Giovannetti v State of New South Wales
[2013] NSWSC 1960
•20 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Giovannetti v State of New South Wales [2013] NSWSC 1960 Hearing dates: 12 August 2013; 13 August 2013; 14 August 2013 Decision date: 20 December 2013 Before: Simpson J Decision: (i) The Statement of Claim is dismissed;
(ii) The plaintiff is to pay the defendant's costs of the proceedings.
Catchwords: DEFAMATION - trial by judge alone - publication by email - limited number of recipients - imputations pleaded related to plaintiff's suitability to be a member of the Police and Community Youth Clubs NSW Ltd - imputations conveyed - imputations defamatory - qualified privilege at common law - established - no malice - statutory qualified privilege - established - substantial truth - partially successful - triviality - rejected - republication in good faith - statement of claim dismissed - plaintiff to pay defendant's costs Legislation Cited: Defamation Act 2005
Evidence Act 1995
Government Information (Public Access) Act 2009
Law Reform (Vicarious Liability) Act 1983Cases Cited: Adam v Ward [1917] AC 309
Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; 241 CLR 79
Goyan v Motyka [2008] NSWCA 28; [2008] Aust Torts Reports 81-939
Megna v Marshall [2010] NSWSC 686
Megna v Marshall [2013] NSWCA 30
Skalkos v Assaf [2002] NSWCA 14; [2002] Aust Torts Reports 81-644
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044Category: Principal judgment Parties: Benjamin Giovannetti (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
R Rasmussen (Plaintiff)
D Caspersonn (Defendant)
Solicitors:
James Fuggle Rummery (Plaintiff)
Henry Davis York (Defendant)
File Number(s): 2011/282276
Judgment
By Statement of Claim filed on 1 September 2011 the plaintiff, Benjamin Giovannetti, claims damages against the State of NSW arising out of the publication of an email communication which he asserts conveyed imputations defamatory of him.
The email in question is dated 15 September 2010. It was written by Colin Moore, then an Inspector of Police and State Co-ordinator of the Youth Command of the NSW Police Force ("the Youth Command"). It was directed to "Chris Gardiner", who was the Chief Executive Officer of an incorporated organisation at the relevant time called Police and Community Youth Clubs NSW Ltd ("PCYC"). The email was copied to Superintendent Allan Harding, who was, in 2010, the Commander of the Youth Command, and the officer to whom Inspector Moore reported.
The email was given the subject title "Banning Notice to Benjamin Giovannetti", and its importance was categorised as "High". The substance of the email was, in full, in the following terms:
"Chris,
See Incident report number 2648A/2010
This person - Benjamin Giovannetti DOB: [-], [address] -Lismore PCYC
should have his membership revoked immeditely [sic] he is extreme risk to PCYC.
PLease advise your Manager @ Lismore PCYC.
I will adivse [sic] Police.
Col"
The plaintiff asserts that the email conveyed the following imputations, each of which was defamatory of him:
"(a) The plaintiff is an extreme risk to the PCYC;
(b) The plaintiff should be banned from the Lismore PCYC because of his involvement in incident number 2648A/2010;
(c) The plaintiff should have his membership of the Lismore PCYC revoked immediately because of his involvement in incident number 2648A/2010;
(d) The plaintiff should be reported to Police because of his involvement in incident number 2648A/2010."
Two months later, on 15 November 2010, Mr Gardiner forwarded the email to Grant Courtney. Senior Sergeant Courtney was an ancillary zone commander of the Youth Command. Mr Gardiner sent the email to him in response to a request made on behalf of the plaintiff under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The plaintiff pleads that forwarding the email constituted a republication, and was a natural and probable consequence of the original publication.
The plaintiff's claim against the State of NSW is based upon the provisions of the Law Reform (Vicarious Liability) Act 1983, pursuant to s 8 and s 9 of which the State of NSW accepts responsibility for relevant torts committed by, inter alia, members of the Police Force. By an Amended Defence filed on 9 July 2012 the State of NSW admits that it is vicariously liable for any tortious conduct proved against Inspector Moore, but denies that Inspector Moore committed any actionable tort of defamation.
The State of NSW has raised a number of defences. In the first instance, it denies that the matter complained of in its natural and ordinary meaning bears or is understood to bear or is capable of bearing the imputations pleaded, and denies that any such imputations are or are capable of being defamatory of the plaintiff. (Except in one limited respect, these pleas were not pursued at the hearing.)
The specific defence upon which the State of NSW relies are:
(i) qualified privilege at common law;
(ii) statutory qualified privilege (Defamation Act 2005, s 30);
(iii) substantial truth (Defamation Act, s 25);
(iv) triviality (Defamation Act, s 33).
The State of NSW also asserts that the matter complained of was published in circumstances whereby the plaintiff authorised and/or assented to and/or acquiesced in its publication. Although this was pleaded in relation to the original publication, on 15 September, no argument, factual or legal, was advanced to support it. Finally, the State of NSW asserts that the subsequent publication of 15 November (the asserted re-publication) was the consequence of an express request (and therefore consent) by the plaintiff pursuant to the GIPA Act and is protected by s 113 thereof.
Subscribed to the Amended Defence are particulars of qualified privilege, substantial truth and consent asserted against the plaintiff.
By Reply to the Defence, the plaintiff asserts, in respect of the pleaded defences of qualified privilege, that publication of the matter complained of was actuated by express malice. The particulars of malice subscribed in the Reply attribute malice in various respects to "the defendant" - the State of NSW. The particulars assert knowledge of the falsity of the imputations, ill will towards the plaintiff, lack of honest belief in the truth of the imputation, desire to damage the reputation of the plaintiff, reckless indifference to the truth or falsity of the imputations, excessive language, and denial of authority. They do not identify any servant or agent of the State of NSW who is said to have the relevant knowledge, or to have harboured the feelings of ill will towards the plaintiff which they assert. It may be assumed that these are attributed to Inspector Moore.
Factual background
With those preliminaries, I will now turn to the relevant facts, with which I will deal, so far as possible, in chronological order.
The plaintiff was born in June 1976. He grew up in Sydney, completed his Higher School Certificate and began a mechanical engineering course at Sydney University which he did not complete. In about 2005 he moved to live in the north of NSW, in a town about 1 hour out of Lismore. His interests included weight lifting, gymnastics and dancing.
From 2002 he had various encounters with Police in different locations, including Sydney. On at least one occasion, he was charged, but was not convicted.
The PCYC may be described (non technically) as an agency of the NSW Police Service/Force. It is, however, an independent entity operating under its own Constitution. Its objects are expressly stated in cl of the Constitution as:
"3.1 ... to promote the welfare of children and young people and the development of children and young people as responsible citizens with a particular emphasis on undertaking and supporting individual and social activities that address the disadvantage and other risk factors that harm young people and their development."
The clause then itemises specific means by which it is sought to achieve that object. PCYC establishes clubs in various locations to promote these objectives. One such club was established in Lismore, in the north of NSW.
PCYC clubs operate under the supervision of Senior Police in the Youth Command. In 2010 the Senior Officer was Superintendent Allan Harding. The State Co-ordinator was Inspector Moore, who was second-in-charge to Superintendent Harding.
Individual PCYC clubs are staffed by both Police officers and civilian employees. In September 2010 the Police officer on duty at the Lismore PCYC club was Senior Constable Amanda Bazley. The civilian employee was Ms Sharon Irwin who was then a permanent part-time employee, in the role of senior activity officer.
At about 5.30pm on 14 September 2010 the plaintiff attended at the Lismore PCYC club. He completed a membership form and paid the modest joining fee, and a further sum to enable him to participate in weightlifting. He spoke to Ms Irwin, who was then on duty. In order to obtain membership he acknowledged a "Club Member Agreement" which required him to accept a Code of Conduct set out in the Club Membership form. He repeated this acknowledgement in a form specifically related to his participation in weightlifting activities and exercises.
The details of what occurred thereafter on the afternoon of 14 September are the subject of some controversy but it is common ground that a verbal altercation took place between the plaintiff and Ms Irwin. Put neutrally, that altercation occurred because the plaintiff signalled his intention of going to an upstairs area of the premises, in order to watch a gymnastics class.
Gymnastics classes are limited to participants between the ages of 6 and 16 years, and, in this case, the participants are predominantly female. Only instructors and parents are permitted to be present. Ms Irwin told the plaintiff that he was not allowed to watch the gymnastics.
The following day, 15 September, when Senior Constable Bazley was on duty, Ms Irwin told her of the confrontation with the plaintiff, and handed her his completed membership form. Senior Constable Bazley went to the nearby Police station where she accessed, in respect of entries concerning the plaintiff, a database entitled the Computerised Operational Policing System ("COPS"). She returned to the PCYC and told Ms Irwin that she did not want the plaintiff to be a member of the Lismore PCYC, and that, if he returned, Ms Irwin was to advise Senior Constable Bazley. Acting on Senior Constable Bazley's instruction, Ms Irwin completed and submitted, via an Intranet communication system, an Incident Report Form (Ex 5). The Incident Report was assigned the number 2648A/2010. The report records the "incident number" referred to in imputations (b), (c) and (d). It was a PCYC internal report. Relevantly, Ms Irwin wrote:
"At approximately 5:20pm a 34-yo male entered the club & enquired about membership & use of the weights room. The person filled out a membership form & weight user decalration [sic] form, produced identification, and was given membership of the club at 5:38pm. The person then purchased a weight room subscription and proceeded to the weight room. At this time the person appeared to be behaving in a normal manner. Approximately 15 minutes later the person was seen to be heading upstairs to where the gymnastics class was being held. I asked him where he was going, as only the gymnastics instructor, participants and their parents are permitted in the mail hall whilst gymnastics is on. He said that he was going to do gymnastics, and I informed him that the gymnastics was only for children 16 yrs and under. He then said that he wanted to go and watch the class, and I informed him that that also would not be possible. He became quite insistent that he should be allowed to either take part in the gymnastics class or watch it. I was concerned about his behaviour, particularly with regard to this activity involving young people, so I asked him to leave the club premises, which he did.
This morning, 15/09/10, I asked the club Police Officer, S/C Amanda Bazley, if she could do a Police check of the person as I was concerned about his behaviour last night.
S/C Bazley, whilst not disclosing the content of the Police check, strongly recommended that his membership be refused, and that he not be permitted to attend the Club for any reason. A Police information report was generated by S/C Bazley. - I-42475229."
This was Ms Irwin's initial account of the altercation to which I have referred above. She repeated it, in more detail, in oral evidence. The plaintiff's account was somewhat different. Ms Irwin provided the plaintiff's name, date of birth, address and telephone number.
Senior Constable Bazley also prepared a report for use within the COPS Intelligence Information System. Her report was given the number I42475229 (Ex D). The substance of it was as follows:
"About 5:30pm on Tuesday the 14th of September, 2010 the POI [person of interest] attended the Location and completed a membership form as he wished to utilise the weights room. (which is located in the downstairs area of the club).
At approximately 6pm the POI was seen walking up the stairs to the second level of the location.
He was verbally stopped by the Witness [Ms Irwin] who informed the POI that due to gymnastics running upstairs he was not able to attend.
The POI stated, 'I just want to join in.'
The Witness informed the POI that only parents and children under the age of 16 years could be present upstairs.
To which the POI replied, 'I'll just go up and watch then.'
The POI then asked, 'Where can I go and do Gymnastics in the area?'
The POI was informed that the only other place that ran Gymnastics was the 'North Coast Gymnastics Academy.
Due to the POI's persistance [sic] and suspicious behaviour he was asked to leave the location.
The North Coast Gymnastics Academy was contacted and the coach, Alex was informed that the POI may attend the location.
Due to the POI's history there are concerns that he may be trying to infiltrate youth related activities within the Lismore area."
It is clear that Senior Constable Bazley was not present at the time of the incident involving the plaintiff and Ms Irwin, and this report was the result of what had been told to her by Ms Irwin.
The report made by Ms Irwin within PCYC very quickly came to the attention of Inspector Moore, who was then the Senior Officer on duty, Superintendent Harding being out of the office. Inspector Moore contacted Senior Constable Bazley. His evidence of that conversation is as follows:
"I said 'What's going on?' She said, 'There's been an incident here with a gentleman, Mr Giovannetti, who has signed up for a membership. Went into the weights room, then made his way into the gymnastics room and he was approached by a staff member, Sharon Irwin, who asked him not to go in there.'
There was a conversation between those two. To the best of my recollection he was, Mr Giovannetti was instructed that the gymnastics area is for under 16s only and their parents and the instructors and he was asked to remove himself from there to which he then became agitated. To which he then made a claim that he wished to participate in the gymnastics. Which he was then told it was for under 16s only and asked to leave the premises due to the fact that Miss Irwin was getting concerned about his behaviour ...
Further to that I asked had she completed any checks, police checks as part of the process. And she indicated to me, well, she said, Bazley said, 'There's links to paedophilia'."
As a consequence of the information conveyed to him by Senior Constable Bazley, Inspector Moore accessed the COPS database, searching for references to the plaintiff. That produced a number of entries (Ex 11).
The opening page of the plaintiff's file in the database contains three warnings, one dated November 2002, suggesting that he may be "mentally challenged"; another dated January 2009 with, in double asterisks, the word "paedophile" and the notation "stalks female children/adolescents, behaviour around children/schools/youth events to be monitored and recorded"; and the last dated December 2009, reading "Argumentitive [sic] and irrational. Has strong dislike of police".
Within the file are a number of descriptions of "events" involving the plaintiff, going back to 2002. These include:
- an entry describing an occasion in May 2002 on which the plaintiff allegedly "refused to pay" for petrol he had obtained from a service station. The record states that Police followed the plaintiff to his parents' address where $7 was provided. [In his evidence, the plaintiff gave an exculpatory account of this incident.];
- an incident, also in 2002, when the plaintiff allegedly came into conflict with a doctor at a medical centre as to which Police were called and conveyed him to the psychiatric unit of the Royal North Shore Hospital. [The plaintiff also gave an account of this event in his evidence.]
There were a number of other entries which it is unnecessary here to detail. There were, however, some that do call for further explication. One entry (February 2008) describes the plaintiff as being infatuated by a young woman who was a neighbour and who he had allegedly been following. The entry also records an exchange between the plaintiff and the young woman's boyfriend. These incidents were reported to Police.
A subsequent entry, in September 2008, records that the plaintiff entered a store in Casino where the young woman was employed, contrary to a Personal Violence Order that had by then been obtained for the protection of the young woman.
Another entry, in November 2008, records an alleged event in which the plaintiff attended an event, called "Crankfest", at the Casino Civic Hall, where he was said to have approached a young female, who was aged 14 years, asked her for her telephone number and suggested that he might put his number into her mobile telephone. It alleges that the plaintiff began to rub the outer thigh of the young woman. The record states that friends of the young woman gathered around, and he asked them also for their telephone numbers, and called them "sluts". The plaintiff gave evidence of this occasion, to which I will come.
Another entry, in November 2008, reports that the plaintiff had been observed by an off duty police officer driving very slowly in his motor vehicle outside a private high school in Casino. He was following two school students estimated to be about 14 years of age, and was said by the reporting officers to have been "very obviously ogling" the students. The entry concluded with the note that the report was submitted "due to [the plaintiff's] recent worrying behaviour".
The plaintiff claimed to have no knowledge of this incident, calling it a "load of rubbish", "fabricated from A to Z ...".
Finally, an entry of December 2009, describes an occasion on which the plaintiff allegedly attended the Casino Local Court registry and was abusive to court staff until Police were called. Again, the plaintiff gave evidence of this incident, although he perceived it differently.
This information, in addition to the information conveyed to him by Senior Constable Bazley, was in the possession of Inspector Moore on 15 September when he sent the email the subject of these proceedings to Mr Gardiner. He communicated with Mr Gardiner because Mr Gardiner was the only person with the authority to terminate a PCYC membership. Inspector Moore copied the email to his immediate superior, Superintendent Harding. Mr Gardiner took immediate action to terminate the plaintiff's membership of the Lismore PCYC.
By separate email (Ex 8) on the same day (15 September), Mr Gardiner notified four others of the termination of the plaintiff's membership. They were Mr Mark Greig, the Manager of the Lismore PCYC, Acting Senior Sergeant Peter Ryman, the Northern Zone Commander; Senior Constable Bazley as the Police Officer stationed at the Lismore PCYC; and Mr Danny Kapustin, the General Manager of PCYC Operations, to whom Mr Greig reported. The notification was given by email, under the subject heading "Screening decision" the importance of which was classified as "High". However, the notification merely advised that:
"Following a Police check, a recommendation has been received and accepted from the Command that membership for a Mr Benjamin Giovanetti be declined/terminated."
and requested that Mr Greig advise Mr Giovannetti of the decision. It did not contain the same material as was contained in the matter complained of.
On 16 September the plaintiff returned to the Club, at about midday. Ms Irwin notified Senior Constable Bazley, who quickly attended. Ms Irwin told the plaintiff that a decision had been made to terminate his membership. He demanded to know the reason. The plaintiff became very angry, and told Ms Irwin that he hated the NSW Police, as they were:
"... a Satanic Zionist Communist conspiracy."
He told Ms Irwin that she was a:
"... fat un-Australian old bitch."
Ms Irwin refunded the membership fees that the plaintiff had paid. Senior Constable Bazley told him to leave the Club premises.
Also on 16 September 2010 Mr Gardiner wrote to the plaintiff. He wrote:
"As you know, when you applied to be a Club Member with PCYC you consented, as part of the membership acceptance and review process, to an initial and ongoing Police checks.
As a result of such a check, I am writing to advise you that your membership application has been declined. This decision has been communicated to the local Club and, I understand, orally to you by Club staff.
PCYC neither seeks nor is provided with information arising in a Police check, and we accept any recommendation against a person's membership when made. The decision in such matters is not subject to appeal.
PCYC takes this position in the interests of our Club members, to protect the special working relationship we have with the NSW Police Force, and to protect the reputation of both organisations.
I trust we will receive your cooperation in this matter." (Ex 10)
On 28 September 2010 the plaintiff wrote to Mr Gardiner (Ex A), referring to a letter dated 16 September 2010 (which I assume to be the formal notification to the plaintiff of the termination of his membership). The plaintiff told Mr Gardiner that he had no criminal record and knew of no reason why police should recommend against his joining the PCYC. He requested access to the police check and recommendations. According to the plaintiff's evidence, this letter was written with the assistance of the Legal Aid office in Lismore.
On 1 October Mr Gardiner replied. He said:
"In my letter to you dated 16 September 2010 I noted the following:
1. When you applied to be a Club Member with PCYC you consented, as part of the membership acceptance and review process, to an initial and ongoing Police checks.
2. As a result of such a check, your membership application has been declined.
3. PCYC neither seeks nor is provided with information arising in a Police check, and we accept any recommendation against a person's membership when made.
I am not able to provide you with information sourced or used by NSW Police Force in recommending that your membership be declined. You will need to take that matter up directly with NSW Police Force.
Given your consent to his process, and the advice I have provided, I consider this matter now closed."
It will be seen that this was essentially a replication of the letter of 16 September.
On 13 October 2010 solicitors acting for the plaintiff made a "Freedom of Information Application" under the GIPA Act (which had come into effect on 1 July 2010). The documents sought were identified as:
"All documents relating to a police check on Benjamin Giovannetti (sometimes misspelt 'Giovanetti') requested by the PCYC in respect to his membership application with the PCYC of 2010."
The request was referred to Sergeant Courtney and by him to Mr Gardiner. Mr Gardiner's response was to forward to Sergeant Courtney the email of 15 September 2010 - the matter complained of. This is the republication of which the plaintiff complains.
In response to the GIPA Act application, on 19 November 2010 the NSW Police Force provided the plaintiff's solicitors with the email of 15 September 2010 (the matter complained of) together with the email by which Mr Gardiner had forwarded the matter complained of to Mr Courtney.
Also provided to the plaintiff's solicitors were Mr Gardiner's letter of 16 September 2010, and Incident Reports of the 2008 "Crankfest" event, and the Casino Local Court incident of December 2009.
It is on these facts that the plaintiff brought proceedings in this Court. Publication of the matter complained of is limited to Mr Gardiner (the CEO of PCYC and the only person to have authority to terminate the plaintiff's membership), and Superintendent of Police Allan Harding (the Senior Police Officer with responsibility for PCYCs) and, two months later, precipitated by the plaintiff's GIPA Act application, to Mr Grant Courtney - a Sergeant of Police and Zone Commander of PCYC.
The plaintiff gave evidence in the proceedings. His account of the events of 14 September was different to that of Ms Irwin. He agreed that Ms Irwin had told him that the gymnastics on offer was only for young people. On the plaintiff's account, he readily accepted what Ms Irwin had told him.
In cross-examination he denied having told Ms Irwin (on 16 September) that the police force was a "Satanic Zionist Communist organisation" and denied telling Ms Irwin that she was a "fat un-Australian bitch".
The plaintiff gave a good deal of evidence that I can only assume was directed towards establishing malice, or antipathy towards him by various members of the NSW Police Force. His evidence went beyond that, and asserted hostility towards him generally by members of the public. For example, he recounted an occasion when he was at Nambucca Heads, some distance from Lismore, on which he had stopped at a fast food restaurant to eat the lunch he had brought with him. He said that "a couple of women" leaned forward and watched him walk to the car. He obviously interpreted this as signifying suspicion on their part towards him, and considered this as typical of behaviour exhibited towards him.
He said that this made him feel as though he was "a very bad person with bad intentions", and:
"Well, what's happening now is I'm starting to question the intentions of the people in front of me. Because when, you know, there's a passage in this here Bible that calls Satan the false accuser and I'm getting a lot of false accusations. I'm starting to question if the people in front of me have any good about them. That's where it's at."
Of the town in which he lives, the plaintiff said:
"First of all I don't have much esteem for [name of town], I think it's a pretty bad place. There's a lot of drugs. There's a lot of bad people. I found that out the hard way. I sort of landed there, not knowing where I was. But I quickly found out it was a bad place. Including mothers, including fathers. People that lie, people that fabricate stories, gossipers, people that take delight in turning trivial events, putting a malicious spin on trivial events to get others in trouble and take great delight in that. And that's what I found out when I was in [name of town]."
He said that the town's people acted maliciously towards him, but that he did not blame the girls involved because they had been the victims of brainwashing.
In cross-examination the plaintiff was asked about an incident alleged to have occurred in November 2012 (post dating the events the subject of the proceedings). It was put to him that he had been standing at the gate of a home unit complex, watching a 10 year old girl hanging washing on the clothes line, and had asked her where a particular unit was. (The unit was said to have been clearly marked.) The plaintiff denied that any such incident had occurred. In answering the question, the plaintiff said:
"If you are asking me what I'm aware, I'm aware of people acting bizarrely at the slightest interaction. He said this. He said that. It's my God given right if I wish to use my tongue. It's been placed in my mouth for a purpose. It's used for talking."
And beyond that, where are the acts? You have got nothing. Just false accusations and allegations. And it's coming from a broad spectrum of people, I'll give you that."
I found the plaintiff's evidence to be quite unreliable. This was in part because of his perception of the world as persecuting him. To the extent that his evidence was inconsistent with that of other witnesses (notably that of Ms Irwin) I prefer the evidence of the other witnesses. This, however, has limited impact on the outcome. The motivation for Inspector Moore's email did not lie entirely in the event at the PCYC on 14 September. That event precipitated the inquiries he made, but it was the results of those inquiries that motivated Inspector Moore to take the course that he did. It is therefore immaterial whether the incident on 14 September took place as Ms Irwin described, or as the plaintiff described. To the extent that it is material, I accept Ms Irwin's version.
The plaintiff was asked about a number of the incidents mentioned in the COPS database. He gave exculpatory accounts of each.
With respect to the Crankfest incident noted on the COPS database, he said that he recognised the female from the Casino Lions club; he thought she looked at least 18 years of age. She came and sat next to him, and he asked her how she was going. She showed no interest in him. He attempted to engage her in conversation and offered her his telephone number. He said that she then asked if he knew how old she was, and told him that she was 14 years of age. He said that that "destroyed the conversation"; she turned to talk to others, who began throwing rubbish at him. He then gave some rather strange answers. The transcript records the following:
"Q. ... Now, apart from what you have said, you didn't do anything to her, did you?
A. No. There were just too many people in the room. There was a man standing next to me most of the time, her father.
Q. Right. By that, you are not trying to suggest that you wanted to do something, did you?
A. Well, I wouldn't - it wouldn't be the best place. There's not much privacy there, you know. Everybody can see what you are doing."
In cross-examination, when asked if he had touched the girl, he said:
"With the rubbery hand that sort of waves around and wraps around and goes underneath, no, I didn't, no, no."
I do not accept the plaintiff's accounts and explanations of other of the alleged incidents. However, that does not have the consequence that I accept that the incidents occurred as described in the COPS database. The reports on the database did not and could not constitute evidence that those incidents occurred as described. Indeed, the evidence was expressly admitted subject to the limitation under s 136 of the Evidence Act 1995 that the reports were not admitted as evidence of the facts therein stated.
My rejection of the plaintiff's accounts of these incidents simply means that there is no acceptable evidence to support the allegations.
The defences
I have set out above the four separate defences upon which the State of NSW relies. In addition, it contends that imputation (d) was not conveyed. A distinction was drawn between the indication in the email that police would be "advised", and the accusation that the plaintiff should be "reported". Although with some reservations, I have concluded that that imputation was conveyed, by reason of the reference to the incident report and the concluding line of the email in which Inspector Moore told Mr Gardiner that he would advise police. There is no relevant distinction between "advising" police and "reporting" to police.
There was no issue that each imputation was defamatory of the plaintiff.
I then turn to the specific defences raised.
(i) qualified privilege at common law
The defence of qualified privilege at common law is attracted when a communication is made by one person to another (or others) in circumstances where the person making the communication has a duty, whether legal, social, or moral, to provide information to the recipient, and the recipient has a corresponding interest or duty in receiving such information: Adam v Ward [1917] AC 309; Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044; and see Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; 241 CLR 79.
Where such a communication is made, the occasion of the communication is a privileged one. Protection is afforded even to an otherwise defamatory statement made in the course of the communication. The privilege is lost if the occasion is misused, that is, is used for a purpose other than that for which the protection is provided. Use of an occasion of qualified privilege for an extraneous purpose is held to constitute malice, whereupon the defence is defeated.
To illustrate the way in which the defence operates, there can be no clearer case that the present. The email written by Inspector Moore concerned the welfare of young people using the facilities of the Lismore PCYC. Having informed himself of the plaintiff's conduct, and of the contents of the COPS database, Inspector Moore had a duty to inform the CEO of PCYC that the plaintiff represented a risk to the organisation. Had he not done so, he would have failed in his duty. Mr Gardiner, the CEO, had the requisite corresponding duty to receive such information. Superintendent Allan Harding, to whom the email was copied, as Commander of the Youth Command of the NSW Police Force, had an equal interest in receiving the information, and, no doubt, a duty to do so.
In final submissions, counsel for the plaintiff made no attempt to argue against the proposition that the elements of the defence of qualified privilege at common law were made out. Instead, he focussed his argument on the issue malice. Malice is an issue on which the plaintiff bears the onus of proof.
Counsel for the plaintiff pointed to two circumstances as evidence of malice. One was a sentence in the incident report made by Ms Irwin, as follows:
"Senior Constable Bazley, whilst not discussing the content of the Police check, strongly recommended that his membership be refused, and that he not be permitted to attend the Club for any reason."
The second was the use of the adjective "extreme" in the email itself, when Inspector Moore described the plaintiff as an "extreme risk to PCYC".
The submission was made that the language used exceeded what was permissible for a communication on the occasion of qualified privilege. Reliance was placed upon the decisions of the NSW Court of Appeal in Goyan v Motyka [2008] NSWCA 28; [2008] Aust Torts Reports 81-939 and Skalkos v Assaf [2002] NSWCA 14; [2002] Aust Torts Reports 81-644. I have, in Megna v Marshall [2010] NSWSC 686 considered the conclusions to be drawn from those decisions: but see Megna v Marshall [2013] NSWCA 30.
It is only necessary to read the outline of the communications in Goyan and Assaf to appreciate that there is a world of difference between the floridity of the language used in those cases, and the language used in the report by Ms Irwin (reciting a recommendation by Senior Constable Bazley) and the email sent by Inspector Moore. The language used does not remotely diminish the strength of the defence of qualified privilege.
Although a good deal of the plaintiff's evidence appeared to be directed to establishing that various members of the NSW Police Force (as well as others) were ill disposed towards him, this was not pursued in final submissions. Malice has not been established.
The defence of qualified privilege at common law succeeds.
(ii) statutory qualified privilege: Defamation Act 2005, s 30
Section 30 of the Defamation Act 2005 relevantly provides:
"(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject, and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward."
In respect of this defence also, it was not disputed on behalf of the plaintiff that the essential elements spelled out in sub-s (1)(a) and (b) were made out. Focus was upon the reasonableness of Inspector Moore's conduct (sub-s (1)(c) and sub-s (3)) and malice, as provided in sub-s (4). The same two arguments were advanced as evidencing unreasonableness - that is, so called excessive language in the email, and the so called excessive strength of the recommendation by Senior Constable Bazley. For the same reasons as I have given above, I reject that argument also. There was nothing unreasonable in Senior Constable Bazley making her recommendation in the terms that she did; there was nothing excessive, and therefore unreasonable, in the terms used by Inspector Moore in his email.
The defence of qualified privilege pursuant to s 30 of the Defamation Act succeeds.
(iii) substantial truth: Defamation Act, s 25
Section 25 of the Defamation Act provides as follows:
"It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true."
Evidence of the content of the COPS database was admitted as material available to Inspector Moore in determining what course to take in respect of the plaintiff's membership of PCYC, and therefore relevant to the qualified privilege defences. The evidence was expressly not admitted as truth of the contents of the various reports contained in the database.
Whether:
- the plaintiff is an extreme risk to the PCYC;
- the plaintiff should be banned from the Lismore PCYC because of his involvement in the incident of 14 September 2010;
- the plaintiff should have his membership of the Lismore PCYC revoked immediately because of his involvement in that incident;
- the plaintiff should be reported to police because of his involvement in that incident;
must be determined on the evidence of his conduct on the two days that he attended the Lismore PCYC, and oral evidence given in the trial. The reports contained in the COPS database are irrelevant for this purpose.
I have already indicated that, in respect of the incident of 14 September, I accept Ms Irwin's evidence in preference to that of the plaintiff. That persuades me that the substantial truth of imputations (b), (c) and (d) has been established. It does not persuade me that the substantial truth of imputation (a) is established.
So far as imputation (a) is concerned, the defence of substantial truth fails. In respect of imputations (b), (c) and (d) that defence succeeds.
(iv) triviality: Defamation Act, s 33
Section 33 of the Defamation Act provides as follows:
"It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm."
This defence cannot be sustained. The email was written by Inspector Moore for the very purpose which it achieved - to have his membership of the Lismore PCYC terminated. It could hardly be said that such a termination would be unlikely to cause harm to the plaintiff, including to his reputation.
I reject the defence of triviality.
Republication
The plaintiff also relied upon the republication of Inspector Moore's email on 15 November 2010. This was done by Mr Gardiner in response to the plaintiff's request for information under the GIPA Act. Section 113(1)(a) of the GIPA Act provides;
"(1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made:
(a) no action for defamation ... lies against the Crown ... by reason of the making of the decision or the disclosure of information ...
(b) ...
(2) ..."
I am satisfied that, in forwarding Inspector Moore's email to Senior Sergeant Courtney in response to the plaintiff's request for information under the GIPA Act, Mr Gardiner believed in good faith that the GIPA Act permitted or required the disclosure of the information.
Accordingly, this aspect of the claim must fail.
Damages
The success of the defences of qualified privilege have the inevitable consequence that the Statement of Claim must be dismissed. However, it is appropriate to make an assessment of damages that would be awarded had the plaintiff succeeded. Those damages are insubstantial. The extent of publication was extremely limited. Even allowing for some "grapevine effect", the extent to which the plaintiff's reputation could be affected was very small. I accept that, as a direct consequence of Inspector Moore's email, Mr Gardiner acted on his recommendation and terminated the plaintiff's membership of the Lismore PCYC. That, I accept, would sound, although to a limited extent, in damages.
I assess the damages that could be awarded at $2000.
It is arguable that the plaintiff's real complaint lies in the decision to exclude him from the Lismore PCYC, rather than the means by which the decision was communicated: see Stanton v Fell [2013] NSWSC 1001. In my opinion claims in defamation ought not to be used as a substitute for, or a back door means of, seeking appropriate review of administrative or other decisions.
Orders
The orders I make are:
(i) The Statement of Claim is dismissed;
(ii) The plaintiff is to pay the defendant's costs of the proceedings.
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Decision last updated: 07 January 2014
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