Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98

District Court New South Wales

Medium Neutral Citation: Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98 Hearing dates: 7, 8, 9, 10, 11, 14, 15, 16, 17, 21 May and 7 December 2018 Date of orders: 04 April 2019 Decision date: 04 April 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Verdict and judgment for the plaintiff for compensatory, aggravated and special damages, including pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW), in the total amount of $237,970.22;

2. Judgment for the cross-defendant plaintiff on the first defendant's cross-claim; 3. The exhibits are to be returned;

4. The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to demonstrate a basis for some other costs order;

5. The first defendant is to pay the plaintiff's costs of its unsuccessful cross-claim against him, such costs to be paid on the ordinary basis unless a party is able to show the basis for some other costs order on that cross-claim;

6. Liberty to apply on 7 days notice if further or other orders are required, including as to costs. Catchwords: DEFAMATION – determination of whether an email sent by the plaintiff's former employer, the proprietor of a childcare centre, to parents of children at that centre, concerning the plaintiff's character and honesty, was defamatory of him – consideration of pleaded defences of truth or substantial truth, claim of a relevant interest, common law qualified privilege, statutory qualified privilege and triviality – consideration of cross-claim for alleged overpayment of wages; DAMAGES – assessment of compensatory, aggravated and special damages Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Defamation Act 2005 (NSW), s 25, s 30, s 33, s 34, s 35, s 36, s 38 Uniform Civil Procedure Rules 2005, r 15.21, R 15.22, r 15.30 Cases Cited: Adam v Ward [1917] AC 309 Ainsworth v Burden [2005] NSWCA 174 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257 Horrocks v Lowe [1975] AC 135 Megna v Marshall [2010] NSWSC 686 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Texts Cited: P George, Defamation Law in Australia (2nd Ed, Lexis Nexis Butterworths, 2012) Michael Gillooly, The Law of Defamation in Australia and New Zealand (The Federation Press, 1998) T.K. Tobin, M.G. Sexton, Australian Defamation Law and Practice (Lexis Nexis Butterworths, 2003) Category: Principal judgment Parties: Matthew Bowden (Plaintiff) KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig (First defendant) Karen Suzanne Marion Chapman (Second defendant) Representation: Counsel: Mr GM McGrath (Plaintiff) Mr RH Armitage (Defendants)