Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig and Chapman

[2019] NSWDC 98

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

7, 8, 9, 10, 11, 14, 15, 16, 17, 21 May and 7 December 2018

Date of orders:

04 April 2019

Decision date:

04 April 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff for compensatory, aggravated and special damages, including pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW), in the total amount of $237,970.22;

 2. Judgment for the cross-defendant plaintiff on the first defendant’s cross-claim;

3. The exhibits are to be returned;

 

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

 

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

 6. Liberty to apply on 7 days notice if further or other orders are required, including as to costs.

Catchwords:

DEFAMATION – determination of whether an email sent by the plaintiff’s former employer, the proprietor of a childcare centre, to parents of children at that centre, concerning the plaintiff’s character and honesty, was defamatory of him – consideration of pleaded defences of truth or substantial truth, claim of a relevant interest, common law qualified privilege, statutory qualified privilege and triviality – consideration of cross-claim for alleged overpayment of wages; DAMAGES – assessment of compensatory, aggravated and special damages

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100
Defamation Act 2005 (NSW), s 25, s 30, s 33, s 34, s 35, s 36, s 38
Uniform Civil Procedure Rules 2005, r 15.21, R 15.22, r 15.30

Cases Cited:

Adam v Ward [1917] AC 309
Ainsworth v Burden [2005] NSWCA 174
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37
Griffith v Australian Broadcasting Corporation [2010] NSWCA 257
Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257
Horrocks v Lowe [1975] AC 135
Megna v Marshall [2010] NSWSC 686
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57

Texts Cited:

P George, Defamation Law in Australia (2nd Ed, Lexis Nexis Butterworths, 2012)
Michael Gillooly, The Law of Defamation in Australia and New Zealand (The Federation Press, 1998)
T.K. Tobin, M.G. Sexton, Australian Defamation Law and Practice (Lexis Nexis Butterworths, 2003)

Category:

Principal judgment

Parties:

Matthew Bowden (Plaintiff)
KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig (First defendant)
Karen Suzanne Marion Chapman (Second defendant)

Representation:

Counsel:
Mr GM McGrath (Plaintiff)
Mr RH Armitage (Defendants)

  Solicitors:
Carneys Lawyers (Plaintiff)
Willis & Bowring (Defendants)

File Number(s):

2017/100260

Publication restriction:

None

Judgment

Table of Contents

Defamation proceedings	[1] – [2]
Facts upon which the plaintiff’s claim is based	[3] – [11]
Trial overview	[12] – [13]
Pleadings and procedural matters	[14] – [26]
Pleaded imputations	[15]
Defences pleaded	[16] – [18]
Cross-claim by defendants against plaintiff	[19] – [21]
Reply by plaintiff	[22]
Refusal of late application to further cross-examine plaintiff	[23] – [26]
Issues for determination	[27] – [28]
Evidence overview	[29] – [30]
Credibility of testimony	[31] – [95]
Mathew Bowden, the plaintiff	[32] – [35]
Ms Karen Chapman, the second defendant	[36] – [45]
All other witnesses	[46] – [95]
Background facts	[96] – [182]
Issue 1 – Publication of the email material	[183] – [187]
Issue 2 - Imputations	[188] – [208]
Principles	[189] – [193]
Imputation (a) – the plaintiff is dishonest	[194] – [195]
Imputation (b) – untruthful regarding studies and other issues	[196]
Imputation (c) – fired for disciplinary reasons	[197] – [200]
Imputation (d) – conduct leading to termination of employment	[201] – [204]
Imputation (e) – unfitness to work in childcare	[205] – [207]
Conclusions on imputations	[208]
Issue 3 – Whether imputations carried defamatory meanings	[209] – [213]
Issue 4 – Claimed defence of truth	[214] – [256]
Alleged deceit about academic qualifications	[218] – [225]
Alleged deceit about additional paid work	[226] – [235]
Alleged deceit about availability to complete studies	[236] – [255]
Conclusion concerning claimed defence of truth	[256]
Issue 5 – Claimed defence of actual or apparent interest	[257] – [264]
Issue 6 – Claim of common law qualified privilege	[265] – [283]
Principles concerning common law qualified privilege	[266] – [270]
Submission by defendants on common law qualified privilege	[271]
Consideration of those arguments	[272] – [282]
Concluded finding on claimed common law qualified privilege	[283]
Issue 7 – Claim of statutory qualified privilege: s 30 of the Defamation Act 2005	[284] – [294]
Issue 8 – Claimed defence of claim of triviality	[295] – [299]
Issue 9 – Cross-claim by the first defendant	[300] – [301]
Issue 10 – Assessment of damages	[302] – [322]
Compensatory and aggravated damages	[303] – [319]
Special damages	[320]
Interest	[321]
Summary of damages assessment	[322]
Disposition	[323]
Costs	[324]
Orders	[325]

Defamation proceedings

1. The plaintiff, Mr Matthew Bowden, who is now aged 21 years, is an early childhood educator. He brings these defamation proceedings against the first defendant, his former employer, KSMC Holdings Pty Ltd, trading as Hubba Bubba Childcare on Haig ACN 163-875-134, and the second defendant, Ms Karen Chapman, the director and guiding mind of that company.

2. The proceedings arise from email comments the defendants made about the plaintiff to a number of people on 4 April 2016. This occurred eleven days after the plaintiff had ceased working for the defendants. The proceedings are governed by the provisions of the Defamation Act2005 (NSW).

Facts upon which the plaintiff’s claim is based

3. On Monday 4 April 2016, at 9.21am and again at 9.23am on the same day, unbeknown to the plaintiff at those times, he was the subject of adverse comments made by Ms Chapman in two identical emails sent by the defendants to a total of 35 parents whose children attended at the Hubba Bubba Childcare Centre in Chatswood, NSW.

4. Those parents knew the plaintiff because of previous contact they had with him in the course of his former employment at the defendants’ childcare centre. The matter complained of by the plaintiff in those emails appeared under the heading of Staff Updates, in which Ms Chapman referred to the plaintiff in contentious terms, as follows:

“…

Matt – is unfortunately no longer with us due to disciplinary reasons. Whilst being good with the children in general, Matt was not truthful with us regarding his studies and some other issues, and I felt it was better for him to move on and possibly gain a bit more life experience. We wish him well with his future.

...”

5. In these proceedings, it becomes necessary to discern the meaning of those words in terms of whether they are defamatory. It also becomes necessary to determine whether they were actuated by malice.

6. The plaintiff did not become aware of those emailed comments about him until some weeks later. Immediately thereafter, he felt the sting of them. This occurred against a background where, in his locality, he had noticed some avoidant changes in the behaviour of certain childcare centre parents towards him. He also came to realise, from speaking with a child whom he knew, that his reputation had been damaged in that a parent of that child had reportedly thought of him as a liar: T68.26; T202.17. After the plaintiff investigated those circumstances, he was informed of the existence of the matter of which he complains in these proceedings. He is understandably concerned about the grapevine effect of those emailed words.

7. The plaintiff continues to feel the sting of those words. This was plain from a series of occasions that arose during the trial when he was observed to have either lost his composure, or became distressed or agitated whilst giving his evidence: T44.25; T51.21; T55.7; T65.21; T146.20 – T146.26; T147.17; T152.22 – T152.33; T153.7 – T153.33; T165.3 – T165.9; T167.41; T223.48.

8. The emails were stated to have been sent for the information of a number of parents whose children attended the defendants’ childcare centre: Exhibit “B”, pp 48-49. The defendants had sent the email twice, but only once to each of the total of the 35 named recipients listed in the address field.

9. The email sent at 9.21am went to 13 named recipients and the email sent at 9.23am went to 22 named recipients. Ms Chapman explained that the reason for the different despatch times of those emails was because there was a technical issue on her computer concerning the facility for a single email to be sent to all intended recipients at the same time.

10. The plaintiff claims that the comments about him in the emails impugned his integrity, honesty and fitness to work in the childcare sector, and were defamatory of him and his reputation. After he became aware of the content of the emails, he became quite ill and required psychological treatment. He claims compensatory, aggravated and special damages.

11. The defendants have cross-claimed against the plaintiff seeking to recover alleged overpayment of wages. The plaintiff claims that cross-claim has been raised spuriously and is without merit.

Trial overview

12. At a pre-trial call-over on 5 October 2017, the parties estimated that the proceedings would require 4 days plus hearing days. In contrast, the trial proceeded well beyond that estimate, for a total of 11 hearing days. It appeared that the defendants were approaching these proceedings as an employment case rather than a defamation case: T79.25 – T79.30; T107.9; T142.40; T148.19 – T148.25; T172.29 – T172.35; T286.27; T405.33 – T405.50.

13. At the hearing the plaintiff was extensively cross-examined. At times the questioning was repetitive and confusing. His credit and his honesty were the subject of attack. The defendants repeatedly maintained and asserted, on numerous occasions throughout the trial, that the plaintiff had lied and had deceived his employer about his qualifications and other issues to do with his employment. The plaintiff found the attack on his credit distressing. At this point it is appropriate that I identify my concluded view that the defendants’ attack on the credit of the plaintiff was ultimately revealed to be without merit. It was not sustained in any material way. My reasons for that conclusion will be set out in the appropriate context in these reasons.

Pleadings and procedural matters

14. The relevant pleadings in this case are as follows:

1. The plaintiff’s statement of claim which was filed on 3 April 2017;

2. The most recent of the defendants’ amended defences which was filed in Court by leave on 14 May 2018, the sixth day of the hearing;

3. The first defendant’s cross-claim against the plaintiff, which was filed on 11 August 2017;

4. The plaintiff’s reply to the cross-claim, which was filed on 6 October 2017.

Pleaded imputations

15. The plaintiff’s statement of claim alleges the following accusations or imputations, which he claims carried meanings which were defamatory of him, as follows:

1. He is dishonest;

2. He was not truthful with Hubba Bubba Childcare regarding his studies and some other issues;

3. He was fired for disciplinary reasons;

4. He had conducted himself in such a manner that a childcare centre terminated his employment;

5. He is not a fit person to work in childcare.

Defences pleaded

16. In answer to the plaintiff’s claim, the defendants filed various defences. The most recent of which was further amended by leave, on the sixth day of the hearing, on 14 May 2018, so as to include expanded particulars.

17. The version of the amended defence which engaged with the plaintiff’s pleading was a complex and convoluted document, which in summary, raised the following pleaded defences to the plaintiff’s claim:

1. Substantial truth within the meaning of UCPR r 15.22(2);

2. Actual or apparent interest, within the meaning of UCPR r 15.21(1)(a);

3. Qualified privilege at common law, within the meaning of UCPR r 15.21(1)(b);

4. Qualified privilege, pursuant to s 30 of the Defamation Act2005;

5. Triviality, within the meaning of UCPR r 15.30.

18. The plaintiff contested the aptness and the applicability of each of those claimed defences.

Cross-claim by defendants against plaintiff

19. On 11 August 2017, the first defendant, KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig, filed a cross-claim against the plaintiff seeking damages from him. In essence, that cross-claim sought damages from the plaintiff for an alleged overpayment of wages to him. The claimed overpayment was said to be at the rate of $8.28 per hour for a total of 1,093.49 hours, namely $856.90, plus pre-judgment interest claimed pursuant to s 100 of the Civil Procedure Act2005 (NSW).

20. The cross-claim was based upon the proposition that the plaintiff was paid at the rate of $22.23 per hour instead of $13.95, a difference of $8.28 per hour. The basis of the claim of an alleged overpayment was the claim by the first defendant cross-claimant that on 8 July 2015, the plaintiff had materially misrepresented that he either possessed or was entitled to possess, a TAFE Certificate III in Early Childhood Education and Care.

21. It was therefore argued that the plaintiff was paid at an inapplicable and excessive hourly rate in the case of someone with his lack of qualifications. The plaintiff’s defence to the cross-claim of 14 September 2017, denied those assertions.

Reply by plaintiff

22. On 6 October 2017, the plaintiff filed an amended reply joining issue with the defendants’ defence dated 7 July 2017. The case was conducted on the basis that reply also applied to the defendants’ further amended defence dated 14 May 2018.

Refusal of late application to further cross-examine plaintiff

23. On the 10th day of the hearing the defendants sought leave to have the plaintiff recalled for further cross-examination, apparently on matters concerning his previous psychological history. In my view, that application was based on speculative considerations (T510.41), and it was refused.

24. That refusal was not only on account of the late timing of that application and its speculative basis, but also in the interests of fairness. The application was made in circumstances where the case had already exceeded its pre-trial estimate by a considerable margin, and where there had been an earlier failure by the defendants to pursue available forensic options in a timely manner despite extensive case management in the Defamation List.

25. The defendants’ application was refused in circumstances where it appeared that if the application was granted, the likely prejudice and injustice to the plaintiff would cause needless distress and inevitable delay that could not be adequately met by an order for costs. This was in the context where the defendants acknowledged that the plaintiff had already experienced considerable and observable distress on multiple occasions in his evidence: T223.48.

26. There comes a point in litigation, as occurred in this case, where the parties must be held to abide by their forensic decisions and proceed accordingly: T504.48 – T511.17; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

Issues for determination

27. The pleadings and evidence reveal that the following issues arise for determination:

1. Whether there was a relevant publication of the email in question. My reasons for decision on that issue appear between paragraphs [183] and [187] of this judgment;

2. Whether the imputations arise as claimed by the plaintiff. My reasons for decision on that issue appear between paragraphs [188] and [208] of this judgment;

3. Whether the claimed imputations, if arising, carry meanings that were defamatory of the plaintiff. My reasons for decision on that issue appear between paragraphs [209] and [213] of this judgment;

4. Whether the claimed defence of truth been made out. My reasons for decision on that issue appear between paragraphs [214] and [256] of this judgment;

5. Whether the claimed defence of actual or apparent interest has been made out. My reasons for decision on that issue appear between paragraphs [257] and [264] of this judgment;

6. Whether the claimed defence of common law qualified privilege has been made out. My reasons for decision on that issue appear between paragraphs [265] and [283] of this judgment;

7. Whether the claimed defence of qualified privilege pursuant to s 30 of the Defamation Act2005 (NSW) has been made out. My reasons for decision on that issue appear between paragraphs [284] and [294] of this judgment;

8. Whether the claimed defence of triviality claimed pursuant to s 33 of the Defamation Act 2005 (NSW) has been made out. My reasons for decision on that issue appear between paragraphs [295] and [299] of this judgment;

9. Whether the defendants’ cross-claim against the plaintiff should succeed. My reasons for decision on that issue appear between paragraphs [300] and [301] of this judgment;

10. The extent of the plaintiff’s entitlement to compensatory, aggravated and special damages. My reasons for decision on that issue appear between paragraphs [302] and [322] of this judgment.

28. A number of sub-issues arose within those issues. These will be identified and considered in the course of my reasons for decision on those matters.

Evidence overview

29. In the plaintiff’s case, in addition to the plaintiff’s own oral evidence, he also relied on the content of a tender bundle: Exhibit “B”. The plaintiff called oral evidence from Ms Tina Federico, a fellow TAFE student, from his parents, Mrs Annette Bowden and Mr Thomas Bowden, and Mrs Erica Tieu, the latter being one of the recipients of the email of which the plaintiff complains.

30. In the defendants’ case, oral evidence was given by the second defendant, Ms Karen Chapman and her former employees, Ms Kirsten Wilde, Ms Natsuki Inukai, Ms Amy Lee; and TAFE employees Ms Elizabeth Webb and Ms Cassandra Burdon. The defendants also relied upon a tender bundle of documents: Exhibit “1”.

Credibility of testimony

31. In the paragraphs that follow I set out something of the factual background from the testimony of the witnesses, and I identify the conclusions I have reached on such matters concerning the credibility and reliability of the testimony of the witnesses who gave oral evidence.

Mathew Bowden, the plaintiff

32. I formed the view that the plaintiff was a careful and impressive witness. At times he found the subject matter of the proceedings particularly distressing. Those occasions of upset occurred both in his evidence-in-chief and during the course of cross-examination.

33. In the course of the defendants’ cross-examination of the plaintiff there were many instances of potential confusion. The plaintiff took great care to avoid misspeaking on those occasions. The factual challenges made to his evidence were identified as being centred around five principal topics.

34. Those matters related to the pursuit of his TAFE qualifications in 2015 and 2016; the relationship of those matters to his employment at the defendants’ childcare centre; babysitting work he had undertaken outside of his work at the centre; the content of his communications with Ms Chapman, and whether it was he who had posted a negative internet review about the defendants’ childcare centre after he had left the defendants’ employment, the latter being an allegation which he denied, and which I find that the defendants have failed to establish: T77.40 – T78.5.

32. In my assessment, none of those challenges had the effect of damaging the plaintiff’s credit as a witness. Where appropriate, he made concessions on matters that he did not recall and he was careful to limit his evidence to his actual knowledge. I considered his evidence on critical matters of dispute to be both credible and reliable.

Ms Karen Chapman, the second defendant

36. I formed the view that Ms Chapman, who held no childcare qualifications herself, was an unsatisfactory witness. In coming to that view I have disregarded and placed no weight on the fact that she was at times defensive and hesitant in some of her answers to questions that had been asked of her in cross-examination. Reactions of that kind by a party when giving evidence in the face of strong challenge are not uncommon in stressful litigation, as was the case here. Of themselves, those matters, and matters of demeanour, are well understood to be unfair indicators of discredit or unreliability. In my assessment of the credibility and reliability of her evidence, I have made positive allowance on account of those factors.

37. Ms Chapman also became upset at questions asked of her in cross-examination: T393.25. I draw no adverse inferences from that occurrence.

38. It was of interest that in her evidence, Ms Chapman showed a detailed recall of matters that assisted her case and at other times displayed a lack of recollection on matters that were inconvenient to her case. This was most evident when her evidence in chief is compared to her answers to questions in cross-examination.

39. Save for some unguarded answers, at times Ms Chapman gave argumentative and avoidant answers to clear and straightforward questions asked of her in cross-examination, sometimes answering questions with questions (T381.25 – T381.48), giving over-inclusive and non-responsive answers, and at other times speaking over the questioner to impose her view. She required that some questions be repeated, or for the recording of them to be replayed to her: T337.37 – T343.12. It was submitted on the plaintiff’s behalf that this was an avoidant tactic on her part. It is not necessary for me to definitively decide that question. However, overall, I considered her apparent unwillingness to provide direct answers to questions asked of her at times during cross-examination, and her at times combative answers, detracted generally from her credit and her reliability as a witness.

40. It is of some significance to the issue of Ms Chapman’s reliability as a witness that aspects of her evidence were not consistent with the instructions she had given to her solicitors when they framed her defence to the plaintiff’s claim. She was reluctant to make due concessions, and she sought to blame human error on the part of her solicitors for evident discrepancy, claiming, when she disavowed aspects of her amended defence, that her instructions had been misunderstood: T333.47. At other times she denied giving her solicitor instructions on some factual matters and sought to obfuscate in her answers on such matters: T382.5 – T383.50.

41. There was a marked and significant discrepancy between her evidence in which she stated that she thought the author of an internet post that disparaged her business (Exhibit “2”) “may have been Matthew Bowden” (T296.6) and the more definite instructions on that issue which she had given to her solicitors, whereby it was positively asserted, without proof, that it was the plaintiff who was responsible for that offending internet posting (Exhibit “B”, pp 43-46), a matter that the plaintiff promptly denied when he was asked to respond to a letter of demand from the solicitors for the defendants: Exhibit “B”, p 47.

42. Ms Chapman’s solicitor was not called to support her assertion as to the state of his instructions on that question, although he was called to give evidence on other procedural matters that arose in the trial, and which were the subject of separate intra-trial rulings. I consider that Ms Chapman’s oral evidence in which she downplayed the effect of her preparedness to positively assert without supporting evidence, through her solicitor’s letter of demand to the plaintiff, that the plaintiff was the author of that internet posting, was an indication of the unreliability of her factual assessments on contentious matters to which her evidence was directed.

43. Furthermore, I considered that such unreliability extended to her reconstruction of the chronology of critical disputed historical events upon which this case was founded.

44. I considered that Ms Chapman’s idiosyncratic interpretation of the document she gave the plaintiff comprising the terms of his employment with the defendants, particularly with regard to her so-called non-babysitting policy, was contrary to the plain and clear meaning of the written words within that document. When her evidence was tested in that regard, she retreated to an alleged verbal account of non-babysitting instructions she said she had given to the plaintiff at a staff meeting. Significantly, her evidence in that regard was not supported by Ms Lee who was an important witness called to give evidence in the case for the defendants: T350 – T351.

45. In my view, those matters indicate that Ms Chapman’s evidence should be regarded with considerable reserve before acceptance on any issue in dispute. I found myself unable to rely upon her evidence where her evidence was at variance from the plaintiff’s evidence on critical matters in dispute, and where there was credible oral or documentary evidence to the contrary of her own evidence.

All other witnesses

46. No adverse credit issues emerged from the testimony of the nine non-party witnesses listed at [29] and [30] above. Before identifying my findings of fact it is appropriate that in the paragraphs that now follow, I outline a summary of the evidence of those other non-party witnesses.

Ms Federico

47. In 2015 Ms Federico was a fellow student with the plaintiff at TAFE. She, like the plaintiff, had started studying Certificate III subjects for the first 6 months of 2015, and she then went on to do Diploma course units at the same TAFE: T178.36.

48. Ms Federico described her observations of the plaintiff whilst he was at TAFE in early 2015 as being happy, energetic and very dedicated to completing his studies to work in an area in which he was interested: T178.45 – T178.48. That description of the plaintiff’s attitude extended to her observations of the plaintiff when he began employment at the defendants’ childcare centre: T179.5. She described him as being an average student: T179.10. She rejected the notion that anyone thought the plaintiff might be dishonest: T179.20.

49. In mid-2016, Ms Federico noted a change in the plaintiff’s level of happiness and in his personality, in that he had become more withdrawn, was quite upset (T181.15), did not go out much, did not reply to messages (T179.30 – T179.43), and he was declining invitations: T180.2.

50. Ms Federico related a conversation she had with the plaintiff in the middle of 2016 in which she recounted her recollection of him telling her he would no longer be working at the centre because of an email that was sent to parents, and he was not happy to stay there anymore: T180.25. That account was not entirely accurate as it included a conflation. The email in question had been sent after the plaintiff was dismissed and escorted off the defendants’ premises, although it had been sent whilst the period of notice the plaintiff had already given to the defendants was still current. In all other respects, I accept the evidence of Ms Federico. She described the plaintiff as being “really upset” and quite devastated as he had been dedicated in his job and had been taking Saturday classes at TAFE to meet his course obligations: T180.30.

Ms Jaime Hughes

51. Ms Jaime Hughes is a Diploma qualified child educator. She was called as a witness in the plaintiff’s case: T108 – T115. She and the plaintiff had respectively started their Diploma and Certificate III courses at TAFE together in 2015.

52. Ms Hughes described her initial impressions on first meeting the plaintiff in 2015. She said he was very enthusiastic, energetic and excited to start his Diploma course: T108.25. She thought he was a straightforward and trustful sort of person: T109.19.

53. Ms Hughes described some changes she had observed in the plaintiff from around June and August 2016, and her observation of him at that time was of him being a bit withdrawn and quite depressed, preferring to stay at home rather than going out: T108.39. She stated that he did not appear to be himself and it was not until towards August 2016, when he told her of events at his work, that she understood why this was so: T108.41 – T109.1.

54. Ms Hughes was well placed to make those observations from her personal familiarity with the plaintiff in the context of their educational and social association. They studied together, and they were good friends: T110.19. She was not aware of the plaintiff having had any previous health or psychological problems: T111.37.

Mrs Annette Bowden, the plaintiff’s mother

55. Mrs Bowden, the plaintiff’s mother, an office administrator, described the plaintiff as having had an air of elation at the commencement of his TAFE course: T183.29. She also described how he was enjoying his placement at the defendants’ childcare centre: T183.48.

56. Mrs Bowden said that when the plaintiff had brought home the employment contract given to him by Ms Chapman, she had photocopied it. She confirmed there was nothing in it about a babysitting policy: T184.12; T185.25. She described the plaintiff as having to work a lot of extra days, which raised concerns for her because of the demands of his TAFE course: T184.45 – T185.13.

57. Mrs Bowden described how, after the plaintiff had encountered roster problems at work which conflicted with his TAFE course requirements, where he was rostered to work a five day week in his part-time job, he had told her he did not want to resign from his position at the centre but felt he had been compelled to do so because “Karen will not listen, she only gets angry”: T187.18. She described how the plaintiff then put together a resignation letter which she then proof read for him: T187.22.

58. Mrs Bowden described the plaintiff’s dramatic and devastating reaction that occurred on 3 July 2016 after receiving a copy of the 4 April 2016 email that has led to these proceedings: T188.15 – T188.36.

59. Mrs Bowden went on to describe how the plaintiff then became withdrawn, stayed in his room, hardly ate, wouldn’t go out with his friends, and he would hardly engage in the home. She stated that those problems continued for some months: T188.45 – T189.10.

60. In that time, Mrs Bowden took the plaintiff to the family doctor, who diagnosed depression and prescribed the plaintiff Lexapro, with repeat prescriptions: T189.30 – T190.10. She stated that the plaintiff has not yet completely recovered. She described him as having been fragile, and broken, and that he had not yet regained some self-confidence: T190.20. She stated that as a gradual process he was spending less time in his room from around August or September of 2016: T196.36; T197.13 – T197.35.

61. Mrs Bowden was a careful witness. Her evidence was not challenged in any material way and I accept her evidence in its entirety.

Mr Thomas Bowden, the plaintiff’s father

62. Mr Bowden, the plaintiff’s father, a building certifier, also gave evidence to the effect that the plaintiff appeared overjoyed and happy to have been accepted into his TAFE course: T198.25. Mr Bowden also described the plaintiff’s sense of fulfilment at having been offered the placement with the defendants’ childcare centre: T198.38.

63. Mr Bowden described the plaintiff’s disposition at that time as being very active socially with ex-school friends, and pursuing regular outings at weekends: T199.33. He described the plaintiff as being happy in his work: T199.40.

64. Mr Bowden described how, after the plaintiff experienced difficulties in his work, he and his wife had discussed the option of the plaintiff resigning. This arose once it became apparent that his work timetable had become unfavourable to him continuing in his TAFE course: T201.35 – T202.3; Exhibit “C”. In my view, nothing turns on the discrepancy between the evidence of the plaintiff and his mother as to his decision to resign from his employment with the defendants, and Mr Bowden’s evidence that he and his wife had assisted the plaintiff in that decision: T201.44. Mr Bowden described it as a family decision taken after he had recommended that course: T206.28 – T206.31.

65. Mr Bowden described the plaintiff as having become distraught, shaking and in tears on becoming aware of the content of the subject email which has led to this litigation: T202.34.

66. Mr Bowden also described how subsequently, the plaintiff “totally withdrew”, did not converse much, and spent “the majority of his time in his room”, and spoke unrecognisably at times: T202.37 – T202.45. He described how the plaintiff was taken to the family doctor who then referred him to a psychologist: T203.3. He described how the plaintiff had completely recovered after he completed stage one of his TAFE course and had gained another position in the childcare sector: T203.16 – T203.30. In cross-examination, he qualified that evidence by stating that the long-term effect of the drawn out process of this present dispute on his son’s health has yet to be determined: T208.11. I interpret Mr Bowden’s comment that the plaintiff had recovered to mean that the acute phase of the plaintiff’s initial reaction to the publication had subsided somewhat.

67. In cross-examination, Mr Bowden confirmed that his son was seeing a psychiatrist: T208.42. Further cross-examination on the plaintiff’s pattern of consultations with a psychiatrist was curtailed on considerations of fairness because this subject had not been raised beforehand with the plaintiff in cross-examination circumstances where the plaintiff’s evidence had already been completed: T208.41 – T209.5.

68. Mr Bowden’s evidence was not the subject of material challenge. I consider him to be a truthful and reliable witness.

Ms Kirsten Wilde

69. Ms Kirsten Wilde was called by the defendants: T420 – T425. She presently works at the childcare centre that took over from the Hubba Bubba Childcare Centre. She has been employed there since late 2013.

70. In that capacity, Ms Wilde knew the plaintiff as a pre-school assistant. They were rostered together at the Haig Street premises. Her evidence was brief and it did not touch upon any issue of significance in these proceedings.

Ms Elizabeth Webb

71. Ms Elizabeth Webb was called by the defendants. She was the faculty director responsible for training in the health and community services courses at TAFE, including courses in early childhood and the related Certificate III course. She had no personal knowledge or communications with the plaintiff: T426.5 – T426.30.

72. Ms Webb described the status of the respective qualifications. A Certificate III qualification accredits a worker to be “on the floor” working with children to support a child’s development whilst working under direction, whereas a Diploma is a level of qualification for persons aspiring to work in a leadership or management role, with the Diploma being the more senior qualification: T426.30 – T436.48.

73. Her evidence was generally directed at TAFE course structure, the vocational framework and requirements, and qualifications for work in the childcare industry: T426 – T437. It had little to do with the defence of the plaintiff’s claim of having been defamed by the email in question, and it remained puzzling as to why she had been put to the inconvenience of being called to give evidence when documents, an evidentiary statement or affidavit, or agreed facts on the subject matter of her evidence, would have sufficed.

74. Ms Webb described the typical time frame for someone to complete the Diploma course as being 18 months, and about 6 months to complete the Certificate III course, but with variations that would allow for earlier assessment if prior childcare skill and experience were to be recognised: T432.5 – T432.32.

75. Ms Webb explained that there was considerable scope for overlap in the teaching of quite a few Certificate III units and the Diploma course so that progress through the courses was negotiable, with scope for the availability of offset credit allowances for certain units undertaken: T433.1 – T433.16. Ms Webb confirmed that in 2015, it was possible for a candidate enrolled in the Diploma course in early childhood to transfer into the Certificate III course before completing the Diploma, subject to negotiating administrative requirements: T435.20 – T435.34.

76. Those considerations were subject to a particular student’s view of whether or not such a move was considered to be beneficial or convenient, including as to matters of time, effort and cost: T435.45. A transfer could be effected within a week or two, and would normally be the subject of advice: T436.2 – T436.15.

77. Ms Webb described the general circumstance that, in cases of illness, if a student in a Diploma course were to miss some days of placement due to illness but would otherwise pass an assessment, flexible scope existed for assessing such a student as nevertheless being competent: T436.26 – T436.47.

Ms Natsuki Inukai

78. Ms Natsuki Inukai is a childcare educator employed at the Haig Street premises by the new proprietor who took over from the defendants. She had also been working at the premises when the plaintiff was employed there by the defendants in August 2015: T438.

79. It remains puzzling as to why she was called to give evidence in the defendants’ case as she was not privy to, or could not recall, the particular conversations or events to which she had been directed in her examination in chief. She was overseas for part of those times.

80. Whilst she was employed by the defendants, Ms Inukai had been shown and had read the staff update section of the email in question in the office after it had been sent to the families to whom it had been directed. She did so in the presence of other staff members for the purpose of informing herself of workplace changes.

Ms Amy Lee

81. Ms Amy Lee, an early childhood teacher, was called by the defendants. In 2015, she worked with the plaintiff at the defendants’ Haig Street premises.

82. Ms Lee described how, at about 4.30pm, at the end of her rostered shift on 24 March 2016, at the request of Ms Chapman, she had walked the plaintiff out of the Haig Street premises because Ms Chapman had told her that she did not want the plaintiff talking to the parents as he left: T450.42 – T452.7.

83. Ms Lee recounted an earlier conversation which had preceded those events, where she had, as the plaintiff’s supervisor, asked him “to be very honest” with her, and tell her whether he was “still babysitting” children who attended the centre. She said she felt relieved when the plaintiff had replied that he was not: T452.17 – T452.25. On the face of the question, the plaintiff had plainly given an honest answer, although later, that answer troubled him because he had come to fear Ms Chapman because of an earlier exchange of words.

84. Ms Lee identified the source of the information given to her which based her question about the plaintiff babysitting to be a child at the Centre who had reportedly told her he had seen the plaintiff at his home earlier that morning, and in response to the question as to why that was so, he stated: “he’s walking my sister to school”: T453.35. In my view it is a misnomer to ascribe the term babysitting to that activity.

85. Ms Lee stated that she considered the described activity to be babysitting as it was a form of looking after a child: T453.40 – T454.18. In an arena where the meaning of words matters, especially concerning allegations of his honesty and a claimed defence of substantial truth, I do not accept that description as being apt, unless the term babysitting is used in a very loose way. That evidence must be considered in terms of the meaning to be given to the defendants’ “Staff Babysitting” document in terms of whether it was truly a policy, or whether it was simply a statement of preference, and whether it in fact applied to a child who was formerly, but no longer, an attendee at the Centre.

Ms Cassandra Burdon

86. Ms Cassandra Burdon was called to give evidence in the defendants’ case: T459 – T473. In 2015 and 2016, she was the head teacher in childhood education at the Crows Nest TAFE campus.

87. In her evidence she identified a series of email exchanges between herself and the plaintiff in March 2016: T459.30 – T463. In essence, she said that after discussion with the plaintiff, having regard to the units in the course he was undertaking, and having regard to some classes and some weeks of content that he had missed due to illness, she had recommended to him that he re-commence studies immediately and take classes on Wednesdays: T463.2 – T463.45.

88. Ms Burdon had informed Ms Chapman that she had made the recommendation that the plaintiff take up the Wednesday classes option: T463.10. Ms Burdon had recorded that it had been recommended that the plaintiff undertake additional course work in order to gain greater knowledge and therefore he would be attending Wednesday classes: T471.35. At that time, she was completely unaware the plaintiff had work commitments on Wednesdays: T464.16. In that context it becomes relevant to consider the context in which the defendants sought to impose such work commitments on the plaintiff.

89. At the time of the events in question, the Crows Nest TAFE campus had the option of “rolling enrolments” so that every few weeks opportunities arose for a student enrolled in the Diploma course to additionally enrol for the Certificate III qualification. She said that at worst, there may at times have been an eight to ten week wait to do so, but a delay of that magnitude would have been unusual: T466.8 – T467.25. She suspected the conversation with Ms Chapman to which she had referred, took place because they had been collaborating over “moving … [the plaintiff] … through his program”: T470.47.

90. In cross-examination Ms Burdon identified a conversation she had with Ms Chapman on or about 11 May 2016, in which Ms Chapman had made a brief mention to her of a negative statement appearing on a website, and that the plaintiff was no longer employed at the Centre: T470.5 – T470.13. She did not see it as her role to become involved in employer – employee matters: T470.25. In any event, that matter did not achieve any relevance in this case as there was no evidence to link the plaintiff to that negative commentary, which was identified as being made by a person named “J Smith”: Exhibit “2”.

Mrs Erica Tieu

91. Mrs Erica Tieu holds a responsible position as a marketing director for a large company. She came to know the plaintiff in 2015 in connection with his work at the defendants’ childcare centre, where her children had attended. She was called to give evidence in the plaintiff’s case: T116 – T125.

92. Mrs Tieu confirmed that the plaintiff had undertaken babysitting work for her and her husband on one occasion in late 2015: T116.39. She said that in 2016, the plaintiff had also undertaken some work for her in walking her daughter and a friend of her daughter to a local public school on three mornings a week, namely on Mondays, Wednesdays and Thursdays: T117.6. That work was undertaken over the course of a few weeks until the plaintiff felt he had to stop doing so because his work with the defendants was continuing: T117.9 – T117.11.

93. Mrs Tieu’s child whom the plaintiff had walked to school had previously been an attendee at the defendants’ childcare centre in 2015: T117.17. After the plaintiff left the employment of the defendants, he resumed the work of walking Mrs Tieu’s child to school: T117.46. Mrs Tieu had obviously considered him to be reliable and trustworthy for such important work.

94. Mrs Tieu gave illuminating evidence of a conversation she had with Ms Chapman after the plaintiff left the employ of the defendants. Her account of that conversation, which will be set out in due course, was not challenged through cross-examination, although Ms Chapman later sought to contradict it in her own evidence.

95. I considered Mrs Tieu to be an impressive and reliable witness.

Background Facts

96. In the paragraphs that now follow, unless otherwise qualified, I identify my findings on the background factual circumstances relevant to the issues to be determined in the case.

97. The plaintiff was born in 1996. He sat for his HSC in 2014. In that year, due to a recurrent illness he experienced in that year he did not achieve a sufficient ATAR score to pursue his ambition of undertaking a university course to qualify as a primary school teacher. Instead, he enrolled in the Diploma course in Early Childhood Education and Care at TAFE.

98. On 19 March 2015, through an arrangement that was negotiated between the defendants by TAFE, as part of the requirements of the plaintiff’s course, he commenced an assigned professional or work experience placement at the defendants’ childcare centre in Mowbray Road, Chatswood: T31.40 – T32.25. At that time the plaintiff was obviously not qualified with any childcare certificates or diplomas apart from clearance to work with children. I find that at that time, Ms Chapman must have known this was so because she had accepted his placement for professional work experience as part of his TAFE course.

99. Between April and May 2015, the plaintiff’s progress in that placement had become delayed because he had suffered recurrent tonsillitis and was unable to complete all of the formal requirements of his placement at the defendants’ childcare centre. However, and notwithstanding that fact, in May 2015, it seems that Ms Chapman was sufficiently impressed with him that she offered him part-time work to commence at the defendants’ Haig Street centre as soon as he had recovered from tonsillectomy surgery.

100. Accordingly, in late June 2015, the plaintiff contacted Ms Chapman to advise that he had recovered from his tonsillectomy surgery. She then invited him to attend the childcare centre to sign an employment agreement.

101. On 3 July 2015, the plaintiff attended as requested and on that occasion Ms Chapman provided him with a written offer of employment at the Hubba Bubba Childcare Centre on Haig. That offer was for part-time employment to commence on 16 July 2015. The work was for a minimum of 16 regular hours per week “in the position of Certificate III in Early Education and Care” on the terms and conditions set out in that letter: Exhibit “B”, pp 6-14. The maximum number of hours that the plaintiff could work was left undefined, which meant there was scope for reasonable variation within that part-time position.

102. Significantly, the offer made by the defendants did not require that the plaintiff should possess a Certificate III qualification, nor did it refer to any representation allegedly made by the plaintiff to the effect that he held such a qualification. In my view, the job was not offered to the plaintiff as a Certificate III position on the basis that the plaintiff actually held such a qualification at that time. I reject Ms Chapman’s evidence to the contrary. Furthermore, I find that the plaintiff made no representation to the effect that he would complete such a qualification within a specified period of time. Instead, I find that the position was one in which he would work in that role or classification without the underlying qualification. In the circumstances of this case, that is an important distinction.

103. I am reinforced in that view because that portion of the defendants’ document described as “Offer of Employment”, which annexed the job description of the position offered to the plaintiff, allows for that distinction in the Qualification/Essential Criteria section:

“AQF Certificate III in Children’s Services or an equivalent qualification, or in the opinion of the employer, possesses sufficient knowledge or experience to perform the duties at this level”

Exhibit “B”, p 12

[Emphasis added]

104. I find that at the time, the plaintiff was offered that position by Ms Chapman because, as foreshadowed in the terms of the Offer of Employment, she had formed the opinion that he possessed sufficient knowledge or experience to carry out the duties she proposed to allocate to him.

105. The plaintiff had commenced his professional placement with the defendants on 19 March 2015. In that time he had obviously not completed his placement before the offer was made. In those circumstances I consider that it was most improbable that Ms Chapman could have reasonably believed that the plaintiff had a Certificate III qualification in childcare, especially since she had accepted his placement from TAFE in the knowledge that he was still pursuing his studies.

106. That said, I accept that the defendants’ childcare centre was undergoing expansion with more places to be allocated for children to attend there, and that Ms Chapman had the need for staff who held minimum qualifications as required by regulation. Whilst she may have had plans for the plaintiff to fill such a position when he was qualified, she could not have reasonably thought he was qualified at that time.

107. During the plaintiff’s placement at the defendants’ childcare centre, the advent of his severe recurrent tonsillitis meant that, to Ms Chapman’s knowledge at the time she offered the plaintiff employment, he had not yet completed his professional placement requirements, which was a necessary part of his course.

108. I am further reinforced as to my view on those matters because of Ms Chapman’s knowledge of the status of the plaintiff’s incomplete qualifications, both at that time, and thereafter, because of ongoing discussions that had taken place between the plaintiff, TAFE and Ms Chapman which involved an identified need for him to make up for some lost time in his placement. Ms Chapman was aware of this fact because she arranged for him to make up for that lost time at her Mowbray Road Childcare Centre as distinct from her Haig Street Centre.

109. I do not accept that the plaintiff had ever represented to Ms Chapman, or to her employees, or to any other person whose children attended the defendants’ childcare centres, either by the effect of any actual words used by him, or by silence, that he had completed a Certificate III qualification, as was asserted by Ms Chapman. I do not accept that Ms Chapman had a reasonable basis for ever having assumed otherwise.

110. Returning then to the plaintiff’s contract of employment, it is plain that he ultimately signed that document, and that at that time he had provided Ms Chapman with a copy of his resume which clearly noted that the plaintiff had enrolled in his Diploma Course in 2015: Exhibit “B”, p 15. Ms Chapman must have read that resume at that time. A fair reading of that resume does not reasonably suggest that at that time the plaintiff already held a Certificate III qualification.

111. The plaintiff had a confused recollection about the precise sequence of the events of him signing the contract of employment. That confusion was most probably because, as he explained in his evidence, it was his first job, he was excited about the prospect of working in that job, and he did not fully understand the documentation he had signed and needed his parents to explain it to him. I accept his evidence in that regard, which was supported by the evidence of his parents, whose evidence I also accept.

112. In my assessment, nothing of significance turns on the plaintiff’s confusion about signing the defendants’ document that offered him employment. It is clear that he had signed the document on two occasions, namely 3 July 2015 and again on 8 July 2015, having taken a copy of it home in order to review it with the assistance of his parents, at which time an obvious error in the document about his rate of pay was corrected, from $20.13 per fortnight to $20.13 per hour.

113. On 8 July 2015, when for a second time the plaintiff signed the letter comprising the offer of employment with the defendants he also signed a document entitled “Staff Babysitting Children who attend the Centre”. I accept the plaintiff’s evidence that he did not retain a copy of that document.

114. The plaintiff said, and I accept, that before Ms Chapman took that document from her file and gave it to him in early 2016 in the course of rebuking him about an episode of babysitting he had undertaken, he had no recollection of the document or its contents.

115. The defendants referred to the abovementioned document as a babysitting policy: Exhibit “B”, p 16. On its face, I consider the term “policy” to be a misnomer. In reality, it is nothing more than a statement by the defendants, of a preference that their employees “do not babysit children who attend the service”. That document obviously formed part of the plaintiff’s employment conditions and obligations.

116. At this point I observe that to the extent that the defendants considered or claimed that the document comprised an “anti-babysitting policy” (T146.18), the document is internally inconsistent in that it provides that “Staff should contact parents outside of their work hours in regards to private babysitting arrangements” and should not be displaying signage “promoting babysitting services at the Centre”. In my view, those words do not forbid or foreclose staff from undertaking babysitting work for parents of children who attended the defendants’ childcare centre.

117. Therefore, on its face, the document plainly contemplated that staff at the centre may develop relationships with children at the centre “through private babysitting arrangements with families”. I therefore do not construe the defendants’ document to be an anti-babysitting policy.

118. The document goes on to provide that “Each staff member must inform management of any arrangements made outside the centre regarding this policy”. The document concludes with a warning to staff in the following terms: “Any member of Staff who is discovered to have breached Centre confidentiality, or undermined the integrity of their employment relationship with the service in any way, is putting their employment at the Centre at risk, will be subject to implementation of the Centre Grievance Procedures”.

119. The terms of the defendants’ Grievance Procedures were not the subject of evidence in these proceedings.

120. On about 16 July 2015, the plaintiff commenced working at the defendants’ Haig Street premises in accordance with his employment contract. He plainly satisfied the defendants’ requirements of passing a three month probationary period. Were it otherwise, it would have been most unlikely that his employment with the defendants would have continued beyond October 2015.

121. From July 2015, and continuing until late 2015, the plaintiff attended to the requirements of his job at the Haig Street Centre. In doing so, he routinely undertook additional work to cover both scheduled and unscheduled absences of other staff members. He also undertook additional professional work experience at the Mowbray Road premises to make up for the time he had missed in relation to his course requirements, which he had not yet fulfilled because he had been ill earlier in that year.

122. In October and November 2015, the plaintiff also lost some time from work when he had to undertake some lengthy dental treatment for a dislocated jaw. In that regard, he had an adverse reaction to an anaesthetic: Exhibit “B”, p 17. In 2015, the plaintiff did not pass all aspects of his paperwork assessments with TAFE and he had to make up some time: T39; T40.23 – T40.31. By the end of 2015, the plaintiff had not yet completed his professional experience module: T41.40. He therefore had to make up the time at the defendants’ Mowbray Road Centre: T39.40.

123. In relation to those events, on 24 November 2015 a TAFE Assessor undertook a work placement assessment of the plaintiff and advised him and the defendants that he needed to retake a particular portion of his course. It must have been plain to Ms Chapman at that time, if not beforehand, that the plaintiff did not yet hold a Certificate III qualification. I do not accept Ms Chapman’s hyperbolic and overdramatised evidence where she said she “nearly had a heart attack” when she found out that the plaintiff had not progressed in his course: T265.2.

124. By the end of 2015, the plaintiff had built up excellent relationships with the staff and children at the centre, and with the parents of those children. The plaintiff had taken to the job. He saw it as an amazing opportunity and described it as a dream come true: T38.20 – T38.23. He found the staff friendly and he got on well with the children and their families: T41.41 – T41.46.

125. Ms Chapman had thought sufficiently highly of the plaintiff to entrust him with keys to the premises, thereby also entrusting him with tasks such as opening and locking up the premises: T38.48. At the time Ms Chapman gave the plaintiff those responsibilities, I consider that it was most improbable that she would have harboured concerns over his honesty, trustworthiness, or his qualifications and fitness to work in the defendants’ childcare sector.

126. On 23 December 2015, at a time whilst the defendants’ childcare centre was obviously closed, Mrs Tieu had contacted the plaintiff to engage him to babysit her children who already knew him from his work at the defendants’ childcare centre. The plaintiff accepted and fulfilled that task. I accept that when he did so in good faith and in ignorance of the terms of the defendants’ staff babysitting preferences or, as the defendants would have it, their babysitting policy.

127. That said, I nevertheless find that it could not reasonably be said either in a disciplinary sense or otherwise, that the plaintiff was in breach of any of the terms of the defendants’ so-called policy concerning babysitting. There is no evidence that the plaintiff had solicited that babysitting work during his working hours. The evidence is overwhelmingly to the contrary as Mrs Tieu had approached him to do that work outside of working hours.

128. At the time the plaintiff undertook the babysitting of Mrs Tieu’s children they were not attendees of the defendants’ childcare centre. At that time, the centre was closed for the holiday season. Whilst it might be arguable that the plaintiff had not informed the management of the childcare centre of those arrangements, two things may be said about those circumstances. First, the so-called policy did not specify a time requirement for informing management of such arrangements, and secondly in any event, it would have been plainly impracticable for him to do so before the event at that holiday time of the year and in the circumstances in which he had been approached.

129. In mid-January 2016, the plaintiff received a transcript of his TAFE studies and provided a copy of it to Ms Chapman: Exhibit “B”, p 18. That transcript showed that, as at 21 December 2015, the plaintiff’s results for the academic year were that he had been assessed as being competent in four out of six course units, and not yet competent in respect of two units: Exhibit “B”, p 18. The plaintiff’s action in providing a copy of that document to Ms Chapman tends to contradict the suggestion from the defendants that the plaintiff had not been truthful in his dealings with the defendants about his studies. I do not accept Ms Chapman’s evidence to the effect that she had been pressing the plaintiff for his course results for some time beforehand.

130. The plaintiff had not concealed from Ms Chapman the fact that he had not yet completed all of the requirements of his course. If the position were otherwise, I consider it most unlikely that Ms Chapman would have remained silent on that subject until composing the subject email of 4 April 2016.

131. That view is confirmed by the content of an email dated 4 February 2016 the plaintiff sent to Ms Burdon, at TAFE, in which he cited Ms Chapman’s expressed uncertainty about whether she still wished to go ahead with the plaintiff’s traineeship program due to “bumps” that had occurred in his Certificate III course. Ms Chapman was cited as having said to the plaintiff that she “would have to think about it”, and that she had requested a discussion with Ms Burdon in the following week.

Costs

324. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendants should pay the plaintiff’s costs of his own proceedings and the first defendant should pay the plaintiff’s costs on its cross-claim. Those costs should be paid on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

325. I make the following orders:

1. Verdict and judgment for the plaintiff for compensatory, aggravated and special damages, including pre-judgment interest pursuant to s 100 of the Civil Procedure Act2005 (NSW), in the total amount of $237,970.22;

2. Judgment for the cross-defendant plaintiff on the first defendant’s cross-claim;

3. The exhibits are to be returned;

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

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

6. Liberty to apply on 7 days notice if further or other orders, including as to costs, are required.

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Decision last updated: 04 April 2019