Bodenstein v Hope Street Urban Compassion
[2014] NSWDC 126
•12 August 2014
District Court
New South Wales
Medium Neutral Citation: Bodenstein v Hope Street Urban Compassion [2014] NSWDC 126 Hearing dates: 16, 17 and 18 July 2014 Decision date: 12 August 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the first defendant.
(2) Plaintiff to pay the court filing fee and hearing fee in 28 days.
(3) Plaintiff's claim against the second defendant dismissed.
(4) Liberty to apply in relation to costs, such liberty to be exercised in 7 days.
(5) Vacate the notice of motion return date of 15 August 2014.
(6) Exhibits retained for 28 days.
Catchwords: TORT - defamation - plaintiff, a homeless person, involved in verbal dispute with an employee of a not-for-profit homeless assistance provider concerning the mobile phone used by the employee - employee calls police - plaintiff commences proceedings for publication of slander to the police officer and to a fellow employee - publication and defamatory meaning - whether each of the two publications was made on an occasion protected by qualified privilege at common law or pursuant to s 30 Defamation Act 2005 (NSW) - whether plaintiff had established that the second defendant was motivated by malice - whether the publication was reasonable (s 30(3)) - defences of qualified privilege at common law and pursuant to s 30 made out - plaintiff fails to establish malice - damages - limited publications - two publications to two persons - mitigation of damages - evidence of apologies and conciliatory gestures by both defendants - whether damages, if awarded, should be nominal only. Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Defamation Act 2005 (NSW), ss 20, 30 and 38(1)(a)
Uniform Civil Procedure Rules 2005 (NSW), rr 10.4, 14.4, 14.30 and 29.7Cases Cited: Adam v Ward [1917] AC 309
Ainsworth v Burden [2005] NSWCA 174
Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Altarama v Forsyth [1981] 1 NSWLR 188
Andreyevich v Kosovich (1947) 47 SR(NSW) 357
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Beck v Brener (District Court of NSW, Bozic SC DCJ, 5 May 2011)
Bodenstein v Hope Street Urban Compassion (Supreme Court of New South Wales, McCallum J, 2 December 2013)
Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174
Briginshaw v Briginshaw (1938) 60 CLR 336
Bristow v Adams [2012] NSWCA 166
Calwell v Ipec Australia Ltd (1975) 135 CLR 321
Cerutti v Crestside Pty Ltd [2014] QCA 33
Coren v Master Builders Assn of New South Wales Pty Ltd [2014] NSWCA 244
Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 243 CLR 298
French Consulting Pty Ltd v Donald [2011] NSWSC 584
French v Triple M Melbourne Pty Ltd [2006] VSC 36
Gross v Weston (2007) 69 NSWLR 279
Hallam v Ross [2011] QCA 274
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 30
Hughes v National Trustees, Executors and Agency Co of Australia Ltd (1979) 143 CLR 134
Hunt v Great Northern Railway [1891] 2 QB 189
Italiano v Carbone [2005] NSWCA 177
Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364
Jones v Dunkel (1959) 101 CLR 298
Kim v Lee [2012] NZCA 248
Kim v Lee [2012] NZCA 600
King v McKenzie (1991) Aust Torts Reports 81-118
Kingdon v Kirk (1887) 37 Ch D 141
Lamont v Dwyer [2008] ACTSC 125
Lemaire v Smith's Newspaper Ltd (1927) 28 SR (NSW) 161
LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370
Magjarraj v Asteron Life Ltd [2009] NSWSC 1433
Malouf v Prince [2014] NSWCA 12
Mann v O'Neil (1997) 191 CLR 204
McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42
Papaconstuntinos v Holmes à Court (2012) 249 CLR 534
PW v MS (No 3) [2014] WASC 202
Ritz Hotel v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110
Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177
Roberts v Bass (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Shiels v Manny [2012] ACTA 22
Stone v Smith (1887) 35 Ch D 188
Trantum v McDowell [2007] NSWCA 138
Turner v MGM Pictures Ltd [1950] 1 All ER 449Texts Cited: Cross on Evidence (LexisNexis)
Ritchie's Uniform Civil Procedure (NSW) (LexisNexis)
Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis Australia)Category: Principal judgment Parties: Plaintiff: Amir Bodenstein
First Defendant: Hope Street Urban Compassion
Second Defendant: George VlamakisRepresentation: Plaintiff: In person
Defendant: Ms S Chrysanthou
Plaintiff: In person
Defendant: Hall & Wilcox Lawyers
File Number(s): 2013/16865 Publication restriction: None
Judgment
The parties
The plaintiff is a self-represented litigant who gives his occupation as "beggar" (Bodenstein v Hope Street Urban Compassion (Supreme Court of New South Wales, McCallum J, 2 December 2013) at [2]). After refusal of his long stay business visa by the Federal and High Courts in 2009, he became a "rough-sleeper" in Woolloomooloo, Sydney, outside the police station and across the road from the first defendant's premises.
The first defendant (which is informally known as "HopeStreet", as one word) is a not-for-profit, faith-based organisation, managed by the Baptist Church and funded by donation, which has been in operation for over thirty years. Its mission is to "bring justice, compassion and hope to people in need by working together with their individual, community and structural contexts" (Exhibit 3, page 1). Its Community Development and Homeless Support programme helps homeless persons find housing and provides practical assistance such as food bags, swags and sleeping bags. Its employees liaise with police, Centrelink, Housing NSW and the Homeless Persons' Legal Service (Exhibit 3), a free legal service for homeless persons.
HopeStreet also provides gambling addiction counselling, and employment training programme (ETP) and a Women's Space, and partners a number of other not-for-profit organisations for the homeless (Exhibit 3, pp 9 - 10). Facilities it operates to provide social interaction for those to whom it offers help include an "Op Shop", the Back Shed Café and administration offices.
The second defendant, a counsellor, became the Community Development Coordinator in 2011. Originally from Melbourne, he returned there to live in 2012. While in the first defendant's employ, he was accountable to the Operations Manager, Rod Ravenscroft (Exhibit 4). He is the author of the two matters complained of.
The second defendant, like the plaintiff, is not legally represented. He was served by the plaintiff with an earlier draft of the statement of claim (Bodenstein v Hope Street Urban Compassion, supra, at [6]). According to the Further Amended Statement of Claim at page 6, under the section "Details About Defendants", the plaintiff states that the second defendant "[w]as served the Amended Statement of Claim by the Plaintiff on 25 September 2013". He has not been served with any documents since, or notified of any court directions hearings in the Supreme or District Courts, and was not notified of the hearing date of these proceedings.
The case management of these proceedings
These proceedings were commenced and case managed in the Supreme Court of NSW before being referred to this court. The statement of claim identified no imputations or publications, and sought damages for 'two causes of action and persecution".
In the course of five listings before the court's registrars, an amended statement of claim was filed (15 February 2013), to which the first defendant filed a defence on 6 June 2013. The amended statement of claim identified the publications as being that the police said to the plaintiff "we have to search you to see if you stole things other than the phone" and that he had made "repeated death threats" to the HopeStreet staff.
The manner in which the parties conducted the hearing, including the informality of the pleadings, the absence of the second defendant and the presentation of the evidence, resulted from the lack of funds of the parties, a factor about which I have been reminded on several occasions by both Ms Chrysanthou and the plaintiff.
The second defendant, who had ceased being an employee of the first defendant and moved interstate, was not served until 25 September 2013. The lack of evidence that he had been served was drawn to the plaintiff's attention by the Supreme Court registrar and, on 17 June 2013, the plaintiff served a Notice of Motion returnable on 18 June seeking a referral to the pro bono panel and "substituted and informal service" on the second defendant pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR) r 10.4 . Orders were also sought for the production of documents from the first defendant. On 5 July 2013 the first defendant consented to the pro bono panel referral, but objected to the orders for substituted service, on the basis that the plaintiff had not served any evidence demonstrating the steps taken by him to bring his claim to the second defendant's attention, despite orders by the registrar on 18 June 2013 to do so.
The registrar declined to make the order for substituted service sought by the plaintiff, and referred the pro bono assistance order to Campbell J. Campbell J made an order for referral of the plaintiff to the pro bono legal panel, and since that time the plaintiff has received legal assistance in the drafting of pleadings, in seeking orders such as extension of time for service and substituted service, and in preparing subpoenae for witnesses and documents.
The proceedings were transferred to this court on 3 March 2014, on the basis that they were both suitable for this court to hear and ready for hearing. Case management orders were proposed by this court on the first return in the defamation list, and a two-hour hearing fixed for outstanding issues, but the parties preferred instead to ask for a hearing date on the day when these outstanding issues were to have been heard.
In conducting this hearing, I have endeavoured to follow the practices adopted by experienced defamation trial judges in relation to the case management and evidentiary difficulties which occur when parties on both sides are unrepresented. In PW v MS (No 3) [2014] WASC 202 at [5] - [6], Le Miere J noted this presented difficulties for them in adducing evidence, particularly for the plaintiff, who bears the burden of proof. The principal problem was that much of the evidence was hearsay (at [20] - [22]), or irrelevant, in circumstances where it was unclear whether the unrepresented opponent had omitted to object to the hearsay evidence for some tactical reason or had simply not known that such evidence should be objected to. The course Le Miere J took was to give such inadmissible evidence the probative value the court considers appropriate (citing Hughes v National Trustees, Executors and Agency Co of Australia Ltd (1979) 143 CLR 134 at 153 (per Gibbs J), Cross on Evidence (LexisNexis, last updated April 2014) at [1650] and [1655], Ritz Hotel v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 170 per McLelland J and Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177 at [43] per Muir JA).
I have additionally taken into account the approach adopted as appropriate by Higgins CJ where an unrepresented defendant fails to attend to give evidence in proceedings where a defence of qualified privilege was made (Lamont v Dwyer [2008] ACTSC 125).
The circumstances giving rise to publication of the matters complained of
The plaintiff has set out the events in his successive statements of claim and the principal facts relating to events on Friday 20 January 2013 are largely not in dispute.
Earlier on the morning of 20 January, the plaintiff had asked another HopeStreet volunteer, known to the court only as "Dianne", to take his place on part or all of his Friday lunch shift, which meant helping to serve patrons coming to the Back Shed Café. This café was run by the first defendant, and the second defendant had some supervisory role in relation to its activities. The plaintiff nevertheless went to the café and remained there until approximately 12.20 or 12.40 pm.
It was while the plaintiff was still at the café, at about 12.20 or 12.40 pm, that Dianne handed him the HopeStreet mobile phone and asked him to give it to the second defendant, who was sitting at a table outside the café. The plaintiff was anxious to leave the premises because a bowl of alcoholic punch for the staff was sitting on the floor, covered with a towel, which was strictly against HopeStreet's teetotal rules. The presence of this alcohol upset him, he told the court.
The plaintiff did not like to interrupt the second defendant, who was sitting at the table outside in a meeting, so he walked past him and went to the Matthew Talbot Hostel across the road for lunch. He then to a nearby centre to work at his computer. The plaintiff returned to the Back Shed Café nearly two hours later, at about 2.20 pm (according to the further amended statement of claim), which was about 40 minutes before it was to close. He had forgotten about the phone, which was in his pocket.
When he returned, Dianne was "in a distressed state", according to the statement of claim, and shouting repeatedly "someone has pinched the phone" (see the successive statements of claim, paragraphs 7(f) and 7(g)).
The plaintiff did not tell her he had the phone. The second defendant told Dianne that he would ring the phone, which would enable him to find its location from the ring tone it gave. The plaintiff then took the phone out of his pocket and handed it to the second defendant.
The second defendant said: "Amir, what is my phone doing in your pocket?" The plaintiff replied "within earshot of approximately six patrons" (further amended statement of claim, paragraph 7(h)): "What are you saying? How dare you! Fuck off George!" (T 32; amended statement of claim, paragraph 7(h)).
The second defendant said: "Amir, take a fifteen minutes time out". The plaintiff replied: "You are not my youth worker; don't talk to me in a sneaky, poofty [sic] ways [sic]" (further amended statement of claim, paragraph 7(i)). The second defendant then said "You are barred for three months". The plaintiff responded: "What are you doing; killing Hope Street?"
I note that the second defendant told the police that the plaintiff said he would kill him, not that he was killing HopeStreet, but that this alternative version of what the plaintiff said is denied by the plaintiff.
The second defendant said: "If you don't leave now I will call the police" (further amended statement of claim, paragraph 7(j)). The plaintiff said "I am not going anywhere as this is my shift, and your games and lies will take Hope Street down" (previously pleaded as "I'm not going anywhere and your games will take Hope Street down") (further amended statement of claim, paragraph 7(j)). The second defendant then said that he would call the police whereupon the plaintiff replied "Call the police, you are doing it almost every day, dogging [sic - the plaintiff used the word "dogging" as if it were "dobbing"] people in" (previously pleaded as "Call the police, you are doing it almost every second day, dogging people in") (further amended statement of claim, paragraph 7(k)). The second defendant then said, "You are barred for six months" and called the police.
The plaintiff's evidence was generally consistent with the accounts set out in these pleadings. The remainder of the statement of claim sets out events occurring after the publication of the matters complained of, which are set out in more detail in the section of this judgment concerning evidence of the parties.
Although there were other persons in the café, none were called by either side. However, Sergeant Merritt, who arrived at the scene a few minutes later, and who was the person to whom the first publication was made, was called to give evidence by the plaintiff.
The version of these events given by the second defendant in his incident report to the first defendant (Exhibit F) was as follows:
"At around 2 p.m. Dianne (café volunteer) approached me in a distressed state, claiming that she had lost my work mobile phone, earlier lent to her.
This conversation took place in the café in front of the counter. I explained to not worry, that I could simply dial the number from my other personal phone.
As I was dialling, Amir - who was behind the counter - turned his back, and appeared to discreetly take my phone out from his pocket.
When I asked "Amir, what is my phone doing in your pocket?" he replied in a yelling tone:
"How dare you?" "
"What are you saying?"
"You are a dog."
"Fuck off."
"You are a poofter."
When Dianne confronted him with why my phone was in his pocket, he responded to her in an aggressive, intimidating tone.
At that point, I requested that Amir take a 15 minute time out.
This triggered an angrier response from Amir and vitriol of a similar tone continued.
I expressed that I am requesting him to leave the café (by this time it was 2.45 pm, near to closing time).
He responded by claiming "I will kill you".
At this point I said to him, that the threat he just made will result in a ban. I also informed him that I will call the Police to escort him out of the premises.
I explained that a ban also means that he will need to remove his belongings from of [sic] the Art Space.
Amir responded with many claims of "Call the Police. I am not going anywhere."
He also said on two occasions, "If you touch my stuff (in the Art Space) I will kill you."
Police eventually arrived and spoke to Amir at length.
It was explained to me by Police that Amir could be charged for:
1. Theft of mobile phone
2. Trespassing, if returned from [sic] Hope Street once banned.
I explained that I did not wish to proceed with a theft charge.
With police escort, Maureen & I transferred Amir's belongings from the Art Space, to the corridored [sic] area outside the Art Space.
At around 3.30 pm Amir re-presented at HopeStreet door, aggressively requesting to see Sage and Andrew. My request that he back away, and explanation that he is banned, was met with another claim of "I will kill you".
Police were notified again, who spoke to him."
This report then went on to discuss events occurring after the publication of the matters complained of, which are set out in more detail in the section of this judgment concerning evidence of the parties.
The issues for determination
The issues for determination are as follows:
(a) Publication to a third party of each of the matters complained of and the "republication";
(b) Whether the imputations are conveyed (defamatory meaning is conceded);
(c) Common law and statutory qualified privilege (s 30 Defamation Act 2005 (NSW) ("the Act"));
(d) Whether, if the matters complained of were published on occasions protected by common law qualified privilege, the plaintiff can establish malice;
(e) Whether, in relation to each of the matters complained of, the conduct of the defendants was reasonable in the circumstances;
(f) Damages; and
(g) Whether damages were mitigated by correspondence to the plaintiff dated 24 December 2012 from the recipient of the second matter complained of, Mr Ravenscroft, informing him that he was welcomed to return to the café and Op Shop (Exhibit L), and by an apology dated 14 January 2013 (Exhibit M) signed by Reverend Hall, who was called by the first defendant to give evidence
The publications and imputations
There are two publications and one "republication".
(a) The first matter complained of
The first matter complained of is set out in the statement of claim as being that the second defendant told police that "he left his phone with a female colleague and that he believes that the plaintiff only handed it over as he didn't have time to turn it off and it would have rung in his pocket" (further amended statement of claim paragraph 8(a)).
The plaintiff has never pleaded the imputation asserted to arise from this publication. Its contents were clarified by McCallum J in an ex tempore judgment of 2 December 2013. The difficulty facing the court was that neither the matters complained of nor the imputations arising had been set out by the plaintiff. If the matter was to proceed, these issues had to be clarified. Ms Chrysanthou told her Honour (T 9):
"CHRYSANTHOU: Now that we understand that the two publications are those that have been identified, namely the words said to police and the words said perhaps to Mr Ravenscroft or other staff resulting in that letter of 23 January, we are content to proceed with that. As long as that is noted somewhere, so we are not faced at trial with some different case."
McCallum J went on to give a short oral judgment confirming this position, the relevant passages of which are as follows:
"3. the two publications Mr Bodenstein says he relies on are, first, the words said by Mr Vlamakis to police referred to, but not pleaded, in paragraph 7(k) of the amended statement of claim and, secondly, the words said by Mr Vlamakis either directly or indirectly to Mr Rod Ravenscroft recorded in Mr Ravenscroft's letter to Mr Bodenstein dated 23 January 2012...in particular the allegation that the plaintiff made repeated death threats to a member of the Hope Street staff and refused to leave the premises of Hope Street after verbal notice had been given of his ban from those premises. Those indications by Mr Bodenstein dispose of the defendant's objections." [Note: The spelling of "HopeStreet" used by her Honour has been left unchanged].
Sergeant Merritt, who gave evidence in these proceedings, was the recipient of the matter complained of from the second defendant. It appears to be common ground that the second defendant did not speak to the male police officer accompanying Sergeant Merritt, and that the male police officer's role was that he carried out a search of the plaintiff.
Sergeant Merritt's COPS entry states:
"[The second defendant] told police that he had left his phone with a female colleague and that she told him that she had lost the phone. He told her not to worry and that he would just ring it. At this time [the plaintiff] was in close vicinity [sic]. Upon hearing this [he] has taken the phone from his pocket and handed it to [the second defendant].
"[The plaintiff] has no reason to be in possession of this phone and [the second defendant] did not give him permission to have it. [The second defendant' believes that [the plaintiff] only handed it over as he didn't have time to turn it off and it would have rung in his pocket".
Sergeant Merritt was not asked by either party what the second defendant said to her. I am satisfied by concessions made by Ms Chrysanthou at the end of her submissions that a publication was made to her by the second defendant in accordance with what is set out in the plaintiff's statement of claim, namely that the second defendant "left his phone with a female colleagues and that he believes that the plaintiff only handed it over as he didn't have time to turn it off and it would have rung in his pocket." The imputation conveyed was never distilled by either party, but an imputation of attempting to steal a mobile phone is clearly conveyed and conceded to be defamatory.
(b) The second matter complained of
The second publication by the second defendant is his oral report to Mr Ravenscroft, his superior, to the effect that the plaintiff has made repeated death threats, as is set out in the extract of McCallum J's judgment as set out above. This oral publication is evidenced by Mr Ravenscroft's letter to the plaintiff dated 23 January 2012 (Exhibit G), as well as by the incident report (Exhibit F) written by the second defendant in which he stated the plaintiff said to him more than once "I will kill you". This incident report (Exhibit F) was used as a source for the letter of 23 January 2012 (see Exhibit G). As is noted by McCallum J, the plaintiff pleads publication to one person, namely Mr Ravenscroft.
The first defendant does not dispute that the plaintiff has established that this imputation is conveyed and defamatory.
(c) The "republication"
The plaintiff made copies of the 23 January 2012 letter to which he added certain words from Chapter 23 of Exodus. He taped two copies of this publication to landmarks in Tom Uren Square on 25 January 2012 (Exhibit H.
Whether these publications are in fact republications at all, as opposed to publications (as to which see Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 - if so, they were added to the statement of claim after the expiry of the limitation period) the plaintiff must establish that he was:
(a) Legally or morally obliged to make the publication (or republication) in question;
(b) That it was made to persons with a legitimate interest in receiving it; and
(c) Such publication was reasonably to have been anticipated by the defendants.
There is no evidence satisfying any of these requirements. In addition, it was the plaintiff's evidence that the second defendant was in the square when he was putting these letters up. As soon as the second defendant saw them, he ripped them down and as the plaintiff told the court, no one ever saw them except the second defendant. Leaving aside the difficult question of whether the publisher of a libel can also become the third party if the plaintiff gives the document back to the publisher (see Trantum v McDowell [2007] NSWCA 138), this claim fails in limine on the plaintiff's own evidence and there is no evidence any third party ever saw it.
The next issue is whether the first defendant is vicariously liable for the publications of the second defendant.
Vicarious liability
In the amended defence filed on 19 February 2014 the first defendant pleaded (paragraph 6) that the first defendant "notes that the plaintiff does not rely on any alleged publication therein for the purposes of his claims in defamation (see judgment of McCallum J, 2 December 2013)". This seems to have been based on a misunderstanding by the pleader that the second defendant was another volunteer, or somehow a person for whose publication the first defendant could not be liable, vicariously or otherwise.
The first defendant now accepts that it is vicariously liable for the second defendant's publications to the extent that they are proved to have been carried out in the course of his employment (written submissions, page 7). The circumstances in which this concession was made relate to the failure of either party to notify the second defendant, a former employee of the first defendant, that these proceedings were listed for hearing.
Conclusions as to publication and the imputations conveyed
As noted above, I am satisfied that the first and second publications were published by the second defendant, in circumstances where the first defendant was vicariously liable, that each of these statements conveyed the imputations pleaded, and that those imputations were defamatory.
The remaining issues are the defences of qualified privilege at common law and pursuant to s 30 Defamation Act 2005 (NSW) and the issue of damages.
In the statement of claim the plaintiff has raised other issues, called "aggravation" (paragraph 8(a)). This relates to the circumstances in which certain of his property was removed from the Art Space and, after the plaintiff did not collect it for about nine months, sold. Some cardboard boxes containing his records, also not collected for some months, were stolen. A bicycle he left behind was sold and the proceeds of $35 given to the plaintiff. Neither party has addressed me on these issues.
A preliminary issue: The location for these events
At the request of the plaintiff, the first defendant's premises were the subject of a "view". The plaintiff pointed out the locations at which the events set out above occurred.
These events took place at the Back Shed Café which was a community coffee shop with outdoor seating, operating on Mondays to Thursdays between 9:00am to 3:00pm and on Friday between 11:00am and 3:00pm, for which two shifts of volunteers were, according to the plaintiff, managed by the first defendant's staff. The plaintiff was a volunteer on Wednesday and later on Friday mornings. In return, he received free coffees on weekdays, four items from the Co Shop per week and had access to a workstation at nights and on weekends.
The Back Shed Café is a very small open-air café operating out of the back of the HopeStreet centre, offering low-cost coffee and snacks to locals. There are less than half a dozen tables inside and a similar number outside. Prominently attached to the coffee machine, as at the time of the matter complained of, was the following sign:
"Violence will not be tolerated
In the Back Shed Café or the Op-Shop
This includes Verbal [sic] abuse, swearing and making threatening comments, weapons of any sorts [sic] and physical abuse.
All of the above will be dealt with in a serious manner, police will be called immediately and you will be banned from HopeStreet for two weeks minimum."
The plaintiff's evidence
In his evidence in chief, the plaintiff describes the events in question as follows:
"Q. Why don't you tell us what happened on the day, just tell us what you say happened, and we'll just let you tell your story.
A. I had, two days before the incident, which was Wednesday, I had a particular incident with the second defendant, yet it wasn't the first one and I would like to go even further back, when he entered the position of the coordinator of the first defendant, of Hope Street Urban Compassion. This position was vacant for a few months, after Fiona Simpson had left, and I reckon, if I can testify about myself, I was very receptive, and tried to assist the second defendant, because he came from Melbourne. He was new, he used to work as a youth worker, and because I already was homeless for quite few years, I knew the older agencies, and I introduced him, and we had like kind of, he liked to have a walk around the waterfront, so, at least three occasions we went for a walk and I just share with him my knowledge about the agencies, and I even took him to the Matthew Talbot Hostel, and I introduced him to people at the Matthew Talbot and as I stated in the statement of claim, I tried to be useful. At a certain point, he called me one of the three local priests, and in particular this was on my 50, I said, 50th birthday. That he was repeating it, considered me one of the
Q. He considered you one of the what?
A. One of the local priests.
Q. PRIESTS?
A. Yes.
Q. You said he considered you one of the local priests?
A. Yes and I think I got like, credit, and yet as the time passed, he had a few incidents that I was just like a bystander, yet not with me, but he had, used to do incident that, that I mention also in my statement of claim, and I just, like, observed his behaviour, and it started with him, at one point, he was assisting a friend of mine, regarding his being barred from the Matthew Talbot, and he went to talk with the staff at the Matthew Talbot and is coming back and say, the one at the front desk, at the Talbot, are bastards. Kind of was talking about a colleague, workers of another agency and it was followed with a few incidents that he had also with one of the artists that what is now became to be the Ex Art Space and I saw him really using force with two customers, one was, his name is Cookie, that was drinking and basically no drink are allowed at the coffee shop, or at sitting outside. So, he really, instead of engaging and convincing him, he really started dragging his chair, and dragging his physical contact. The same he did with a woman, a tranny, her name is Trish. Once again, physical, grabbing chairs, and it's kind of, he had nonstop incidents.
Q. He had what, nonstop?
A. Continuous
Q. He was continuously having what sort of incidents?
A. He was telling lies. He was, he wasn't confident at job, yeah, sorry, this is kind of an opinion. He went, and he had to step into large shoes that Fiona had left and even if he making a compliment about male body, trying to be nice and to say, look what arms you have, this is things that it's not like, it's weird, especially dealing with the homeless, and most of the residents, or the people that are living there are homemade. At a certain point of time, and this was on the 18th, on Wednesday, this is the first huge incident that I had with him, and he was present. This was outside the Art Space. I and he was with him, and with the CEO at the time, Andrew Watkins. I stipulate my, I'm really concerned, my complaints, and it started with the fact that he was saying that the Art Space is going to be shut down and I was claiming at the time that it's not true, and this was what ignite the discussion, my complaints with the CEO and the CEO basically says that it's not on the cards, because what had happened at that certain point of time, of the incident of two days prior, is that they had a job agency, the Hostel had a job agency in Woolloomooloo, and it was flooded with water, rain water. So they moved their activity to the Art Space and basically the second defendant said that, that's it, the Art Space won't be used anymore by artists and when I raised it with the CEO, he said that it's completely wrong. Funny enough, I reckon this was one of the things that eventually, the second defendant was right, it was, one year afterwards, afterwards, one year afterwards, the art place really was shut down. This is happened two days before the incident, the second defendant was present. It was outside the Art Space, and I raised all of what I had just mentioned, also the fact that he was taking excessive, to my opinion, excessive amount of Oz Harvest's product. This was on the Friday, on my shift, to himself. The fact that he was going, on Wednesday, instead of taking people to aerobics was going just by himself, to have, this is through Hope Street, through the organisation, they have a free entry to the swimming pool, and so we had to take, he was going to have swimming lessons and other incidents. I was quite full on, I knew the, quite well, and I think that I had quite good rapport with the CEO and this was at Wednesday, two days before the incident. On the day of the incident, and then we are going, I want to talk a little bit about the third party which is what has been mentioned in the police report, the colleague volunteer. No, she was a colleague worker but she was a volunteer as I was. I reckon she was also a client. She was a regular at Tom Uren Square and I knew her and, really, the bond with us was all the time with a warm hugging. We had a few, two common mates that we knew and I reckon also, because of my background, it was a mutual kind. I don't know if it was mutual but as least as far as I felt from her side it was kind of a respect and I think that already in this stage I just want to make a little remark. It's that I was under the impression until recently, when all the papers were produced, that she really supported me either with the police but I know that maybe I am running too fast so I will be back to the third party but I can say that, prior to the day of the incident, which was the plaintiff or my shift, I was already disengaging and I prepared her and I asked her to cover for my shift because I started feeling not comfortable and this was the reason that I asked her to cover that first two hours till noon of the coming shift. Prior to that she was just covering whenever I had a break with my friends, have a coffee break, and a few weeks beforehand I missed and, in turn, this was the first time and the only time that regarding her, basically, that I missed an entire shift and I believe that it was in this occasion, in this shift, that her phone probably was calling, disappeared. It's she might
Q. Her phone disappeared?
A. Yes, and this is I am talking about, like, her own
Q. This is this lady named Dianne?
A. Dianne.
Q. Dianne what?
A. Dianne. I don't know her second name and she is not the not charged. She is the third party and it's, like, I always feel uncomfortable for the fact that she was dragged into it and for quite a while I was thinking that she turned against me but I was completely, completely wrong and I just .. (not transcribable).. it when all the documents were produced."
The interruptions caused by repeating words just spoken come from the difficulties in understanding what the plaintiff said. The plaintiff spoke very quickly and with an accent, and at times his voice sank to being unable to be recorded, hence the references to some parts being "not transcribable" when a transcript was later ordered.
The plaintiff described how Diane came to be doing his shift:
"A. A real job. On Friday the 20th, the day of the incident I basically was around but I didn't approach the café whatsoever till around ten minutes after 12pm and all of the time I was in the computers adjacent, learning was in the learning centre, which I do on regular base and working and writing on a computer, immigration and other matters that I have to deal with, and the first time that I went to the café, and basically the café is part of the area that I live in, I sleep I think it's not more than 25 metres from the Back Shed Café, and when I entered the café, the Back Shed Café, saw on the floor what looked to be I smelt it also afterwards, but I then realised it was a bowl of alcoholic punch and I was told by Maureen, first in my first statement I think I stated that it was Dianne and then kind of recalled that it was Maureen which was worker of the first defendant, and she told me the guys are having a party to night. I want to mention also that this is the first time that I saw any alcohol inside the café.
Q. How did you know it was alcohol?
A. It was covered with a towel, I pull off the towel, I smell it, it's alcohol. And there was like a group of they were homeless at the time, apparently they left immediately after, there was a group of Kiwis that was sitting at a table, they were kind of all the time watching and probably they are the one, I know they are the one that prepared the punch and they were really sitting nearby but still outside of the café. Immediately after the CEO, they all had a meeting because of the flooding of the job agency, they have a big meeting outside the Art Space, it's less than 15 metres from the café, it was around eight workers of the first defendant, they were sitting in a big circle, kind of a group meeting, outside at Tom Uren Square and at certain point the CEO had approached me, I was already in the café and Ozzie came, Ozzie is one of the locals at the time, sleeping out, she's quite alcoholic and she had to change her clothes so the CEO had asked me if I can take care of, so I took I escort her to the op shop, I organised some clothes and I went back to the café and at certain point I ask Dianne whether she can keep me a bag because at that time the way of distribution was that the produce was put in a bag. Prior to that it was like customers were taking from boxes, but at that time it change, which prior for that it required much more responsibility, lot more flexibility dealing with customer not taking too much. However at this time it already had been changed into packed, repacked and prepacked bags and I asked her, because I already, I saw ..(not transcribable).. something wrong here, this is going completely out of control and I ask Dianne whether she can keep me one bag, know that I'm sleeping outside and I'm provided with food at the Matthew Talbot and I'm not really consumer of food but usually I use this bag as part of my way of surviving, going to friends, bringing them some food and after I ask her, she said, "No you didn't kept me one" which was kindly right and she talked about an incident a week before that I kept a bag, I had a bag for me, a bag for her, this was nearly closing time and the second defendant approached me and ask me like "Why do you have two bag?" I tell him, "Listen this is a bag for Dianne", he said, "Ah no worries, like Pam already took her a bag", so he took the bag, and when she came I said to her, "Listen George told me that" the second defendant had told me, "Pam had took you a bag", she said, "No way there is no bag", so she was quite upset because of that and this is the context of what she was saying
Q. Can you just remind me, is Dianne a homeless person?
A. No.
Q. Why was Dianne needing a bag?
A. Because the bags also were distributed to customers and volunteers. She also a needy person to an extent, who am I to judge, but I reckon she was a client of Hope Street and it's a common that all the volunteer will take were eligible to receive the bag with
Q. This isn't a sleeping bag, this is a bag of
A. A bag of food, produce of Oz Harvest.
Q. A food bag?
A. It's a food bag.
Q. You're saying that George had said that Pam had taken a bag for Dianne is that right?
A. This is the week before and this is in the context why she said, "You didn't keep me one". A week before on the Friday before-
Q. What has that got to do with what happened? You say it's the context, how is it relevant?
A. It's relevant because this is part of what I can call the finally call it in Court the poison that the second defendant had put around because eventually Pam didn't keep her [sic].
Q. How was that poisoned?
A. No I'm saying kind of putting controversy between people and in this incident between me and Dianne. She already was kind of upset that I didn't keep her one the week before, and.
Q. But how is that George's fault?
A. Because Pam didn't keep her none [sic].
Q. But what about if George had just been mistaken?
A. I think that it was fully intentioned of creating controversy between me and Dianne, because it wasn't true. He said that to Pam."
The plaintiff was asked to tell the court what happened on 20 January 2013:
"Q. What happened after that?
A. Around like lunch started 2.30, around 12.40, I told her that I'm going I told Dianne that I'm going for lunch at the Talbot, and she asked me, "Can you give the phone to George?" I tell them, "Look you know me and George are not", and she continued like, "Please, please, I'm very busy", which she was, "I'm very busy" and I took the phone. So she stated "Please give it back, back to George". I knew this mobile phone, she used the mobile phone. I used this mobile phone, this mobile phone wasn't George's phone, it was Hope Street's phone which I knew it. It was used by visitors, myself, other volunteers and as Dianne did. And at that time I want also to mention that the phone was not switched off and it would not it is not rung.
Q. It was not switched off or it was not switched on?
A. It was not switched off, meaning I didn't switch it off, it was switched on. And it was not rung.
Q. It was not rung. Nobody rang on it?
A. No one rang on it, yes.
Q. Yes, what's next?
A. On my way to the to lunch, I saw the meeting outside. I didn't want to interrupt. Also the position of me kind of after the incident two days before approaching George, and they were all busy in a discussion, I put it in my pocket and I continue walking
Q. Wait a moment, did you say, "I saw George"?
A. Yes I did saw George in a meeting, it was in discussion, it's a group meeting of at least other workers.
Q. You didn't give him the phone?
A. I didn't give him the phone. And I put it in my pocket. After lunch there was at the time, it's not relevant anymore, it's not existing anymore, there were lockers at the Talbot Hostel and I went to the locker as usually I do. I went after the computer and I didn't really return, this is it took me time to realise just through the report, I was sure that I returned really shortly after, like after lunch like around quarter past 1, apparently I came back at around 2.20pm, and I forgot about the phone, it was in my pocket, I forgot about it. Wasn't ringing. I came back 2.20pm. I went behind the counter. The counter is not positioned as it's positioned now, at the time like you are kind of turning your back to the side, you are turning your back when you are making the coffee and I started making myself a coffee when I heard the Dianne, "Someone has pinched a phone".
Q. You heard Dianne say?
A. I heard Dianne say, "Someone has pinched the phone" and immediately after
Q. Wait a moment, you heard Dianne say, "Someone has pinched the phone"?
A. Yes. And immediately after I heard George say, like, "I will ring it" was like seconds. I turned my back, I took the phone out of my pocket and I handed it to George. This is inside the café, the Kiwi group sitting like less than 2 metre from the counter outside of the café and there were other patrons inside the café and George said like, ask, "What is my phone doing in your pocket?" and I
[Objection]
A. I said in reply, "What are you saying? How dare you. Fuck off George".
Q. What did he say?
A. He said, "Amir please take 15 minutes break".
Q. What did you say?
A. I turned to him, "Don't act you are not my youth worker, don't talk with me please in sneaky poofty way".
Q. You said, "You are not my youth worker don't talk to me in what"?
A. In a sneaky
Q. A sneaky what?
A. Poofty.
Q. Poofy or poofter?
A. Poofty, this is the way that I put it, poofty way because
Q. No, no, what's poofty?
A. Poofty is like reading poofter, but the way that I pronounced it was poofty.
Q. POOFTY, poofty?
A. Yes.
Q. Poofty way?
A. Poofty way, which like well evidently the way that he was kind of speaking, kind of patronising. And he tell me, "Amir you are barred for three months". I said to him, "What are you doing? What, you are finishing?" And they stated there "killing", I believe that it was "finishing" because this is a word, but I took it to the extreme in case
Q. No, Mr Bodenstein, you need to tell me what was said. He said, "Amir you are barred for three months", and your answer was, "What are you doing?" Did you say something like "You are destroying Hope Street"?
A. Yeah, yeah, to the extent "You are finishing", but it may be that I said, "Killing", I doubt.
Q. "You are killing Hope Street"?
A. Yes.
Q. Yes and what did George say to you?
A. They reckon at this stage he said, "You are barred for six months, if you won't leave now I will call the police". But I am not leaving anywhere
Q. Wait a moment so you replied to that and you said, "I'm not leaving"?
A. "I'm not going anywhere. This is my shift", it's like 20 minutes to 3 or 2.30 and he said, "Listen if you don't leave I'll call the police". To him, "Call the police you're doing it every second day, you are dogging" it might be that I said, "dogging"
Q. You said, "Call the police, you are calling them every second day"?
A. After that, "You are dogging people in all the time".
Q. "You are dobbing people in all the time"?
A. Yes. I don't think that I said dogging, but it might I doubt it, because I love dogs, I don't have any problem
Q. No dobbing, do you know what a dobber is?
A. Yes.
Q. Did you say dobbing as opposed to dogging?
A. Yes.
Q. You said dobbing "You are dobbing people in all the time", that's what you said to him is that right?
A. Yes.
Q. What did he say to that?
A. Once again "I will call the police, you go out".
Q. He asked you to leave?
A. Yes.
Q. How loudly were you speaking at this stage?
A. Not yelling definitely and.
Q. What about George, was George yelling?
A. No this is like George is not yelling, George is talking very soft and very compassionate and very patronising. George is not yelling, and I wasn't yelling.
Q. So George was being patronising you say. All right, what happened next? Did the police come?
A. Next I left, as I left I saw him calling which was not the first time, it was pretty regular, this is the first time that he called police on me. And I was waiting outside and this was at least 15 metres from the Back Shed Café, this was more near the Art Space which is separate. And when police arrive, first they talk with George. I was against the wall. They ask me
Q. Wait a minute, when the police arrived, what did they do? They went in and spoke to George, is that right?
A. They went and talked with George.
Q. They didn't come up to you at all?
A. Yeah, they just like ask me to go a little bit further, 10 metres from the Art Space. So like 20 metres from the Back Shed Café, I was 10 metres from the café when they arrived and then they ask me to stand against the wall, not yet searching me.
Q. Who were the police officers who came, was one of them the lady who gave
A. Yes.
Q. Is that Meredith?
A. Merritt.
Q. One of them was Sergeant Merritt, who was the other one?
A. I don't know, it was a police officer, a man. But I reckoned that Merritt was conducting the event because she was calling the shots and she was immediately after she talked with George, she asked the male officer to have a search of me and she stated that "We have to make a search to see if you have any other stolen property on you", which they did. They searched me. And not more than and I told her that Dianne had handed me the phone. I doubt whether I told him that this is Hope Street phone, I don't know, I can't really recall, but the only thing if I may raise about Sergeant Merritt she is the only there are many police officers, she is the only one that I had and the record could show at least regarding Woolloomooloo, she's the only one that I had any previous contact with there, or this agreement because the way that she was also waking people up by tapping them with her shoes. I had definitely history with Merritt and she knew me. At the time she was not stationed at Woolloomooloo station, and immediately it's not more than five minutes with Merritt present, they went into the Art Space. They remove almost because the foosball for example of the bike remained there, the computer screen but on the boxes and this is Friday before the weekend, on the boxes of documents computer video camera I had all my stuff, not clothing stuff but all the documents and they removed it outside into the corridor which basically is open during the weekdays and this happened very, very quick. George was assisted by Maureen which was another worker of Hope Street. I believe that the police, if they arrive by 2.40, they left around 3 o'clock, it was very, very quick and they saw the café the Back Shed Café was closed and immediately after I tried and she stated that I'm barred and."
The plaintiff described how the police were called again and his requests to other employees of HopeStreet to assist him were rejected.
"Q. You asked to speak to who?
A. With Sage, which is another worker, and she
Q. SAGE?
A. Yes. Who was another worker of Hope Street. She had my passport stored in her cabinet. She came down with the cabinet, with my passport, told them, I told them, listen, you can keep the passport, I want urgently to talk with Andrew, the CEO. At certain point, as far as I recall, Andrew came down, we had a brief talk, and I told him, please, I'm asking at least solution. Whatever was putting out the Art Space for the weekend. He refuse.
Q. You're asking to leave your stuff in the Art Space?
A. For the weekend.
Q. He refused.
A. He refused.
Q. What happened then?
A. And then, I didn't that day have any contact or previous matters.
Q. Did you go away again?
A. Yes."
The plaintiff was critical of both defendants, saying that HopeStreet had now just become a place for drug transactions to take place:
"A. That people will know what had happened. What had happened, because the main way of operation of George was gossiping. Was just talking, he didn't have, he had no idea of any clients. Fiona before him had eight, ten clients, all the time, assisting this paper. He was sitting and talking, and talking, and being nice, and I knew what is coming, and immediately after, I heard, like, he stole George phone. You try to kill him. You stated that you will kill him and I want to mention about that. If I may jump to the incident that he was writing, the judgment raised that in this incident, he is mentioning, four times, that I stated to him that I will kill him, not once, four times, at least, four times, that I repeated threatened. I raised immediately my concern with the CEO, with Rod which was the operation manager. Constant, I didn't provide it as evidence, but constantly I raised my concern and I said that those allegation, which was apparent at this time, was just life. This was in the banishment letter and I stated repeatedly that this allegation is wrong. I had never threatened.
Q. You never said you'd kill him, but you said he was killing Hope Street, is that what you said?
A. Yes. I believe that I said finishing, but I'm taking it to the extent that it might, that I said killing him, killing Hope Street, and I said also, you are taking Hope Street down. Which I believe that he did and we have to come to the site, we can see. So it was in the context, and I saw what is coming. He finished Hope Street, he killed Hope Street. Not because of me, because what had happened afterward. He created a complete destruction. Systematically and I raised my concern.
Q. You're saying he destroyed Hope Street, and Hope Street was finished as a result of his conduct.
A. Yes.
Q. This was all because, of the circumstances, and was all because of what he did to you?
A. No. No whatsoever. Because his performance is incompetent. He destroyed it. There is no more Art Space, and what remains is
Q. There is no more what?
A. Art Space.
Q. That's his fault, is it?
A. Yes, it's mainly his fault, not just, but it's mainly.
Q. Is Hope Street still in existence?
A. In a different mode of operation, there are no more volunteers at the Back Shed Café. It's mainly used for the transaction of whatever drugs.
Q. It's mainly used for drug transactions?
A. Kind of, not mainly, sorry to go to the extreme.
Q. No, mainly used for drug transactions?
A. If we are talking about a purpose of a place, and gossip. And gossip, gossip, gossip.
Q. It's mainly used for drug transactions and gossip?
A. Yes.
Q. Hope Street has been destroyed by all of this, is that right?
A. Absolutely.
Q. There are no volunteers, there are just people who are there to have drug transactions and gossip.
A. And having their coffee, obviously, it's part. Coffee, and still having their Oz Harvest, but I want to mean, it's like, it's not a drug station. But this is what's going on, because they don't have anything. Beforehand they have art, they have activity, they have excursion to museum, to the zoo. Which I was very privileged to have. Now, it's an empty shell, the volunteers operate there's one volunteer that operate the Hope shop. Hardly any volunteers, hardly any volunteer, maybe there are one or two volunteers operating, or working at the Back Shed Café. So, I really believe that what was I was stating there, and I really also helped him. I really helped him, just like, to schmooze around, because he was hopeless. In this position. I really reckon that he was the main factor of destroying Hope Street. And it's definitely the Hope Street that used to be, is not anymore. And we have a big wrong." (T 28 - 39)
As the plaintiff was self-represented, and Ms Chrysanthou could not take him through his evidence (although she assisted in this way in relation to reputation evidence) it was necessary for me to ask many of these questions. After the view, the plaintiff returned to the witness box and I invited him to give a narrative by way of recapitulation:
"A. Hardly but I remember saying that he was what I was saying basically that I was just a bystander which is trying to do the best around and I was involved in the activities of Hope Street and I really cherish the fact that not like other agency, they really opened the door and they are more close to the public and the people in need, and I raised the concern at the management and still I was trying to keep going and whenever if ever needed like for me to put the ..(not transcribable).. and also me, sometimes just trying to calm down a situation as it happened with an artist from the Art Space that had a really big continuous incident with George and it's not that it just was my Friday shift, I was around, this was whenever I'm having a break I'm making a friend down there, I'm not a drinker, still I'm smoking, having a coffee and this was really a privilege, also the privilege that I had the working station at the Art Space. Also the lovely excursion that I participate, and it came out that eventually after basically a year, understand that I'm kind of ..(not transcribable).. because I raised the issue, it's like carrying me to a tipping point when I raised two days before the incident, basically my complaints, but obviously we got involved, the action group, the local action group was altogether just for local people that are caring and there was another three student that came on and off and I joined this action group, I'm not like enthusiastic going with the signs outside, I was doubtful to start with when I joined, it wasn't my initiative, it was Sage's initiative which was also a worker, a lovely worker of Hope Street and people really you can see by the material that was made, have best intention and intelligence and even in that small group, George couldn't fit himself and Carl was my computer tutor and was coming after I requested, "Okay come, you have Woolloomooloo Greenings" and they know he's a genius and it wouldn't take a it just came out that usually we're holding the meeting from three to around 4.30 and it's running late into dinnertime and I'm eating at that time, I'm eating out of the hands of agencies all around, without agencies I wouldn't be here and just like I took ten minutes and coming back, all of a sudden they have kind of a fight and whatever as it document itself, and then Carl go on and on and basically quit the group and eventually the group and I think it's also mentioned in and George was very articulated, he knows his way and this is why I wrote as an exhibit the email, the way that he can explain himself, very articulated, though it's obviously not what I can consider constructive, but he know to express himself. But I believe that as we saw yesterday it's kind of a rough area. To an extent there's a kind of criminal, there is kind of comrades and people are and it's a very forgiving environment, it's like the one that really carries on and not letting go, can't survive on the street for long and apparently it was overwhelming with George almost. At a later stage after the incident it was one time that some big local land on him and try to attack him, so it's a very sensitive I told you he was calling the police again and again which there are times that it's normal(?) but you have to manage the conflict and the only thing this is regarding the incident that I kind of regret, was my main consideration not to pursue it is the word poofty. "Fuck off", this is a standard. He could've ask me privately not everyone there, he was after, I gave him you know, but I reckon I didn't in that situation, I didn't have any other choice, and it was really like, "What are you saying how dare you" and the "fuck off" on the word, it's a kind of a standard, but still it's kind of a warning and him instead of later on privately "Amir at the time" it was in August, it wasn't his phone as he presented even to the police and later on the sneaky I don't have any problem with but the poofty I had, because I respect and I don't have any problems, sexuality of people, but it was definitely that it wasn't a game, he had a girlfriend from the local, she was also participating in the action group and it was just in the context that he wasn't speaking his real tongue, he's kind of find the right words to describe it. After the incident, part of Homeless Legal Services, basically said that they didn't really realise and I was dealing with Homeless Legal Services on other issue which was my main issue, all the status of immigration and not just, and around that point of time, let's say what I provided to the Court regarding my immigration status that I was at the time. Cause I was in more near the detention centre. Which George also knew about, because I was stupid enough ..(not transcribable).. because I'm not, hardly anyone, I participate with the circumstances, part of what I'm reading or giving this Court but him, after one of our walk, yeah, may I please tell me what the story but I kind of just, relatively shortly, but the current situation, the time is, a silent figure is much, much better, than the situation that my status had 2012 though, that I was still lawfully in Australia, but it was and part of, and my main engagement with Homeless legal service was regarding the immigration, though that immediately after the incident, I was asking, I get advice and now I can recall that I was asking, now it's going to the particular, and I whether I have to check with the script of Homeless legal service, but I believe that over there, I ask them, like, formal service and et cetera et cetera. It came out the substitute service. This is when it first arrived. But I approached them, if the incident was at 20 January, I approached them because they are coming on Tuesday, this was Friday, I believe, on the first Tuesday after the incident. I approached them and when we first discussed it, and then later off I backed off because the immigration issue was much, much more severe and later on I still made inquiries. This is regarding Homeless legal service. I immediately, after the incident, the first contact that I made, and tried to approach, was with the CEO. We were quite acquainted, we were already, I was, and this is prior even to when George came on board. I'm talking, George came, I think, I reckon, mid or early, but I reckon mid 2011 and my involvement with Hope Street was from around the beginning of 2010, when I arrived to Woolloomooloo, which might be even the end of 2009. Around that time. So, I knew all the staff, and I don't, it's like, provided by document, of Hope Street, I had never had any incident under their umbrella and this, they were part of my living zone, my comfort zone, and I wasn't acting. I wasn't acting, just like to give back, because I know, not just, you know, I remember when first I was assisted, this is around 2007, I was advised by mental health at Darlinghurst, that go to volunteer, and I was thinking, what are they talking, I hardly live, going to volunteer. Eventually I met Louise, and she met me when I was volunteering back at the café, and yeah, I had volunteering, and there is a cure ..(not transcribable).. a huge privilege, what you, you have the privilege of making people happy. People happy, by giving them a nice coffee, or making them a bottle milkshake and so, the CEO and all the other staff, whether it's Sage, another social worker, and Maureen, and Andrew Watkins and whatever ever, and they were changing; and also the Baptist church, the local community, which as I was participating in the Sunday breakfast. Mainly because, also because, it's where is now the gym, it was Mary Mackill, this is where there were helding [sic] the Sunday breakfast, and I was capable of, there was a few computer stations, so while they had the ceremonies I was nearby on the computer. And that's a major fact that I'm living on the street, I'm much more exposed to the element and to the environment, it's like, it's real life at the same time because it's intense. Never, prior of the incident, one incident that I had kind of a severe incident with, prior to, for the Court entry of 20 January, with Sergeant Merritt, it wasn't serious, she moved me on, prior to that incident and I can say that I melted and I had quite good relation, though that even I mentioned before, and I reckon it's mentioned on the piece of the ABC, that there was one time that I was bashed, but hardly any fighting. I was bashed, usually I am running away. This is regarding the entire concept of, and especially we are talking about an agency, the Christian agency about their forgiveness. Once again I want to say that the forgiveness, this is the reverend at Hope Street, when he became acquainted with the homelessness, he told me, I explained to him and he completely agreed, that on the street, the first trait that you have to adapt yourself, is forgiveness. And this was my entire growth down to an extent. There are certain times that you have to stand for your principle, and this is one of the real one. That to my perception, has to persist, and to pursue the justice but the one that really not letting go in the street, they can't supply. Either they are find themself in gaol, or either they can't, they can't live around. While they are being bashed and kicked out from the area. To conclude this agent never had a problem with congregation, the opposite. Very, very good rapport, both sides and whatever a volunteer lunch, and even whenever I was volunteering, I was behind the counter, they think that Maureen in her letter stated, I'm on call. I'm on call, I'm around, someone need a because there was all volunteers, someone need a break, whatever, I'm around, still doing my thing. It's not, I'm not living their part, and I'm not trying to be part of their employee, and enjoying the privilege of being a volunteer. After the incident, and this is immediately, this was the second call that eventually led to the second call of the police, by George, I tried to talk with Andrew. He's mentioning that I was, this is, I don't know if it's part of no, this is probably part of the submission, is, and his incident report. I hardly can recall what, really at certain point I talked with Andrew, and he said it's irreversible, and the stuff will be out for the weekend. This was my main concern, and going by stages, I have to rescue the most important, and since then, it was a continuing effort to resolve it. I didn't want to go to court. At certain point, eventually, I obviously, I said even to Rod, who was the operation manager, I'm disputing and asking for a fair hearing, and saying, at least what was on the face at the time, following the banishment letter, the fact that, immediately I said this allegation is wrong, and I had never ever threatened any of Hope Street's staff, and in particular, George. I disputed also the fact that I was banished, but on the wrong ground, but I wouldn't have any problem if I was banished, because I had used, as if, abusive language. But for George, apparently it wasn't enough. He went, the further, because he had to come with some explanation. The first meeting that I had with the CEO, Andrew Watkins, it's after like, this happened like three, four months, after the incident. His main response was, I came to the bottom line. Like, listen, if you want to fix the situation, and I'm receiving all the time the response of the gossip, you stole the phone, you know, everyone knows, all of a sudden I'm not at the café and they told them, eventually in this conversation, after explaining to him what had happened, et cetera and cetera. I told Andrew that listen here, I will go to court, it's not a joke and his response was, we will, I have to support my staff. I have to take, to give them back, and we will have a hopeless defence and this is like around, I reckon, May 2012. Or April, May and we have free legal service, so and still I continued, I had never since the, from the event I had never talked with George, not even one word or that he make attempt to approach me. Whether it was kind of don't be around, you are just if not, I'm calling the police and other kind of, but not as many, because I tried to avoid him, but I was in the area. I was in the area, and in a way I was watching him. I more a watcher, and I'm trying to keep myself quite reserved, this is my makeup, I believe. It was also involved the story with the foosball table, but they solved it, they cancelled the dealing at the last minute, just because I was around, and the foosball table is something that quite big, and they gave George gave the excuse that they were thinking that it was donated good. But I can show over the document that it's not consistent and whenever they took it outside, someone almost pick it this is later on, they never, they physically removed it prior to the time that they said that I had the time to remove it. Obviously world operation manager was involved but still saying all the time, that it's up to Andrew and whenever Andrew left I was raising the issue again with the new interim CEO, Warren sorry I can't really pronounce his surname, and they sent me a letter and this is prior, they sent me a letter of response, this was around the end of December. This is 24 December 2012, and basically trying to why not listening to what I'm saying, if you want like retrieve and fix what has been done, and still in the way that for me was kind of patronising, they respond in writing that whatever has passed, whatever had been happening is the past and we don't have any problem with you et cetera, et cetera, but not really answering my concern that I have a mark on my name and eventually the day after I respond to him of that letter, I believe it was 24 December 2012, I sent him an email and told him I provided it also today, the documents that I consider your letter more so than the insult -" (T 65 - 68)
At T 68 I asked if the plaintiff could stop for a moment, as I was having trouble keeping up with writing his evidence down, there being no transcript ordered at the time. Ms Chrysanthou asked how much longer he would be so that she could organise her witness (T 69). Although the plaintiff said at the time that he wanted to "apologise to the Court" (T 70) for taking so long, it later transpired that he was upset at being interrupted.
The issues about which Ms Chrysanthou, in her short but effective cross-examination, asked the plaintiff, related to malice and damages. Relevant extracts are set out in the sections of this judgment below dealing with these aspects of the plaintiff's claim.
The plaintiff's answers appear discursive and disjointed, but he disliked interruption and became angry at any challenge to his version of events or manner of presentation of the case. This included any adverse ruling on evidence, my request that he stop his narrative of evidence, or objection to how he proposed to present his evidence, and made the conduct of the proceedings difficult at times. It is for this reason that I have set out so much of the plaintiff's evidence in full. It is only by setting out the plaintiff's lengthy, and at times angry and discursive, evidence that an insight into his reasons for commencing this litigation can be understood.
The evidence of Sergeant Merritt
The plaintiff called Sergeant Merritt as a witness. On the day in question, Sergeant Merritt was one of the two police officers who attended the scene to investigate the incident. According to the NSW Police incident log 234342-20012012 (Exhibit A), a call was received at 14:34 on 20 January 2012 and the informant stated that:
"There is a person at hope street refusing to leave and is being a pest."
In examination in chief, the plaintiff asked Sergeant Merritt the reason for her attending the scene and she acknowledged that a message along these lines had been broadcast. As she approached the Back Shed Café on the day in question, she could hear the plaintiff (whom she knew from prior encounters) yelling from some distance away, as she recorded in her notes. The plaintiff asked:
"Q. In paragraph 2, upon approach, police could hear the POI yelling at the victim. Do you remember how far he was from the victim, where I was, from Tom Uren Square? The victim basically was around the ..(not transcribable).. He was stating here that I was yelling, do you remember what kind of yelling, and how far I
HER HONOUR: That's several questions in one, let's deal with them one after the other.
Q. Can you remember how far away you were when you say on approach. How far away were you, and when you got there, how far away was Mr Bodenstein, from the person you call the victim?
A. They were standing close together.
Q. How far away were you?
A. It was when I approached the cafe. So as I approached, walking towards the cafe. It was 2012. I would have been within hearing, not far away.
PLAINTIFF
Q. Just stating that police separated, it's meaning, like, physically separated and, like, there was any kind of physical contact between the victim and the person of interest?
A. No.
Q. So it's just separating, it's to move?
A. As in, to move both parties to speak independently to them.
Q. The victim told this is part of a screed. The victim told police that he left his phone with a female colleague and that she told him that she had lost the phone. Are you stating here his phone? Do you know whose phone was it? Once again, the victim told police that he left his phone. Do you recall to whom this phone was belonging?
A. I believe it belongs to the victim.
Q. He told her not to worry and that he would just ring it. At this time the POI was in close vicinity. Upon hearing this, the POI has taken the phone from his pocket and handed it to the victim. Did you see what is mentioned here, the female colleague? Did you interview her?
A. I don't recall whether I spoke to her on that day. I spoke to George and I spoke to yourself.
Q. Yes."
Sergeant Merritt explained why, although she had spoken to the plaintiff, another police officer searched him:
"A. There was also another police officer there on that day.
Q. He was conducting the search, was he? Like, did you instruct him to conduct the search on the POI?
A. I wouldn't have instructed him.
Q. But he was conducting the search as far as you know?
A. He searched you. Yes. I didn't.
Q. For what reason?
A. You're a male so a male officer would search you." (T 3-4)
The plaintiff went on to ask (at T 5):
"PLAINTIFF
Q. I am just asking, like, why didn't you investigate the female colleague because this was the reason that the POI, he stated that she had given him the phone to hand it to the victim. My question is simple. Why didn't you ask her?
A. I don't recall asking her. It's not to say that she wasn't asked. I don't know what my partner would have said on that day and the victim at that time didn't want to proceed with a larceny."
The fact that the second defendant did not want to proceed with any charges in relation to the mobile phone is common ground in these proceedings. The police's radio broadcast messages described the reason for the call as being that a person was being a "pest" and would not leave the Back Shed Café premises despite requests to do so.
The plaintiff asked of the Sergeant Merritt her impression of him (referring to himself in the third person as "the victim", "the person of interest" and finally as "Mr Bodenstein") (at T 7):
"Q. What was your impression of Mr Bodenstein when you had spoken to him on these numerous occasions?
A. I would have to go back to every individual occasion.
Q. Just an overall impression then?
A. An overall impression?
Q. Yes.
A. At times you've been quite confronting and this particular day in question you were quite aggressive."
The plaintiff put it to Sergeant Merritt that she was biased against him by reason of their prior encounters:
"Q. I'm talking about the general role at Woolloomooloo. Were you waking people that were sleeping, the homeless people, that sleep in Tom Uren Square. Was it part of your job in general, not the day of the incident, to wake them up in the morning? To wake the people that are sleeping around the police station and around Tom Uren Square, is it part of the police job, do you remember, when you were there? To wake up the homeless people, that sleep?
A. In the morning, if they were asleep in front of the police station, and I opened the police station down there, which is a shop front attached to Kings Cross local area command, yes, I would wake people up. People need clear access to the police station, that's correct.
Q. I reckon, as far as I remember, they were waking also nowadays, because of then, all the people they can sleeping, isn't it? All the people that are sleeping at certain point, the police wake them up. Noone was allowed to sleep after eight, 9 o'clock?
A. That's right, so people had access to the shops, to the cafes, to the police station.
Q. Do you remember what was the particular, how you were waking people up? Were you calling them by name, were you touching them, were you tapping them with your leg, do you remember? What was the method of waking those people up I'm talking about your specific method?
[Objection, overruled]
Q. Would you just mind telling the Court, just answer that last question, and say, the people who were sleeping outside the police in the morning, how did you wake them up?
A. I would just say, the police station's open, everything's opening up, people need to gain access, you're blocking the doorway, can you please get up now and move yourselves and your property." (T 12 - 13)
In cross-examination, Sergeant Merritt had the following to say regarding her observations of the plaintiff, both through their prior dealings and on the day in question:
"Q. On the day in question, on 20 January 2012, you've given evidence that upon approaching the scene, you saw Mr Bodenstein, or heard Mr Bodenstein, yelling at Mr Vlamakis?
A. That's correct.
Q. Do you have any recollection at all of the sorts of words he was using?
A. No, I just heard his raised voice.
Q. Did you hear any swearing at all?
A. I couldn't tell you.
Q. You said you'd had some dealings with the plaintiff in the past. Had it been your experience in the past that he would swear when he was upset?
A. Yes.
Q. When you say he was aggressive, in what manner do you say that he had previously been aggressive towards police?
A. Are we talking on this occasion?
Q. We'll start with this occasion?
A. He was just, highly agitated and aggressive. He was swearing, you know, the allegation was that he was swearing, and we arrived, we had to separate parties, which we would only do if someone is aggressive and the situation is volatile." (T 10 - 11)
Sergeant Merritt had an independent recollection of the events and did not need to look at her notes. She did not recall what swear words the plaintiff was using, but she was certain he was swearing. She described the events clearly and objectively.
As a senior police officer with two decades of experience in the police force, most of it in the inner city, Sergeant Merritt had not only the experience but the understanding of the potential volatility of the situation. Her description of the plaintiff as "highly agitated and aggressive" was the observation of a police officer with many years of training and personal experience, and in the present proceedings was enlivened by her prior knowledge of the plaintiff.
The picture painted by Sergeant Merritt was that of a volatile situation, where she and her colleague immediately took steps to put distance between the plaintiff and the second defendant. Her confirmation of the plaintiff's use of swearing confirms that he was in fact doing so, and I note the rules of HopeStreet's Back Shed Café warned that abuse and swearing would result in the police being called.
Sergeant Merritt was not asked what the second defendant said about the mobile phone. It was clear from her evidence that her priority was the defusing of a volatile situation where she saw the plaintiff as a potential danger.
Sergeant Merritt was an impressive witness whose objectivity and professionalism meant her evidence could be relied upon. I am satisfied that the plaintiff was highly agitated and aggressive, as well as swearing, that it was necessary to separate him from the second defendant, and that his conduct was intimidating.
The first defendant's evidence
The only witness called by the first defendant was Reverend Kenneth James Hall, who is the pastor of Woolloomooloo Baptist Church and also a member of the community development team of the first defendant (T 125).
He described the use of volunteers at the Back Shed Café as follows:
"Q. Who, thinking January 2012, who was able to volunteer at the Back Shed(?) Café?
A. Anyone from the community, both housed or homeless that seemed to be able to deal with people, seemed to be trustworthy, could make good coffee, and yes, that generally one or two agreed to the was okay with the policies and procedures of the volunteers." (T 128)
Reverend Hall was shown Exhibit 1, a still from an ABC report showing the plaintiff next to the coffee machine in the café, approximately where he was standing at the time of the conversation with the second defendant. On that coffee machine was a sign. The text was as follows:
The sign referred to in Exhibit 1 reads as follows:
"Violence will not be tolerated
In the BackShed Café or the Op-Shop
This includes Verbal abuse, swearing and making threatening comments, weapons of any sorts and physical abuse.
All of the above will be dealt with in a serious manner, police will be called immediately and you will be barred from HopeStreet for two weeks minimum." (Exhibit 1)
I note the similarity of this text to the text in the café during the view. There were two such signs in the café during the view; only Exhibit 1 was there at the time of the matter complained of. When shown Exhibit 1, Reverend Hall confirmed that the sign on the coffee machine had been a fixture "all the time" not only when the image in March 2011 was captured, but also at the time of these events in January 2012. He went on to explain the purpose of the sign:
"Q. What was the purpose of the sign?
A. The purpose of the sign was to let anyone who came into the café know that unruly behaviour, abuse, swearing, use of drugs, alcohol, threatening violence or anything was not allowed, I couldn't read that but it probably said something about police will be informed if any of those rules are broken."
He then explained the "banning" process:
"A. The banning process would be if a person was deemed to be either too abusive or violent or whatever, that they would be asked to leave the café. Hopefully that would eventually happen but there had been times where we had to give a letter of ban to people for whatever period was deemed acceptable or suitable at the time.
Q. There's unruly behaviour, swearing. What would you call swearing? I mean there must be a bit of it floating around
A. There is, there's a lot of it floating around yes, swearing is very common down there, of course, but actual abuse of people is personal and directed and seeking to undermine or swearing violently towards a person.
Q. What about using demeaning language or demeaning somebody's race or sexuality?
A. Yes, that would be something which was always discouraged, yes."
He explained his reference to the drugs and alcohol problem:
"Q. You mentioned drugs and alcohol, what was Hope Street's policy in relation to any drugs and alcohol on the premises?
A. If we were aware that anyone was dealing drugs, that's not to say that we were aware of it all the time, I'm sure a lot has gone under our noses undetected, but if we were aware of anyone using or dealing drugs, we would ask them to leave, and every now and again for example as well, people have sat there with a bottle of beer or something and I've had to say to them "Either put it away or walk away", they can move quite close by and drink but certainly not sitting at our tables and chairs.
Q. It's not acceptable to have alcohol on the premises?
A. No.
Q. Would the staff of Hope Street have been aware of that policy?
A. Very aware yes.
Q. Were the volunteers made aware of that?
A. I assume that that would've been in the volunteer manual." (T 128-129)
Reverend Hall was asked whether a bowl of alcoholic punch would have been left by staff on the floor of the café on 20 January 2012. He said that this would never have been permitted because of the total alcohol ban. Reverend Hall went on to describe the procedures staff members followed if someone is threatened at the café:
"Q. In addition to the sign I showed you, exhibit 1, which appeared in the café, are there any other procedures that staff are required to follow if they feel threatened by someone at the café?
A. Yes, there would be the procedure would be to if a person is being aggressive or whatever, abusive, to seek to calm them down, yeah, not try to enflame the situation at all, to seek to speak to them calmly and rationally, and hopefully either calm them down or lead them away from the premises or get them to leave the premises.
Q. Are staff encouraged to employ a time out method?
A. That may be encouraged depending on the situation yes.
HER HONOUR: Am I going to hear something about internal review procedures and follow ups or whatever?
CHRYSANTHOU: Yes your Honour, I'll come to that.
Q. If an incident occurs at the premises and police are called?
A. Yes.
Q. Are staff required to report that such an incident has occurred to the operations manager?
A. If it got to the point where police were called, that would've been the case, yes.
Q. To whom should such incidents have been reported in January 2012?
A. That would've been to Rod Ravenscroft, the operations manager.
Q. You are aware that Mr Le Marcus [sic - Vlamakis] completed a report in relation to an incident in January 2012?
A. I am aware of that, yep.
Q. Have you seen that report?
A. Yes, I have, yes.
EXHIBIT F SHOWN TO WITNESS
Q. If you just look at the first two pages of exhibit F is that what you would expect of an incident report that was required to be prepared?
A. Yes, that's very detailed.
Q. If you just look at the third page, we're just not quite sure what that is? Is that a followup from the incident report?
A. That would have just been a followup letter placed within the file.
Q. Having looked at that report is there anything that you are aware of that Mr Le Marcus [sic - Vlamakis] did that was outside of the scope of Hope Street's policies and procedures?
A. No." (T 130-131)
Reverend Hall was cross-examined by the plaintiff, but he essentially repeated the evidence he had given in examination in chief.
Reverend Hall was an impressive witness. He described the many attempts that the first defendant had made to reconcile with the plaintiff, in the interest of the plaintiff's welfare as a homeless person. He presented as a person with great gifts of compassion and understanding of homeless and marginalised people. I accept him as a witness of credit and, where his evidence conflicts with that of the plaintiff, I prefer his evidence to that of the plaintiff.
The failure of the second defendant to give evidence
Rule 29.7 UCPR provides that if an action is set down for hearing and one of the parties fails to appear, the court may proceed with the trial, so far as any claim for relief in the proceedings is concerned, or adjourn the trial. If it is the defendant who fails to appear, then the plaintiff may prove its claim so far as the burden of proof lies upon it and, if a plaintiff can establish that he or she is entitled to the relief claimed, and such other relief as is consistent with what is sought, the court may proceed to make final orders (see Ritchie's Uniform Civil Procedure (NSW) at [29.7.2], referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141; see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [64]). In an adversarial system, the responsibility for conduct of a case rests with the party concerned and failure to appear in court is not a matter into which courts should inquire.
However, for a party to be relevantly absent, they must have had "adequate" notice of the hearing date (Ritchie's Uniform Civil Procedure (NSW) at [29.7.2], citing Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22]).
"Adequate" notice was identified as being "reasonable" by Hallen J in French Consulting Pty Ltd v Donald [2011] NSWSC 584 at [14]:
"The clear purpose of UCPR rule 29.7 is the efficient dispatch of Court business. However, in despatching Court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589):
It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ... In such a case that has been no valid trial at all."
Nor do I consider that litigants in person should be treated with less consideration than litigants who are legally represented. There have been many defamation actions where a defendant is self-represented; courts generally give a greater degree of leeway to such litigants: see Hallam v Ross [2011] QCA 274. As is noted in Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis Australia) at [60,590], defendants represent themselves in about 20% of all defamation actions resulting in a jury trial or hearing, and around 10% of all defamation trials are undefended. Litigants in person are common in defamation actions. Both the courts and their opponents need to have the flexibility to cope with this.
General damages
The first defendant submits, and I agree, that this is a case calling for nominal damages.
The principles relevant to an award of general damages, and the appropriate range, are set out at length by Applegarth J in Cerutti v Crestside Pty Ltd [2014] QCA 33 and it is unnecessary to repeat them. These are publications to one person, in circumstances where the context of those publications was such that those persons, each of whom was well acquainted with the plaintiff, would have taken into account the events which led to publication of the matters complained of.
The plaintiff, as I have already noted, did not give evidence of his own hurt to feelings. It is hard to gauge the degree to which his feelings were hurt. I accept that he has called evidence of his good reputation but his good reputation must be viewed in the context of what he admits was his conduct on the occasions in question.
I am satisfied that any persons other than the recipients of the matters complained of who heard about the contents of the matters complained of would have been likely to have heard about it from the plaintiff himself. In particular, I do not accept the evidence of Ms Curtis that the incident was the subject of discussion months later.
While the imputations in question are serious, each of them are published to one person, and the level of seriousness, in the context of the matters complained of, is not high.
Aggravated compensatory damages
The plaintiff did not address me in relation to aggravated compensatory damages. Having regard to the circumstances in which each of the matters complained of was published, it would be inappropriate to award them.
Mitigation of damages
Reverend Hall gave evidence of an apology that was given by Mr Cardwell in early 2013:
"Q. As far as you are aware Mr Bodenstein is now welcome at Hope Street premises?
A. Yes.
Q. You are aware aren't you that an apology was given to him by Mr Cardwell in early 2013?
A. Cardwell, yes, yes.
Q. As far as you're concerned was that a true apology?
A. Yeah, I think it was genuine attempt because, yeah, because relationship were sort of a bit shaky between Mr Bodenstein and Hope Street, and Warren Cardwell was genuinely trying to fix things up.
Q. Do you genuinely welcome Mr Bodenstein back to Hope Street?
A. Yes." (T 131)
The plaintiff's evidence was that he was approached several times by the second defendant, who was seeking to engage in conversation with him, but that he refused to speak to him. The plaintiff refused to collect his belongings from the Art Space, and the second defendant wrote a series of letters about a "fuse ball" [sic] table (Exhibit J) and a bike which was kept for nearly a year, and then accidentally sold (Exhibit K) where the plaintiff was given the sale proceeds of $35 in December 2012. A meeting was held on 21 December where Mr Ravenscroft, the recipient of the second matter complained of, sent a letter on Christmas Eve which said there were "no open issues following the earlier incident and we now want to move on" (Exhibit L). The plaintiff dismissed this letter, saying he disbelieved its contents and the sincerity of the author (T 114).
A further meeting was held in the first week of January 2013 and a further letter of apology sent by Warren Cardwell on 14 January 2013. The plaintiff said that this date was falsified in order to make it appear that it was sent before his statement of claim was filed and served. It would not matter, given the long history of apologies and attempts at reconciliation by both defendants, whether this letter was sent before or after this latest offer of an apology was made, but I note that it refers to a meeting "last week" between the plaintiff and Reverend Hall, and as that is not challenged, the date on this letter is likely to be correct. The plaintiff agreed that he had met with Reverend Hall "a few times" (T 111) but said that this apology (and, by inference, its author as well as Reverend Hall) was not sincere (T 112), came a year too late (T 113) and that the date was falsified.
The plaintiff's response to these offers of apology was to serve a statement of claim on the first defendant (and, nine months later, on the second defendant) seeking varying but substantial sums of damages for what McCallum J has reduced, in her Honour's judgment of 2 December 2013, to two publications to two people.
In the course of the plaintiff's submissions, the plaintiff submitted that the earlier attempts at apology were inadequate and that the letter of 14 January 2013 arrived after he filed the statement of claim, which was too late. He told me that he had made at least five attempts to obtain an apology, but the exhibits to which he referred (Exhibits L, M and N) were the apologies offered by the first defendant. However, he stopped short of saying that, if HopeStreet had given him the apology he had "repeatedly" (T 195) asked for, he would not have commenced proceedings, although he relied upon the first defendant's offers of apology and meetings with him as how he had "tried to resolve the matter out of court prior to the proceedings" (T 196).
I am satisfied, from the documents tendered and the frank and sincere evidence of Reverend Hall, that both defendants made repeated efforts to turn the other cheek, and to reconcile and renew a relationship with the plaintiff, out of the compassion for which their organisation was named, and from concern for his marginalised lifestyle.
These were sustained and significant attempts to apologise, which I am satisfied the plaintiff has rejected on unconvincing grounds, despite the plaintiff stating, several times during the hearing, that he did not bring these proceedings for "the love of money" (T 153) and it was "not the money" (T 60) but his reputation.
I formally note that the making of these apologies does not constitute an admission or otherwise derogate from the entitlement of the defendants to conduct their defences: s 20.
Very substantial allowance should be made for the mitigating circumstances of these meetings and letters during the year preceding the commencement of these proceedings.
In Lemaire v Smith's Newspaper Ltd (1927) 28 SR (NSW) 161 the plaintiff, a litigant in person, opened his case to the jury by saying that he would accept an apology published by the newspaper in satisfaction for the action. The newspaper immediately offered the apology sought, in open court, but the plaintiff refused it. The Full Court held that there were no grounds for it to interfere with the jury's verdict of one farthing, on the basis that the conduct of the plaintiff in refusing the offer, as well as the conduct of the newspaper making the offer, were matters that could be taken into account in assessing the damages.
While it would be going too far to make a similar award here, I am of the view that the substantial mitigating effect of these apologies and meetings must materially reduce any damages awarded.
Conclusions as to quantum
Ms Chrysanthou submits, and I agree, that any award of damages for a publication to one person would be nominal. In the present circumstances, those damages should be further reduced by reason of the first defendant's employee being the person to whom one of the matters complained of was published, in circumstances where that person was involved in the year-long apology process.
Accordingly, if I have erred in holding that the matters complained of were each published on occasions of qualified privilege at common law which was not lost due to malice, then I would award the sum of $100 damages for each of the publications.
I was not addressed on aggravated compensatory damages. They are not referred to in the statement of claim, which seeks simply a lump sum of damages, for amounts varying, from one version to another of this pleading, from $180,000 to $70,000. Given the plaintiff's account of the events in question, I would not award aggravated compensatory damages in any event. The second defendant was, even on the plaintiff's version, responding as best he could in a difficult confrontation with an aggressive and intimidating person who was in breach of HopeStreet's rules about verbal abuse.
Other issues
There are two remaining issues. The first is that, at the commencement of addresses on the third day of the hearing, the plaintiff asked the court for a "mistrial". I refused to make this order and indicated I would give my reasons for refusing to do so in this judgment. The second is that, after I reserved judgment, the plaintiff filed a Notice of Motion and a further version of the statement of claim. I shall deal with each in turn.
Plaintiff's application for a mistrial
These are the complaints of the plaintiff in relation to what he perceived principally as being the inadequate assistance that the Supreme Court, and this court, had rendered to him in case management, the transferring of this case to this court, and the conduct of these proceedings. I have set out the basis upon which the plaintiff's application for a "mistrial" was refused.
Inadequate case management
This was the first issue raised by the plaintiff, and was identified by him, together with the final ground raised (case management in relation to malice evidence), as the principal issue.
The plaintiff's principal case management complaint was that the conduct of his case in the Supreme Court was marred by the following injustices:
(a) His case went through "three different judges" and "ten mentioning" [sic] in the Supreme Court (T 146), after which his case was, against his wishes, transferred to the District Court. He should have had one judge at all times.
(b) The court should have issued a subpoena to the second defendant from the beginning (T 146), as it was "improper" of the plaintiff to approach the second defendant directly (T 147). It was not up to the plaintiff to tell the second defendant about the hearing or to subpoena him, because this should be done by the defamation list judge who set the matter down for hearing (T 148). As a result, the plaintiff had been put by me "under a cloud" of not giving a "fair go" when I had inquired whether the second defendant had been notified of the hearing; I should have realised that this was the court's responsibility and not his (T 149 - 150).
(c) The case was transferred from the Supreme Court when it "wasn't ready for hearing" (T 148).
(d) There was no discovery order made by the Supreme Court in these proceedings (T 154). (I note Ms Chrysanthou, who appeared in the Supreme Court, confirmed that the plaintiff had issued subpoenae in both courts, that her client had produced all the documents in its possession in response to those subpoenae).
(e) Either this court or the Supreme Court should have provided a jury for this trial, because issues such as whether "fuck off" was an insulting expression or merely daily slang were more suited to a jury determination than to a judge (T 156).
(f) The plaintiff had been prevented from pleading malice in his statement of claim by the Supreme Court (T 156 - 159). This point was the "last, and the big one" the plaintiff wanted to make (T 156). He drew my attention to UCPR r 14.30, which stated that a plaintiff should not provide particulars of malice in the statement of claim. He "wasn't allowed to mention any malice" in his statement of claim (T 157) by reason of the Supreme Court rulings. This was why he "didn't follow your Honour's advice" (T 158) about filing a Reply, because he found the fact that UCPR r 14.30 forbade the particularisation of malice "confusing" (T 158).
(g) In the course of closing submissions, the plaintiff added a complaint that he had been prevented by McCallum J's judgment of 2 December 2013 from pleading a wide number of other defamatory publications by the defendants.
I do not propose to analyse the case management of these proceedings in the Supreme Court, beyond expressing appreciation for the careful management of these proceedings by the Registrars and defamation list judges at all times. This included referring the plaintiff to the pro bono panel, where he received extensive advice concerning extension of time to serve the claim, substituted service, drafting court documents such as pleadings and subpoenae, how to seek leave to file a subpoena, and conduct of the proceedings generally. The plaintiff even included a claim for compelled republication in his statement of claim, which is a pleading of some sophistication. The plaintiff was also given very great latitude in the formulation of his pleadings by McCallum J, including being excused from formulating imputations and being assisted in identifying the ambit of the publications, in circumstances where the first defendant had filed a notice of motion for summary dismissal of the claim. This compassionate and flexible approach to the plaintiff's position in relation to that application goes well beyond the assistance generally afforded to other litigants, including litigants in person: Coren v Master Builders Assn of New South Wales Pty Ltd [2014] NSWCA 244.
As is set out above, the plaintiff's complaints about being unable to plead malice have been accommodated, albeit "on the run", by the first defendant seeking to answer the plaintiff's case on malice, notwithstanding the plaintiff's failure to file a Reply or identify the evidence upon which his claim of malice is based. He was, as he conceded, told during pre-hearing case management that a Reply was generally filed to these defences.
The plaintiff also complained he had not been given "a fair go" by myself during the trial. When he was asking his reputation witnesses to give evidence, Ms Chrysanthou had objected to certain questions (for example, evidence about the plaintiff having a good reputation) and I had not admitted the evidence. However, judges have to rule on objections, and it was not the case that all of Ms Chrysanthou's objections were successful. His other complaint about not being given a "fair go" during the hearing related to the circumstances in which, after he spoke without stopping for half an hour, I asked if he could give shorter answers, as there was no transcript, and I was having difficulty writing everything down, and reminded the parties there was (at that time) no transcript. Ms Chrysanthou, in response to this criticism, noted that the difficulties she and her instructing solicitor has in keeping up with the plaintiff's long answers (and particularly this one) had resulted in her client having to order a transcript half way through the trial, although the cost was significant.
The plaintiff did not complain about my having asked whether the second defendant had been served, but submitted that I should not have placed any blame at his door for this, and that I had not given him a "fair go" by appearing to do so. He said that he had been excused from any obligation to contact the second defendant by the judgment of McCallum J of 2 December 2013, and that the obligation to notify the second defendant lay with the court, or the first defendant, and not with him.
I can understand a litigant in person having such a belief, but the plaintiff had been told by the registrars in the Supreme Court that this was his responsibility, and McCallum J did not excuse him from this obligation. Judges have to be able to inquire about the whereabouts of a missing party without incurring complaint. What I had not expected, as a result of this inquiry, was to be told that the second defendant had not been informed about the further conduct of the hearing, or of the hearing date. He had simply been served with a document that barely complied with the pleading requirements for defamation actions, and had never been contacted again.
The complaint with most substance is the complaint that these proceedings should not have been heard by the District Court. I have dealt with this in detail below. I apprehend that the plaintiff was asking that I cease hearing the matter and remit it to the Supreme Court so that he could start all over again in front of a jury. The plaintiff also complained that the failure to case manage these proceedings continued in this court (T 156). As is set out below, the plaintiff was offered case management in this court but preferred to seek a hearing date.
The complaint that these proceedings should not have been transferred to the District Court
On 3 March 2014 Beech-Jones J transferred these proceedings from the Supreme Court to the District Court: Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174.
The plaintiff in his submissions on this issue referred to his earlier arguments before Beech-Jones J opposing the transfer, which were submitted to his Honour in writing and remain on the file.
The plaintiff's written submissions to Beech-Jones J first noted that the case had been started in the Supreme Court and was one callover away from a hearing date, and that the question of transfer had not been raised before (paragraphs 13 and 20). The court should not transfer the case because the plaintiff was self-represented, so his case required "the utmost efficient and diligent supervision of the proceeding by the highest available court" (paragraph 15) because of its "complex set of legal issues in relation to privileged by an employer" (paragraph 22).
The plaintiff submitted that the District Court, by comparison, was "a mix of Criminal and Civil proceedings and the plaintiff was "already over exposed to criminal environment [sic] in his daily life" (paragraph 16). The District Court was also inconveniently situated in geographic terms. The plaintiff, who had been living on the streets of Sydney for the last five years while he conducted litigation in the Federal and Supreme Courts, regarded the surrounding of the Supreme Court Building as "his most comfortable zone, as he also enjoys the nearby free food supply and his Pro Bono barber at Martin Place" (paragraph 18). The plaintiff was also concerned that the transfer might cause "accounting bureaucratic complications" (paragraph 19).
Finally, the plaintiff was concerned that some of his witnesses, who had had prior experience with the District Court, mostly in relation to criminal offences, would be more reluctant to appear if the matter were moved to the District Court (paragraph 21); the plaintiff himself had "some unpleasant experiences" with the District Court on several occasions (paragraph 23), whereas he had been able to conduct Supreme Court litigation between 2002 - 2010 (paragraph 17) without such difficulties.
Some of the plaintiff's concerns are well founded. The case does raise complex legal issues in relation to qualified privilege defences by an employer; although the general principles for liability for publication mean that many of these potential difficulties fall away. The transfer was raised late, and in circumstances where the plaintiff understandably felt more comfortable in the court of his choice. The plaintiff is entitled to feel his case is of general public importance (paragraph 23), and should be before the highest court in New South Wales. The Supreme Court brought up the issue of transfer of its own motion, and did so at a time when there was only one callover left before the allocation of a hearing date.
However, Beech-Jones J dealt with the plaintiff's concerns in a sympathetic and constructive manner. His Honour took into account that the claim is for two publications of one imputation to two persons, both of who had long prior acquaintance with the plaintiff, where damages were modest, and would have noted from the Amended Defence that there were issues of mitigation of damages. The legal costs for the first defendant, a charitable organisation dependent upon donations for its survival, will probably be irrecoverable. The ambit and complexity of the claim are within the parameters of proceedings suitable to the District Court, which can offer a speedy trial at reduced cost.
Beech-Jones J also noted that this court offers a defamation list where case management can be offered to a litigant in person such as the plaintiff. Contrary to the plaintiff's claims, such assistance was offered to the plaintiff, but rejected. When these proceedings were first listed for a return date in this court, two hours were specially set aside for a further hearing in the Defamation List on 16 May, and a series of issues was carefully selected for determination, after reviewing the main issues in the case in consultation with the parties. However, on 16 May the plaintiff elected, instead having these matters determined, to ask for a hearing date.
Additionally, after the hearing date was allocated, in the course of a series of rulings and directions prior to this hearing, the parties had the opportunity to, and did, raise a series of case management issues. The included subpoenae, arranging a view of the site, witness issues and a review of the pleadings. In particular, inquiries were made by me as to whether a Reply was filed, and whether the second defendant would be participating in the hearing.
While I can understand the plaintiff's disappointment that his claim has not been heard in the Supreme Court, Beech-Jones J's referral of these proceedings was consistent with the requirements of s 56 Civil Procedure Act 2005 (NSW), and his Honour's careful explanation of the reasons should have settled the concerns the plaintiff felt.
Service of Further Amended Statement of Claim and Notice of Motion after the hearing
On 28 July 2014, the plaintiff filed a notice of motion seeking the following orders:
"1. A Leave for the Plaintiff to file on 1 August 2014 the Further Statement of Claim by away of a Reply to the Defence of Qualified Privilege with no malice.
2. A Leave for the Plaintiff to move a Motion for a Further Trial by Jury.
3. An order to the Commissioner of NSW Police Force to conduct a criminal investigation in relation to this Case regarding the following allegations:
a. Theft of the mobile phone;
b. Repeated death threats;
c. False representation resulting in a police investigation and a body search.
4. Any other order chooses by her Honour."
The plaintiff filed a "Further Amended (Statement of Claim) [sic]" on 1 August 2014. The amendments are not underlined. The plaintiff neither sought, nor was granted, leave to reopen his case or to bring any notice of motion or to amend his pleadings.
The orders sought in paragraph 1 of the notice of motion are unnecessary in that I have already dealt with the existing statement of claim as if the malice in the existing pleadings had been properly pleaded by way of a Reply. The orders sought in paragraph 2 for a "Further Trial by Jury" and in paragraph 3 for the Commissioner of NSW Police to conduct "a criminal investigation in relation to this Case" regarding the theft of the mobile phone, the repeated death threats and "false representation resulting in a police investigation and a body search" have been withdrawn, according to an email sent by the plaintiff on 11 August 2014. It was only when this email from the plaintiff was received that the notice of motion and "Further Amended (Statement of Claim) [sic]" came to my attention.
The additional material in the "Further Amended (Statement of Claim) [sic]" includes complaints about the defendants as follows:
"10. A Good Name
Both Defendants knew of the Plaintiff's circumstances, but, with the intent to give this 'pest' 'no reason to return', acted to portray him as a volunteer who betrays the trust of a faith based charity by stealing a mobile phone and threatening the life of their employees."
Other new material includes claims that the plaintiff only commenced these proceedings after his "futile attempts to resolve all with the Second Defendant" and fresh claims of prior hostility such as the second defendant calling workers of another agency "bastards" (paragraph 5). No evidence to this effect was called at the trial so the plaintiff should not be permitted to raise it at this late date. However, the balance of the material in the statement of claim is material which I have already considered on the issue of malice, so no further amended pleading is necessary.
The notice of motion return date of 15 August 2014 has been vacated in my orders below.
Concluding remarks
As I have found in favour of the first defendant, it would ordinarily be entitled to an award of costs in its favour. Mr Bodenstein submits that the first defendant's legal costs, which he understands exceed $100,000, should not be borne by him, because he may have to go bankrupt and this may have some impact on his refugee status. There is no other reason why the general rule that costs follow the event should be displaced. Ms Chrysanthou has made clear that the costs burden upon her client has made the conduct of this case difficult, and that ordering a transcript (necessary because of the difficulties of following the plaintiff's evidence) has been a financial burden.
What I propose to do is to reserve the issue of costs, on the understanding that this liberty to apply must be exercised within seven days. What is essential for both parties in this litigation is finality. However, the plaintiff must pay the filing fee and hearing fee, and I have made orders to this effect.
I was not addressed by either party as to what order I should make in relation to the second defendant. The admission of vicarious liability in relation to his claim, made by the first defendant in submissions, is not supported by a pleading to that effect. He has not filed a defence.
I am conscious, however, of the financial restraints under which the first defendant has been operating (to which both parties have referred during the hearing). I am inclined to the view that, as the second defendant is also a litigant in person, a small portion of the compassion and assistance that the court has previously given to the plaintiff should now be accorded to the second defendant. Accordingly, I have decided, in the absence of submissions on the subject, that the appropriate order to make in relation to the second defendant is for the proceedings against him to be dismissed.
Orders
(1) Judgment for the first defendant.
(2) Plaintiff to pay the court filing fee and hearing fee in 28 days.
(3) Plaintiff's claim against the second defendant dismissed.
(4) Liberty to apply in relation to costs, such liberty to be exercised in 7 days.
(5) Vacate the notice of motion return date of 15 August 2014.
(6) Exhibits retained for 28 days.
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Decision last updated: 12 August 2014
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