Chehade v Mihailuk

[2015] NSWDC 74

District Court

New South Wales

Medium Neutral Citation:

Chehade v Mihailuk [2015] NSWDC 74

Hearing dates:

26, 27, 28 August, 16 October 2014; 19 February, 2 March, 16, 17 April, 15 May 2015 (Excluding interim mention dates)

Date of orders:

26 May 2015

Decision date:

26 May 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.   Verdict and judgment for the defendant;

 

2.   The plaintiff is to pay the defendant’s costs on the ordinary basis unless otherwise ordered;

 

3.   The exhibits may be returned;

 4.   Liberty to apply on 7 days notice if further or other orders are required.

Catchwords:

TORTS – defamation – question of fact as to whether the defamatory statements were made by the defendant as claimed by plaintiff; PRACTICE AND PROCEDURE – application by defendant for leave to re-open case to call further evidence after judgment was reserved – further evidence obtained after judgment reserved – evidence not previously available to defendant – after the trial a witness called by plaintiff admitted to giving perjured evidence at trial; DAMAGES – assessment of claims for general and aggravated damages

Legislation Cited:

Civil Procedure Act 2005, s 146(1)
Defamation Act 2005, s
Evidence Act 1995, s 30, s 128(7)
Surveillance Devices Act 2007, s 7

Cases Cited:

Chehade v Mihailuk [2014] NSWSC 228
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Smith v NSWBA [1992] HCA 35; (1992) 176 CLR 256

Category:

Principal judgment

Parties:

Rabie Chehade (Plaintiff)
Tania Mihailuk (Defendant)

Representation:

Counsel:
Mr T Molomby SC with Mr R Rasmussen (Plaintiff)
Mr P Lange (Defendant – 26, 27 & 28 August 2014)
Mr S Stanton (Defendant – 19 February, 2 March, 16, 17 April & 15 May 2015)

  Solicitors:
Auscorp Solicitors & Conveyancers (Plaintiff)
LawyersCorp Pty Ltd (26 27, 28 August 2014) (Defendant)
Carters Law Firm (from 16 October 2014) (Defendant)

File Number(s):

2013/272663

Judgment

Table of Contents

Nature of case and background	[1] – [7]
Alleged defamatory utterances and related imputations	[8] – [12]
Procedural history	[13] – [17]
Application to re-open	[18] – [24]
Plaintiff’s request for an apology	[25] – [30]
Issues	[31] – [32]
Evidence overview	[33] – [37]
Credit	[38] – [125]
Plaintiff	[41] – [52]
Mr Mahmoud Chehade	[53] – [57]
Mr Mehmet Ali Kay – initial evidence	[58] – [66]
Mr Mehmet Ali Kay – disclosure of perjury	[67] – [68]
Mr Mehmet Ali Kay – credit re-assessment	[69] – [88]
Mrs Patricia Schneider	[89] – [96]
Defendant	[97]
Mr Charles Kavanagh and Mr Alex Cklamovski	[98]
Mr Mehmet Ali Uluc	[99] – [112]
Ms Lauren MacDougal	[113] – [118]
Ms Christina Alexopoulos	[119] – [125]
Survey of the various factual accounts	[126] – [246]
Mr Mahmoud Chehade	[134] – [143]
Mr Mehmet Ali Kay – initial evidence	[144] – [147]
Mrs Patricia Schneider	[148] – [153]
Defendant	[154] – [166]
Mr Kavanagh	[167] – [171]
Mr Cklamovski	[172] – [175]
Further evidence given by Mr Kay at re-opened hearing	[176] – [246]
Issue 1 – Whether the words were uttered	[247] – [286]
Issue 2 – Assessment of damages	[287] – [291]
Disposition	[292]
Costs	[293]
Orders	[294]

Nature of case and background

1. The plaintiff, Mr Rabie Chehade, who in 2012 was an independent candidate for the election of councillors to Bankstown City Council, claims that on election day on 8 September 2012, he was defamed by utterances allegedly made outside a polling place by the defendant, Ms Tania Mihailuk, a member of the NSW Legislative Assembly.

2. The defendant’s interest in the outcome of that council election was that she is the wife of Mr Alex Kuskoff, who was seeking re-election as an Australian Labor Party candidate.

3. The defendant denied that she had uttered the words complained of by the plaintiff. However, on her behalf it was conceded that if the words complained of are found to have been uttered by her, they were defamatory of the plaintiff. The proceedings are governed by the provisions of the Defamation Act 2005.

4. Following a 3 day trial in August 2014, and during the period whilst the final submissions of the parties were being considered, the defendant made an application to re-open the proceedings. The re-opened proceedings concluded on 15 May 2015.

5. This occurred after the defendant had obtained evidence that a witness had given perjured evidence in the case for the plaintiff.

6. That witness, who had approached the defendant in order to disclose his perjury, claimed that he had given perjured evidence under duress from the plaintiff, following earlier threats to his wellbeing, and to that of his family.

7. Those developments necessarily widened the array of disputed matters of fact that required determination in the proceedings.

Alleged defamatory utterances and related imputations

8. The first matter of which the plaintiff complains is set out in paragraphs 3, 4 and 5 of the plaintiff’s amended statement of claim as follows:

"3.   On 8 September 2012 at the location, the defendant in the presence of numerous other persons pointed at a sign showing the plaintiff's name and photo, and said "Don't vote for this man, his first cousin is a murderer, he is in gaol for double life." One of the persons present said "You can't say that, that's not the truth", to which the defendant shouted in reply "Go and look it up on Wikipedia, what's wrong with telling the truth. What are you going to do, call your first cousins to come down and shoot me." (the first matter complained of).

4.   The first matter complained of was published to numerous persons, including Mehmit (sic) Ali Kay and Mahmoud Chehade.

5.   The first matter complained of conveyed of the plaintiff in its natural and ordinary meaning the following imputations which were defamatory of him:

(a) that he is unfit for public office.

(b) that he is contaminated by the serious criminality of his cousin.

(c) that he is a person of dangerous violence.”

[Emphasis added]

9. The second matter of which the plaintiff complains is set out in paragraphs 6, 7 and 8 of the plaintiff’s amended statement of claim as follows:

“6.   On 8 September 2012 at the location, the defendant in the presence of numerous other persons pointed at a flyer containing the plaintiff's name and photo and said "Don't vote for him, they are bad people, they are in trouble with the law, they are drug dealers and they have been in gaol." (the second matter complained of).

7.   The second matter complained of was published to numerous persons, including Tania (sic) Schneider.

8.   The second matter complained of conveyed of the plaintiff in its natural and ordinary meaning the following imputations which were defamatory of him:

(a)   he is a bad person

(b)   he is a criminal.

(c)   he is a dealer in illegal drugs.”

[Emphasis added]

10. The plaintiff claims that as a result of the utterances as alleged above, he has been damaged in his character and reputation, and that he has been subjected to hatred, ridicule and contempt, in respect of which he continues to suffer distress and damage, and for which he claims both general compensatory damages and aggravated damages.

11. On 12 December 2012, the solicitor then acting for the plaintiff sent a letter to the defendant seeking an apology in respect of those matters: Exhibit “D”.

12. The defendant did not reply to that letter. In her evidence, the defendant said that she had ignored that letter because she considered it to have been based on falsehoods and because she thought that it amounted to “a media stunt”: T98.5 – T98.11 (27 August 2014).

Procedural history

13. On 9 September 2013, the plaintiff initiated the present proceedings in the Supreme Court of NSW. On 3 February 2014, in the course of an interlocutory review of the proceedings in that court, an order was made pursuant to s 146(1) of the Civil Procedure Act 2005, for the hearing of the proceedings to be transferred to this court: Chehade v Mihailuk [2014] NSWSC 228.

14. A hearing took place in this court on 26, 27 and 28 August 2014, following which judgment was reserved. At that time it was indicated to the parties that judgment would be delivered following a period of pre-arranged leave.

15. During the period whilst judgment was reserved, the defendant retained different legal representation to the representation she had at the hearing.

16. On 2 October 2014, the defendant’s new solicitors sent a communication to the court and to the plaintiff’s solicitor to foreshadow an application by the defendant to re-open her case. The defendant sought to have Mr Mehmet Ali Kay, one of the witnesses who had been called in the plaintiff’s case, recalled to give further evidence on matters concerning the facts in issue and on matters of credit. This occurred after Mr Kay had approached the defendant seeking to recant his former evidence.

17. Due to the cumbersome manner in which the transcript has been numbered, in respect of different hearing days, significant transcript references to pages in the evidence also include a reference to dates.

Application to re-open

18. The basis of the defendant’s application to re-open the case was that, after the trial had concluded, further evidence in the form of a statutory declaration had been obtained from Mr Kay, relating to the plaintiff, and that such evidence, by its nature had not been available to the defendant beforehand.

19. In a dramatic turn of events, that evidence indicated on its face, that Mr Kay had perjured himself on 26 August 2014 when giving his evidence at the time he was called as a witness in the case for the plaintiff.

20. That further evidence also raised an issue concerning the credit of the plaintiff. This was in circumstances where the plaintiff’s credit had not been the subject of previous challenge at the initial hearing in August 2014.

21. The application by the defendant for leave to re-open her case involved further listings on 16 October, 13 November and 19 December 2014. This was because the hearing of that application was complicated by the fact that Mr Kay, who was resident in Sydney at the time of the initial trial, had since then become resident in Ankara, in Turkey, and who at the time of the application to re-open, had expressed a reluctance to return to Australia because he said he was in fear for his personal safety.

22. The defendant’s application to re-open was granted. The threshold for making such an order was much lower than if such an application were to have been made after judgment had been delivered: Smith v NSWBA [1992] HCA 35; (1992) 176 CLR 256, at pages 266 – 267.

23. Further evidence was then taken from Mr Kay by videolink from Turkey on 19 February and 2 March 2015. That evidence had to proceed in limited stages due to time zone differences and logistical difficulties.

24. In response to that further evidence, the plaintiff gave evidence in reply on 16, 17 April, and called a further witness on 15 May 2015. The parties made their final submissions on 15 May 2015.

Plaintiff’s request for an apology

25. Before the proceedings were filed, by a letter from his then solicitors dated 12 December 2012, the plaintiff sought an apology from the defendant in respect of the words allegedly attributed to her, claiming they were defamatory of him. It is relevant to set out the terms of the letter requesting an apology.

26. This is because it not only identifies the terms of the request for an apology, but it also identifies a discrepancy in the detail between the plaintiff’s complaint made to the defendant in that letter on 12 December 2012, which was repeated in the amended statement of claim, compared to the evidence of the plaintiff, who asserted that the alleged defamatory statements had been made at several polling locations, and not just at the place pleaded in the amended statement of claim and relied upon in Exhibit “D”.

27. The plaintiff’s request for an apology comprising Exhibit “D” was as follows:

“We act for Mr. Rabie Chehade, who as you (sic) aware contested the Bankstown Local Government Council Election (North Ward) on 8 September 2012.

This is a concerns notice for the purposes of the Defamation Act 2005 (NSW).

Mr. Chehade has consulted us in relation to public communications made by you that day.

In particular, we are instructed that ("The Matter Complained Of):

1.   Whilst you were at Bankstown West Public School, you said in a voice loud enough for voters present to hear, words to the effect of, "Don't vote for this man", with a finger pointed at a corflute of Mr. Chehade. You also said, "Don't vote for this man, his first cousin is a murderer he is in gaol for double life".

2.   When you were told by a witness, "You can't say that, that's not the truth", you yelled, "Go and look it up on Wikipedia, what's wrong with telling the truth". You then yelled out, "What are you going to do, call your first cousins to come down and shoot me".

We are instructed that in The Matter Complained Of you made a number of serious charges against our client which gave rise to imputations to the following effect:

1.   That our client was associated with criminals, namely murders (sic) or violent persons;

2.   By virtue of his association with criminals, that our client was capable of organising for someone to be shot; and

3.   That persons' were at risk of harm from our client and those associated with him.

The imputations above are defamatory of our client and we are instructed that they are completely false and maliciously made with an intention to harm our client's reputation.

We are instructed to request that, within 28 days of the date of this letter:

1.   You submit to our firm a letter containing a clear and unqualified apology and retraction addressed to our client in relation to each imputation contained in the Matters Complained Of. When the wording of that apology is agreed to, we will agree on the manner in which it is to be made public;

2.   Confirm in writing to (sic) no further representations in relation to the Matters Complained Of will be made; and

3.   Pay our client's legal costs in the sum of $1000.00 (one thousand dollars), by way of bank cheque addressed to Mitry Lawyers Law Practice Trust A/C.

Our client has instructed us that in the event of your agreeing to this course he does not wish to seek damages. In the event of your non-compliance to our requests above we are instructed to commence defamation proceedings in the Supreme Court of New South Wales without further notice.

In any such proceedings damages will be claimed, as well as our client's costs.

In the meantime our client reserves all of his rights.”

[Emphasis added]

28. Following the refusal of the defendant to reply to the above letter, and her refusal to apologise for the claimed utterances, the present proceedings were initiated. The defendant’s refusal to apologise was based on her position that she had not uttered the words complained of by the plaintiff.

29. The discrepancy between the content of the allegations contained in the above letter and the evidence of the plaintiff is that whereas in the letter it was asserted that the events complained of had occurred at the Bankstown West Public School polling station, in the plaintiff’s evidence it was asserted by the plaintiff that he knew of a witness who had also heard the alleged defamatory remarks made by the defendant at polling stations located at Chester Hill (T21.29) and at Yagoona (T21.41; T29.4).

30. That witness, who was identified by the plaintiff as Mr Mathew Mayora, was apparently present in the jurisdiction at the time of the initial hearing, but was not called to give evidence in the plaintiff’s case at any stage of the hearing.

Issues

31. In view of the defendant’s concessions to the effect that, if it is established the words complained of were in fact uttered by her, those words were capable of conveying a defamatory meaning and were defamatory of the plaintiff, and which would therefore call for an assessment of damages, the remaining liability issues calling for determination concern questions of the credibility and the reliability of the testimony of the respective witnesses, which in turn has a significant bearing on the determination of whether or not the defendant had in fact uttered the words of which the plaintiff complains.

32. The plaintiff’s claim for aggravated damages is said to arise because the defendant knew of the falsity of the alleged statements said to have been uttered by her, and because she has failed to apologise to the plaintiff for the alleged utterances following a request that she do so.

Evidence overview

33. At the initial hearing in August 2014, in the case for the plaintiff, oral evidence was given by the plaintiff, his brother Mr Mahmoud Chehade, Mr Mehmet Ali Kay and Mrs Patricia Schneider.

34. At that initial hearing, in the case for the defendant, oral evidence was given by the defendant, Mr Charles Kavanagh and Mr Alex Cklamovski.

35. At the re-opened hearing, in the defendant’s case, further evidence was given by Mr Mehmet Ali Kay and by Mr Mehmet Ali Uluc, the interpreter who had provided translation services during Mr Kay’s evidence at the initial hearing on 26 August 2014.

36. At the re-opened hearing, the plaintiff then gave evidence in reply, and evidence in reply was also called from his former solicitor, Ms Lauren MacDougall, and from Ms Christina Alexopoulos, a solicitor and principal of the firm ZB Law which formerly employed Ms Zali Burrows, the plaintiff’s present solicitor.

37. Numerous documentary exhibits were tendered. These will be referred to where it becomes relevant to do so.

Credit

38. The pivotal question of whether or not the defendant had in fact uttered the words complained of stands to be resolved on an evaluation of the credibility and the reliability of the evidence of the respective witnesses.

39. The initial impressions gained concerning the credibility of the testimony given during the first stage of the hearing in August 2014, necessarily required later reconsideration following the further evidence given at the re-opened hearing on 19 February, 2 March, 16, 17 April and 15 May 2015.

40. The paragraphs that immediately follow set out both my initial impressions gained from the first phase of the trial, and my ultimate conclusions concerning the credibility and the reliability of the respective witnesses following the consideration of the evidence as a whole, including a consideration of the further evidence given in the re-opened case.

Plaintiff

41. The plaintiff’s evidence at the initial phase of the trial was given in a straightforward and moderately expressed manner that on its face did not raise any concerns as to his credit or as to his reliability as a witness.

42. The plaintiff’s initial evidence had no bearing on the question of whether or not the defendant had uttered the words of which the plaintiff complained. This was because the plaintiff had not been present on the occasion when it was claimed that the words were allegedly uttered by the defendant. The plaintiff’s case on that question was entirely reliant on the evidence of others who were present on that occasion and who claimed to have heard the defendant make those utterances.

43. However, following the further evidence adduced from Mr Mehmet Ali Kay on 19 February and 2 March 2015, and following the further evidence that the plaintiff gave on 16 and 17 April 2015, including when challenges were made to the credibility of his evidence on those latter occasions, the initial views as to the plaintiff’s credit as summarised at paragraph [41] above necessarily required revision.

44. This was because of the nature and the content of the attack made on the plaintiff’s credit, based upon the further evidence of Mr Kay, and the plaintiff’s responses to those attacks.

45. In those events, as a consequence of the re-opened case, and following final submissions, I formed views that were in some respects adverse to the plaintiff’s credit as follows.

41. A matter that arose in the course of the plaintiff’s further evidence concerned the probity of an aspect of his conduct on 21 August 2014. This concerned the actions of the plaintiff in making a partial voice recording of a conversation between himself, Mr Mehmet Ali Kay, and others present, at the time when the plaintiff served a subpoena on Mr Kay requiring him to attend at the initial trial to give evidence.

42. That recording was made without Mr Kay’s prior knowledge or consent. In the course of the resumed hearing, the plaintiff was issued with a certificate pursuant to s 128(7) of the Evidence Act 1995 in respect of that evidence as the recording in question was made in plain contravention of s 7 of the Surveillance Devices Act 2007.

43. The explanation proffered by the plaintiff for making that recording was to the effect that he made the recording innocently, and in ignorance of the legislative prohibition on doing so.

44. Given that the plaintiff had previously worked as a commercial agent and as a private investigator, a role which I infer would have required him to undergo some training and experience in tasks such as the service of legal process, I considered his claim of innocent ignorance of the requirements of or prohibitions within the Surveillance Devices Act 2007 to be improbable.

45. I do not accept his evidence that in his previous role as a commercial agent he had been trained and was required by his former employer to make unauthorised voice recordings as evidence of due service of legal process: T126.23 – T126.34 (16 April 2015); T133.40 – T134.9 (17 April 2015).

46. Resolution of the factual question of whether or not the plaintiff had procured the evidence of Mr Kay at the initial hearing as a result of duress and threats, as alleged by Mr Kay and denied by the plaintiff, stands to be determined in the context of a consideration of the credibility evidence of Mr Kay on the subject matter of those allegations when compared to the evidence of the plaintiff.

47. Also relevant to that analysis is a consideration of Mr Kay’s motives in coming forward to admit to having perjured himself.

Mr Mahmoud Chehade

53. Mr Mahmoud Chehade is the plaintiff’s younger brother. He was present at the Bankstown West polling place on 8 September 2012, where he claimed to have heard the words complained of allegedly uttered by the defendant. The initial impression I gained from his evidence was that he gave that evidence in a manner aimed at persuasion rather than simply recounting facts: T35 (26 August 2015).

54. In cross-examination on 26 August 2014, counsel who then appeared for the defendant put to Mahmoud Chehade that his account to the effect that words complained of were uttered by the defendant was untruthful: T43.50 – T44.12 (26 August 2015). Mahmoud Chehade forthrightly rejected that proposition. That challenge was sufficient to raise a credit issue to be determined regarding the reliability of the evidence of Mahmoud Chehade.

55. Mahmoud Chehade’s denial of that proposition must now be further assessed and re-evaluated in light of Mr Mehmet Ali Kay having recanted his evidence on that matter.

56. There were textual discrepancies between the evidence given by Mahmoud Chehade concerning the words allegedly uttered by the defendant, and the matters pleaded and particularised by the plaintiff. This raised doubts as to the accuracy of his account because Mahmoud Chehade was the source of the plaintiff’s knowledge of those matters.

57. Mahmoud Chehade was not called to give further evidence in the plaintiff’s case in reply after Mr Kay had given his altered evidence, in which he admitted to having perjured himself in his previous evidence given on 26 August 2014. This was because Mr Kay’s altered evidence did not affect the factual question of whether or not Mahmoud Chehade had heard the words complained of, as he claimed he had. In the defendant’s final submissions, there was criticism that Mahmoud Chehade had not been called in the case in reply. I do not accept the force of that criticism as the content of the evidence of Mahmoud Chehade remained unaffected by the recantation of evidence by Mr Kay as Mahmoud Chehade’s evidence was capable of being read and assessed on its own merits.

Mr Mehmet Ali Kay – initial evidence

58. At the initial hearing Mr Mehmet Ali Kay gave his evidence in a rapid, excitable, animated, and at times forced manner of speech, where he added some emphasis to certain parts of what he was saying.

59. Despite noting those observations, in arriving at my initial impressions as to Mr Kay’s credibility and reliability as a witness, I considered that his evidence as to whether the alleged words were said by the defendant was capable of being believed in the sense that his evidence was not inherently improbable and had apparent plausibility, but it needed to be evaluated against the evidence as a whole.

60. In making that observation, it was also apparent that at times Mr Kay had given his initial evidence with what appeared to be some exaggerated emphasis in the course of some hostile responses he gave to questions asked of him in cross-examination on behalf of the defendant.

61. At the time of the initial hearing, some consideration was given to the possibility that cultural and personality factors could have affected Mr Kay’s presentation and demeanour as a witness.

62. Counter weighted to that possibility was the further possibility that Mr Kay’s demeanour when giving his evidence, as described above, was because he was stressed, and because key aspects of his evidence could simply have been untrue, which he later admitted to be the case.

63. A confounding factor to the analysis of Mr Kay’s initial evidence was his variable resort to the assistance of the interpreter in court.

64. Those matters required a more mature reflection of his evidence as such matters could not be satisfactorily or readily resolved on the basis of initial impressions.

65. Accordingly, at the time of the defendant’s application to re-open her case, no final conclusions had been reached concerning the truthfulness or the reliability of Mr Kay’s initial evidence, when that evidence was compared to that given by the defendant.

66. Necessarily, any initial impressions of Mr Kay’s evidence and his reliability as a witness required a complete reconsideration as a result of his subsequent admission of perjury.

Mr Mehmet Ali Kay – disclosure of perjury

67. On 24 September 2014 Mr Kay swore a statutory declaration in Istanbul, in which he disclosed that he had perjured himself in the evidence he gave in the case for the plaintiff on 26 August 2014. That disclosure was in the following terms:

“…2. On 26 August 2014 I was called as a witness to give evidence to the District Court of New South Wales in the matter of Rabie Chehadie (sic) v Tania Mihailuk (Case No.:2013/272663).

3. I make this Statutory Declaration to recant the evidence I gave on 26 August 2014. Under duress I falsely claimed a number of conversations and events took place. These claims were untruthful.

4. Mr Rabie Chehade visited my house on a number of occasions to pressure me to sign a prepared statement. He then coached me to repeat these untruthful statements in Court under Oath.

5. I was put under duress by Mr Chehade and was in fear of my safety and that of my family.

6. On 8 September 2012 I confirm that I did not have a conversation directly with Ms Tania Mihailuk despite stating such on 26 August 2014.

7. On 8 September 2012 I did not hear Ms Tania Mihailuk say any of the words I attributed to her despite stating such on 26 August 2014.

8. I only now understand that I have committed perjury. At the time I did not see a solicitor to explain the ramifications to me.

9. I have since sought independent legal advice and make this Statutory Declaration to rectify the untruthful evidence given by me (sic) 26 August 2014 to the District Court of New South Wales.

…”

68. On its face, the evidence cited in the preceding paragraph compelled the re-opening of the case before the delivery of a final judgment. However, the credibility of the testimony of Mr Kay as to the circumstances in which that statutory declaration came into existence also requires careful consideration.

Mr Mehmet Ali Kay – credit re-assessment following re-opened evidence

69. Mr Kay gave evidence in the re-opened case on 19 February and 2 March 2015. That evidence materially altered his earlier evidence given on 26 August 2014. Mr Kay was questioned vigorously and at length on that altered evidence.

70. At the outset of the consideration of the second phase of the evidence of Mr Kay, it is relevant to note that some issues arose concerning the accuracy or the adequacy of the interpretation of the evidence he gave by videolink from Ankara, in Turkey, on 19 February 2015. There was no such issue with the translation of the evidence he later gave from Ankara at the resumed hearing on 2 March 2015.

71. Following Mr Kay’s further evidence via videolink from Ankara on 19 February 2015, the plaintiff’s legal representation became dissatisfied with the translations proffered by the interpreter whose services had been utilised in Sydney on that occasion. The defendant’s legal representatives ultimately shared that dissatisfaction.

72. As a result of that dissatisfaction, the representatives of the plaintiff took the unusual step of retaining a different translator to listen to the official court room recording made of Mr Kay’s evidence on 19 February 2015 in order to compare it to the interpreter’s simultaneous account of what was said.

73. The translator retained by the plaintiff then provided some additional translated text which was then incorporated into a 49 page version comprising a copy of the official transcript of that evidence where, the official transcript had previously comprised some 43 pages.

74. The defendant’s legal representatives conceded that the additional text set out in the expanded 49 page version of that transcript was appropriately included. Accordingly, without objection, the expanded version of that transcript of the evidence of Mr Kay given on 19 February 2015, was tendered during the course of the re-opened hearing, and was marked as Exhibit “P”.

75. In assessing the evidence of Mr Mehmet Ali Kay as a whole, it is relevant to note that at the initial hearing, whilst he stated that he had some proficiency in his use of English, at times he preferred to give his evidence through a Turkish interpreter: T46.45; T52.44, T53 (26 August 2015).

76. In that regard, absent it being shown that he did not need periodic resort to an interpreter, it was Mr Kay’s right to have an interpreter. No adverse inference should arise from those circumstances: s 30, Evidence Act 1995. That said, it was informative that there were significant tracts of Mr Kay’s evidence given without the assistance of the provided interpreter: T44 – T56 (26 August 2015).

77. On all of the occasions Mr Mehmet Ali Kay gave his evidence, he appeared to display a nervous demeanour. In a review of his evidence as a whole, that observation becomes understandable, given that his evidence on the first occasion was, on his own admission, perjured.

78. The fact of admitting to having given perjured evidence, irrespective of whether the alleged threats to the wellbeing of himself and his family had been made, would be an understandable explanation which could account for such nervousness.

79. In the second phase of Mr Kay’s evidence, I considered him to be a more loquacious witness than was previously evident. At times, he was variously, non-responsive, argumentative and over-inclusive in his answers. Also at times, his answers were accompanied by melodramatic gestures and on occasion his evidence had to be interrupted in order to deal with such matters.

80. In the second phase of his evidence, Mr Kay made more frequent use of the interpreter, but there was no consistent pattern. I formed the view that his resort to the use of the interpreter in those circumstances was to allow himself some thinking time to formulate answers that best suited his position in the litigation: Exhibit “P”, p 19.50 and p 36.23 (19 February 2015). This occurred where his credit was under attack, and where he gave some unresponsive answers which gave me the impression that he appeared to be trying to deflect the direction of cross-examination.

81. Due allowances had to be made for the fact that Mr Kay was giving some of his evidence in the Turkish language, and that he was under some considerable pressure or stress due to his earlier admitted perjury, together with the fact that when he gave his further evidence from Ankara, it was either late at night or in the early hours of the morning, and whilst he was tired, and at one point, he claimed to be unwell.

82. I nevertheless concluded that overall, Mr Kay’s evidence on matters in contention must be viewed as being totally unreliable unless corroborated by objectively acceptable evidence.

83. The basis of that conclusion was Mr Kay’s admission that he had previously given sworn evidence which he knew to be false, intending that the court receive, accept, and rely upon such evidence.

84. That conduct necessarily cast doubt about his veracity as a witness generally. The fact that he had knowingly perjured himself necessarily detracted from his credit as a witness. Although the fact that he later admitted his perjury was a positive matter that went to his credit, in my view, this was an insufficient factor to restore his credibility as a witness as there was little basis for confidence that his other evidence at the re-opened hearing was truthful.

85. Furthermore, Mr Kay had waited until he was outside the jurisdiction before he admitted his perjury, and was therefore not amenable to sanctions available in the jurisdiction aimed at discouraging the giving of false testimony. I considered that his evidence given by videolink should be given little weight except insofar as it involved an admission of perjury on his part.

86. Furthermore, there were significant variations and inconsistence in his evidence. These matters necessarily also cast doubt upon his veracity as a witness.

87. Those inconsistencies also indicated that significant caution was required before Mr Kay’s evidence could be accepted. Those inconsistencies will be identified in the review and analysis of the evidence he gave via videolink from Turkey.

88. As a result of those considerations, I concluded that Mr Kay’s evidence on critical matters of fact in dispute should be seen as being totally unreliable, absent the availability of acceptable objective corroboration.

Mrs Patricia Schneider

89. Mrs Schneider was a reluctant witness. This may have been so because there had been a recent bereavement in her family not long before she gave her evidence. That said, she also appeared to have given her evidence in a pressured manner with some added emphasis in particular places. In my view these matters raised a doubt as to the reliability of her evidence.

90. Mrs Schneider’s evidence gave varying impressions concerning her observations as to having heard the words allegedly uttered by the defendant. At one point, at T60.13 (27 August 2015), she recounted a specific recollection of the words allegedly used by the defendant. This was later re-iterated at T65.2 and at T66.35 (27 August 2015).

91. Later, at T66.45 (27 August 2015), she stated that as a result of shock and disbelief at the time, she had blocked those matters out. In my view, her evidence on the disputed conversations contained exaggerated emphasis which in any view raised a doubt about the reliability of her account, and as to whether or not her account was an incorrect reconstruction.

92. In the result, I was left with doubts about the objectivity and reliability of Mrs Schneider’s evidence because in parts she had loaded her description of the event in question with gratuitous editorial comment by which she expressed her disdain and disapproval of the defendant’s alleged conduct: T60.2 (27 August 2015).

93. That disapproval was reiterated by her (at T60.8 on 27 August 2015) despite being cautioned against making such comments when recounting her evidence on factual matters: T60.4 – T60.6 (27 August 2015). In my assessment, this indicated that her evidence was influenced by an opinion she had formed and that this had interfered with her ability to relate unembellished factual evidence.

94. Furthermore and significantly, at T65.1 (27 August 2015), she claimed to have heard the defendant say “Don’t vote for this man Rabie he’s been in trouble with the law, their (sic) drug dealers, they’ve been in gaol”. That specific statement seemed, at least in parts, to be referrable to the plaintiff rather than to his relatives. As such, it was inconsistent with the account provided by Mahmoud Chehade. It is pertinent to note that those details within the account provided by Mrs Schneider did not form part of the plaintiff’s case against the defendant.

95. A further matter that caused me to doubt the reliability of the evidence of Mrs Schneider was the fact that she was first asked to consider her recollection long after the events had passed. I am not satisfied that her account of the alleged events was reliable.

96. For the foregoing reasons, I considered that Mrs Schneider’s evidence as to what she said she had heard on the day in question should not be taken to be a reliable guide to determining whether or not the defendant had uttered the words of which the plaintiff complains.

Defendant

97. The defendant gave her evidence in a calm matter-of-fact manner that did not raise any obvious questions or doubts as to her credit as a witness. There was nothing in the defendant’s evidence that was inherently improbable. Her evidence therefore stands to be evaluated according to its content alongside the other evidence that was given.

Mr Charles Kavanagh and Mr Alex Cklamovski

98. There were no credit issues arising from the testimony of either Mr Kavanagh or Mr Cklamovski. Their evidence to the effect that they had not heard the defendant utter the alleged defamatory utterances did not necessarily mean that those utterances did not in fact occur. Their evidence does not exclude the possibility that the defendant had made those utterances as claimed in the case for the plaintiff. I considered the evidence of these witnesses to be of neutral significance to the pivotal matter calling for decision.

Mr Mehmet Ali Uluc

99. At the initial hearing on 26 August 2014 there were no issues arising from the sworn interpreting services provided to the court by Mr Uluc concerning his interpretation of the evidence given by Mr Mehmet Ali Kay on that occasion.

100. At the re-opened hearing, on 16 April 2015, the evidence of Mr Uluc revealed a number of matters that would not normally have been exposed to analysis concerning the role of the court interpreter.

101. In that evidence it transpired that Mr Uluc was the interpreter who had been engaged to assist Mr Kay in a pre-hearing conference with the plaintiff’s legal advisers as well as providing interpreting services at the initial hearing.

102. That is a matter of some significance because in accordance with the long established convention, those circumstances should have been disclosed to the court at the time he was sworn as the interpreter. That said, nothing would seem to turn on the probity of the in court translation services that were provided by Mr Uluc at the initial hearing.

103. Mr Uluc had met with the plaintiff and Mrs Rebecca Kay at an Auburn café on the afternoon of 25 August 2014, which was the day before Mr Kay gave his evidence at the initial hearing on 26 August 2014: T 91.97; T91.40; T95.31 (27 August 2015).

104. The stated purpose of that meeting was to go over a document that set out some questions that would be raised with Mr Kay in his evidence that was to be given on the following day: T91.50 – T93.5 (27 August 2015). That meeting took place over the course of between 30 and 60 minutes. Mr Uluc stated that Mr Kay conversed with Ms Rebecca Kay, someone associated with the plaintiff and who happened to have the same surname, for a significant portion of that time and Mr Kay required limited recourse to Mr Uluc’s services as an interpreter on that occasion: T92.20 (27 August 2015).

99. The questions discussed on that occasion were set out on a sheet of paper that had come from the plaintiff and his solicitor: T90.5 – T90.17 (27 August 2015). Those questions, with subsequent answers, appear in Exhibit “J”.

100. Mr Uluc stated that at about 8.00am on the morning of the hearing on 26 August 2014, the plaintiff and his brother had picked him up from his home, drove to Lidcombe Railway Station, and then travelled by train to the City. He said that Mr Kay was present in that group throughout that period: T93.40 (27 August 2015).

101. Mr Uluc was not asked questions about the journey home from the City after he had completed his interpreting services on that day. The relevance of that detail is that when the plaintiff gave evidence at the re-opened hearing he had described a conversation he had with Mr Kay whilst on a train. The effect of that conversation, as recounted by the plaintiff, was that Mr Kay had solicited a payment from him in the sum of $10,000: T129.39 – T130.45 (28 August 2015). This was said to have taken place whilst Mr Uluc was standing nearby. The plaintiff alleged that in those events, Mr Uluc had nudged the plaintiff by way of non-verbal communication when that conversation was taking place.

102. That matter was not explored by counsel for the plaintiff in his cross-examination of Mr Uluc. This raised a potential credit issue concerning the evidence of the plaintiff, namely whether that conversation in which Mr Kay was alleged to have solicited a payment from the plaintiff occurred as was claimed by the plaintiff. This is a matter to which I shall return in considering the evidence of the plaintiff and Ms Alexopoulos, the solicitor who instructed in the plaintiff’s case at the initial hearing in August 2014.

103. It transpires from the evidence of Mr Uluc that there was some ambiguity surrounding the arrangements for securing payment for his interpreting services at the hearing on 26 August 2014. In his evidence he stated that he still remains unpaid in respect of those services.

104. Mr Uluc considered that the plaintiff or his solicitor should pay for the professional interpreting services he had provided on 26 August 2014. In contrast, the plaintiff said he was under the impression those interpreting services had been arranged at the behest of Mr Mehmet Ali Kay himself, for his own benefit. It is not necessary for me to resolve that question other than to say that on a superficial consideration, the plaintiff’s contention seems to involve an unlikely proposition as the party calling such evidence would ordinarily assume responsibility for arranging for an interpreter if that was required.

105. However, that said, the ambiguity concerning who was liable for Mr Uluc’s fees may have arisen because, by reasons of economy, and the absence of his usual solicitor Ms Burrows, who was overseas in Lebanon at the time, it appears that the plaintiff had been personally attending to some of the logistical matters of preparation for the hearing that would normally be undertaken by a solicitor, including witness arrangements and the service of subpoenas.

106. Notwithstanding that Mr Uluc remained unpaid for his interpreting services, I considered that he gave truthful evidence at the resumed hearing. I did not consider that there were any concerns as to the credibility or the reliability of his testimony. I do not consider him to have had a personal agenda for his evidence notwithstanding that his fees for his interpreting services remained unpaid.

Ms Lauren MacDougal

113. Ms MacDougal’s evidence related to her role as a solicitor who was at the time in the employ of Mitry Lawyers, that firm was the plaintiff’s initial legal advisor in the events leading to the filing of the proceedings. Her evidence related only to chronological and factual matters that preceded the litigation.

114. In 2012 – 2013, Ms MacDougal was a solicitor employed by Mr Richard Mitry, the solicitor whom the plaintiff had initially engaged in connection with this matter. Mr Mitry had asked her to carry out some delegated professional tasks in connection with the plaintiff’s claim.

115. Ms MacDougal’s initial involvement occurred about a week after the alleged incident on 8 December 2012: T100.4 (27 August 2015). In the course of her employment, Mr Mitry had asked her to contact a number of persons and to take their witness statements by telephone: T100.18 (27 August 2015).

116. On 14 September 2012, she spoke with a number of persons in that regard. One such person, who identified himself to her as Mr Mehmet Ali Kay (T108.12 on 27 August 2015), provided her with a statement which she compiled by telephone, typing it as she spoke to him: T100.10 – T103.26 (27 August 2015). The process of obtaining the statement of Mr Kay took some 5 – 10 minutes: T111.44; T112.24 (27 August 2015). She also had some involvement in drafting a letter of complaint about the events in question to the Electoral Commission: Exhibit: “E”.

117. In those events, a statement was also obtained from Mr Mayora, who has already been identified at paragraph [30] above. Mr Mayora’s statement was witnessed by the plaintiff, who had also witnessed the statement of Mr Kay: T106.43 (27 August 2015).

118. There were no adverse questions as to the credibility or the reliability of the evidence of Mrs MacDougal.

Ms Christina Alexopoulos

119. At the resumed hearing on 15 May 2015, just before final addresses, in the case in reply, the plaintiff called Ms Christina Alexopoulos, who in August 2014, was the principal of the firm ZB Law, the plaintiff’s solicitors.

120. She did not have personal carriage of the matter and her role was that of supervising the plaintiff’s solicitor, Ms Zali Burrows, who has continued in the matter as the plaintiff’s present solicitor. Ms Alexopoulos was called as a witness in the re-opened hearing in the plaintiff’s case in reply in order to recount a conversation she had with the plaintiff on the day after Mr Kay had given his initial evidence. The content of that conversation was to the effect that in conference, the plaintiff had told her Mr Kay had tried to “hit him up” for a payment of money following Mr Kay’s evidence in the initial phase of the case for the plaintiff.

121. That evidence was called to bolster the plaintiff’s credit concerning his account of Mr Kay having solicited money from him after giving evidence in the plaintiff’s case.

122. Ms Alexopoulos gave her evidence about that conversation some 9 months after the event. She had been instructing counsel for the plaintiff in the initial phase of the trial as Ms Burrows was at that time in Lebanon attending to another matter.

123. Ms Alexopoulos could not recall, but she presumed that she had made a file note of the subject conversation with the plaintiff in which he disclosed Mr Kay’s solicitation for money: T214.15 – T214.19 (15 May 2015). She gave evidence without consulting that file note to refresh her memory of the recounted conversation she had with the plaintiff: T214.21 – T214.23 (15 May 2015).

124. Ms Alexopoulos stated that she had raised the subject matter of that conversation with counsel for the plaintiff: T214.38 – T214.47 (15 May 2015). She also stated that although the subject matter of the recounted conversation raised serious questions, and a possible breach of the criminal law, she did not inform the police or seek ethical advice as to what should be done in the disclosed circumstances: T214.32 – T214.36, T217.34 – T217.36 (15 May 2015).

125. There were no submissions made about the credibility or reliability of the cited evidence of Ms Alexopoulos. The significance of that evidence will be determined after I have undertaken a survey of the various factual accounts within the evidence and before stating my findings on whether or not the words of which the plaintiff complains were in fact uttered by the defendant.

Survey of the various factual accounts

126. The plaintiff was not present on any of the occasions on which the words were allegedly spoken by the defendant. The determination of whether those words were spoken therefore requires a survey and evaluation of the evidence of the other witnesses who were present on the relevant occasions.

127. Central to that question was the evidence of Mr Mahmoud Chehade, Mr Mehmet Ali Kay, and Mrs Schneider, as opposed to the evidence of the defendant.

128. At the initial hearing, Mr Kay was adamant that the defendant had uttered the words of which the plaintiff has complained in these proceedings.

129. In contrast, at the re-opened hearing, and in his statutory declaration, Mr Kay alleged that the plaintiff had encouraged him by coaching, under duress and threats to the wellbeing of his family, to give false evidence on that earlier occasion. That further evidence has therefore raised a credit issue that also concerned the plaintiff, whereas at the initial phase of the hearing there were no such issues.

130. In the paragraphs that follow, I set out my review of the testimony of the respective witnesses as a preface to my findings on the question of whether the defendant had indeed uttered the words in contention.

131. That review proceeds from the premise that the initial evidence of Mr Mehmet Ali Kay, on his own admission, was perjured, and was therefore unreliable unless corroborated by other credible evidence for reasons identified in my analysis of his evidence, which chronologically follows the analysis of the evidence of Mahmoud Chehade and that of Mrs Schneider.

132. The fact of Mr Kay’s admission of perjury cannot be ignored. I have concluded that his admitted perjury must be seen to cast doubt upon his credit as a witness generally.

133. Notwithstanding that conclusion, the plaintiff seeks a finding that Mr Kay’s evidence admitting perjury should itself be disbelieved in favour of an acceptance of the initial evidence given by Mr Kay on 26 August 2014, where that evidence assisted the plaintiff’s case.

134. In the paragraphs that follow, and before attempting a resolution of the conflicting testimony, the various factual accounts are surveyed.

Mr Mahmoud Chehade

135. On 18 December 2012, between 8.00am and 6.00pm, Mahmoud Chehade was present as a volunteer handing out how to vote leaflets for his brother, the plaintiff, outside the polling booth at Bankstown West Public School. During that time he said he had observed the defendant to be handing out how to vote leaflets for her husband.

136. At some time in the afternoon (T35, 26 August 2014), Mr Mahmoud Chehade claimed to have witnessed events which he recounted in his evidence as follows:

“… And then out of nowhere I heard someone say, "You know that guy that just gave you that paper?" So when I heard that I was thinking to myself I'm that guy so I turned around and I seen Tania Mihailuk pointing to the A4 size paper saying, "Don't vote for that guy, his first cousin's a murderer and he's in gaol."

Q. Where was the document you say she was pointing at?

A. It was in the hands of the people, the group of people that I gave it to.

Q. Yes, and was anything else said after that?

A. It continued after that. I said, I approached her while in front of the people and said, "You can't say that, that's not true, that's a lie." And she said, "It is true, I'm telling the truth. If you don't believe me," and when she said that she looked to them and she said, "You can search on Wikipedia on Google if you type in their name you'll see they'll come up as murderers." I told her, "That's a lie, you can't be saying that to people." And then when like, I was there and we were having this conversation and we were talking and the people were there she changed the story and said, "No, his second cousin's a murderer and he's in gaol." So at some stage she said first cousin then she said second cousin. At that point, the people felt like really awkward and they just wanted to leave so they just sort of walked away, like, when they got a chance they just managed to walk away. At that point I said to her, "You can't be saying that to people, that's lies, you're not allowed to be saying that to voters when they come in."

From there she raised her voice and she said, "What's wrong with telling the truth? I'm allowed to tell the truth." She then followed me. So I walked away, I turned around and walked away. She followed me and she said, "I'm allowed to tell the truth." I turned around to her and I said, "If that's the way you're going to act, at the end of the day I'll just speak to the polling people." Then she raised her voice and she said, "I'm allowed to say whatever I want." Then I turned around. At this point there was a gentleman for liberal, his name is Mehmet, he got involved.”

137. Mahmoud Chehade said that he made a verbal challenge to the defendant on what she had said, and he told her that what she had said was a lie: T35.39 (26 August 2014). He said that the defendant later identified herself as “the State MP” and he said that she had told him to shut his mouth: T36.18 – T36.19 (26 August 2014).

138. Mahmoud Chehade stated that after the defendant had been challenged in the way he had described, she changed the tenor of her comment to “No, his second cousin’s a murderer”: T42.15 (26 August 2014). Mahmoud Chehade stated that following his challenge to her, the defendant said “Are you going to call your cousins to come and shoot me or murder me”: T43.12 (26 August 2014).

139. I consider that last quoted statement, in which Mahmoud Chehade claims the defendant had addressed to him, seems to involve an unlikely proposition because at that time, there was no evidence that the defendant knew him to be a relative of the plaintiff. The challenge made by the defendant to the truthfulness of the evidence of Mahmoud Chehade must be evaluated in that light.

140. For the defendant to have uttered those words in that context where Mahmoud Chehade had not identified himself as either a brother or relative of the plaintiff, she would have had to have known of the relationship at that time. There was no evidence to support such a view. A possible alternative construction could be that the reference to “cousins” was meant figuratively rather than literally. However, on the evidence, that also seems to me to be an unlikely explanation.

141. Mahmoud Chehade said that after the alleged conversation, he then telephoned the plaintiff to report to him his account of the conversation he claimed he had with the defendant.

142. Mahmoud Chehade denied he had made up or fabricated the allegations outlined in the evidence cited above: T44.12 (26 August 2014). Those denials must be assessed for reliability when evaluated against the other evidence.

143. It is relevant to observe that all of the steps taken by the plaintiff in the pursuit of these proceedings have been based upon the reliability of the account given by his brother, Mahmoud Chehade.

Mr Mehmet Ali Kay – initial evidence

144. On 8 December 2012, Mr Mehmet Ali Kay was also present outside the Bankstown West Public School polling place. He was handing out how to vote leaflets for the Liberal Party candidate in the council elections.

145. Mr Kay gave his evidence on 26 August 2014 predominantly in English, and in part with the assistance of Mr Mehmet Ali Uluc, the Turkish interpreter. Mr Kay’s initial account of the interchange he had with the defendant outside the polling place on the day in question, at T46.23 – T49.15 (26 August 2014), was as follows:

“… Straight there she is talking to that people, "Don't take the paper from him. His cousin is murderer in the gaol and don't vote these people." I heard exactly what she said. Exactly I heard this I remember this now.

Q. So what happened? You say she said that and what happened next?

A. WITNESS: Then after if you see this boy is, looks very quiet boy all day, that's why I try to talk to him some to coffee time but he doesn't like to talk, you know. But that day is the when she talk like that, he just say something for no he is not my cousin is murderer. He is not gaol. Then after he's getting quiet. But after I get my responsibility is the how come she talk like that, because it's not different matter for the election and he is on goal or not. This is a different matter. This is a election area. I said, "Excuse me, ma'am. You can't talk like that. This is this is how do you know his cousin? Do you know him? Do you do you know him he is in the gaol or not? If the gaol's tell you can't this is not your business." She said, "Do you know who I am?" I said, I don't know who you are. She said, "I am State of MP here." I said, "All right, you can State MP but still you can't talk here like that because this not is the first thing is the rude. It's not election law." She said, "You don't know my power. I can whatever I like I can talk here." I said, "If you have a power, your use your power in the State Parliament, not here because here this is the Council election. You not

A. INTERPRETER: Okay. You are not the person to be elected here.

A. WITNESS: "Yeah, you just coming for help the whatever Labor. You just do this." And after when I talk, after one is the very big bodies guy is coming to behind me. I wasn't know to him too. I and I never ever see him before. He said, "Look, mate, you can't talk to MP like that." Otherwise, because when I talk, I just talk normally. I explain to her, "You can't talk like that you did like this." He said, "Don't open your hands up otherwise I break your fingers." I said, "I can't talk like that because I have to explain to her something because she do something wrong here." He said, "I'm gonna broke your mouth. Wait here after 6 o'clock, I'm gonna broke your leg. I'm gonna broke your mouth." I said, "You can't broke my mouth. You can't broke my face. If you want, come after 6 o'clock. You broke me now but I'm working now." Because I'm staying here all day because I know is my friend is telling me I can stay there 11 o'clock but then after after he is coming to me more, I get him calm down. I said, "Better Mehmet's quiet" because I'm scared because too many people is all the Labor is was more than six, seven, eight people there. Only me and I have one friend is the Liberal together, you know. I just say, I'm going to go better is going to I don't fight with them. I'm going to report the election commissioner is what's happening, what she said to him and what she tell me. I go straightly, I'm gonna go to election rule. I go see the election commissioner, this one is the manage (sic) there. I don't know his name now.”

146. Later at T48.25 – T49.5 (26 August 2014), Mr Kay reiterated that evidence, as follows:

“Q. What had you heard before you spoke to the lady?

A. WITNESS: I heard when the group came she was talking with that group. She said, "Don't take the paper from him. Don't vote these people. His cousin is in the gaol for murdering."

Q. Did she say something about a first cousin?

A. WITNESS: She said cousin but I didn't hear first cousin. Maybe, maybe not. I don't remember but she's I heard the cousin but exactly.

Q. Did she say that his cousin was a murderer once or twice?

A. WITNESS: I think twice.

Q. So what happened that she said it twice?

A. WITNESS: She said exactly I heard "His his first cousin is in gaol and a murderer, don't vote these people."

Q. So now you think she might have said it's the first cousin who was in gaol?

A. WITNESS: I I'm not exactly remember but I heard the cousin exactly but.

Q. You said that she said something about the cousin twice?

A. WITNESS: Yes, it is. I said twice, yeah. Twice the her cousin is gaol, is murderer.

Q. So she repeated what she said, is that what

A. WITNESS: She didn't she didn't repeat. I just heard.

Q. Just so I understand

A. WITNESS: Yes.

Q. You say that this woman said, "His cousin's a murder and in gaol."

A. WITNESS: Yeah.”

147. That evidence must be re-evaluated in light of Mr Kay’s admission that his evidence given on 26 August 2014 was perjured.

Mrs Patricia Schneider

148. On the afternoon of 8 September 2012, Mrs Schneider attended the polling place at the Bankstown West Public School in order to cast her vote in the ballot for the elections. She stated that whilst she was standing in a line waiting to vote there were people handing out how to vote leaflets. She said that one of those persons was the defendant, whom she said she knew. Her evidence in chief on the critical matter at issue concerning the words allegedly uttered by the defendant, at T60.1 – T60.40 (26 August 2014), was as follows:

287. On that premise, and contrary to my stated findings, a finding that the words complained of were said would involve a serious slander, including that of guilt by association, suggesting the plaintiff was unfit for election to local government.

288. Such a slander, if uttered, would also tend to have an adverse effect on the plaintiff’s professional standing as a real estate agent in the area in which he worked, in circumstances where good character and reputation are important assets that can easily be damaged by such a slur and its concomitant imputations getting around in the local community as word spreads along the metaphorical grapevine.

289. In those circumstances, I consider that an award of general compensatory damages in the sum of $75,000 would have been an appropriate award to vindicate injury to reputation if the words complained of had in fact been uttered.

290. Having accepted that the words complained of were not uttered by the defendant, the question of aggravated damages does not arise. The defendant maintained her refusal to apologise on the basis she had not uttered the words attributed to her. That position has been sustained in the ultimate result.

Disposition

292. As the defendant has succeeded on the matters calling for decision, she is entitled to a verdict and judgment in her favour.

Costs

293. It follows that the defendant is entitled to have her costs paid by the plaintiff on the ordinary basis unless a party can show an entitlement to some other order.

Orders

294. I make the following orders:

1. Verdict and judgment for the defendant;

2. The plaintiff is to pay the defendant’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 26 May 2015