Dolphin v Sanders
[2010] VCC 1301
•15 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
DEFAMATION
Case No. CI-09-01609
| PHILLIP GEOFFREY DOLPHIN | Plaintiff |
| v | |
| PATRICIA ANN SANDERS (TRADING AS | Defendant |
| SEARCH-WELL) |
---
| JUDGE: | LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8-9 SEPTEMBER 2010 |
| DATE OF JUDGMENT: | 15 December 2010 |
| CASE MAY BE CITED AS: | Dolphin v Sanders |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1301 |
REASONS FOR JUDGMENT
---
Catchwords: Defamation – failure by the plaintiff to prove on balance of probabilities that the defendant uttered the alleged defamatory words
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Klempfner | Actuate IP Lawyers |
| For the Defendant | Mr M J Hoyne | Lander & Rogers |
| HIS HONOUR: |
1 The plaintiff brings this proceeding claiming he was defamed by the defendant in a conversation she had with one Michael McKinnon mid afternoon on Friday 20 March 2009. He claims damages in consequence.
2 The alleged defamatory words were spoken by the defendant soon after the settlement of a conveyancing transaction that took place at the Commonwealth Bank Settlement Centre in the City of Melbourne.
3 I need to outline the factual scenario before coming to the central issue, namely, what the defendant said of the plaintiff when she spoke with Michael McKinnon. Much of the factual scenario is common ground and not in dispute.
4 The plaintiff is a law clerk employed by his wife Glenys Dolphin who is a legal practitioner with a general law practice at Rosanna. His background was in banking and he is well trained in the procedures of conveyancing.
5 Glenys Dolphin acted as the legal practitioner for Michael McKinnon on the purchase by him of his first property. The contract for the purchase of that property was due for settlement on the afternoon of 20 March at about 2.30 pm at the Commonwealth Bank settlement centre. The contract was tendered in evidence.[1]
[1] Exhibit 3
6 The plaintiff attended settlement on behalf of his wife and representing Mr. McKinnon.
7 The defendant is a title searcher and carries on a business known as ‘Search- Well’. As well as doing title searches she attends to settlements when retained on behalf of legal practitioners and conveyancers. She is very experienced in her field having been engaged in it for more than 45 years.
8 The defendant attended the settlement representing a conveyancing company called ‘M A Legal’ which acted in the transaction for the vendors. The contract of sale records that ‘All Hours Conveyancing’ was to act for the vendors but that is irrelevant to this proceeding.
9 At settlement the plaintiff was to sight and check various documents and cheques and receive three relatively small cheques. In particular he was to sight, but not receive, a cheque payable to the Commonwealth Bank in the sum of $203,893.66 and two cheques each payable to one of the vendors in the sum of $149,739.31 each. There was also a small cheque payable to ‘M A legal’.
10 The plaintiff was to receive three small cheques, one of which was payable to his wife, presumably for her legal fees. The settlement instructions provided by Glenys Dolphin to the plaintiff were tendered in evidence.[2] So too was a letter from M A legal to Glenys Dolphin dated 19 March 2009.[3] Both documents give a break up of the cheques.
[2] Exhibit ‘B’
[3] Exhibit ‘C’
11 The cheque payable to the Commonwealth Bank in the sum of $203,893.66 is central to this case. The Commonwealth Bank held the registered mortgage over the property from the vendors. Before Michael McKinnon could be registered on title the Commonwealth Bank was required to give a discharge of its registered mortgage.
12 Whilst the settlement was to take place at the Commonwealth Bank the National Australia Bank, which was providing finance to Michael McKinnon, was providing each of the cheques and was to receive the title, transfer of land and discharge of the mortgage held by the Commonwealth Bank.
13 At the Commonwealth Bank Settlement Centre there is apparently a system in place where the party acting for the vendor and requiring discharge of a Commonwealth Bank mortgage presents to the settlements counter and receives a package containing the title, registrable discharge and settlement instructions setting out what cheques the Commonwealth Bank requires in order to effect settlement. The party acting for the vendor takes those documents and also attends settlement on behalf of the Commonwealth Bank. Once the cheques are exchanged the party acting for the vendor then hands over the cheques received payable to the Commonwealth Bank and settlement is complete. The system envisages that all parties attending settlement will remain at the place of settlement until the settlement is complete, that is until the Commonwealth Bank is paid whatever money it is owed as discharging mortgagee.
14 At the settlement in question on 20 March 2009 the system in operation at the Commonwealth Bank was employed. However, the plaintiff did not remain at the settlement centre until the cheque for $203,893.66 payable to the Commonwealth Bank was handed over to it. Instead what occurred was the defendant received that cheque from the National Australia Bank who handed it over to the defendant after it was sighted by the plaintiff. The National Australia Bank received the registrable documents.
15 Apparently satisfied by assurances from the defendant and the National Australia Bank that settlement was complete the plaintiff left the settlement centre and proceeded to catch a train back to his wife’s office at Rosanna. Had he remained as he should have until the Commonwealth Bank was paid in full this proceeding most probably would have never eventuated.
16 The defendant did not immediately hand the cheque for $203,893.66 to the Commonwealth Bank. Instead she attended to other matters. Later she went to the settlement counter to hand it over but found it to be missing. Pressed for time because of other settlement commitments the defendant then made a series of telephone calls on her mobile telephone. One of those calls was to Michael McKinnon.
17 Whether or not the plaintiff succeeds in his cause of action depends upon what words were spoken by the defendant when she spoke with Michael McKinnon. That is the first point of disputation between the parties. It is a critical point.
18 It is not in dispute the defendant lost the cheque payable to the Commonwealth Bank. Nor is it in dispute that settlement was reversed and Michael McKinnon was subsequently denied possession of the property until settlement was carried out a second time five days later. As it transpired the cheque in question was later found at the Commonwealth Bank Settlement Centre on 20 March 2009.
19 On Sunday 22 March 2009 (two days after settlement) the plaintiff’s wife wrote to the defendant on his behalf. The letter was an open letter on her letterhead as a legal practitioner. The letter alleged the defendant had defamed the plaintiff to her client. It went on to demand an apology and foreshadowed a claim for damages and costs.[4]
[4] Exhibit ‘D’
20 I assume the letter of 22 March 2009 was written by Glenys Dolphin as the plaintiff’s legal practitioner on instructions and after Glenys Dolphin or the plaintiff had spoken with Michael McKinnon. Relevantly the letter says as follows:
‘When our client left the settlement room you remained in possession of the 4 remaining cheques. From our client’s observations and from the advice of the Team Leader of the settlements section of the NAB you attended other settlement(s) before attending at the CBA settlements counter some 40 minutes later.
At approximately 3.30pm we understand you telephoned our client directly and proceeded to defame our settlement clerk in his professional capacity by falsely alleging that he had retained a cheque payable to the Commonwealth
bank in the sum of $203,893.66. We understand that you also defamed our clerk in a similar manner to staff at the office of M A Legal, Commonwealth
bank Staff, staff at First national Choice Real estate and to this office.
We are further advised by staff at the NAB that you acknowledged that you had lost the cheque and undertook to pay the cost of re-issuing another cheque. The NAB returned the title to the CBA on the condition that their costs will be met by you. The NAB are quite adamant that the lost cheque remains the fault of the vendor (its servants or agents).
Due solely to your conduct settlement was reversed and our clients denied possession of their property.’
21 Exhibit ‘D’ was the first time the plaintiff asserted what words were used to allegedly defame him. According to the letter the defendant had said to Michael McKinnon the plaintiff ‘had retained a cheque payable to the Commonwealth bank in the sum of $203,893.66’. There was certainly no assertion the defendant had said that the plaintiff had ‘taken’ a cheque.
22 One month later on 20 April 2009 the plaintiff commenced this proceeding by writ. The original Statement of Claim in paragraph 4 pleads:
‘4. At or about 3.30pm approximately 35 minutes after settlement, the defendant wrongly asserted the plaintiff took a cheque from the
settlement centre.
PARTICULARS
National Australia Bank Cheque made payable to the Commonwealth
Bank of Australia in the amount of $203,893.66
5. The defendant uttered the following words (or words to the effect) of and concerning the plaintiff (‘the words’)
a.
‘the other side took a cheque at settlement’ … ‘he (meaning the plaintiff) took a cheque at settlement’ …’the purchaser’s clerk (meaning the plaintiff) has taken the cheque’
(‘the first publications’)
b. ‘He (meaning the plaintiff) refuses to bring the cheque back’
(‘the second publication’)
23 Paragraph 6 of the original statement of claim pleads the first and second publications were uttered to or in the presence of others. It lists thereafter:
a. The Commonwealth Bank settlement staff b. National Australia bank Team leader and settlement staff c. First National Choice Real Estate Staff d. The purchaser e. The purchaser’s solicitor f. The vendor’s solicitor 24 The plaintiff substantially amended his statement of claim by order of Judge Shelton on 10 May 2010. Paragraph 4 of the Amended Statement of Claim pleads the words allegedly used by the defendant said to have been defamatory of the plaintiff. Relevantly the pleading is as follows:
‘Defendant: Have you just settled on 186 Dundas Street? McKinnon: Yes
Defendant: You have taken a cheque. I am missing a cheque and need it
back or settlement cannot go through.McKinnon: What cheque? Defendant: I need your solicitor’s number because your representative has
taken a cheque at settlement.McKinnon: My solicitor is Glenys Dolphin and Phil Dolphin attended settlement. I don’t know his number. I am driving.
Defendant: Phil has taken the cheque and he needs to get the cheque back there or settlement will not go through. I need it straight away. This is holding me up for another appointment and he has taken the cheque.’ 25 I observe that neither the original statement of claim nor the amended version used the words originally set out in the letter which sought an apology.[5] The version of what the defendant allegedly said of the plaintiff varied from him having ‘retained’ the cheque in the letter to ‘took a cheque’ in the original statement of claim to ‘has taken a cheque’ in the amended version.
[5] Exhibit D
26 By her amended defence paragraph 4 the defendant denies that she used the words as pleaded by the plaintiff.
27 It is in the background of this uncertainty of what exactly was said that I examine the other evidence.
28 Paragraph 4 of the amended Statement of Claim is in terms similar to a record of what was said prepared by Michael McKinnon for Glenys Dolphin and set out in an email to her at 5.06pm on 20 April 2009, the writ apparently having been issued earlier in the day. The email found its way into evidence.[6] The email is not a contemporaneous recording by Michael McKinnon. It was made one month after settlement. I do not place a great deal of weight on its content preferring instead to concentrate on the evidence given by Michael McKinnon in the court.
[6] Exhibit A
29 Michael McKinnon gave evidence and was cross examined by Mr Hoyne who appeared for the defendant. He said that Glenys Dolphin was his solicitor and he understood the plaintiff would be attending settlement on his behalf. He said he received a phone call from the plaintiff advising settlement has been completed and he could go to the estate agents for the vendor and collect the keys. He said this was his first property purchase and he was excited by it. He had arranged for removalists to move him into the property the following day in the expectation settlement would conclude as arranged. Having spoken to the plaintiff he set off with his mother in his car to the estate agents who were located in Blackburn. During the course of the journey he received a phone call from the defendant on his mobile phone. The call was received hands free and his mother heard the conversation which was amplified.
30 In evidence in chief he said relevantly:
Thornbury?" to which I replied "Yes".
Yes?---She then went on to explain that there was a cheque missing, "You've
taken it, there's a cheque missing" and I said I didn't attend the settlement.
She said, "Well, the person who has attended on your behalf has taken the
cheque. There's a cheque missing, it's holding me up, settlement will not go
through until the cheque's back".
What did this person say to you?---"Have you just settled on Dundas Street, attending on your behalf?---At that stage I presumed she was referring to who was acting on my behalf, Phil Dolphin. MR KLEMPFNER: And, what else did you say to this person on the phone?---I explained that I didn't attend settlement myself, there was someone acting on my behalf, and I explained that Glenys Dolphin was my solicitor and Phil Dolphin was acting for her, and she then said, "Well, Phil's taken the cheque, the cheque's missing" and "we need to get the cheque back or settlement will not go through”.
What happened next, after this initial telephone conversation?---I explained to the caller that I was driving at the time, I didn't have the contact details with me because I was on the phone and driving, that I would get them and either get my solicitor or Phil Dolphin to give her a call back or I would give her a call back with their details.
What did you do next after hanging up from that caller?---I got Phil Dolphin's phone number from the call that he had put through to me, and called him asking him, querying what's happened, "Why has this cheque gone missing, I thought settlement had gone through, where are you".
What was his response to that?---His response that settlement had gone through, he was on the train on the way home and he'll follow up either by himself or Glenys as to what's now happening.[7]
[7] Transcript pages 21-23
31 Michael McKinnon was cross examined. He agreed that when the defendant phoned there was quite a bit of confusion as to what the conversation was about.[8] He said the defendant had spoken with him on the basis that he was the person that had attended settlement.[9] Michael McKinnon was adamant the defendant had repeated in the conversation that the cheque was missing.[10]
[8] Transcript page 26
[9] Transcript pages 27-28
[10] Transcript pages 27-28
32 He agreed he could not remember word for word what was said and that
possibly other words were used. Importantly he said:
conversation?---Not word for word.
MR HOYNE: Do you remember word for word what was said during this and your settlement clerk might have taken it, those words could have been spoken?---Possibly.[11]
[11] Transcript page 28
33 Michael McKinnon agreed that subsequent to these events he had requested Glenys Dolphin to sponsor him in a charity fund raising effort in the sum of $20.00 and that he had discussed his evidence with various persons.
Sorry, let me just rephrase exactly what I'm asking. I'm not asking you who you discussed the fact that settlement fell over with, I'm asking you who have you discussed the evidence that you were going to give today, who had you discussed that with?---The legal team here, Phil Dolphin and Glenys Dolphin.
[12]
[12] Transcript pages 38-39
Your mother?---She would be aware of the evidence, yes. So you've talked to her and you said, "This is what I recall was said during the conversation in the car" and she said to you "This is what I recall was the conversation said in the car"?---As to the extent of the full details, yes, I - I mean, it has been discussed, yes, but to the extent of the full details I'm unsure. 34 Maureen McKinnon the mother of Michael was also called to give evidence. She was in the car when the conversation between the defendant and her son took place which she said was amplified so she could hear it.[13]
[13] Transcript page 46
35 She was asked about the conversation in evidence in chief. She said
relevantly:
He has received a telephone call from a lady, and what were the opening words to your recollection?---It was something along the lines of you've just settled on Dundas Street property and there's a cheque missing, that you have to bring the cheque back.
What was the tone in her voice?---Very upset and very - a bit angry and not
happy.
What was Michael's response?---Well we just sort of looked at each other
going who is this, like we didn't know who it was, who was talking to him, and
there was no introduction or explanation of who it was, just somebody telling
us that settlement wasn't going through and the cheque was missing and he
had taken the cheque, and he explained that he wasn't there, his
representative was there.
Did he identify that representative?---He said that it was Phil Dolphin.
Was there any response to that from the person at the other end of the
phone?---She then asked for his phone number, or the solicitor's phone
number I think it was, and Michael said he didn't have that because he was
driving, and he said I'd have to wait until I pull over to be able to use my phone
to get Glenys Dolphin's phone number.
Was there then any further conversation between Michael and this person at
the other end of the phone?---Just that settlement wouldn't go through, it was
3.30 and there was other appointments that this person was going to go to,
had other settlements to complete and she wouldn't have time to go back on
this, so settlement wasn't going to go through. Michael sort of said well as far
as I know it did go through, I was told that, and you'll have to speak to
somebody else about it because nobody else had any cheques. He knew
nothing about it, we knew absolutely nothing of what was going on.
Did the person introduce herself?---No. cheque was gone, there was cheque missing and that our representative had taken the cheque.[14]
[14] Transcript pages 47-48
36 In cross examination she agreed she had refreshed her memory the evening prior to giving evidence by reading a statement prepared for her son. She agreed she had not prepared any contemporaneous statement.[15]
[15] Transcript pages 52 & 59
37 When pressed as to the precise words used her evidence was general and not specific. She did not precisely recall any reference being made to the defendant having taken the cheque. This is what she said when pressed in cross examination:
Yes, the first words?---The first thing she said, well, what I can remember, is "You have to bring the cheque back", something along the lines that "You have to bring the cheque back" need Michael - "because" something along the lines of the settlement's not going through because the cheque has gone and "you've taken the cheque" and Michael said, "I wasn't there", because we're still at this stage didn't know who we were, didn't know who we should talk to.
You don't remember, and you've said it a few times and I'm not being critical, but you've said a few times to the best of your recollection, you don't actually remember the words that were spoken, do you?---I can remember most of what they said, what the lady said.
amount of the precise words.
Which precise words can you recall?---That the cheque was taken, that it had
to be returned, that settlement wouldn't go through, that another - she was
busy, that at 3.30 she had another settlement and didn't have time to have this
being stretched - out I suppose, that's how it was.
You don't remember the precise words that were spoken, do you?---A certain recall?---The precise words, well, that it wasn't going to go ahead and at 3.30 she had other things to do and another settlement to do. So, yeah, and that the cheque had to be returned.[16]
[16] Transcript pages 52-53
38 When pressed Maureen McKinnon was adamant the defendant did not say a
cheque was missing and might have been picked up.
Is it possible, during the conversation with Ms Sanders, that what in fact she said was words to this effect, "A cheque is missing and your settlement clerk might have picked it up"?---No. Sorry, no.[17]
[17] Transcript page 58
39 The defendant gave evidence as to the conversation. She said settlement took place and later after attending to other matters she realised the cheque payable to the Commonwealth Bank was missing[18]. She tried to speak with M A Legal unsuccessfully. She left a message for her instructor to call her urgently.[19] She said she needed to contact the purchasers representatives but did not have a phone number. She said she looked at the contract a copy of which she had been provided with. It recorded Michael McKinnon as the purchaser and also his mobile phone number. That was why she phoned him.[20]
[18] Transcript page 134
[19] Transcript page 134
[20] Transcript pages 129 & 135
40 She admitted she did not have a perfect recollection of the conversation with Michael McKinnon but she nonetheless had a recollection of it. Relevantly this is the evidence she gave in chief:
Do you remember exactly the words that were spoken during that conversation you had with Mr McKinnon?---I can't relay exactly what was said because it's 18 months ago but based on what I would normally do, I rang the number - - -
Let me take you step by step. Do you have any recollection of the
conversation?---Yes I do.
Just as best as you can recall, can you just take us through what was
said?---Yes, I rang the phone number and asked, is this Mr McKinnon? To
which he replied yes. I identified myself as the agent for the vendor - - -
Did you use your name?---No I did not. In relation to his purchase, explained
that I urgently needed to contact the agent who had attended on his behalf
because a cheque was missing and I urgently needed to speak to him. Could
he please supply the telephone number of his solicitor.
What was his response?---That he was driving the car and that he couldn't
supply me with the number and that he would do so when he arrived at the
agent in approximately ten minutes time.
Did you respond to that?---I explained to him that the matter was most urgent,
to which he replied he was driving the car and he would not give me the
phone number until he arrived at the agent.
What then happened?---I hung up.[21][21] Transcript pages 135 - 136
41 She was adamant she knew that she was calling the actual purchaser something she would not normally do ‘because its not proper but in this instance I didn’t have any choice. I couldn’t contact anybody at that stage and obviously I needed to rectify this matter’.[22]
[22] Transcript page 136
42 By reference to her mobile telephone records the defendant estimated the call lasted over two minutes in duration. Both Michael McKinnon and his mother thought it only lasted about thirty seconds.
43 In cross examination by Mr Klempfner who appeared for the plaintiff the defendant said the phone call was purely a call to query had he picked up the cheque because sometimes it happens.[23]
[23] Transcript page 141
44 She was pressed in cross examination and was adamant that in her conversation with Michael McKinnon she did not accuse anyone of taking the Commonwealth Bank cheque. Relevantly she said in evidence:
Dundas Street, didn't you?---No.
You didn't ask that?---No because I knew I was speaking to the purchaser and
I knew that he had not attended the settlement.
You suggested to him that he had taken a cheque?---I did not.
You then said that you were missing a cheque, didn't you?---What I said to
him was, I identified that I was speaking to Mr McKinnon, I was well aware
that I was speaking to the purchaser, not the end - not the purchaser's
representative, explained that I was the agent for the vendor, that I urgently
needed to contact the agent who had attended settlement on his behalf
because a cheque was missing and I urgently needed to speak to him.
Mr McKinnon said, "What cheque?", he didn't know what you were talking
about, did he?---No, he didn't say that.
You then said to Mr McKinnon, "I need your solicitor's number because you're
representative has taken a cheque at settlement"?---No, I did not say that.
Not even words to that effect at all?---No, I did not say that.
You are suggesting you made no allegation at all?---No allegation at all
because I had no way of knowing that Mr Dolphin had picked up the cheque.
I think we went through this before. You certainly, you didn't have the cheque
and you couldn't locate it?---No, I didn't have the cheque.
What I suggest is that really leaves only one alternative as to - - - ?---No.
- - - in your mind who you believed - - -?---No.
- - - might have taken that cheque?---No, that's not true.
Well what was the point of trying to speak to Mr Dolphin then?---Well because
the cheque was missing and the first thing that an agent will do when a
cheque is missing is ring the other side to see whether they have accidentally
picked the cheque up. It does happen. Not a lot but it does happen, that is
standard settlement procedure.
When you rang Mr McKinnon you asked whether he'd just settled on 186 that a cheque has gone missing, mightn't it?---No, we just - when we ring the other side which I - which I said to Mr Dolphin, "The cheque to the Commonwealth Bank is missing, do you have it?" To which he replied, "No." Wouldn't it be within the bounds of probability that if you're speaking to a purchaser who you're not acting for and you wanted to speak to the agent who attended, that you might say: a cheque's gone missing, I want to see if your agent has taken the cheque?---No, I said I need to urgently contact the agent, a cheque is missing, could he please give me the phone number of his solicitor. I didn't go into any detail and at no stage did I accuse Mr Dolphin of taking that cheque because I didn't know whether he had it or not.[24]
[24] Transcript pages 152-154
45 That is the extent of the relevant evidence as to the direct conversation between the defendant and Michael McKinnon.
46 Mr Klempfner on behalf of the plaintiff submits that I should accept the evidence of both Michael McKinnon and his mother whom he argues are disinterested third parties. He argues that when pressed they were consistent in their evidence and that I should find that the words defaming the plaintiff as pleaded in paragraph 4 of the Amended Statement of Claim were said. I do not accept this submission.
47 I am not satisfied that is the case. I am not satisfied as to the exact words used on the balance of probabilities. I agree with submissions made by Mr Hoyne that a decision as to what words were uttered by the defendant needs to be made in the context and all the circumstances of the leading to the conversation.
48 All witnesses agree the defendant told Michael McKinnon that a cheque had gone missing at settlement and that she wanted the number of his solicitor so she could contact who attended settlement. I accept the main difference between the two versions is that the plaintiff’s witnesses assert positively she said the plaintiff had taken the cheque whereas the defendant’s version is she said the plaintiff might have taken the cheque and she wanted to speak with him to find out if that was the case. I agree with Mr Hoyne’s submission. The main difference between the two versions is whether the plaintiff used the word ‘might’.
49 As I said earlier I do not place much weight on the content of exhibit ‘A’ which was composed by Michael McKinnon one month after the conversation and in the context of a defamation proceeding having been commenced the same day.
50 Assuming Glenys Dolphin had spoken to Michael McKinnon before she wrote exhibit ‘D’ the words used in it do not reflect the conversation now alleged. There is no suggestion in the letter seeking an apology that the words spoken by the defendant were the words now pleaded.
51 Similarly, the original statement of claim does not reflect the the terms of the conversation now pleaded. Given Michael McKinnon and his mother could be the only source to Mrs Dolphin of what was said this suggests to me there has been considerable variation from time to time from Michael McKinnon as to exactly what was said. In consequence the way the plaintiff’s case has been formulated has varied from time to time.
52 Michael McKinnon admitted in cross examination it was possible the defendant said ‘a cheque is missing and your settlement clerk might have taken it.’[25]
[25] Transcript page 28
53 I accept Mr Hoyne’s submission that Mrs McKinnon’s evidence was replete with admissions that she could not really recall the words used by the defendant. When she was asked which words she did recall none went to the words as pleaded.[26]
[26] Transcript pages 52-53 set out above
54 In addition there were a number of factual matters that Mrs McKinnon was unable to recall[27]. She had refreshed her memory before giving evidence from her son’s statement. I do not accept that everything she said in evidence, having refreshed her memory in that way, reflected her actual memory of the conversation. Rather, I think her evidence in large part reflects her son’s memory as read by her from a statement prepared for him and read by her the night before giving evidence.
[27] Transcript pages 28, 29, 31, 35 40
55 I prefer the evidence of the defendant to the evidence of both Michael McKinnon and his mother. The defendant was clear in the evidence that she gave that she at all times knew that she was speaking with the actual purchaser, not his legal representative or anyone else. She was reluctant to make the phone call but in the circumstances found she had no other choice. She got Michael McKinnon’s phone number from the contract.
56 Accepting as I do the defendant knew she was speaking with the purchaser I think it highly improbable the conversation was in terms recounted by Michael McKinnon and his mother. I accept the defendant’s evidence that when she spoke with Michael McKinnon she said she urgently needed to contact the agent who had attended on his behalf because a cheque was missing and she urgently needed to speak to him and could he please supply the telephone number of his solicitor.
57 It needs to be remembered the conversation occurred in the context where the cheque was clearly missing and the defendant knew the plaintiff had received three small cheques at settlement. I accept the defendant, acting professionally, was simply endeavouring to find out where the cheque was. I think it unlikely in the circumstances she accused anyone of taking the cheque without first qualifying it with use of the word ‘might’. She must have known the high likelihood she was responsible for losing the cheque because she should have had it. In these circumstances I think it highly unlikely she accused anyone else of having the cheque without first inquiring as to the possibility.
58 I observed each of the witnesses closely whilst they were giving there evidence. The McKinnons as I have said were unsure as to a number of factual matters and Michael McKinnon quite properly conceded it was a possibility the defendant may have said ‘might have taken’. That is an important concession.
59 Further, it is highly likely I think they are each confused as to precisely what was said by the defendant. They were both in the car driving when the conversation occurred. The conversation also brought to an abrupt end their plans for the following day to move into the property in question. Any excitement they may have had by such prospect was quickly tempered. I accept neither of them made notes of the conversation and I accept they would have been fixated upon the fact settlement of the property had not occurred and not whether anyone had been defamed.
60 In my view the evidence of the McKinnons is most likely an inaccurate, albeit not deliberate, reconstruction of what they now think was probably said.
61 The defendant impressed me as a truthful and accurate witness and I much prefer her evidence. To my mind her evidence as to the conversation most closely accords with what one would expect would have happened in all the circumstances. Her evidence is by far the more logical when analysed in the context of the circumstances as to why the conversation took place at all.
62 I agree with Mr Hoyne’s analysis of the evidence set out at paragraph 6 of his written submissions. When analysed it does not make sense that the defendant, having phoned a person she knew to have been the purchaser would speak with him on the basis that he (McKinnon) had just attended settlement.
63 It is unlikely I think the defendant would have asserted ‘the cheque is missing’ and then in the next breath almost assert ‘the plaintiff took it’. The high likelihood I think is the defendant said there was a cheque missing consistent with an enquiry for a contact phone number so that she might enquire where it might be.
64 I agree the assertion ‘the cheque is missing’ and an assertion ‘the plaintiff has taken the cheque’ are non sequiturs.
65 Importantly the plaintiff, having at first pleaded in the original statement of claim that the words there pleaded were uttered to others as well as the McKinnons, abandoned that pleading. The letter (exhibit D) made similar allegations. There is evidence the plaintiff spoke with the Commonwealth Bank Staff, the National Bank Staff, and the Estate Agents and M A Legal. It is no longer alleged she used the same words when speaking with those parties. It is unlikely that when speaking with those parties the defendant would have used different words yet the plaintiff did not allege in this trial the defendant had used the same words. I conclude that when the defendant spoke with the Commonwealth Bank Staff, the National Bank Staff, and the Estate Agents and M A Legal she did not assert the plaintiff had taken the relevant cheque.
66 For these reasons, in my judgment the plaintiff has not established by evidence on the balance of probabilities the words allegedly uttered by the defendant of the plaintiff as pleaded in paragraph 4 of the Amended Statement of Claim were said by her at all. That being the case the plaintiff’s action against the defendant fails and must be dismissed. There is no need in that circumstance to give consideration to the other issues raised by the pleadings.
67 I will hear the parties on costs.
0
0
0