred and Brendan was pulled out of the toilet and the whole thing was very serious. I might be wrong, but it should have been reported to the police. I can't comment that it was or wasn't, but normal procedures would have something like that reported to the police. Q. Who was the girl with the green baseball cap, solid build, pissed? A. I don't know. I have got no idea. Obviously whoever it was it must have been a customer because this would have been reported to me. It would have been Gina or June or Mavis or something, had it been a staff member. Q. Mr Shapero was one of the guests? A. Mr Shapero was a guest that should have been taken off to the gaol that night." 153 Soon after, the Plaintiff was asked (T542.13): "Q. Then he, Mr Gillard, goes on to say in this memorandum that there were complaints of uncontrollable behaviour by young people, lack of heating in rooms and dining room, meals of a very poor standard and no hot water for showers? A. Yes. Q. The proposition I want to put to you, Mr Field, is that those complaints are very likely to have been true? A. I can't comment. I think I did comment that, and I am not too sure because I don't want to be confused, having looked at that diary note you gave me I have got a feeling that that bloke who he and his mates got out of control may have been the night before. I mean I am only just putting logic together. As far as there being no hot water and stuff, we have been talking about that for some time. The steam heating unit and the hot water system sit side by side and are fed by water that comes from the trust. Q. The reference to uncontrollable behaviour during the night by young people, that is a reference to uncontrollable behaviour on that occasion by your staff, I suggest to you? A. No. We have just been through that. Q. Have we? A. I thought you just gave me a diary note about a bloke called Shapero and I explained. I have been in the hotel business for 20 years. I can't recall one other person who pulled his pants down and pulled a member of staff into the bathroom. It doesn't happen very much in my lifetime. Q. Can I suggest to you that is a reference, isn't it, very likely, Mr Field, to your young trainee staff playing up, isn't it? A. Mr Shapero was not a member of our staff and his actions were not called for and I believe it was handled appropriately at the time, but that's on my memory and I can't go any further." 154 Mr Blackburn SC returned to the topic a little later (T543-544): "On this occasion what happened was that there was a drunken party, wasn't there, by a whole lot of your junior trainee staff that went on late into the night? A. That's not correct. Q. That happened on that weekend, didn't it? A. That's not correct. Q. It had nothing to do with Mr Shapero? A. It did. Q. What about the complaint by the female client who said that she had woken up at approximately 2.00am and found a person in her room going through her luggage. You acknowledge, I think, that that occurred? A. I was told of the complaint. Q. You just said a minute ago that that person had left the key in her door? A. I was told that that was the case. Q. So, what, were you trying to suggest that's her fault for leaving the key in the door? A. Mr Blackburn, I didn't say that. I said that I was told about the complaint the next morning or within a day or two, I am assuming, that the lady had left the key in her door and a drunken person had gone into her room. This is what I was told, and I was told it was a member of what I would loosely suggest was the Shapero party and I would be angry if someone walked into my room, but I am not blaming anybody, I am just saying that's what I was told. Q. You have made that up, haven't you, about the Shapero party. You have made that up, haven't you, Mr Field? A. Of course I haven't. Q. There was no Shapero party, was there? A. I said of course I haven't. There was a Shapero party and the man should have been locked up. I said it right at the start." 155 The Defendant called Mr Shapero as a witness (T913-950). Mr Shapero, then in his late 50s, organised a weekend at Jenolan Caves House on 31 July - 1 August 2004. It was a gathering of husbands, wives and children associated with the plumbing business of which he was the project manager. He and his wife were allocated a room in Mountain Lodge. He described the commencement of his unhappy stay in the following way (T194-195): "Q. And when you got to your room did your wife try to do something? A. Yes, my wife tried to have a shower. Q. What happened? A. She was under the shower and the hot water tap fell off, she turned around and got burnt on her back. Q. Did you notice something about the windows in your room? A. The windows couldn't open. The bathroom window you could open but couldn't lock, it wasn't lockable. And the way the building was designed that you could virtually step into our room from the outside. So I went down and complained about the whole thing. Q. Wait a minute, step by step? A. Sorry. Q. Incidentally, apart from being a qualified plumber what other qualifications do you have? A. Management and OH&S, advanced OH&S course, first aid courses. Q. Where did you do those courses? A. At TAFE colleges. Q. Still back in the room, what was the condition of the room? A. I thought it was quite dirty to my standards and I'm just an average person. It was quite dirty. There was no covers, every place where we've been there was usually a strip on the toilet seat to say it has been cleaned, there was nothing like that. There was toilet paper I thought, in the toilet. It hadn't been flushed previous to we being there. The TV was broken. I thought there was a microwave missing or the TV was missing or a microwave was missing, one or the other. The electric blankets didn't work. It was just generally a disaster. Q. Did you go down to reception? A. Yes, I did. Q. With your wife? A. No, I left my wife in the room and I went down there. Q. What did you say when you went there? A. I explained exactly what's happened and I wanted to be moved out of the room. Q. Were you moved to another room? A. Yes, we were moved to a room upstairs, next floor up. I don't think it was the same one, I think it was very close to where we were. Q. Who was the person who moved you? A. I thought it was Mr Field at the time. Q. Mr Field? A. Yes. Q. How did you know Mr Field? A. I think he introduced himself to me as Mr Field. Q. Did he say anything about what his position in the hotel was? A. I thought he said he was the manager. Q. The second room, what was the condition of the second room? A. That was in a very similar state as being dirty. There was no heater or the heater that was in there was broken, the room heater, and the electric blankets didn't work and the power point in the bathroom was faulty as well in that particular room. My wife couldn't use the hair drier." 156 The examination-in-chief of Mr Shapero continued (T917-918): "Q. When you were in the bar before dinner do you recall a difficulty arising at all? A. Yes. There was no ice. The ice machine apparently had broken down behind the bar. The women couldn't have any ice in their drinks or any of the guys who wanted anything like that. Q. Did you go into dinner after that? A. Yes, we did. … Q. Do you have something about the salad? A. The salad that, one of our chaps asked for a salad dressing. OBJECTION. LEADING. QUESTION ALLOWED HIS HONOUR: Please answer the question. WITNESS: One of the chaps ordered a salad and there was no dressing on it. He asked for dressing to be put on the salad, no dressing ever turned up to our table. BLACKBURN Q. Do you remember anything about the staff generally in the hotel? A. Except they were very young. All the staff that we seemed to be dealing with were very young. One of the staff was getting put off that night or next morning and there was some type of party they were going to have. Q. What happened after you finished eating? A. We asked for the table to be cleared, it was never cleared, so we actually left the table and walked outside. Q. What did you do after you walked out of the dining room? A. We sat down. We were going to have another couple of drinks in the same lounge area near the billiard room or whatever it is there. Q. Did you have some drinks? A. We had a couple of beers there and that was about it. The women didn't have very much to drink at all and that was about all. Q. What did you do after you had the couple of beers? A. We went back to our room. Q. When you say 'we' do you mean you and your wife? A. My wife and myself. Before that happened, though, we were offered the key to the bar. Q. You were offered the key to the bar? A. That's correct. Q. By whom? A. By one of the staff members. Q. Did you take it? A. I spoke to Mr Field about that as well on the phone. Q. Did you take the key? A. No, we didn't. Q. Do you remember roughly what time it was when you and your wife went up to the bedroom? A. It was probably somewhere around 9, 9.30. I can't recall exactly what time. Q. Did you stir out of your bedroom at all until the next morning? A. No, we did not." 157 Mr Shapero denied, and was somewhat puzzled by, the suggestion that he had acted improperly at Jenolan Caves House (T919-920): "Q. Did you, Mr Shapero, pull your pants down in the billiard room? First of all, did you pull your pants down in the billiard room? A. No, I did not. Q. Did you take one of the staff into the toilet with you? A. No, I did not. My wife was there. No, it never happened. Q. Did somebody, a staff member, come in and attempt to save the poor girl you--- A. I don't even know what this is all about. Q. Was there a scuffle with a staff member involving you and a staff member? A. Not with me, no, as far as I know. Not with me and not with anybody else that I know about. Q. The next morning did you go down for breakfast? A. That's correct. Q. What do you recall about the breakfast? A. Something happened in the kitchen, either with the staff, some staff was put off or the cook was late or something. The food was, there was cereals, there was milk, the hot food was hardly any of it and what there was was cold. The coffee I thought was cold. We basically didn't have breakfast and we left the dining room. Q. Did you check out that morning? A. Yes, we did. We basically went back to our room straight after breakfast and went down to reception. We had enough. Q. What do you recall happening at reception when you checked out? A. At the time we got there there was a lot of other people there with similar complaints, or other complaints." 158 Mr Blackburn SC asked Mr Shapero about events when he and his wife checked out of Jenolan Caves House (T921): "Q. Who was on reception, do you recall? A. There was a young girl on reception at the time. Q. Did you say something to her? A. We just told her that we weren't happy with what has all come, what it was about, and we were refusing to pay our bill. Q. When you say you told her that you were refusing to pay the bill, can you remember … A. The balance of the account. We had paid a deposit. Q. What was the balance of the account, how much had you paid? A. I can't recall that at all exactly. It was probably $1,000, I suppose, I'm not too sure. I can't recall the exact amount. Q. Do you remember how much was outstanding approximately? A. No, I can't, not now. Q. What did the person say to you? A. With the farce [sic] that I kicked up and other people were there kicking up, the girl called another young chap over at the same time to help her in the reception area and the suggestion was given to us not to pay the bill at that point of time and to contact Mr Field or I would contact Mr Field on the Monday morning. Q. On the Monday morning did you contact Mr Field? A. I think I tried to contact Mr Field and Mr Field also contacted me. Q. Did you finally speak to him? A. Yes. Q. This is obviously on the telephone? A. That's correct. Q. What did you say to Mr Field? A. I told him how I felt about not paying our account, the way the rooms was, the way the whole general weekend away was. He said to me legally I was bound to pay the account. I didn't know my legal rights or not, so I think at the end of the day we did pay the account. Q. Did Mr Field offer you anything like an apology? A. No, there was no apology. Q. Did Mr Field say anything to you about the matters that I have just raised with you, namely, the alleged dropping of the pants and taking a female … A. No. It's the first I heard about it recently." 159 In cross-examination, Mr Evatt approached the topic of improper conduct on the part of Mr Shapero in the following way (T926): "Q. My friend has read certain passages of the transcript and I think you appreciate, do you, that my friend is appearing for the newspaper? A. Yes. Q. And I am appearing for Mr Field? A. Yes. Q. Will you accept Mr Field's apology for any accusations that have been made against you of improper conduct, or you won't accept it? A. Well, I don't want anything on my record or anything else saying I did all these pulled my pants down and et cetera, no. I will have something in writing of Mr Field's, yes. Q. So you are not prepared to accept an apology? BLACKBURN: I object to that. WITNESS: No, I will accept a written apology, yes. EVATT Q. You had some strong opinions about the conditions and services of the hotel when you went there. While you were there you formed some strong views about the hotel? A. That's correct. I didn't think it was up to my well, my average standards of what a room or accommodation should have been. Q. Would you agree that you exaggerated your complaints? A. No, I did not exaggerate. As a matter of fact I think I have done quite the opposite. Q. All right, underestimated? A. Underestimated by a long way." 160 Mr Evatt put the following questions to Mr Shapero in cross-examination (T930): "Q. Do you agree that you were overreacting about the complaints? A. No, I wasn't overreacting at all. No, I believe I was underreacting. Q. I have got to ask you these questions. A. No, that's all right. As far as I was concerned I was underreacting. Q. I know you are going to answer them all no, but I am under some legal obligation to put these. A. That's okay. Q. And I will be pretty surprised that you answer any of them yes. Would you agree that your complaints were exaggerated? A. No. Q. That you were overreactive? A. No. Q. And that the conditions and service at the Caves House wasn't as bad as you've said? A. It was bad or worse." 161 I have included these extracts from the evidence of the Plaintiff and Mr Shapero to illustrate the following point. The Plaintiff appears to have amplified and exaggerated, in an extraordinary way, an incident which he said had involved improper conduct by Mr Shapero. The Plaintiff maintained and repeated his strong criticisms of Mr Shapero whilst giving sworn evidence, including the suggestion that Mr Shapero should have "gone to gaol" and "been locked up". Mr Shapero was called to give evidence and an apology was proffered to him by the Plaintiff's counsel during cross-examination. 162 This illustrates the capacity of the Plaintiff to exaggerate and make strong statements which he considers to operate in his favour, despite the absence of any objective foundation for the statements. On the face of it, Mr Shapero and his wife attended Jenolan Caves House with work colleagues and their families and, on his account (which I again accept), he experienced a poor quality of accommodation, service and treatment in nearly all respects. Understandably, he complained about it. He did not strike me as a person who rushed to complain about things in a hypercritical way. He was a down-to-earth witness with legitimate grievances to raise. His evidence suggests that he was not alone on this weekend in complaining of fundamental deficiencies at Jenolan Caves House. 163 On the other hand, the Plaintiff leapt to somewhat extraordinary allegations against Mr Shapero, based (at best) upon shaky and confused hearsay sources. If there was some doubt in the Plaintiff's mind that he was associating Mr Shapero wrongly with some other incident, it is extraordinary that he would give evidence of the type which he did at the hearing. All of this fortifies a conclusion that great caution ought be exercised before accepting the Plaintiff's evidence, on any issues which are in dispute. Activities at Jenolan Caves House - Complaints and Other Evidence 164 Counsel for the Plaintiff and the Defendant made extensive submissions concerning the nature and quality of the facilities and services available at Jenolan Caves House at relevant times, including submissions about the correct approach to assessing evidence of complaints by guests concerning those matters. 165 Mr Evatt submitted that a process of mathematical extrapolation ought be undertaken, by reference to the documentary and oral evidence of complaints made by guests over a number of years, leading to a conclusion that the level of complaints was unremarkable. He invited, as a starting point, a finding that all documentary complaints by guests were in evidence. He then submitted that an assumption could be made (for the sake of argument) that there were five times more dissatisfied guests than the number of actual complainants revealed by the evidence (T1642). Upon this premise, Mr Evatt submitted that the level of complaints would still be unremarkable in the real world of hotel accommodation. He referred to the evidence of Ms Duffy, a witness called by the Plaintiff, who had served as manager of Jenolan Caves House between 1996 and 1998 and also had some experience in the hotel industry. 166 Mr Blackburn SC submitted that great care ought be taken before any mathematical extrapolation or assumption was made by reference to the documentary and oral evidence of complaints adduced at the hearing. He submitted that there was an unsound foundation for the assumption that the totality of written complaints provided by guests in the relevant period, are before the Court. He referred to evidence from the Plaintiff concerning a complaints book, said to have been maintained at the desk in Jenolan Caves House (T108), which had not been produced. Reference was also made to the fractured and protracted process of discovery by the Plaintiff in these proceedings (T1642). He noted that a large number of documents had been furnished to the receiver and manager following the removal of the Plaintiff from his position in December 2005. The process of discovery and subpoenas had led to a range of documents being made available to the parties but, Mr Blackburn SC submitted, the Court ought not be satisfied that a complete set of documents had been furnished. He pointed to issues concerning discovery, which remained a live topic even at the resumed hearing in February-March 2009. The Defendant emphasised that no complaints book had been discovered or produced, despite clear evidence that such a book had been used at Jenolan Caves House. 167 I accept the Defendant's submission that a process of mathematical extrapolation is an unsound way to reach a conclusion with respect to the quality of facilities and services at Jenolan Caves House at relevant times, and the true level of complaints about those matters. In addition to the issues raised by the Defendant, I note the account of several guests (see, for example, Mr Shapero at [157] above) that a number of guests were complaining at the front desk at the same time about aspects of the service and facilities, yet not all those persons have come to light as complainants despite their obvious dissatisfaction with Jenolan Caves House. It appears probable that the number of identified complainants represent the tip of the iceberg, but it is speculative to attempt an actual assessment of the iceberg's size. 168 In my view, a more reliable approach to fact finding concerning the quality of services and facilities provided at Jenolan Caves House, ought take into account the various classes of evidence which operate as "windows" into the operation of Jenolan Caves House, and some insight concerning these issues. This evidence falls within the following classes: (a) the accounts of guests who were called to give evidence (or who made statements and were not required for cross-examination), who provided favourable and unfavourable accounts concerning their experiences at Jenolan Caves House at different times; (b) present and former staff members at Jenolan Caves House who gave evidence (or who made statements and were not required for cross-examination) concerning the conduct of Jenolan Caves House, its services and facilities; (c) evidence of officers from regulatory authorities (including persons who made statements and were not required for cross-examination) concerning a number of issues, including asbestos removal, fire safety and food safety; (d) the evidence of the Plaintiff concerning these issues. 169 It is important to keep in mind the nature and location of Jenolan Caves House. It is not a city hotel. It comprises a number of buildings, of different vintages, located in a remote location inside a National Park. The evidence of the guests makes clear that these aspects provided a primary attraction to stay at Jenolan Caves House, accompanied, of course, by a desire on the part of guests to visit the famous caves located nearby. No standard of perfection was appropriate, in assessing reasonable expectations of guests as to what was to be expected and encountered at Jenolan Caves House. 170 That said, the evidence suggested that the cost of accommodation, service and facilities at Jenolan Caves House was not cheap. It was not a budget facility. Guests paid not insubstantial sums of money for the services which were provided. Making due allowance for the challenges of the location, minimum acceptable standards would include clean and functional rooms, bathrooms and public areas, a consistent and reliable supply of hot water, competent and polite staff with appropriate experience, a range of food being available for meals, including provision for guests arriving and checking in during the evening who wished to have, at the least, light refreshments. These were reasonable expectations of guests, having regard to the isolated location of the premises, its advertised status and the rates charged by management for guests staying at Jenolan Caves House. The Pleaded Defences 171 I have set out above (at [8]) the defences pleaded in the Further Amended Defence. I turn next to consider those defences. A number of factual findings which I have made will bear upon the outcome of the pleaded defences. 172 The New South Wales defences constituted the real battleground in these proceedings. This reflected the practical reality that "The Sunday Telegraph" was and remains a New South Wales-based publication. The Defendant's answers to interrogatories (Exhibit AH) revealed an estimated readership of "The Sunday Telegraph" for 20 November 2005 of 1,897,000 in New South Wales and 26,000 in Queensland. The circulation of "The Sunday Telegraph" for 20 November 2005 was (Exhibit AH): (a) New South Wales - 683,556. (b) Victoria - 1,981. (c) Queensland - 12,727. (d) Tasmania - 578. (e) Northern Territory - not applicable. (f) Western Australia - 70. (g) South Australia - 97. (h) Australian Capital Territory - 19,731. Defence of Substantial Truth 173 The Defendant relies on the defence of substantial truth for each imputation. 174 Each imputation is a separate cause of action. It is incumbent on the Defendant to establish that each material part of the imputation is substantially true: Howden v Truth & Sportsman Limited [1937] 58 CLR 416 at 420-421. However, it is a defamatory sting which must be substantially true and minor variations do not matter: Sutherland v Stopes [1925] AC 47 at 55, 79. 175 In New South Wales, the Defendant must satisfy the requirements of s.15 Defamation Act 1974 (NSW): (a) that the imputation was substantially true; and (b) that the imputation related to either a matter of public interest or was published under qualified privilege. An imputation or matter is substantially true if in substance it is true, or in substance it is not materially different from the truth: s.7(2). 176 With respect to public interest, there is no bright line test and a value judgment is involved: Green v Schneller [2000] NSWSC 548 at [19]. Topics that excite the appetite of members of the public for gossip or speculation or lasciviousness, cannot be equated to matters of public interest: Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139 at [104]. A subject of public interest includes the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion: Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215. 177 The elements of qualified privilege for the purpose of s.14 and s.22 Defamation Act 1974 (NSW) will be considered later in the judgment. The Distinction Between Imputations 7(a) and 7(b) 178 Both the Plaintiff and the Defendant accepted that imputations 7(a) and 7(b) were general allegations with the remaining imputations being specific allegations. 179 The Plaintiff submitted that imputation 7(a) is in a different category to the remaining seven imputations. Mr Evatt submitted that unfitness to manage extends beyond an allegation of incompetence and involves personal fault or conduct which has made the Plaintiff unfit. He submitted that imputation 7(b) was a general allegation of incompetence, with imputations 7(e) to (n) relating to particular incidents or conditions said to have resulted from bad management. Mr Evatt emphasised that the Rules provide that each imputation must differ in substance from each other (Uniform Civil Procedural Rules 2005 Rule 14.30(c)), with the object of this rule being to preclude substantially similar imputations arising from the same publication: Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 at 771. Thus, Mr Evatt submitted, imputation 7(a) differed in substance, in the way he contended, from the other imputations. 180 Mr Evatt submitted that a person may be incompetent in the management of a hotel without being unfit. He contended that a person would be unfit to manage a hotel if, for example, he was an alcoholic, a thief, mentally disturbed or dishonest. 181 Mr Blackburn SC submitted that imputation 7(a) took its meaning from its context. He submitted that, if there was a distinction between imputations 7(a) and 7(b), it was more apparent than real, since an assessment of fitness, like an assessment of competence, required the Court to examine all of the evidence from which inferences may be drawn. For this reason, the Defendant submitted that evidence relevant to the truth of imputation 7(b) was equally relevant to the truth of imputation 7(a). 182 Mr Blackburn SC submitted that the content of the article complained of shed light upon the meaning of the word "unfit" in this imputation. He submitted that the meaning argued for by the Plaintiff did not arise from the content of the publication, and ought be rejected. 183 I have considered the competing submissions. I note that the Defendant did not seek to strike out one or other of imputations 7(a) and 7(b) before Nicholas J on 20 April 2006 upon the basis that they were, in substance, the same. It remains for me to determine the meaning of each imputation. According to the Macquarie Dictionary, the word "unfit" has the following meanings: "1. not fit; not adapted or suited; unsuitable; not deserving or good enough. 2. unqualified or incompetent. 3. not physically fit or in due condition." There is a degree of overlap between the concepts of unfitness and incompetence. 184 The relatively narrow construction of the word advanced by the Plaintiff is neither supported by the dictionary definition, nor the content and context of the articles published on 20 November 2005. A fair reading of the matter complained of does not suggest any flavour or context of the Plaintiff being an alcoholic, a thief, mentally disturbed or dishonest. Fitness to manage an establishment such as Jenolan Caves House involves concepts of suitability, qualification and temperament, which are capable of extending beyond competence. I approach imputation 7(a) in this way. 185 I will return to imputation 7(a) after considering the issue of management, a concept common to all eight imputations. Involvement of the Plaintiff in Management of Jenolan Caves House 186 Earlier in this judgment ([114]ff), I made findings as to whether the Plaintiff was involved in the management of Jenolan Caves House. It will be recalled that the Plaintiff was adamant that this was not his role. In light of the totality of evidence, I rejected this claim and made a finding that the Plaintiff was involved in the management of Jenolan Caves House, for practical purposes, certainly in the period 2003 to 2005. I accepted that the Plaintiff was involved in almost all aspects of the management of the business at Jenolan Caves House. As mentioned earlier, this finding was supported by oral and documentary evidence indicating the Plaintiff's role in selection of staff, his interaction with regulatory agencies and others concerning food safety, hot water, fire safety and asbestos issues, and documents pointing to him being the regular point of contact when, as frequently occurred, complaints were made by guests concerning Jenolan Caves House. 187 I am satisfied that the Plaintiff played a managerial role with respect to the issues referred to in the matter complained of from (at least) early 2003 until December 2005. Although other persons (for example, Brian Cook) were employed, from time to time, to fulfil some managerial functions at the property, it was the Plaintiff who dealt with a range of practical issues, in a hands-on fashion, concerning the operation of Jenolan Caves House which may be characterised as managerial in nature. The Plaintiff's own account that he was remote from managerial functions was patently untrue. Imputation 7(b) - The Plaintiff was Incompetent in the Management of Jenolan Caves House 188 For the purpose of this and the other imputations, I am satisfied that the Plaintiff was involved in the management of Jenolan Caves House. Imputation 7(b) asserts that he was incompetent in this respect. According to the Macquarie Dictionary, the word "incompetent" relevantly means: "1. not competent; lacking qualification or ability: an incompetent candidate. 2. characterised by or showing incompetence." 189 The Defendant submitted that the Plaintiff's competence as a manager may be judged by reference to two broad categories of evidence: (a) direct evidence of acts by him (such as his serious failure to remove asbestos, his failure to comply with food hygiene and fire safety standards, his handling of guests and his failure to fix the hot water problem), and (b) inferences to be drawn about his management from the numerous other failings at Jenolan Caves House identified in the evidence, such as complaints about a lack of cleanliness, poor service and other matters. 190 The Defendant addressed a number of topics which bore upon the general allegation in imputation 7(b). I will use the Defendant's headings for the purposes of making particular findings. Failure to Remove Asbestos Submissions of Parties 191 With respect to failure to remove asbestos, the Defendant submitted that the Plaintiff had failed to comply with the requirements of the Trust in this regard. The Defendant pointed to the unchallenged evidence of Paul Williams of the Trust concerning the asbestos problems at Jenolan Caves House. Evidence was also led from Trent Lee, an independent asbestos inspector, engaged by the Trust during the Plaintiff's occupation of Jenolan Caves House. 192 Between 1996 and 2005, the Trust conducted maintenance inspections of Jenolan Caves House in conjunction with the New South Wales Department of Commerce. The asbestos problem at Jenolan Caves House was identified as early as 1997 and, by 2003, asbestos was still present with its removal being identified as a priority maintenance issue. The Defendant submitted that the numerous reports obtained by or on behalf of the Trust, between 1997 and 2004, uniformly identified asbestos as a problem at Jenolan Caves House and called for its removal. Those reports and their recommendations were communicated to the Plaintiff. The Defendant submitted that the Plaintiff's response to the asbestos issue, and other maintenance issues, was at least unco-operative and, at times, defiant. 193 The Defendant submitted that the Trust's requirements in relation to the removal of disturbed asbestos were unequivocal and were identified repeatedly and communicated to the Plaintiff who failed to meet them. The Defendant submitted that the Plaintiff's handling of this serious issue, like his handling of other serious health and safety issues, such as fire and food safety, was especially relevant to the truth of imputation 7(b). 194 It was submitted that a competent hotel manager would have taken active steps to protect workers and guests from the dangers of disturbed asbestos, and that this was a matter particularly within the Plaintiff's control as occupier of the premises. The Defendant submitted that the fact that the Plaintiff was asked, by the Trust, on many occasions, to deal with this issue and yet failed to take remedial action, strongly supported the defence of truth with respect to imputation 7(b). 195 The Plaintiff's principal response on the asbestos question was that he was not legally responsible for this issue. It was submitted that the 99-year lease was granted by the Trust in 1990 and that it was not until December 1994 that the Plaintiff, through his company, became the owner and lessee of Jenolan Caves House. Reference was made to provisions of the 99-year lease (Exhibit O) which, it was submitted, placed the obligation to remove disturbed asbestos upon the initial lessee in a period which expired in 1993. Decision 196 The 99-year lease, entered into in 1990 did make provision with respect to removal of disturbed asbestos. The lessee was obliged to carry out certain refurbishment works within the refurbishment period (clauses 4.1-4.2). Schedule 11 of the lease required refurbishment works (including removal of disturbed asbestos) to be carried out within three years of the commencement of the lease on 2 July 1990. Clause 8.1 of the lease also required the lessee to repair and maintain the premises. Clause 5.6 obliged the lessee to comply with statutory requirements. The evidence indicates that the asbestos issue was not dealt with by the original lessee before the Plaintiff acquired his interest in the property and business. Thereafter, the evidence demonstrates that the asbestos problem was not resolved by the Plaintiff, despite official requirements for this to be done. 197 The evidence reveals that concerns were raised regularly with the Plaintiff between 1997 and December 2005 concerning the presence of exposed, leaking and disturbed asbestos in various parts of Jenolan Caves House (Exhibits 8, 9, 10, 11, 12, 13, 14, 15; Exhibit 35 Tab 14 (Lee), Tab 17 (Smith), Tab 18 (Williams)). A letter to the Plaintiff from the Trust dated 24 November 1997 (Exhibit 9) raised the requirement of the lessee to comply with clause 8.1 of the lease with respect to asbestos contamination. The report of Mr Smith dated 11 March 2003 (Exhibit 10, paragraph 1.0) expressed concern, observing that "given the public's possible exposure, issues such as the current level of exposed asbestos needs to be addressed immediately by an independent consultant". Mr Smith's report pointed to the presence of exposed and loose asbestos at various points in the premises. Exposed asbestos was still present on 13 October 2003 (Exhibit 13). In July 2005, Mr Lee, an environmental geologist with Parsons Brinckerhoff, inspected Jenolan Caves House at the request of the Trust. The Plaintiff was present, described by Mr Lee as "the manager of the hotel" (Exhibit 35, Tab 14, paragraph 11). Exposed and disturbed asbestos was observed, including disturbed asbestos "in an area where, if a guest or staff walked past, they could easily brush against it" (Exhibit 35, Tab 14, paragraph 14). A lot of exposed and disturbed asbestos was located in the boiler room (Exhibit 35, Tab 14, paragraph 17). A significant amount of disturbed asbestos was located in the ceiling spaces of the hotel (Exhibit 35, Tab 14, paragraph 19). The piping works for all of the showers were located in the ceiling spaces and Mr Lee observed that "nearly every single pipe for the showers had a breach or cut in the lagging exposing disturbed asbestos" (Exhibit 35, Tab 14, paragraph 19). Some of the breaches were caused by animals living in the ceiling spaces (Exhibit 35, Tab 14, paragraph 19). Mr Lee considered that the disturbed asbestos in the ceiling spaces "posed a very serious risk to guests and employees at the hotel" (Exhibit 35, Tab 14, paragraph 21). There was "a substantial amount of disturbed asbestos in the hotel in areas which could be easily accessed by the public" (Exhibit 35, Tab 14, paragraph 22). Speaking generally, Mr Lee considered that the hotel was "in really bad condition" (Exhibit 35, Tab 14, paragraph 27). He had conducted many site inspections and surveys of buildings, and considered "that the condition of the structures at the hotel was one of the worst" he had seen (Exhibit 35, Tab 14, paragraph 30). 198 I accept the evidence of Mr Lee, which was admitted without objection and was not the subject of cross-examination. It is inherently credible and is supported by contemporaneous documentation. 199 This issue is to be considered upon the basis of a long-standing failure on the part of the Plaintiff to deal with issues of exposed and disturbed asbestos which placed guests and staff at risk. 200 In addressing this aspect in the case, it is important to keep in mind the terms of imputation 7(b). Evidence of the Plaintiff's failure to act on this topic relates to the period between 1997 and 2005. Several reports prepared in that period pointed to the location of exposed and disturbed asbestos at Jenolan Caves House, and the necessity for its removal. The Plaintiff was the point of contact with relevant authorities for this purpose. The asbestos was not removed. It was the Plaintiff who continued to effectively manage Jenolan Caves House, with the presence of asbestos constituting a concern for guests and employees alike. I am satisfied that a competent manager would have been expected to act promptly on this issue in the interests of the safety of guests and staff. 201 I do not consider that the Plaintiff is assisted by his reliance upon that part of the lease which required steps to be taken by the original lessee by July 1993. It was apparent to the Plaintiff, at least by 1997, that this had not been done. The Plaintiff and his lessee company had obligations under the lease with respect to maintenance and repair which called for action concerning asbestos. In any event, the continued operation of Jenolan Caves House by the Plaintiff from 1997 to late 2005, without necessary action being taken to remove exposed and disturbed asbestos, placed guests and staff at risk. This was cogent evidence of the Plaintiff's incompetent management of Jenolan Caves House. 202 In my view, the failure by the Plaintiff, over a lengthy period, to address the asbestos problem, provides significant support for the Defendant's case that imputation 7(b) was substantially true. Failure to Comply with Fire Safety Standards and Food Safety Standards Submissions of Parties 203 With respect to failure to comply with fire safety standards, the Defendant referred to the evidence of Mr Tambasco, an Oberon Council inspector, concerning significant problems with fire safety in the staff accommodation blocks, including the building known as St Trinians. Complaint was made to Mr Tambasco in June 2004 concerning the absence of a fire escape and some alarms. A Council inspection took place on 5 August 2004 and, on 6 August 2004, the Council served upon the Plaintiff an emergency order requiring the trainees' accommodation to be vacated, and work carried out. An inspection on 12 August 2004 showed that the emergency order had not been complied with, and that trainee staff were still occupying St Trinians, leading to the issue of a penalty notice. 204 The Defendant referred to the evidence of Zone Commander Anthony Grant of the New South Wales Fire Brigades concerning a comprehensive fire inspection carried out in March 2006, shortly after the Plaintiff had ceased to operate the resort. The Defendant submitted that systemic issues identified by Mr Grant pointed to long-standing fire safety problems at Jenolan Caves House. Mr Grant was "quite shocked and taken aback by the fire safety" of Jenolan Caves House and the "lack of fire safety equipment and provisions in place in case of a fire meant it was a disaster waiting to happen" (Exhibit 35, Tab 13, paragraph 47). The Defendant submitted that an inference ought be drawn that the state of affairs described by Mr Grant existed soon before when the property was under the control of the Plaintiff. 205 With respect to failure to comply with food safety standards, the Defendant referred to the evidence of Mr Tambasco of inspection of food areas of Jenolan Caves House on a regular basis between 1996 and August 2004. Mr Tambasco stated that Chisolms Restaurant presented significant problems and that it had a very low food-hygiene standard. The Defendant submitted that the Plaintiff was plainly aware of these significant hygiene issues, because he often accompanied Mr Tambasco on his inspections and repeatedly told him that the restaurant kitchen was "difficult to clean, given it's [sic] age". 206 The Defendant referred to Mr Tambasco's evidence concerning attempts by Council to cause the Plaintiff to improve the food safety at the premises, with the Plaintiff failing to take the required action, resulting in the issue by Council of a work order and penalty notice in November 2003. The Defendant submitted that the food premises inspection reports issued for Jenolan Caves House revealed a pattern of alarming failures with respect to basic food hygiene practices, such as regular cleaning, something which Mr Tambasco noted consistently to be absent during the period 1996 to 2004. During that period, not a single food area inspection report expressed any degree of satisfaction with the basic hygiene practices of the kitchen in Chisolms Restaurant. 207 The Defendant submitted that, even when food safety issues were addressed, they were addressed slowly. In October 2003, there was evidence of rodent activity in the kitchen and an eradication program was required. A month later, a follow up inspection found that vermin droppings were still evident. A report by Mr Tambasco in January 2004 required the removal of dead vermin from under the steel bench. The Defendant submitted that a commercial kitchen which took four months to eliminate a rat problem, despite three council inspections, was badly managed. The Defendant pointed to other hygiene problems, including a report in 2004 that the temperature of the main fridge was 10 degrees, despite consistent advice since 1996 that a thermometer was required for all fridges to ensure that they were kept at below five degrees. 208 With respect to fire safety and food safety issues, the Plaintiff referred to evidence from the Plaintiff that he had employed a fire officer who visited twice a year to check on fire safety and had spent $10,000.00 to $15,000.00 on fire safety. In response to the Defendant's submissions concerning Mr Grant's inspection of March 2006, Mr Evatt submitted that the Plaintiff had been replaced by the receiver and manager on 9 December 2005, and that the evidence did not indicate what the condition of Jenolan Caves House had been between December 2005 and March 2006. 209 With respect to food safety standards, Mr Evatt noted that there had been no prosecution and submitted that the Plaintiff was not the manager of Chisolms Restaurant. He submitted that the Defendant's reliance upon vermin control highlighted one of the impossibilities of Jenolan Caves House, given its bush location and the presence of rodents in the surrounding area. Decision 210 I accept the evidence of Mr Tambasco and Mr Grant which was relied upon by the Defendant with respect to fire safety and food safety issues. This evidence was admitted without objection and was not challenged by cross-examination. It is supported by contemporaneous documentation and is of strong probative value. 211 The evidence of Mr Tambasco points to the direct involvement of the Plaintiff at Jenolan Caves House with respect to food safety and fire safety issues. It supports the conclusion, already expressed, that the Plaintiff played a critical role in the practical management of Jenolan Caves House. There is a pattern of inspection, warning and inaction (or, at best, inadequate action) with respect to fire safety and food safety issues on the part of the Plaintiff. 212 I do not accept the uncorroborated evidence of the Plaintiff concerning the employment of a person as a fire officer, who was said to attend twice a year to deal with fire safety issues. The detailed evidence of Mr Tambasco points to entrenched and long-standing fire safety issues. In addition, although Mr Grant inspected Jenolan Caves House in March 2006, several months after the Plaintiff had vacated the premises, his inspection revealed a highly unsatisfactory state of affairs which I infer was long standing, and extended well back into the period when the Plaintiff controlled the premises. Certainly, there is nothing in the evidence of Mr Grant which points to the grave deficiencies in fire safety being of very recent origin only. 213 With respect to food safety issues, it is noteworthy that Mr Tambasco dealt with the Plaintiff, and that it was the Plaintiff who offered explanations concerning the difficulty of cleaning the kitchen in Chisolms Restaurant. Once again, this sheds light upon the Plaintiff's hands-on role at Jenolan Caves House. It was the Plaintiff who had the ability to require action to overcome food safety issues. 214 I make allowance for the setting of Jenolan Caves House, surrounded by bushland. However, competent management ought to have ensured an effective cleaning regime in the kitchen and more effective steps for controlling vermin. The maintenance of proper food hygiene standards was an essential management requirement, in the interests of guest and staff safety, at premises such as Jenolan Caves House. 215 The Defendant has satisfied me that these aspects reflect most adversely upon the competence of the Plaintiff in his management of Jenolan Caves House, and thus these issues assist the Defendant in establishing that imputation 7(b) was substantially true. Failure to Supply Hot Water Submissions of Parties 216 The Defendant submitted that, by November 2005, one of the most consistent complaints made by guests of Jenolan Caves House was that there was no, or insufficient, hot water. The Plaintiff acknowledged this to be the most common complaint. The Defendant submitted that the Court should find that there was a consistent failure to provide hot water at Jenolan Caves House, and that this failure was attributable to the Plaintiff's management. 217 The Defendant submitted that the hot water problem at Jenolan Caves House appears first to have developed shortly after the Plaintiff took over management. There were intermittent complaints concerning hot water between about 2000 and late 2003. The Defendant submitted that, by about late 2003 or early 2004, the lack of hot water appeared to have become more permanent. The Defendant submitted that, by winter 2004, complaints of lack of hot water were almost constant. On 27 July 2004, Mr Reilly of the Trust wrote to the Plaintiff to express concern about the number of complaints over recent months in relation to hot water, with the matter being raised again by Mr Reilly in August 2004 (Exhibit 23, Tabs 52, 54 and 59). 218 The Defendant submitted that there was little dispute that, by winter 2004, there was a serious disruption to the supply of hot water at Jenolan Caves House. Reference was made to many of the Defendant's witnesses who gave direct evidence of the lack of hot water - Mr Irvine and Mr Terracini (February 2003), Mr Reid (July 2004), Mr Thorne (July 2004) together with Mr Stojanovic, Ms Padgen and Mr Cowan (July-August 2004). The problem persisted throughout 2004 and into 2005 - Mr and Mrs Cleaves (September 2004), Mr and Mrs Woollcombe (October 2004), Ms Mason (January 2005) and Mr Eaton (August 2005). The Defendant submitted that the evidence of Ms Weaver and Mr Bilton of their experience in November 2005 was entirely consistent with this pattern of complaint. It was submitted that, like so many other guests, there was insufficient hot water for at least one of the two occupants of a room to shower. 219 The Defendant submitted that an explanation for this hot water problem may be found in the evidence of Mr Gary Liccardo, a maintenance worker and plumber at Jenolan Caves House (Exhibit 35, Tab 16). Mr Liccardo commenced work on 4 July 2005, and described the Plaintiff as Jenolan Caves House manager at that time. The Defendant submitted that Mr Liccardo's evidence established that the Plaintiff failed or refused to supply salt for the water softeners which were essential to the maintenance of the resort's plumbing, and that the resulting calcium build up wrought havoc on the hot water service, since it caused the boilers to fail and the pipes to block. The problem was worsened by the fact that inappropriate plastic pipes had been installed to carry hot water, and that the calcium and pressure caused them to crack. The Defendant pointed to the evidence of Mr Liccardo that he raised this issue with the Plaintiff about one week after commencing work at Jenolan Caves House in July 2005, but that nothing was done about it, with the Plaintiff responding that the money was not available to deal with the issue. Mr Liccardo checked the maintenance record for the boilers and saw that they had not been certified since 2002. Mr Liccardo said that the Plaintiff told him not to speak to anyone from the Trust, nor to let anyone from the Trust see the boilers or hot water system (Exhibit 35, Tab 16, paragraphs 24-26). Mr Liccardo said that no preventative maintenance was performed. 220 The Defendant submitted that Mr Liccardo's description of the hot water problem was consistent with the conclusions reached by Mr Williams, the Manager of Maintenance and Capital Works Projects at the Trust (Exhibit 35, Tab 18). Mr Williams stated that regular maintenance work was done up to 1995 but that, between 1995 and the end of 2005, very little maintenance work was done. It was only after the Trust took over the operation of Jenolan Caves House that real repairs started to happen (Exhibit 35, Tab 18, paragraph 10). 221 Mr Williams observed that, prior to December 2005, he had noticed things that suggested to him that there were problems with the heating system. The full extent of the problem could not be ascertained until the Trust took over in 2006. The Defendant submitted that, like Mr Liccardo, Mr Williams observed a calcium build up resulting from the failure or refusal to soften the water before it entered the resort's hot water system. Mr Williams commissioned a report on the hotel's steam-heating system, which identified significant and long-standing failings in the steam-heating system which had similar causes. 222 The Defendant noted the evidence of Mr Williams that, despite seeing water flowing from the boiler room during building inspections, the Plaintiff had refused access to the boiler room and gave excuses as to why the water was flowing (Exhibit 35, Tab 18, paragraphs 86-87). 223 When the Trust's maintenance team was finally allowed into the boiler house in December 2005, Mr Williams described it as "disgraceful" and that "bits of high pressure pipe had been replaced with bits of low pressure PVC pool pipe" (Exhibit 35, Tab 18, paragraph 88). He also observed the resulting calcium build up and broken PVC pipes which were inappropriate for use in the hot water system (Exhibit 35, Tab 18, paragraphs 92-93). 224 The Defendant referred to Mr Williams' evidence of an approach to a boiler maintenance firm in July 2006, to repair the boilers and associated water system at Jenolan Caves House, only to be told that the firm refused to do any more work for the Plaintiff because he had not paid them, and that he always waited until things were totally broken before calling and that he always wanted the cheap way out (Exhibit 35, Tab 18, paragraph 95). Mr Williams stated that the hot water problem was finally fixed, at a cost of approximately $80,000.00 to the Trust (Exhibit 35, Tab 18, paragraph 96). 225 The Defendant emphasised that the evidence of Mr Liccardo and Mr Williams about the causes of the hot water shortage had been admitted without objection, and was not cross-examined on, and that it ought be accepted. 226 The Defendant submitted that the Plaintiff's explanation for the failure of hot water to the effect that insufficient fresh water flowed to the resort through the Trust's pipes because of weed, debris and mud should be rejected. The Defendant emphasised that the Plaintiff's evidence was not logically coherent. The problem generally was not that no water came out of the taps, but that it came out cold. The Defendant submitted that the cause of the hot water failure was the Plaintiff's own simple failure or refusal to soften the water before it entered the pipes at Jenolan Caves House, and that this was a problem of his making. The Defendant submitted that the problem was compounded by the fact that PVC pipes were inappropriate for a hot water service. All of this, the Defendant submitted, reflected adversely upon the competence of the Plaintiff's management of Jenolan Caves House. 227 With respect to the hot water issue, Mr Evatt referred to the evidence of Mr Craig Walker, a contract carpenter, who worked at Jenolan Caves House between January and September 2005 undertaking general maintenance functions (T1152). Mr Walker spoke of constant problems with the boilers being blocked because of an excessive amount of calcite and that a boiler contractor was called in and took the boiler apart (T1154). Mr Evatt submitted that this evidence supported the Plaintiff's account of hot water being prevented from coming out of the hot water taps (T541). 228 To the extent that the Trust expended some $80,000.00 after July 2006 on the hot water problem, Mr Evatt submitted that this did not point to incompetence on the part of the Plaintiff, but insufficient funds. Decision 229 The evidence of Mr Liccardo and Mr Williams ought be accepted with respect to hot water issues. These witnesses were not required to attend for cross-examination, and their evidence concerns events over a significant period of time and refers, at different points, to the direct involvement of the Plaintiff on the issue. The Defendant's submissions (at [219]-[224]), accurately summarise the evidence of Mr Liccardo and Mr Williams. 230 Having regard to my findings with respect to the Plaintiff's credit generally, I do not accept his evidence on this issue, unless it is corroborated by independent evidence. Mr Walker worked for six months in 2005 carrying out contract carpenter and general maintenance work at Jenolan Caves House. It is not said that he carried out any work himself on the hot water service. I do not consider that Mr Walker's evidence provides any real assistance to the Plaintiff. He acknowledged that the water softeners were not working properly whilst he was employed at the premises (T1159). Mr Walker acknowledged that there were problems with the hot water in 2005 (T1168). 231 I am satisfied that there were entrenched hot water problems at Jenolan Caves House in the period, at least, between 2003 and late 2005. I am satisfied that these problems resulted from poorly maintained hot water and boiler facilities. 232 I do not accept the Plaintiff's explanation for this problem. I am satisfied that the hot water problem was one which proper ongoing maintenance would have resolved. The Plaintiff was well aware of the problem and what needed to be done, but he failed to take appropriate action. 233 I do not consider that the Plaintiff derives any comfort from the fact that it was necessary for the Trust to expend about $80,000.00 in July 2006 to fix the problems. Indeed, this evidence operates against the Plaintiff. It supports the conclusion, otherwise arising from the evidence of Mr Liccardo and Mr Williams, that there was a long-standing failure to properly maintain the hot water system at Jenolan Caves House and, to the extent that work was done, that work was done on the cheap. 234 This pattern fits neatly with the Plaintiff's overall approach to standards of maintenance, safety and cleanliness at Jenolan Caves House over a period of years leading up to November 2005. These matters reflect adversely upon the Plaintiff's managerial competence, in areas of fundamental importance to management of premises such as Jenolan Caves House. 235 I am satisfied that these features operate strongly in favour of the Defendant, and against the Plaintiff, with respect to the substantial truth of imputation 7(b). Failure to Provide Clean Facilities Submissions of Parties 236 The Defendant relied upon evidence of frequent complaints by guests that areas of Jenolan Caves House, particularly bathrooms (both ensuite and communal) were not clean. Reference was made to complaints by a range of persons, in particular, in the period of 2003 to 2005: (a) Graham Beavis, Tom Brown, Mr Plaude, Josephine Miruzzi in July-November 2003; (b) Ms Pagden, Mr Macchetta, Mr Reid, Mr Stojanovic, Margaret Milne, Neale Breden, Robin Voigt, Mr and Mrs Lowth, Frank Stevens, Mr Shapero, Mr and Mrs Cleaves, Peter Brigg and Mr and Mrs Brown in January-November 2004. 237 In addition, the Defendant referred to a letter dated 5 July 2004 from Mr Andrew Fletcher, the General Manager of the Trust, to the Plaintiff expressing concern "at the escalating number of complaints we are receiving regarding the service provided by JCR and in particular housekeeping" (Exhibit 23, Tab 48). In a letter dated 27 July 2004, Mr Reilly of the Trust referred to a number of recent complaints concerning room cleaning (Exhibit 23, Tab 52). 238 The Defendant submitted that another gauge of the hygiene standards of Jenolan Caves House was to be found in the food inspection reports prepared by the Council inspector, Mr Tambasco. It was submitted that Mr Tambasco's evidence, corroborated by his contemporaneous inspection reports over a number of years, was that Chisolms Restaurant had an extremely low standard of food hygiene. The Defendant submitted that Mr Tambasco's account was corroborated by Ms Strangwidge, a former hospitality trainee, who observed vermin in the kitchen and elsewhere on the premises. 239 The Defendant relied upon the evidence of Ms Strangwidge which explained the cleanliness problems. Ms Strangwidge stated that there were frequent occurrences of guest rooms not being cleaned, and that rooms sometimes were not cleaned between guests. She described the problem as one of understaffing, and a lack of proper equipment and resources such as proper cleaning chemicals and functioning implements. She stated that trainees were not trained how to clean and that the hotel's standards of cleaning were "disgusting". Ms Strangwidge also described the conditions of cleanliness of the staff accommodation, St Trinians, where she lived for some time as "disgusting" and stated that, during the time that she lived there, the fridge was broken and contained festering food and cockroaches (Exhibit 35, Tab 15). 240 The Defendant submitted that there was a correlation between the lack of hot water and the cleanliness of Jenolan Caves House. Reference was made to a memorandum dated 29 November 2004 addressed to the Plaintiff, from Jane Ewen and Suzanne Johnston of Housekeeping, entitled "No Hot Water - Winter 2004", stated (Exhibit 28): "During the last winter housekeeping was unable to clean both bedrooms and bathrooms without hot water. It is impossible to clean stains off carpets, curtains and bedspreads, and also the tea and coffee stations and the cups and saucers and glasses in the bedrooms without hot water. Cleaning the bathrooms properly is even more difficult without hot water. The shower screens retain calcium smear stains no matter how thoroughly they are cleaned. The floor tiles and grouting have calcium build up that can not be removed and toilet bowels [sic] , hand basils [sic] and showers also retain stains no matter how much time is spent trying to scrub them properly." 241 The Defendant submitted that the memorandum from Ms Ewen and Ms Johnston made perfect sense. It was submitted that, given the state of the hot water service, it was hardly surprising that guests complained about the cleanliness of the premises as often as they did. 242 Mr Evatt's submission under this heading pointed to the evidence of witnesses called by the Plaintiff concerning the good standard of their rooms and service experienced by them at Jenolan Caves House. The general submission was made that complaints were to be expected from at least some guests and that this was industry experience, with reference being made to the evidence of Ms Lorraine Duffy. 243 Mr Evatt emphasised that the central issue raised by the imputation is incompetence. He submitted that the varying reports of guests of their experiences at Jenolan Caves House over the years did not support a finding of incompetent management by the Plaintiff. 244 Even if the Court accepted the accuracy of the complaints by guests (which, he submitted, it should not), the issue was whether the conditions which caused these problems were due to incompetence rather than, say, a lack of finance, inexperience, the overall condition of "the ancient hotel" or factors beyond the Plaintiff's control. Mr Evatt emphasised that the Defendant bore the onus of proof and that it had failed to establish incompetence on the part of the Plaintiff in the management of Jenolan Caves House and, consequently, had failed to establish the truth of imputation 7(b). Decision 245 The evidence concerning the failure to clean rooms and other parts of Jenolan Caves House, reflected in persistent guest complaints, indicates an entrenched pattern over a significant period of time, in particular, between 2003 and late 2005. The Plaintiff called a number of witnesses who were satisfied guests at Jenolan Caves House in earlier years and, more particularly, in 2004 and 2005. These witnesses generally had no complaints concerning the cleanliness of the rooms. I accept the evidence of these witnesses as I do with respect to evidence of guests called by the Defendant, which included criticisms of the cleanliness of the premises, including rooms, ensuites and communal bathrooms. 246 Accordingly, the Court is left with evidence from two groups of guests who stayed at different times and who described their observations and experiences at Jenolan Caves House. The conclusion may be reached from this body of evidence that the premises were not always clean and were not always dirty. 247 Beyond that, the critical evidence is that which sheds light upon the internal operation of Jenolan Caves House, including evidence of employees, and regulatory officers and third parties who came to inspect the premises for one purpose or another, particularly between 2003 and late 2005. The memorandum of 29 November 2004, from Ms Ewen and Ms Johnston to the Plaintiff, provides direct and contemporaneous evidence of the nexus between the hot water problem and inadequate cleaning at Jenolan Caves House. The evidence of Mr Liccardo demonstrates that the hot water problem was not resolved in 2005. The appropriate inference to be drawn is that cleaning problems continued. These were management failures on the part of the Plaintiff. It is especially noteworthy that the housekeepers addressed their memorandum of 29 November 2004 (at [240]) to the Plaintiff. This was not because of some remote interest which the Plaintiff had in these topics. Rather, it was because he was the person with the perceived and actual managerial responsibility to do something about these problems. This evidence assists the Defendant. 248 I accept that there was a pattern of increasing reliance upon inexperienced trainees to perform a range of tasks within Jenolan Caves House, including cleaning tasks. It was the Plaintiff who was directly responsible for this approach, as exemplified by the evidence of Ms Strangwidge. I accept the evidence of Ms Strangwidge and observe that, in many respects, her evidence is supported by other evidence. 249 I am satisfied that the evidence bearing upon the cleanliness of the premises supports the Defendant in establishing the substantial truth of imputation 7(b). Failure to Provide Good Service Submissions of Parties 250 In support of the substantial truth of imputation 7(b), the Defendant pointed to the range and variety of complaints about service at Jenolan Caves House. This evidence was to be found in the witnesses relied upon by the Defendant, including Mr Terracini, Mr Shapero, Mr Hirschhorn, Mr Haydon, Mr Irvine, Ms Padgen, Mr Cowan, Mr Macchetta, Mr Reid, Mr Stojanovic, Mr Thorne and Ms Gee. The Defendant submitted, correctly, that the complaints traversed almost every encounter a guest might have with the premises, from booking, to billing, to checking in, to parking, cleaning and housekeeping, dining and in the management of complaints. 251 The Defendant pointed to a consistent theme in the evidence of complainant guests that staff were young and inexperienced, and submitted that this revealed the degree to which the lack of management and training of junior staff at Jenolan Caves House reflected itself in poor service. 252 The Defendant readily accepted that many patrons considered many staff members to be good natured and well meaning, as was often noted in written complaints. However, this did not diminish the accompanying criticisms that many staff were poorly supervised, poorly trained and generally ill-equipped to provide good service to guests. The Defendant submitted that, properly understood, the criticisms of guests were directed at management, and not the staff. 253 The Defendant submitted that responsibility for management failings, including the endemic problem of inexperienced and poorly trained staff, lay with the Plaintiff. The Defendant submitted that the fact that clean rooms were provided to many guests was not to the point and was to be expected. It was observed that Jenolan Caves House had periods of low occupancy, such as mid-week, when even poorly trained and ill-equipped staff were capable of cleaning at least some of the guest rooms and bathrooms in the time available. The Defendant submitted that there were sufficient, and sufficiently serious, lapses over such a long period to indicate bad management on a continuing basis. The Defendant submitted that complaints by guests did not represent isolated lapses from an otherwise high standard of housekeeping management. On the contrary, the Defendant submitted that they were indicative of a low standard of management in that and other areas, and that the management failures were those of the Plaintiff. 254 The Plaintiff's submission on this topic emphasised the evidence of the Plaintiff's witnesses concerning their stays at Jenolan Caves House, with no, or little, criticism of service. Decision 255 Some level of complaint is to be expected with respect to any facility which provides accommodation and food. The expectations of guests will vary from the hypercritical and excessively demanding guest, at one end of the spectrum, to the totally forgiving guest with no expectations whatever, at the other end of the spectrum. Between those two extreme positions will lie a wide range of expectations. The challenge for a competent manager is to provide services and accommodation, in light of the charges being made to guests, which are reasonable in the circumstances. Further, a competent manager would be expected to employ competent and experienced staff and ensure a reasonable standard of cleanliness in rooms, bathrooms and other facilities together with a reasonable standard of food and service for the guests. The standard is not one of perfection, but that which guests may reasonably be entitled to expect for the money being paid by them. I have had regard to the evidence of Lorraine Duffy in reaching these conclusions. Ms Duffy's own experience of management of Jenolan Caves House dated back to 1996 to 1998. Her knowledge of guest complaints related to that period, which was far removed in time from the period which is particularly relevant to these proceedings. I accept that Ms Duffy has experience and knowledge concerning hotel management. However, I do not think that her evidence concerning rates of guest complaints assists resolution of the issues in this case. Rather, the Court ought focus upon the evidence which reveals events at Jenolan Caves House, especially in the period from early 2003 to late 2005. Likewise, I do not consider that the evidence of Ms Terrie Honeysett (nee Ward), who worked at Jenolan Caves House between 1998 and 2000, assists the determination of issues in this case. 256 The evidence revealed a high incidence of guest complaints concerning service, in particular, in the period 2003 and late 2005. The evidence also reveals guests in this period who had no complaint concerning service. Even amongst the generally satisfied customers called by the Plaintiff, however, there were signs of systemic problems with staff. Pamela Coghlan detected in August 2005 "a little tension in the air that hadn't been there before amongst the staff" (T668) compared with a 1996 experience. Phillip Harper spoke of service being "a little slow" (T1183) in July 2005. There was a "slight mix up" with Steven Harrison's room in May 2005 and there was someone else in the room assigned to him, with the problem being remedied by staff (T1276). The staff member to whom Kylie Crowe initially spoke on her April 2005 stay was "pretty unhelpful and a bit rude" (T1288) but other staff were satisfactory. Dennis Smith said that service at dinner on their March 2005 stay was "a little slow" and they learned that there were "a lot of trainees" (T1304). Janice Mackellar observed that the service was "quite slow" on her April 2005 stay (T1236) and the hot water did run out in the ensuite (T1326). Ms Mackellar agreed that delay in service and the hot water running out were "rather suggestive of poor management" (T1332). 257 I am satisfied that the evidence points clearly to a deficient system of staff selection and retention, with an over-dependence upon trainees and inexperienced staff. There is direct evidence from Ms Strangwidge to support such a finding, which evidence I accept. It is this combination of evidence which bears upon the question of the Plaintiff's incompetence as a manager, the matter pleaded in imputation 7(b). 258 I accept the Defendant's submissions under the present heading which support a finding of substantial truth concerning this imputation. Other Failings and Complaints Submissions of Parties 259 Under this heading, the Defendant pointed to other failings at Jenolan Caves House revealed by the evidence, including complaints of rude and unhelpful staff, booking and payment difficulties, noise from other guests, drunk staff and other matters. 260 The Defendant referred to what was described as a particular thread in the evidence revealing that the Plaintiff was himself rude to guests. Reliance was placed upon the Plaintiff's attitude to guest complaints revealed in correspondence (Exhibit 23) and in the accounts of guests of their dealings with him, in particular when he was confronted with guest complaints. Examples referred to were as follows: (a) Mr and Mr Doulin from Orange, guests in October 2002 stated that they began to tell the Plaintiff of their concerns but "He rudely walked away from us and didn't want to hear us out - what kind of a manager doesn't deal with his patrons' concerns?" (Exhibit 23, Tab 25); (b) a complainant from Highland Travel Pty Limited concerning coach visits to Jenolan Caves House referred to the Plaintiff ringing back in response to a letter of complaint, and being "very angry" and making threats of court action, taking "a very adversarial and emotional response to the situation" (Exhibit 23, Tab 27); (c) when Trevor Sund and Michael Whitby complained about their stay, the Plaintiff wrote a defensive response dated 9 February 2004, in which he asked the complainants to tell him "who said what and when" before he would follow up their complaints (Exhibit 23, Tab 43); (d) other examples of the Plaintiff's over-reaction to guest complaints were revealed in the statement of Mr Stojanovic (Exhibit 35, Tab 9) and Mr Stevens (Exhibit 23, Tab 56). 261 The Defendant submitted that this evidence was typical of the Plaintiff's intemperate reaction to complaints when confronted with them in cross-examination. It was submitted that the Plaintiff dismissed almost every complaint brought to his attention and revealed a tendency to blame customers for the failings of the establishment. The Defendant referred to the Plaintiff's allegation in evidence against Mr Shapero, a suggestion which was accepted as being incorrect by the Plaintiff's counsel (see [159]ff above). The Defendant submitted that all Mr Shapero had done was to make a legitimate complaint about Jenolan Caves House, with this being met by a response from the Plaintiff at that time, and again in evidence in these proceedings, which was excessive and confrontational in nature. 262 The Defendant relied upon the Plaintiff's response to the complaint by Mr Irvine, the Clerk of Owen Dixon Chambers, where the Plaintiff asserted that the group was very poorly managed and that Mr Irvine should never have been asked to manage the booking in the first place (T99). 263 With respect to these matters, Mr Evatt referred to the evidence of satisfied guests called by the Plaintiff. Decision 264 I agree with the Defendant's submission that the way in which the Plaintiff reacted to guest complaints is relevant to the question whether he incompetently managed Jenolan Caves House. 265 The evidence upon which the Defendant relies in this respect sheds some light upon the personality of the Plaintiff. This is directly relevant to his fitness to be manager of Jenolan Caves House (imputation 7(a)), but is also relevant to his competence in this respect. It might be reasonably expected that a competent manager would deal in a calm and measured fashion with guest complaints. 266 Regrettably, the evidence reveals that the Plaintiff's approach to guest complaints was far from calm and courteous. In addition to the evidence relied upon by the Defendant, which I accept, I mention the evidence of Mr Terracini that, when the Plaintiff was responding to complaints in February 2003, "He had an unusual manner in the sense that on occasions he would place his head in his hands and on another occasion he would wave his hands around quite wildly" (T473). Mr Terracini described the Plaintiff's manner as including waving his arm (in a theatrical way) and emphasising certain words whilst saying to Mr Terracini, concerning Jenolan Caves House staff - "Well, they are hopeless, aren't they. They are absolutely useless, hopeless, you can't get good staff" (T491). 267 The Plaintiff demonstrated a degree of agitation, including the movement of arms, whilst giving evidence in these proceedings. His answers and his demeanour indicated a defensiveness with respect to complaints concerning Jenolan Caves House, accompanied by a tendency to blame others, including guests and the Trust, for the shortcomings of the premises which were under his control. I have referred to this topic already when making findings concerning the Plaintiff as a witness (at [139]ff above). 268 I have sought to make allowance for the pressures of litigation which have surrounded the Plaintiff and the defensiveness which that sometimes causes in a witness. However, the oral and documentary evidence points to these features being present in the Plaintiff for years. This evidence supports a finding that a person who behaves in this way is neither fit nor competent to act as the interface with guests, staff, the Trust and regulatory officers in a managerial capacity at Jenolan Caves House. 269 Accordingly, I am satisfied that these features assist the Defendant in its case that imputations 7(a) and 7(b) were substantially true. Conclusions and Findings in Relation to Imputation 7(b) 270 The Defendant submitted that, arising from the individual topics referred to above, certain findings should be made with respect to imputation 7(b). I accept this submission of the Defendant and make the following findings on the balance of probabilities: (a) the Plaintiff was effectively the manager of Jenolan Caves House; (b) the Plaintiff failed to remove exposed and disturbed asbestos from Jenolan Caves House, despite constant reports and government demands that he should do so; (c) the food area at Chisolms Restaurant was constantly in breach of basic hygiene standards; (d) the Plaintiff failed to ensure that Jenolan Caves House complied with fire safety standards and regulations; (e) Jenolan Caves House consistently failed to provide hot water for guests and for cleaning, especially from early 2003 to late 2005; (f) the failure to provide hot water was as the result of the Plaintiff's failure to ensure that the water was softened before it entered the hotel's hot water system; (g) from early 2003 until late 2005, Jenolan Caves House was often lacking in cleanliness, particularly in communal bathrooms; (h) from early 2003 until late 2005, the service at Jenolan Caves House was often poor; (i) the poor service at Jenolan Caves House was largely attributable to the fact that the Plaintiff overused inexperienced trainees staff who were inadequately trained. 271 I accept the Defendant's submission that these findings are not inconsistent with the fact that many guests, including those called by the Plaintiff to give evidence, had no, or few, adverse comments about Jenolan Caves House and generally enjoyed their stay. Rather, the Defendant's submission, which I accept, is that the numerous failings identified in the evidence were so constant and predictable that they indicated a failure of good management. The inference is available, and ought be drawn, from the frequency and consistency of complaints, that the same problems were being evidenced over and over again and that management was not addressing them in any meaningful way. The evidence demonstrates that these management failures were directly attributable to the Plaintiff. 272 The Defendant has established, on the balance of probabilities, that imputation 7(b), namely that the Plaintiff was incompetent in the management of Jenolan Caves House, was substantially true. Imputation 7(a) - The Plaintiff is Unfit to Manage Jenolan Caves House 273 I have already determined the meaning of the word "unfit" for the purposes of imputation 7(a) (see [183]ff above). I have rejected the Plaintiff's narrower meaning of the term. 274 In light of this ruling, there are significant areas of factual overlap which bear upon the substantial truth of imputation 7(a) as well as imputation 7(b). Although there is a difference between the imputations, they are closely related concepts. 275 A number of the findings which I have made above support the Defendant's case that imputation 7(a) was substantially true. Findings in this category include those concerning the Plaintiff's reaction to complaints made personally and in writing and his temperamental and somewhat erratic responses which relate directly to his suitability, and thus fitness, to manage Jenolan Caves House. I accept the Defendant's submission that the Plaintiff's in-court manner was consistent with the attitude disclosed in his correspondence with complainant guests, and in the evidence of guests who complained to him personally about features of Jenolan Caves House. I accept the Defendant's submission that the Plaintiff was particularly unsuited temperamentally to a role in which he was required to deal with customer complaints. 276 Further, I accept the Defendant's submission that other features of the Plaintiff revealed in the evidence establish a serious lack of judgment on his part. The Plaintiff's approach to fire safety standards, food safety standards and the presence of asbestos in the premises revealed a serious lack of judgment on his part, in circumstances where guest and staff safety ought to have been paramount considerations in the mind of a fit manager. The evidence points to the Plaintiff failing repeatedly, over an extended period of time, to take responsible and necessary action in these areas with respect to Jenolan Caves House. 277 The Defendant has established, on the balance of probabilities, the substantial truth of imputation 7(a). Imputation 7(e) - The Plaintiff Managed Jenolan Caves House So Badly that a Hungry Guest Arriving After 7.00 pm had to Wait Until Breakfast to have a Meal 278 I now move to the specific allegations contained in the six remaining imputations. 279 I have already made a number of factual findings which bear upon the substantial truth of imputation 7(e) (see [73]ff above). I accepted the evidence of Ms Weaver and Mr Bilton on this issue. 280 It is important to observe that Ms Weaver did not necessarily want dinner, she just wanted something to eat. No food at all was able to be provided to her. Submissions of Parties 281 To the extent that the truth of this imputation depended upon the proposition that the Plaintiff managed Jenolan Caves House and that he did so badly, the Defendant relied upon submissions made in relation to imputation 7(b). The Defendant submitted that, ultimately, a failure to provide a meal of any type to a guest arriving at a remote guesthouse at 8.30 pm or 9.00 pm was a failure of management. It was submitted that a well-managed remote guesthouse, particularly one advertised as four-star premises, should have made some food available to a hungry guest after 7.00 pm. 282 The Plaintiff submitted that Ms Weaver and Mr Bilton were trying to set him up in the circumstances giving rise to this imputation. It was submitted that the evidence of Mr Cook corroborated Mr Mason, so that the Court should find that it was not unusual for staff to send meals up to the room for guests who checked in late, as at November 2005. If the Court accepted the Defendant's evidence on this issue, Mr Evatt submitted that this still did not mean that the imputation was proved true because the Defendant had failed to establish that, even if the Plaintiff was the manager, his conduct was bad instead of frugal or practical. It was observed that the Defendant had not called expert evidence to establish what should be done for meals for late arrivals in country hotels, and that this was not something about which the Court can make assumptions. Decision 283 I have already found that the Plaintiff had a hands-on and practical involvement in the management of Jenolan Caves House as at November 2005. I have also found that Ms Weaver asked Mr Mason for something to eat upon checking in, only to be told that the chef had departed at 7.00 pm and that nothing was available. In making that finding, I had regard to the evidence of Mr Cook. 284 I do not think that it is necessary for the Defendant to adduce expert evidence as a prerequisite for a finding in the Defendant's favour concerning this imputation. It was the fact that Jenolan Caves House was open to receive guests at the time when Ms Weaver and Mr Bilton arrived on the evening of 17 November 2005. Given the distance of the premises from any location where a meal could be obtained, it was a reasonable expectation that guests who were paying a not-inconsiderable sum of money to stay at the premises, would have been able to obtain food of some type before going to bed. Whilst the premises were open to receive paying guests, this seems to me to be a reasonable incident of the operation of premises such as Jenolan Caves House. After all, the hotel was in a position to supply a bottle of wine (at the cost of $40.00) to Ms Weaver and the ability to provide food of some type ought be seen as an essential element for a properly managed establishment. This was not a youth hostel or a frugal boarding house where expectations of this type may be unreasonable. 285 In reaching this view, I have not overlooked the fact that this was midweek and a low-peak time for Jenolan Caves House. Clearly, there were not many guests staying there that evening. However, the issue is one of availability of a meal of some type to paying guests, not the full menu which may have been available when the chef was present and the restaurant was open. If the management allowed Jenolan Caves House to be open to receive paying guests and to supply alcohol, it was a reasonable expectation that management would ensure that a meal of some type was available for guests arriving after 7.00 pm. 286 The inability to provide a meal of any type to Ms Weaver may have represented frugal management by the Plaintiff. I do not accept the Plaintiff's submission, however, that this characterisation is inconsistent with a finding of bad management. It was not practical management. I am satisfied that a willingness by management to receive paying guests after 7.00 pm on 17 November 2005, without the facility to provide a meal of any type to paying guests in this class, evidenced bad management on the Plaintiff's part. 287 Accordingly, I am satisfied that the Defendant has established the substantial truth of imputation 7(e). Imputation 7(f) - The Plaintiff Managed Jenolan Caves House So Badly That the Floors Were Watery and the Carpets Stained 288 I have made findings of fact which bear upon this imputation (see [84]ff above). These findings relate essentially to the evidence of Ms Weaver and Ms Miller. Submissions of Parties 289 The Defendant submitted that the direct evidence of Ms Weaver and Ms Miller, accompanied by the photographs taken by Ms Miller, established the existence of a large area of discolouration on the third-floor carpet at Jenolan Caves House on 18 November 2005, and that this appeared to them to be a water stain. The Defendant submitted that other evidence of guests concerning significant wear and tear on carpets at Jenolan Caves House was relevant to this imputation. In this respect, reference was made to the evidence of Ms Padgen (July 2004), Mr Macchetta (July 2004), Mr Reid (July 2004), Mr Stojanovic (July 2004) and Ms Gee (June 2005) 290 The Defendant submitted that no evidence adduced by the Plaintiff reliably contradicted the Defendant's evidence of water staining on the carpet. The Defendant pointed as well to the memorandum dated 29 November 2004 (Exhibit 28) which indicated the difficulties for housekeeping staff in removing carpet stains without hot water (see [240] above). The Defendant submitted that, given the length of time that hot water had been limited or unavailable, it was likely that the explanation for the discolouration of the carpets observed by Ms Weaver, Mr Miller and Mr Bilton was staining from water. 291 The Defendant submitted that the floors at Jenolan Caves House were watery, as evidenced by the frequent complaints about mould and a musty smell, and that the carpets were stained so that the Court should find that imputation 7(f) was substantially true. 292 The Plaintiff submitted that evidence of guests concerning wear and tear on carpets was not relevant to imputation 7(f). Mr Evatt submitted that, to prove the truth of this imputation, the Defendant was required to establish that the floors were watery and carpet stained, particularly in the areas shown in the photograph published in the matter complained of. Even if this was established, Mr Evatt submitted that the Defendant would have to show that bad management caused the floors to be watery and the carpets stained. 293 The Plaintiff relied upon the evidence of Ms Ewen and Ms Smith, and submitted that their evidence demonstrated that the marks depicted in the photograph were due to vacuuming and the pile of the carpet, and not water staining. Decision 294 It was the direct evidence of Ms Miller and Ms Weaver that the carpet was discoloured and stained at the location photographed in the third-floor foyer at Jenolan Caves House on 18 November 2005. 295 I have considered the evidence of Ms Ewen and Ms Smith with respect to the carpet. I do not consider that the evidence of Ms Ewen is of particular assistance on this issue. Ms Ewen had been employed at Jenolan Caves House as a housekeeper since about April 1995. The PAYG payment summary for the period 1 July 2004 to 30 June 2005 (Exhibit 31), and the payroll activity summaries for November-December 2005 (Exhibit 34), support the conclusion that Ms Ewen was not working regularly at Jenolan Caves House in November 2005 (T1513ff). I do not consider that Ms Ewen's evidence rises higher than evidence of part-time and fragmented cleaning activities at Jenolan Caves House. In reality, Ms Ewen was not in a position to give reliable evidence of systems which the Plaintiff claimed to have in place for cleaning Jenolan Caves House in 2005. 296 Ms Smith performed work cleaning up after her husband, who was a carpet layer, including work between about 1999 and 2004 at Jenolan Caves House (T1534). She described the markings on the carpet depicted in the photographs taken by Ms Miller as "tracking … just track marks from people going in one direction or the other" (T1535). She did not think that the carpets depicted in the photographs looked like stained, or water stained, carpets (T1537). Taken at its highest, Ms Smith's evidence relates to the laying of carpet, including the carpet on the third-floor foyer, and the state of that carpet up to early 2004. She was not in a position to give direct evidence concerning the state of the third-floor foyer carpet as at 18 November 2005. At best, she was able to express an opinion or belief that what was depicted in the photographs was tracking, and not water stains. I do not consider that Ms Smith's evidence provides real assistance on this issue. 297 I accept the evidence of Ms Weaver and Ms Miller that the third-floor carpet was stained, and apparently water stained on 18 November 2005. I do not accept that the markings depicted in the photographs were due to vacuuming and the pile of the carpet. If that was so, it would have been obvious to Ms Weaver and Ms Miller. I accept their evidence on this point. In reaching this conclusion, I have had regard to the evidence of guests who stayed at Jenolan Cavies House on 19-20 November 2005 (Ms Janas and Mr Cotton). I have also taken into account the evidence of Mr Cook and Mr Mason on this issue. The guests were present on days subsequent to Ms Weaver and gave evidence of general observations only. Mr Cook and Mr Mason made their observations on or after 21 November 2005. In any event, Mr Cook himself had something of a vested interest in rebutting the contents of the articles. The direct evidence of Ms Weaver and Ms Miller, supported by photographic evidence, ought be accepted. 298 The question remains whether the Defendant has established the substantial truth of imputation 7(f). Although the context of this imputation in the article complained of concerned the photographs taken by Ms Miller and the assertion in the caption "Watery floors: carpet badly stained by water", I accept the Defendant's submission that other evidence concerning the state of the carpets in Jenolan Caves House is relevant to this imputation. This other evidence points to regular complaints concerning carpet stains and mouldy and musty smells in the premises. I am satisfied that the Plaintiff managed Jenolan Caves House, and that his management was poor with respect to the system, or lack of system, for cleaning the premises including carpets. Once again, the memorandum of 29 November 2004 (at [240] above) illustrates the nexus between hot water problems and poor cleaning practices, including the cleaning of carpets. This evidence also emphasises a management failure in these respects, in which the Plaintiff was directly implicated. The deficiencies of the system manifested themselves through staining and mouldy and musty smells, of which there is direct evidence. 299 The Defendant has established on the balance of probabilities that imputation 7(f) was substantially true. Imputation 7(g) - The Plaintiff Was So Negligent in the Management of Jenolan Caves House that Electrical Cords in the Games Room were Tangled and Hazardous Submissions of Parties 300 The Defendant relied upon the photographs taken by Ms Miller in the games room, together with the evidence of Ms Miller, Ms Weaver and Mr Bilton on this topic. Ms Miller's photographs (Exhibit 32, Annexures NN and OO) displayed four tangled electrical power cords plugged into a double wall socket, which is switched on. The cords are sitting on a dirty floor. The Defendant submitted that the tangled and hazardous nature of the cords is plain from the photographs. 301 The Defendant observed that the only serious challenge mounted to its witnesses on this issue was that they had physically moved the machine to expose the cords, a suggestion which was denied by all witnesses. To the extent that the Plaintiff sought to rely upon the evidence of Mr Cook on this issue, the Defendant submitted that Mr Cook's photographs did not assist the Plaintiff. 302 The Plaintiff submitted that this was the most serious imputation raised against him, affecting issues of safety. Mr Evatt submitted that no other guest or person had made a complaint concerning the alleged tangled and hazardous cords in the games room. He submitted that this was probably because the cords were hidden behind the slot machines until moved for the purpose of the photographs being taken. 303 The Plaintiff submitted, in any event, that the electrical cords depicted in the photograph were not tangled, but were simply looped over one another. Reliance was placed upon the Macquarie Dictionary definition of the word "tangle" meaning "to bring together into a mass of confusedly interlaced or intertwisted threads, strands, or other like parts; - a confused jumble". It was submitted for the Plaintiff that the cords in the photograph were not tangled. 304 The Plaintiff submitted further that the Defendant had failed to adduce evidence that the cords were hazardous, with no electrician or expert being called in this respect. It was submitted that the cords appeared safe and had electrician's tags on them. Decision 305 In addition to the definition of "tangle" relied upon by the Plaintiff, the Macquarie Dictionary also includes "6. a tangled or confused mass or assemblage of something" and "7. a confused jumble: a tangle of contradictory statements". 306 In my view, the electrical cords in the games room as depicted in the photographs (Exhibit 32, Annexures NN and OO) may be fairly described as "tangled". The photographs depict a confused jumble of cords leading to the power points, including an exposed socket with the switch in the "turned on" position. 307 I accept the evidence of Ms Weaver, Ms Miller and Mr Bilton that this power point was exposed, and that no item of equipment was moved for the purpose of the photographs being taken. 308 The fact that the games room was used by child guests at Jenolan Caves House is relevant to the question whether electrical cords in this state were hazardous. In circumstances where the cords were accessible and, in particular, where a socket was exposed and in the active position, the circumstances may be fairly characterised as being hazardous. 309 I have already made findings that the Plaintiff was engaged in the management of Jenolan Caves House. Imputation 7(g) alleges that he was so negligent in that management that these cords were tangled and hazardous. I am satisfied that this issue relates to the evidence already considered, concerning cleaning of Jenolan Caves House. 310 That electrical cords in the games room, frequented by children, were left in this state and in the dirty circumstances otherwise visible in the photographs, points again to a management failure with respect to safety and cleaning processes within Jenolan Caves House. This may be fairly characterised as pointing to negligent management on the Plaintiff's part. 311 I am satisfied, on the balance of probabilities, that the Defendant had demonstrated the substantial truth imputation 7(g). Imputation 7(h) - The Plaintiff Managed Jenolan Caves House So Badly that the Staff Were Rude to Guests Submissions of Parties 312 The Defendant submitted that there were numerous examples in the evidence of rude staff at Jenolan Caves House whilst the premises were under the control of the Plaintiff. Several examples have been referred to earlier with respect to imputation 7(b). 313 The Defendant pointed to a number of examples of staff rudeness referred to by guests during their stays between 1999 and 2004. 314 As with all complaints about the quality of service at Jenolan Caves House, the Defendant submitted that these incidents reflected directly on hotel management. It was submitted that poor staffing, understaffing and the overuse of untrained or inexperienced trainees were the product of the Plaintiff's management. The Defendant submitted that the allegation that staff were rude to guests was highly probable, given the evidence that the staff were largely untrained, young and unsupervised. 315 The Plaintiff submitted that the Defendant had failed to demonstrate the substantial truth of this imputation. Even Ms Weaver had said that the receptionist was polite and helpful. The Plaintiff submitted that the few examples relied upon by the Defendant were insufficient to establish the truth of the imputation. 316 It was submitted that the incidents of rudeness relied upon by the Defendant were so few and, in most cases so trivial that, in view of the large number of guests over the years, the imputation should be rejected. Moreover, the Plaintiff submitted that the small number of alleged rude staff incidents would not establish that Jenolan Caves House was managed badly. Decision 317 I approach this imputation upon the basis that staff rudeness towards guests ought not ordinarily occur in a well-managed hotel. The evidence points to a pattern of complaints concerning staff rudeness, although not as persistent a pattern of complaint as applied to issues of hot water, service, cleanliness and food. 318 In addition to the Defendant's evidence, I note the evidence of Ms Kylie Crowe of rudeness towards her and her husband by a staff member at Jenolan Caves House, although there was no rudeness from other staff (T1288). Relevant to this issue as well, in my view, is the evidence of Ms Strangwidge concerning staff selection and the lack of staff training. That trainees were heavily used at Jenolan Caves House at relevant times is not seriously in dispute, and is borne out by evidence called by the Plaintiff (Mr Dennis Smith - T1304-1308). Evidence concerning the Plaintiff's own rudeness towards guests is not irrelevant to this imputation. 319 I am satisfied that there are sufficient examples of staff rudeness towards guests to found a conclusion that Jenolan Caves House was badly managed by the Plaintiff in this respect. Once again, the overall evidence concerning management deficiencies on the part of the Plaintiff, in a number of respects, bears upon this question. A well-managed facility would not see the level of staff rudeness disclosed by the evidence. 320 I am satisfied, on the balance of probabilities, that the Defendant has established the substantial truth of imputation 7(h). Imputation 7(i) - The Plaintiff Managed Jenolan Caves House So Badly That the Rooms Were Filthy Submissions of Parties 321 The Defendant relied upon submissions made in support of imputation 7(b) concerning this precise allegation. Reference is made to a number of guest complaints of dirty rooms. The Defendant submitted that it was no answer to such complaints to say that the staff were at fault or that they lacked experience. The Defendant submitted that it was the Plaintiff who retained and disposed of staff. Reference was made to Ms Strangwidge's evidence that it was the Plaintiff who prepared the staff roster. 322 The Defendant submitted that the Plaintiff's managerial responsibility for housekeeping issues was highlighted by the evidence of Ms Ewen. It was submitted that the staff payment records revealed entirely inadequate working hours in November 2005 for the housekeepers, Ms Ewen and Ms Johnston. The use of trainees to undertake housekeeping duties was established by the evidence of Ms Strangwidge, who described numerous deficiencies in housekeeping practises and the failure to instruct trainees in cleaning and housekeeping duties. 323 The Defendant submitted that it was hardly surprising that there should be so many complaints about filthy rooms in these circumstances and that this imputation was substantially true. 324 The Plaintiff submitted that the complaint evidence concerning cleanliness was directed more to bathrooms than guestrooms, and that this stood in the way of a finding that the imputation was true. It was submitted that the number of complaints of filthy rooms was comparatively few, when compared with the number of guests staying at Jenolan Caves House. Further, it was submitted that staffing problems may have flowed from the difficulty of hiring staff at a remote location such as this, and that this was not bad management. Decision 325 At the outset, I observe that this imputation refers to "rooms". It is not confined to "guestrooms" or "bedrooms", nor does it exclude "bathrooms" or "communal bathrooms". I approach this imputation upon the basis that it extends to rooms in Jenolan Caves House, including bathrooms and communal bathrooms, which are facilities intended to be utilised by guests who are sleeping in rooms without ensuite bathrooms. These are overlapping facilities intended to be used by paying guests who are staying at the premises. 326 There was substantial and direct evidence of poor standards of cleanliness at Jenolan Caves House in guestrooms and bathrooms, including communal bathrooms. There were also accounts from satisfied guests called by the Plaintiff who had no complaints concerning the cleanliness of their rooms. 327 It is necessary to consider the guest evidence in conjunction with other evidence of the internal workings of Jenolan Caves House, which sheds light upon the management of the premises by the Plaintiff. The evidence of Ms Ewen (including Exhibit 28) pointed to the chain of command on the housekeeping side leading up to the Plaintiff. This supports the conclusion, already expressed, that the Plaintiff was a hands-on manager at Jenolan Caves House. The evidence of Ms Strangwidge, which I accept, also bears upon system failures in management leading to poor levels of cleaning by staff. 328 A fair reading of the imputation does not involve a construction that rooms were always filthy, nor that all rooms were filthy. The evidence demonstrates a regular pattern of filthy rooms, bathrooms and communal bathrooms, with this deficiency being clearly referable to the Plaintiff's poor management of Jenolan Caves House. I am satisfied on the balance of probabilities that the Defendant has established that imputation 7(i) was substantially true. Imputation 7(n) - The Plaintiff Managed Jenolan Caves House So Badly There Was No Hot Water for the Shower in the Room Provided For Clair Weaver 329 I have referred earlier to evidence relating to this imputation. It was the evidence of Ms Weaver that there was no hot water for her by the time she came to have a shower on the evening of 17 November 2005. Mr Bilton had earlier had a shower (or bath) in their room and there had been hot water for that purpose (for five minutes). Submissions of Parties 330 The Defendant submitted that the problem of insufficient hot water at Jenolan Caves House arose from the failure to soften the water and resulting calcium build up. Reference was made to the evidence of Mr Liccardo that, in August-September 2005, the Plaintiff had ordered the softeners to be turned off altogether. The Defendant submitted that it was entirely probable, in these circumstances, that Jenolan Caves House would suffer shortages of hot water in late 2005, especially on a very cold night. 331 The Defendant repeated submissions made concerning imputation 7(b) namely that the lack of hot water at Jenolan Caves House was the result of the Plaintiff's bad management. It was submitted that the fact that there was enough hot water for Mr Bilton to shower (or bath) did not detract from the fact that there was not enough hot water for the two guests paying to stay in the room to have showers. The Defendant submitted that a properly managed hotel would provide sufficient hot water for each occupant of a double-occupancy room to shower and that this was not the case. 332 The Defendant sought to rely, in relation to this imputation, upon the imputation that the Plaintiff managed Jenolan Caves House so badly that there was no hot water for Ms Weaver to have a hot shower, which the Defendant submitted was not different in substance from the imputation pleaded in imputation 7(n). 333 The Plaintiff submitted that the Defendant had failed to establish the truth of this imputation. There was hot water for the shower in the room provided for Ms Weaver, which was used by Mr Bilton for his five-minute shower (or bath). Even if the Court accepted Ms Weaver's evidence that there was no hot water for her shower, the Plaintiff submitted that this did not establish that there was no hot water for the shower in the room provided to her. Further, it was submitted that the Defendant had failed to establish the absence of hot water was due to bad management. 334 The Plaintiff submitted that the alternative imputation relied upon by the Defendant with respect to imputation 7(n) was different in substance from the original imputation. It was submitted that there is a significant difference between an imputation that "There was no hot water for the shower in the room provided for Clair Weaver" and that "There was no hot water for Clair Weaver to have a shower". The original imputation found by the jury at the s.7A hearing was materially different to that upon which the Defendant now seeks to rely. Decision 335 I approach this imputation upon the basis that the room in question was made available for two paying customers to occupy. It was a reasonable expectation that hot water would be provided to this room to allow both paying occupants to shower if they so wished. I accept the evidence of Mr Bilton and Ms Weaver that hot water was available for his shower (or bath), but not hers. The duration of Mr Bilton's shower (or bath) was not excessive. 336 I accept the Defendant's submission that the hot water issue ought be considered against the background of other evidence of persistent and long-standing hot water problems, and inadequate steps taken by the Plaintiff to resolve the problem. I have previously found that this issue may be regarded as a management failure on the part of the Plaintiff. This finding is relevant to the resolution of the substantial truth of imputation 7(n) as well. 337 I am satisfied that the variation of imputation 7(n) upon which the Defendant seeks to rely is not different in substance to the original imputation. 338 I am satisfied on the balance of probabilities that the Defendant has established that imputation 7(n) was substantially true. Public Interest or Qualified Privilege 339 The Defendant has established the substantial truth of each of the eight imputations: s.15(2)(a) Defamation Act 1974 (NSW). It is necessary to determine whether the additional element has been established that the imputations relate to a matter of public interest or were published under qualified privilege: s.15(2)(b). 340 I am satisfied that each imputation related to a matter of public interest. Each imputation concerned aspects of the management of an iconic guesthouse located inside a National Park on land administered by a public authority in the form of the Trust. The matter complained of involved the actions or omissions of the Plaintiff, in the management of Jenolan Caves House, in activities which clearly invited public criticism or discussion. There was public debate on these matters in State Parliament, and the Government was moving to legislate as a response to these issues. The provision of accommodation to the public may involve a matter of public interest: Millane v Nationwide News Pty Limited [2004] NSWSC 853 at [111], [117]-[124]. This is all the more so where the accommodation is provided on public land such as this, with aspects of the public interest directly engaged. 341 As will be seen, I am also satisfied that the Defendant has established the defence of qualified privilege under s.22 Defamation Act 1974 (NSW), so that the alternative limb in s.15(2)(b) has also been made good. 342 Accordingly, the requirements of s.15(2)(a) and (b) have been met to provide a complete defence to the Plaintiff's claim. Interstate Truth Defences 343 The Defendant pleaded defences of truth in New South Wales and in the other States and Territories. The Plaintiff acknowledged that the same principles apply for the interstate defences as for New South Wales, so that the Defendant will succeed if it proves substantial truth of the imputations. 344 I have found that the Defendant has proved substantial truth with respect to each of the imputations. Accordingly, I am satisfied that the Defendant has established the defence of truth in the other States and Territories of Australia as well. Contextual Truth 345 In New South Wales, the Defendant relied upon the defence of contextual truth under s.16 Defamation Act 1974 (NSW) which provided: "16 Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 346 The Defendant sought to rely upon the following contextual implications (paragraph 13(b)(i) and (ii), Further Amended Defence): "Each imputation pleaded in paragraph 7 of the Statement of Claim related to matters of public interest and was published contextually to each other and the following imputations: (i) the plaintiff managed Jenolan Caves House so badly that, on occasion, there was no hot water for the showers and the guests' rooms; and (ii) the plaintiff managed Jenolan Caves House so badly that it failed to comply with requirements of the NSW government in relation to the removal of asbestos." 347 Before s.16 can be relied upon by the Defendant, the Court must find that the contextual imputations are conveyed to the ordinary reasonable reader at the same time as, and in addition to, the Plaintiff's imputations: John Fairfax Publications Pty Limited v Jones [2004] NSWCA 205 at [12]. As Simpson J observed in Fawcett v John Fairfax Publications Pty Limited at [166], when a defence of contextual truth is pleaded and reliance is placed upon imputations pleaded by the plaintiff, the defence is anticipatory - it is an attempt to justify any imputations not found to have been substantially true by reference to any imputations that have been found to be substantially true, and to show that by reason of truth of those in the latter category, those in the former category have not caused any additional injury to the Plaintiff's reputation. 348 I have found that each of the imputations is substantially true and that each imputation related to a matter of public interest, so that the requirements of s.15 have been met. 349 In addition, I have found that the imputations were published under qualified privilege for the purposes of s.15(1) and (2)(b) of the Act. Thus, each alternative within s.15(2) has been established, although these requirements are not cumulative. 350 I will consider the s.16 defence of contextual truth in the event that I have fallen into error with respect to the s.15 defence. Submissions of Parties 351 The Defendant submitted that the two contextual imputations pleaded in paragraph 13(b) are plainly distinct imputations, which may be taken cumulatively. The Defendant observed, however, that imputations 7(e), (f), (g), (h), (i) and (n) are really subsets of specific examples of the general charges in imputations 7(a) and 7(b), and should not be regarded as cumulative with the general imputations, consistent with the observations of Hunt J in Hepburn v TCN Channel 9 Pty Limited (1984) 1 NSWLR 387 at 397-399. If that is the correct interpretation, then the Defendant relies on the cumulative effect of the two contextual implications pleaded in its defence and the Plaintiff's imputations 7(a) and 7(b), and pleads those imputations (assuming they are found to be substantially true and relate to matters of public interest or were published on an occasion of qualified privilege) back to any of the Plaintiff's imputations which are found not to be substantially true. 352 The Defendant submitted that the Plaintiff's reputation could not possibly be further injured by any of the remaining imputations which are found not to be matters of substantial truth. In particular, the Defendant submitted that if the Court finds either or both of imputations 7(a) and 7(b) are true, it would be fanciful to think that the Plaintiff's reputation was further injured by the remaining imputations, which are merely confined examples of the Plaintiff's bad management. 353 If it was necessary to resort to the contextual imputations, the Defendant submitted that, as a matter of practical reality, imputations 7(e) to (n) are specific subsets or examples of incompetent management on the part of the Plaintiff. If the Court found either or both of imputations 7(a) and 7(b) is substantially true, then the specific and confined examples of incompetent management on the part of the Plaintiff could not, as a matter of practical reality, cause any further injury to his reputation. If the Court was satisfied that the Plaintiff was incompetent in the management of Jenolan Caves House generally, or unfit to manage it, his reputation is not going to be further injured by several imputations of specific incidents of that bad management. 354 With respect to contextual truth in New South Wales, the Plaintiff submitted that the contextual implications relied upon each included the allegation of doing something "badly". It was submitted for the Plaintiff that, if he failed to comply with the asbestos requirements of the Government because of lack of funds, a dispute as to liability or a belief as to who was responsible, then the essential element involved in the use of the word "badly" would not be made out. Further, it was submitted that the first contextual imputation used the words "on occasion" and not "on occasions", and that this seems to refer to one specific incident. 355 The Plaintiff submitted that, if this point is reached, the issue for the Court is whether the injury to the Plaintiff's reputation caused by the false imputations is further injured by those contextual imputations proved to be true. Decision 356 I have determined that each of the imputations relied upon by the Plaintiff are substantially true, so that the Defendant has established the s.15 defence of truth. In these circumstances, it is not strictly necessary for me to consider the defence of contextual truth in New South Wales or in other States and Territories as it arises under statute or at common law. 357 I am more than comfortably satisfied that imputation 7(a) and imputation 7(b) are substantially true. I enter into the area of the defence of contextual truth upon the basis that one or more of my findings with respect to imputations 7(e) to 7(n) might be found to be wrong. 358 The contextual imputations relied upon by the Defendant would clearly arise, and in my view, be made good in these circumstances. I accept the Defendant's submissions that, as a matter of practical reality, a finding of one or more of the specific imputations in imputations 7(e) to 7(n) could not cause any further injury to the reputation of the Plaintiff, given my primary findings with respect to imputations 7(a) and 7(b). 359 To the extent that the Plaintiff sought to rely, in closing submissions, upon lack of funds as an explanation for not taking appropriate action in various respects, so that these matters were not indicative of "bad" management, I observe that this was not the approach taken by the Plaintiff in evidence. He did not seek to confess and avoid. Rather, he maintained that Jenolan Caves House was well managed (although not by him) and that problems were met, large sums were spent on the property and the level of guest complaints was not out of the ordinary. The Plaintiff is bound by the way in which he ran his case. 360 I am satisfied that the Defendant has established that the contextual imputations are substantially true, and that they relate to matters of public interest. Accordingly, the defence under s.16 has been established. Interstate Defences of Contextual Truth 361 With respect to other States and Territories (except Tasmania), the Defendant noted that the position with respect to the pleading of contextual imputations by a defendant is different. The matter is governed by common law so that the Defendant is entitled to justify an imputation pleaded by the Plaintiff by pleading and proving true an imputation which is a nuance or variation of the Plaintiff's imputation, and upon which the Plaintiff himself would have been entitled to verdict at trial. 362 In other words, the Defendant submitted that in justifying the Plaintiff's imputation, it is entitled to depart from the strict meaning pleaded by the Plaintiff to the extent that the Plaintiff would have been entitled to do so at trial. The Plaintiff is not entitled to succeed at trial on a meaning which is substantially different from, and more injurious than, the pleaded meaning. 363 Accordingly, the Defendant submitted that it is entitled to plead, and justify, a meaning that is not substantially different from, and not more injurious than the Plaintiff's pleaded meanings: Chakravati v Advertiser Newspapers Limited (1998) 193 CLR 519; David Syme & Co Limited v Hore-Lacy [2000] 1 VR 667; Nationwide News Pty Limited v Moodie (2003) 28 WAR 314; Elliott v West Australian Newspapers (2008) 250 ALR 363. 364 In the common law States, the Defendant has pleaded a common law contextual imputation in response to imputation 7(n) as follows: "that the plaintiff managed Jenolan Caves House so badly that there was no hot water for Clair Weaver to have a hot shower." 365 The Defendant submitted that this is obviously no more than a nuance or variation of imputation 7(n), and not more serious than that imputation. It is submitted that it meets the sting of imputation 7(n) and, if it is proved true, the Defendant is entitled to succeed on imputation 7(n). 366 Section 18 Defamation Act 1957 (Tas) provides for a defence of justification. The Defendant submitted that the matters pleaded and particularised in relation to the defence of contextual truth in New South Wales would, if establish, also constitute a defence under s.18 of the Tasmanian Act. 367 With respect to the interstate defences of contextual truth, the Plaintiff submitted that these defences are similar to "Polly Peck defences" which are not applicable in Australia: John Fairfax Publications Limited v Zunter [2006] NSWCA 227 at [42]. 368 With respect to Tasmania, the Plaintiff submitted that the Defendant ought not succeed upon this basis. 369 With respect to the Defendant's interstate contextual defence concerning imputation 7(n), Mr Evatt submitted that the Plaintiff's original imputation is more serious because it involved an allegation that there was no hot water for the shower in the room at all. Whereas the contextual imputation alleges only that there was no hot water for Ms Weaver, but that there could have been hot water which had run out. Accordingly, the Defendant submitted that the Plaintiff's imputation would have injured his reputation more than the less serious contextual implication that there was no hot water for Ms Weaver, so that the contextual imputation would not outweigh or equal the injury to reputation caused by the Plaintiff's false imputation. 370 "The Sunday Telegraph" has a relatively small circulation outside New South Wales. The arguments advanced with respect to interstate common law and statutory defences of contextual truth are not without some complexity. Competing oral submissions were made concerning the suggested attempt to rely upon a modified "Polly Peck defence", despite the decision of the Court of Appeal in John Fairfax Publications Pty Limited v Zunter at [41]-[42]. Debates of this type have arisen in other cases: Kriss v John Fairfax Publications Pty Limited [2007] NSWSC 830 at [52]ff; Fawcett v John Fairfax Publications Pty Limited at [176]ff. 371 I have determined that the imputations are substantially true and that the s.15 defence in New South Wales has been established. The parties accept that a similar finding would flow to the other States and Territories. In light of this finding, and my finding concerning the s.16 defence in New South Wales, I do not propose to resolve a secondary issue concerning publication in other States and Territories with small circulations only of the relevant newspaper. Defence of Comment 372 In New South Wales, the Defendant relies upon the defence of comment contained in ss.29-35 Defamation Act 1974 (NSW). Submissions of Parties 373 The Defendant submitted that comment can arise by inference, wholly or partly, from the terms of the matter published: Petritsis v Hellenic Herald Pty Limited [1978] 2 NSWLR 174 at 195-196. The Defendant observed that imputation 7(a) in the present case, like the implication in Petritsis, was an imputation of unfitness arising purely by implication. 374 The Defendant submitted that none of the Plaintiff's imputations in the present case are stated expressly in the matter complained of, and they amount to judgmental conclusions which are unstated, but inevitably implied by the article. The Defendant submitted that a large number of statements in the matter complained of would be understood by the reader as expressions of judgment, or judgmental conclusions. 375 It was submitted that imputations 7(a) and 7(b) would have been understood by the reader as the newspaper's judgmental conclusion on the various unsatisfactory facts stated in the article. 376 With respect to the remaining imputations, the Defendant submitted that the question was whether those meanings would have been understood by the reader as having been conveyed by the publisher as opinions or conclusions. The Defendant submitted that, once the reader derived from the matter complained of, the idea that the Plaintiff managed Jenolan Caves House so badly, the reader would understand the publisher to be expressing a critical conclusion about the Plaintiff based on the material stated. If that is correct, the Defendant submitted that the reader would have understood the defamatory stings to be the expressions of the publisher's view, being the publisher's judgmental conclusion on the factual matters that the article recites. 377 The Defendant submitted that no different considerations apply with respect to the common law and statutory comment defences pleaded with respect to the other States and Territories and, if the Defendant was entitled to succeed on the statutory defence in New South Wales, it was entitled to succeed on the defences of comment generally. 378 The Plaintiff submitted that these were statements of fact and not comment, so that the defence of comment has not been made out. Decision 379 The defence must fail if the comment was not a comment, but a statement of fact. The distinction between the two concepts is often difficult to make, but a characterisation must nonetheless be made, and the context and the circumstances of the use of the words will be important: John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164 at [27]. The defence of comment is made not to the article as a whole, but to the imputation: NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; John Fairfax Publications Pty Limited v O'Shane at [40]. 380 To the extent that it is appropriate that I express findings and conclusions concerning this class of defence, I state the following. 381 I accept the Defendant's submission that imputations 7(a) and 7(b) would have been understood by the reader as the Defendant's judgmental conclusion on the various unsatisfactory facts stated in the article. These imputations are not stated expressly in the matter complained of. Rather, I accept that they constitute a statement of opinion and are based on proper material for comment. 382 The remaining six imputations are in a different category. I am not satisfied that each of these involve comment, as opposed to statements of fact. 383 I find the defence of comment established with respect to imputations 7(a) and 7(b), but not the remaining imputations. Qualified Privilege 384 The Defendant relies on the defence of qualified privilege under s.22 Defamation Act 1974 (NSW), and under interstate legislation and the common law principle of extended qualified privilege. 385 Section 22 provided as follows: "22 Information (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." 386 It was common ground before me that the live issue with respect to qualified privilege under s.22 was whether the conduct of the Defendant in publishing the matter complained of was "reasonable in the circumstances" as required by s.22(1)(c) of the Act. 387 The parties accepted that the question of the reasonableness of the Defendant's conduct is to be determined by the Court taking into account matters that the Court considers relevant, including, but not limited to the matters set out in s.22(2A). Reasonableness is not a concept that can be subjected to inflexible categorisation: Rogers v Nationwide News Pty Limited (2003) 216 CLR 327 at 339 [30]. Submissions of Parties 388 The Defendant submitted that it had the following information: (a) the information obtained by Ms Silmalis in written and oral form from Mr Ward and Mr Richardson (referred to at [35]-[59] above) together with her effort to speak to the Plaintiff - the Defendant submitted that Ms Silmalis intended to convey the imputations based on the information that she was provided, and that her conduct in writing her part of the matter complained of was entirely reasonable; (b) the information obtained by Ms Weaver as a result of her stay at Jenolan Caves House on 17-18 November 2005, including her observations (see [63]-[108] above) - Ms Weaver intended to convey the imputations that logically arose from her own contribution and she believed them - the Defendant submitted that her contribution to the matter complained of was entirely reasonable; (c) information obtained by Ms Miller, including her observations, many of which were photographed. 389 The Defendant submitted that its conduct in publishing the matter complained was reasonable within the meaning of s.22 Defamation Act 1974 (NSW). 390 With respect to extended qualified privilege at common law, the Defendant submitted that the substance of the article began as, and was published as, a story about the efforts of the New South Wales Government to introduce into Parliament legislation to break the Plaintiff's lease and to take control of Jenolan Caves House. The basis for the Government's action was said to be its concern about the way that the property was being operated, including multiple customer complaints, default notices, late rent payments and low occupancy. 391 The Defendant submitted that the article was plainly a communication on a government and political matter, and was not merely tangential. For reasons already advanced in relation to statutory qualified privilege, the Defendant submitted that its conduct in publishing the matter complained of was reasonable, and the extended qualified privilege defence at common law should succeed. 392 With respect to categories referred to in s.22(2A)(a)-(f) Defamation Act 1974 (NSW), Mr Evatt submitted that: (a) the matter published was of public concern; (b) not applicable; (c) the imputations were serious; (d) the matter complained of related to allegedly proven acts, adverse to the Plaintiff; (e) there appeared to have been no urgency requiring the article to be published expeditiously; (f) the sources of information included Mr Debus, whom the Plaintiff submitted was "obviously partisan" and whose aim was to terminate the Plaintiff's lease; Ms Weaver, whom the Plaintiff submitted was biased and Ms Silmalis, whom the Plaintiff submitted had invented a number of statements contained in the article. 393 With respect to s.22(2A)(g) and (h), the Plaintiff submitted that Ms Silmalis had failed to obtain a response from the Plaintiff prior to publication, and had not provided the Plaintiff with a proper chance to answer the serious allegations in the article. In addition, the Plaintiff submitted that Ms Silmalis had fabricated statements, in particular, that 60 complaints had been received by the Government "this year alone". The Plaintiff submitted that it was not reasonable for Ms Silmalis to make the statements contained in paragraph 5 of the article, and that it was not reasonable for her to publish without making proper efforts to obtain a response from the Plaintiff and actually obtaining his response. 394 The Plaintiff submitted that Ms Weaver had made no attempt to speak to any of the staff, let alone the Plaintiff, about the conditions at Jenolan Caves House. It was submitted that aspects of Ms Weaver's article were unfair and that, if she was sincere about expecting a meal upon arrival, she would have made enquiries in this respect when she telephoned earlier in the day about a booking. It was submitted that it was not reasonable for Ms Weaver to write the article which she did. 395 With respect to Ms Miller, the Plaintiff submitted that the captions under the photographs on the article as published were not reasonable. The dining room was not empty at breakfast, the floors were not watery, the carpets were not badly stained by water and the cords in the games room were not tangled or hazardous. 396 The Plaintiff submitted that the s.22 defence of qualified privilege should be rejected on the grounds that the publication was not reasonable, and the Plaintiff was not given an opportunity to respond. Decision 397 There are three components to the defence, each of which must be established by the Defendant. The first is that the recipient of the matter complained of has an interest, or apparent interest, in having information on the subject of the publication. The second is that the matter is published to the recipient in the course of giving information on the subject. The third concerns the reasonableness of the publisher. The Plaintiff accepts that the first and second elements were demonstrated in this case. The controversy lies with the third element of reasonableness. 398 Considerations bearing on reasonableness for the purposes of s.22(1)(c) include taking reasonable care before publishing to ensure that the conclusion is correct and, where appropriate, making proper enquiries and checking on the accuracy of sources: Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511. 399 I have already made findings with respect to aspects of the evidence of Ms Silmalis, Ms Weaver and Ms Miller earlier in this judgment. I repeat the essence of those findings insofar as they are relevant to the reasonableness of the statutory qualified privilege defence. 400 I am satisfied that Ms Silmalis made an attempt to contact the Plaintiff, who did not return her call. I am satisfied that Ms Silmalis made an effort to include the Plaintiff's side of the story in her article, by incorporating parts of the Plaintiff's letter to Mr Richardson which Ms Silmalis had obtained from Mr Richardson. I do not consider that the failure of Ms Silmalis to make repeated attempts to contact the Plaintiff, adversely affects the reasonableness of the Defendant's conduct in the circumstances of this case. 401 I am satisfied that Ms Silmalis incorporated in the article that which she had been told by Mr Ward concerning complaints about Jenolan Caves House. I do not accept the Plaintiff's submission that Ms Silmalis fabricated any part of the article. I accept that it was reasonable for Ms Silmalis to rely upon statements made to her by Mr Ward whom she spoke to on several occasions. It is the case that the article was inaccurate in stating that there had been 60 complaints in "this year alone". However, Ms Silmalis had been told this by Mr Ward and she was entitled to act upon what he said. It must also be said that the management of Jenolan Caves House by the Plaintiff in 2004-2005, as revealed by the evidence, was reasonably worthy of complaint in a number of respects considered in this judgment. 402 With respect to Ms Weaver, I accept her evidence as an accurate and reliable account of what she observed, experienced, and was told on her visit to Jenolan Caves House. In my view, there was no requirement upon her to disclose to staff at Jenolan Caves House that she was a journalist intending to write a story about the premises. Nor was there any expectation that she raise by telephone, in advance, the question of whether a meal would be available upon arrival. I have already considered the reasonable expectation of paying customers arriving at premises such as this that food of some type would be available. 403 Ms Miller gave reliable evidence concerning what she observed and heard at Jenolan Caves House during her visit on 18 November 2005. To a very large extent, the photographs which she took speak for themselves. However, the oral evidence of Ms Miller, taken with that of Ms Weaver and Mr Bilton, provides strong support of the features of Jenolan Caves House described by the three of them in detail. 404 In my view, the captions which accompanied the photographs of the games room and the stained carpet are accurate and reasonable in their content. The caption which accompanied the photograph of the dining room was not strictly accurate, as the evidence revealed that the photograph was taken after breakfast when the tables had been set for dinner. However, the unchallenged evidence was that very few people were in the dining room at breakfast time on 18 November 2005, so that a photograph of an empty dining room was not far from the truth. Beyond that, the photograph depicts a neat and tidy dining room. Having regard to the limited inaccuracy in this respect, I do not consider that this feature undermines the reasonableness of the Defendant's publication. 405 I am satisfied that the conduct of the Defendant in publishing the matter complained of was reasonable in the circumstances. Accordingly, I am satisfied that the statutory defence of qualified privilege is made out in this case. Fair Report or Fair Protected Report 406 The Defendant relied upon the defence of fair protected report under s.24(2) Defamation Act 1974 (NSW) and similar statutory defences in other States and Territories and at common law. Submissions of Parties 407 The Defendant submitted that, in order to constitute a fair protected report, it is not necessary that the report of the privileged occasion be verbatim or presented in full. To be a fair report, the matter complained of must, with substantial accuracy, express what took place in that part of the proceedings of which it purports to be a report. The issue will be whether the report, of which the Plaintiff complains, has substantially altered the impression which the reader would have received if he or she had been present at the proceedings being reported. If there is, in the report, a substantial misrepresentation of a material fact prejudicial to the Plaintiff's reputation, the matter complained of is not a fair protected report. A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person - the question is whether it substantially records what was said and done: Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 at 62-63. 408 The Defendant submitted that the report of Ms Silmalis was a substantially accurate account of what the Minister for the Environment said in Parliament on 12 October 2005. Although it was not a verbatim or complete account of what the Minister said on that occasion, the Defendant submitted that it did not contain misstatements of fact prejudicial to the Plaintiff's reputation so that the defence of fair report is made out. 409 The Plaintiff submitted that the defence of fair protected report must fail in this case for two reasons. Firstly, it was not stated in the article complained of that the words attributed to Mr Debus were said in Parliament. It was submitted that it must be made clear in the article that the report is of proceedings in Parliament, and that the article in this case did not so state that. As a result, in the mind of a reader, the words attributed to Mr Debus could have been said in a private conversation with Ms Silmalis or under a variety of other circumstances. 410 Secondly, the Plaintiff submitted that the report of Ms Silmalis did not report accurately and fairly what was said in Parliament. It was submitted that other information which she obtained, such as that from Mr Ward, was irrelevant. The Plaintiff emphasised that Ms Silmalis' article stated that 60 complaints were received "this year", and that this was not what was said in Parliament. Rather, Mr Debus had said that there were complaints made over "recent years" without any mention of the number of complaints. Further, the Plaintiff submitted that the Minister had said nothing in Parliament about rude staff, and made no reference to dirty toilets and filthy rooms. The Plaintiff submitted that these phrases were inventions of Ms Silmalis and that her report was neither fair nor accurate. Decision 411 A fair protected report is one that conveys a substantially accurate account of what took place in that part of the proceedings of which it purports to be a report: Waterhouse v Broadcasting Station 2GB Pty Limited at 63. 412 Set out earlier in this judgement at [38] is a Hansard extract, being part of the speech in reply of Mr Debus on 12 October 2005 concerning the National Parkes and Wildlife Amendment (Jenolan Caves Reserves) Bill, which Ms Silmalis utilised for the purpose of preparing her article. 413 The defence of fair protected report focuses upon the substance of what was said, and the extent to which the article complained of is a fair analysis or fair summary, expressed with substantial accuracy, of what was said on the privileged occasion in Parliament. 414 By reference to the paragraph numbers in the matter complained of (see [12] above), the following conclusions may be expressed: (a) paragraph 4 - this is a substantially accurate account of what the Minister said in Parliament, referring to "Fawlty Towers" ; (b) paragraph 5 - the Minister referred to complaints by guests who had written to the Trust complaining about the management of Jenolan Caves House "over recent years" - the reference to "60 complaints … this year alone" in paragraph 5 is not a substantially accurate of what the Minister said in Parliament - the guest complaints mentioned by the Minister in Parliament include "The worst dinner experience we have ever encountered anywhere … appalling" , "Caves House was filthy and unorganised" , "The room occupied by me was not very clean and the toilet and bathroom were dirty" - these statements in Parliament provided an appropriate foundation for references to "dirty toilets … filthy rooms and below average meals" in paragraph 5, but there was no reference to "rude staff" by the Minister in Parliament, the appropriate inference being that this was information obtained by Ms Silmalis from Mr Ward, and that this was not a statement made on a privileged occasion; (c) paragraph 6 - the Minister referred in Parliament to a complaint including " [I am] not amused" and the article used the words "We are not amused" - this was a substantially accurate account of what the Minister said in Parliament; (d) paragraph 7 - this statement is a substantially accurate account of what was said in Parliament concerning the Government's intention to introduce legislation to break the 99-year lease; (e) paragraph 8 - this appears to be a substantially accurate statement of what was said in Parliament concerning the lease and the Plaintiff; (f) paragraph 9 - this appears to be a substantially accurate report of what was said in Parliament concerning asbestos issues and late rent payments with additional information, provided by Mr Ward, concerning five default notices issued to the Plaintiff; (g) paragraph 10 - the Minister did refer in Parliament to rising visitor numbers to the caves and falling occupancy rates at Jenolan Caves House, however, the percentages referred to in the article do not appear in Hansard; (h) paragraph 11 - the statement in the article that "Mr Debus said the complaint letter showed guests were unimpressed with their hotel stay" is a substantially accurate summary of what the Minister said in Parliament; (i) paragraph 12 - the words attributed to the Minister constitute a direct quotation of words used by the Minister in Parliament; (j) paragraph 13 - the words used in the article are a direct quotation of words used by the Minister in Parliament; (k) paragraph 14 - the words used in the article are a direct quotation of words used by the Minister in Parliament. 415 It will be seen from the above analysis that Ms Silmalis, at times, quoted directly from what the Minister said in Parliament, and sometimes paraphrased accurately what was said on the privileged occasion. However, there were additional words used in paragraph 5 which did not accurately record what the Minister said in Parliament. 416 Matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings. Attribution is required, but this does not necessarily demand a direct quote or acknowledgement. However, it must appear that the published matter bears the character of a report of the proceedings in question. It is not enough that the proceedings are a source of information, or the subject of an expression of opinion: Rogers v Nationwide News Pty Limited at 336 [18]. It is pertinent to consider whether a reader would know, or not know, the extent to which the matter that conveyed the defamatory imputation went beyond what was said on the privileged occasion: Rogers v Nationwide News Pty Limited at 336-337 [19]. 417 Applying these principles, the defence of fair protected report is not made out by the Defendant in this case. Although direct attribution to a statement made in Parliament on a privileged occasion is not an essential requirement, the absence of such an attribution here is accompanied by a mixture of statements, some of which were not made on a privileged occasion. The statement in paragraph [5] concerning "60 complaints … this year alone" is not a substantially accurate summary of what was said in Parliament. A reader of the matter complained of would not know the extent to which statements were made on a privileged occasion. 418 Accordingly, the Defendant has not established a defence of fair protected report. Grounds of Defeasance 419 In a Reply filed on 7 February 2007, the Plaintiff pleaded that certain defences of the Defendant, if established, ought be defeated. The Plaintiff contended that the defence of qualified privilege was defeated by express malice and the absence of good faith, which was said to have actuated the Defendant in publishing the matter complained of. 420 It is sufficient to record my rejection of the Plaintiff's claim of malice and absence of good faith. The reasons for this conclusion are based upon my acceptance of the evidence of Ms Silmalis, Ms Weaver and Ms Miller on a range of topics considered in this judgment. 421 With respect to the defence of comment, the Plaintiff submitted that the Defendant's servants or agents did not have the opinion represented by the comment. I accept the evidence of Ms Silmalis and Ms Weaver that they believed the imputations were true and I reject this ground for defeasance. 422 I am satisfied that no basis has been demonstrated to defeat any of the defences established by the Defendant. Damages 423 I have determined that the Defendant has a complete defence to the Plaintiff's claim by reference to the defence of substantial truth. I have considered the other defences relied upon as well, in the event that an appeal is brought and error is found with respect to any of my findings concerning the defence of substantial truth. I have determined that some, but not all, of the other defences relied upon by the Defendant have been made out. 424 Because of my conclusions, it is strictly not necessary for me to deal with the question of damages. However, I will consider that issue against the possibility that my findings in respect of liability are erroneous. Submissions of Parties 425 The Plaintiff claims general damages and aggravated damages. General damages serve three functions - to act as a consolation to the Plaintiff for the distress he suffered from the publication of the statement, to repair the harm to his reputation (including, where relevant, his business reputation) and as a vindication to his reputation in the eyes of the public. Damage and injury to reputation is presumed. It flows from the act of publication to others, and evidence does not have to be called to prove it in fact occurred. The Plaintiff called witnesses with respect to his position and standing (Mr Caulfield, Ms Duffy, Mr Hann, Ms Honeysett, Ms O'Ryan, Mr Richardson and Mr Stracey). In addition, the Plaintiff adduced evidence from himself and others concerning his reaction to the publication and his hurt to feelings. Evidence was also adduced from the Plaintiff and others concerning the attitude of others to him following the publication. 426 The Plaintiff relied as well upon the mode and extent of publication of "The Sunday Telegraph" with an estimated readership in the period July 2005-June 2006 of 1,897,000 in New South Wales and 26,000 in Queensland. The Plaintiff relied upon the absence of apology from the Defendant. 427 The Plaintiff sought aggravated damages in accordance with s.46 Defamation Act 1974 (NSW). 428 The Defendant emphasised that any assessment of damages must be made in conformity with ss.46 and 46A Defamation Act 1974 (NSW). The Defendant submitted that any general damages awarded to the Plaintiff must find a place within a range marked out by the range of general damages available in personal injury actions, and that whilst there can be no precise mathematical comparison between such damages and damages for defamation, attention must be paid to the nature of the injury done by defamation compared with the consequences of disabling physical injury. 429 With respect to the Plaintiff's claim for aggravated damages, the Defendant submitted that such damages are not constituted by a separate sum of general damages, but can form part of an award of general damages in circumstances where the conduct of the Defendant is proved to have been improper, unjustifiable or lacking in bona fides. However bona fide persistence in an unsuccessful defence is not a matter of aggravation: Triggell v Pheeney (1951) 82 CLR 497 at 514; Coyne v Citizen Finance Limited [1990-1991] 172 CLR 211 at 237. 430 The Defendant submitted that an appropriate award of damages in this case, should the Plaintiff succeed in his claim, would be modest. The Defendant said that it is important to recall that, at the time of publication on 20 November 2005, the Plaintiff was in heated dispute with the New South Wales Government over the lease of Jenolan Caves House. During the course of the Parliamentary debate on 12 October 2005, the Minister, Mr Debus, had made a range of stinging remarks concerning the Plaintiff's management of Jenolan Caves House, and his suitability to continue as lessee and manager. Those remarks, some of which were repeated in the articles, were sharply critical of the Plaintiff and his reputation. 431 The Defendant submitted that it was also important to recall that, in early December 2005, shortly after the articles were published, receivers and managers had been appointed to Jenolan Caves House, effectively ending the Plaintiff's occupation. 432 It was submitted that the evidence about the Plaintiff's hurt feelings, and the damage to his reputation, failed to distinguish damage which flowed from his existing dispute with the Government and the appointment of receivers and managers on the one hand, and any damage caused by the articles. The Defendant pointed to evidence of what it described as a conspiracy theory of the Plaintiff - that the Defendant and the Government were conspiring to harm him. The Defendant submitted that the Plaintiff's belief about a conspiracy was without foundation, but it lay at the heart of his reaction to the articles. 433 The Defendant submitted that, at the time of publication on 20 November 2005, the Plaintiff was distressed by the very real and imminent prospect of being evicted from Jenolan Caves House. Further, the Defendant submitted that evidence adduced with respect to the Plaintiff's reputation, involved no attempt to differentiate between the harm which resulted from the articles complained of, and that which inevitably resulted from the fact that his business was taken away from him following the appointment of receivers and managers, and as a consequence of the Minister's speech in Parliament. 434 The Defendant submitted that, having regard to these matters, particular care must be taken to distinguish the harm actually caused by the articles from the harm to the Plaintiff's reputation caused by his actual eviction, the hurt to feelings which flowed from his misguided conspiracy theory and the hurt to feelings which flowed from the words spoken from the Minister in Parliament. 435 The Defendant also submitted that the Plaintiff's attempt to distance himself from the management of Jenolan Caves House was a factor which weighed heavily against him in an assessment of damages. It was submitted that the Plaintiff had displayed very poor credit as a witness generally, and that his evidence about his hurt feelings should not be accepted at its face value. Decision 436 There is some artificiality in an assessment of damages made in the circumstances of this case. It will be necessary to consider what damages would have been appropriate, having regard to available verdicts in the Plaintiff's favour with respect to all, or some only, of the imputations. 437 As a general observation, it is necessary to keep in mind that there were a number of events which were impacting upon the Plaintiff's reputation as at 20 November 2005. There was already action in train by the Government to terminate the lease and to remove the Plaintiff from his occupancy of Jenolan Caves House. Further, the receivers and managers were taking action with respect to the Plaintiff and Jenolan Caves House. On top of these events came the publication in "The Sunday Telegraph" on 20 November 2005. 438 I accept that this publication in a Sunday newspaper, with a wide readership in New South Wales and Queensland, would be damaging to the reputation of the Plaintiff. However, the Plaintiff's reputation was not unsullied at that time, with public statements being made about him and the business, accompanied by the action of Government and creditors adverse information concerning the Plaintiff with respect to the same subject matter as that touched upon in the matter complained of. 439 No doubt, the effect of the publication was to inform a much larger group of persons of what was happening, at the Government level, with respect to the Plaintiff and Jenolan Caves House. However, there was much adverse to the Plaintiff's reputation already in the public arena. 440 If the Defendant had failed completely with its defences in this case, I would have calculated general damages in the sum of $75,000.00. 441 With respect to aggravated damages, if the Defendant had failed completely with its defences, it would have been as a result of bona fide persistence in unsuccessful defences. That is not a matter of aggravation. Even if the Defendant had failed completely with its defences, I would not have been satisfied that the conduct of the Defendant had been proved to be improper, unjustifiable or lacking in bona fides. If I was wrong in that conclusion, and a basis for aggravated damages had been made out, I would have allowed a sum not exceeding $10,000.00 in this respect. 442 The conclusions with respect to damages which I have expressed above arise from the notional complete failure of the Defendant to establish its defences, including a failure to establish the substantial truth of imputations 7(a) and 7(b). It is necessary for me to consider an alternative scenario. 443 This scenario involves a finding that the Defendant has established the defence of substantial truth with respect to imputations 7(a) and 7(b), but has not demonstrated a defence of substantial truth with respect to the particular allegations contained in the remaining imputations. For present purposes, I will approach this assessment upon the basis of a failure by the Defendant to succeed on any, or all, of the particular imputations by way of defence of substantial truth. Assessment of damages on this scenario commences with an acceptance that it was substantially true that the Plaintiff was unfit to manage Jenolan Caves House and it was substantially true that he was incompetent in the management of Jenolan Caves House. Despite these general imputations being found to be substantially true, this calculation is approached upon the basis that the particular allegations were not found to be substantially true. 444 There is a significant element of artificiality about this approach. However, I will undertake it for the purpose of explaining my reasoning on damages in this respect. It is difficult to see how anything other than a very small award of general damages could be made in circumstances where it had been demonstrated as substantially true that the Plaintiff was unfit and incompetent to manage an establishment such as Jenolan Caves House, but that a number of specific deficiencies in management had not been made good against him. The damage to reputation arising from findings such as this would be small indeed. On this scenario, an award of general damages not exceeding $10,000.00 would have been appropriate. There would be no proper basis for an award of aggravated damages on this scenario, and I would make no allowance in that respect. Conclusion and Orders 445 The Defendant has succeeded in establishing a complete defence to the Plaintiff's claim. 446 I make the following orders: (a) verdict and judgment for the Defendant; (b) the Plaintiff is to pay the Defendant's costs of the proceedings. ********** 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. 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