Haddon v Forsyth
[2011] NSWSC 123
•08 March 2011
Supreme Court
New South Wales
Medium Neutral Citation: Haddon v Forsyth [2011] NSWSC 123 Hearing dates: 22 March 2010; 23 March 2010; 24 March 2010; 25 March 2010; 26 March 2010; 29 March 2010; 30 March 2010; 31 March 2010; 1 April 2010; 6 April 2010; 7 April 2010; 8 April 2010; 9 April 2010; 21 April 2010; 23 April 2010 Decision date: 08 March 2011 Before: Simpson J Decision: 1. Verdict for the defendants.
2. The plaintiff pay the defendants' costs.
Catchwords: DEFAMATION - trial by judge alone on all issues - publication of emails - imputations of sexual harassment and conduct warranting complaints of unwanted sexual advances - limited number of recipients - each recipient had knowledge and a close association with events concerned in publication
DEFAMATION - defences - substantial truth - meaning of "sexual harassment" - whether conduct properly characterised as sexual harassment - whether conduct warranted complaints of unwanted sexual advances - contextual truth - s 26 Defamation Act 2005 - pleading back - imputations pleaded on behalf of plaintiff significantly more serious
DEFAMATION - defence of honest opinion - s 31 Defamation Act 2005 - defence fails - clear statement of facts - not a matter of public interest
DEFAMATION - common law qualified privilege - statements made in pursuance of duty or interest - proper identification of subject matter - approach to determining extent of interest - incidental recipients - reciprocity - "pressing need" test not applied - s 30 Defamation Act 2005 - reasonableness of conduct - plea of malice - whether privileged occasion used for improper purpose
DEFAMATION - publication - email - where recipients of publication are also co-authors - electronic communication - whether co-authors can be recipients for the purpose of defamation law
DAMAGES - evidence of hurt and distress - damage to reputation - publication within limited circle
WORDS & PHRASES - "sexual harassment" - ordinary meaningLegislation Cited: Anti-Discrimination Act 1977 (NSW)
Defamation Act 1974
Defamation Act 2005
Sex Discrimination Act 1984 (Cth)
Uniform Civil Procedure Rules 2005Cases Cited: Adam v Ward [1917] AC 309
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183
Bennette v Cohen [2009] NSWCA 60
Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91
Farquhar v Bottom [1980] 2 NSWLR 380
Fricke v Whyburn [2003] NSWADT 10
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852
Lloyd v David Syme and Co Ltd (1985) 3 NSWLR 728
London Artists Ltd v Littler [1968] EWCACiv 3; [1969] 2 QB 375
Megna v Marshall [2010] NSWSC 686
Poniatowska v Hickinbotham [2009] FCA 680
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500
Singleton v Ffrench (1986) 5 NSWLR 425
Te Papa v Woolworths Ltd trading as Safeway (Anti Discrimination) [2006] VCAT 1222
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044Texts Cited: Gatley on Libel and Slander, Sweet & Maxwell, 11th ed
Macquarie Dictionary
Oxford English Dictionary
The New Shorter Oxford DictionaryCategory: Principal judgment Parties: Bruce Haddon (Plaintiff)
The Right Reverend Robert Forsyth (First defendant)
The Reverend Dominic Steele (Second defendant)
Evan Batten (Third defendant)Representation: Counsel:
S Wheelhouse SC/R Potter (Plaintiff)
K P Smark SC/S T Chrysanthou (Defendants)
Solicitors:
DLA Phillips Fox (Plaintiff)
HWL Ebsworth Lawyers (Defendants)
File Number(s): 2009/297442
Judgment
The subject matter of these proceedings is two (almost identical) email communications, of the same date (15 February 2008) each of which, the plaintiff claims, conveyed imputations that defamed him. The content of the emails is set out below at [5].
The plaintiff is Bruce Alexander Haddon. The defendants, initially, were named as the Right Reverend Robert Forsyth (first defendant), who was and is the Anglican Bishop of South Sydney; the Reverend Dominic Steele (second defendant), who was and is an ordained Minister of the Church of England; and Evan Batten (third defendant), who was and is an active member of the Church of England.
On 18 February 2010, the proceedings against Bishop Forsyth were discontinued. However, throughout the proceedings, the remaining defendants, the Reverend Steele and Evan Batten, were referred to as the second and third defendants. In order to avoid confusion I will refer to them by name. In the interests of consistency I will also refer to the plaintiff by name.
The proceedings are governed by the Defamation Act 2005 ("the Act"). No party elected for trial by jury and, accordingly, all issues are to be decided in these proceedings, including whether any or all of the imputations of which the plaintiff complains was or were conveyed, and, if so, was or were defamatory of him (cf Defamation Act 1974 ("the 1974 Act"), s 7A).
Each email gave as the subject line:
"I need to ask you not to join us this Sunday night"
I reproduce the content of the second:
"Dear Bruce,
We were disappointed that after Dominic and Evan's meeting with you last Sunday (10.2) where you agreed to a requested conduct-agreement in regards to relations with women, you broke that agreement a number of times after church finished on Sunday night.
In the meeting on Sunday Dominic and Evan raised concerns about your conduct towards women and your negative theological impact on our church family.
You will remember that after a number of complaints from women Dominic and Evan asked you to:
(a) not to lead conversations towards sexual matters or make comments to women about their appearance, dress, weight, tan, hair, body shape, legs, neck etc.
(b) not to touch or kiss women at church.
(c) not to focus your social interactions on women and to avoid women new to church.
(d) to focus your social interactive time with men of long standing in our church fellowship.
Given that, after agreeing to that conduct-agreement, you broke it a number of times 90 minutes later, I need to ask you not to join us this Sunday night - while we work out how to approach this problem.
Also, we think it would be best if you didn't plan to join us on the church weekend away later this month.
Thanks for your assistance in this matter.
Yours,
Dominic Steele (Minister), Frag Woodall, Rob Taylor, Pinghan Chua (Wardens), Evan Batten (Church Councillor)"
The "Bruce" to whom the email is directed is Mr Haddon himself. As will appear below, the email was copied to a number of other recipients.
Mr Haddon claims that each email conveyed five imputations defamatory of him; given the similarity of the two emails, it is hardly surprising that the imputations are pleaded in identical terms. The imputations pleaded are:
"1. the Plaintiff sexually harassed female members of a church congregation by introducing inappropriate sexual topics into his conversation with them;
2. the Plaintiff sexually harassed female members of a church congregation by inappropriately touching and kissing them;
3. the Plaintiff so conducted himself towards female members of a church congregation to warrant complaints being made against him that he had made unwanted sexual advances to them;
4. the Plaintiff is a sexual predator who preys upon female members of a church congregation;
5. the plaintiff is unfit to be a member of his church as he behaved in an offensive manner towards a number of female members of the congregation."
In their defence the defendants deny that the content of the emails was capable of carrying, or did in fact carry, the imputations pleaded, and deny that that content was capable of being, or was in fact, defamatory of the plaintiff.
In addition, they plead a variety of specific defences, as follows:
(i) truth, as provided by s 25 of the Act;
(ii) contextual truth, as provided by s 26 thereof;
(iii) fair comment at common law;
(iv) honest opinion, as provided by s 31 of the Act;
(v) qualified privilege at common law;
(vi) qualified privilege, as provided by s 30 of the Act.
A final matter of defence is somewhat unusual. It is that a number of the individuals said to have been recipients of the second email were in fact co-authors of it and therefore not recipients for the purposes of the law of defamation.
By way of response to the defences of qualified privilege at common law and pursuant to statute, the plaintiff pleads that, in publishing the emails, the defendants were actuated by malice. By way of response to the defences of fair comment at common law, and honest opinion under s 31 of the Act, the plaintiff pleads that neither defendant honestly held the opinion said to be represented in the publications.
As I have indicated above, the defendants have denied that the emails were capable of conveying, or that they did in fact convey, any of those imputations. They have also denied that any imputation, if conveyed, was capable of, or did in fact, defame Mr Haddon. Accordingly, these are the first questions for resolution.
Defamatory meaning
The basis on which juries are traditionally directed in respect of whether a publication conveys defamatory imputations is well known. The test is that of "the ordinary reasonable reader/viewer/listener". A defamatory imputation is conveyed by the publication if it can reasonably be postulated that the "the ordinary reasonable reader/viewer/listener" would consider that the publication conveyed that meaning. "The ordinary reasonable reader/viewer/listener" is said to be of fair average intelligence, fair minded, not overly suspicious, not "avid for scandal", not nave, not searching for strained or forced meanings, and one who reads the entirety of the publication of which complaint is made: Farquhar v Bottom [1980] 2 NSWLR 380, at 385-6; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165.
The exercise is to be undertaken, in a sense, in an evidentiary vacuum: care must be taken to ensure that the determination of the issue is not clouded by evidence that has been heard, particularly where a defence of truth has been pursued; for the purpose of deciding whether the publication conveyed defamatory imputations, that evidence must be ignored: Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500.
That evidence might cloud this issue was the thinking behind the 1995 enactment of s 7A of the 1974 Act, now repealed: see also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 456, 473.
In Lamb , Brennan J (as he then was, and with whom Gibbs CJ and Stephen, Murphy and Wilson JJ agreed) said:
"Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally ..." (p 506, internal references omitted)
Later, his Honour said:
"The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes." (p 507)
His Honour added that, notwithstanding that, a particular impact of a defamatory imputation may be proved. This, of course, was in relation to the assessment of damages.
In the circumstances of the present case, the exercise has a degree of artificiality. As will become apparent from what I write below, the emails in this case were published to an extraordinarily limited number of recipients, each of whom had a close association with the environment in which they were published, and in which the events with which they were concerned took place. Most, if not all, had at least some prior knowledge of the relevant facts and circumstances. It might, therefore, be expected that they would read the emails differently from the "ordinary reasonable reader" or "hypothetical referee" who did not have that inside knowledge.
However, the law is plain, and my duty is to approach the determination of whether or not any imputation pleaded was conveyed by reference to the "ordinary reasonable reader" or the "hypothetical referee", as though the email had been picked up off the street by a casual passer by who had the attributes I have outlined above: Parker , p 455.
It is therefore convenient to deal with that issue at this stage. Given that the two emails are virtually identical, for this purpose they can be treated as a single entity.
It is relevant to take into account the nature of the publication. In this respect, I bear in mind that the publication is plainly of a serious nature, likely to command careful attention from its recipients. It is not a transient publication, but one that can be retained on the computer for re-reading, or printed in a permanent form. Its tone is relevant; it is earnest and restrained in its terms. There is no hyperbole, no emotional overtone or undertone.
Two aspects of the written submissions filed on behalf of the defendants need to be noted.
In para 99, it was submitted that the email would not have been read as expressing a concluded position, since the events to which specific reference was made (an unspecified event scheduled for Sunday, 15 February, and "the church weekend later this month") were short term, and the suggestion that Mr Haddon absent himself from those events "while we work out how to approach this problem" did not suggest that the problem which had arisen was regarded as insoluble. None of this is to the point, though it may be true. The issue is merely whether, on a fair reading of the email, an ordinary reasonable reader would consider that Mr Haddon had been accused of conduct of the kind set out in any or all of the five pleaded imputations.
A similar response must be made to the submissions made in para 103, to the effect that the ordinary reasonable reader of the email would consider that the subject matter was an asserted breach of a "conduct-agreement", and not specific forms of conduct the subject of what is asserted to have been "a number of complaints from women". It is perfectly plain that the ordinary reasonable reader would regard "the conduct-agreement" as encompassing that very kind of behaviour, and that the email asserted that Mr Haddon had engaged in that behaviour, and further, that in breaching the agreement he had repeated conduct of that kind.
I turn now to the individual imputations. It will be necessary to deal at some length with the first; the others may be dealt with more briefly.
Imputation 1: "the Plaintiff sexually harassed female members of a church congregation by introducing inappropriate sexual topics into his conversation with them"
I am satisfied, contrary to the arguments advanced on behalf of the defendants, that this imputation was clearly conveyed. In advancing those arguments, counsel for the defendants engaged in a minute analysis of the language of the email quite unsuited to the task of identifying what meanings the ordinary reasonable reader or the hypothetical referee might read into it; they made particular reference to what does not appear in the email.
They began by dividing the imputation into two component parts:
- that Mr Haddon behaved in a particular way (by, inappropriately, introducing matters of a sexual nature into conversations with women);
- that this behaviour constituted sexual harassment.
I accept that that is a correct approach.
In an attempt to anticipate what would be put on behalf of Mr Haddon, they then constructed, against themselves, a hypothetical proposition: this was that Mr Haddon advanced his case on the basis that the paragraph lettered (a) in the email together with the assertion that Mr Haddon had breached the conduct agreement, conveyed the imputation; alternatively or additionally, that sub-paragraph (a), read with the assertion of complaints from women, conveyed the imputation.
The argument that then followed was based upon a false premise. That was that the imputation as pleaded accused Mr Haddon of sexual harassment, specifically by introducing inappropriate sexual topics into his conversations on 10 February 2008 . Counsel then argued that the email could not be so construed, because it was conspicuously silent as to which aspects of the conduct agreement Mr Haddon was said to have broken.
Two things defeat this proposition. Firstly, the imputation is not confined to conduct on 10 February. It is more general, and accuses Mr Haddon of conduct of that kind in general terms. As counsel for the defendants acknowledged, the ordinary reasonable reader would infer, by reason of the specific terms of the conduct agreement set out in paragraphs (a) to (d), that Mr Haddon had, prior to 10 February, been guilty of conduct of an unsatisfactory kind towards women. That is sufficient to establish that the first part of the imputation was conveyed.
Even if that were not so, and the imputation was confined to conduct said to have been engaged in on 10 February, I would be satisfied that it was conveyed. The inference drawn by the ordinary reasonable reader may not be sufficient to withstand the scrutiny of legal analysis, but that is not the correct approach to the question of whether an imputation is conveyed.
In clear enough terms, the email asserts that Mr Haddon had been guilty of conduct of the kind specified in paragraphs (a), (b) and (c), and further asserts that he had, on 10 February, broken that agreement. It is a reasonable inference (though not, possibly what the author intended to convey) that Mr Haddon had breached each of the specific terms mentioned. The email does state that he broke the agreement "a number of times".
It was then argued that the words "after a number of complaints from women", together with the request that Mr Haddon not lead conversations towards sexual matters, could not convey the imputation because:
"... it would not be reasonable for the reader to conclude that each and every one of those requests corresponded to specific prior conduct by the plaintiff." (para 113)
This contention is entirely unsustainable. There is no reason to think, and the ordinary reasonable reader would have no reason to think, that "Dominic" and "Evan" (the signature line would indicate to the ordinary reasonable reader that these were Mr Steele and Mr Batten) requested of Mr Haddon an agreement not to engage in specific forms of conduct unless they also asserted that he had in the past engaged in conduct of that kind; nor would the ordinary reasonable reader think that Mr Haddon would have agreed to such a request unless accused of behaviour of that kind. The very fact that the email asserts that he had been requested (and had agreed) not to engage in conduct meeting that description shows that the author was asserting that, on previous occasions, he had engaged in conduct of that kind.
Counsel then attacked the second component, the notion of sexual harassment. They argued, firstly, that to the ordinary reasonable reader the notion of (sexual) harassment involves an element of an intention (although they followed this by a recognition that, since the enactment of legislation concerning sexual harassment, the ordinary reasonable reader may have a more sophisticated understanding of the concept). They then argued (para 117) that, leaving aside the issue of intention, the notion of sexual harassment usually requires some element of power or coercion, and is inapplicable in a social setting.
To my mind this demonstrates a lack of understanding of common notions of sexual harassment. I emphasise that what I am about to say is not drawn from any technicalities concerning the construction of Commonwealth or State legislation relevant to sexual harassment. For this purpose, I am concerned with what is perceived in the community generally as sexual harassment. It is true that sexual harassment too often does involve the abuse of a power relationship. But it is not always so. It may well, and often does, involve persistent sexual approaches or comments or references or other behaviour by a person of equal or even lower power or status; in some cases, power and status are irrelevant. But to engage in this argument is to fall into the very error that underlies the defendants' argument - that sexual harassment has a technical meaning. It is probably true, as the defendants acknowledged in their oral submissions, that the enactment of laws concerning sexual harassment have had the effect of broadening the understanding of what constitutes sexual harassment. But the term as used in the imputation is not confined to what might, under that legislation, be held to be unlawful conduct. The ordinary reasonable reader understands, in a non-technical, non-legal sense, the notion of sexual harassment. It includes, or can include, repeated sexual innuendo in conversation or personal comments that have sexual overtones.
I am quite satisfied that the email conveyed the imputation that Mr Haddon engaged in conduct fitting the description of sexual harassment by introducing inappropriate sexual topics into his conversations with women. This imputation was conveyed.
Despite that part of the pleading that denies that the imputations, if conveyed, were defamatory, no argument was directed to that proposition. The imputation was clearly defamatory.
Imputation 2: "the Plaintiff sexually harassed female members of a church congregation by inappropriately touching and kissing them"
As the defendants' submission acknowledged, the issues that arise in relation to this imputation are similar to those arose in relation to Imputation 1. They can therefore be treated more briefly, but with the same result. This imputation was conveyed, and was defamatory.
Imputation 3: "the Plaintiff so conducted himself towards female members of a church congregation to warrant complaints being made against him that he had made unwanted sexual advances to them"
This imputation also has two component parts. Again, the first part asserts conduct against Mr Haddon, although here the nature of the conduct is not specified; the second part concerns the characterisation of that conduct as warranting complaints of the kind specified.
The defendants' submissions implicitly accepted that the email conveys at least part of this imputation - that is, that some female members of CIM had complained of Mr Haddon's conduct, and that some of those complaints were warranted. That is correct - the email expressly refers to complaints, and, by stating, in effect, that the complaints had been taken up by what the reader might infer to be the church hierarchy, and that "how to approach this problem" was under consideration, it clearly implies that the complaints were taken seriously (and therefore warranted). Counsel for the defendants accepted that such a finding is not a finding that the complaints would, on investigation, be found to be substantiated. The point of contention concerns the words "that he had made unwanted sexual advances" to the women.
The paragraphs lettered (a) to (c) in the email identify, with some specificity, the kind of conduct of which Mr Haddon was accused. The question that next arises is whether that conduct could properly be read as making "sexual advances". What is, in the mind of the ordinary reasonable reader, a "sexual advance"? It is, in my opinion, something more than sexual harassment (although sexual harassment may include unwanted sexual advances, it does not necessarily do so). It involves some kind of proposition or invitation to engage in sexual activity. In the email, Mr Haddon is accused of:
- inappropriate sexual conversations;
- touching and kissing women;
- focusing his social interaction on women.
Strictly, none of these necessarily involves an invitation or proposition to engage in sexual activity. If those accusations were being analysed in a different context, for example in a criminal trial, it may well be that the onus of proof would not be discharged. But that is not the present exercise. In particular, the reference to "touching and kissing" does carry, to the ordinary reasonable reader, the notion of sexual advances - sexual advances that are plainly unwanted because they are the subject of complaint. And it is to be borne in mind that the imputation is not that Mr Haddon in fact made sexual advances to women, but, rather, that his conduct was such as to "warrant" complaints of that nature (although, I appreciate, that may be a fine point of interpretation not apparent to the ordinary reasonable reader).
On balance, I am satisfied that this imputation was conveyed and was defamatory.
Imputation 4: "the Plaintiff is a sexual predator who preys upon female members of a church congregation"
There is only one component of this imputation - that of predatoriness. The words "sexual predator" and "preys upon" are merely different parts of speech representing the same concept.
This imputation can only have been conveyed by a combination of the accusations contained in paragraphs (a) - (d) of the email.
The notion of "sexual predation" is of a significantly higher order than that of sexual harassment. (If that were not so, the imputation would fall foul of UCPR 14.30(3), prohibiting the pleading of imputations that do not differ in substance.)
Resort to the Macquarie Dictionary provides little assistance. In any event, I am mindful that this exercise ought not to place too much reliance upon dictionary definitions. What is at issue is what "the ordinary reasonable reader" would make of the email. The notion of predatory conduct must incorporate, at the very least, "taking advantage of", or the use of superior power, of whatever kind, in order to subjugate or exploit the victim. In my opinion, the email falls well short of accusing Mr Haddon of predatory conduct. I find that this imputation was not conveyed.
Imputation 5: "the plaintiff is unfit to be a member of his church as he behaved in an offensive manner towards a number of female members of the congregation "
I am satisfied that this imputation was not conveyed. There is nothing in the email that suggests that Mr Haddon is unfit to be a member of the congregation; rather, Mr Haddon is invited to absent himself from two events, as a temporary measure, to allow the church hierarchy an opportunity to "work out how to approach this problem". What underlies the email is the attempt to work towards a resolution of what was plainly perceived to be a problem. There is no suggestion of "unfitness".
I am satisfied that this imputation was not conveyed.
Factual background
The events relevant to the proceedings began in 2004 and continued until February 2008. By reason of the quantity of evidence called, the account of the factual background will necessarily be lengthy and detailed. A remarkable volume of correspondence, almost all of it by email, was generated over that period. Much of it is necessary to understand what culminated in the two emails the subject of the proceedings, and, further, to understand the defences raised on behalf of the defendants.
Mr Haddon is (as are all the main players in these proceedings) a committed Christian and a member of the Church of England. He was born in about 1950 (his precise date of birth was not given) and was, as at 15 February 2008, 58 years of age. He became actively involved in the Church of England in 1968. Over the next three and a half decades he engaged in various branches in the Church.
In the first half of 2004 Mr Haddon was involved with St Thomas' Anglican Church in North Sydney. By July of that year he found that congregation uncongenial. Essentially, I infer, he found it somewhat conservative. He regarded (and regards) himself as a progressive Christian. He has an active and intellectual interest in matters of theology.
A friend suggested that he contact Mr Steele, who was then the Minister of St Aidan's Anglican Church in Annandale. At St Aidan's, Mr Steele conducted two regular weekly services: the first, on Sunday mornings, was called Annandale Community Church ("ACC") and the second, conducted in the evening, was called "Christians in the Media" ("CIM"). As its name implies, the latter had a focus on members who were professionally engaged in the media. This congregation was predominantly made up of young people.
St Aidan's had some formal structure. It had a church council, of six members, partly elected by members of the church, and partly appointed by the Minister. The function of the council was to consult on decision-making by the Minister (although as to what kinds of issues was not spelled out) (Exs 27, 28). Between 2005 and March 2008 Mr Batten was a member of the council. St Aidan's also had three wardens, two of whom were elected by the members, and one appointed by the Minister. The wardens were responsible for property and finance matters (T 469). As at the date relevant to these proceedings (15 February 2008) the wardens included (or were) Robert Taylor, Frag Woodall and Pinghan Chua. There were also members of staff (to whom I will refer in due course) (T 469). In addition, there were assistant ministers and trainee ministers of whom Ed Francis and Steve Lister were two.
Mr Steele had the benefit of a circle of women advisers who undertook special responsibilities for "women's ministry". For the reasons I give below, I will refer to them by initials. In 2008, these included CP (also known as CS), SB, JL and LM. Some were paid staff members. In addition, MB was regarded as "a key lay member" of the women's ministry.
Acting on the advice of his friend, Mr Haddon did contact Mr Steele. He told Mr Steele that he (Mr Steele) had been recommended to him (Mr Haddon) as somebody with whom he could discuss theological matters. Mr Steele planned to drive to Kurrajong that afternoon, and invited Mr Haddon to join him. Mr Haddon did. He told Mr Steele that he was uncomfortable with the theology at St Thomas', mentioning, in particular, "the authority of the Scriptures", "the virgin birth", and "did Jesus do miracles?" as issues of concern to him.
On the Sunday after his meeting with Mr Steele, Mr Haddon attended the CIM service. On 26 July 2004 he wrote Mr Steele a letter (handwritten) (Ex 1). Apart from a reference to the relative youthfulness of the congregation, the letter is, on its face, somewhat cryptic. In the light of other evidence, it can be seen to contain allusions to Mr Haddon's progressive, even radical, theological position.
At least in retrospect, this letter can be seen as a signal by Mr Haddon that he questioned some doctrines of the Church of England, and the adherence to the literal truth of some parts of the bible. That that was the case subsequently became abundantly clear.
In September Mr Haddon attended a ski weekend with members of CIM. On the bus trip Mr Haddon and Mr Steele had some further discussions. Again, Mr Haddon signalled his disagreement with some conservative Christian views. From January 2005 he became a regular attender at the evening CIM service. He also joined a Wednesday night bible study group, initially that held in the home of two members of the church, Mick and Michelle Chiew. He had a number of meetings with Mr Steele over coffee. Matters of theology were regularly discussed. It became apparent to Mr Steele that his theological views and those of Mr Haddon diverged significantly. For example, Mr Steele firmly believed in the literal truth of the Christian doctrine of the virgin birth; Mr Haddon preferred to treat the doctrine as symbolic.
Mr Haddon began communicating with Mr Steele (again on matters of theology) by email. One (Ex 23) he signed as "President, Sydney's closet anglican liberals!!".
Another matter on which the views of the two diverged concerned the Christian position on extra- or pre-marital sex. Mr Haddon expressed the view that, because there were more Christian women than Christian men, the evangelical teaching that sex outside of marriage was sinful had the effect of "condemning to a lifetime of celibacy" some women. He considered that "tragic and cruel", and advocated a more accepting position. Mr Steele differed. (In his evidence, Mr Haddon disclaimed adherence to that view, and denied having expressed it. As I explain below, however, the weight of the evidence establishes to my satisfaction that that was the view that he expressed, and the view that he held.)
On joining CIM Mr Haddon met Mr Batten, who welcomed him into the group. At that time, Mr Haddon was not aware of any particular office that Mr Batten held, but, as time went on, he became aware that Mr Batten was a member of the council. He appears to have been a close confidant of Mr Steele.
Mr Haddon became actively involved, not just in attending the services and bible study groups, but also in the social life of CIM, which appears to have been vigorous. He attended parties, a number of weddings, and other social events, all associated with CIM and its members. Very quickly he came to regard the members as his friends.
Mr Haddon became involved as more than a mere member of the congregation or participant in the services. He took on what are called "ministries" - particular duties in the church. One such "ministry" was greeting people at the door of the church, with a particular eye for newcomers. His role was to make them welcome and involve them in the social events that regularly followed the service. (Attendance at a hotel across the road from the church was such a regular event that the hotel came to be known as "the annexe".) Mr Haddon perceived himself as successful and popular in performing this function. He produced documentation in which he was congratulated on his performance (T 12, Ex D).
However, all was not well. Mr Haddon's conduct, in two respects, was the cause of growing concern, particularly in the mind of Mr Steele. These, briefly, were the theological views that Mr Haddon expressed, and issue of personal conduct; particularly his conduct towards women members of CIM.
Theological differences
As I have indicated, Mr Haddon perceived himself as progressive, and questioned some of the received wisdom of the church. At present, it is sufficient to say that the issues of dispute or dissent involved the perception of the literal truth of the doctrine of the virgin birth, of some biblical stories, and the authority of the scriptures.
Mr Steele was receiving reports from other members of CIM about Mr Haddon's divergent theology. On the afternoon of Thursday, 4 August 2006, Mr Steele and Mr Batten had a meeting with Mr Haddon, at the hotel opposite the church, for the purpose of discussing these matters. Mr Steele told Mr Haddon that the issues concerning his theology were serious. He told Mr Haddon "I'm worried for your soul before God". He asked Mr Haddon to leave the bible study group to which he had belonged, and join another, led by himself and his wife. Most importantly, he told Mr Haddon that he regarded these issues as so serious that he wished Mr Haddon "to step back from any ministry roles" until the theological differences could be resolved and "we are on the same page theologically". In an email dated 8 August (Ex GG) he set out his recollection of the meeting and elaborated on the points he had made, confirming that one of these was that he (Mr Steele) was worried for Mr Haddon's soul.
Mr Haddon responded angrily. He perceived the request to "step back from any ministry roles" as "a ministry ban", to operate until the theological issues could be resolved as a ban on his participation in CIM unless and until he surrendered his own views to those of Mr Steele - that is, until he "toed the party line". He wrote a rather bitter letter (Ex EE) to Scott and Nikki Powell, the leaders of the bible study group he was by then attending, giving his account of the Thursday meeting.
A second meeting took place at the same venue on the following Sunday. Present were Mr Steele, Mr Haddon and Scott and Nikki Powell. At this meeting Mr Powell told Mr Haddon that he (Mr Powell) and his wife were unable to cope with having Mr Haddon in their group, and that they had offered to resign; they nevertheless wished Mr Haddon well.
On 30 August Mr Haddon emailed Evan and Nikki Batten, Scott Powell and Mr Steele (Ex KK). He intended this as a request for reinstatement to ministry duties.
Mr Steele replied, equally emphatically, declining the request (Ex LL).
On 26 October, Mr Haddon again emailed Mr Steele (Ex MM). The intent of the email is (to me) obscure, but Mr Haddon appears (T 109) to have intended it as a request for readmission to the ministry. It failed to achieve that purpose.
In late November, the women's minister (CS) asked Mr Haddon to assist in hanging paintings for an art exhibition that was being organised. Recognising that this might come within the "ministry ban", Mr Haddon advised her to seek clearance from Mr Steele. Mr Steele declined to give his approval, referring to the "theological differences" as "serious and firmly held" (Ex BBB). He told Mr Haddon:
"... I would like us to resolve our theological differences before we start working together in Ministry." (Ex NN)
In March 2007 Mr Haddon produced a lengthy (40 pp) document that he entitled "Confessions of a Heretic" (Ex OO). He circulated it (at some time later) to some members of CIM, and eventually it came to the attention of Mr Steele. Inter alia , he said that the Old Testament did not paint an accurate picture of God as later revealed in the life and teachings of Jesus, but represented:
"a warlike, racist, murderous tribal people telling us as much as they knew of God. Which, by New Testament standards, was not a lot."
In the middle of 2007, in conjunction with staff members and the council, Mr Steele circulated a document of doctrinal belief, sometimes called "the AFES (Australian Fellowship of Evangelical Students) Confession" or "the AFES doctrinal statement". Those involved in "ministry" (see para [63] above) were required to acknowledge adherence to it. Essentially, the statement reiterated the traditional beliefs as held by Mr Steele, contrary to those held by Mr Haddon. An accompanying document, addressed to Mr Steele, provided for signature of those who offered themselves to serve in "ministry". It made clear that any members of CIM who did not attest to those beliefs would not be permitted to engage in actual "ministry" (Ex HH). The doctrinal statement included, inter alia , affirmation of belief in the infallibility of the Scriptures, belief in the conception of Jesus Christ by the Holy Spirit and his birth by the Virgin Mary, and literal belief in the bodily resurrection of Christ. These were three issues on which it was known that Mr Haddon did not share the fundamental beliefs of Mr Steele.
On 28 May, Mr Haddon wrote another letter to Mr Steele, suggesting a means by which he could enjoy "full membership" of CIM. This prompted a meeting, attended by Mr Steele, Mr Andrew Barry, an assistant minister, and Mr Haddon. Mr Haddon handed them copies of his "Confessions of a Heretic" and asked them to consider it.
On 2 September Mr Steele wrote to Mr Haddon to tell him that a church policy had been formalised, after discussion with members of staff, the church council, bible study leaders and Bishop Forsyth. The effect of the policy was that only adherents to the AFES Confession would be permitted to take part in ministry, and that as Mr Haddon's stated position was contrary to the AFES Confession, he could not be invited to take part (Ex RR).
Shortly after, another meeting took place at the hotel between Mr Haddon, Mr Steele and Mr Barry. Mr Steele reiterated that Mr Haddon would be reinstated to his former role on "door duty" and be permitted to attend the bible study group of his choice and to counsel fellow congregants from the bible - if he were able to sign the AFES Confession. Mr Haddon understood that his exclusion from "ministry" duties extended to such mundane activities as stacking chairs, and passing out pens.
On 9 September Mr Haddon wrote, by email, to Mr Steele (Ex SS). He expressed his surprise and disappointment at the outcome of the last meeting, having believed that he was to be invited back into "ministry". Of significance (as will become apparent) he asked Mr Steele to clarify with the congregation that the issues that resulted in his exclusion from ministry duties were "doctrinal" and not "a matter of conduct".
The AFES Confession was circulated to church councillors, staff, community group leaders from "children's ministry workers/volunteers" and anybody who was involved in formal ministry activities.
On 20 September 2009 Mr Haddon returned the document, with his signature appended. However, the document he returned also contained annotations which heavily qualified his purported acceptance of each of those statements of belief (Ex UU). This was unacceptable to Mr Steele. As a result, Mr Steele declined to appoint Mr Haddon to any ministry role.
On 25 September Mr Haddon was formally advised that he would not be needed in any ministry role in CIM.
Personal conduct
The second cause for concern was Mr Haddon's behaviour towards female (especially young female) members of the congregation. These concerns began to emerge early in 2005, shortly after he joined CIM.
Mr Haddon was in the habit of greeting female members with what he called "an air kiss" (but others considered to be more personal and intrusive) and a handshake (which others referred to as a "hug"). Concern was expressed that Mr Haddon had a propensity to direct conversations with women towards matters with sexual overtones, and (intrusively) to subjects of a personal nature (also often with sexual overtones). For example, complaint was made that he advocated, contrary to the beliefs of Mr Steele and at least some of the members of CIM, that sex outside of marriage was permissible for Christians. I will defer the detail of these complaints to the consideration of the defence of substantial truth.
In the immediately following account, and later, it will be necessary to refer in some detail to a number of members of the congregation of CIM, in the main, but not exclusively, young women. Some of what has to be recounted is a matter of some embarrassment to them and sometimes to others. They have in fact often been referred to as "complainants". Essentially, they have complained about Mr Haddon's conduct towards them, almost invariably there being a sexual overtone in the nature of the complaint. Mr Haddon's conduct, in general, is said to have had sexual connotations. I have therefore been asked to refer to these individuals only by initials. No opposition to that course having been advanced, I propose to do so.
In March 2005, one of the female members of CIM (to whom I will refer as EM), then aged 29, told Mr Steele that she was uncomfortable with the way Mr Haddon, to her observation, approached and greeted women at the church. She asked Mr Steele to "keep an eye on him".
In May of the same year, another young woman (PE) informed Mr Steele of an event she said had taken place at church. She told Mr Steele that Mr Haddon had blocked her entrance to the church and had "harassed" her about why she had not spoken to him the previous week at a party. She said that she felt Mr Haddon wanted her attention, she did not want to give it to him and he was making her feel uncomfortable. At the time she told Mr Steele of this, she was "upset, teary".
Shortly after, another woman (JC) then aged 25, put her (similar) concerns in writing. She wrote:
"... [PE] spoke to me yesterday about her conversation to you about [Mr Haddon] and said that she was feeling uncomfortable with him at church because of his behaviour toward her. My opinion is that he is quite friendly with the girls, particularly young and pretty ones, and will approach them quite readily. He does give quite a lot of compliments in relation to the attractiveness of the person.
I think he is friendly but would benefit from a chat about appropriate behaviour toward the young women ..." (Ex 30)
This letter is undated.
At a staff meeting in June 2005, following a celebration of a significant birthday of Mr Steele, Mr Steele was told that one of the women had "felt really awkward" at the event because Mr Haddon was:
"going around telling all the girls how nice it was seeing them in dresses, how nice it was he could see their legs and how he hated how Christian women wore pants now all the time and it was just great to see dresses."
That, to Mr Steele's observation, represented the consensus of the women staff members present at the meeting. Mr Haddon's comments on the personal appearance and attire of young women was a recurring theme in the evidence.
These were not the only complaints about sexual matters in 2005. They led Mr Steele to speak directly to Mr Haddon in about July or August. They met at the hotel. Mr Steele told Mr Haddon that there were some "girls" who were uncomfortable about Mr Haddon's interactions with them, and his comments on their appearance. He made specific mention of the incident recounted to him by PE, who said that Mr Haddon had blocked her entrance to the church building. Mr Steele counselled Mr Haddon not to talk to women about their appearance or their clothing, which, he told Mr Haddon, were "a no go area" (T 488).
Mr Haddon responded by saying that it was "a generational thing", that in his day comments of that kind had been considered totally appropriate, that women enjoyed flattery from men, but that he would modify his behaviour.
On 4 October 2005, another woman (RD, then aged about 33) sent Mr Haddon an email, complaining directly to him about his conduct. The complete content of the email is set out below (para [158]). Mr Haddon forwarded the email, together with his own comments, to the women's minister (then known as CS, later CP). He denied any inappropriate touching, and suggested that the problem lay with RD's unstable personality (Ex V).
CS forwarded both emails to Mr Steele. After church on 16 October Mr Steele took the opportunity of having a short private discussion with Mr Haddon. Mr Haddon described RD as "neurotic" and "crazy". Mr Steele pointed out the age differences, and suggested that older men needed to be particularly careful in their interactions with younger women. He told Mr Haddon that his comments and behaviour were making some people uncomfortable and that his comments about women's appearance were inappropriate. Mr Haddon undertook to try to change the way he complimented women.
The following day Mr Haddon wrote, by email, to Mr Steele. He identified the subject of the email as "Fried brains - a meal or a pandemic?" (Ex U). He referred to the conversation the previous evening and undertook to "change my protocol re giving compliments on appearances", but added that this had, in his youth, been regarded as a "courtesy". He questioned "extreme levels of sensitivity/stress/neuroticism/depression" in the community generally, but observed that that was greater in young females in the Christian community. He then queried whether this did not come about because of the later average age of marriage, the failure rate of marriage, and "the strict Christian proscription of sex outside marriage". He made an observation about his previous church, St Thomas', and the female members of that congregation. He described the email from RD as containing "trumped up charges".
Early in 2008 a staff conference was held in Wollongong, over five days. During the course of one of the discussions a new member of staff remarked that Mr Haddon's name had been mentioned on a number of occasions and asserted that Mr Steele had "squashed discussion" on each occasion. He asked who Mr Haddon was. Another member of staff (Samuel Russell) said:
"He's an older guy who goes around hitting on all the new girls. Our Bible Study group a year ago worked out an arrangement where, since we've got three pretty girls in our group, where the guys would go and intervene and rescue each of the girls if they saw Bruce talking to one of the girls." (T 502)
Others contributed to the discussion; one referred to an occasion when, it was said, Mr Haddon had commented to a number of females about how nice it was to see their legs, see them in dresses, not wearing pants; another commented that yet another woman had reported having difficulties, feeling uncomfortable, and finding Mr Haddon "a problem". Another woman present (JL) said that, at a recent wedding, Mr Haddon:
"was going around telling all the girls how nice it was to see their legs, see them in dresses, not wearing pants."
All of this caused some alarm to Mr Steele. He spoke to EM, asking if she was aware of these issues. She told him that when she was pregnant Mr Haddon had recommended that she give birth by caesarean section (this conversation is dealt with in more detail below). Mr Steele considered this was an inappropriate topic of discussion between a man of Mr Haddon's age and a young woman in the church.
In January 2008 another woman, MB, approached Mr Steele, and reported a problem in the church; she said there were three men "going around hitting on the women". Mr Haddon was one of the three she identified.
MB also complained to him that, on one occasion, she had expressly requested Mr Haddon not to invite a friend of hers (CW) who MB was introducing to the church, out for dinner. In defiance of that request, Mr Haddon did invite CW for dinner. MB's husband (or, perhaps, then fianc) told him that, at a church event at a Blue Mountains hotel, Mr Haddon had suggested that it would be a great place to bring MB for "a dirty weekend".
Mr Steele considered it necessary to take some action because he thought that the women "welcoming team" would perceive that he had not created a safe environment and would leave the church. He was embarrassed at not having taken action earlier.
Mr Steele received other information concerning Mr Haddon's behaviour. For example, in January 2008, in response to an inquiry from him, another woman (CA) told him of a conversation at which she and another woman (CW) were present in the car being driven by Mr Haddon when an arrangement for him to have dinner with another woman (not of the church) had been cancelled. She told Mr Steele that Mr Haddon said:
"... anyway, the sex would have been no good because her vagina wall would be too thin and because that is what happens to women after menopause ..." (T 507)
CW's version of this event and conversation is given below. Mr Steele was "absolutely horrified" that a man in his 50s would be having a conversation about vaginas with two girls in their 20s. He confirmed the conversation with CW.
* * *
The two issues - theology and personal interaction with women - were, for quite some time, running parallel.
Mr Steele discussed the personal conduct matters with Mr Batten. At the end of January, Mr Steele contacted Bishop Forsyth, who was already aware of the theological issues, and apprised him of the issues here outlined. He told Bishop Forsyth that he proposed initiating a discussion with Mr Haddon.
Mr Steele also spoke to Ms Jenni Woodhouse, who worked in the Professional Standards Division of the Church of England, and to Russell Powell, who was a senior adviser of the Archbishop. Mr Steele and Mr Batten resolved to meet with Mr Haddon for the purpose of discussing the issues. That meeting took place at the church at 5pm (just before the CIM service) on 10 February. Present were Mr Steele, Mr Batten, Nathan Scouler and Mr Haddon. Nathan Scouler was a member of the church who accompanied Mr Haddon to the meeting at Mr Haddon's invitation.
Mr Steele opened by telling Mr Haddon that he wished to discuss two issues: theology and conduct. There is a significant factual issue, with which I will deal when I come to the question of malice, about the content of this meeting. Mr Steele specified the theological issues and then mentioned a number of matters concerning Mr Haddon's conduct that have been outlined above. Mr Batten told Mr Haddon that some of his comments had been construed as "sleazy".
Mr Steele suggested that Mr Haddon join the morning service, which was attended by more people closer to his age, but Mr Haddon rejected that. Mr Steele then asked Mr Haddon not to talk to women who were newcomers at the church, and not to talk about "body, sex, legs, tan, hair" to women, but to spend time with men of long standing membership of the church (T 514-515). Mr Haddon agreed to that request.
The meeting concluded shortly before the commencement of the 6pm service.
At the conclusion of the service, Mr Steele and Mr Batten observed Mr Haddon, at a refreshments table in the church hall, standing next to and talking to a young Asian woman who was unknown to Mr Steele. The conversation continued for a protracted period of time. Mr Haddon and the woman then joined CW, another regular member of the group, and talked for some time. Thereafter, Mr Haddon joined another young woman, who was also relatively new to the church, but who was known to Mr Steele.
Both Mr Steele and Mr Batten considered this to be directly contrary to what Mr Haddon had earlier been asked, and had agreed, to do.
After refreshments in the church hall, the party went to the hotel across the road. There Mr Steele saw Mr Haddon sitting at a table with four young women and one male. Mr Steele joined the group, but remained only for a very short time. During the short time that he was there, he heard Mr Haddon talking on the subject of "caring for your body" (T 518).
On Monday, 11 February Mr Steele spoke to a number of people about the issue. These included Mr Batten, Ms Woodhouse (T 524), Bishop Forsyth and Russell Powell. He received advice from these individuals. The same day he telephoned CW to inquire about her conversation with Mr Haddon the previous evening. CW told Mr Steele that Mr Haddon had invited her, and her friend, out for dinner. An exchange of emails took place. At about 10am Mr Batten emailed Mr Haddon, acknowledging that the meeting must have been challenging for him, requesting "feedback, thoughts, impression", and, significantly, asking:
"was the issue of conduct we raised clear, how are you feeling about it today." (Ex G)
A few days later Mr Steele made a written record (Ex 31) of his recollection of the meeting of 10 February. He sent this to Mr Batten, after which the two had a telephone conversation. That evening, Mr Batten made a note of his own recollection of what had taken place at the meeting. These notes were relied on by Mr Haddon with respect to credibility issues, and malice (Ex 32).
Mr Haddon replied, saying, inter alia :
"My family tells me I'm a bit slow to pick up unspoken social clues. Best evidence for that was that I had no idea what Sunday's meeting was going to be about.
I'll do everything I've been asked this round, same as I obeyed all instructions last time this happened. Note some of the more precise restrictions just aren't going to work - I broke three last night and they so precisely contradicted my new regime, that it felt like God comforting me saying 'I think you have a role here Bruce'
Here they are
1 - Right under Dominic's nose I could not help greet a new member, in the category he has declared 'at risk from Bruce' i.e. female, very young, good looking I think ... It was unavoidable as she spoke to me and I answered at a safe distance ...
2 - Ed ASKED me about the new speaker location ... I spent about 15 minutes showing him. This is categorically in defiance of the ban ...
3 - Lucy sat next to me at the pub ... Right on cue, she asked about skin care!! !! ...
It's amazing each unavoidable situation was an exact breech (sic) of the guidelines of our discussion , right down to 'skin' ..." (Ex H, underlining in original)
Mr Batten replied, saying that he thought Mr Haddon had missed the point of the meeting and asking whether Mr Haddon had a perspective as to why "we" are receiving so many complaints about the way Mr Haddon spoke to women in particular.
Mr Batten, in another email, asked:
"Do you accept that we are consistently receiving complaints about how you are speaking with women - this is not something that is being manufactured, but real concerns being expressed consistently by a wide group of women at church - do you accept this, do you see how this happening, does it surprise you (it's not about unspoken social clues - but specific comments and contact that tread into peoples personal space and cross into their comfort zone)
...
It's critical that you feedback to me your understanding of what we have raised, I do not feel that you have done that in the two previous emails." (Ex L)
Mr Haddon replied, saying that he intended to change, but adding:
"If standing too close is what you mean I'll stand father (sic) away.
If it's air kisses, I didn't invent this silly ceremony, but it's universal and I will continue to greet women I know well this way everywhere except CIM
If it's commenting on an item of dress or someone's skin (I admit to the first, don't recall the second) that will stop. It's a sad society that can't tell women they look beautiful, but if that's how it is I get it
If it's hugs, sorry not guilty . I don't hug females unless they initiate it, but they sometimes do at our church and frequently do in some churches.
If it's talking to women more than men, there are more women than men at church. The ones I mix with outside church are 90% men. I've never selected who to talk to based on sex, but I'll be more watchful ...
The complaints still leave me stunned, but I intend to change." (Ex M, underlining in original)
In this email, Mr Haddon also hinted that the real motivation for the meeting was his unacceptable theological position, which had led to "the ministry ban".
On 12 February Mr Steele sent an email to a large number of recipients (Ex R). He expressly asked them to let him know of any comments (of what kind he did not specify) about Mr Haddon. He asked what the recipients or their staff noticed about Mr Haddon's behaviour in the congregation; and asked whether they had any concerns. On the same day, Mr Steele emailed the pastor at St Thomas', asking a series of questions about Mr Haddon during his involvement at that church including:
"Did young women comment on Bruce's behaviour to you or your staff and what was the nature of the comments?"
and,
"What did you and your staff notice about Bruce's behaviour in the congregation? Did you have any concerns?" (Ex Q)
Mr Francis was one of the recipients of Mr Steele's request for information. He passed it on to his then fianc, in his own terms. He wrote:
"Dominic is in the process of kicking Bruce Haddon out of Church. To have ammo to tell Bruce about why he needs to leave, Dominic is compiling a litany of the inappropriate things Bruce has said and done to particularly young women at Church.
Do you remember specific things he said or did that I can forward to Dominic? ..." (part of Ex S)
Mr Steele began to receive responses to his request for information. One woman wrote:
"Not really specifics I'm afraid. Just more generally, eg very affectionate when greeting, particularly as he doesn't know me very well. This would be rather off-putting to females. Inspecting what they are wearing very closely, commenting on what they are wearing, their hairstyle, just generally getting too 'close' (not physically, but too personal) ... I find it weird being kissed on the cheek everytime he greets me." (Ex S)
Another (JL) responded, in a lengthy email, which included the following:
"Bruce has commented several times (usually at peoples weddings) about how he loves women who wear dresses because its feminine - or you'll hear him comment specific women as they enter the church 'I love women wearing dresses. It is just so feminine' (or words to that effect).
It's a weird comment to make. Probably because other men dont comment like that ... Maybe i have thick skin, so even if it is a bit creepy, i just brush it off and move away ... Interacting with Bruce is just awkward.
The kisses upon greeting are a bit over-familiar ... [JL compared Mr Haddon with another man who she said hugged and kissed her but she treated like her grandfather, as an approachable wise old(er) man] It's just different with Bruce - his vibe is not grandfatherly. His vibe is old man trying to spade young woman and make friends with young males. Trying to hang on to his youth. Trying too hard basically ..." (Ex 34)
JL went on to refer to the MB/CW event (when Mr Haddon had, contrary to the express request of MB, invited CW out for dinner), and to make other, unrelated, criticisms of Mr Haddon.
SB wrote:
"...
1. He made several remarks about my voice and my looks when I first arrived. I didn't worry about it and probably just thought he was being flattering. Then he became increasingly more physical, hugging me or pecking me on the cheek. Which I thought was a bit much since I hardly knew the guy ...
3. I have heard from single girls ... that Bruce makes her feel uncomfortable and unattractive at every wedding because of the nature of the remarks he makes in reference to the women around him." (Ex 35)
SB also made mention of theological views expressed by Mr Haddon.
On Friday 15 February a series of emails was exchanged between Mr Steele and Mr Batten. This was in order to prepare a communication to be sent to Mr Haddon. It was in these circumstances that the two emails the subject of the present proceedings eventuated. Various drafts of a proposed email were circulated, initially between Mr Steele and Mr Batten. From the beginning, the subject was identified as:
"I need to ask you not to join us this Sunday night".
The drafts mentioned a "code of conduct" to which Mr Haddon had agreed, and a breach of the agreement; each draft incorporated a request to Mr Haddon not to attend the service that evening, or a church weekend away scheduled for later that month.
Bishop Forsyth advised Mr Steele that the email to Mr Haddon ought to be sent over the names of Mr Steele and the wardens of St Aidan's.
Acting on Bishop Forsyth's advice, Mr Steele sought the agreement of the wardens (Messrs Taylor, Woodall and Chua) to being signatories. Agreement was forthcoming from each. At 2.12pm Mr Steele sent to the wardens and Mr Batten the draft email to Mr Haddon, with the following message:
"After talks this morning with Rob Forsyth, Rob Taylor I have reworked my first draft to this. Rob Forsyth thinks best if it comes from me + wardens. So you would need to be happy with it before I send it.
I think we should have a meeting at 5pm Sunday to work out a plan." (part of Ex OOO)
It is this email that constitutes the first matter the subject of the proceedings, Schedule A to the Amended Statement of Claim. While there are some variations from that which was ultimately sent to Mr Haddon, they are insignificant, and it is not worth prolonging this judgment to incorporate the full text of what was then the draft.
After receiving the agreement of the wardens, and Mr Batten, and with some minor variations, at 4.47pm, Mr Steele sent to Mr Haddon the email set out at para [5] above. It named as signatories Mr Steele, Mr Woodall, Mr Taylor, Mr Chua (identified as wardens) and Mr Batten (identified as church councillor).
The email to Mr Haddon was, as I have indicated, circulated to those people named as signatories. The address line shows that the email addresses to which it was sent include not only those of Mr Batten, and Mr Woodall, but also of "Robert & Fiona Taylor", and "Pinghan & Aimee Chua". I mention this now because the potential receipt of the email by Fiona Taylor and Aimee Chua has given rise to a discrete argument, with which I will deal in due course. The email was blind copied to Robert and Margaret Forsyth, Russell and Robyn Powell and Jenni Woodhouse.
(Due to the flurry of emails circulated, there was some confusion in the proceedings concerning what was actually sent to whom, and which document was properly the subject of the claim. I have taken the above from Ex A.)
Just before 5.30pm, Mr Steele forwarded the email to a number of others. They were Paul Semple (who was to become a church warden two weeks hence, replacing Mr Chua), Edward Frances (a ministry trainee on staff), Samuel Russell (who appears also to have been a ministry trainee), Steve and Jane Lister (Mr Lister was a new student minister), Mr Batten, Matthew and Belinda Whitfield (Mr Whitfield was an assistant minister in the church), Nathan McQueen (a "key lay leader" and the Sunday music director), Daniel Sieveking (chairman of the Parish Council). It is the circulation of the email to these recipients that constitutes the second matter the subject of the proceedings.
The copy email sent to each of these recipients was accompanied by a covering message in the following terms:
"Could you please meet me and the church wardens at 5pm on Sunday at the church hall and we will discuss a way forward.
Please keep this confidential.
Yours in Christ,
Dominic" (Ex A)
The foregoing history is an outline of some of the elements that led to the two communications the subject of the proceedings. It does not cover the entirety of the evidence it is necessary to understand in order to consider the various defences raised.
Defences
(i) substantial truth
For the purpose of the defence of substantial truth, each imputation has two component parts. In each case, one component involves conduct attributed to Mr Haddon. In imputations 1 and 2, that conduct is identified with some specificity - respectively, introducing inappropriate sexual topics into conversations with female members of the CIM congregation, and inappropriately touching and kissing female members of the CIM congregation. In each of these cases, the second component (although the first pleaded) is the characterisation of that conduct as constituting sexual harassment.
In order to prove the substantial truth of either of these imputations, the defendants must first prove as substantially true that Mr Haddon engaged in conduct of the kind asserted. That is a relatively simple question of fact. The second component is rather more elusive. It is necessary for the defendants to establish that the nature and quality of the (or any) conduct proved may properly be characterised as sexual harassment. That is more than a mere question of fact, and involves an assessment of the potential impact of the conduct on those to whom it is directed.
Imputation 3 is of a different structure. It does not specify the conduct attributed to Mr Haddon, merely referring to it in general terms, and asserting that it was such as to warrant complaint of unwanted sexual advances. As the case was conducted, the defendants rely on the conduct specified in support of imputations 1 and 2 to justify the further conclusion that Mr Haddon's conduct was of that kind.
If there is any doubt about the meaning of a pleaded imputation, it is necessary, as a preliminary matter, to identify that meaning: Singleton v Ffrench (1986) 5 NSWLR 425. Here, a real question arises as to the meaning of the term "sexual harassment". I will deal with that after dealing with the facts.
A vast amount of evidence, oral and documentary, was directed to establishing the substantial truth of the imputations pleaded. A succession of witnesses gave oral evidence in support of the defence. Of these, 12 were female members of the CIM congregation, most of them (if not all) relatively young (30 thirty years of age or younger). Some of what follows has been mentioned above, in the historical matters I have recounted. I mention here, also, that a good deal of evidence, much of it concerning what was reported to Mr Steele, was admitted as relevant only to the defence of qualified privilege. In what follows, I confine myself to what was given directly, and exclude that which establishes Mr Steele's motivation for acting as he ultimately did. That accounts for a certain amount of apparent repetition.
In considering the evidence, it is necessary to bear in mind that the imputations are of sexual harassment (in two specified respects) and of conduct warranting complaints of unwanted sexual advances. Not all of the evidence tendered could be said to have any real bearing on those imputations. There were some aspects of the evidence that seemed to do no more than establish a general incompatibility between Mr Haddon and members of CIM.
Essentially, subject to some matters of detail, the evidence was tendered in relation to all five (and is applicable to all three surviving) imputations. I will review the evidence; I do not propose to dissect it in detail. A remarkable level of consistency is to be observed in the evidence concerning Mr Haddon's behaviour and conduct in and around St Aidan's. The theme was constant: Mr Haddon directed his attentions primarily to women, predominantly to those who were young and considered to be physically attractive; he greeted them with a hug and/or a kiss in what many of them considered to be an intrusive and inappropriate manner. He offered comments about their personal appearance and, on occasions, volunteered advice as to how they should dress. Again, this was done in a manner that many considered to be intrusive and inappropriate. A few examples will suffice to illustrate the tenor of the evidence.
One woman (SR) said that, after a wedding that both she and Mr Haddon had attended, Mr Haddon approached her and said:
"I was looking at you during the ceremony of the wedding and observing your back and I just wanted to let you know that you have a lovely silhouette and lovely shaped back."
SR said that she:
"felt a bit uncomfortable and I was taken aback". (T 305)
NB had been a member of CIM since early in 2002. She had been a bible study leader, part of "the music ministry" and, with her husband, ran "the marriage ministry". She helped to organise a course called "To Love and to Cherish" and was, at one time, looking for ideas for a seminar for that course. Unasked, Mr Haddon offered some ideas (Ex 7). These included, for a women only session, "Keigle exercises and why they matter" (which, Mr Haddon explained, encouraged vaginal tightening); and, for a men only session, topics including "What women want" and "Why isn't my wife sexy anymore?". NB was shocked at these suggestions.
NB gave evidence of another occasion when, in a bible study class, Mr Haddon had used the word "vagina", possibly in the context of childbirth. She was "disgusted" and told him that that was not appropriate.
She said that Mr Haddon had a nickname for her ("MDB" - "my dear B...") and would greet her with his arms out and kiss her on the cheek. She said she "felt like I had nowhere to go". She saw him greet other women in the same way.
In cross-examination it was put to NB that, on a social weekend away with members of the bible study class, when she was suffering from a sore neck, she had requested that Mr Haddon give her a rub on the neck, a request with which he complied. She agreed that he had in fact massaged her neck, but did not recall making the request.
Another witness, PE, said that she had observed Mr Haddon approach young women (including herself) "a lot", and that he frequently sought her out. She described Mr Haddon as being significantly older than many of the CIM members, and said that he made a "beeline" for certain young women, something she found "odd"; she observed that he seemed to approach young women a lot. On one occasion in 2005, two new young women attended the church. PE overheard Mr Haddon ask another person "Who are they? Why haven't I met them yet?".
PE, who worked in television, said that Mr Haddon made remarks to her "along the lines of":
"You shouldn't be behind the camera, you should be in front of it"
and:
"You have a great smile. You should be in front of the camera." (T 312)
He also advised her that she needed "to work on [her] voice" and could have voice lessons.
PE also gave evidence of an occasion when Mr Haddon confronted her. As she recounted the event, she had tired of Mr Haddon's attentions and had begun to avoid him. On the occasion in question, in May 2005, she was to attend a party at the home of a friend of hers, to which Mr Haddon had also been invited. Outside the premises, in the street, she saw Mr Haddon, but did not acknowledge him because she did not wish to engage with him in any way. Inside, at the party, Mr Haddon confronted her, demanding to know why she had ignored him outside. He seemed "angry and agitated and accusatory".
On another occasion in 2005 he blocked her entrance to the church from the vestibule, and would not allow her to pass until she had shaken his hand. She felt threatened and intimidated. (This is the event referred to in para [86] above.)
PE gave evidence of being "disgusted" by a remark made by Mr Haddon that:
"the only reason a husband should be unhappy is if his wife's ugly."
EM said that Mr Haddon had paid her compliments about her appearance; she recalled a specific occasion on which he said to her:
"You look lovely in that dress but you should have worn high heels with it." (T 347)
She said that these remarks made her feel a little uncomfortable because she thought it strange that somebody almost the age of her father would say such things about women her age and younger.
She said that Mr Haddon greeted her with a friendly hello and a kiss on the cheek.
CS (CP) was one of a number of witnesses who said that Mr Haddon had expressed the view that "a bit of sex before marriage is fine". She also gave evidence that he had invited her out to dinner four times, and that he frequently commented favourably on her clothes.
CL was another witness who said that Mr Haddon advocated sex before marriage, because, there being more women in the church than men, some would never marry, and they should not bother waiting or they would never have sexual experience.
Mr Haddon was in the habit of greeting her with a hug and a kiss. He commented on her clothing, particularly on one occasion when she wore a skirt.
EM was the wife of another member of the congregation and was, in May 2007, pregnant. She said that she had a conversation with Mr Haddon, in the presence of a group of CIM members, along the following lines:
"He asked me if I was going to have a caesarean and when I told him no, I had hoped to have a natural birth unless a caesarean was needed, he said that it would be a really good idea to have a caesarean and that I should do that because the scars were really small and that they were below the pubic line and that he had seen - he could say he knew that because he had seen one or some, I can't remember whether he said one or some, and said that it would be better for my intimate relationship with my husband after the birth of the child if I were to have a caesarean." (T 349)
EM said that she was "just a bit flabbergasted" at the conversation and felt uncomfortable.
CW recalled that Mr Haddon had been very complimentary about her posture, her feminine dress and her general beauty (T 365).
JC also said that Mr Haddon greeted her (and other women) with hugs and kisses and commented:
"Women look so lovely when they wear dresses, it is just so feminine."
She found Mr Haddon's behaviour to be intimidatory and intrusive into her personal space.
RD gave evidence of conduct of more significant dimensions. She was the woman who, at a very early stage, wrote by email directly to Mr Haddon complaining of his behaviour. RD was a music teacher and played the piano for the CIM services. She said that Mr Haddon paid her compliments about her appearance, but also commented, not favourably, about her clothes, which he described as "a bit funny", and "a bit out there".
She said that he:
"come very close physically and kiss me on the cheek and for hello and goodbye and come very close."
She then said:
"... I used to play piano at church and when I finished playing the piano he used to come and touch my bottom. It happened quite often." (T 757)
She said that this happened five or six or even more times.
She said that he hugged her at church although she did not hug him, and that he did this on about 10 occasions. She said that she did not feel "nice" about this and that she was "quite uncomfortable". He also advised her to stop eating sweets in the afternoon, because it would make her put on weight.
She said that Mr Haddon invited her to dinner and to play the piano at his home, and to meet his sister, but that she did not accept these invitations because she was not interested in meeting him "one on one".
RD's evidence was marked out from that of the other witnesses in another respect. It is supported by contemporaneous documentary evidence. On 4 October 2005 RD communicated with Mr Haddon by email. (I have briefly referred to this above, in the historical section.) The email reads (I have retained the original spelling and punctuation - English is plainly not RD's first language):
"Dear Bruce,
How are you? I hope you are having a good day.
I am writing to you about the conversation we had on the weekend.
I would like to make a comment on your thoughts concerning my body. Can I tell you something? Could you please dont mention to me how fat and skiny I am never again please? Thank you. Also, girls in general dont want to listen about this? They get dissapointed and I think its very ungenerouse and unkind somebody to tlak about things like that. We have to be liked and appreciated on who we are not how we look!!!! I hope you understand. Also, the same for my clothes. I dont feel it is the right for you to have such an opinion on my clothes. First, you are not aware of the fashion. Second, I thinks it rude of you to say it any way.
And the last thing I would like to write about is the way you touch me on my backside. How harsh was that...I pretend was nothing, as they were so many people around and I kept smilling and kept talking. I don't think you have right to do so to me!!!
I am very disappointed with your behaviour.
I would like to let you know that I wont like to be around with people like you and will try to avoid any further contacts in the future.
Blessings.
R..." (Ex V)
Many of the witnesses said that Mr Haddon had invited them, or others, out for dinner. Some said that he made remarks that they obviously found offensive; as, for example, comments that an overweight woman would not be able to find a husband (T 326, 365). There were also a number of criticisms that he advocated, within the church group, extra-marital sex, arguing that, as there were more single women in the congregation than men, some would not be likely or able to marry, and would be denied sexual experience. This was abhorrent to, at least, some members of the congregation.
One event (in early December 2007, to which I have already briefly referred) particularly offended CW. She and another woman, CA, were in Mr Haddon's car with him. She recounted the event as follows:
"Bruce was supposed to go out with my friend, a colleague from work, Kim. She had cancelled last minute on the way home. He was dropping us off into the city. On the way to the city she cancelled and she was put on speaker phone so we heard the conversation and we felt really bad for Bruce. He immediately got quite agitated and I would say quite annoyed at this situation because it was very last minute, within the last - they were supposed to meet up in an hour and a half to two hours ... He said, 'Well, it doesn't matter anyway, because women of that age have dry vaginas and it lacks sponginess', and my friend C... said ... 'I feel uncomfortable about you talking like this.' I said, 'You really shouldn't be speaking to us like this about this', and he said a few comments after that which I don't recall." (T 363)
She did, however, recall that those comments were:
"... about women and their bodies when they were a bit older, because Kim was 49 at the time. So it was about women of that age, but I can't remember the specific quotes." (T 363)
CW said that she was embarrassed and uncomfortable, and felt "quite burdened" by what he had said for some time afterwards.
CS (who gave evidence as CP) recalled that, at a party Mr Haddon talked about his views on sexuality, criticising the Bible's attitude to sex as "fuddy duddy and outmoded".
LT spoke of a conversation with Mr Haddon in which they discussed a friend of hers who suffered from bipolar disorder. Mr Haddon expressed the view that;
"She needed to have an orgasm, that would help her with her depression."
When LT protested that that would be inappropriate for a single Christian woman, Mr Haddon said that it "would help her with her chemical imbalance" (T 624). LT was shocked at this exchange.
LT also said that Mr Haddon was given to making comments about her appearance and her clothing (T 624). She agreed with other witnesses that Mr Haddon would greet her by putting his hand on her arm, maybe hug her, and sometimes kiss her on the cheek.
The real attack on the defence made on behalf of Mr Haddon was directed at the issue of reciprocity. It is, therefore, necessary to examine the interest of each of the recipients in that subject matter. (No attack was made upon the duty or interest of Mr Steele in communicating on the issue or subject matter; the issue appears to be the breadth of the circle of recipients.)
The first email, sent at 2.12pm by Mr Steele, was on its face, addressed to:
"Evan Batten [email address], Robert & Fiona Taylor [email address], Frag Woodall [email address], Pinghan & Aimee Chua [email address]"
Mr Steele had, in my view, a duty to communicate with the inner circle of the church. The relevant circumstances include that complaints had been made concerning Mr Haddon's conduct towards female members of the congregation. Whether or not those complaints were justified, or whether or not they correctly stated facts and described Mr Haddon's conduct, are not to the present point. In receipt of that information, it was Mr Steele's duty to consult with senior members of the church in order to determine how to deal with the situation. Messrs Batten, Taylor, Woodhall and Chua were all involved in the administration of the church. On behalf of Mr Haddon, it was argued that the evidence established that the wardens' role in the administration of the church was limited to matters of finance and property, and that their interest did not extend to knowing the reasons that motivated Mr Steele to exclude Mr Haddon. Mr Steele gave evidence that he did not know how Mr Haddon would respond to the request that he not attend the church, and that it may have become necessary to call upon the wardens (Messrs Taylor, Woodall and Chua) to exercise their powers to exclude, or remove, him. The response made on behalf of Mr Haddon to that was that, even if it were necessary to advise the wardens that they might be called on to exercise those powers, it was nevertheless unnecessary to spell out to them the reasons for the proposed exclusion.
I cannot accept this narrow approach. The wardens were not police officers, detached from the church, and acting on instructions. They were active, participating members of the church. That, no doubt, is why they were appointed or elected as wardens. Those who were appointed by Mr Steele were appointed because they had his trust and confidence. Moreover, if it is the case that they had the ultimate decision making role in whether or not to exclude Mr Haddon, it was not sufficient for them simply to be told that that was Mr Steele's wish; they had to be given adequate reasons to take the fairly drastic step that they would be asked to take, and to exercise their own independent judgment in that respect. I expressly reject the contention made on behalf of Mr Haddon that all that was necessary for them to know was that Mr Steele had requested Mr Haddon not to attend.
It does not appear to be suggested that Mr Batten lacked the necessary interest to establish reciprocity.
In any event given the history I have recounted, it is highly unlikely that any recipient was not substantially aware of the issues raised. I doubt that, in this email, Mr Steele communicated to them anything which they did not already know.
I am satisfied that all recipients had the necessary interest in receiving the communication from Mr Steele. The occasion was one of qualified privilege.
The first question must therefore be answered in favour of the defendants. So must the second. I have not the slightest doubt that what was contained in the email was relevant to that occasion. No submission to the contrary was advanced.
A further submission made on behalf of Mr Haddon concerned the inclusion of Fiona Taylor and Aimee Chua in the list of recipients. It was submitted that the email addresses did not amount to evidence that Mr Taylor and Mr Chua did not have any other email addresses, that did not include their wives. Equally, there is no evidence that either of those gentlemen did have an alternative email address to which a confidential communication could be sent.
The evidence did not establish whether either Ms Taylor or Ms Chua did (or did not) in fact read the email. In any event, I consider the point to be somewhat artificial. Both of these "incidental recipients" were the wives of legitimate recipients, and, I infer, members of the church themselves. Their interest, while not as direct as the interest of their husbands, was real.
The law of qualified privilege recognises that, on occasions an "incidental publication" may be protected. A discussion of this can be found in Gatley on Libel and Slander, Sweet & Maxwell, 11 th ed, at 14.66.
In respect of the first email (and subject to the question of malice, with which I will deal below) the defence of qualified privilege succeeds.
The second email was, as was pointed out on behalf of Mr Haddon, a "private and personal communication" to Mr Haddon from Mr Steele, sent at 4.57pm on the same day. It was authorised to be sent in the names of Messrs Woodall, Taylor, Chua and Batten. There thus arises the curious situation that the names of those gentlemen appear both as publishers and recipients. That is a consequence of the peculiarities of electronic communication. I am satisfied that, properly analysed, each of those gentlemen was a publisher of the second email, and not merely a recipient.
In this case, also, there was incidental publication to Fiona Taylor and Aimee Chua. In addition, it was copied to Paul Semple, Edward Francis, Samuel Russell, Steve and Jane Lister, Matthew and Belinda Whitfield, Nathan McQueen and Daniel Sieveking.
A copy of the document in evidence shows that it was also "blind copied" to:
"Robert & Margaret Forsyth [email address], Russell and Robyn Powell [email address], Jenni Woodhouse [email address]"
On behalf of the plaintiff it was submitted that in respect of all or some of these recipients, no legitimate reciprocity of interest was established. It is, regrettably, necessary to deal with each individually.
Mr Francis has already been identified as a ministry trainee. He was involved in the Sunday evening "pastoral ministry". Mr Steele included him in the circulation because he thought, if Mr Haddon defied the request to not attend, Mr Francis may be able to assist in persuading him to leave. It was argued that there was no evidence to suggest that Mr Haddon would defy the request and attend the church.
I am satisfied that it was reasonable for Mr Steele to consider, and prepare for, that eventuality, and that therefore Mr Francis had the necessary interest.
Mr Russell is in the same position as Mr Francis, as is Mr Lister and Mr Whitfield.
Mr Sieveking was the Chair of the Parish Council, which had the conduct of the financial and property affairs of each church in the parish (Ex 27). The role of the Parish Council includes:
"conferring with the minister in the initiation, conduct and development of church work and making recommendations on ministry within the parish."
I am satisfied that Mr Sieveking had the necessary interest.
Nathan McQueen was identified by Mr Steele as "a key lay leader" and music director. I am satisfied that he had the necessary interest.
Aimee Chua and Fiona Taylor have already been identified as "incidental recipients" in respect of the first email. They are in the same position in respect of the second. Jane Lister is in the same position.
Russell Powell was an adviser to the Archbishop and Chairman of the CIM Network Ministry. He had a clear interest in being informed of what was happening at St Aidan's. Jenni Woodhouse was, as I have mentioned, an officer in the Archbishop's Professional Standards Unit. She had the necessary interest.
It was not contested that Bishop Forsyth had the necessary interest. His wife Jane was an incidental recipient.
I am equally satisfied that Mr Steele and Mr Batten (as the other signatories are not sued it is unnecessary to consider their position in this respect) each had an interest, and indeed a duty, to communicate on the subject matter.
A further argument advanced on behalf of Mr Haddon against the defence of qualified privilege was that there was no "pressing necessity" to publish the material. That proposition is drawn from the (vigorously) dissenting judgment of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366, endorsed by Ipp JA in Bennette v Cohen [2009] NSWCA 60. For reasons I gave in Megna v Marshall , I do not accept that a voluntary publication, other than one published under "pressing necessity", is deprived of the defence of qualified privilege.
Subject to the question of malice, the defence of qualified privilege at common law succeeds in respect of the second email.
(vi) qualified privilege - s 30 of the Act
Section 30 of the Act provides, relevantly, as follows:
"(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) ..."
In respect of this defence also, a defendant, to succeed, must establish three matters:
(i) that the recipient has an interest or apparent interest in receiving information on some subject;
(ii) that the matter of which complaint is made is published to that recipient in the course of giving to him or her information on that subject; and
(iii) that the conduct of the defendant (publisher) in publishing the matter is reasonable in the circumstances.
Similar issues arise as have been discussed in relation to the previous defences. For the reasons given above, I am satisfied that each of the recipients did have the necessary interest in the subject matter of the emails. I am satisfied that the matter was published to each recipient in the course of giving him information on the subject.
It remains to be determined whether the conduct of Mr Steele in publishing this email was reasonable in the circumstances. Reasonableness was the crux of the attack made on behalf of Mr Haddon to this defence. Essentially, however, the attack replicated the attack on qualified privilege at common law - it was argued that publication to an unduly wide circle of recipients rendered the publication not reasonable. That argument must fail for the same reason that it failed in relation to qualified privilege at common law.
Sub-section (3) attempts to cast some light upon the determination of whether the conduct of a defendant is reasonable in the circumstances.
In concluding that Mr Steele's conduct was reasonable, I also have regard to the steps he took prior to publication and the limited number of individuals to whom he circulated it. I also take into account that, in including wardens as recipients, he was acting on the advice of the Bishop of South Sydney. Moreover, as I have earlier outlined, the wardens were integrally involved in the implementation of any decision to exclude Mr Haddon from the church service.
Accordingly, I am satisfied that, subject to the question of malice, the defence under s 30 succeeds.
Malice
In Megna v Marshall (at [171], [600]-[602]), I outlined the law, as I perceived it, as to malice. I see no need to repeat what I there said.
In the Reply filed on behalf of Mr Haddon, it was pleaded that the publication of each email was actuated by an improper motive or improper motives constituting malice on the part of Mr Steele and Mr Batten. The improper motives were identified as:
"(a) Knowledge of falsity or reckless indifference to truth or falsity of the defamatory imputations ... on the part of [Mr Steele and Mr Batten];
(b) A desire on the part of [Mr Steele and Mr Batten] to injure or discredit [Mr Haddon];
(c) A desire to exclude [Mr Haddon] from St Aidan's because [Mr Haddon]'s theology differed materially to that of [Mr Steele and Mr Batten]."
The allegations were extensively particularised.
The submissions advanced in support of the plea of malice were entirely focused on the last of these three identified motives.
At the commencement of the second day of hearing, senior counsel for Mr Haddon explained his case on malice. He said:
"It is alleged by [Mr Haddon] that the primary purpose for the publication was to manufacture a reason for [Mr Haddon] to be expelled from the church based on conduct grounds or to justify [Mr Haddon's] expulsion from the church on conduct grounds when the actual reason for expelling him was theological in that [Mr Steele and Mr Batten] believed that [Mr Haddon] was not suitable to be a member of the church or congregation because he was not a pure Christian and held corrupt theological beliefs." (T 68)
In answer to a question from me, he said that the entire allegation (concerning conduct other than theological) was "exaggerated", and that the primary purpose for Mr Haddon's exclusion was theological.
Mr Haddon's case on malice is based upon a premise that I find puzzling. It is that a decision to exclude Mr Haddon from the church based on (sexual) conduct grounds is more sustainable, or supportable, or respectable, than one based upon a ground of hostile theological views. Just why that should be so is not apparent from the evidence. I find it impossible to see why Messrs Steele and Batten would fabricate (or exaggerate) a sexual harassment reason for asking Mr Haddon to absent himself while concealing a theological reason for the same request. So far as the evidence went, there was no impediment to Mr Steele and the wardens making the same request of Mr Haddon, for the expressed reason that he was perceived as a dangerous intellectual force in CIM.
However, that was the premise underlying the plea of malice.
There is ample evidence that Mr Haddon's theological position differed radically from that of Mr Steele. I am satisfied that Mr Steele held considerable control over the theological direction of the congregation of CIM, and that he wished to keep it that way. A good example of his determination to do so is, in my opinion, to be found in his circulation of the AFES Confession, requiring adherence to his stated doctrinal position by any who would be involved in "ministry" functions. It is probably no coincidence that he only did so after Mr Haddon joined the congregation, and began disseminating his dissenting and, to Mr Steele, unacceptable, theology. In my opinion, Mr Steele did not want Mr Haddon to disrupt the even tenor of the congregation. The evidence suggests that this was a cohesive and united congregation who joined in church and social activities together and accepted (perhaps unquestioningly) the leadership of Mr Steele. There was not a word of evidence that any other member of the congregation questioned the orthodoxy of the doctrines of the Church of England as taught by him.
I have no doubt that Mr Steele found Mr Haddon a "troublesome" congregant, of whom he would have liked to be rid, if he could not be brought into line. That he found Mr Haddon "troublesome" is best illustrated by the following. On 15 September 2007 Mr Steele was referred, by Greg Clarke, to an article in a US journal entitled "Church Antagonists: Can't live with them, Can live without them" (Ex FFF). The article is lengthy, and does not bear reproducing.
It is worth, however, quoting from its conclusion:
"The time may come when all efforts to control the activity of an antagonist are to no avail. The antagonist's attack continues, and the church is being split by his efforts. In this situation, there are two more options: the pastor may resign or the antagonist may be removed.
...
Sometimes an antagonist's attack reaches the point where a decision has to be made between excluding that person from the church or having very little church left. The antagonist's behavior has to be such that the church bylaws mandate removal. The extreme measure of removing the antagonist is a last resort, a step that must be approached with fear and trembling - and much prayer. This is a hard step to take, but it is sometimes necessary to ensure the stability of the congregation."
The following day Mr Steele passed this on to Andrew Barry, with the comment:
"I think Greg may have given us the clue to handling Bruce ..." (Ex FFF)
He also passed it on to CS, who, it seems, disseminated it more widely.
Mr Batten was also unhappy about Mr Haddon's theology and the effect it was having on CIM. On 11 September 2007, he sent an email to Mr Steele, identifying as the subject "bh" (Ex HHH). It is obvious from the content of this email that Mr Batten and Mr Steele had been having discussions about Mr Haddon. In this email Mr Batten said:
"but i also think scripture would also advise you to actively fight lies and untruth while holding a cool head ... the haddon issue is spreading like yeast through the dough of our community, judging by the number of people he is meeting with and talking about the ban"
Senior counsel for Mr Haddon also pointed to exchanges post-dating 15 February that placed more emphasis on the theological differences than the conduct issue. It is obvious from these documents that the negotiations did not cease on the sending of the email to Mr Haddon on that date.
On 19 February Mr Steele sent Mr Haddon an email inviting him to a meeting with himself and the church wardens to discuss:
"... your breach of our conduct-agreement in regards to relationship with women and negative theological impact in our church family." (Ex T)
There were then active communications between Mr Steele, Mr Batten and Mr Haddon. On 7 March Mr Batten sent Mr Steele an email which purported to represent the views of the wardens. It read:
"We the church wardens of acc and citm hereby inform bruce haddon that he is no longer welcome to be part of this community nor to consider himself a member of the community.
This is effective as of monday 10 march 2008.
This decision is a result of considered delibeerations (sic) by the wardens who are of one mind, united in this decision.
At the centre of the concern: bruce haddon's theological perspective which is deeply entrenched and varies greatly from that of this community, and which has resulted in behavior we consider unacceptable and believe is out of place in any christian community.
...
This follows a concerted effort to ask bruce to embrace this communities understanding of scripture and change his behavior.
These attempts were unsuccessful on both counts.
..." (Ex LLL)
Mr Batten had no recollection of how this document came into existence. A reasonable inference is that it is a draft of a communication Mr Batten proposed to be sent to Mr Haddon, by the wardens. It represented, very likely, one of a number of possible scenarios being contemplated. I think it very likely that it does encapsulate Mr Batten's views about Mr Haddon.
On 10 March the wardens and Mr Steele sent a further email to Mr Haddon, cancelling the meeting that had been mooted (Ex T), and advising him that they thought it best if he did not continue as a member of CIM (part Ex MMM).
On 18 March Mr Batten sent an email to the wardens and Mr Steele saying:
"Our actions so far are adequate. We only stand to lose ground from here. We do not need to explain anything further or get caught up in a debate about any complaints. The church has decided to ask him to leave. We have not explained why and do not have to. Theology is the key reason, conduct is another ." (Ex MMM, bold added)
Senior counsel for Mr Haddon pointed to other evidence suggesting that theology was the, or the predominant, motivation for the meeting of 10 February. For example in Mr Batten's note of the meeting of 10 February, made later that night, Mr Batten wrote:
"DS said there are two reasons for the meeting - Bruce Haddon's theology and conduct.
DS recapped the ongoing tensions caused by BH's promotion of his radically different theology, his failure to accept the bible as the infallible word of God and his sustained efforts to influence others in church, undermining the teaching of the leadership.
...
DS said this has been dealt with in the past and was not the focus of today ...
DS raised the matter of BH conduct.
There have been repeated complaints about the way BH treat women, making inappropriate comments about their appearance, their bodies, their tans and skin colour ..." (Ex 32)
Mr Haddon accepts this record as substantially accurate.
Mr Steele also made a file note of the meeting, either the following day, or during that week (Ex 31). He was extensively cross-examined about discrepancies between this and Mr Batten's note, and also about discrepancies between the content of the file note and the first draft of the email to Mr Haddon. (For example, the first draft of the email (Ex 33) contained no reference to leading conversations towards sexual matters, or to kissing or touching women, all of which appear in the file note. The purpose of the cross-examination was to question the authenticity, and accuracy of the file note, and to strengthen the suggestion that the sexual harassment allegations were a pretext, or decoy, to "manufacture" an apparent (but not real) basis for the exclusion of Mr Haddon from the church.)
The attempt failed. I was satisfied with the explanation given by Mr Steele. I am also satisfied that, as at 10 February, Mr Steele's purpose was, as stated in the email, to find a way of dealing with the problems of Mr Haddon's conduct.
That does not mean that the theological issues were of no importance; they were. But they were separate from, parallel to, and independent of, the conduct issues. They were not the motivation for the email.
Other issues going to malice were identified in the written submissions made on behalf of Mr Haddon. For example, reliance was placed upon Mr Steele's email of 12 February 2008, to a number of recipients, seeking information about Mr Haddon's conduct (Ex R), and the email to the pastor of St Thomas', for the same purpose. It was perfectly proper for Mr Steele to inform himself fully before taking the rather serious step he was contemplating.
Senior counsel also relied on Ex G, which he described as "a benign email" from Mr Batten, sent early in the morning, following the meeting of 10 February. In my opinion "benign" is not a proper characterisation of that email, which has to be seen in the light of those that succeeded it. True it is, in Ex G, sent just before 10am on 11 February, Mr Batten asked, innocuously, if Mr Haddon could give him some feedback, with his thoughts and impressions of the previous day's meeting. He also asked if the issue of conduct that had been raised was clear, and how Mr Haddon was feeling about it on that day.
Mr Haddon responded with a lengthy email (Ex H), to which Mr Batten replied:
"i fear that you have missed the message of the meeting last night
...
do you have a perspective as to why we are receiving so many complaints about the way you speak to women in particular." (Ex J)
As I have said more than once, I am quite satisfied that Mr Haddon's theological perspective was a major issue in the CIM community, and particularly so to Mr Steele and Mr Batten.
I am equally satisfied, however, that his conduct towards women was similarly a major issue for them. This emerged early in Mr Haddon's membership of CIM, and continued throughout, raising its head in a staff meeting in June 2005, and at the Wollongong meeting in 2008, in a way that disturbed Mr Steele.
I do not accept that Mr Steele and Mr Batten misused the occasion for which privilege is permitted. It follows that the plea of malice fails.
The inevitable consequence is that the plaintiff's claim fails and there must be a verdict for the defendants.
Damages
I have considered whether, notwithstanding these conclusions, I should deal with the question of damages. I will do so briefly.
For the purpose of the assessment of any damages to which Mr Haddon might be entitled, it is important to bear in mind that this is not an inquiry into the administration of St Aidan's, nor of the rights or wrongs of the decision to exclude Mr Haddon, not of the process by which that decision was reached. It is an inquiry confined to the impact of the publication of the two emails.
There was considerable evidence, from Mr Haddon, and from his brother and sister, of the hurt and distress that he suffered as a result of the publication. Evidence of damage to reputation is virtually non-existent. The publication was to the most limited circle, all, or almost all, individuals who already knew Mr Haddon and, I infer, knew of the issues circulating in CIM. I conclude that no additional damage was done to his reputation by the publication of the emails to that limited circle. It is virtually impossible to separate the hurt and distress that Mr Haddon experienced as a result of receiving the email, and what it conveyed to him, from his hurt and distress at knowing that it had been published to others.
I have not overlooked that the first publication, by Mr Steele to the wardens, precipitated them to participate in the further circulation of the email. However, there is no evidence from which I could draw the conclusion that the email influenced their opinion of Mr Haddon in a way that could be said to have damaged his reputation.
If I were to make an award of damages, it would be in the amount of no more than $5000, exclusively related to the injury to Mr Haddon's feelings resulting from the publication of the emails.
The order I make is that there will be a verdict for the defendants. The plaintiff must pay the defendants' costs.
**********
Decision last updated: 08 August 2011
17
7
5