Bechara v Bonacorso (No. 4)

[2010] NSWDC 234

CITATION:	Bechara v Bonacorso (No. 4) [2010] NSWDC 234
HEARING DATE(S):	17-21, 24-26 May 2010; 25 June 2010; 1, 11, 18 and 24 August 2010 (submissions)
JUDGMENT DATE:	15 October 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Judgment for the defendant for each of the first, second and third matters complained of. (2) Plaintiff pay defendant’s costs. (3) Liberty to restore concerning costs. (4) Exhibits retained for 28 days.
CATCHWORDS:	TORT - defamation - plaintiff and defendant involved in Land & Environment Court litigation - car fires at the defendant's office and family property shortly after defendant's family company wins the case - defendant visits police station twice and identifies the plaintiff, in relation to these offences, to a police officer during an interview - whether publication in terms of the matters complained of established - whether the publications - were made on an occasion protected by common law qualified privilege or pursuant to s 30 - whether s 33 defence made out - judgment for defendant
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 13 Defamation Act 2005 (NSW), ss 30, 33, 38 and 40 Civil Procedure Act 2005 (NSW), ss 56 – 62
CASES CITED:	Adams v Ward [1917] AC 309 Ainsworth v Burden [2006] NSWCA 199 Aktas v Westpac Banking Corporation Ltd [2007] NSWSC 1261 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Bashford v Information Australia (2004) 218 CLR 366 Bechara v Bonacorso [2009] NSWDC 131 Bennette v Cohen [2009] NSWCA 60 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Cohen v Bennette [2009] HCA Trans 291 Croucher v Inglis (1889) 16 IR 774 F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159 For the Good Times Pty Ltd v Colten [2007] NSWSC 807 Fraser v Homes [2009] NSWCA 36 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Gross v Weston [2007] NSWCA 1 Habib v Nationwide News Pty Ltd [2010] NSWCA 34 Hays Plc v Hartley [2010] EWHC 1068 Hebditch v McIlwaine [1894] 2 QB 54 Horrocks v Lowe [1975] AC 135 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1; [2007] NSWSC 124 Jennings v Buchanan [2005] 2 NZLR 577 Jones v Dunkel (1959) 101 CLR 298 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No 2) [2005] NSWCA 203 Lamb v West (1884) 15 LR (NSW) 120 Lewis v Daily Telegraph Ltd [1964] AC 234 Lindholt v Hyer (2008) 251 ALR 514 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Mirror Newspaper v Harrison (1982) 149 CLR 293 P & W v Manny [2010] ACTSC 50 Papaconstuntinos v Holmes à Court [2009] NSWSC 903 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 Roberts v Bass (2002) 212 CLR 1 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Shelmerdine v Mewett [1993] Aust Def R 51-075 Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 Sutherland v Neill (1887) 6 NZLR 5 The Producers’ and Citizens’ Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Turner v MGM Pictures Ltd [1950] 1 All ER 449 Watson v Foxman (1995) 49 NSWLR 315
TEXTS CITED:	Justice David Ipp, “Problems with Fact-finding” (2 September 2006) Lawlink, Supreme Court of New South Wales (
PARTIES:	Plaintiff: Antoine Bechara Defendant: Paul Bonacorso
FILE NUMBER(S):	5084 of 2008
COUNSEL:	Plaintiff: Mr K Smark SC / Ms S Chrysanthou Defendants: Mr R McHugh SC / Ms K Rees
SOLICITORS:	Plaintiff: Kalantzis Lawyers Defendants: Puleo Lawyers

Judgment

Introduction

[1] These are proceedings for defamation. The matters complained of are three slanders. The first two slanders are statements the defendant is alleged to have made to two police officers on 18 May and 6 June 2007 and the third is a claim based on a statement allegedly made to Mr Chris Hartcher MLA in June 2007, which was not the subject of evidence at the trial. Publication is denied, and defences of unlikelihood of harm (s 13 Defamation Act 2005 (NSW)) and qualified privilege (at common law and pursuant to s 30 Defamation Act 2005 (NSW)) are pleaded.

The publications the subject of the claim

[2] The first publication is alleged to have been made by the defendant on 18 May 2007, when he went to the Auburn Police Station and spoke the following words, or words to the same effect, to a police officer:

‘I have concerns for my welfare as a result of the actions of Mr Bechara.’

‘Me [sic] and other staff members at DJ Stainforth are currently taking civil action through a civil Court regarding failed business dealings with Mr Bechara and his company.’

‘On 5 May 2007 a stolen vehicle was driven through the front gates of my business premises and set alight. I think that this was either done by Mr Bechara or his associates in order to damage my property.’

‘I have no proof of this allegation, but I wish to provide the police with the information in case of any future incidents occurring either to myself, my staff or my business.’

‘Mr Bechara has made numerous threats to all opposing parties involved in the civil matter and I believe, Mr Bechara is more than capable of carrying through with these threats.’

‘I request you take note of this in case any [sic] further incidences [sic] involving me or Mr Bechara are reported.’

[3] The imputations alleged to arise are:

(a) The plaintiff had conducted himself in such a manner that he warranted being sued;

(b) The plaintiff is a thief in that he stole a vehicle;

(c) The plaintiff is a criminal in that he drove a car through the front gates of the defendant's business and set it on fire;

(d) The plaintiff is a criminal in that he set out to damage the defendant’s property;

(e) The plaintiff had threatened the defendant;

(f) The plaintiff threatens people who sue him;

(g) The plaintiff is a criminal in that he has assaulted persons who had sued him;

(h) The plaintiff was violent and was capable of carrying out verbal threats.

[4] The second publication is alleged to have been made by the defendant on 6 June 2008, when he went again to the Auburn Police Station and spoke the following words, or words to the same effect, to a police officer:

‘I have concerns for my welfare as a result of the actions of Mr. Bechara.’

‘Me and other staff members of my business D.J Stainforth are currently taking civil action through a civil Court regarding failed business dealings with Mr. Bechara and his company.’

‘There are other related incidences [sic] previously reported to police on 5 May 2007 and 18 May 2007’ concerning Mr. Bechara.’

‘Mr. Bechara and his associates are involved in corruption, offering councilors money to have development applications approved.’

‘I have no proof of these allegations, but I want to inform police in case any future misfortune occurs to either myself, my staff or my business’.

‘The matter has been referred to my local member Chris Archer [sic] , who will raise it before Parliament at a sitting on 6 June 2007 [sic] .’

‘Mr. Bechara made numerous threats to all opposing parties involved in the civil matter and I believe, Mr. Bechara is more than capable of carrying through with these threats.’

[5] The imputations alleged to arise are:

(a) The plaintiff had conducted himself in such a manner that he warranted being sued;

(b) The plaintiff had threatened the defendant;

(c) The plaintiff threatens people who sue him;

(d) The plaintiff is a criminal in that he has assaulted persons who had sued him;

(e) The plaintiff was violent and was capable of carrying out verbal threats;

(f) The plaintiff was corrupt in that he offered councillors money to have development application approved.

The issues in these proceedings

[6] The issues in these proceedings are:

(a) Did the defendant publish the first and second matters complained of?

(b) If so, what imputations were conveyed, and were they defamatory?

(c) Were the publications made on occasions protected by the defence of qualified privilege at common law or pursuant to s 30?

(d) If so, was one or both of the publications actuated by malice?

(e) Were the publications made on occasions in which the plaintiff was unlikely to suffer harm?

(f) If the defences fail, what damages and interest should be awarded?

(g) Costs.

[7] There is no defence of justification in these proceedings, and the background facts, insofar as they are set out, relate essentially to the necessary findings to be made in relation to the defences which are pleaded. I shall first set out events prior to publication about which evidence was led in these proceedings.

An application for development in 2000

[8] The plaintiff, a developer, is a director of companies (hereafter called “Omaya”) which in 2000 made an application to the Canada Bay Council to build home units in Chapman Street, in an area of Sydney known as the “Strathfield Triangle”.

[9] The defendant and his family live in this area. The family company, F & D Bonaccorso Pty Ltd, has owned 5 - 9 Chapman Street (a block of 12 units) for many years.

[10] Canada Bay Council agreed to sell to Omaya the three heritage-listed buildings at 4, 8 and 13 Chapman Street, as well as a local park (which was situated at 17 - 19 Chapman Street). The only remaining property in the street situated between the plaintiff’s property and the properties the council offered to Omaya was 11 Chapman Street, which was owned by a Mrs Lyons-Riley.

[11] Omaya then prepared detailed plans for the building of three apartment towers 9 - 10 stories high (a total of 146 apartments) where the three heritage-listed houses and the park had been located. There were objections, and a revised development control plan was circulated by Canada Bay Council in January 2002.

[12] The defendant was one of a number of local residents who objected. He attended a local council meeting (retaining a member of senior counsel, Mr Peter Tomasetti SC, to speak on his behalf) and wrote a letter on 21 November 2002 to the Department of Land & Water Conservation objecting to the proposed partial road closure (T 392). The council, however, approved the development, so the family company commenced proceedings in the NSW Land & Environment Court in February 2003.

[13] Other residents also objected. For example, one resident sent a solicitor’s letter to the council and made a complaint to ICAC (Exhibit 29); others attended a protest rally (Exhibit 24) and there were articles in the local newspaper. The plaintiff was involved in many of these activities as well.

[14] An issue in these proceedings has been the question of whether, in the course of the development application being lodged and the subsequent commencing of litigation in 2003, there has been hostility between the plaintiff and those opposed to his development, and whether the plaintiff threatened these persons.

An application for expedition and a hearing in March 2007

[15] Whether or not there was hostility between the plaintiff and local residents, by March 2007 the council, the plaintiff and the defendant were still enmeshed in pre-trial procedures in the NSW Land & Environment Court.

[16] The plaintiff sought an order for expedition of the NSW Land & Environment Court proceedings. Although the plaintiff (in the witness box in these proceedings) said in his evidence before me that he was “never” troubled by delays (T 328, 340) his affidavit states that because of “these successive challenges and costs” (paragraph 21 of Exhibit 17) the development could not return a profit, and that it was now a question of “controlling the extent of losses that are suffered”.

[17] In addition, the litigation was taking a toll on the plaintiff and his family personally. According to paragraph 22 of his affidavit:

“The financial pressure that has arisen as a result of the delay in redevelopment of the Property (such as through holding costs and interest) and the potential risk that the mortgagee may foreclose on the loan or alter the terms of the existing loan are causing me and my family much stress and personal anguish. This is exacerbated by the potential of the bank to require additional funds by us to be advanced.”

[18] The plaintiff went on to state on oath in this affidavit that if demolition was prohibited, it would have “significant potential financial ramifications” which were causing him “additional and heightened anxiety” (Exhibit 17, paragraph 23). He attached a letter from his financier stating that the plaintiff’s companies might not be able to meet their commercial obligations unless the proceedings were resolved quickly.

[19] The hearing did take place, and on 30 March 2007, Biscoe J gave judgment against the council: F & D Bonaccorso Pty Ltd v City of Canada Bay City Council [2007] NSWLEC 159. The plaintiff said that as soon as this judgment was handed down his bankers asked him to provide alternate security for 17 and 19 Chapman Street (T 343). He arranged for the liquidation of another of his companies, Arinson, to be terminated so that he could provide additional security to his bank. The council filed an appeal and a stay of judgment was granted by the trial judge pending the appeal.

[20] The local residents held a rally on 22 April 2007 and the defendant’s evidence was that during this rally he had discussions with Mrs O’Neill and Mrs Chin about their prior experiences with the plaintiff (T 406-407, 419-422).

[21] The day after the rally the plaintiff’s company filed a motion in the Land & Environment Court seeking to vary the injunction to permit demolition of the houses in Chapman Street but this application was dismissed. Despite this, some demolition work went ahead. On 2 May 2007 the plaintiff’s companies conceded (Exhibit 9) that they had carried out demolition work without authority and consented to an interlocutory injunction not to carry out further development (T 347).

[22] The next day, 3 May, the local newspaper quoted statements made by the defendant at the 22 April rally.

[23] The following day, unknown persons stole and set fire to a car in what the defendant (written submissions, paragraphs 136 - 140) calls “the first firebombing”. The term “firebombing” is emotive and misleading, so I have used the more neutral term “car set on fire”. Whatever term is used, it was submitted on behalf of the defendant that any person finding a car set on fire has been left to burn on or outside their property would be likely to be frightened.

Events leading up to the first matter complained of – The car set on fire outside the plaintiff’s office on 5 May

[24] On 4 May 2007 a motor vehicle was stolen and in the early hours of 5 May left, on fire, by some unknown person outside the defendant’s work premises in Raglan Street, Auburn. Lidcombe Fire Brigade was called. The defendant, who had no prior notice, discovered the crime when he arrived to find burn marks and debris all over the car park and telephoned Auburn Police (T 455).

[25] The defendant told the Auburn Police (T 455 – 6):

“Q. You say you contacted the police, what did you do?
A. Rang Auburn Police Station to see if they were aware of anything that occurred.

Q. Do you remember who you spoke to?
A. No, I just spoke to someone on the phone.

Q. Doing the best that you can, tell her Honour what you said?
A. I said there was some signs of a burnt car in the front car park and if they're aware of anything that occurred and they told me that they weren't so I asked if a police person could come down to our office to investigate further.

Q. Do you remember what happened after that?
A. Yeah, police officer - two ladies come down.

Q. Do you remember what their names were?
A. Not really.

Q. It doesn't matter if you don't remember, I'm just asking if you do. Doing the best you can, can you tell her Honour what the conversation was that you had with the police officers who attended on the Monday morning at D J Staniforth?
A. Yeah. I asked them if they were aware what happened and they advised me that there was a car that had been driven through the front wire fence and set alight. They told me that there was a can of petrol in there and the vehicle was deliberately lit and they told me that we were extremely lucky that the car rolled towards the wall and not towards the building otherwise the whole building could've gone up. We could've lost the whole building.

Q. Do you remember saying anything to her at the time or to them at the time?
A. I've asked them if they knew who it was or they've taken any fingerprints or details. I've asked them where the vehicle was. They said it was taken away by a tow truck over the weekend.

Q. How did you feel when you learnt that the police officers were saying that the car fire had been deliberately lit?
A. Just very - very concerned and wondered why. Very, very scared that we could've lost our whole building, whole business, and my whole livelihood.

Q. Did you make an insurance claim in relation to the fire?
A. Yes we did.”

[26] An insurance claim was made, and its contents, and the facts that these were known to the defendant, is a matter of considerable importance, since it was put to the defendant that these documents confirmed he had no reason to suspect the offenders were anyone other than joyriders (see T 615-616, 619-620).

[27] On 18 May, two weeks after the fire, the plaintiff went to Auburn Police Station to inquire about the police investigation of this incident, and it is asserted that he published the first matter complained of to Sergeant Fowler. The text of what was said is examined in detail below.

Events leading up to the second matter complained of – The cars set on fire on 21 May and 5 June

[28] There was correspondence on 21 May between the parties about resolving the Land & Environment Court litigation. Later that same day, another car set on fire was left at the 5 - 9 Chapman Street, the premises owned by the defendant’s family’s company.

[29] On 5 June, a car belonging to Mrs Chin was parked outside her home. It was set on fire. The defendant said he was told about this by his brother Garry the following morning (T 463).

[30] After speaking to his brother, the defendant went to the Auburn Police Station and spoke to a Sergeant Silva. It is asserted that he published the second matter complained of on 6 June in the course of attending the police station.

The third matter complained of

[31] It was put to the defendant that in May or June 2007 he published the third matter complained of to Mr Chris Hartcher. The defendant denied this publication (T 470, 574) and Mr Hartcher was not called. The plaintiff no longer presses any claim in relation to this publication and I have entered judgment for the defendant.

The demeanour and credibility of the plaintiff and defendant

[32] Both parties submit that issues of demeanour and credibility are relevant to the determination of disputed issues of fact. Before going further, I should note what these submissions are, and the issues to which it is asserted they are relevant. Broadly speaking, the parties rely upon demeanour in particular as to the following issues:

(a) The versions of events given by the parties of the events which are the background to the publications;

(b) Whether I accept the evidence of the defendant concerning why he went to the police station and what he said to the police officers on both occasions;

(c) Whether I accept the evidence of the defendant on issues relevant to qualified privilege, and in particular to malice; and

(d) Whether I accept the evidence of the plaintiff on damages.

The plaintiff’s evidence

[33] The question of whether or not I accept the evidence of the defendant depends in part on whether I accept his claims that other residents told him they were threatened by the plaintiff. The plaintiff was emphatic that he had never threatened anybody at all (T 167), by words or conduct, and that his feelings were hurt when he read the text of the COPS report obtained under subpoena recording what the plaintiff had told police officers during his two visits. He was emphatic that he had never threatened “all the parties opposing” his development (T 168) or anyone, ever. He said “My evidence is that I did not threat [sic] anybody” (T 168). He then went on to add “opposing party”. I asked him for clarification and he repeated this (T 168). Mr McHugh SC then asked:

“Q So you’ve never threatened anybody every?
A I mean it’s like, it’s not with a human being, I mean like sometimes what do – if you say to me you shouted at someone, you say “get Lost”, is that what you call a threat or you –

Q Well it’s an ordinary English word and I understand that you’ve been here from the age of eighteen?
A Yeah I will try to, yes.

Q And you understand what threat means?
A Yes

Q In your understanding of the word threat, have you ever threatened anyone?
A No

Q No?
A No.” (T 168-169)

Ms Lyons-Riley’s evidence

[34] I shall test the plaintiff’s evidence against the evidence of two of the defendant’s witnesses. The first is Mrs Lyons-Riley, who was actively involved in opposing the plaintiff’s company’s development application, as her home was immediately adjacent and the development would have overshadowed her house (Exhibit 13 pages 3 and 28). She had letters printed out in several languages for local residents, sought to “drum up” support from other residents (T 226) and in September 2000 commenced proceedings in the Land & Environment Court to challenge the development.

[35] The plaintiff was initially reluctant to identify Mrs Lyons-Riley as a resident who opposed his development (although agreeing to this at T 281), but then said he never wanted to buy her property (T 178), claiming (at T 184) that Mrs Lyons-Riley started these court proceedings “to force us to buy her [property]” (T 184). However, it was clear from the Department of Urban Affairs and Planning report of September 2000 that access through this lady’s property was critical to the development (Exhibits 11 and 12) and the Council’s papers for the 21 November 2000 meeting confirm this (Exhibit 13 pp 2, 24, 31 and 32).

[36] The relevance of this is that Mrs Lyons-Riley said she had a meeting with the plaintiff in a coffee shop in which he said he would buy her house. He spoke to the local council on the telephone while he was with her, to find out who had lodged objections, as Mrs Lyons-Riley had yet to do so. When she asked “what about price” he said “we’ll talk about that later” and she said “No, I’m going to go and lodge my objection.” As she stood up to go, she said the plaintiff told her “You want to be very careful, things can happen.” (T 230).

[37] Mrs Lyons-Riley said she told the defendant “how frightened I had been and the things he’d said to me”. Her daughter, Justina Lyons, confirmed dropping her mother off at the café and seeing the plaintiff in the café, who shook her mother’s hand and sat down with her (T 706). She also gave evidence about having a conversation with her mother after this incident, in which her mother repeated what had been said (T 705-706).

[38] The plaintiff strenuously denied ever meeting Mrs Lyons-Riley in the café, and called her a liar (T 281-284). Both the defendant and Mrs Lyons-Riley gave evidence about discussing such events (for example, at T 234, T 424-425).

[39] The plaintiff also denied coming to her house in 2000 after an agreement to buy her house, which had been reached as a council meeting shortly before, had fallen through. Mrs Lyons-Riley described feeling as though she was “caught in a pincer trap” (T 234) and described an occasion when she saw the plaintiff parked in a car across from her home, staring at her, which frightened her. Ms Lyons-Riley described two occasions when she saw Mr Bechara outside her house:

“A. It was about 8.30 at night and it was winter, it was dark. And at that stage I had an office at North Rocks and I was coming home from the office late. And as I pulled up into my street there was a four-wheel drive parked on the opposite side of the road to me and down a little bit with some people sitting in it. And I was just - it's a quiet street, I looked at it as I got out of the car. And then I thought that it was Mr Bechara so I walked toward the car and it was Mr Bechara sitting in there with an Asian man.

And then I've turned and he just stared at me and I turned around and walked back across a little bit of the road to my front door and I looked back and he was just still sitting there in the car just still staring at me. And I got rather frightened and was - I was moving around as I put my key in the lock because I thought I might get shot and I went inside and told my husband and when he came out the car had driven off.

…

Q. You said that you recall that incident with the car where there were two people in the car. A few months later did you have another encounter with Mr Bechara?
A. Yes, I did.

Q. Would you tell the court please what that was?
A. Well again I was coming home late in taxis because in July/August/September I worked long hours, and I was coming home late and a car followed me down my street from Parramatta Road and then pulled up on the wrong side of the road opposite me. And I got out of my car and I looked over and I realised it was Mr Bechara.

Q. Was there anyone else with him?
A. No, he was on his own. And I got out of my car and started walking to my face and then he - he just stared at me and then he got out of his car and he sort of propped himself up on the roof, he had an elbow on the roof and on the door and just kept standing and staring at me while I walked into my house.

Q. How did you feel on that occasion?
A. Very frightened, very unsure of what was going to happen. There was always a thought in my mind that I could be physically harmed, shot or bashed or something that wouldn't be good for me anyway.” (T 225-227)

[40] The plaintiff was cross-examined about whether he stared at Ms Lyons-Riley (T 277-281):

“Q. One night in the year 2000 at about 8.30 at night, being seated in a car with an Asian gentleman, outside or opposite number 11 Chapman Street?
A. What's the word agent? Real estate agent or as a race Asian?

Q. From somewhere in Asia.
A. Sir, one thing I can assure you is at year 2002--

Q. 2000.
A. 2000?

Q. The year 2000.
A. Year 2000. If you said 2002 didn't you, no?

Q. I don't think so and I didn't mean to.
A. No, I said 2000 yeah.

Q. If I did I withdraw that, the year 2000.
A. Year 2000, yes. If year 2000, most of my workers are Asian, my accountant is an Asian gentleman, my financial controller is an Asian, the junior accountant is an Asian. I could have driven with them there, I could have showed them what we are buying, I could have told them which finance to, to organise, nothing wrong with that, the law allows me to drive in the street and the law allows me to take them with me isn't it. So I would have, yes, I would have gone, but don't remember specifically what day, what time. I have driven there many times.

Q. What I want to suggest is that Helen Lyons Riley came home at about 8.30 and when she got out of the car she was in she made her way up to her house and as she went past your car you stared at her as she went past. Do you remember that?
A. I have to put this to you and you have to listen very careful. So many times if I'm not wearing my glasses so you have to be careful to what I'm saying, yeah. Now, I took my glasses off, I can see you as a male. If I go 10 metres away I can't differentiate you between a male or a woman, but I can different shape between you or, excuse my language, or another creature. The only way I try to identify people is if I go like this and try to identify.

Q. When you say that's the only way you identify somebody, do you normally carry your glasses with you?
A. Sorry?

Q. Do you normally carry your glasses with you?
A. At all the time I've got the glasses in my pocket, I've got the glasses in the car, I've got the glasses in the office. So many times if I go in someone's car and I haven't got my glasses I feel embarrassed to say to them drive me back to take my glasses. What's wrong with that? Now I have to put my glasses back on so I can see you properly.

Q. Do you tell her Honour seriously that you often go out and forget your glasses even though you cannot see properly without them?
A. Many times--

Q. That's a serious answer to her Honour, is it?
A. Listen. Many times I--

Q. That's a serious answer, is it?
A. Listen.

Q. Is it a serious answer--

HER HONOUR: Let's not talk over each other, it's difficult for the court reporter. He is saying it is a serious answer so what's your next question.

MCHUGH

Q. What I want to suggest to you is that in the winter of the year 2000 you sat in a car outside or across the road from Helen Lyons Riley and that is from number 11, and that when she came home you stared at her very intently as she made her way into her house.
A. Can you identify to me where at number 11, why wouldn't it be in the front of number 2, for example. Why it wouldn't be - it's a very long time ago to remember. Just saying to you--

Q. Are you denying what I have just put to you? Will you please try to focus on the question?
A. I am focussing on the question. I would have said to you--

Q. Would you care to answer it?
A. Yes, I have interest in the area, I had interest in the street, I have driven to the street, the law allows me to drive into the street, the law allows me to take my accountant with me to organise finances. Some people only made appointment with us after hours so I have to work with their times, so nothing wrong with me going there whether 8 or 9 or 10 or 11 or any day it suited the people. I had to work with them, nothing wrong with that.

Q. Would you please pay attention to the question?
A. Yes.

Q. We will be here for a very long time if you do not.
A. No issue whatsoever, I've got all the time for you.

Q. Do you deny staring at Helen Lyons Riley when she came home one evening--
A. I did--

Q. Would you please let me finish my question?
A. Go please.

Q. Do you deny staring at her when she came home one evening at about 8.30 at night in the winter of 2000?
A. Yes, I do deny. I--

Q. That is all you were asked.

…

Q. The question that I am asking is this. Do you deny that one evening in the winter of the year 2000 at about 8.30 at night you sat in a car outside or opposite number 11 Chapman Street and stared at Helen Riley as she made her way to her door? Do you deny it?
A. The fact I have to - I have to explain this, sir.

Q. No, you don't get to explain. The question is do you deny it?
A. Sorry, okay. What can you please explain to me what is the word to stare please?

Q. Stare?
A. Sorry?

Q. Stare?
A. What's the word stare?

Q. To stare at somebody, it's to look at them intently.
A. Okay. If I haven't got my glasses--

Q. Do you deny that you stared at her?
A. Sorry, sir. I have got--

HER HONOUR: Now look, both of you please. Mr McHugh, I am appealing to you in the interest of saving my poor sore wrist from writing down all these interruptions, can we just go a bit slower and not--

MCHUGH: Your Honour, the question is simply does he deny it. It's a question he can answer yes or no.

WITNESS: Sorry.

MCHUGH: Or he's not sure.

WITNESS: I wanted you to explain to me the word "stare". If a stare with if you look at someone without the glasses is a stare? The answer is yes. If looking at someone without the glasses it's not the stare then the answer is no. But taking me long time ago I would say to you hard to remember, but yes I have driven in the property. And you say to me at night you making it a lot worse for me to see without glasses, so I would have definitely if someone I don't identify I'm not wearing my glasses, I look at people all the time like this, that's - otherwise I cannot see. I can't identify who is the person so I would - sorry, your Honour, I'm not sure if I have answered or not.

MCHUGH

Q. What I want to suggest is that you stared at Helen Lyons Riley in an attempt to intimidate her. Do you deny that or do you--
A. I deny that. Now you explained it, yes, I deny I intimidate people, yes.”

[41] The denials of the plaintiff should be seen in context with other answers he had given a day earlier in cross-examination. At T 185-186, the plaintiff was asked:

“Q. Now, do you remember towards the end of 2004 having some dealings with Helen Lyons Riley?
A. With who?

Q. Helen Lyons Riley?
A. I've never dealt with her. It was my former partner dealing with her.

Q. You say you've never had any meeting with her at all?
A. I didn't - I didn't - it was my former partner dealt with her and he's the one who did the transaction with her. I don't know. I didn't deal with her.”

[42] The question is not whether there is objective evidence of the truth of the defendant’s claim that people told him that they were threatened, but whether I should accept the defendant’s evidence he was in fact told this. The plaintiff chose to challenge this evidence by denying there were any threats.

[43] The plaintiff, in the witness box, sought to portray himself as a friendly person who never threatened anyone. Mrs Lyons-Riley’s evidence contradicts this.

[44] Mrs Lyons-Riley was at times shaking and distressed as she recounted these events. Her fear of the plaintiff was not, to my observation of her demeanour in the witness box, exaggerated or feigned. She was an impressive witness, who despite poor health and a naturally timid nature gave evidence carefully and fairly, making concessions where appropriate.

Mr Tomasetti SC’s evidence

[45] Another witness whose evidence was in contradiction to the plaintiff’s evidence was a very different kind of witness. Mr Peter Tomasetti SC is a member of the Bar specialising in Land & Environment Court work. He was retained by the Bonaccorso family company’s behalf to speak at a council meeting in 2002 in opposition to the development.

[46] Mr Tomasetti SC described how, after the meeting, he had stopped to speak to the defendant and his brother in the car park. The plaintiff and another man came towards them driving slowly and stopping only two or three feet from them with the headlights on, the engine running and the plaintiff and the other man staring at them. Mr Tomasetti SC got the group to move 10 or 20 feet away. The car then drove around , returned and did the same thing.

[47] Mr Tomasetti SC’s evidence was:

“I observed Mr Bechara stare directly at me for an inordinately prolonged period and I regarded that as…an unpleasant gesture, a discourteous gesture… And a threatening gesture.

Mr Bechara and… the other person in the car both stared at me directly for a prolonged period in an offensive, discourteous and threatening way.

… he drove the car directly towards me and with no reason in terms of having to leave the car park via an exit or something like that, drove the car directly towards me and stopped within 2 to 3 feet of me, his bumper bar a short distance from my legs and stared at me.

… he drove his car directly at me once and stopped with his headlights glaring on the group and staring at me. He then, when I moved away with the family, took his car in a wide circle and did it again, and drove his car straight at me again.

…they were both looking directly at me in an unflinching, undiverted way for an inordinate length of time.” (T 202 – 204)

[48] The defendant, who was also present, said he was “very, very stressed and very upset because it’s like I’ve beaten you, I’m going to get you, type of thing.” (T 429).

[49] The plaintiff said he could not recall the incident, had owned a silver and not a black Mercedes at the time, and that as he was short-sighted, if he was not wearing his glasses it might have looked like he was staring (T 278, 280, 303 and 304).

[50] Mr Tomasetti SC was not shaken in cross-examination of this event, which had clearly left a strong impression upon him. His matter-of-fact answers and temperate and reasoned responses to questions confirm that his account of the incident is neither exaggerated nor reconstructed. By contrast, the plaintiff’s explanation that he might not have been wearing his glasses in the car is implausible (and I note he gave a similar explanation in relation to an occasion involving Mrs Lyons-Riley).

[51] Although the plaintiff sought to portray himself as a genial and friendly person who threatened no one, the evidence of these witnesses is to the contrary. I have referred elsewhere to the evidence of other residents, but these two witnesses are the most important – Mrs Lyons-Riley, because hers was the home most affected by the development, and Mr Tomasetti SC, because his involvement as a professional gives him objectivity.

[52] Another issue that I consider relevant to the relationship between the plaintiff and the residents is the way in which the plaintiff spoke about certain other residents, such as Mrs Chin, dismissing her, and her complaints, as “a little bit mental” (T 335) and describing Mrs O’Neill as “very alcoholic” (T 350). All this evidence paints a picture of there being material which would be likely to come to the defendant’s attention at the time of publication.

[53] I am conscious, when considering questions of credit, of the need to exercise caution, for the reasons explained by Ipp JA in “Problems with Fact-finding” < and of the importance of contemporaneous records as a more reliable source, and I have been cautious concerning the use of credit evidence for both the plaintiff and the defendant.

The defendant’s evidence

[54] The defendant gave evidence in a flat monotone, and frequently looked at the floor. He looked tired at the beginning of his cross-examination and even more tired when it finished four days later.

[55] Some of the statements he made reveal the level of stress he was operating under:

“I’m under a lot of pressure here and it’s very hard to remember every little incident.” (T 580)

“Now all this court stuff is all way beyond me, I, a lot of it I don’t understand, when I was filling out these interrogatories I wasn’t told, or I didn’t understand that I had to put down every little, every little specific detail down, I just generalised it as, as what occurred on the incident and I thought if I’d be cross-examined I explain the full content of what happened. So that’s what I remember and what I’m saying to you now is, yep, I was aware of it and I’ve got there [in the interrogatory] that she’s been threatened and intimidated and that relates to those incidents.”

[56] By T 643 I had concerns about his ability to cope and I said:

“HER HONOUR: No, no, but before he comes back, look he is looking very crushed, I mean you get to know that look on witness's faces. He's really--

SMARK: Your Honour, I hope I'm not--

HER HONOUR: No, no, you're one of - I mean really if we were having a competition for the politest barrister--

SMARK: Mr McHugh would win.

HER HONOUR: Well look you'd both be in the top three. But I think what we might do with future objections, if you can possibly deal with it without sending him out we might, just to take things a bit easy on him because he's been in that witness box a very long time.” (T 643)

[57] After estimates from counsel, I told the defendant his cross-examination would finish that day. Unfortunately this was not possible, and I had the following exchange with him while he was in the witness box:

“HER HONOUR: So it's just on a minute to 4, so we've got a minute to sort things out. You can leave the witness box. Remember what I said about not discussing your evidence with anyone, that still applies.

WITNESS: So we're not going to finish today.

HER HONOUR: I'm so sorry. This is the thing, you see, I promised this man that we would finish today, and he's now asking me that question, and that's one of the reasons I've stopped now.

SMARK: Yes, thank you, your Honour.

WITNESS: Can we stay back and finish or--

HER HONOUR: I'm very sorry, Mr Bonaccorso, you'll have to come back tomorrow. Your cross-examination has not finished.” (T 626)

[58] The defendant became too exhausted to answer questions on the fourth day and I suggested a short adjournment:

“Q. Now going to the time you went to the police the second time, that's on 6 June 2007, did you believe that Mr Bechara, this is at that time, had conducted himself in such a manner that he warranted being sued?
A. I can't recall my, my thoughts then, I just, my head's in a spin at the moment.

Q. All right.

HER HONOUR: I think in those circumstances we should stop.

SMARK: Of course, your Honour.

HER HONOUR: This gentleman is obviously - I don't want him returning answers that are--

SMARK: No, of course not.

HER HONOUR: When a witness says his head's in a spin, he's obviously under stress. I really think, Mr Bechara, I know you said you wanted it over?

WITNESS: Yeah, I'd like to get it over. I've answered all those questions in my interlocutories when I've had time to think about it but.

HER HONOUR: Is there some way that we could declare that he's answered it in his interrogatories and he's just - he's looking exhausted.” (T 657)

[59] The defendant’s distress was obvious. He had been in the witness box for fours days and his cross-examination, although courteously done, was relentless (see also T 611, 614, 657).

[60] Senior counsel for the defendant in written submissions submits that the defendant, though “obviously very tired and exhausted” did not swerve from his task of giving evidence as an honest and conscientious witness of truth (written submissions paragraph 38). As is set out in more detail below, I accept this submission. The highest any submission about the defendant’s credit could go is that he is mistaken, or confused, or has forgotten something. He was not caught out in lies. This is of relevance to the findings concerning malice.

[61] Senior counsel for the plaintiff submits that while the credit of the parties has some significance in this case, many of the relevant facts are either agreed or not in substantial contest. I agree with this latter contention, but note that the defendant is, however, the subject of attack on credit issues. These issues are dealt with in more detail in the section of this judgment on malice, but I will briefly outline, as examples, some of the matters raised by the plaintiff in submissions:

(a) Conflicting evidence concerning the colour of the plaintiff’s car: The first point made in written submissions concerning the defendant’s credit is that the defendant and one of his witnesses (Mr Tomasetti SC) “could not agree” (written submissions, paragraph 21) on the colour of the car the plaintiff was driving during the incident at the car park when the plaintiff’s car was alleged to have been driven to just in front of where Mr Tomasetti SC was talking to his clients, and then to have followed them when they moved to another location and driven in front of them again. The defendant said the car was silver. The plaintiff said he had owned a silver Mercedes. Mr Tomasetti SC said the car was black.

The version of events given by both Mr Tomasetti SC and the defendant was generally consistent, and a difference concerning the colour of the car (it being a night-time incident) is a trifling matter. A number of the matters raised by the plaintiff as being inconsistencies demonstrating the defendant’s lack of credit are of a similar kind.

(b) Differences between the evidence of the defendant and that of witnesses whom he asserted had been threatened by the plaintiff: The plaintiff submits that I should not accept evidence of the defendant that a number of local residents told him they had been threatened by the plaintiff. Several of these residents gave evidence, as did Mr Tomasetti SC, a barrister who went with the defendant to a council meeting concerning the plaintiff’s company’s development plans. Three persons (Mrs Judy Chin, Mrs O’Neill and the defendant’s father) provided medical evidence that they were unable to attend. Press-clippings about protest rallies, a COPS report for Mrs Chin’s car fire, and a complaint to the ICAC were tendered. There is significant corroborative evidence from these contemporaneous records.

(c) Differences between the COPS entries, insurance forms and the defendant’s evidence: These are set out in more detail below. An example of the purported inconsistency between the defendant’s evidence and the COPS report was that the defendant allegedly already knew the police closed their investigation the day after being told of the fire, because the CCTV camera did not work (Exhibit R). The defendant said he did not know the investigation had been finalised the day after the fire, and that “that's why I went to the police to, to investigate” (T 617) ten days later.

[62] The first issue for determination is whether the defendant published the first and/or second matter complained of.

Did the defendant publish the first matter complained of?

[63] It was open to the plaintiff to plead that the defendant authorised or participated in the publication of the COPS report. He has not done so. Instead, the text of the first matter complained of is reconstructed from the COPS report compiled by Sergeant Fowler. Sergeant Fowler (who has since left the police service) has no independent recollection of any of the events. There are two other sources for determining what was said: the evidence of Sergeant Fowler based on his usual practice and the defendant’s version of what he said.

[64] It is clear, from the form of the matter complained of, the procedure for taking down information described by Sergeant Fowler, and from some obviously wrong information (such as the reference to the plaintiff’s company, D J Stainforth, rather than the plaintiff’s family company, F & D Bonaccorso Pty Ltd, being involved in litigation with the plaintiff and the description of the litigation between them as “failed business deals”) that the summary of the defendant’s complaint is neither verbatim nor in the order in which the information was given. The plaintiff submits that the question is whether the words proved convey practically the same meaning as the words pleaded, so that any variance or error is immaterial, as it is sufficient for the plaintiff to prove the substance of the words pleaded: Lamb v West (1884) 15 LR (NSW) 120.

[65] A similar point was made in Sutherland v Neill (1887) 6 NZLR 5 at 10, where Williams J noted that the words must be proved, and not what the witness considered was the substance of those words.

[66] Lamb v West is a very old authority, but it has received consideration more recently in Sinclair v Bjelke-Petersen [1984] 1 Qd R 484. The facts were that the person to whom the words were spoken had some difficulty repeating what was said. In a helpful review of the law, Kelly J noted:

“It was necessary for the respondent to establish that the substance of the words complained of in the statement of claim were used by the appellant. That rule was expressed in Lamb v West (1894) 15 NSWLR 120 by Darley CJ at p 126 in these words:

“… it has been held that if the words proved and the words laid in the declaration convey the same meaning to the mind of a reasonable man, that is sufficient, and that, to my mind, is the only safe rule.”

[67] In The Producers’ and Citizens’ Co-operative Assurance Company ofAustralia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244 at 251, Murray CJ expressed the rule thus:

“The actual words spoken by the defendant must, therefore, be given by the witnesses, so far as they can recollect them, and then the inquiry will be, first, whether their recollection and accuracy can be trusted, and secondly, whether the words deposed to and accepted as having been correctly reported bear the same, or practically the same defamatory meaning as the words set out in the statement of claim.”

[68] In Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 470, Bankes LJ said:

“Every case must depend upon its own circumstances, and no rule can be laid down as to what constitutes a substantial difference.”

[69] On the facts of the case, the learned trial judge properly found that, while there was obviously a difference between the statement as pleaded and the words as recalled by Mr Murphy, the substance of the words complained of in the statement of claim were used. Such conclusions are, however, factual matters in each case. Gatley on Libel and Slander (11th ed., [32.15]) notes that if the words proved materially alter or qualify the sense, the variance will be fatal.

[70] The correct approach to questions of variance was considered by the House of Lords in Jennings v Buchanan [2005] 2 NZLR 577 by Lord Bingham of Cornhill:

“[5] Before turning to this principal issue, it is convenient to address another point briefly but effectively argued by Mr Gilkison for Mr Jennings. He contended, quite correctly, that it is the duty of a defamation plaintiff to plead the words said to be defamatory. This, he submitted, Mr Buchanan failed to do, since Mr Speden had not been able to vouch that the words used in his report (“Jennings said he did not resile . . .”) were the precise words used by Mr Jennings, and in particular was unable to say whether “resile” was a word first used by him or by Mr Jennings. Having carefully considered this submission, the Board is satisfied that it cannot succeed. Where an oral statement is complained of, it is rarely possible (in the absence of a recording, a transcript or a very careful note) for a plaintiff to establish the precise words used by the defendant. But the law does not demand a level of precision which is unattainable in practice. The plaintiff must plead the words complained of, but it is enough if the tribunal of fact is satisfied that those words accurately express the substance of what was said. Mr Speden was adamant that “resile” was not a subeditorial interpolation (unlike another expression in his report, which he identified) and insisted that he had accurately conveyed the effect of a long interview. He was not seriously challenged in cross-examination, Mr Jennings did not give evidence to put forward a different account of the interview, and the Judge plainly accepted Mr Speden’s evidence (see paras [15], [16] and [49] of his judgment). It cannot matter whether Mr Jennings said “I do not resile . . .” or whether, perhaps more probably, Mr Speden asked “Do you resile . . .?” and Mr Jennings answered “No”. The law of defamation, which already has its critics, would incur justified criticism if the outcome of actions were to turn on differences of language giving rise to no difference of meaning.”

Proof of spoken words: attention to detail is required

[71] The plaintiff submits (written submissions, p.17), and I agree, that determining what was said on these two occasions assumes a double significance in this case, in that it is relevant not only to the issue of publication but also to the defence of qualified privilege. The burden of proof lies on the defendant as to the occasion of qualified privilege and the burden of proof on the plaintiff as to malice (but note, in relation to s 30, the impact of Griffith v Australian Broadcasting Corporation [2010] NSWCA 257).

[72] At the time of giving evidence, both Sergeant Fowler and the defendant were doing their best to recall a conversation that they had three years beforehand. The first issue to note is the fallibility of human memory, particularly in cases where there is no reliable contemporaneous record. The plaintiff draws my attention to McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 - 319 concerning the fallibility of memory, as opposed to a reliable contemporaneous record of what was actually said, with the “relatively subtle nuances” from actual words:

“Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consider­ation of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based ons 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), in the absence of some reliable contemporaneous record or other satisfactory corroboration.” (Emphasis added to the same part of the first paragraph as was the subject of emphasis by McColl JA in Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [339].)

[73] Watson v Foxman was recently considered in Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [339] ff. As noted, I have placed emphasis on the same portion of this paragraph as that emphasised by McColl JA, and I respectfully adopt the same method of analysis.

[74] In For the Good Times Pty Ltd v Colten [2007] NSWSC 807 at [185] Young J emphasised the need for the court to pay attention to detail, explaining that a court must be careful in such a case “to look closely to what is pleaded and what is established by the evidence, and pay particular attention: (i) as to what the alleged conduct was; and (ii) the circumstances which rendered it misleading”.

[75] A written record of a conversation may be contemporaneous and may be recorded by a reliable person, but whether it accurately records what is said needs to be seen in context. This document is not a transcript of the conversation, or a letter the text of which is not challenged; the COPS reports prepared by each of these police officers were revised summaries, prepared from notes following a conversation which contained considerably more detail, and they contained only the information the police officer thought was relevant. Nor was this document signed statement provided by the defendant, or some other document seen or adopted by him. It is necessary to look at the structure of the conversation, the manner in which certain information was recorded while other information was discarded, and the degree to which the police officer was controlling the conversation by asking questions which the defendant said he felt obliged to answer. Above all, it is necessary to adopt the same careful and precise approach taken by McColl JA in Habib.

[76] This was the case in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1; [2007] NSWSC 124 at [353] – [355], where McDougall J, under the same heading, which I have borrowed for this section of my judgment (“Attention to detail is required”), rejected the submission that precisely when and what was said was not essential, noting it was necessary for the words to be proved with “some precision”. In those proceedings, as is the case here, the plaintiffs also relied upon a contemporaneous record, but the accuracy of this document was not accepted by McDougall J:

“[355] It is of course the plaintiffs’ case that the representations were made not only orally but also in writing, by the handing over and discussion of PowerPoint slides (in hard copy form). However, consistent with my general acceptance of the evidence given by Mr Jackson as to the meeting of 16 November 1998, I conclude that the slides in question were not handed over, nor were they shown to Mr Saville or discussed, at that meeting. Thus, to the extent that representations are to be spelled out of the meeting, they must be spelled out of what was said. It follows from what McLelland CJ in Eq said in Watson that I must be reasonably satisfied with some precision, based on actual persuasion grounded in the evidence, of the words that were said, before I can consider whether they were in fact misleading in the proved circumstances. For the reasons that follow, I feel no sense of actual persuasion, and am not satisfied on the balance of probabilities, that the representations alleged in 6FAS para 46 were made orally.”

[77] The fact that a contemporaneous record was made by a reliable person is not of itself sufficient to establish publication by the defendant of words reconstructed from it which are attributed to him. It is necessary that this document should record with precision what the defendant said, as opposed to what the police officer said, or subsequently added. This involves:

(a) an analysis of the interview process;

(b) analysis of what the defendant says he said (the police officers having little or no recollection); and

(c) a review of the contents of the matter complained of to determine if that was what the defendant in fact said.

The interview process

[78] The first point to note is the question and answer structure of each of the interviews. Sergeant Fowler had no recollection of the conversation, but the defendant described its question-and-answer structure as follows:

“A. When I first went there, I went to investigate to see if there had been any updates on the fire that occurred at our premises. Then Mr Fowler started asking me questions in relation to that. He asked me have I got any enemies or have I suspected anyone. When he asked me those questions I started thinking and it started bringing back some of the things that have occurred, about the civil action that we've had against council and the developer and the threats that he has made against me and my family, and when he asked me have I been threatened by anyone, I said, "yes." He asked me if it was the developer, and I answered, "yes." So he was asking me the questions.” (T 621 lines 2-10)

[79] Sergeant Fowler made the following points about the procedure of taking COPS entries:

(a) It was a summary only, and “most certainly not a statement” (T 25);

(b) It only records the responses of the interviewee, not the questions. This is relevant, because questions such as “who do you suspect” and reference to “enemies”;

(c) It contained what he now considered were mistakes, such as the reference to D J Stainforth as the company which was involved in litigation over failed business ventures with the plaintiff (T 26);

[80] The structure of the defendant’s conversation, according to the defendant, was as follows:

[229] The onus is on the defendant to prove the defence, and s 13 requires proof of the absence of a real chance or possibility of harm: Jones v Sutton (2004) 61 NSWLR 614.

[230] Some helpful comments concerning the defence of unlikelihood of harm can be obtained from the decision of Ainsworth v Burden [2006] NSWCA 199. This is of assistance only tangentially, in that it is an appeal from a jury finding in favour of a defendant, but there is some factual similarity of a superficial nature, in that the matter complained of was a letter to the Police Commissioner and the final paragraph set out that the matter complained of was “not intended as a complaint”.

[231] At [24], Hodgson JA noted the following as being relevant to the circumstances of the publication:

(a) The recipient was the Minister for Police, a person most likely to act upon statements or assertions in such a letter. In the present case, the recipient of the publication was a police officer.

(b) The publication was made to the recipient in his official capacity as a person with power to investigate the serious allegations. The same is the case here.

(c) Weight was given to the assertions by the fact that the author of the matter complained of was writing in his capacity as a former Commander of the Licensing Investigation Unit. In the present case, it could be said that the defendant was speaking in his capacity as a person asserting to have been impacted by the commission of a serious crime.

(d) The publication contained serious allegations. The same is the case here.

(e) There was a request that the Minister should act further in respect of these matters. In the present case, there was a request to do nothing.

(f) The publication was sent out before the finalisation of an application by the plaintiff for a licence. In the present case, the publication was made at a time when the plaintiff and defendant were involved in Court proceedings. This matter, and the remaining three matters in the list set out by Hodgson JA do not have relevance to the proceedings in question.

[232] Hodgson JA noted (at [26]) that police investigations were already well under way by the time of the defendant’s publication. Similarly, in these circumstances there was already an inquiry under way as a result of the commission of three crimes in the area, namely three car fire bombings.

[233] It is submitted by the defendant (written submissions, paragraph 153) that the allegations made to the police had not previously been made concerning the plaintiff and in particular that one of the enquirers, namely the inquiry into the first car fire bombing, had been completed in circumstances where there was no question of wrongdoing of the kind asserted by the plaintiff.

[234] The critical question is, as MacCallum J noted in Papaconstuntinos v Holmes à Court [2009] NSWSC 903 at 103-105, that the circumstances of the publication are the key to the defence. This requires a careful analysis of information provided to the police and the manner in which COPS entries are kept.

[235] The defendant submits that serious imputations of this kind would inevitably result in harm. It is submitted that “it is difficult to see how allegations of criminal conduct, violence and serious dishonesty amounting to corruption could ever be made in circumstances where they would be unlikely to cause harm.

[236] However, the very nature of police records, and in particular COPS entries, is that it is a record of inquiry into alleged criminal activity. While it is certainly the case that COPS entries are permanent records, the fact that material is entered into a COPS entry is not of itself permissible evidence capable of establishing the truth or falsity of anything other than that an allegation was made on a particular day by one person about another person.

[237] Secondly, the information provided by police officers in COPS entries is accessible only by persons authorised by law, namely other police officers, who would bring their training and skills to bear when considering such information or, as occurred I these proceedings, under compulsion of law under subpoena. It is one computer entry amongst hundreds of thousands of other computer entries.

[238] Thirdly, each of these publications (namely the first publication in its full and more limited form as found by me, and the second publication) was made in circumstances where the defendant said he had no proof and asked the police to note the report in the event of future developments. The statement that a person has no proof for their suspicions, or actual beliefs of criminality, in such a context is an acknowledgement capable of contributing, in the factual circumstances of this case, to the defence being able to be made out.

[239] Fourthly, for the defence of unlikelihood of harm to have any meaning, there must be an acceptance that persons who receive information of a defamatory nature but who have a duty to investigate it will go ahead and do so without thinking less of the person about whom the publication is made. It is not the job of police to think worse of a person who is suspected or accused of a crime; it is their job to investigate for evidence. In the present case, looking at the checklist in Ainsworth, the police officers in relation to each publication knew there had been a serious crime, knew that the defendant suspected (or accused, on the plaintiff’s version of the publications) and knew that he frankly said he had no evidence and did not even want the matter investigated.

[240] In those circumstances, a defence under this section is made out for the first publication in either form, and for the second publication.

Damages

[241] As I have found for the defendant, my comments concerning the amount of damages to award will be brief.

[242] The purposes of an award of damages are consolation for hurt to feelings, recompense for damage to reputation and vindication. The relevant principles are set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] ff and were recently discussed by the NSW Court of Appeal in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70] ff.

[243] These were each publications to one person. It is asserted, however, that there has been republication for which the defendant is liable, in the form of the COPS entry, and also “the grapevine effect and in particular those in the Sydney Morning Herald.

[244] Evidence of the potential for republication is asserted to arise from the circumstances in which the plaintiff learned of these statements being made after a subpoena was issued for their production in court. As has been made clear in my judgment in Bechara v Bonacorso [2009] NSWDC 131, the plaintiff obtained the leave of that court to commence these proceedings notwithstanding the circumstances in which the documents alleged to record the slander were obtained under subpoena (see also P & W v Manny [2010] ACTSC 50, where plaintiffs similarly sought and were granted leave). It is asserted that these publications will be recorded on the COPS system indefinitely (T 16) and can be recalled by a search of the plaintiff’s name.

[245] The claim of the grapevine effect, in relation to computer records containing an almost infinite amount of data, is superficially not an attractive one. The person searching the records would have to have a pre-existing and specific interest as well as to be a suitably authorised person. A claim for damages for the grapevine effect has been considered and rejected in two cases involving computer records where the facts are similar. The first of these is Aktas v Westpac Banking Corporation Ltd [2007] NSWSC 1261 where Fullerton J did not consider that a claim of the grapevine effect could be made out, notwithstanding the fact that there were 30 cheques endorsed “refer to drawer”. In P & W v Manny, supra, Grey J at [166] discounted a claim for damages for the grapevine effect, noting that the plaintiff was “not even interviewed.”

[246] As to the claim of the grapevine effect for publication in the Sydney Morning Herald (written submissions, [298]), this creates difficulties of another kind.

[247] First of all, in relation to mitigation, the plaintiff’s written submissions make no reference to the settlement, on 14 May 2020, of proceedings No. 20481 of 2008 between the plaintiff and Fairfax Media Publications Pty Ltd and Fairfax Digital Australia & New Zealand Pty Ltd for $75,000 plus costs. The removal of the two matters complained of from the websites was a part of the settlement.

[248] The statements of claim in those proceedings (imputations 3(a), 5(a), (b), (c), (d), (e), (f), (g) and (h) were submitted by the plaintiff to convey meanings which were substantially the same or to that same effect as the meanings alleged by Mr Bechara at paragraphs 6(c), (d), (e), (f), (g) and (h), 12 (b), (c), (d), (e) and (f) and also 3(a) of the statement of claim in these proceedings.

[249] The impact that this settlement has upon these proceedings is that the settlement sum may be taken into account by way of mitigation of damages pursuant to s 38(c) Defamation Act 2005.

[250] In addition, if any claim is made for damages in these proceedings for the contents of the Herald articles by way of republication and/or grapevine effect, there are complex issues of law, which were not addressed by the parties. These include whether it is permissible to bring or continue proceedings which include a claim for damages for the grapevine effect or republication (or both), after the settlement of proceedings against the original publisher (see the discussion of these problems in Bracks v Smyth-Kirk (2009) 263 ALR 522). Secondly, no claim for republication or grapevine effect was made in the Statement of Claim; as the relevant publications occurred on 7 March and 9 June 2008, I would be troubled by an unpleaded claim of this kind after the expiry of the limitation period. Thirdly, the problems arising from a claim of republication only in support of a claim for damages, and not as a substantive cause of action, is a “difficult topic” (Hays Plc v Hartley [2010] EWHC 1068 at [67] per Tugendhat J) which requires careful analysis.

[251] Fortunately, I do not need to concern myself with these difficult legal issues, as I am satisfied on the facts that there was no grapevine effect arising from the publications of the matters complained of. There is no evidence that the information used to compile the lengthy and carefully researched Herald articles included the matters complained of and, for the reasons explained by Fullerton J in Aktas, supra, the claim must fail.

[252] The maximum damages amount for defamation (s 35) was increased to $311,000 by the Government Gazette of 18 June 2010. The plaintiff seeks an award of between $50,000 and $120,000 for each of the matters complained of, making a total of between $100,000 and $240,000 (written submissions, paragraph 58). Having regard to the principles set out in Rogers, supra, the principles behind s. 34 Defamation Act and the rationale for a cap on damages, I consider the plaintiff’s claim for an award of this size to be wholly lacking in an appropriate and rational relationship with the harm he claims to have suffered.

[253] The plaintiff said that he was very hurt by the Herald publications (T 162, 167, 273), which published similar allegations. In addition, according to his affidavit in the Land & Environment Court, he was very upset about the ongoing litigation between his company and the company for which the defendant was the spokesman. By contrast, I found his claim of hurt to feelings from these publications unconvincing.

[254] The plaintiff’s conduct and demeanour in the witness box did not impress me as that of a man who had suffered any significant hurt. The evidence of his wife and daughter barely rated a mention in the plaintiff’s written and oral submissions. The defendant’s written submissions, rather unkindly, dismiss their evidence as “equivocal, to say the least” (written submissions, paragraph 238). I find their evidence honest, but of little assistance.

[255] The defendant submits that if I do find that imputations are conveyed that the plaintiff threatened the defendant, then I should find that “in the light of the overwhelming evidence to the contrary his denial should be rejected”. As there is no plea of truth, contextual truth or mitigation, I would not take this step. Nor do I accept the submission that the damage is de minimis.

[256] The imputations, while serious, contain the substantial antidote of the defendant frankly acknowledging he has no evidence. In the context of “failed business dealings”, these are not allegations likely to be taken seriously.

[257] Taking all of the above into account, this is a matter calling for an award of very small damages, and if I were to award damages I would award the sum of $1,000 for each publication, noting the NSW Court of Appeal’s helpful remarks about damages awards in similar circumstances in Jones v Sutton (No 2) [2005] NSWCA 203.

Costs

[258] This case was set down for five days but took nine days. It was not possible for written submissions be provided on the ninth day (T 628-629). Although I had allowed for a three-day overflow of the five-day estimate, another trial had to be vacated as a result, and due to my other commitments the oral submissions had to be adjourned to August. The submissions could not be completed in one day, and further submissions were required. I have made an order for costs of the trial to follow the event, but as those costs will be considerable, and there are provisions in both the Defamation Act 2005 (s 40) and Civil Procedure Act 2005 (ss 56 – 62) relevant to costs, I have granted liberty to apply.

(1) Judgment for the defendant for each of the first, second and third matters complained of.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to restore concerning costs.
(4) Exhibits retained for 28 days.

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