Jay & Anor v Petrikas & Ors (No.4)

Case •

[2022] NSWDC 628

•

13 December 2022

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Jay & Anor v Petrikas & Ors (No.4) [2022] NSWDC 628
Hearing dates: 21, 22, 23, 24, 25, 30 November, 1 December 2022
Date of orders: 13 December 2022
Decision date: 13 December 2022
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraphs 704 - 705

Catchwords:

TORTS – injurious falsehood – plaintiffs hold offices within Rural Fire Service Brigades - three publications by other office holders within the Rural Fire Service comprising or relating to disciplinary complaints against the plaintiffs – publications caused investigation by investigator external to RFS – investigation determined that there was insufficient evidence of breaches of service standards – appointing officer elected not to refer matters for disciplinary action – the scope of the element to the tort that the representations concern the ‘plaintiff and his or her property’– whether representations conveyed by the publications were false – whether malice actuated publications – whether causation established - whether the plaintiffs suffered actual damage – whether the plaintiffs’ incurring of legal expenses at an investigation into allegations conducted in accordance with RFS procedures for investigations was intended or the natural and probable consequence of any malicious falsehoods

DAMAGES – whether outstanding debt owed by a plaintiff to his lawyers, for which the other plaintiff is jointly and severally liable constitutes actual harm to both plaintiffs – whether aggravated and/or exemplary damages should be awarded

Legislation Cited:

Civil Liability Act 2002 (NSW) s 5D

Evidence Act 1995 (NSW) s 136

Income Tax Assessment Act 1997 (Cth) ss 245-35 – 245-45

Local Government Act 1993 (NSW)

Ombudsman Act 1974 (NSW)

Rural Fire Regulation 2013 (NSW) rr 4, 5, 7, 8, 9, 10

Rural Fires Act 1997 (NSW) ss 8, 15, 16, 18, 19, 20, 21

Cases Cited:

AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395; [2011] Aust Torts Reports 82-077

Anon (1706) 88 ER 921

ASIC v Fortescue Metals Group Ltd (2011) 274 ALR 731

Badenach v Calvert (2016) 257 CLR 440

Ballina SC v Ringland (1994) 33 NSWLR 680

Barrow v Bolt [2014] VSC 599

Bauer Media Pty Ltd v Wilson (No.2) [2018] VSCA 154

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185

Edwards v State of New South Wales [2021] NSWSC 181

Euromoney Institutional Investor Plc v Aviation News Ltd [2013] EWHC 1505

Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82

Gray v Motor Accidents Commission (1998) 196 CLR 1

Hamod v New South Wales [2011] NSWCA 375

Hill v Van Erp (1997) 188 CLR 159

Hutley v Cosco [2020] NSWCA 17

Irving v Phingst [2021] QCA 280

Jay v Petrikas [2019] NSWDC 707

Jones v Dunkel (1959) 101 CLR 298

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28

Lamb v Cotogno (1987) 164 CLR 1

Lendlease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207

Mallock v Tabak [1977] VR 78

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419

New South Wales v Radford (2010) 79 NSWLR 327

New South Wales v Zreika [2012] NSWCA 37

Niche Products Ltd v MacDermid Offshore Solutions LLC [2014] ELMR 9; [2013] EWHC 3540

Noye v Robbins & Crimmins [2007] WASC 98

Noye v Robbins [2010] WASCA 83

Palmer Bruyn & Parker Pty Ltd v Parsons (2000) Aust Torts Rep 81-562

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

Palmer v McGowan (No.5) (2022) 404 ALR 621

Perre v Apand Pty Ltd (1999) 198 CLR 180

Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460

Ratcliffe v Evans [1892] 2 QB 524

Roberts v Bass (2002) 212 CLR 1

Spedding v State of New South Wales [2022] NSWSC 1627

State of New South Wales v Abed [2014] NSWCA 419

The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 13) [2022] NSWSC 444

Tinkler v Ferguson [2020] EWHC 1467

Trkulja v Markovic [2015] VSCA 298

Trobridge v Hardy (1955) 94 CLR 147

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

V’landys v Australian Broadcasting Corporation (No.3) [2021] FCA 500

Wallace v Kam (2013) 250 CLR 375

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Whitbread v Rail Corporation New South Wales [2011] NSWCA 130

Wood v New South Wales [2019] NSWCA 313

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448

Texts Cited:

C Sappideen & P Vines, Fleming’s The Law of Torts (10th ed), Thomson Reuters

G Spencer Bower & K R Handley, Spencer Bower, Turner & Handley: Actionable Misrepresentation (4th ed, 2000, Butterworths London)

G Spencer Bower, A Code of the Law of Actionable Defamation (2nd ed, Sweet & Maxwell, London, 1923)

M Aronson & M Groves, Judicial Review of Administrative Action 5th ed, Thomson Reuters, 2013

R Parkes & G Busuttil (eds), Gatley on Libel and Slander (13th ed, 2022, Thomson Reuters)

RP Balkin & JLR Davis, Law of Torts (3rd ed, LexisNexis)

Category:Principal judgment
Parties: Mr G Jay (first plaintiff)
Mr J Peters (second plaintiff)
Mr C Petrikas (first defendant)
Mr D Ryan (second defendant)
Mr I Wedge (third defendant)
Ms K Hodges (fourth defendant)
Representation:

Counsel:
Mr T Brennan SC with Mr T Crispin for the plaintiffs
Mr M Richardson SC with Mr T Senior for the defendants

Solicitors:
A R Conolly & Company for the plaintiffs
Crown Solicitors Office (NSW) for the defendants
File Number(s): 2019/00072815
Publication restriction: Nil

REASONS FOR JUDGMENT

Introduction

Nature and elements of the tort of injurious falsehood

GENERAL BACKGROUND – EVENTS PRIOR TO THE FIRST PUBLICATION

The positions and background of the plaintiffs and defendants

Description of organisation within the NSW RFS

Disciplinary framework

Investigation of allegations

Disciplinary hearings before a disciplinary panel

Bullying & Code of conduct

Service Standard 1.1.42

The roots of antagonism between Glossodia Brigade and Hawkesbury District

SMT meeting of 23 September 2015

The Group South meeting in March 2016

The letter from Glossodia and Wilberforce Brigades to Don McKillop

The SMT meeting on 16 June 2016

The plaintiffs’ criticisms of Mr Petrikas’ report of the SMT meeting on 20 June

Glossodia Brigade’s representations concerning tankers

The drafting and sending of Mr Peters’ letter explaining the motions against Messrs Rutter and Earle

Events following the 20 July 2016 meeting up to the first publication

THE FIRST PUBLICATION

The 25 August 2016 letter

The allegations (Attachments 2, 3 & 4)

Attachment 2

Attachment 3

Attachment 4

The underlying complaints by attendees at the 20 July 2016 meeting

Admitted representations

Contested Representations

Consideration of the representations conveyed by the First Publication

THE SECOND PUBLICATION

Admitted representations

Contested Representations

Consideration of representations conveyed by Second Publication

THE THIRD PUBLICATION

Factual background

The Naethuys Affair

The PSU’s dealings with Mr Naethuys

Mr Wedge’s involvement in helping to settle Mr Naethuys’ witness statement – August 2016

Ms Hodges’ ‘covering’ briefing note

Description of the Third Publication

Admitted representations

Contested Representations

Consideration of representations conveyed by the Third Publication

EVENTS POST-DATING THE THIRD PUBLICATION

Further attempts to remove Mr Naethuys from Glossodia Brigade

Mr Plumridge’s appointment as investigator and notification

The investigation

Disclosure of the audio recording

The investigator’s findings

Mr Conolly’s requests for copies of the investigator’s reports

The plaintiffs’ threats of litigation

IDENTIFICATION OF PLAINTIFFS

Principles

Submissions

Plaintiffs’ submissions

Defendants’ submissions

Consideration

FALSITY OF REPRESENTATIONS FROM FIRST & SECOND PUBLICATIONS (AS FOUND)

Evidence for the plaintiffs

Mr Plumridge’s investigation reports into the conduct of Mr Jay and Mr Peters

The audio recording

T 5 (00:09:45)

T 9-12 (00:20:21 – 00:25:48)

T 16 – 19 (30:50 – 36:56)

T 25 – 26 (49:08 – 50:45)

T 26-32 (54.22 – 1:07:40)

Mr Jay’s evidence of the 20 July meeting

Evidence in chief

Cross-examination

Mr Crick’s evidence about the 20 July 2016 meeting

The defendants’ evidence

Other disputes between Mr Jay and Hawkesbury Group

Re-examination

Suggested relevance of the email correspondence between Mr Jay and others

Credit

Mr Jay

Mr Peters

Mr McKillop

Mr Crick

Mr Eather

Submissions

General

Findings on Falsity for the First and Second Publications

Graeme Jay bullied and intimidated members of the RFS who attended a meeting on 20 July 2016 by raising his voice in an aggressive manner even after he was told not to

Graeme Jay, by his conduct of meeting on 20 July 2016, had breached RFS Service Standard 1.1.42, sections 3.10-3.15 and the Code of Conduct section 4.6

Graeme Jay was deliberately disruptive of a meeting of the RFS on 20 July 2016 because he ignored demands to speak in a calm manner (G.1.a & G.1.b)

Submissions

The plaintiffs’ submissions

Consideration

Graeme Jay lied to the persons present at the South Sector meeting on 20 July 2016 when he told them that he had no idea of the content of the letter from John Peters because he was in fact the one who had given a letter to Charles Eather so that it would be tabled at the meeting (G.1.c)

Submissions

Plaintiffs’ submissions

Defendants’ submissions

Consideration

Graeme Jay is dishonest (G.1.d)

Submissions

Plaintiffs’ submissions

Defendants’ submissions

Consideration

Graeme Jay insisted that the letter that he knew to be libellous of Andrew Rutter and Bruce Earle be read at the meeting of the RFS on 20 July 2016 (G.1.f)

Submissions

Plaintiffs’ submissions

Defendants’ submissions

Consideration

Graeme Jay breached Service Standard 1.1.17 Code of Conduct and Ethics (G.1.h)

Submissions

Plaintiffs’ submissions

Defendants’ submissions

Consideration

John Peters libelled Andrew Rutter and Bruce Earle in a narrative he provided support to motions at the meeting of the RFS on 20 July 2016 (G2.a)

Submissions

The plaintiffs’ submissions

Consideration

Peters falsely accused Andrew Rutter and Bruce Earle of being unfit to represent South Sector as SMT representatives (G.2.b)

Submissions

The plaintiffs’ submissions

Consideration

John Peters has breached RFS standards 1.1.42, sections 3.13(e) and section 3.13(l) and the Code of Conduct section 4.6 (G.2.c)

Submissions

The plaintiffs’ submissions

Consideration

John Peters has breached Service Standard 1.1.17 Code of Conduct and Ethics (G.2.e)

Submissions

The plaintiffs’ submissions

Consideration

FALSITY OF REPRESENTATIONS IN THE THIRD PUBLICATION (AS FOUND)

Jay bullied and threatened Daniel Naethuys, a member of the Glossodia Brigade (G.3.a)

Submissions

The plaintiffs’ submissions

The defendants’ submissions

Consideration

Jay made a false report with respect to an operational incident, namely that on 6 June 2016, when it was recorded in the Brigade’s records that Mr Naethuys had responded to an operational incident when in fact he had not because Mr Jay had prevented him from attending the incident

Jay supplied false information regarding an operational incident

Jay breached Service Standard 1.1.7 Code of Conduct and Ethics by supplying false information in relation to an operational incident (G.3.b)

Submissions

The plaintiffs’ submissions

The defendants’ submissions

Consideration

Peters bullied and harassed Mr Daniel Naethuys

Peters attempted to procure Mr Naethuys’ resignation from the Brigade in circumstances where Mr Naethuys did not wish to resign

Peters reported to other members of the RFS that Mr Naethuys had resigned, when in fact he had not and Peters was aware that he had not resigned (G.4.a)

Submissions

Plaintiffs’ submissions

Defendants’ submissions

Consideration

Peters disclosed the fact, and subject of, a confidential investigation be conducted by the PSU to Naethuys’ parents (G.4.b)

Submissions

Plaintiffs’ submissions

Defendants’ submissions

Consideration

SUMMARY ON FALSITY ISSUE

WERE FALSE REPRESENTATIONS PUBLISHED MALICIOUSLY?

The Court’s approach to determining this issue

Principles

Submissions on malice

The plaintiffs’ submissions

General

Significance of defendants’ election not to give evidence

Context

General identification of motive

The First Publication

The belated production of the audio recording

Second Publication

Third Publication

The defendants’ submissions

General

First publication

The audio recording

The tabling of the Peters letter and motions to remove Rutter and Earle

The representation as to what Jay said about the Peters letter

Second publication

Third publication

Consideration

The processes for investigations into complaints of breach of discipline

Context of complaints

Assessing whether malice attended the false representations

At the Group South meeting on 20 July 2016, Mr Jay bullied or intimidated other attendees by raising his voice in an aggressive manner

Graeme Jay was deliberately disruptive of a meeting of the RFS on 20 July 2016 because he ignored demands to speak in a calm manner

Jay bullied and threatened Daniel Naethuys, a member of the Glossodia Brigade

Peters disclosed the fact, and subject of, a confidential investigation be conducted by the PSU to Naethuys’ parents

Significance of defendants’ election not to give evidence

ACTUAL DAMAGE

The facts

The appointment of the investigator

Principles

Submissions

The plaintiffs’ submissions

The defendants’ submissions

Consideration

Causation

Whether the false features of the representations were material to the decision to investigate or its scope

The false representations in the First and Second Publications

False representations in the Third Publication

The plaintiffs’ shift away from their particulars

No intention to cause the damage imputed to the defendants

Was the incurring of legal expenses in an investigation a natural and probable consequence of malicious falsehoods?

The standard for assessing whether harm is a natural and probable consequence of malicious falsehoods

The differences in procedure between investigations and disciplinary action

Questionable right to receive legal representation at an investigation

The personalities of Mr Jay and Mr Peters

Mr Jay’s evidence after the harm is suffered

Is there a limitation on the nature of the actual damage?

Did the plaintiffs actually incur damage as a matter of fact?

The plaintiffs retain A R Conolly

The issue to the plaintiffs and payment of invoices issued by A R Conolly

Western Freight Management

Submissions

Plaintiffs’ submissions

The defendants’ submissions

Plaintiffs’ submissions in reply

Consideration

AGGRAVATED & EXEMPLARY DAMAGES

The pleading of the claims

Pleading of claim for aggravated damages

The pleading of the claim for exemplary damages

Principles concerning aggravated and exemplary damages

Aggravated damages

Submissions

Plaintiffs’ submissions

The defendants’ submissions

Consideration of the claim for aggravated damages

Exemplary damages

Principles

Submissions

The plaintiffs’ submissions

The defendants’ submissions

Consideration of the claim for exemplary damages

COSTS

SUMMARY AND ORDERS

ANNEXURE A

REASONS FOR JUDGMENT

Introduction

  1. This proceeding commenced on 6 March 2019. It involves a dispute between members and office-holders of the New South Wales Rural Fire Service (the RFS). The plaintiffs sue the defendants for damages (including aggravated and exemplary damages) in the tort of injurious falsehood arising out of three publications in August and September 2016.

  2. The plaintiffs, Graeme Jay and John Peters, have been longstanding members of the Glossodia Brigade and have occupied senior offices within that Brigade.

  3. The publications comprised:

  • a letter (dated 25 August 2016, with attachments) from the first, second and third defendants to Karen Hodges (the Superintendent of the RFS and the fourth defendant) (Annexure ‘A’ to the statement of claim) (the First Publication). The First to Third Defendants are sued in respect to the First Publication. The First to Third Defendants admit publishing the letter with the attachments to Ms Hodges;

  • a briefing note (dated 5 September 2016, with attachments) sent from Ms Hodges to the Regional Manager, Ben Watson (Annexure ‘B’ to the statement of claim) (the Second Publication). The Fourth Defendant is sued in respect to the Second Publication. Ms Hodges admits publishing the briefing note to Mr Watson; and

  • a briefing note (dated 5 September 2016, with attachments) sent from the third defendant to Ben Watson (Annexure ‘C’ to the statement of claim) (the Third Publication). The Third and Fourth Defendants were initially sued in respect to the Third Publication, but at the close of the evidence, the claim against the Third Defendant in relation to this publication was abandoned. Ms Hodges admits publishing the briefing note to Mr Watson.

  1. At the dates of these publications, the defendants held certain offices within the RFS. These were:

  1. for the First Publication:

  1. Chris Petrikas, Group Captain (South Sector)

  2. David Ryan, Deputy Group Captain (South Sector)

  3. Ian Wedge, Deputy Group Captain (South Sector)

  1. for the Second and Third Publications:

  1. Karen Hodges, Superintendent Hawkesbury District

  1. The original statement of claim was brought against the first, second, and third defendants. The fourth defendant, Karen Hodges, was later joined in May 2020.

  2. To explain how this case arose, in December 2016, the plaintiffs were informed by a representative of the RFS that allegations had been raised about them in the subject publications and that, as a result, a private investigation would ensue. The investigator was Jason Plumridge. Mr Plumridge essentially opined that there was insufficient evidence to support to the standard (the probabilities) set for him that either of the plaintiffs had breached NSW RFS service standards he was asked to investigate. In December 2017, the plaintiffs were informed, in effect, that following Mr Plumridge’s investigation, the matter would not proceed.

  3. The plaintiffs contend that allegations were made about them which, to the defendants’ knowledge, were demonstrably false; with the defendants’ object of procuring a ‘disciplinary investigation’ (although as will be noted, that assertion of the defendants’ object shifted throughout the hearing). The plaintiffs complain that, to the extent the publications centred on the events of July 2016, the defendants provided, in effect, a distorted record of evidence and withheld from, or at least did not disclose to the investigator, the single most probative item of evidence of what had occurred at the meeting in question on 20 July 2016: an audio recording. They say that the defendants have adhered to denials of allegations about certain matters even as the evidence unearthed by the audio recording suggested the falsity of them. This, the plaintiffs argue, indicates malice.

  4. The plaintiffs were represented by Mr Brennan SC, who appeared with Mr Crispen of Counsel. The defendants were represented by Mr Richardson SC, who appeared with Mr Senior of Counsel.

  5. It is notable that no claim was brought against the defendants in defamation, although in the case of the fourth defendant, the plaintiffs unsuccessfully applied for an extension of the limitation period applicable to that action against her[1] .

    1. Jay v Petrikas [2019] NSWDC 707

Nature and elements of the tort of injurious falsehood

  1. In their Opening written submissions, the parties agreed that the elements for this tort are as stated by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 (Palmer Bruyn) at 404 [52][2] as follows (citations omitted):

“52. … generally, it is said that an action for injurious falsehood has four elements (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.”

2. A recent example of this statement of principle being applied was the decision of Snaden J in Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340 at [351]

  1. As will soon become apparent, there was controversy about the meaning of this first element.

  2. Speaking more generally, at [57]-[59], Gummow J observed (citations omitted) that:

“57. The tort of "injurious falsehood" (a term coined by Salmond) has its origins in actions for "slander of title". This involved aspersions cast upon the plaintiff's ownership of land which resulted in the plaintiff being unable to lease or sell the land. Despite the use of the term "slander" and its "unfortunate" association with the law of defamation, "slander of title" appears to have been recognised as an action on the case for the special damage resulting from the defendant's interference. The action was slowly enlarged in the nineteenth century, until the position was reached in 1892 where, in Ratcliffe v Evans, the modern foundation of the tort, Bowen LJ could say:

"[t]hat an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title."

This passage was taken to be an accurate statement of the law respecting injurious falsehood by this Court in Hall-Gibbs Mercantile Agency Ltd v Dun and later in Sungravure Pty Ltd v Middle East Airlines Airliban SAL.

58. Whilst the same factual matrix may found actions in both defamation and injurious falsehood, there are important distinctions between them. In Joyce v Sengupta, Sir Donald Nicholls V-C said:

"The remedy provided by the law for words which injure a person's reputation is defamation. Words may also injure a person without damaging his reputation. An example would be a claim that the seller of goods or land is not the true owner. Another example would be a false assertion that a person has closed down his business. Such claims would not necessarily damage the reputation of those concerned. The remedy provided for this is malicious falsehood, sometimes called injurious falsehood or trade libel. This cause of action embraces particular types of malicious falsehood such as slander of title and slander of goods, but it is not confined to those headings."

It is for the plaintiff in injurious falsehood to establish falsity, malice and special damage, burdens not imposed upon the plaintiff by defamation. On the other hand, the inhibition upon the use of the injunction to restrain further publication of defamatory material does not apply to injurious falsehood; a rationale for the distinction is said to be that the latter tort protects proprietary and commercial rather than personal interests.”

59. The action for injurious falsehood is in many respects more closely allied to deceit than it is to defamation. This was recognised by Sir John Salmond, who said:

"The wrong of deceit consists, as we have seen, in false statements made to the plaintiff himself whereby he is induced to act to his own loss. The wrong of injurious falsehood, on the other hand, consists in false statements made to other persons concerning the plaintiff whereby he suffers loss through the action of those others. The one consists in misrepresentations made to the plaintiff, the other in misrepresentations made concerning him." (original emphasis)

  1. The parties substantially agreed on the issues requiring the Court’s adjudication. They were naturally structured in relation to each of the aforesaid elements of the tort. They are:

  1. whether each of the three publications conveyed certain representations;

  2. whether the representation(s) was of and concerning the plaintiffs (or either of them) in connection with the ‘business’ of the plaintiffs;

  3. (if the answer to 2 is yes) whether the representations were false;

  4. (if the answer to 3 is yes) whether the defendants published the publications (attributed to them) with malice;

  5. whether the plaintiffs (or either of them) suffered actual damage as a result of the publications;

  6. (if the answer to 5 is yes):

  1. the quantum of actual damage; and

  2. whether the plaintiffs (or either of them) are entitled to aggravated damages and/or exemplary damages (and, if they are, the quantum of either or both of such awards).

GENERAL BACKGROUND – EVENTS PRIOR TO THE FIRST PUBLICATION

  1. In this section of these reasons, I refer to some uncontroversial facts, supplying some context for the subject publications as they emerged from the parties’ respective chronologies (Exhibits C & 1) and the documents cited in the entries in those chronologies. Interspersed will be some of the evidence from the witnesses.

The positions and background of the plaintiffs and defendants

  1. The first plaintiff, Mr Graeme Jay, joined the Glossodia Brigade of the RFS in 1998. He was first elected as an officer of the brigade, as Deputy Captain in June 2009 to May 2011. He served in the role of Senior Deputy Captain until May 2011 until June 2014 when he assumed the role of Captain of the Glossodia Brigade. He remained as Captain of the Glossodia Brigade until 31 May 2017. While he moved with his family to North Queensland in January 2017 he continued to serve the Glossodia Brigade – as Deputy Captain until July 2019. In November 2020 he received the Premier’s Bushfire Emergency Citation, in recognition of his service fighting the 2019 bushfires.

  2. Mr Jay was a teacher at TAFE (in glazing) from 1990 until 2016. More recently he has worked as a paramedic.

  3. The second plaintiff, Mr John Peters, joined the Glossodia Brigade prior to the formation of the RFS in 1990. He has served as Captain of the brigade from periods from 2002 to 2007, 2010 to 2014 and 2017 to 2021. He served as Deputy Captain from 2007 to 2009 and from 2014 to 2017 and since 2021 has served as Senior Deputy Captain of the Glossodia Brigade. He too received the Premier’s Bushfire Emergency Citation in November 2020.

  4. Mr Peters is a senior businessman, being the Managing Director of Western Freight Management Pty Ltd.

  5. Mr Chris Petrikas, the first defendant, is the Captain of the South Group in the Hawkesbury District of the RFS. He has been a member of the RFS and its predecessors since 1976 and has served as a Group Officer for the south sector of the Hawkesbury Rural Fire District since 2003.

  6. Mr David Ryan, the second defendant, is a Deputy Captain of the South Group in the Hawkesbury Rural Fire District. He has been a member of the RFS and its predecessors since about 1974 and served as a Group Officer of the South Group from 2001.

  7. The third defendant, Mr Ian Wedge, has been a member of the RFS since 1994 and a Group Officer within the Hawkesbury Rural Fire District since 2011. Originally he was assigned as a Group Officer for the North Sector but at the time relevant to these proceedings he was a Group Officer for Region East.

  8. The fourth defendant, Superintendent Karen Hodges, is the Fire Control Officer and District Manager for the RFS for the Hawkesbury District. She has held that position since 1999.

Description of organisation within the NSW RFS

  1. To understand the human dynamics between the plaintiffs and defendants requires some appreciation of the organisation of the NSWRFS: the differences between Brigades and Districts, between volunteers and paid workers. As Mr Jay stated in his evidence, the picture is not altogether clear.

  2. The legislative framework was the Rural Fires Act 1997 (NSW) (the ‘Act’). The Act requires that rural fire districts be established for local government areas and confers various functions on local government authorities.

  3. By s 8(2) of the Act, the RFS Service divided members in two ways: (1) there was the Commissioner and other staff of the service and (2) there were volunteer rural fire fighters. "Volunteer rural fire fighters"meant: (a) officers and other members of rural fire brigades, and (b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade.

  4. Volunteer ranks are defined in the RFS Service Standard 2.1.4 Appointment of Field and Group Officers. The highest volunteer rank at Brigade level is the Brigade Captain, followed by Senior Deputy Captain and then Deputy Captain. At the time of the events in this proceeding, Mr Jay was Captain of Glossodia Brigade and Mr Peters was the President of Glossodia Brigade.

  5. Section 15 of the Act provides for the formation of rural fire brigades. As the plaintiff emphasised, these are not established by the RFS, but, rather, by local government authorities. A local authority could form one or more of these for its area or part of the area. (A local authority, for this purpose, was generally, defined to be the land falling within a Council identified under the Local Government Act 1993 (NSW)).The Hawkesbury Rural Fire District was constituted by the area of Hawkesbury Shire Council. The Glossodia Brigade was established by the Colo Shire Council prior to the existence of the Hawkesbury Shire or the RFS.

  6. There could be multiple brigades formed, as a group, for the district by the fire control officer for the District (s 16). The fourth defendant, Superintendent Hodges, was the Fire Control Officer and she formed the brigades of Hawkesbury District into three groups: Group North, Group West and Group South.

  7. Section 18 of the Act provides that the Rural Fire Brigade is to appoint as its officers persons selected in accordance with the service standards of that Brigade. Members of a rural fire brigade were to be registered (s 20). The Act conferred certain functions on the officers (s 21).

  8. The appointment of officers of a group of rural fire brigades was governed by section 19 of the Act. It required that only persons selected to be officers of the Group by the members of the rural fire brigades forming the Group could be appointed as officers of the Group. The plaintiffs submitted that although Mr Petrikas, Mr Wedge and Mr Ryan purported to act as officers of the South Group, the evidence was that they had been appointed to that role by Superintendent Hodges; even though they had never been selected to perform that role by the members of the rural fire brigades forming the Group. Rather they had been appointed to the role following purported elections each year by the brigades (cf members of the brigades) of the Hawksbury Rural Fire District (cf the South Group).

  9. In the Hawkesbury Rural Fire District there was a Senior Management Team (SMT) comprised of the Fire Control Officer for the District, the Group Captains and Deputy Captains for each of the three Groups and two elected representatives of each group. The three Captains alone could vote at the SMT with the Deputy Captains and representatives attending to speak but not vote.

  10. The practical relationship between brigades, groups and the SMT was described in an email from Superintendent Matthew Smith, Regional Services Manager (Operations) of the RFS, to Mr Jay on 12 July 2016. Where a brigade had a proposal which required consideration by the Hawkesbury District, the Brigade Executive or Captain was to take the proposal to either a Group Officer or the SMT. The SMT was responsible for reviewing each proposal from a brigade and providing feedback to it.

  11. At the time of the events in this proceeding, the (since repealed) Rural Fire Regulation 2013 (NSW) detailed (in Part 2) certain matters about Rural Fire Brigades and Groups of Rural Fire Brigades. This included provision of a Constitution for each Brigade (Reg 4); prescription for the eligibility of members of Brigades (Reg 5), and removal of members of Brigades (relevantly for breach of discipline) (Regs 7 & 9), appeals from decisions to remove members (Reg 8); appeals from disciplinary actions (Reg 10).

  12. Relevant effects of regulations 9 and 10 were that:

  1. Service Standards made by the Commissioner of the RFS were given legislative force in the sense that:

  1. failure to comply with a Service Standard was a breach of discipline pursuant to regulation 10(1)(c) and a ground for exercise of the disciplinary power conferred by regulation 9; and

  2. the disciplinary power could only be exercised if the alleged breach of discipline had been dealt with in accordance with the procedure set out in the Service Standards; and

  1. the consequences of discipline action could be as specified in reg 9(3) including suspension, demotion, disqualification from holding rank and removal from membership of the brigade.

  1. It may briefly be noted that the eligibility of members to be listed on a Brigade register was satisfied upon the person proving that he or she:

“(a) complies with the procedures (if any) for attaining membership set out in the constitution for the rural fire brigade, and

(b) satisfies the requirements (if any) for attaining membership of a rural fire brigade determined by the responsible authority”

  1. A New Brigade Constitution for NSW Rural Fire Brigades was in evidence. This was adopted by Glossodia Brigade on 29 June 2011 and commenced operation the next day. Clause 5 dealt with membership. Sub-clause 5.2 outlined different membership classifications. Clause 6 generally provided for meetings of members.

  2. Clause 7 dealt with office bearers. Sub-clause 7.1 indicated that the offices of captain and senior deputy captain were elected by members at the annual general meeting. This was also the case with the President and Vice President. Clause 8 indicated that the Executive Committee of the Brigade comprised, amongst others, the president, secretary, captain and vice president. Clause 9 dealt with finance. One of the obligations of the Board was for an auditor (appointed at an AGM) to conduct an audit of the Brigade’s financial records at the end of each financial year and supply a written report to the treasurer of the Brigade (cl 9.5.3).

  3. A flow chart of Operations of the RFS is depicted on the third page of Exhibit 2. At the top there was an Executive Director of Operations. Immediately underneath was Director of Regional Services who, at the material dates, was Mr Jason Heffernan. Underneath him was a range of different offices; the most relevant of which was the position of Regional Manager (East). This was Mr Ben Watson. Underneath him was the Regional Operational Services Manager, Matthew Smith.

  4. It will also be noted from the flow chart that at the base of operations was District staff and below that Volunteer Fire Fighters. In relation to District staff, at the material dates, there were 12 permanent positions for the Southern Region and the figure for District Staff for the south was designated to be ‘84.6’.

Disciplinary framework

  1. Of central importance to the issues of both malice, causation and actual damage is the framework for complaints of discipline contained in Service Standard 1.1.2 Discipline [3] . It was the Director of Regional Services, Mr Heffernan’s, decision that Mr Plumridge conduct his investigation in accordance with this Service Standard.

    3. Exhibit B, pp 1049-1052

  2. There is no such thing as a ‘disciplinary investigation’, an expression which was used multiple times by the plaintiffs. There is an investigation and there might, thereafter, be a disciplinary hearing before a disciplinary panel. Express provision was made, for disciplinary action, but not investigations of allegations, under the since repealed Rural Fires Regulation 2013 (NSW). The distinction is apparent in Service Standard 1.1.2. There are different Standard Operating Procedures (‘SOP’) applicable to investigations of allegations (SOP1.1.2-2 [4] ) and disciplinary hearings (SOP 1.1.2-3 [5] ). ‘Disciplinary action’ is defined [6] , relevantly, to include action taken against a volunteer member of the NSW RFS for a breach of discipline pursuant to cl 9 of the Rural Fires Regulation in relation to a failure to comply with Service Standards (Service Standard 1.1.2, paragraph 2.1(f)(iii)).

Investigation of allegations

4. Exhibit B, pp 1055-1056

5. Exhibit B, pp 1057-1058

6. Exhibit B, p 1049

  1. Service Standard 1.1.2 indicates that a member of the NSW RFS is entitled to make an allegation of a breach of discipline: Service Standard 1.1.2 (paragraph 3.4). Clauses 3.5 and 3.6 set out matters of form in relation to such allegations. Anterior to this is also, SOP 1.1.42-1 titled ‘Raising Matters of Bullying, Discrimination, Vilification and/or Sexual Harassment’ [7] . It is part of Service Standard 1.1.42. By Clauses 2.8 to 2.11, members who feel that they have been bullied may raise their concern of bullying to their supervisor.

    7. Exhibit B, pp 307 - 309

  2. Clauses 2.1 – 2.5 of SOP SS1.1.2-2 broadly indicates the range of responses of a person in receipt of an allegation of a breach of discipline.

  3. Cl 2.1 is significant. It provides:

“A person who receives an allegation must consider the allegation and, if he or she considers it appropriate:

a.   Investigate the allegation personally;

b.   Appoint another person to investigate the allegation; or

c.   Refer the allegation to a more senior officer”.

  1. In their criticisms of Ms Hodges, the plaintiffs appeared to read into this provision a requirement that the ‘consideration’ in this provision means the recipient’s own investigation into the allegation before determining whether to refer the matter on to someone else. I do not regard that construction as tenable. Clause 2.1 provides three alternatives. To take the first of those, the plaintiff’s construction would mean that the recipient would need to conduct some kind of investigation before deciding to investigate the allegation personally; which is illogical if not nonsensical. It would also substantially derogate or impair the right of a member to make an allegation of a breach of discipline (in cl 3.4 of Service Standard 1.1.2). The most natural construction is that the recipient of the allegation ‘considers’ it in the context of having regard to the allegation and determining who is the appropriate person to undertake the investigation.

  2. In Clause 2.9 of SOP 1.1.2-2, the courses of action that the appointing officer must make once in receipt of the investigator’s report are made apparent.

  3. In summary, essentially, a member may make a written allegation of breach of discipline. The recipient decides who is to investigate it. Eventually the appointing officer appoints the investigator. It is investigated and the investigator must determine whether there is a case to answer or whether there is no case to answer. It is then a matter for the appointing officer to determine whether to refer the matter to a disciplinary panel or determine that the matter should proceed no further. The structure is such that for complaints of breach of discipline, an investigation must proceed before any hearing by a disciplinary panel.

Disciplinary hearings before a disciplinary panel

  1. Once the appointing officer, having considered the investigator’s report, refers the matter to the disciplinary panel (or ‘discipline delegate’), the procedure for the disciplinary panel is governed by SOP SS1.1.2-3. Significantly, the disciplinary panel must observe the rules of justice (although the panel is not bound by the rules of evidence) and allow the respondent to be represented or assisted by others (Clause 2.1).

  2. The procedure appears to contemplate that the disciplinary panel may take into account matters that go beyond the report prepared by the investigator in the earlier investigation. That is not only apparent from the absence of any constraint to be bound by rules of evidence (clause 2.2), but also from the opportunity that either the investigator or another member may attend the hearing to present the case against the respondent (clause 2.4).

  1. Clause 2.3 stipulates that subject to observing natural justice and the requirements of the SOP, it is up to the disciplinary panel to “determine how it will hear the matter”. This indicates that there is no impediment in the disciplinary panel taking into account any other information, say, that a respondent may wish to bring to the panel’s attention, including conceivably evidence not considered by the investigator.

  2. Clause 3.11 provides if the respondent is found guilty of a breach of discipline, the penalties that may be imposed are:

  1. reprimand the respondent;

  2. suspend the respondent for a specified period or

  3. recommend to the relevant regional manager that he or she:

  1. demote the respondent;

  2. disqualify the respondent from holding rank in the brigade or group of brigades;

  3. remove the respondent’s name from the brigade register; and

  4. impose conditions on the respondent’s membership of a brigade or group of brigades.

Bullying & Code of conduct

  1. Mr Plumridge’s investigation principally focussed on allegations of bullying against Mr Jay and Mr Peters and a breach of the Code of Conduct.

Service Standard 1.1.42

  1. For Attachments 2 & 3 of the First Publication and 3 & 4 of the Third Publication, reference is made to Service Standards. These were relevantly:

  2. Service Standard 1.1.42 is titled ‘Respectful and Inclusive Workplace’. It runs to nearly 10 pages (excluding attached SOPs) [8] . The relevant part, affecting Mr Jay and, to an extent, Mr Peters, was Sections 3.10-3.15. These were as follows:

    8. Exhibit B, pp 297-306

“Bullying

What is bullying in the workplace?

3.10 Bullying is repeated and unreasonable behaviour by a person or group of people that is directed towards a member or a group of members at work that creates a risk to health and safety.

Repeated behaviour means it is persistent and can involve a range of unreasonable behaviours over time.

Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, would see as unreasonable. Unreasonable behaviour includes any behaviour that victimises, humiliates, intimidates or threatens another member.

A risk to health and safety means the possibility of danger to health and safety; it is not confined to actual danger to health and safety.

3.11 Bullying is in breach of the NSW RFS Code of Conduct and Ethics. Bullying also creates a risk to the health and safety of individuals, workgroups and ultimately the NSW RFS.

3.12 bullying behaviour can occur regardless of the presence of a protected characteristic.

3.13 Examples of behaviour, that may be considered to be bullying if they are repeated, unreasonable and create a risk to health and safety include:

a.   harassment;

b.   abusive, insulting or offensive language or comments;

c.   threats or acts of physical violence (this may also constitute a crime under the Crimes Act 1900 NSW;

d.   shouting or screaming;

e.   unjustified criticism or complaints;

f.   intimidating aggressive body language;

g.   humiliating and individual through sarcasm, criticism or insults;

h.   continuously and deliberately excluding someone from regular workplace activities;

i.   intentionally withholding information that is vital for effective work performance;

j.   deliberately setting unreasonable timelines or constantly changing deadlines;

k.   deliberately setting tasks that are unreasonably below or beyond person’s skill level;

l.   spreading misinformation or malicious rumours;

m.   deliberately changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers; or

n.   excessive scrutiny at work

3.14 Bullying can occur in any location where members are undertaking authorised NSW RFS activities. It can also occur outside the physical workplace of the NSW RFS and outside business hours, including during work-related functions such as conferences, training courses and seminars, NSW RFS related social events, and trips.

3.15 bullying can be perpetrated in person as well as via email, social media (eg. Facebook, Twitter), phone calls and/or text messages. Commentary on social media, whether on private or public sites all with work or personal devices, can in certain circumstances amounts to workplace bullying.

…

  1. Clause 3.18 provides examples of behaviour that would not be considered bullying. This includes ‘having a different opinion and/or a disagreement’.

  2. SOP 1.1.42-2 is titled ‘Responding to Matters of Bullying, Discrimination, Vilification and/or Sexual Harassment (Supervisory Officers) [9] . As the title indicates, this SOP sets out the procedure to be followed by supervisory officers who receive a verbal or written complaint relating to, among other things, bullying.

    9. Exhibit B, pp 310-312

  3. SOP 1.1.42-2 includes a useful flowchart intended to clarify what actions supervising officers should take depending upon the complaint. In order to proceed into the disciplinary process, the following steps must be satisfied:

  1. The matter must not involve a member under 18 years and/or allegations of a criminal nature;

  2. The matter must not relate to a personality conflict or misunderstanding, or the officer must have tried and failed to resolve the matter at the local level;

  3. The matter must relate to a clear breach of discipline or misconduct;

  4. The respondent must be a volunteer; and

  5. The officer must determine that they are the appropriate person to handle the matter.

  1. Service Standard 1.1.7 is titled ‘Code of Conduct and Ethics’. Subsumed within this Service Standard is the Code of Conduct. The Code of Conduct nearly ran for 22 pages [10] .

    10. Exhibit B, pp 252-274

  2. In Section 1 of the Code of Conduct is a statement of “Our Values”. One of these was “Integrity and Trust” and certain aspirational statements are made about that matter. By cl 3.1 of the Code of Conduct, all members of the RFS had to comply with NSW RFS Values (and the Code of Conduct).

  3. Section 4.6 of the Code of Conduct is in the following terms:

“4.6 Respectful and Inclusive Workplace

The NSW RFS is strongly committed to providing and maintaining a respectful and inclusive workplace, where all members are treated with dignity, courtesy and respect at all times and in all work locations. Bullying, discrimination, vilification and/or sexual harassment have no place in a respectful and inclusive workplace.

Volunteers must comply with all relevant service standards.

Staff members must comply with all relevant policies and service standards.”

The roots of antagonism between Glossodia Brigade and Hawkesbury District

  1. Mr Jay gave evidence of simmering tensions with the Hawkesbury District leading up to the dates of the publications. For a period, Glossodia Brigade went along with a Village 1 classification, but this changed from 2011 or 2012. In 2011, Karen Hodges asked Glossodia Brigade to reconfirm their classification as Village 1 Brigade. Glossodia Brigade had been agitating for a reconsideration of its classification as a ‘Village 1’. The Brigade felt that with its different risk profile, it should at least have been considered for Village 2 status. The main difference between the two classifications was that the increased likelihood of structural fires necessitated access to breathing apparatus. The Hawkesbury District office was, collectively, not well disposed to the idea of change. But ultimately, Glossodia Brigade, and others within Group South, were reclassified as Village 2.

  2. The issue was more than of symbolic importance. Glossodia were trying to get equipment commensurate with its needs, such as breathing apparatus. Mr Peters was trying to have Compressed Air Breathing Apparatus (CABA) introduced in the Hawkesbury District. CABA allows firefighters to enter burning structures without being deprived of oxygen and protects them from noxious fumes commonly emitted from structural fires. In 2014, the RFS began a partial rollout of CABA to brigades in Hawkesbury. This was, according to the plaintiffs, achieved by Mr Peters effectively bypassing Karen Hodges and taking the issue to the Commissioner, who in turn referred the matter to the Regional East Manager, John Parnaby. Mr Jay recalled meetings between Mr Parnaby, Mr Peters and Ms Hodges in which Mr Parnaby sided with Mr Peters.

  3. Another issue concerned the ongoing suitability of tankers. Around 2015, Glossodia was also agitating for the acquisition of an urban-style pumper, leaving their Category 1 tanker (which was between 3,000 and 3,500 litres), to replace the Category 7 truck (which had a much smaller capacity) for bush fire- fighting whilst providing back up capability in structure fire-fighting.

  4. According to Mr Jay, for progress to occur with the changes, the issue needed to be discussed and considered at the Hawkesbury District SMT scheduled for 23 September 2015.

SMT meeting of 23 September 2015

  1. On 23 September 2015, this meeting took place. It was attended, among others, by Messrs Ken Pullen, Don McKillop, Ian Wedge, Chris Petrikas, Andrew Rutter and Ms Karen Hodges. A motion was put and adopted that Cat 1 Village Tankers were the most appropriate village tankers for the Hawkesbury. There was also a CABA review. The minutes of the meeting recorded that it was determined that if the funds requested “in the 15/16 Estimates were approved, they should consolidate Glossodia, Wilberforce and Oakville Brigades in CABA.” The SMT agreed to review the position in 12 months’ time. Amongst other things, the Minutes of the meeting recorded that everyone in attendance agreed that pumpers were not suitable for the Hawkesbury District and were not economical.

  2. Mr McKillop was the Deputy Group Captain of the Hawkesbury Fire District. He gave evidence of his attendance of an SMT meeting on 23 September 2015 and recalled a discussion on the subject of CABA and tankers. He was asked what Mr Rutter said on that subject. Mr McKillop recalled that what Mr Rutter said was not all that different to what others had said but the general sentiment appeared to be that CABA at some or all of the Brigades was not the right thing at the time because the SEO (presumably Senior Executive Officer, Ms Hodges) was not in favour because of budgetary constraints. Mr McKillop did not recall saying anything about Mr Rutter when he spoke to Mr Peters after this meeting. This was very different to Mr Peters’ evidence, which was to the effect that Mr McKillop had expressed to him substantial criticism about what Mr Rutter had said in the SMT meeting. Noting what I later say in the section on Credit, I prefer Mr McKillop’s evidence of what he said to Mr Peters about Mr Rutter.

  3. On 29 September 2015 a Group South meeting was held where Mr Andrew Rutter reported on the recent SMT meeting, including the circumstance that the SMT had passed a motion against the acquisition of pumpers. Minutes of the Group South meeting were distributed by the District Administration Officer by email on 28 October 2015. Mr Jay was one of several recipients.

  4. Mr Jay acknowledged that he had read the Minutes of this meeting in preparation for the hearing. He was referred to Andrew Rutter’s written reference to the motion encapsulating that recommendation. Mr Jay did not recall ever contacting Mr Rutter or Mr Earle about the Minutes.

  5. The plaintiffs contend that Mr Rutter was not adequately, or at all, transparent in his report of the 23 September 2015 SMT meeting at the Group South meeting which occurred on 29 September 2015. Although he was the sole representative from a CABA brigade in the South Group, they say that Mr Rutter had gone along the sentiment within the meeting that pumpers were not suitable for the Hawkesbury. It was said that his stance could only have been based on his own views or those of the Oakville brigade. But those views did not take into account the views of the Glossodia and Wilberforce Brigades.

The Group South meeting in March 2016

  1. A Group South meeting occurred on 23 March 2016 at Oakville station. Minutes of the meeting showed that Mr Jay questioned the effectiveness of pumpers to the Cat 1 tankers and that, in response, Mr Petrikas and Mr Rutter explained that the current Cat 1 tankers were designed for CABA and bushfire use, on and off the road. Mr Peters asked about the potential to increase the vehicles available in the RFS fleet. Mr Jay sought support to upgrade to a Cat 1 village tanker or pumper. Mr Petrikas responded by stating that the new Hawkesbury Cat 1s were ordered with a village pump. But Mr Jay disagreed, stating that a Cat 1 village pump had an output of 1900 litres per minute. Glossodia and Wilberforce both sought to upgrade their Cat 7s to Cat 1s or pumpers. Mr Schultz also asked Mr Scott Grinyer (from Blaxland Ridge Brigade) to attend a SMT meeting as he had experience to discuss the pros and cons of the use of a pumper. The plaintiffs submitted that Mr Petrikas effectively shut down these suggestions, although it is not clear to me on the face of the Minutes either what that meant or how it occurred.

  2. An election of SMT representatives took place at this meeting. Mr Jay had been nominated (by Mr Peters, seconded by Mr Schultz) but he lost: Mr Earle and Mr Rutter were elected. Mr Jay raised a motion about voting, suggesting that the Brigades/groups have one representative to vote at the election. Mr Schultz seconded that motion, but the motion failed. Mr Jay was cross-examined about what had occurred at the meeting and it was put to him, although he denied, that he had raised his voice, interrupted others or was disruptive, rude and aggressive.

  3. There followed correspondence about a proposal by Glossodia Brigade to have its boundary enlarged. Mr Jay was of the view that Tennyson Brigade’s boundary was too close to Glossodia’s. But the correspondence indicated that Mr Petrikas (who happened to be the Captain of the Tennyson Brigade) was opposed.

  4. It was put to Mr Jay, but he did not recall, whether he had subsequently raised any complaint about the roles of Mr Rutter or Mr Earle on the SMT.

  5. Between 27 April 2016 and 19 May 2016, there was acrimonious email correspondence between Mr Jay and Mr Petrikas. It seemed to start from Mr Petrikas’ preference (initially expressed to Michel Schultz) to have the next South Sector meeting after the June 2016 SMT meeting. Mr Jay indicated (in his email of 4 May) that he wanted the next Group South meeting “BEFORE” the next SMT meeting. He gave vent to his belief that sequencing the Group South meeting in this way was “essential, in fact, because that is the only way that the views of the Group can be represented at the SMT – to do otherwise is a cynical attempt to manipulate process and deny the Group a voice at the SMT.” Mr Petrikas took umbrage at this email, complaining, amongst other things, about Mr Jay ‘pushing and trying to belittle’ him. Mr Jay responded in turn, claiming that he was “at a loss to how you could have reached those conclusions”.

  6. On 19 May 2016, Ian Wedge sent an email to persons including Andrew Rutter, Bruce Earle, Chris Petrikas and Graeme Jay. The email proposed a vote on whether Scott Grinyer should be permitted to make a presentation concerning the use of pumpers. Mr Jay sent a reply protesting the proposal on the basis that agenda items should not be prohibited from being considered at a meeting. On 25 May 2016, Ian Wedge sent an email to Chris Petrikas, Dave Ryan and Karen Hodges, indicating that the Brigades of Group South had voted against allowing the presentation. So it did not occur.

The letter from Glossodia and Wilberforce Brigades to Don McKillop

  1. On 16 June 2016, Glossodia (Mr Jay) and Wilberforce Brigades (Mr Bryan Germain) drafted a letter for the attention of Mr Don McKillop. The letter asserted that it was Glossodia and Wilberforce’s intention to ask “our own Group South to represent us but that is not possible” and also asserted that discussion of appropriate tankers had been “stifled”. The letter went on to state Glossodia’s and Wilberforce’s position on the subject of tankers. Mr Jay paraphrased the request as being that Glossodia wanted to swap a Category 7 tanker for a Category 1 tanker in the short term, but wanted a Category 11 (Urban) pumper. The letter concluded by Mr Jay asking for Mr McKillop to “argue our case in the strongest possible terms”.

  2. Mr McKillop was not a South Group representative on the SMT. Mr Jay acknowledged that he did not address the concerns in this letter to any of Mr Petrikas, Mr Ryan, Mr Wedge, Mr Rutter or Mr Earle. It was put to Mr Jay, but then latter rejected, that by sending a letter in this way, he was going over the heads of the SMT, effectively bypassing proper process; although he conceded that there was nothing to stop him from sending to them the letter.

  3. Mr Peters said that he saw the letter before it was sent to Mr McKillop. He was aware that it had not been sent to any or all of the first, second and third defendants, or Mr Rutter or Mr Earle. There was a debate between the defendants’ Senior Counsel and Mr Peters as to whether there was any reference in the letter to CABA. Mr Peters maintained that there was, perhaps implicitly, through the reference to equipment needs.

The SMT meeting on 16 June 2016

  1. On (Thursday) 16 June 2016, there was a meeting of the Hawkesbury RFS District Senior Management Team (SMT). Items of discussion included an indication, on behalf of the Wilberforce and Glossodia Brigades, as to their preferred form of tanker. At that meeting the minutes record the following matters which were relevant to the Glossodia and Wilberforce proposals:

  1. The SMT in principle agreed to the proposition that additional Cat 1 tankers be allocated to Glossodia and Wilberforce in lieu of their Cat 7 vehicles when housing became available – that is the SMT agreed with the substance of the proposal tabled by Mr McKillop;

  2. In the review of tanker acquisition strategy, priority had been given, inter alia, to refurbishment of LM1B, replacement of OCV and refurbishment of the catering vehicle;

  3. In the review of station investment priorities, specific stations, not including Glossodia and Wilberforce, had been identified as priorities for investment for the next ten years.

  1. Mr Peters said that he was unaware of Mr Rutter and Mr Earle being in attendance. He made no inquiry of them.

  2. During the SMT meeting on 16 June 2016, one of the attendees, Mr McKillop, tabled the letter (of the same date) co-authored by Mr Jay and Mr Bryan Germaine (Captain of Wilberforce Brigade) referred to earlier. Mr McKillop did not, however, recall reading it out himself (Mr McKillop, over 80 years of age, indicated that he suffers from dyslexia). The letter was however, read out. He thought it might have been read out by Ms Hodges or Tim Seary. Mr McKillop said that reading out the letter elicited a negative response. He recalled that Mr Wedge insulted him. Mr McKillop’s response to that was that he felt that his duty as a SMT representative was to represent all Brigades and that he only tabled the letter because he wanted to help the Glossodia and Wilberforce Brigades.

  3. In cross-examination, Mr McKillop said that he spoke to Mr Peters after the SMT meeting on 16 June. He recalled telling Mr Peters that “things didn’t go down too good” and that, it was up to him to push on with it. Mr McKillop did not give evidence about telling Mr Peters anything about what Mr Rutter or Mr Earle had specifically said or done, or not said or done at this meeting [11] .

    11. T 276-277

  4. Mr Peters said in his evidence in chief that Mr McKillop was the source of information that Glossodia’s concerns were not being listened to at the SMT level and that Mr Rutter was not interested, effectively, in advocating for them. According to Mr Peters, Mr McKillop had conveyed to him that Mr Rutter was only interested in advancing the interests of the Oakville Brigade. Mr Peters believed that the motions were necessary since Glossodia needed (effective) representation at the SMT and to be heard. He gave some history relating to his dealings with the District since 2012 when, according to Mr Peters, the District appeared more concerned about the budgetary concerns about getting CABA equipment at the Brigade level then firefighters’ safety. Mr Peters noted, in particular, that from about this time, his (or even Glossodia Brigade’s) dealings with Ms Karen Hodges had changed. Rutter and Earle did not represent their interests well enough. He also explained that the source for what he and Mr Jay wrote about Mr Earle was Mr Earle’s own admission that he had a conflict of interest. Later, in re-examination, when he was referred to the part of the letter in which he asserted that Mr Rutter was not representing “us as a group”, he explained that he was referring to Group South and V2 Brigades (Oakville, Wilberforce and Glossodia).

  1. I would not have been satisfied that this was an appropriate case for an award of exemplary damages.

COSTS

  1. The plaintiffs made submissions about costs, but they were premised upon their success.

  2. In anticipation of success, the defendants asked the Court for the opportunity to make submissions on costs. They should have it.

SUMMARY AND ORDERS

  1. In summary, for the above reasons, I find that:

  1. the representations were not ‘of or concerning the plaintiffs’ goods or businesses’;

  2. there was a very limited number of false representations found in the publications;

  3. such false representations by the defendants, as have been found, were not actuated by malice;

  4. such falsities, as have been found from the representations, were immaterial and therefore did not cause the decision to investigate or affect the scope of the investigation;

  5. the plaintiffs’ incurring of legal expenses for advice and representation in connection with the investigation were not:

  1. intended by the defendants; or

  2. the natural or probable consequence of their publication of false representations.

  1. actual damage, for the purpose of this tort, could be constituted by the debt jointly and severally incurred by the plaintiffs to their solicitors.

  1. The Court accordingly orders:

  1. Judgments for the first, second, third and fourth defendants.

  2. The question of costs be reserved for submissions.

  1. The Court directs that:

  1. The defendants are to serve written submissions in chief on costs (not exceeding 10 pages, excluding relevant attachments) by 16 January 2023;

  2. The plaintiffs are to serve written submissions on costs in response (not exceeding 10 pages, excluding relevant attachments) by 23 January 2023;

  3. The defendants are to serve written submissions on costs in reply (not exceeding 5 pages) by 25 January 2023;

  4. Absent any further notice to the parties, the issue of costs will be determined on the papers.

ANNEXURE A

**********

Endnotes

Amendments

13 December 2022 - Heading amended before [79]

14 December 2022 - Formatting issue resolved

Decision last updated: 14 December 2022

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Cases Citing This Decision

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Jay & Anor v Petrikas & Ors (No.5) [2023] NSWDC 7