Coles Supermarkets Australia Pty Ltd v Clarke
[2013] NSWCA 272
•23 August 2013
Court of Appeal
New South Wales
Case Title: Coles Supermarkets Australia Pty Ltd v Clarke Medium Neutral Citation: [2013] NSWCA 272 Hearing Date(s): 4 June 2013 Decision Date: 23 August 2013 Before: Gleeson JA at [1]; Sackville AJA at [2]; Simpson J at [14] Decision: Application dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: DEFAMATION - slander - claim supermarket manager publicly accused plaintiff of stealing prawns - whether primary judge erred in finding that the defamatory words had been published - whether primary judge erred in assessment of reliability of plaintiff's case - whether primary judge erred by failing to take into account contrary inferences to be drawn from documentary evidence - consideration of degree of tolerance allowed in departure in words proved from words pleaded - Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 - plaintiff's evidence provided sufficient acceptance of a material and defamatory part of the words alleged - factual conclusions of primary judge not "glaringly improbable" or "contrary to compelling inferences" - Fox v Percy [2003] HCA 22 - leave to appeal refused
DAMAGES - quantum - compensatory and aggravated - no issue of principle - leave to appeal refusedLegislation Cited: Defamation Act 2005 Cases Cited: Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472
Fox v Percy [2003] HCA 22; 214 CLR 118
State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; 73 ALJR 306
Tournier v National Provincial and Union Bank of England [1924] 1 KB 461Category: Principal judgment Parties: Coles Supermarkets Australia Pty Ltd (Applicant)
Philip Clarke (Respondent)Representation - Counsel: Counsel:
R Weaver (Applicant)
C A Evatt/ R K Rasmussen (Respondent)- Solicitors: Solicitors:
McCulloch & Buggy Lawyers (Applicant)
Beazley Singleton Lawyers (Respondent)File Number(s): 2012/266856 Decision Under Appeal - Court / Tribunal: District Court - Before: Levy DCJ - Date of Decision: 31 July 2012 - Citation: Clarke v Coles Supermarkets Australia Pty Limited [2012] NSWDC 107 - Court File Number(s): 2010/296700
JUDGMENT
GLEESON JA: I agree with Simpson J.
SACKVILLE AJA: I agree with the orders proposed by Simpson J. I prefer, however, to rest my decision on the ground that, despite unconvincing aspects of the primary Judge's reasoning, I am not persuaded that his finding that Mr Tatosian spoke the words complained of by the respondent was against the weight of the evidence.
As Simpson J indicates (at [83]) some of his Honour's reasons for rejecting the evidence of the appellant's witnesses lack cogency. Simpson J has given an example, but there are others.
The primary Judge rejected the evidence of Ms Sternbeck on contested factual issues partly because she was short-sighted and because she could not recall "all" the relevant events (at [108]). Why either of these matters cast doubt on her reliability on the critical issues in dispute was not explained.
Similarly, the fact that Ms Sternbeck was "horrified" by the respondent's actions in screaming at the top of his voice might be thought to make it more likely that she could recall reasonably accurately what she described as the respondent's "tantrum". The primary Judge disagreed, concluding that Ms Sternbeck's reaction at the time coloured her recollection (at [152]). Yet his Honour was quite prepared to give little weight to the possibility that the respondent's account had been coloured by his agitation at the time of his confrontation with Mr Tatosian (at [177]). Indeed, his Honour considered that it was likely that such an "emotionally charged event", since it was a "one-off traumatic event in [the respondent's] life" was likely to have been accurately impressed on his memory (at [177]).
The primary Judge acknowledged that Mr Naidu and Ms Elward had both given evidence that the respondent had touched Mr Tatosian several times with his (the respondent's) walking stick. However, his Honour rejected this evidence because Mr Tatosian had not mentioned the walking stick in his written statement. Having rejected the evidence of Mr Naidu and Ms Elward on the walking stick issue, his Honour used this as a basis for characterising their account of the significant events as an inaccurate reconstruction (at [169]).
Mr Tatosian's statement was not included in the Application Book. The transcript of Mr Tatosian's cross-examination suggests that his statement may have included a reference to the respondent touching him with his (the respondent's) walking stick. But even if there was no such reference in the statement, it is not clear why Mr Tatosian's omission should undercut the evidence of Mr Naidu and Ms Elward, insofar as it was based on their own observations. Particularly is this so when Mr Tatosian steadfastly maintained in his cross-examination that the respondent had indeed placed the walking stick against his chest.
Notwithstanding these and other difficulties with the primary Judge's reasoning, I think the evidence as a whole is consistent with his findings that Mr Tatosian, in substance, spoke the words attributed to him by the respondent. For the reasons given by Simpson J, Mr Tatosian's own evidence came very close to admitting that he had used the substance of the words alleged in the Further Amended Statement of Claim.
Mr Tatosian did, however, resist the suggestion in cross-examination that he had accused the respondent of stealing prawns. Mr Tatosian acknowledged that he might have said words to the effect of:
You ate the rest of the prawns in my store and that is stealing.
However, immediately after giving this answer, Mr Tatosian said that his agreement with the cross-examiner was limited to the first part of the answer.
In determining whether to accept the respondent's version of what was said, the primary Judge was entitled to take into account the evidence of the appellant's witnesses that provide some support for the respondent's version. Mr Wilson, for example, accepted that, although he could not remember precisely what was said, the interchange between Mr Tatosian and the respondent concerned "possible stealing" of prawns by the respondent. This evidence suggests that at some stage Mr Tatosian did accuse the respondent of stealing prawns.
Mr Naidu accepted that the respondent had said words to the effect of "how dare you accuse me of stealing prawns". He also accepted that the respondent appeared to believe that he was being accused of stealing and that he denied stealing the "whole time". This evidence also lends weight to the respondent's claim that Mr Tatosian said words to the effect of "You are stealing prawns" in the course of their confrontation.
It is true that the other witnesses called by the appellant said that they did not hear Mr Tatosian directly accuse the respondent of stealing. But none appears to have been present throughout the confrontation and thus none was in a position to deny that the words complained of had ever been used by Mr Tatosian in the course of that confrontation.
It is for these reasons that I agree with the orders proposed by Simpson J.
SIMPSON J: This is an application for leave to appeal, and, if leave is granted, an appeal against the decision of Levy DCJ given on 31 July 2012. The proceedings in the District Court were commenced by Statement of Claim filed on 6 September 2010. The respondent (the plaintiff) pleaded causes of action in defamation, injurious falsehood, assault and battery, "harassment", "intimidation" and false imprisonment, and claimed compensatory damages, aggravated damages, and exemplary damages. An Amended Statement of Claim filed on 18 August 2011 was followed by a Further Amended Statement of Claim filed on 19 August 2011. This was the operative initiating process. The causes of action originally pleaded remained. The claim in defamation was of words spoken orally, that is, slander.
The applicant (the defendant) filed a Defence on 11 January 2011. It denied the facts pleaded as giving rise to each cause of action; relevantly for the purposes of the present application, it expressly denied publication of the words pleaded as having defamed the respondent. By way of defence to the defamation claim, it relied upon qualified privilege, both at common law and under s 30 of the Defamation Act 2005.
At the outset of the hearing in the District Court, which commenced on 21 February 2012, the applicant sought leave to file an Amended Defence, which maintained the defences already pleaded and added, in respect of the defamation claim, a defence of justification (Defamation Act, s 25). The primary judge refused leave to the applicant to rely upon the additional defence. No challenge is made in the present proceedings to that decision.
The primary judge delivered judgment on 31 July 2012. He rejected all claims except that in defamation, in respect of which he found in favour of the respondent. Specifically, he accepted that the words alleged to have been published by the applicant (through one of its employees) had been published. He rejected the defences of qualified privilege. He accordingly entered a verdict for the respondent, and awarded damages totalling $52,900, made up of $40,000 as "general compensatory damage", $10,000 by way of aggravated damages, and interest of $2900.
The grounds of appeal upon which the applicant seeks to rely are limited, challenging, essentially, the conclusion that the defamatory words had been published, the quantum of the general damages awarded, and the award of aggravated damages. Notwithstanding the relatively narrow ambit of the proposed appeal, and because the liability grounds are as to fact, a canvas of the evidence given in the trial has been undertaken by both parties. That evidence was itself, perhaps, more extensive by reason of the additional causes of action pleaded, although they ultimately failed and are no longer in issue.
Background
The claims arise out of an incident that took place in the applicant's supermarket at Lane Cove on 4 September 2009 between midday and 1.00pm. The respondent was then a 46 year old man, with some disability, as a result of which he used a walking stick. He was a regular customer in the supermarket, and was known, by sight, to some of the applicant's employees. It was his practice, in the fresh food section, to "sample" the fruit and goods on offer. This was known to some of the applicant's staff.
On 4 September 2009, prior to the incident in question, he obtained from the delicatessen counter 500g of green prawns, which were weighed, wrapped, and barcoded for presentation at the checkout. He remained in the store, obtaining other items for purchase, which he placed in a trolley. The incident then occurred, during which (to put it neutrally) the respondent was challenged by supermarket staff concerning the prawns. It was the respondent's case that it was during the course of this incident that the defamatory words were spoken by an employee of the applicant (Mr Tatosian). The incident escalated to the point that police became involved.
So much is uncontroversial. But that is about as far as the uncontentious evidence goes. Different accounts were given in the evidence of what next occurred. I will return shortly to deal with the evidence.
The Further Amended Statement of Claim
Paragraph 3 of the Further Amended Statement of Claim ("FASoC") pleads as follows:
"3 At the said times the store manager who became known to the Plaintiff as Mr Shant said of and concerning the Plaintiff the following words or their substance and effect:-
'You have been stealing prawns. You have been hiding the wrapper.'
'Open your leather jacket and let's see what's inside.'
'You have stolen green prawns. You were seen to take the wrapper off. Now open your pockets.'
'Where are the prawns?'
'I want you to open your pockets and show me those prawns.'
'We will not let you leave until we have seen inside your jacket and find those prawns.'
'I will keep you here until I see those prawns.'
'You ate the rest of those prawns in my store and that is stealing.'
'You are not free to go until you admit that you have stolen from Coles.'
'Empty your pockets.'."
In paragraph 4 it was pleaded that the words "or their effect or substance" were defamatory of the plaintiff. In paragraph 5 it was pleaded that the words "or their effect or their substance" conveyed, in their natural and ordinary meaning, the following imputations:
(a)The plaintiff is a thief.
(b)The plaintiff stole prawns from the supermarket.
(c)The plaintiff hid the wrapper in order to conceal the prawns he stole.
(d)The plaintiff hid prawns which he had stolen from the supermarket in his jacket pockets.
(e)The plaintiff ate prawns in the supermarket so that he would not have to pay for them.
The principal issue of substance in the trial, so far as the claim in defamation was concerned, was whether the words alleged in paragraph 3 of the FASoC, or words to the same substance and effect, had been spoken by the applicant's employee, who the respondent identified as "Mr Shant". If the words were spoken, there was no issue that they conveyed at least some of the imputations pleaded. There was no issue that, if all or any of those imputations were conveyed, they were defamatory.
Since the substance of the proposed appeal is a challenge to the primary judge's finding of fact that the words were spoken, it is necessary to recount the evidence concerning the factual circumstances of the incident.
The evidence in the respondent's case
The respondent and one other witness (Mr Graeme Chapman) gave evidence in his case. The respondent's evidence was that, having entered the supermarket, he obtained 500g of wrapped green prawns from the delicatessen counter, where he was served by a shop assistant he knew from previous occasions and who he believed was called "Shurly" (the respondent's spelling). The prawns were placed in a plastic bag, and then wrapped in white paper with a sticker denoting the price, and giving a barcode for reading at the checkout. The respondent put the prawns in a shopping trolley, and moved on to obtain other items. While doing this, it occurred to him that the quantity of prawns he had was insufficient for the number to be catered for at a fathers' day function planned for the following day. He unwrapped the packet to inspect "the actual substance of the prawns", and concluded that he should have another 500g. He returned to the delicatessen counter and spoke to "Shurly". He apologised, said that he needed more prawns, and asked "Shurly" to "top up" the plastic bag that he had. "Shurly" asked him to wait until she finished serving another customer.
While he waited, the store manager, Mr Shant Tatosian, confronted him "coming at me like a pit bull ...". He gave the following account of what Mr Tatosian said to him:
"You've been stealing prawns and you've been hiding the wrapper of those prawns ... I want to see inside your pockets inside your jacket ... Open your pockets, I want to see those prawns ... You've been stealing prawns. You've hidden the wrapper, now open your pockets. Show - let me see inside your coat ... where are the prawns ... You will not be allowed to leave here until you admit that you've been stealing prawns from my store ..."
The respondent said that he tried to tell Mr Tatosian that the prawns were on the counter behind him but that Mr Tatosian ignored what he tried to say "because he was on a mission". He said that Mr Tatosian:
"... had three things he repeated like a mantra, 'open your pockets, you've been stealing prawns. You've been hiding the wrapper', and, 'You're going to have to admit to it or we will keep you here'."
He said that Mr Tatosian then said:
"Well if they're not in your pocket you must have eaten them and that's the same as stealing. So you've eate[n] these raw prawns."
He said that by this time he was being surrounded by more and more staff, at least 15 of whom were present. He said that there were other persons within hearing distance, at least 30 shoppers. They were talking among themselves and "tut-tutting". He heard some of them say:
"I don't know what's happening. I think he stole some prawns."
The respondent said that he was:
"... under siege by the ring of Coles people and then the ring of onlookers and shoppers and people who are my neighbours."
He said that he held out his coat and he put its entire contents on the ground in front of him, at which point Mr Tatosian realised that he did not have the prawns. Mr Tatosian then accused him of having eaten the prawns. He said that he told Mr Tatosian that the prawns were "over there", meaning at the delicatessen counter. He said that he did not eat prawns unless they were cooked, and bit into a prawn and said:
"The reason is they taste disgusting so how could I possibly have eaten your prawns in your store."
The account of the incident given by the respondent in evidence was substantially in accordance with the factual matters pleaded in the FASoC. This includes the words relevant to the cause of action in defamation as pleaded in paragraph 3.
The respondent said that the incident upset him:
"To the point of terrible disillusionment, depression, feeling that this was the way Sydney had become now",
that he was frightened, that he was "completely imprisoned in their circle" and "very intimidated". He gave evidence of the continuing effect on him and his capacity to work as an artist.
In re-examination, the respondent gave evidence that on his return home, he made a "25 point document". The handwritten document, which runs to 38 paragraphs over 11 pages, was admitted into evidence as Ex C. It is written in the third person, and records his version of the events (and much more). It was admitted as a prior consistent statement to rebut "a contrary version of events" put to the respondent in cross-examination. Counsel for the applicant was not permitted to cross-examine on it.
The account given in Ex C corroborates, in some material respects, the account given by the respondent in evidence. (However, the primary judge did not treat the statement as a factual account of the incident, but rather as a "dramatisation in the form of a short story", which was entitled "The Coles (Lane Cove) Case (I Never Got the Prawns)".)
To some extent, the respondent's evidence was corroborated by another customer who happened to be in the store, Mr Graeme Chapman. Mr Chapman said:
"I noticed a gentleman trying to get some more prawns at the cooling cabinet, display cabinet, and he undid the paper and the packet and asked for more prawns."
He then gave an account of having become aware of an incident and of volunteering his own skills in the customer service industry to defuse what he perceived to be an escalating situation, involving a loud altercation between the respondent and store employees.
Mr Chapman's evidence specifically corroborated the respondent's account (which might otherwise have seemed unlikely) that, on deciding that he needed more than 500g of prawns, rather than obtain a second package, he opened the one he had and asked for it to be topped up.
What is important about Mr Chapman's evidence, however, is what he did not say. He did not give any evidence of words spoken by Mr Tatosian to the respondent. That means that the respondent's evidence in that important respect was entirely uncorroborated in his case.
The evidence in the applicant's case
Evidence in the applicant's case was given by six witnesses, all employees. The first and most important was the store manager, Mr Tatosian. His account of the incident was very different from that given by the respondent. Mr Tatosian said that he was working in his office when he was alerted by the fresh produce manager (Mr Naval Naidu) that two customers had complained about the behaviour, in the fresh food section, of another customer. He immediately went with Mr Naidu to that section, but found nothing untoward. They then went to the freezer section, where they saw the respondent, with a shopping trolley. He was alone. Mr Tatosian said:
"... he was by himself with the trolley and then I've seen that he is consuming something and obviously dropping bits on the floor and then in the middle of the aisle stopped to open one of the freezer doors and placed a bag of something in the freezer. Then once he left we went down and opened the door [of the freezer] and I found there was a bag of wrapped prawns with a deli ticket on it that was ripped. There was a few shells in that bag with half eaten and half untouched. I have picked the bag up and went ... some of the prawns were obviously eaten, consumed and the shells were still in the bag and some of them were still in the bag. So it wasn't all eaten, it was some eaten and we picked those shells off the floor as well." [AB 188]
Mr Tatosian said that he then approached the respondent near the delicatessen counter near the seafood section, greeted him, and said:
"Hello sir, have you forgotten those prawns." [AB 188]
At the time he said this he had the bag he had retrieved from the freezer in his hand. He said that the respondent replied by saying that they were not his, to which Mr Tatosian said:
"Sir, I've seen you putting those prawns in the freezer."
He said that the respondent then began "yelling and screaming and shouting" at him, saying:
"You are accusing me, I am not a thief."
and making other abusive remarks directed at Mr Tatosian personally, calling him a "little man", and asking where he had come from, whether he was born in Australia, and how much he was paid.
Counsel for the applicant then put to Mr Tatosian a series of questions, drawn from the allegations in paragraph 3 of the FASoC. The transcript records the following:
"Q. Did you say to Mr Clarke at any stage, 'You have been stealing prawns'?
A. No.Q. Did you say to him words to the affect [sic], 'You have been hiding the wrapper'?
A. No.Q. Did you say something about the fact that you'd found the wrapper and he'd hidden it?
A. No.Q. Did you say to him, 'Open your leather jacket and let's see what is inside'?
A. No.Q. Did you say, 'You have stolen green prawns, you were seen to take the wrapper off, now open your pockets'?
A. No.Q. Did you say, 'Where are the prawns'? to him?
A. No.Q. Did you say, 'I want you to open your pockets and show me those prawns'?
A. No.Q. Did you say, 'We will not let you leave until we've [looked] inside your jacket and find those prawns'?
A. No.Q. Did you say to him, 'I will keep you hear [sic] until I see those prawns'?
A. No.Q. Did you say to him words to the effect or the actual words 'You ate the rest of those prawns in my store and that is stealing'?
A. I might of.Q. When you say you might of would you have said part of those words and if so which part?
A. What I've said - I said, 'I've seen you eating those prawns'.Q. At that time did you say anything to him about what you've told his Honour about finding something in the freezer?
A. Just I go back my first statement, I've said I found those - 'those prawns you left in the freezer door', they were in my hand at the same time I was having a conversation with him, so there was no reason I ask him to take the jacket off or any of that." [AB 190-191]Mr Tatosian said that the respondent tapped him on the chest with his walking stick. He denied being aggressive towards the respondent, but said that the respondent maintained his aggressive conduct. He said that around five staff members would have been with him at any one time.
In cross-examination, Mr Tatosian denied having accused, at any stage, the respondent of stealing. He was asked if he seriously suggested that the respondent ate or consumed raw prawns, and he said that he had seen the respondent doing that.
The transcript records the following cross-examination:
"Q. Well was it really necessary for you and the other staff to interview him or whatever you were doing for 15 to 20 minutes?
A. As I said, when I approached Mr Clarke I've provided service. I agreed with him and I told Mr Clarke, 'Have you forgotten those prawns?', and that was my initial conduct [sic - ? contact] with Mr Clarke ...Q. But you accused him of wrongdoing didn't you?
A. I didn't accuse him.Q. Well you said, 'You're eating prawns or shouldn't have done it', or something?
A. I've seen him, 'Sir, I've seen you eating those prawns', that's what I've said. I didn't accuse him with stealing. I didn't accuse him or [sic - ? of] anything.Q. Well then why even speak to him, if he's done [sic - ? nothing] why bother to speak to him?
A. Why? Because he's left - he left those prawns in the freezer and they were half eater (sic)." [AB 202]The primary judge then asked the following question:
"Q. But if [he] had consumed some prawns from a packet for which he had not yet paid, then inevitably that would have given rise to the prospect of he would walk out of the store without paying for some of the produce that he had consumed, which of course would be wrong, wouldn't it?" [AB 203]
With this Mr Tatosian agreed. The primary judge then asked if he had confronted the respondent with that proposition. Mr Tatosian said:
"Well that's - when I picked up those prawns and went there, I said, 'Look, sir I've seen you eating those prawns', but I didn't say, 'You stolen those prawns', cause at that time he was still in the shop and I did ask him kindly to take those prawns and pay for them." [AB 203]
This was followed by the evidence (in cross-examination):
"Q. Did you say to him, 'Sir, have you forgotten to pay for the prawns'?
A. Yes.Q. When did you say that?
A. After the initial conversation. 'Have you forgotten your prawns?'Q. No, 'Have you forgotten to pay for the prawns'?
A. That was after obviously we had a couple of conversations.Q. What did you mean by that? That must mean some wrongdoing, criminal offence, not paying for prawns.
A. Well yes, if you go to the shopping centre and purchase something or take something and don't pay for it obviously we have theft.Q. Did you say to him, 'I saw you hide the wrapper'?
A. Yes.Q. This is suspicious criminal conduct, isn't it? Eating prawns, failing to pay for them, hiding wrappers?
A. Yes.Q. Well, is that not accusing him of stealing, of being a thief?
A. No, I didn't accuse him....
Q. No, but you said in effect, 'You have eaten the prawns and you haven't paid for them' you said that?
A. Yes, I said that." [AB 203-4]The evidence disclosed that on 29 October 2010, after the commencement of the proceedings, Mr Tatosian made a statement concerning the incident. Eventually, after argument, the statement was made available to counsel for the respondent, and was subject to detailed cross-examination. The statement was marked for identification (MFI 4) but was not admitted into evidence (although much of its content found its way into evidence via the cross-examination).
Mr Tatosian agreed that in his statement he had said that the respondent opened the front door of the delicatessen counter window, took "a bunch of raw prawns", and bit on one or two, spat some on Mr Tatosian, and threw the remainder on the floor.
Other employees of the applicant who gave evidence were Venkata Sanjay Velaga, a member of the delicatessen staff, Cherryl Sternbeck (who, it was common ground, was the person the respondent referred to as "Shurly", who had served him at the delicatessen counter); Katrina Elward, who was, at the time, the store support manager and second in charge to Mr Tatosian; Dallas Wilson (who seems to have had a similar position to Ms Elward); and Naval Naidu (the fresh produce manager who had contacted Mr Tatosian and accompanied him on his investigation).
Ms Elward recalled serving the respondent with the 500g of raw prawns that he had obtained. (In cross-examination she denied that he had returned later, asking for more prawns.) She said (AB 241) that "seconds after", Mr Tatosian and Ms Elward approached the respondent, and told him that they had been watching him walking around the store sampling the produce. This caused the respondent to lose his temper and throw the prawns at Mr Tatosian's feet. The respondent began to swear and scream at Mr Tatosian. Mr Elward said that she was then called away to serve another customer but continued, every few seconds, to observe what was happening. She did not hear Mr Tatosian raise his voice in response to the respondent. She said that after police had attended and spoken to her, the respondent "ran up to the deli", asked her if she had seen what Mr Tatosian had done, and told her that she was his witness.
In cross-examination she said that she could not recall Mr Tatosian using the word "stealing", and could not recall him saying "you've been hiding the wrapper". She did not deny that these things were said.
Two things may be observed about Ms Sternbeck's evidence. First, her account of the events is quite incompatible with the accounts given by both the respondent and by Mr Tatosian. Second, her evidence does not directly advance the case with respect to any words used by Mr Tatosian.
Katrina Elward's evidence was that she was with Mr Tatosian in his office when Mr Naidu entered to tell Mr Tatosian of the complaints about the customer's behaviour in the fresh produce section. She followed Mr Tatosian upstairs shortly after he left with Mr Naidu.
She overheard the conversation between the respondent and Mr Tatosian but did not remember the words used. She remembered Mr Tatosian trying to speak to the respondent, and the respondent becoming "quite angry and aggressive and louder as he spoke". He was waving his walking stick quite threateningly. She observed the scene for a couple of minutes and then left. She did not observe any customers in the vicinity, or walking past. She said the respondent tapped Mr Tatosian on the chest a few times with his walking stick, in an aggressive manner.
She was specifically asked, in chief, if she had heard Mr Tatosian say to the respondent:
"You've been stealing prawns."
"You've been hiding the wrapper."
"Open your leather jacket and let's see what's inside."
"You have stolen green prawns. You were seen to take the wrapper off now open your pockets."
"Where are the prawns?"
"I want you to open your pockets and show me those prawns."
"I will keep you here until I see those prawns."
"You ate the rest of those prawns in my store and that is stealing."
"You are not free to go until you admit that you have stolen from Coles."
"Empty your pockets." [AB 262-263]
(These were all drawn directly from paragraph 3 of the FASoC.)
Each of these questions she answered in the negative - that is, she denied having heard the questions or propositions put to the respondent. That is not a denial that all or any of those things were said. Although her evidence was that she was present, and overheard the conversation, her lack of recall means that her answers that she did not hear any of the sentences alleged could not be used to found an inference that they were not said.
Only once was Ms Elward asked whether Mr Tatosian had actually said something. That was:
"We will not let you leave until we have seen inside your jacket and find those prawns."
She denied that Mr Tatosian had used those words.
She denied that there could have been 12 or 15 staff present witnessing the events, saying that there were usually not that number of employees in the store at that time [AB 266]. She agreed that Mr Tatosian had asked the respondent if he had forgotten to pay for his purchase [AB 271].
Eventually police were called, and attended at about 1.30pm. The respondent was still present. An official police report (Ex E) records:
"On the above time and date police were called to the Lane Cove Coles. Upon arrival police were met by the Person Named [the respondent]. The PN became aggressive with police right from the start, stateing [sic] that he would be seeing us all in court.
The PN stated that the staff member [sic] were accusing him of stealing green prawns. Police tried to calm the PN down as he appeared to be becoming very agitated.
Police spoke to the MGR of Coles who stated that the PN was making a scene about some prawns. The MGR did not care about the prawns he just wanted the male out of the store as he was makeing [sic] a scene and frightening other shoppers.
Police asked the male [the respondent] to leave the store to which he refused. Police then issude [sic] the male with an official move on to which he then complied.
The MGR was happy with this out come [sic] and wished no further police action in relation to the prawns.
Once the male was outside he started to calm down and was happy to leave."
The evidence of Mr Velaga, Mr Wilson and Mr Naidu does not advance the issues relevant to the proposed appeal.
The judgment of 31 July 2012
Put shortly, the primary judge accepted that Mr Tatosian had spoken the words complained of by the respondent, and that these conveyed the defamatory imputations pleaded. In reaching this conclusion, he did not rely on Ex C, which he described as:
"... a stream of consciousness purging of the plaintiff's thoughts on the unpleasantness of the events, written in emotive terms, probably as a therapeutic exercise and no more."
The primary judge rejected the evidence of all of the applicant's witnesses. He did this even though he considered that all witnesses had done their best to recount the events to the best of their abilities. He said:
"150 In my view it is sufficient to analyse the evidence of the individual witnesses for reliability without having to speculate on how that body of evidence came to be in conflict with the plaintiff. In my view the evidence of the individual witnesses stands to be assessed for reliability individually rather than having to be resolved as a body of evidence, especially as there were elements of internal conflict within the evidence of the defendant's witnesses."
The primary judge gave detailed reasons for rejecting the evidence of each of the applicant's witnesses. His reasons may be summarised as follows.
Mr Tatosian
The primary judge expressed doubt about Mr Tatosian's reliability as a witness. He gave as one reason a "differential description" given by Mr Tatosian of the part of the incident at the delicatessen counter, when (Mr Tatosian said in his evidence) the respondent took prawns from the counter, bit on "one or two" before spitting them out and throwing the remainder on the floor. Later in evidence he said that the respondent bit on one prawn and spat it out.
The primary judge also found that Mr Tatosian's evidence was based on "hearsay and reconstruction, rather than direct observations". He relied on the absence, in Mr Tatosian's original statement, of any mention of the offensive personal remarks and questions that, in his evidence, he attributed to the respondent. He relied on evidence given by Mr Tatosian that he had not on the day spoken to police, and contrasted that with the police report that they had spoken to the "MGR". He made no mention of Mr Tatosian's explanation that, while he was the store manager, there were also departmental managers.
Ms Sternbeck
The primary judge discounted the evidence of Ms Sternbeck, in part because she had described the respondent as having run to the delicatessen counter, where the evidence showed the respondent had a disability and used a walking cane.
Four further factors adverse to Ms Sternbeck's credit were:
that she is short-sighted, and was not wearing glasses at the time [although Ms Sternbeck said that she was short-sighted, she also said that she used her glasses for reading];
that, because she was attending to customers, she was not paying particular attention "to the unfolding events in their entirety";
that she did not recall all of the events; and
that she said that she was "horrified" at what had happened.
He concluded that she had given a "reconstructed" account rather than an accurate recollection based on her observations made at the time. Later, his Honour took a sterner view, and said that Ms Sternbeck's evidence should be "viewed with considerable caution". He considered that she had given an "exaggerated account of events", and again cited her description of the respondent running to the counter. He expressly rejected her evidence that the respondent had been swearing.
Ms Elward
The primary judge also rejected Ms Elward's evidence "on critical matters" as being "to an extent coloured by" hearsay and assumptions about the respondent, and because she had been present for only a relatively brief part of the incident.
Mr Wilson
The primary judge considered that Mr Wilson's evidence was at times conflicting (for example, as to whether the respondent had hit Mr Tatosian with his walking stick); he therefore concluded that Mr Wilson's evidence was based on "speculative assumption, rather than direct observation".
He also noted that Mr Wilson's evidence was elicited by leading questions, as a result of which only very limited weight could be attached to it.
Mr Naidu
The primary judge rejected Mr Naidu's version of events, in part because he considered that Mr Naidu had demonstrated a "negative attitude" to the respondent, based on his disapproval of the respondent's practice of "sampling" the produce and goods on display in the store. He concluded the Mr Naidu was "negatively disposed" towards the respondent.
Respondent/Mr Tatosian
The principal witnesses were the respondent and Mr Tatosian. Their evidence was in conflict in significant respects. Accordingly, the primary judge considered it appropriate to set their accounts side by side. In respect of Mr Tatosian, he expressly disclaimed any reliance on demeanour.
He noted that the respondent "expressed himself with a degree of flair and eccentricity" and at times "express[ed] an attitude of affront at some of the propositions that were put to him in cross-examination". He disregarded those "matters of demeanour".
He preferred the evidence of the respondent to that of Mr Tatosian, repeating that Mr Tatosian's evidence was the result of reconstruction.
He accepted that the respondent had been, at the time, emotionally upset, but discounted any adverse effect on his credibility or reliability, considering that to have been consistent with the events being deeply impressed in the respondent's mind.
The application
The grounds upon which the applicant seeks leave to appeal are:
"1. His Honour erred in finding that the words set out in paragraph 3 of the [FASoC] (the matter complained of) were published by the appellant's employee, Shant Tatosian when, on the overwhelming weight of evidence, such a finding was 'glaringly improbable' and 'contrary to compelling inferences'.
2. His Honour erred in holding ... that the evidence of the individual witnesses stood to be assessed for reliability individually rather than having to be resolved as a body of evidence.
3. His Honour erred in failing to take into account, adequately or at all, the contrary inferences to be drawn from the contents of the respondent's document, Exhibit C and the police report Exhibit E.
Damages
4. His Honour erred in awarding excessive general damages of $40,000.00 to the respondent.5. His Honour erred in awarding aggravated damages to the respondent."
Grounds 1 to 3 are directed to liability. Grounds 1 and 3, in different ways, challenge the findings of fact made by the primary judge. Ground 2 challenges the approach taken by him to the assessment of the reliability of the applicant's case as a whole, as set out in [150] of the judgment (see [61] above).
In considering these grounds, it is necessary to bear in mind the broader base of the proceedings before the primary judge, involving, as they did, allegations of assault, injurious falsehood, intimidation, harassment and wrongful imprisonment. The findings of fact with which this application is concerned are only those relevant to the allegations of defamatory words attributed to Mr Tatosian. Of course, adverse credibility or reliability findings, in respect of factual matters relevant to others of the causes of action pleaded may bear, and bear significantly, upon whether the words pleaded (or words to similar substance and effect) were spoken by Mr Tatosian.
In both written and oral submissions, counsel for the applicant accepted that, in order to disturb the clear findings of fact made by the primary judge, he must establish that the conclusions drawn are "glaringly improbable" or "contrary to compelling inferences": Fox v Percy [2003] HCA 22; 214 CLR 118. See also State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; 73 ALJR 306; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472.
In support of his contention, counsel drew attention to Ex C (the respondent's account made in third person form on the evening of the incident), which counsel described as "florid, rambling and at times incoherent" and of containing accusations and descriptions not raised in oral evidence.
That basis for attack should be rejected. Although when the document was admitted into evidence it was said to have been admitted as a prior consistent statement, the primary judge made it clear, in his judgment, that he did not rely on its contents as a factual account of the events. He did not rely on its corroborative potential.
Further, counsel asserted that the respondent's answers under cross-examination were at times "extravagant" and "aggressive and, therefore, [gave] the lie to the respondent's truthfulness". I would not accept this. A truly wronged person might react extravagantly and aggressively to false accusations.
Finally, counsel relied upon the agitated state of the respondent, as described in the police report, as consistent with the applicant's employees versions of events. Again, I would reject this, for the same reasons as I have just given - that is, if the events occurred as the respondent maintains, he may well have been (legitimately) agitated. That he was agitated is not inconsistent with his own version.
I do, however, accept that there are unconvincing aspects of the primary judge's reasoning process. One instance will suffice - the contrasting of Mr Tatosian's statement that the respondent bit into "one or two" prawns against his evidence that he bit into one prawn.
Resolution
When the whole of the evidence, including that of Mr Tatosian, is considered, a preliminary issue arises. That is, whether the answers given by Mr Tatosian in cross-examination are sufficient to amount to a concession that the words (or some of them) pleaded in paragraph 3 of the FASoC were spoken, and were sufficient to convey the pleaded imputations.
At the outset of the hearing of this application that question was raised by the Court. The relevant evidence was the following:
"Q. Did you say to him words to the effect or the actual words, 'You ate the rest of those prawns in my store and that is stealing'?
A. I might of....
A. What I said - I said, 'I've seen you eating those prawns'.
...
A. ... I said I found those - 'those prawns you left in the freezer door', they were in my hand at the same time I was having a conversation with him ... [AB 190-191]
... I told Mr Clarke, 'have you forgotten those prawns?' ...
...
Q. But you accused him of wrongdoing, didn't you?
A. I didn't accuse him.Q. Well you said, 'You're eating prawns or you shouldn't have done it', or something?
A. I've seen him, 'Sir, I've seen you eating those prawns', that's what I've said. I didn't accuse him with stealing. I didn't accuse him or [? of] anything.
Q. Well then why even speak to him, if he's done why bother to speak to him?
A. Why? Because he's left - he left those prawns in the freezer and they were half eater (sic). [AB 202XX]...
... When I picked up those prawns and went there, I said, 'Look, sir I've seen you eating those prawns', but I didn't say, 'You stolen [sic] those prawns', because at that time he was still in the shop and I did ask him kindly to take those prawns and pay for them.
Q. Did you say to him, 'Sir, have you forgotten to pay for the prawns'?
A. Yes.Q. When did you say that?
A. After the initial conversation. 'Have you forgotten your prawns?'Q. What did you mean by that. That must mean some wrongdoing, criminal offence, not paying for prawns.
A. Well yes, if you go to the shopping centre and purchase something or take something and don't pay for it obviously we have theft.Q. Did you say to him, 'I saw you hide the wrapper'?
A. Yes.Q. This is suspicious criminal conduct, isn't it? Eating prawns, failing to pay for them, hiding wrappers?
A. Yes....
Q. When you said he hadn't paid for eating prawns you were implying that he was a thief and stealing the prawns?
A. I haven't said he hadn't paid for them. I offered him to pay for the prawns. I didn't accuse him at any time.Q. No, but you said in effect, 'You have eaten the prawns and you haven't paid for them' you said that?
A. Yes, I said that." [AB 203-4]Immediately prior to the first of the questions and answers extracted above, counsel appearing for the applicant had asked Mr Tatosian, sequentially, whether he had said to the respondent the words pleaded in paragraph 3 of the FASoC. He denied having said any of those things.
The subsequent questions were asked, and answered, in cross-examination. In some respects, the answers are inconsistent with the denials made by Mr Tatosian in his evidence in chief. For example, in his evidence in chief he denied saying to the respondent "You have been hiding the wrapper", but in cross-examination he agreed, without equivocation, that he had said "I saw you hide the wrapper".
There are, in Mr Tatosian's cross-examination, some answers that correlate recognisably with the allegations in paragraph 3 of the FASoC. They are far from a complete parallel to those allegations. But they do overlap to a significant extent. It will be recalled that paragraph 3 of the FASoC alleges the words attributed to Mr Tatosian "or [words of] their substance and effect". The question to which the Court directed the attention concerned the extent (if any) to which Mr Tatosian's evidence confirmed that he had spoken words "to the substance and effect" of those alleged in the FASoC, and of which the respondent had given evidence.
It is inevitable, in cases of asserted slander, that there may be some discrepancies between the words pleaded, and those established by the evidence. Ordinarily, any discrepancies would be expected to emerge from a comparison of the words alleged in the pleadings, and the evidence given by or on behalf of the plaintiff. In this case, the evidence given by the respondent conformed closely with the words pleaded in paragraph 3 of the FASoC. Such disconformity as there is lies in the evidence given on behalf of the applicant, in which nevertheless significant concessions were made. The question raised by the Court therefore concerned the degree of tolerance allowed where there is departure, in the words proved, from the words pleaded. In this case, however, that arises, not in relation to the respondent's evidence, but in relation to the extent (if any) to which Mr Tatosian's evidence synchronised with the pleading. If it were to be held that Mr Tatosian's evidence signified acceptance that he had spoken words "to the substance and effect" of those alleged in the FASoC, it would be unnecessary to deal with the criticisms made of the primary judge's approach to the fact finding issue.
A similar question arose as early as 1923 in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 in the English Court of Appeal. There, the plaintiff sued the defendant bank, alleging that he had been defamed in a telephone communication by the bank branch manager (a man named Fennel). The plaintiff pleaded that Fennel had used particular words in the communication. The witnesses he called to prove the words gave evidence in slightly different terms to those pleaded. The defendant bank called Fennel, who gave a different account of the conversation, but one that was seen as capable of conveying a defamatory meaning. The trial judge left to the jury the question whether the words complained of in the statement of claim had been spoken by Fennel. He declined a request by counsel for the plaintiff to add "or words to the like effect".
In the judgment of Bankes LJ in that case, the following appears:
"It is still necessary to plead the exact language complained of, but proof of language substantially the same as that pleaded is admissible and should be submitted to the jury ... For a long time it has been held to be enough to prove the substance of the words alleged in the declaration, but if there was difference between both the form and substance of the words alleged, and of the words proved, the defendant was entitled to succeed. In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends." [this was a quote from Harris v Warre 4 CPD 125 at 128]
Bankes LJ went on to say:
"In my opinion there was such a substantial difference between the rival accounts of the conversation that Fennell's version ought not to have been submitted to the jury as proof of the plaintiff's pleaded case without an amendment."
Scrutton LJ said:
"But I think modern practice is, as stated by Lord Coleridge in Harris v Warre, that it is enough to prove the substance of the words alleged, or I would add, of a material and defamatory part of them ... in my view the jury should be directed that if they think the defendant used, in substance, the words, or a material and defamatory part of the words complained of, they should say so, and [the defendant] is liable. I have no doubt that in this case part of the words alleged are materially different from the defendant's admission, but I think the jury should have been directed to consider whether or not part of the defendant's admission was a material and defamatory part of the words complained of ...
It is also, I think, clear that the plaintiff was entitled to put before the jury his case that the words proved, though not the very words pleaded, were words substantially to the same effect. Whether this be done by amending the pleading, by framing the question to the jury so as to raise the point, or by directing the jury that the words pleaded would be proved by proof of words substantially to the same effect, seems to me immaterial. No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established."
The question is then one of degree and judgment. Did the evidence of Mr Tatosian amount to evidence that he had used language "substantially the same as that pleaded"; or did the language he used amount to "a material and defamatory part of the words complained of"?
In my judgment, both questions should be answered in the affirmative.
The allegations in paragraph 3 include:
"You have been stealing prawns. You have been hiding the wrapper."
Mr Tatosian conceded that he had said:
"Look, sir I've seen you eating those prawns",
followed by:
"Sir, have you forgotten to pay for the prawns"
followed in turn by:
"I saw you hide the wrapper."
It was also alleged that Mr Tatosian said:
"You have stolen green prawns. You were seen to take the wrapper off. Now open your pockets."
and:
"You ate the rest of those prawns in my store and that is stealing."
Mr Tatosian conceded that he had said:
"Have you forgotten those prawns?"
"Sir, I've seen you eating those prawns."
"I saw you hide the wrapper."
"You have eaten the prawns and you haven't paid for them."
There were, of course, other allegations in paragraph 3, and in the respondent's evidence, concerning an alleged demand by Mr Tatosian that the respondent remove his jacket to permit inspection. There was no concession by Mr Tatosian to this effect.
However, in my judgment, the acceptance by him of the words set out above is sufficient acceptance of a material and defamatory part of the words alleged by the respondent.
Accordingly, in my view, the respondent's case was substantially established by the applicant's own evidence.
Even it that is not so, Mr Tatosian's evidence is such that it could not be said that the factual conclusions of the primary judge are "glaringly improbable" or "contrary to compelling inferences". The concessions made by Mr Tatosian, even if not sufficiently within the terms of paragraph 3 of the FASoC as to establish the respondent's claim, are sufficiently close to preclude a conclusion that the respondent's evidence was "glaringly improbable".
For that reason, in my opinion, and notwithstanding some difficulties in the approach that he took, the factual conclusions of the primary judge ought not to be disturbed.
I would refuse leave to appeal with respect to the liability question.
The applicant also sought leave to appeal against the quantum of damages awarded, both compensatory and aggravated. However, in response to a question from the Court, counsel was unable to identify any issue of principle that arises with respect to either award. I would also refuse leave to appeal against the quantum of damages. As a result, the application should be dismissed with costs.
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