Karen Shelmerdine v Bronwyn Mewett No. SCGRG 92/2156 Judgment No. 3932 Number of Pages 11 Defamation

[1993] SASC 3932

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND MILLHOUSE(1) JJ

CWDS
Defamation - privilege - malice - libel - letter written by a parent of a child at a school to the Principal of that school about a teacher - defamatory nature of some remarks admitted - qualified privilege - malice - discussion of cases on "malice"
Horrocks v Lowe (1975) AC 135; Calwell v Ipec Australia Ltd (1975) 7 ALR
553; Spautz v Williams (1983) 2 NSWLR 506; Barbaro v Amalgamated Television Services Pty Ltd (1985) l NSWLR 30 and Pearce v Hailstone (1992) 166 LSJS l, applied. Hickman and Ors v Peacey and Ors (1945) AC 304, considered.

HRNG ADELAIDE, 6 April 1993 #DATE 12:5:1993
Counsel for appellant:     Mr R W Evans
Solicitors for appellant:    Johnston Withers
Counsel for respondent:     Mr T McRae
Solicitors for respondent: Stanley and Partners

ORDER
Appeal and cross-appeal dismissed.

JUDGE1 BOLLEN J This is an appeal by the unsuccessful defendant in an action for libel in the District Court at Adelaide. 2. In May 1987 the respondent was a teacher at Keller Road Primary School, Salisbury. The appellant was a teacher at another school. The appellant has a daughter. In 1987 that daughter was Year 7 at Keller Road Primary School, Salisbury. She was a member of a class under the control of the respondent. 3. The trouble started one day in the respondent's class. The learned trial Judge described and its aftermath thus:-
    "During an activity of her class described as
    'discussion/feedback' which was conducted in an apparently
    informal setting the plaintiff said that the defendant's
    daughter said '("My Dad" or "My Father") does something awful to
    me', and some moments later said 'I didn't mean that. What I
    meant was, my father punches and tickles me and plays silly
    games with me'. For a reason which seems to me sufficient the
    plaintiff did not then enquire further into this matter but next
    day, when she was alone with the child, who had asked to go home
    early because she felt unwell, she said, 'Lauren, what you said
    about your father yesterday; he doesn't touch you in any way
    that you don't want to be touched or do anything to you that you
    don't want him to do?', to which the child replied 'No, I didn't
    mean that. He punches and he tickles me, and he plays silly
    games with me'. The plaintiff says that she said 'that is okay,
    you can go and get packed up now and go home'. In
    cross-examination she said that the child did not seem to be
    horrified, or say 'No, my dad doesn't do that'. The child was
    then allowed to go home, the plaintiff having checked to
    ascertain that there was someone at the child's home, both
    parents being employed. 4. The defendant was told about these conversations by the child. The defendant is also a schoolteacher. Her evidence as to what her daughter told her varies somewhat from the plaintiff's evidence. Obviously I must accept the latter : the daughter was not called." 5. Of course, the plaintiff is the respondent. The defendant is the appellant. 6. The incidents seem trivial. A child said something which was capable of a nasty interpretation. She immediately corrected herself and explained what she meant. She maintained her "corrected version" next day. But, of course, to those concerned the incident or the remarks may not seem trivial. The remarks and, in particular, the respondent's enquiry next day did not seem in the least trivial to the appellant. The learned trial Judge correctly said of the incidents in class and next day -
    "I might say at this point that while knowing little about
    the correct approach to such problems, I do not feel that the
    conduct of the plaintiff in speaking privately to the
    defendant's daughter was inappropriate or improper. It may be
    that where there is a more than a mere suspicion of the sexual
    abuse of a child the matter should be handled other than by the
    teacher. But in this case there was a colourless enquiry
    conducted in private, which arose from something said by the
    child in class on the previous day. On the child's statement
    that there had not been anything in the nature of sexual abuse
    the plaintiff promptly discontinued the contact. I do not
    think, however, that she was wrong in speaking to the child.
    However, it led the child to speak to the defendant about the
    episode. One might have thought that a person who was herself a
    schoolteacher and, no doubt, aware of the problems which some
    children unfortunately have, would have categorised the incident
    otherwise than she did, though I appreciate that it might be
    difficult to be objective if one's husband is the person
    referred to." 7. I agree with these remarks. Of course, they are remarks that are not essential to the reasoning which produces a decision here. But I think that the attitude of the appellant to what her daughter told her is quite important. I jump ahead. We are concerned to enquire whether "malice" on the part of the appellant destroyed the protection given her against liability for the making of libellous statements. They were made on an occasion to which qualified privilege applied. So much was admitted by the respondent. The respondent alleged that the protection was removed because the appellant wrote the libellous sentences with malice. Whilst I speak of formal admission I mention that the appellant admitted that some passages which she wrote were defamatory. That means that she admitted their falsity. Publication was proved, indeed not put in issue at trial. It was publication to the Principal of the Keller Road Primary School. The learned trial Judge said:-
    "The defendant wrote a letter dated 11th May, 1987, which was
    directed 'To whom it may concern'. It gives a version of the
    above events as related to her by her daughter. The letter's
    last two paragraphs are critical of the plaintiff but the
    plaintiff concedes that the occasion was one of qualified
    privilege and that what the defendant wrote was not such as to
    destroy that privilege. Nor is it disputed that the defendant
    was acting on a privileged occasion in writing a document, which
    is not specifically directed to anyone, on 15th June, 1987, even
    if it could be considered that it is defamatory of the
    plaintiff.
    The letter relied on by the plaintiff as being defamatory of her
    is addressed to the Principal of the school at which the
    plaintiff was a teacher. It is dated 19th May, 1987, and is set
    out in the Particulars of Claim. The defendant said that she
    had been asked to write it by the Principal at a meeting held
    between the dates of the first and second letters. The
    Principal had, she said, asked her, as one who had taught in the
    same school as the plaintiff, if she could find out any other
    problems that had arisen with the plaintiff. The Principal was,
    I was informed, to be called as a witness by the defendant. I
    adjourned the Court at the close of the plaintiff's own evidence
    to await his arrival. The defendant, however, decided not to
    call him, so I did not have the benefit of his evidence.
    The defendant said that she had acquired information which was
    incorporated in her letter of 19th May, 1987, from a Ms Beck, a
    Mr Glouftsis, and a Ms Paul who are employed at her school as
    teachers and librarian. The defendant does not deny that
    certain passages of the letters were defamatory if written
    without privilege. The defendant claims, however, that what she
    wrote was, like the letters earlier mentioned, done upon an
    occasion of qualified privilege. I do not doubt that prima
    facie that was so : the letter falls within two heads of
    qualified privilege at least. The plaintiff says, however, that
    the privilege was destroyed by her having established that the
    defendant acted with malice. The malice, she argues, is to be
    inferred from the terms of the letter." 8. It will be seen that the respondent accepted, as she was bound to do, that the onus of proving that in writing some passages in the letter of 19th May 1987 the appellant acted with malice lay on her shoulders. 9. The letter of 19th May 1987 which was published to the Principal of the Keller Road Primary School was:-
    "19/5/87 To the Principal, In response to the allegation that
    my daughter, within hearing distance of several students, made
    the following statement: 'My father does something awful to
    me', I feel obliged, as a parent, to firstly supply the
    following background information, to which I have inadvertently
    (sic) been exposed. Being employed as a teacher in a State High
    School where Ms Mewett has taught, I have been unable to avoid
    talk of the aforementioned. I am reluctantly, as a parent,
    supplying these details; such is our concern for our daughter's
    welfare. I trust and believe my colleagues, who have related
    various incidents and experiences of the time Ms Mewett was
    employed as a teacher at the School. All who worked with her
    have expressed concern about her professionalism and classroom
    management practices. I repeat that I am greatly concerned for
    my child's welfare under Ms Mewett's 'guidance'. It is under
    great duress that I disclose the following, much of which was
    heard before any of my colleagues were aware that Ms Mewett was
    in any way connected with any member of my family. While
    studying at the same time and college as Ms Mewett...students
    would opt out of units Ms Mewett had chosen as she's a pervert.
    She'd always change the talk around to sex, and be really dirty,
    not just in her language, but she just wanted to talk about sex.
    At school during class Ms Mewett would talk about 'screwing' to
    the students (her terminology) was not undertaken as part of any
    sex education programme, but on an anecdotal basis, including
    discussing the sex lives of other staff members with her
    students. While on stress leave Ms Mewett was employed in the
    private sector. While on stress leave Ms Mewett was promoting
    her book throughout the metropolitan area. An attempt to have
    Ms Mewett de-registered as a teacher was made, unsuccessfully.
    On several occasions, my daughter Lauren Shelmerdine has
    informed me of the following: 'She concentrates on stuff for
    the girls because she says Mr Baldock talks about boys stuff in
    social studies but we haven't had Mr Baldock for ages for social
    studies, we only had him for music and dance, when we do it.'
    'We always are talking about girls stuff.' 'The boys books are
    history and the girls books are her story. That's stupid mum
    'cos history is history - like science.' 'We never talk about
    boys stuff.' 'I am sick of hearing about girls stuff, why can't
    the boys have a say. I don't want to go on the excursion 'cos
    its going to be girls stuff.'
    To return to the statement allegedly made by Lauren: 'My father
    does something awful to me'. Lauren's initial response was 'My
    father? My father? I never say my father, I always say dad. I
    never say my father. I didn't say that.' I enquired whether
    Lauren had said something i jest, as in...dad's awful (in
    reference to such things as the normal bodily contact of
    tickling, for example) but she assured me that she could
    remember no such reference. I refused to question Lauren
    further on the matter at that time, as she was beginning to feel
    that I may be doubting her. I do not. I find it grossly unfair
    that in order for any action to be taken by the Education
    Department, such documentation as this must occur, which in turn
    dictates how we, as a family, must deal with this problem which
    has been thrust upon us. The effect this incident is having on
    our daughter is causing us great concern. She currently feels
    her time at school worthless. 'There's no point in me trying at
    school now. I'll never get a good report now, she'll say I
    cause trouble.'
    We would appreciate the support of the principal and deputy of
    the school in ensuring that Lauren be made aware that she did
    nothing wrong in reporting the incident to me. She did the
    correct thing. We have a normal, loving relationship with our
    daughter, and luckily she is able to be open with us and speak
    her mind. I wonder at the damage such an incident could inflict
    on a child less able to relat to his/her parents. This raises
    the question of the 'safety' of the children in Ms Mewett's
    care. It has become necessary for us to question the education
    that Keller Road Primary School is providing for our child. It
    is unfortunate to have such dire incidents overcome more than
    six years of happy association with the school, as a participant
    in my children's and others' education, in my role as a parent
    and teacher. I suggest that the principal and higher education
    authorities thoroughly explore Education Department policies,
    especially in regards to teachers to ensure that the educational
    needs of the students in Ms Mewett's class are met. Every child
    has a right to an education. I doubt if this is possible now
    for Lauren with Ms mewett as her teacher. Our daughter is our
    prime concern and the school is perpetrating an injustice if you
    ignore the fact that she has been made to experience severe
    trauma. This document must be written. The pain the incident
    has caused, and continues to create, must be recognised. My
    daughter is suffering - she's committed no crime, nor have we.
    We love her and for her, and others like her, even this is
    worthwhile. (signed) Karen Shelmerdine" 10. I will not set out the meanings attributed to the words in that letter by paragraph 7 of the Statement of Claim. The appellant claimed in evidence that the Principal at Keller Road had asked her if she could find out any "other problems" that had arisen with the plaintiff (respondent). As has already appeared neither the Principal or any suggested informant was called to give evidence. The learned trial Judge was prepared to adjourn and did adjourn to "await the arrival" 11. of the Principal. But the appellant decided not to call him. The learned trial Judge said:-
    "Parts of the letter of 19th May, 1987, are agreed to be within
    the protection of the defence of Qualified Privilege. Other
    passages of it which are said by the plaintiff to have been
    written with malice and therefore outside the protection of
    privilege are set out below. In respect of some of them the
    defendant quotes, without identifying the sources, remarks made
    to her by the persons above referred to when the defendant spoke
    to them about the plaintiff. She said in evidence that the
    Principal, as best she recalled, had asked her as a teacher who
    was working in a school where the plaintiff had taught, if she
    could find any other problems that had arisen with the
    plaintiff. As I have said above this was not confirmed by the
    Principal, who did not give evidence, nor did the persons I have
    mentioned as having given information to the defendant." 12. The appellant had written defamatory remarks in a letter written "under" the umbrella of qualified privilege. But some of the passages were said to have been written with malice. In respect to some of these passages the appellant claimed to have been given information by named persons. She claimed that she had made enquiries at the request of the Principal which request led to her writing some passages. 13. I think the failure to call the persons, especially the Principal, is very significant. I need not stay to refer to authorities on the effect of a failure by a party to call a witness whom that party might have been expected to call. The learned trial Judge thought that the appellant should have called the Principal at any rate. He said:-
    "When she was cross-examined about her purpose in writing
    this letter the defendant appeared to me to be being evasive,
    and to seek to attribute her conduct to a request by the
    Principal, failing, however, to call him to confirm this. Mr.
    Beazley argued that since the plaintiff had the burden of
    proving malice if an occasion of privilege was successfully
    contended for it should have been the plaintiff who called the
    Principal. Nevertheless, it was the defendant's evidence which
    seemed to me to be in need of confirmation." 14. I agree. I think it implicit in his words that the learned trial Judge did not believe that it had been proved that the Principal made any request of the appellant. This Court must proceed on the assumption that the Principal made no request, that the appellant wrote the letter of 19th May 1987 off her own bat and, as I think, that she did not verify with the alleged informants anything which she may have heard from them (if she had anything at all) by way of gossip about the respondent. 15. All this does not in itself take away the existence of qualified privilege. It is, however, relevant to her state of mind, to the question of malice or no. The appellant, on her own admission, wrote and published untrue statements of and about the respondent. Did she do this in the proper exercise of qualified privilege or out or malice, out of ill will towards the respondent? In this case the "malice" referred to is "express malice" not implied malice. The learned trial Judge made this perfectly clear. I agree with him. The learned trial Judge correctly treated Horrocks v Lowe (1975) AC
135 as a most important case in establishing how a court decided whether words have been written with "express malice" or not. He quoted, too, an important passage from the reasons of Mason J (as he then was) in Colwell v Ipec Australia (1975) 7 ALR 553. I find the remarks of Mason J (if I may say so) most helpful. The passage to which I refer and to which the learned trial Judge referred, too, is:-
    "At common law it has been repeatedly said that a court should
    not be quick to find evidence of malice in the terms of
    defamatory material published on a privileged occasion because
    so to do would restrict considerably, if not defeat, the
    protection which the law confers on privileged communications
(see Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495; Adam
v Ward (1917) AC 309; (1916-17) All ER Rep 157). It has been
    said that where the words are utterly disproportionate to the
    facts this amounts to evidence of malice (Spill v Maule (1869)
LR 4 Ex 232), presumably on the footing that the extremity and
    exaggeration of the language is explicable only by reference to
    the existence of ill will in the defendant, but it does not
    suggest that a defendant is confined to saying what is strictly
    necessary to the occasion. The same comments may be made about
    the statutory concept of good faith to the extent to which it
    rests on ill will or other improper motive. None the less it is
    impossible to formulate a precise and 'illiminating' (sic)
    criterion which will separate those publications which furnish
    intrinsic evidence of ill will from those which do not. Whether
    in a given case there is an inference reasonably open that the
    defendant was actuated by ill will or some other improper motive
    will depend on the extravagance of the allegation or the
    language in which it is expressed, having regard to the facts.
    In each instance it is a judgment made in the light of the
    impression created upon the mind by what has been written, an
    impression which will not necessarily depend on a close textual
analysis of the words." 16. I, too, think that the question of malice or no will often be decided as a matter of impression perhaps an impression reached against the background of events. Here, against the background of the remarks between child and teacher in class one day and privately on the next, against the background of the attitude of the appellant to those remarks and the conduct of the respondent and against the failure by the appellant to call vital witnesses or at least one vital witness (the Principal). 17. I mention the case of Spautz v Williams (1983) 2 NSWLR 506 where Hunt J set out conditions on which or circumstances in which malice may be found (see p520-521). These are, if I may say so, very valuable statements of conditions or circumstances. A reading of them all is most helpful in guiding one to the right path of reasoning. Hunt J spoke again to our assistance in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50. The learned trial Judge here quoted the relevant passage with its incorporation of principles stated in Horrocks v Lowe (supra). Hunt J said:-

     "A defence of qualified privilege will be defeated where the
    plaintiff is able to establish that, at the time of the
    publication, the defendant's state of mind was not that which
    the law requires for a publication upon an occasion of qualified
    privilege. The law requires that the defendant use the occasion
    for the purpose for which the privilege is given and that (other
    than in the exceptional case where the defendant is under a duty
    to pass on, without endorsement, defamatory reports made by some
    other person) he have an honest belief in the truth of what he
    published. Where the defendant has established that he
    published the matter complained of upon an occasion of qualified
    privilege, these two states of mind are presumed in his favour
    unless and until the contrary is proved by the plaintiff. If
    the plaintiff shows either that the defendant has used the
    occasion to publish the matter complained of for a purpose other
    than that for which the privilege is given (which is usually
    described as an indirect or an improper or a foreign motive) or
    that the defendant did not have an honest belief in the truth of
    what he published, the defence of qualified privilege is
    defeated. Express malice is the term of art which is used to
    describe what the plaintiff must prove to defeat the defence of
    qualified privilege. In some of the older authorities, an
    absence of honest belief on the part of the defendant is treated
    merely as some evidence of an indirect motive which alone is
    said to constitute express malice, but the better view, in my
    opinion, is to treat the two as different kinds of malice. A
    belief in the truth of what was published will not be sufficient
    to save the defence of qualified privilege if the defendant
    nevertheless misused the occasion for a purpose other than that
    for which the privilege is given - for example, if he has
    published the matter complained of in order to injure the
    plaintiff or some other person, or to vent his spite or ill-will
    towards him, or to obtain some private advantage unconnected
    with the privileged occasion upon which he made the publication.
    That is the way in which the law has been expressed by the
    House of Lords in Horrocks v Lowe (at 149-151). It should,
    however, be noted that Lord Diplock there states that a warning
    must be given to juries that they should be very slow to draw
    the inference that the defendant had an improper motive unless
    they are also satisfied that he did not have an honest belief in
    the truth of what he published. There has not been any
    significant departure from that view of the law in the eleven
    years which have passed since that decision was given. Two
    important principles are also emphasized by the decision in
    Horrocks v Lowe (at 149-151) : (a) The plaintiff must establish
    that any foreign purpose shown by the evidence is the dominant
    motive for the publication; a dislike of the plaintiff, or an
    indignation at what the defendant believed to be the plaintiff's
    conduct (together with his taking advantage of the occasion to
    expose that conduct), is not sufficient to establish express
    malice unless that is shown to be the dominant motive for the
    defendant's publication. (Dominant should be understood in the
    sense of "paramount": cf Waugh v British Railways Board (1980)
    AC 521 at 543.) (b) Express malice is not established where the
    defendant's belief in the truth of what he published is the
    result of carelessness, impulsiveness, irrationality or
    prejudice, or where the defendant has relied upon intuition
    instead of reasoning, or where he has leapt to conclusions upon
    inadequate evidence, or where he has failed to recognize the
    significance of material which might cast doubt upon the
    validity of the conclusions which he has reached. Provided that
    the belief is honestly held, the imperfections of the mental
    processes by which that belief is arrived at by the defendant do
    not matter. It is against that background that the
    considerations stated in Spautz v Williams should be applied.
    Applying those considerations to this present case, I must be
    satisfied by the plaintiff that there is evidence which, as a
    matter of commonsense, is capable of definitely pointing to the
    actual existence of express malice which was really operative in
    the publication by the defendant. Substantial evidence, and not
    surmise or a mere scintilla, is required to establish either a
    foreign motive or an absence of belief by the defendant in the
    truth of what it published. Express malice must be proved
    positively, by credible evidence. Mere conjecture does not
    suffice. (The authorities for those propositions are identified
    in Spautz v Williams.) The plaintiff has not even attempted to
    establish the absence of an honest belief on the part of the
    defendant in the truth of what is published. The jury would
    therefore have had to be warned, in accordance with Horrocks v
    Lowe (at 150), that they should be very slow to draw the
    inference that the defendant's dominant motive was not to give
    information to those of its viewers who identified the plaintiff
    concerning the situation at Griffith. But that consideration,
    of course, cannot affect the decision whether there is evidence
    fit for the jury to consider with that warning in mind." 18. The learned trial Judge made an accurate summary of the speech of Lord Diplock in Horrocks v Lowe (supra). His Honour said:-
    "His Lordship stresses the crucial question of the defendant's
    motive. Express malice, broadly speaking means malice in the
    popular sense of a desire to injure. To destroy the privilege
    the desire to injure must be the dominant motive for the
    defamatory publication : knowledge that it will have that effect
    is not enough if the defendant is acting in accordance with a
    sense of duty or in bona fide protection of his own legitimate
    interests. Motive must be inferred from what is said or done or
    known. Lack of belief in the truth of what was published is
    usually conclusive evidence of express malice. If a person
    publishes defamatory material recklessly, without considering or
    caring if it is true or not, he is treated as if he knew it to
    be false. A belief may be honest though arrived at through an
    imperfect mental process. But even a positive belief in the
    truth of what is published may not be sufficient to negative
    express malice if it can be proved that the defendant misused
    the occasion for some purpose other than that for which the
    privilege is accorded by law. The commonest case is where the
    dominant motive which activates the plaintiff is not a desire to
    perform the relevant duty or to protect the relevant interest,
    but to give vent to personal spite or ill-will towards the
    person defamed. If this is proved, even positive belief in the
    truth of what is published will not enable the defendant to
    avail himself of protection of privilege. Improper motives
    other than personal spite may destroy the privilege. Judges
    should be slow to infer that the defendant had improper motives
    unless they are satisfied that he did not believe that what he
    wrote was true, or that he was indifferent to the truth or
    falsity. Qualified privilege is not lost merely by the
    defendant's dislike of the plaintiff, or by indignation with his
    conduct, even if he welcomed the chance of exposing his conduct.
    The proper rule as respects irrelevant defamatory matter
    incorporated in a statement made on a privileged occasion is to
    treat it as one of the factors to be taken into consideration in
    deciding whether in all the circumstances an inference can
    properly be drawn that the defendant was actuated by express
    malice. As regards irrelevant matter the test is not whether it
    is logically relevant but whether, in all the circumstances, it
    can be inferred either that the defendant did not believe it to
    be true, or, though believing it to be true, realised that it
    had nothing to do with the particular duty or interest on which
    the privilege is based, but nevertheless seized the opportunity
    to drag in irrelevant defamatory matters to vent his personal
    spite or for some other improper motive. Judges should be slow
to draw this inference." 19. In Pearce v Hailstone (1992) 166 LSJS 28 Olsson J said:-
    "As Lord Diplock pointed out in the course of his speech in
    Horrocks v Lowe (supra at 149-150), the motive with which a
    person publishes defamatory matter can only be inferred from
    what that person did or said or knew; and if it be shown that
    the person in question did not believe that what was published
    was true, this fact will generally constitute conclusive
    evidence of express malice. His Lordship went onto point out
    that no sense of duty or desire to protect a legitimate interest
    can justify a person in telling deliberate and injurious
    falsehoods about another. He emphasized that, if a defendant
    makes a publication recklessly - being indifferent to the truth
    of what was published and neither considering nor caring whether
    it was true or not - then that person will be treated as if he
or she knew it to be false." 20. Nobody other than the appellant herself positively knows whether she was actuated by malice, by ill will, by a dominant intention to harm the respondent. But the Courts do not sit to decide ultimate verities (see per Lord Simon LC in Hickman v Peace (1945) AC 315 at 318). They sit only to determine the proper result "having regard to the evidence before it". As I have said the question of malice or no may be decided as one of impression. It must be impression based on solid evidence. It must be impression gained from words written and the circumstances in which they have been written. It may be impression gained from evidence of the actions of the author. Does all this leave one satisfied that the author wrote within the purpose of the privileged occasion or that the author went outside that privilege, was moved by a dominant purpose to harm the person about whom she wrote? The learned trial Judge correctly asked himself these questions. He reminded himself of the caution mentioned in the appellate cases to which I have referred, the caution that is, against finding malice on inadequate grounds. 21. We already know the attitude of the appellant to the respondent's questioning of her daughter. We know that the appellant did not call the Principal or the other informants. What then were the defamatory words and sentences? Again let the learned trial Judge speak. His Honour said:-
    "'While studying at the same time and college as Ms Mewett
    students would opt out of units Ms Mewett had chosen as she's a
    pervert. She'd always change the talk around to sex, and be
    really dirty. Not just in her language, but she wants to talk
    about sex'.
    What, in the context in which it is used, is the meaning of the word
    'pervert'? The Shorter Oxford Dictionary defines the word as 'one who
    has been perverted or corrupted'. I can only regard the defendant's
    use of the word, given the context, as referring to perversion of a
    sexual nature. This allegation seems to be a serious one when made of
    a person who is the teacher of young children.
    The next paragraph, which is also in part concerned with sexual
    matters, is said by the plaintiff as having been calculated to cause
    maximum harm by exaggerating the significance of the plaintiff's use to
    her class of the term 'screwing'. The plaintiff said that she had
    possibly used the word on a few occasions in certain literature
    classes, though in her evidence in chief she had denied this. She
    said, however, that she had never, as alleged, discussed the sex lives
    of other staff members with her students. This was not put to her in
    cross-examination, and there was no evidence to support the defendant's
    statement.
    The next paragraph was an allegation that while on stress leave the
    plaintiff was employed in the private sector and in promoting a book
    which she had written. In saying this she cited Glouftsis as having
    told her that the plaintiff had been to that school and others,
    promoting her book, while on stress leave. The allegation, however, is
    one of promoting her book 'throughout' the metropolitan area. The
    plaintiff said that this was not the case. There is no evidence that
    she had done so, though she admitted having read from the book on two
    launches while on stress leave. She said that she did not know how
    many schools she had visited but had visited fewer than ten schools to
    promote her book. I do not find it proved true that the plaintiff had
    had employment 'in the private sector' while on stress leave or had
    promoted her book 'throughout the metropolitan area'.
    It may be that the defendant felt as a result of what she had been
    told that there had been talk about possible de-registration of the
    plaintiff and that this had led to an attempt to have her de-registered.
    If that be the case it would appear to tell against malice
    on the part of the defendant in writing what she did in respect of this
    allegation.
    In a later paragraph the defendant 'wonders' at the damage that could
    be inflicted on a child by the plaintiff's enquiry of her daughter on a
    child who was less able than her daughter to 'relate to' its parents.
    She then says that this raised the question of the 'safety' (her
    inverted commas) of the children in the plaintiff's care. She writes
    of 'such dire incidents'. She doubts if it is possible for her
    daughter's right to an education to be achieved with the plaintiff as
    her teacher." 22. The evidence discloses, in my opinion, a writing of the letter without any real belief in the truth of the defamatory statements. I think that the evidence proves that the appellant was recklessly indifferent to truth or falsity. As the learned trial Judge correctly said:-
    "The statements which the plaintiff embodied in her letter had,
    she said, been made to her by others. These persons were,
    however, not called. There is no evidence that the defendant,
    before writing the letter, enquired into the truth of the
    allegations. She was content to repeat them. They are in my
    view statements damaging to the plaintiff's reputation. What
    gave rise to them was the very brief and private enquiry which
    the plaintiff made of the defendant's daughter, which itself
    arose from something said by the child, and which was not
    pursued once the child had denied that anything which was not of
    an innocent nature had occurred. Closer questioning of her
    daughter by the defendant might have put the matter into better
    perspective. The defendant said that she had refused to
    question her daughter on the matter because in her view she (her
    daughter) was beginning to feel that the defendant was doubting
    her. Yet although she had not enquired further she used what
    she said that her daughter had said to her in writing the letter
    of llth May, l987. No complaint is now made by the plaintiff as
    to that letter. It is the letter of l9th May, l987, that the
    plaintiff says is libellous. In writing it to the Principal the
    defendant makes no reference to having been asked by the
    Principal to furnish the 'information' which is contained in it.
    Moreover, she says that she had inadvertantly (sic) been exposed
    to the information. Yet in her evidence she admitted that she
    had approached Miss Bede and had informed her that she had been
    asked by the Principal to provide him with information. She
    said that she also spoke to other members of the staff and
    included in her letter of l9th May, l987, what she was told." 23. The wording of the impugned passages is extravagant. So is the tone of the letter. Statements were written with reckless indifference to truth or falsity. The appellant set up that the Principal had bespoken enquiry by her and that she had heard things from named persons. The attitude of the appellant to the behaviour of the respondent when the child made the equivocal remark was extravagant. The clear impression decisively given by all this is that the appellant was moved by a dominant intention and wish to harm the respondent. She was moved by ill will. The learned trial Judge came to the correct conclusion thus:- "In my view she manifested ill-will towards the plaintiff and was reckless in, without verifying them, repeating to the Principal things which she claimed to have been told by others." 24. I would dismiss the appeal. The respondent cross-appeals. The award of damages was $5,000. The grounds of appeal are:-
    "1. That in assessing the Plaintiff's damages the learned erred
    in finding and taking into account that the Plaintiff had
    provoked complaints from a number of parents whose children were
    in her class (at page 19 of the Reasons).
    2. That in assessing the Plaintiff's damages the learned judge
    erred in finding and taking into account that the Plaintiff
    appeared to have found teaching stressful (at page 19 of the
    Reasons).
    3. That on the whole of the evidence the assessment of the
    Plaintiff's damages was manifestly inadequate." 25. I start with ground 3. I think that $5,000 was by no means a small award. Publication was limited. Even if the grounds 1 and 2 are made out I do not think that that would justify an award of more than $5,000. I would dismiss the cross-appeal. 26. I have followed convention in writing these reasons. An appellate court should publish reasons of its own or reasons of its various members. It will have been noticed that I have much quoted from the reasoning of the learned trial Judge. Were it not for the convention which I have mentioned I would have been well content to have said: "I find no fault in the reasons of the learned trial Judge. I respectfully adopt them."

JUDGE2 MOHR J I agree with Bollen J in this matter.

JUDGE3 MILLHOUSE J I agree.