Kurniawan v Gifkins - [2025] NTSC 70

CITATION:Kurniawan v Gifkins [2025] NTSC 70
PARTIES:KURNIAWAN, Virna

v
GIFKINS, Warren

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:2024-03498-SC
DELIVERED:  26 September 2025
HEARING DATES:  30 June 2025 & 1 July 2025
JUDGMENT OF:  Brownhill J
CATCHWORDS:

CIVIL PROCEDURE – Appeal from Local Court – Appeal on a question of law – Distinction between questions of law and mere questions of fact – Whether grounds of appeal are in substance questions of law –Various asserted questions of law found to be mere questions of fact
DEFAMATION – Appeal from Local Court – Whether Local Court erred in holding the alleged defamatory imputations were not conveyed – Whether Local Court erred in holding the alleged defamatory statements were substantially true – Whether Local Court erred in holding that the common law defence of qualified privilege applied – Whether Local Court erred in holding that the defendant was not motivated by malice –Whether Local Court erred in making an adverse credibility finding in respect of the respondent – No error of law found – Appeal dismissed
Aravas v Metropolitan Water, Sewerage & Drainage Board (NSW) (1970) 72 SR (NSW) 596; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Bassell v McGuiness (1981) 29 SASR 508; Brown v Repatriation Commission (1985) 7 FCR 302; Federal Commissioner of Taxation v Brixius (1987); Cush v Dillon (2011) 279 ALR 631; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; Dare v Pulham (1982) 148 CLR 658; Development Consent Authority v Phelps (2010) 27 NTLR 174; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Farquhar v Bottom [1980] 2 NSWLR 38; Favelle Mort Ltd v Murray (1976) 133 CLR 58; Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; House v The King (1936) 55 CLR 499 at 50; Housing Commission (NSW) v Tatmar Pastoral Co Ltd; Kemp v Findlay [2025] NSWCA 4; Lee v MacMahon Contractors Pty Ltd (2018) 41 NTLR 16; Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 66; Lipohar v The Queen (1999) 200 CLR 48; Matheson v Schneideman [1930] NZLR 15; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; NB v SB (2020) 349 FLR 409; Norbis v Norbis (1986) 161 CLR 513; Phelps v Development Consent Authority (2012) 31 NTLR 5; Prince v Malouf [2014] NSWCA 1; Roberts v Bass (2002) 212 CLR; Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW); Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496; R v Waldron (No 3) [2024] NSWDC 15; Skalkos v Assaf [2002] NSWCA 1; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24; Tracy Village Sports & Social Club v Walker (1992) 111 FLR 3; Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492; Viro v The Queen (1978) 141 CLR 88, referred to.

Local Court (Civil Procedure) Act 1989 (NT), s 19.
REPRESENTATION:
Counsel:
Appellant:PA Hart
Respondent:  ML Hamlyn
Solicitors:
Appellant:Turner Freeman Lawyers
Respondent:  Hunt & Hunt Lawyers
Judgment category classification:    B
Judgment ID Number:  Bro2511
Number of pages:  75

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Kurniawan v Gifkins

[2025] NTSC 70

No. 2024-03498-SC

BETWEEN:

VIRNA KURNIAWAN

AND:
WARREN GIFKINS

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 26 September 2025)

The appellant (‘Ms Kurniawan’) claimed damages for defamation in the Local Court against the respondent (‘Mr Gifkins’). The claim related to the content of a status report (‘report’) written by Mr Gifkins in his capacity as the chair of the management committee of a body corporate of an apartment building in Darwin. The report was emailed to all owners of apartments in the building. The report described various legal proceedings involving or relating to Ms Kurniawan, and stated that her behaviour had caused the body corporate committee members to spend time and legal costs of approximately $18,000. The report was alleged to convey nine imputations defamatory of Ms Kurniawan. The Local Court dismissed the claim.[1] This is an appeal from the decision of the Local Court.
Initially, there were eight grounds of appeal, some with sub-grounds, comprising a total of 22 grounds. These were reframed at the hearing into 21 grounds argued to be questions of law. The asserted questions of law related essentially to: (a) whether the Local Court erred in holding that three of the nine alleged imputations were not conveyed by the report; (b) whether the Local Court erred in holding that six of the nine alleged imputations were substantially true; (c) whether the Local Court erred in holding that the common law defence of qualified privilege applied; (d) whether the Local Court erred in holding that Mr Gifkins was not motivated by malice in publishing the report; (e) whether the Local Court erred in admitting into evidence an affidavit made by Mr Gifkins in response to an interrogatory; and (f) whether the Local Court erred in making an adverse credibility finding about Ms Kurniawan.
Found and undisputed facts
The Local Court found the following facts,[2] which were not in dispute on the appeal.
The apartment building had a long-standing ‘no pets’ rule. (In the Reasons, this was also referred to as ‘the no dog rule’.)
Some time prior to November 2018, after he purchased one of the apartments, Mr Yerriah (Ms Kurniawan’s partner) became a member of the management committee of the body corporate. Mr Yerriah tried twice to amend the body corporate’s by-laws to permit dogs in the apartments. Those efforts were not successful.
On 1 November 2018, Ms Kurniawan moved into Mr Yerriah’s apartment with a dog. After receiving complaints about the dog, the management committee told Mr Yerriah that the dog could not remain in the building. Ms Kurniawan and Mr Yerriah refused to remove the dog. The management committee issued a notice of breach of the apartment building by-laws.
On 30 November 2018, the management committee commenced proceedings in the Northern Territory Civil and Administrative Tribunal (‘NTCAT’) to compel Mr Yerriah to comply with the ‘no pets’ rule in the by-laws.
On 4 February 2019, there was an incident at the communal pool in the apartment building involving Ms Kurniawan, Mr Gifkins and other residents.
On 7 February 2019, there was an incident in the foyer of the apartment building during which the building manager, Jason Gay, pushed Ms Kurniawan after she put her phone near his face and filmed him. He was charged with assault.
On 9 February 2019, Ms Kurniawan and Mr Yerriah accessed a locked storage cage in the apartment building assigned to Mr Gifkins, removed his belongings and relocked the cage with their own padlock.
On 11 February 2019, there was another incident at the communal pool in the apartment building.
On 24 February 2019, there was an incident near the lift in the basement of the apartment building involving Ms Kurniawan, Mr Gifkins and another resident, Judy Richardson.
On 25 February 2019, Mr Gifkins, Ms Richardson and Mr Gay applied for personal violence restraining orders (‘PVROs’) against Ms Kurniawan.
During February to May 2019, various complaints were made that someone was slamming the fire exit door and the swimming pool gate, sometimes twice in succession.
On 19 March 2019, Mr Yerriah sent an email to all owners of apartments in the building alleging inappropriate use of body corporate funds to pay for PVRO applications.
On 15 April 2019, interim PVROs were issued restraining Ms Kurniawan from filming and harassing Mr Gifkins, Ms Richardson and Mr Gay.
On 18 April 2019, Ms Kurniawan and Mr Yerriah each applied for PVROs against Mr Gifkins and Mr Gay. Only one was issued. The other three applications were refused.
On 29 April 2019, the NTCAT ordered Ms Kurniawan and Mr Yerriah to remove the dog from the apartment building by 24 May 2019.
On 29 April 2019, Mr Gay pleaded guilty to assaulting Ms Kurniawan by pushing her. No conviction was recorded and there was no penalty other than a victim’s impact levy.
On 29 April 2019, there was an incident in the foyer of the apartment building in which Ms Kurniawan and Mr Gifkins had a verbal altercation and Mr Gifkins called the Police. Ms Kurniawan was issued with a notice to appear alleging a contravention of the PVRO.
On 7 May 2019, Ms Kurniawan applied for a review of the NTCAT decision.
By 24 May 2019, Ms Kurniawan and Mr Yerriah had not removed the dog from the apartment building.
On 8 June 2019, Ms Kurniawan, Mr Yerriah and the dog moved out of the building.
On 8 July 2019, Ms Richardson’s application for a PVRO against Ms Kurniawan was granted, with effect for 12 months.
On 8 July 2019, Ms Kurniawan applied for a PVRO against Ms Richardson.
On 9 July 2019, Ms Kurniawan applied for a PVRO against another committee member, Mr Brittain. This application was later dismissed, with costs.
On 15 July 2019, Ms Kurniawan’s application for a PVRO against Ms Richardson was dismissed.
On 2 August 2019, Ms Kurniawan’s application for review of the NTCAT decision about the dog was dismissed.
On 12 August 2019, Mr Gifkins published to the apartment owners a Chairman’s report.
On 15 August 2019, Mr Yerriah proposed a motion to be passed at the body corporate annual general meeting for issue of a breach notice against Mr Gifkins in relation to a Mr Zec.
On 19 August 2019, Mr Gifkins applied for a PVRO against Mr Yerriah and Mr Zec.
On 9 September 2019, Mr Yerriah filed an application in the NTCAT seeking orders for the removal of wi-fi access points, two lock boxes and a sticker from the common property in the apartment building. In the application, Ms Kurniawan was stated to be Mr Yerriah’s representative in the NTCAT proceedings.
On 13 September 2019, the hearing into Ms Kurniawan’s breach of the PVRO on 29 April 2019 commenced.
On 25 September 2019, Mr Yerriah informed the NTCAT that he and Ms Kurniawan would be lodging a complaint to the Law Society against the body corporate’s barrister.
On 26-29 September 2019, Mr Gifkins circulated drafts of the report to other committee members and the body corporate’s barrister.
On 30 September 2019, the body corporate’s barrister recommended to Mr Gifkins various amendments to the draft report.
On 30 September 2019, Mr Gifkins sent the report to owners of the apartments.
On 8 October 2019, Ms Kurniawan was found not guilty of breaching the PVRO on 29 April 2019.
The report
The report sent by Mr Gifkins the subject of the defamation claim is as follows:
5    Marrakai Body Corporate – Status Report – October 2019
6    Time to Open the Kimono
A large number of legal cases have been going on all this year. It is time body corporate members became aware of what has been occupying most of your committee members, building and strata managers’ time and energy. Today before the courts are 1 NTCAT case, 3 Violence protection orders and 1 criminal case. All cases concern the owner of unit 4, Chris Yerriah (unit owner) and his partner, Virna Kurniawan. These legal matters appear to be driven by a desire by the unit owner to intimidate, harass, annoy and frustrate the Committee’s substantive work. There is no sign that there will be an end to the use of the legal system to these ends. Details and impact are described.
7    NTCAT Cases
“The Dog Case”
8    The hostilities started when the unit owner moved into the building in November 2018, bringing with him his girlfriend and her dog. The dog was kept in his apartment, contrary to the Body Corporate by-laws. When I was appointed your chair, several members complained about the dog and urged that it be removed. When I discussed the dog with the unit-owner in the foyer, he initially denied there was a dog. He later said the dog is only in his apartment and does not touch body corporate property, so it is not the Committee’s concern. In 2017 and 2018, attempts were made by the unit-owner, during his tenure as a Committee Member, to amend the Body Corporate’s by-laws to allow unit-owners to keep small dogs in their apartments at the Marrakai complex. On both occasions, the majority of unit owners voted against the proposed amendments. However, the unit-owner refused to remove his dog. With that stance, the committee voted to take a case to NTCAT to get an order that the dog be removed. As soon as the unit-owner and his partner received the NTCAT notice they became aggressive and behaved in an intimidating and harassing manner against Committee Members, Judy Richardson, myself and Jason Gay (the building manager), which resulted in a number of Protection Orders being made by the court.
9    As you are all aware, the NTCAT found in favour of the Marrakai, and ruled that the dog had to be removed from the building. However, the dog remained in the building and the unit-owner immediately commenced an action to dispute the NTCAT’s findings, challenging the legality of the MBC by-law concerning pets at the Marrakai.
10 Due to the legal complexities of the unit-owner’s NTCAT appeal, the Committee voted to engage legal representation. Counsel was engaged to review Commonwealth law, Territory law and to collect and assess historical MBC records that revealed how the existing by-laws were constituted and updated through the life of the Marrakai under the Unit Titles Act (NT).
11 In the interim, the unit-owner sought a stay of the NTCAT’s original ruling (to remove the dog) pending the NTCAT’s review determination. The stay application was refused, with the result that the unit-owner had [to] remove the dog. Despite this, the dog still remained in the building. To enforce the NTCAT ruling I registered the Original Order at the Local Court ... in order to have the Local Court enforce the ruling that the dog be removed. The unit-owner and his partner then relocated to another building with their dog.
12 After reviewing the evidence and hearing legal submissions by counsel for both sides, the NTCAT upheld the original decision, concluding that the Marrakai by-laws concerning pets had been legally constituted, validly enacted and had legal force. The unit-owner’s dog case was dismissed.
13 “The Lock-Box, Sticker and Wi-Fi Case”
14 Last month the same unit-owner lodged another NTCAT case challenging the lawfulness of an emergency phone lock box, a sticker, and building Wi-Fi infrastructure being on common areas of the Marrakai. The Committee voted again to engage legal representation in this matter. This case is currently before the NTCAT, so I will not discuss its details in this notice.
15 Whilst the NTCAT [cases] were on foot, there has been 11 [PVROs] and 2 criminal cases before the local courts.
16 Personal Violence Protection Orders
Committee Members have had to self-represent or engage their own lawyers, at a cost to themselves, to deal with applications made by the unit-owner and his partner for [PVROs] at the Local Court.
17 Presently, the Local Court has ordered 3 [PVROs] refraining Virna Kurniawan from harassing, intimidating or verbally abusing three Committee members: Judy Richardson, Jason Gay and myself. Those orders were made following evidence being led about various events involving Chris Yerriah and his partner Virna Kurniawan, including:
181.     Aggressive behaviour against Committee Members during BBQs by the pool area, where police needed to attend to instruct the unit-owner and his partner to leave the pool area.
192.     Constant slamming of the security gate and fire exit doors below Judy’s apartment, causing noise to resonate loudly and many sleepless nights, as well as damage to the electronic latch for the fire exit door. This resulted in a new security camera being installed to monitor that part of the building.
203.     Ms Kurniawan verbally abusing and swearing at Judy and I as we were standing in the basement.
214.     Breaking into Cage 25, and damaging property belonging to me, in order for the unit owner to use Cage 25 to store his own property. Again, police were called several times. However, despite telling police he will remove his property from cage 25, the unit owner still occupies Cage 25.
22 The Local Court dismissed Ms Kurniawan’s applications for [PVROs] against Judy, Jason and I. The Judge who summarily dismissed the case in which Ms Kurniawan applied for a [PVRO] against Judy, remarked that she is not allowed to use the courts to intimidate Judy.
23 Ms Kurniawan’s [PVRO] claim against another Committee Member, Phil Brittain, is currently before the courts.
24 Mr Yerriah lodged claims for [PVROs] against Jason Gay and myself. The case against me was dismissed. Against Jason, it was accepted on the grounds as building manager, Jason is obliged to be polite and courteous to all unit owners, including Mr Yerriah.
25 There are 2 [PVRO] applications currently before the courts, which I have initiated, against Chris Yerriah and Steve Zec.
26 As these cases are before the court, so I will not go into further details. If you are interested in them, they will all be heard at the local court (Nichols Place) in Darwin on 7^th October at 2pm.
27 Criminal Cases
28 In May of this year, Jason Gay pleaded guilty to assaulting Virna Kurniawan, in a case reported in the NT News in the following terms: “Gay admitted to shoving the woman during a recent flare-up of their long-running dispute, after the woman provoked him by filming him with her mobile phone. The court, recognising that it was a ‘low-level assault – being a single push’, with ‘a trigger of provocation, the phone being waved in his face while he’s at work’, ordered a non-conviction in this case, and Jason was ordered to pay the mandatory $150 victims levy contribution. Of Ms Kurniawan’s Victim Impact Statement, the Judge remarked, ‘I can only disregard the victim impact statement’ because it ‘at times ... looks as if it’s relating more to a war crime than the material on the agreed facts before the court” (NT News, ‘Ruff Justice over Assault”, 15 May 2019).
29 Ms Kurniawan is presently criminally prosecuted for breaching the [PVRO] in which I am protected from her abuse and harassment. This prosecution case, with evidence heard from myself, Jason Gay and Phil Brittain, was heard last month. The matter has been adjourned for judgment at the Local Court (Nichols Place) in Darwin on 8^th October at 9.30am.
30 Impact on your committee
The amount of time and effort required to apply for or defend against a [PVRO] is time consuming. To prepare a claim you need to lodge it at the court civil registry. The claim requires the preparation of [a] sworn affidavit lodged with the courts. At first hearing, the merits are assessed and the applicant and defendant are encouraged to do mediation. At mediation, for half a day to try and find common ground and agree the best way forward. If mediation fails, you go back to court for another hearing and a final decision by the judge. So it’s ... at least 3 days of effort, spread over several months.
31 If you add in the time taken for 3 NTCAT hearings and 2 criminal cases we have all contributed at least 40 days of effort each. Collectively I would estimate more than $20,000 of our personal money spent on these cases and the committee has voted to spend approx. $18,000 of body corporate funds to protect the body corporate and its committee as appropriate. So in essence Judy, Jason, myself and Phil have contributed an extraordinary amount of time and money to protect the integrity of the Marrakai Body Corporate.
32 The Committee, as you can imagine, is feeling strained over the constant litigation mounted in these cases. However, we will continue these efforts to protect the MBC as required.
33 Yours sincerely
Warren Gifkins

Appeal on a question of law

The right of appeal from a decision of the Local Court in civil proceedings is conferred by s 19(1) of the Local Court (Civil Procedure) Act 1989 (NT). That section provides that a party may appeal to the Supreme Court on a question of law from a final order of the Local Court.
The law relating to the nature of an appeal on a question of law
In Lee v MacMahon Contractors Pty Ltd,[3] the Court of Appeal of the Northern Territory addressed the principles relating to the nature of an appeal from the Work Health Court (which had become the Local Court) to the Supreme Court in proceedings under the Return to Work Act (NT), which appeal was confined by s 116 of that Act to ‘a question of law’. That provision was in the same terms as s 19(1) of the Local Court (Civil Procedure) Act 1989 (NT).
The Court of Appeal adopted and repeated what Mildren J had said about the effect of those words in Tracy Village Sports & Social Club v Walker.[4] The principles repeated by the Court of Appeal (at [15]) were:
(a)In the evaluation of witnesses who gave conflicting accounts as to the preliminary facts, if the trial judge prefers one account to another, that decision is a question of fact to be determined by the trial judge and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong, but nevertheless, no appeal lies. Regardless of the trial judge’s reasons, if there is evidence which, if believed, would support the finding, there is no error of law.
(b)If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute, there is an error of law.
(c)A finding of fact cannot be disturbed on the basis that it is ‘perverse’ or ‘against the evidence’ or ‘against the weight of the evidence’ or ‘contrary to the overwhelming weight of the evidence’. Nor may the Supreme Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound.
(d)The drawing of inferences from primary facts to arrive at secondary facts is subject to the same limitations that apply to primary facts. If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.
(e)It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is whether there were facts upon which the inference might be drawn. If a trial judge draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed on appeal.
The Court of Appeal added (at [16]-[18]) that, where the process of statutory interpretation is involved, the following principles apply:
(a)The ordinary or non-technical meaning of a word is a question of fact.
(b)The meaning of a technical legal term is a question of law.
(c)A finding that facts come within the ordinary or non-technical meaning of a statutory word or phrase is one of fact which can be disturbed only if: (i) there is no evidence to support the finding of fact; (ii) the trial judge has misdirected themselves in law; or (iii) the finding of fact is required by the statute to be determined through the application of a correct legal process requiring, for example, procedural fairness or taking relevant considerations into account.
(d)When it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute, a question of law will be involved, but the question may be a mixed one of fact and law. A question exclusively of law arises if, on the facts found, only one conclusion is open.
At the outset of the appeal hearing, I raised with the parties a concern that none of the grounds of appeal in the notice of appeal were expressed as questions of law, and appeared to raise pure issues of fact or issues of mixed fact and law, a characterisation supported by the parties’ written submissions.
In response to my concerns about this issue, counsel for Ms Kurniawan, Ms Hart, argued that I am bound by, and should follow exclusively, the decision of the Full Court of the Federal Court in Haritos v Federal Commissioner of Taxation.[5] That decision concerned the right of appeal to the Federal Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which permitted a party to a proceeding before the Administrative Appeals Tribunal to appeal to the Federal Court ‘on a question of law’. Five members of the Full Court held that the right of appeal under s 44 may extend to mixed questions of fact and law in circumstances where legally erroneous fact finding has occurred.
The Full Court of the Federal Court held (at [192]) as follows:
In summary, the context (particularly s 7 of the AAT Act[6] and noting what we have said especially at [149] above as to s 45 not providing an analogy[7]), the history,[8] authority[9] and the purpose[10] of s 44 each indicates that the right of appeal in s 44 should not be read as meaning that ‘may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal’ may never extend to a mixed question of fact and law or as requiring that the question of law be a ‘pure’ question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact. As French CJ, Gummow and Bell JJ emphasised in Osland, at [19], the Court ‘should not usurp the fact-finding function of the AAT’ ... It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact finding. As Brennan J said in Waterford v Commonwealth:
A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. ... The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact.
It follows that legally erroneous fact finding may found an appeal on a question of law within s 44. [citations omitted]
As to what constitutes ‘legally erroneous fact finding’, the Court held (at [194]-[197] and [202]) that the appellate body should not usurp the fact-finding function of the Tribunal, but fact-finding is an entirely different exercise from the evaluation of the fact-finding process of the Tribunal (as fact-finder) to decide upon its legality. Where found facts are capable of falling within or without the description used in a statute, the decision on which side of the line they fall is a decision of fact and not law. If the facts found from the evidence are necessarily within the description of a word or phrase in a statute or necessarily outside it, a contrary decision is wrong in law. Further, a finding of fact may be vitiated by an error of law, such as where a finding of fact is based on a misdirection of law, or comprises jurisdictional error such as denial of procedural fairness. Further (at [212]-[213]), it may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds, a conclusion which is not to be lightly drawn and not every lapse in logic is sufficient to constitute an error of law.
The decision in Haritos was not referred to in Lee v MacMahon.
The doctrine of precedent
It is necessary to refer to this fundamental doctrine because Ms Hart submitted that I was ‘bound’ to follow Haritos, not because it was highly persuasive, but because it was binding on me under the doctrine of precedent.
As the High Court observed in Lipohar v The Queen,[11] the ultimate foundation of precedent which binds any court to statements of principle is that a court higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgment, has laid down that principle as part of the relevant law. As the Full Court of the Supreme Court of South Australia observed in Bassell v McGuiness,[12] a decision of one court cannot be truly binding upon another unless both courts are within the same hierarchy of courts, and the existence of an appeal from the inferior court to the superior court which binds it is inherent in and essential to the doctrine of precedent.
The Full Court of the Federal Court of Australia is not part of the hierarchy of courts in the Northern Territory. It is not able to reverse a judgment of this Court. Only the Northern Territory Court of Appeal can do that. Consequently, this Court is not bound in accordance with the doctrine of precedent to follow the decision in Haritos; it is bound to follow the decision in Lee v MacMahon, even if this Court considers that decision to be wrong.
In support of the submission that I am bound to follow Haritos, Ms Hart referred to the decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[13] In that decision, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held (at [135]) that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong and the same principle applies in relation to non-statutory law. Under this principle, I would not be bound to follow Haritos if I was convinced the principles set out in it were plainly wrong.
Section 19 of the Local Court (Civil Procedure) Act is not Commonwealth legislation or uniform national legislation and is not part of the common law. Consequently, the principle in Farah Constructions does not strictly operate here. Further, the decision in Haritos may be distinguishable because it concerns s 44 of the Commonwealth Act, and is founded upon a number of matters which are not applicable to s 19 of the Local Court (Civil Procedure) Act, as referred to in footnotes 6-9 above.
Relevantly to this appeal, I do not consider there to be any material difference between the principles set out in Lee v MacMahon and the principles set out in Haritos which impact upon the determination of this appeal. For the purposes of this appeal, I accept that the decision in Haritos is highly persuasive, including because it relates to a statutory provision in identical terms to s 19(1) of the Local Court (Civil Procedure) Act. Because there are no material differences to the principles set out in Lee v MacMahon, I will follow and apply the principles set out in it.
The relevant principles – the nature of an appeal under s 19(1)
Ms Hart argued that the effect of Haritos is that if the trial judge made a decision which ‘is not in accordance with the facts’, then an appeal against that decision is on a question of law. That is an inaccurate statement of the effect of the decision in Haritos.
I discern from Haritos and apply the following principles to the appeal under s 19(1) of the Local Court (Civil Procedure) Act.
(a)The right of appeal under s 19(1) does not extend to a mere question of fact and may extend to mixed questions of fact and law. It is not confined to pure questions of law.
(b)The right of appeal under s 19(1) does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself.
(c)To be the subject of an appeal under s 19(1), a finding of fact must be legally erroneous, i.e., it must be vitiated by an error of law which arises on the facts as found by the Local Court, it must vitiate the findings made, or it must have led the Local Court to omit to make a finding that it was legally required to make.
(d)Legally erroneous fact finding comprises the following:
(i) Where the facts found by the Local Court on the evidence are necessarily within or necessarily outside the description of a word or phrase in a statute, a contrary decision. This type of error could, it seems to me, extend to the common law elements or requirements of a claim or a defence.
(ii) Where a finding of fact is based on a misdirection of law.
(iii) Where a finding of fact comprises jurisdictional error such as a material denial of procedural fairness.
(iv) Where a finding of fact is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds, a conclusion which is not to be lightly drawn and not every lapse in logic is sufficient to constitute an error of law. This would include where there is no evidence (as distinct from insufficient evidence) which could support the finding of fact.
(v) Where, in finding a question of fact, the Local Court failed to take into account a relevant consideration which the Local Court was legally bound to take into account or had regard to an irrelevant consideration which the Local Court was legally bound not to take into account.[14]
Identification of the question(s) of law the subject of the appeal
Question(s) of law must be identified with precision
At the outset of the hearing, Ms Hart initially argued that the effect of Haritos is that an appellant is not required to identify in the notice of appeal the questions of law the subject of the appeal because: (a) there is no requirement to do so in the Supreme Court Rules 1987 (NT) (‘SCRs’) and; (b) in Haritos, the Federal Court held that questions of law need not be identified with precision. Again, that is an inaccurate statement of the effect of the decision in Haritos.
In Haritos, the Federal Court held (at [85]-[86]) that the subject matter of an appeal under s 44 of the Commonwealth Act is limited to the question(s) of law, which is not merely a qualifying condition to ground an appeal. Rather, the question of law and it alone is the subject matter of the appeal and the ambit of the appeal is confined to it.[15] The Federal Court held (at [91]) that it is of ‘great importance’ that the question(s) of law should be stated with precision, which was the point of the Federal Court Rule which required the notice of appeal to identify the question(s) of law.
This is clearly inconsistent with the proposition that, because the SCRs do not contain a requirement that the notice of appeal identify the question(s) of law, there is no requirement for an appellant to identify them with precision or at all. The Federal Court expressly held that it was of great importance that the question(s) of law be stated with precision, and that requirement did not rest on the Federal Court Rules but on the fundamental basis that the question(s) of law are the subject matter and ambit of the appeal.
The Federal Court held (at [94]) that whether a question(s) of law has been identified must be approached as an issue of substance, but the appeal court must be satisfied that there is in fact a question of law. The Federal Court added (at [97]) that, as a superior court of record, the Federal Court has jurisdiction to decide whether a notice of appeal states a question of law and does so with sufficient precision and, if it does not, whether an appellant should have leave to amend the notice of appeal to remedy the defect. Further (at [107]), this jurisdiction extends to a question of law which was not identified before the trial judge. Again, these statements are entirely inconsistent with the proposition that an appellant need not identify the question(s) of law the subject of the appeal with precision, a submission which Ms Hart repeated a number of times.
Amendment of the notice of appeal – the 21 asserted questions of law
Despite those submissions, at the outset of the appeal hearing Ms Hart handed up a document headed ‘Questions of Law’ which she said included ‘all’ of ‘the exact’ questions of law, based on her written submissions. Ms Hart sought leave to amend the notice of appeal to replace the grounds of appeal stated therein with the 21 ‘questions of law’ referred to in that document. That leave was granted subject to the Court’s determination that the ‘questions’ contained in the Questions of Law document were ‘questions of law’ within s 19 of the Local Court (Civil Procedure) Act.
The amended notice of appeal filed later that day pursuant to the granted leave deleted the original grounds of appeal and replaced them with the 21 asserted questions of law set out in the ‘Questions of Law’ document.
Further ‘embedded’ questions of law – no inadequacy of reasons question
Immediately after leave was granted to amend the notice of appeal to replace the grounds of appeal with the 21 ‘questions of law’, Ms Hart sought to make submissions about the legal principles relating to inadequacy of reasons. These principles were argued to arise because ‘this is embedded within’ the 21 ‘questions of law’, it was not a separate ground of appeal, it was a question of law whether reasons are inadequate, and the original grounds of appeal contained in the notice of appeal had raised inadequate reasons.
None of the 21 ‘questions of law’ which had just before this been said to contain all of the questions to be determined on appeal referred to a failure by the Local Court to give adequate reasons for a particular finding or decision on any issue. No further application was made to amend the notice of appeal to include an inadequacy of reasons ground.
Ms Hart’s reference to the original grounds of appeal was equally baffling, given the grant of leave to amend the notice of appeal to replace the original grounds with the 21 ‘questions of law’ just moments before. Further, there was no generally expressed inadequacy of reasons ground in the original notice of appeal. Only one ground (ground 5) had referred to a failure to give adequate reasons, but that was not repeated in the 21 new ‘questions of law’.
In her reply, Ms Hart again sought to make submissions about the legal principles relating to inadequacy of reasons and repeated that an inadequacy of reasons ground was embedded in all of the 21 asserted questions of law. She argued that if a decision maker fails to provide adequate reasons, impliedly, they have failed to take into account a relevant matter or have taken into account an irrelevant matter in coming to the decision. Asked what authority she was citing for that proposition, she referred to Soulemezis v Dudley (Holdings)[16] at 279. I was unable to find any such proposition on that page or elsewhere in that decision.
As initially formulated by Ms Hart at the hearing, and as confirmed by the amended notice of appeal filed that day, this appeal does not raise any question relating to the inadequacy of the Local Court’s reasons. As held by the Federal Court in Haritos set out in paragraph [58] above, the subject matter of this appeal is limited to the 21 asserted questions of law, which alone are the subject matter of the appeal and the ambit of the appeal is confined to them. It is of great importance that questions of law the subject of the appeal be stated with precision. In dealing with the subject matter of this appeal, there is no warrant to entertain some broad, generalised and implied complaint that the Local Court’s reasons are inadequate.
It is worth repeating the observations of Mahoney JA (Samuels JA agreeing) in Housing Commission (NSW) v Tatmar Pastoral Co Ltd[17] (at 384-385) that the duty to give reasons does not exist in respect of every matter of fact or of law which was or might have been raised in the proceeding, and it is not the duty of the judge to decide every matter which is raised in argument, as the judge may decide a case in a way which does not require the determination of a particular submission and, in such a case, it may be put to one side.

Noting those observations, in my view, Ms Hart’s submissions relating to inadequacy of reasons (and other matters) were a colourable attempt to characterise errors asserted to be made by the Local Court as errors of law when the real gravamen of the complaints is that, in Ms Kurniawan’s contention, the Local Court wrongly decided that Ms Kurniawan lacked credibility and wrongly decided the factual questions which determined the outcome of the case. So much is confirmed by the consideration of the 21 asserted questions of law below.

Relief sought

In the notice of appeal, the relief sought by Ms Kurniawan was that the whole of the judgment of the Local Court should be set aside, judgment should be entered against Mr Gifkins in an amount to be assessed by this Court or, alternatively, the matter be remitted to the Local Court for determination of damages.
The first point is that an appeal is from the orders of the Court, not from the judgment. If the appeal were to be allowed, the appropriate order would be for the order of the Local Court dismissing Ms Kurniawan’s claim for damages to be set aside.
As regards determination of damages if the appeal were to be allowed, at the hearing Ms Hart accepted that the matter should be remitted to the Local Court for determination of damages.

The asserted questions of law regarding the imputations findings
1^st asserted question of law (amended notice of appeal, [4])

The first asserted question of law was stated as follows:
His Honour misdirected himself in relation to the test for ordinary reasonable reader by failing to consider the appropriate context of the [report] and by attributing an unreasonable understanding of the meaning to the reader. (Paragraphs [19], [29] and [31] of the [decision][18]).
Insofar as I understood it (including by reference to the first ground of appeal in the original notice of appeal), this ground is concerned only with imputations 1, 8 and 9, which were the imputations the Local Court found were not conveyed by the report. Those imputations were:
1[Ms Kurniawan] was knowingly involved in 1 NTCAT case, 3 [PVROs] and 1 criminal case which were not genuine and were driven by a desire to intimidate, harass, annoy and frustrate the Committee’s substantive work (the entire [report] but especially paragraph 6).
8[Ms Kurniawan] is a criminal who is guilty of breaching a [PVRO] in favour of [Mr Gifkins] (the entire [report] but especially paragraphs 6, 15, 21, 25, 27, 29).
9[Ms Kurniawan] engaged in abuse and harassment of [Mr Gifkins] such that she breached a [PVRO] (the entire [report] but especially paragraphs 6, 15, 18, 20, 21, 25, 27, 29).
Ms Hart submitted that the relevant test in assessing whether an alleged defamatory meaning or imputation is conveyed by a publication is that set out by Wigney J in Rush v Nationwide News Pty Ltd (No 7),[19] namely (at [74]) that the question is whether the publication would have conveyed the alleged imputations to an ordinary reasonable person, i.e., what the words used would have conveyed to the ordinary reasonable reader, reading (at [77]) the entire publication and considering the context as a whole, taking into account emphasis that may be given by conspicuous headlines or captions, and (at [80]) taking into account that the ordinary reasonable reader may be influenced by the overall tone or tenor of the publication in question. Wigney J cited the observation of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation[20] that ‘[i]t is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong’.
Ms Hart acknowledged that the Local Court did (at [13]-[14]) correctly identify the test and referred to both those authorities. However, she argued that the Local Court had misdirected itself in the application of those authorities because the Local Court had failed to consider the context of the report as a whole and had made an unreasonable and erroneous finding that the alleged imputations were not conveyed by the report.
It is noteworthy that in Rush, Wigney J held (at [73]) that the question of whether a defamatory meaning or imputation is conveyed by a publication is a question of fact.
The Local Court found (at [19]) that the ordinary reader would not infer that Ms Kurniawan was ‘not genuine is [sic] being a defendant to a criminal proceeding and 3 PVROs’, so imputation 1 was not conveyed by the report. The Local Court found (at [18]) that paragraph 6 of the report was referring to proceedings that were ‘today before the courts’, being the NTCAT proceeding about the wi-fi access points, etc, the three PVROs and the criminal proceeding in which Ms Kurniawan was the defendant. The finding at [19] was a finding that the asserted imputation was not conveyed because it was that Ms Kurniawan was knowingly involved in proceedings which were not genuine and were driven by her desire to intimidate etc, but she was not a party to the NTCAT proceeding and was a defendant to the other proceedings. In other words, the ordinary reader would understand that, as a non-party or defendant, she did not commence those proceedings, so they could not have been driven, ingenuously, by her desire to intimidate, etc.
Ms Hart submitted that the Local Court had ‘misread’ imputation 1 which ‘relies’ on proceedings Ms Kurniawan had brought. The Local Court did not ‘misread’ imputation 1. Imputation 1 refers specifically to paragraph 6 of the report, which expressly refers to the proceedings then before the courts. Imputation 1 refers to one NTCAT case, three PVROs and one criminal case, being the proceedings referred to in paragraph 6 of the report. The only NTCAT case then before the courts was the wifi, etc proceeding commenced by Mr Yerriah and the only criminal case then before the courts was the charge against Ms Kurniawan for breaching a PVRO. There were also undetermined applications for PVROs brought by Mr Gifkins to which Ms Kurniawan was the defendant.
The Local Court found (at [29]) that the report ‘does little more than’ state that Ms Kurniawan was prosecuted for breaching a PVRO and does not convey the asserted imputation of guilt in imputation 8. The Local Court made the same finding (at [31]) regarding imputation 9.
This asserted question of law is, in substance, solely a question of fact. It takes issue with the Local Court’s findings of fact that imputations 1, 8 and 9 were not conveyed by the report on the sole basis that the findings must have involved a misdirection as to the law because they were contrary to the findings sought by Ms Kurniawan on the evidence. This is confirmed by Ms Kurniawan’s written submissions, which argued that each of imputations 1, 8 and 9 were ‘comfortably carried’ by the entire report to an ordinary reasonable reader.
Whether the asserted imputations would have been conveyed by the report to the ordinary reasonable person or not is patently a decision of fact and not law. It is not the case that the report necessarily conveys the asserted imputations, rather it is capable of doing so or not doing so and the decision whether it does or not involves weight being given to one or other elements of the report and involves matters of degree. To uphold the appeal on this question would require this Court to make its own, different, factual finding on the evidence before the Local Court.
It is not open to Ms Kurniawan on this appeal to raise this ground.
2^nd asserted question of law (amended notice of appeal, [5])
The second asserted question of law was stated as follows:
His Honour misdirected himself in relation to the well-established principle in Mirror Newspaper and Harrison by failing to approach the construction of the [report] on the basis that that case was limited to publications that refer only to the plaintiff being charged or arrested and no more in respect of imputations 8 and 9.
Ms Hart submitted that the relevant authority was Mirror Newspapers Ltd v Harrison[21] in which Mason J (Wilson J agreeing) held (at 300-301):
...[T]here is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. ... The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court ... and that not infrequently the person charged is acquitted.
Ms Hart acknowledged that the Local Court had (at [28]) correctly identified the principle by reference to this authority. However, she argued that the Local Court had misdirected itself in the application of that authority because the Local Court had failed to approach the assessment of imputations 8 and 9 on the basis that the principle was confined to a publication which referred to a person being arrested and/or charged with a criminal offence and said nothing else. In other words, she argued that if the publication said anything in relation to criminal conduct beyond ‘arrested’ and/or ‘charged’, an imputation of guilt would necessarily follow. Here, the report stated, for example, that the criminal ‘proceeding’ had been heard but was not yet decided and that Mr Gifkins and two other people had given evidence.
In making this submission, Ms Hart sought to draw a distinction between a person being ‘charged’ with a criminal offence and a person being ‘prosecuted’ for a criminal offence because ‘the presumption of innocence sometimes does not apply to someone who is being prosecuted for a crime’. The basis for that novel submission was not identified.
As set out in paragraph [80] above, the Local Court found that the report ‘does little more’ than state that Ms Kurniawan was charged with breaching the PVRO, which Ms Hart argued necessarily indicates that the decision in Mirror Newspapers v Harrison was misapplied.
That decision allowed an appeal from the Court of Appeal which had overruled the trial judge’s decision that a newspaper article about the appellant having been arrested in relation to an assault on a politician was not capable of bearing the implications that the plaintiff was directly or indirectly involved in the assault and that the plaintiff was guilty of a criminal offence in relation to the assault. The newspaper article reported that the plaintiff and others had been arrested in connection with the assault, following a month of intensive investigation by a special squad of detectives tasked by the Deputy Premier with finding the culprit. Further to what his Honour said set out above, Mason J held (at 303) that any publication which goes on to say or suggest that the charge was well founded, i.e., that the plaintiff was guilty, carries the imputation of guilt. His Honour held (at 303) that the newspaper article focused attention on the violence of the assault, the intensive nature of the investigation and the circumstance that a ‘special squad of detectives’ ‘worked around the clock’ to fulfil a directive from the Deputy Premier that the culprits be found, which no doubt suggested that the matter was regarded as important by the Government and by the police. Nevertheless, his Honour said he failed to understand how a reasonable reader would read it as meaning that the plaintiff was guilty of the offence or that he was involved in the assault.
It is clear therefore that the decision in Harrison does not stand for the principle of law that, if a publication says something in addition to the fact that the plaintiff has been arrested and/or charged with a criminal offence, or if a report says a person is being ‘prosecuted’ for a criminal offence, it necessarily conveys to the ordinary reasonable reader the imputation that the plaintiff is guilty of that offence. It follows that, for the Local Court to find that the report ‘does little more than’ state that Ms Kurniawan has been charged with a criminal offence, is not an error of law because it acknowledged that something else was stated in the report.
No error of law is demonstrated and this ground fails.
The other submissions made under this ‘question of law’ were that the report implied that Ms Kurniawan was guilty of the offence of breaching the PVRO because it referred to more than Ms Kurniawan simply being charged with breaching the PVRO, such as her engaging in harassing, intimidating or verbally abusing committee members, and referred to the evidence upon which the PVROs were made (including aggressive behaviour towards committee members). Putting aside the question of law dealt with above, these arguments solely take issue with the Local Court’s factual finding that the report would not convey to the ordinary reasonable person imputations 8 and 9.
3^rd asserted question of law (amended notice of appeal, [6])
The third asserted question of law was stated as follows:
His Honour failed to apply the principle that whether imputations are conveyed must be considered in the context of the entire [report] as a whole in respect of imputations 1, 8 and 9.
The argument in relation to this asserted question appeared to be that the Local Court failed to consider whether the imputations were conveyed from a reading of the report as a whole.
The Local Court (at [13]) stated that assessing imputations is a two step process, the second of which is to determine if the words actually have the meaning alleged given the context of the publication, citing Farquhar v Bottom.[22] On the pages of that decision specifically identified by the Local Court (at 385-386), Hunt J observed that he was urged by the defendants in that case to construe the matter complained of as a whole, because it also contained the defendant’s denial to the asserted imputation. This is a clear indication that the Local Court was cognisant of the requirement to construe the report as a whole.
Essentially, the only basis for the assertion that the Local Court had failed to do so was that the Local Court found that imputations 1, 8 and 9 were not conveyed.
This asserted question of law is, in substance, solely a question of fact. It takes issue with the Local Court’s findings of fact about asserted imputations 1, 8 and 9 on the sole basis that they must have involved a failure to consider the report as a whole because they were contrary to the findings sought by Ms Kurniawan on the evidence. To uphold this ground, the Court would be required to make its own, and different, findings of fact.
It is not open to Ms Kurniawan on this appeal to raise this ground.
The asserted questions of law regarding the defence of justification
4^th and 5^th asserted questions of law (amended notice of appeal, [9], [10])
The fourth and fifth asserted questions of law were stated as follows:
His Honour failed to take account of relevant evidence that established that on 29 April 2019, [Mr Gifkins] called the police without any reasonable basis. This evidence was highly relevant to the justification defence for imputations 1 and 7 as well as malice.
His Honour mischaracterised the CCTV footage tendered for the April foyer incident in paragraphs [11], [75] and [77] of the judgment as his Honour’s conclusion does not correctly describe what was depicted in the recording. There was in fact no evidence in support of this finding.
The Local Court found (at [91]) that all of the imputations made in the report were substantially true. The imputations found to have been made in the report were imputation 2, which was conceded by Mr Gifkins (at [20]), imputation 3 (at [23]), imputations 4, 5 and 6 (at [24]), and imputation 7 (at [25]).
Those imputations were:
2[Ms Kurniawan] became aggressive and behaved in an intimidating and harassing manner against Committee members Judy Richardson, [Mr Gifkins] and Jason Gay when she received an NTCAT notice which behaviour resulted in a number of [PVROs] being made by the Court against her (the entire [report] but especially paragraph 8).
3[Ms Kurniawan] was responsible for bringing before the local courts 11 [PVROs] and 2 criminal cases whilst her partner prosecuted another NTCAT case challenging the lawfulness of a lock-box, a sticker and building Wi-Fi infrastructure being on common property (the entire [report] but especially paragraphs 13-15).
4[Ms Kurniawan] became aggressive against Committee members during BBQs by the pool area (the entire [report] but especially paragraphs 17-18).
5[Ms Kurniawan] verbally abused and swore at Judy Richardson and [Mr Gifkins] whilst they were standing in the basement (the entire [report] but especially paragraphs 17, 20).
6[Ms Kurniawan] broke into cage 25 and damaged property belonging to [Mr Gifkins] for her partner to use cage 25 to store his own property (the entire [report] but especially paragraph 21).
7[Ms Kurniawan] has mis-conducted herself so as to endanger the integrity of the Marrakai body corporate (the entire [report] but especially paragraphs 31, 32).
The incident the subject of the fourth and fifth asserted questions of law was an interaction between Ms Kurniawan, Mr Gifkins and Mr Brittain in the foyer of the apartment building on 29 April 2019, Mr Gifkins calling the police and Ms Kurniawan being issued with a notice to appear alleging a breach of the PVRO against her. There was CCTV footage of this incident but not did not have any audio recording.
The Local Court described this incident, in the chronology of ‘less controversial facts’ (at [11]) that Ms Kurniawan ‘leaves the common area while’ Mr Gifkins is in the foyer. The Local Court found (at [75]) that Mr Gifkins was in the foyer talking to Mr Brittain, Mr Gifkins said he heard the gate slam two or three times and he looked out and saw Ms Kurniawan, the CCTV shows the gate through the window and it can be seen to shut twice in quick succession, and Mr Gifkins’ evidence that it was slammed was accepted. The Local Court rejected (at [76]) Ms Kurniawan’s evidence that she did not slam the gate, preferring Mr Gifkins’ evidence. The Local Court found (at [77]) that Ms Kurniawan came into view immediately after the slam and the CCTV showed her and Mr Gifkins exchange words, during which Ms Kurniawan swore at him and was generally abusive.
Ms Hart argued that I should watch the CCTV footage to determine for myself whether the Local Court had ‘mischaracterised’ the evidence to such a degree that it made a finding without any evidence to support it. Reliance was placed on Haritos at [217] where the Full Court of the Federal Court held that the Tribunal had made an error of law in giving no weight to the evidence of an independent witness who corroborated the evidence of the appellant on the basis that the independent witness’s evidence was derived from a tainted source, namely the appellant.
The Federal Court held (at [218]) that to so conclude was not to enter into the field of merits review or fact-finding, but was to supervise the legality of the fact-finding process of the Tribunal. The evidence was said to be central and important evidence. The Federal Court held that an examination of the evidence, without the need for any weighing of evidence or choosing between available inferences or findings, revealed that the evidence did not derive from the tainted source.
In the context of all of the other evidence about incidents between Ms Kurniawan and body corporate members during this long-running ‘feud’, I do not accept that the evidence about the incident on 29 April 2019 was central and important evidence in the sense described in . Ms Hart argued that it was important as evidencing Mr Gifkins’ malice against Ms Kurniawan because the CCTV footage established that Mr Gifkins was waiting in the foyer to confront Ms Kurniawan, called the police because he thought Ms Kurniawan had slammed the gate, and the verbal altercation between Ms Kurniawan and Mr Gifkins only occurred after he called the police ‘for no valid reason’. It was argued that Mr Gifkins’ call to the police was ‘unreasonable’ because ‘who calls the police for slamming a gate?’ and thus it was evidence of malice.

These matters confirm the immateriality of this evidence in the context of all of the interactions the subject of this ‘feud’. Its immateriality in that broader context explains the failure of the Local Court to make reference to this incident specifically when addressing the defence of justification and whether imputations 2 to 7 were substantially true.
Ms Hart was inviting this Court to do precisely what the Federal Court in Haritos said it was not doing, namely to engage in a merits review of the Local Court’s fact-finding by weighing evidence and choosing between available inferences or findings.
Here, the evidence included both affidavit evidence and oral evidence from both Ms Kurniawan and Mr Gifkins about what happened. The CCTV footage had no audio. The Local Court found that Ms Kurniawan had slammed the gate, and that she and Mr Gifkins had exchanged words during which she swore at him and was generally abusive. It was not in dispute that, at some point, Mr Gifkins called the police and Ms Kurniawan was charged with breaching the PVRO in relation to this incident. The Local Court’s findings were rationally open on the evidence and any other conclusion would require the weighing of evidence or choosing between available inferences or findings, which is not permitted in an appeal on a question of law.
Relevant and irrelevant considerations?
Ms Hart made a bizarre and confusing submission to the effect that aspects of the CCTV footage not mentioned by the Local Court were ‘relevant considerations’ which the Local Court had ‘failed to take into account’ and aspects of the CCTV footage mentioned by the Local Court were ‘irrelevant considerations’ which the Local Court should not have taken into account. It was her submission that the terms ‘relevant’ and ‘irrelevant’ considerations in this context ‘can be used interchangeably when it comes to appeals’ with the term ‘relevant’ in the evidence law sense of probative to a fact in issue. It was her submission in reply that a failure by a decision maker to take into account evidence which satisfies the criteria for relevance in s 55 of the Evidence (National Uniform Legislation) Act 2011 is an error of law.
Initially, it was not clear to me whether Ms Hart was referring to error in the sense of House v The King,[23] involving a decision wrong in law for a failure to take into account a relevant consideration, or for taking into account an irrelevant consideration.
In reply, Ms Hart submitted as follows:
I submit that the exercise of a discretion susceptible to challenge, it has to be in accordance with the principles in House v R. ... So therefore, if there’s any mistakes of fact, that simply shows a question of law, which is a legal error.
That is a patently erroneous submission. This was later clarified, or withdrawn, and Ms Hart submitted that taking into account an irrelevant fact or failing to take into account a relevant fact would be an error of law.
So stated, that is also an erroneous submission. To make out error, it would first have to be shown that the decision appealed from was a discretionary judgment.[24] That has not been shown in this appeal either in respect of the Local Court’s decision to dismiss the claim for damages, or the Local Court’s findings that some of the asserted imputations were not conveyed by the report, that such asserted imputations as were conveyed were substantially true, and that the defence of qualified privilege was made out. Without expressing a concluded view, it is difficult to see how the Local Court’s decision or findings are discretionary in the relevant sense.[25] Secondly, reference would have to be made to: (a) a statutory provision or common law principle which demonstrated that a court determining this case or an aspect of it was bound, as a matter of law, to take a particular factual consideration into account, or was prohibited, as a matter of law, from taking a particular factual consideration into account;[26] and (b) that the Local Court had (as applicable) failed to consider or had considered such a consideration, such that it had committed legally erroneous fact-finding.
The content of the CCTV footage, or aspects of it, (which is evidence) cannot sensibly be described as ‘relevant considerations’ or ‘irrelevant considerations’ in this sense.
It is not open to Ms Kurniawan on this appeal to raise these grounds of appeal.
6^th asserted question of law (amended notice of appeal, [11]
The sixth asserted question of law was stated as follows:
His Honour failed to apply the well-established legal principles in relation to the justification defence that an imputation is substantially true only if it is established that every material part of it was substantially true.
Ms Hart argued in writing that the Local Court did not set out any legal principles relating to the defence of justification, and only set out (at [84]) that s 22 of the Defamation Act 2006 (NT) provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter are substantially true. It was, however, accepted that s 22 accords with the common law position that partial justification is not a defence.
Given the Local Court’s reference to s 22, which accords with the common law position, that detailed written submissions were made to the Local Court about the principles to be applied to this defence, and the approach taken by the Local Court to the assessment of whether each imputation was substantially true, it is sufficiently clear that the Local Court was cognisant of the relevant principles, which may be summarised as follows.
In order to establish that an imputation is substantially true, Mr Gifkins had to establish that every material part of it was true.[27] That does not mean that Mr Gifkins had to prove the truth of every detail of the words of an imputation; rather he had to ‘meet the sting’ of the imputation.[28] The imputation must not be considered in a meticulous sense; rather the words employed must be true in substance and in fact.[29] Inaccuracy in some detail which does not alter or aggravate the character of the imputations is immaterial.[30]
The Local Court found (at [92]) that imputation 1 was not conveyed by the report, but found that, if it had been, it was substantially true because Ms Kurniawan was listed as Mr Yerriah’s representative in the second NTCAT proceedings, the triviality and timing of the commencement of those proceedings indicated that they were commenced in retaliation for the body corporate enforcing the no dog rule, and they were not genuine but were primarily to harass and intimidate the members of the management committee. The Local Court found (at [93]) that the PVROs then before the courts were initiated by the committee members in response to the harassment by Ms Kurniawan which was her retaliation to the enforcement of the no dog rule. The Local Court found (at [94]) that the criminal proceeding arose from the same matters where Ms Kurniawan was intending to harass and intimidate Mr Gifkins.
Ms Hart argued that these findings were erroneous because the various proceedings were not commenced by Ms Kurniawan, so the imputation that she was knowingly involved in them, they were not genuine and they were driven by her desire to intimidate, harass, annoy and frustrate the committee’s work could not be substantially true.
It was clearly open to the Local Court to make these findings, including because of its finding (at [16]) that the report equated the actions of Ms Kurniawan with the actions of Mr Yerriah and suggested they were working as a team.
The alleged error is not an error of law comprised of ignoring a material part of the imputation, but a complaint about the facts as found or inferred by the Local Court, when there was clearly evidence to support those findings or inferences.
No error of law is demonstrated and this ground fails.
7^th asserted question of law (amended notice of appeal, [12])
The seventh asserted question of law was stated as follows:
His Honour failed to take into account relevant evidence that [PVROs] were applied by the MBC members including [Mr Gifkins] while mediation was an available option in the circumstances in which the cease-and-desist letter was sent by Ward Keller to the appellant on 19 February 2019, and [Ms Kurniawan] and [Mr Yerriah] agreed to attend mediation but they never heard back and instead [Mr Gifkins] et al applied for the [PVROs] on 25 February 2019, and this would have not supported the truth of imputations 1 and 7.
Insofar as I understood it, the submission of Ms Hart was that the Local Court had ‘failed to take into account a relevant consideration’, namely that mediation was an option before a PVRO was granted which Ms Kurniawan and Mr Yerriah had indicated a willingness to engage in, and the failure to take this matter into account comprised an error of law. I repeat my observations at paragraph [113]-[114] above about the flaws in such an argument and the proper approach to such a ground of appeal.
On 18 February 2019, solicitors acting for the body corporate wrote to Ms Kurniawan informing her that, since the NTCAT proceedings seeking to enforce the no dog by-law had been initiated, she had engaged in aggressive and abusive behaviour against members of the body corporate, requesting that she immediately cease contacting the body corporate members and desist from aggressive or abusive behaviour against them, and inviting her to participate in a mediation conference to pursue a resolution of the matter.[31]
On 19 February 2019, Ms Kurniawan emailed the solicitors indicating she and Mr Yerriah would like to have a mediation conference prior to 5 March 2019.
On 24 February 2019, the incident near the lift in the basement involving Ms Kurniawan, Mr Gifkins and Ms Richardson occurred. The Local Court found (at [65]-[70]) that Mr Gifkins and Ms Richardson were waiting for the lift in the basement, Ms Kurniawan saw them, approached them closely and spoke to them in an aggressive manner, calling Ms Richardson (who was suffering from terminal brain cancer) a ‘fucking bitch’ and saying ‘I hope you die soon’. The Local Court found that Ms Kurniawan looked aggressive and angry on the CCTV footage, a fact which Mr Gifkins confirmed in his evidence. The Local Court found Ms Kurniawan then forced her way in front of Mr Gifkins and Ms Richardson to get in the lift.
On 25 February 2019, Mr Gifkins, Ms Richardson and Mr Gay applied for PVROs against Ms Kurniawan.
In those circumstances, Ms Kurniawan’s acceptance of the offer of mediation is wholly immaterial, having been completely overshadowed by her conduct towards Mr Gifkins and Ms Richardson on 24 February 2019, which prompted them to seek the PVROs the following day, and which undoubtedly led them to reject as disingenuous Ms Kurniawan’s acceptance of the offer of mediation.
Even if this ground was properly a question of law, which I do not accept, the Local Court’s failure to take into account when assessing the truth of the asserted imputations the evidence about Ms Kurniawan accepting the offer of mediation is entirely rational and appropriate.
No error of law is demonstrated and this ground fails.
8^th asserted question of law (amended notice of appeal, [13])
The eighth asserted question of law was stated as follows:
His Honour failed to accord [Ms Kurniawan] procedural fairness in his finding that [Ms Kurniawan] knew of the no dog rule before she moved into the Marrakai building. This erroneous finding was critical to his Honour’s view of both [Ms Kurniawan’s] credit and to the truth defence. This finding was flawed because [Ms Kurniawan’s] knowledge of the no dog rule was neither pleaded in the Defence nor raised by [Mr Gifkins], who never put to her that she was lying in this regard. It was an elementary breach of the rules of procedural fairness to make a finding based on a matter that was never in evidence.
The Local Court held (at [33]) that it had concluded Ms Kurniawan told lies about not using bolt cutters to cut a lock, and that she was getting changed when Mr Gifkins took photos of her, and that it had found other parts of her evidence unreliable, so where her evidence conflicted with the evidence of other witnesses or other evidence such as CCTV, it was not accepted.
The Local Court held (at [39]) that there were a number of controversial matters which required findings. The first of those was Ms Kurniawan’s knowledge of the no dog rule. The Local Court observed (at [40]) that Ms Kurniawan’s very first answer in cross-examination was whether she knew dogs were not allowed and her answers raised issues as to her credibility. A passage of the cross-examination is set out in which Ms Kurniawan was asked if she knew before she moved into the building that there was a by-law that did not permit dogs in the building. She answered: ‘I wasn’t completely sure about it’. She was asked if she was aware before she moved in that Mr Yerriah had made two attempts to change the by-laws so that dogs were permitted. She answered: ‘I wasn’t – no, I’m not aware exactly what he is doing’. Asked if Mr Yerriah had told her there was a by-law that did not permit a dog, she answered: ‘No, [he] did not tell me that’.
The Local Court found (at [41]) that it was highly unlikely that Ms Kurniawan was not aware of Mr Yerriah’s unsuccessful attempts to change the by-laws by the time she moved in. The Local Court observed (at [42]) that Ms Kurniawan’s first answer was that she was not completely sure about the no dog rule, which suggested she did know something about dogs not being allowed, and by the third answer she was clear that Mr Yerriah had not told her about the no dog rule. The Local Court found (at [43]) this unusual and unlikely, and found that Ms Kurniawan moved in, with a dog, knowing it was against the rules.
Ms Hart made the following oral submission about this ground:
And the main issue with this adverse credit finding was that his Honour did not have discretion, because finding the discretion – finding credibility of a witness is not a discretionary matter.
Ms Hart confirmed that her submission was that the Local Court had no jurisdiction to make a finding about a party’s credibility when she had given evidence before the Court and added:
At the same time there is no discretion for the court to make adverse credit finding for a party if the question was not put in that order to [Ms Kurniawan].
The submission appeared to be that the Local Court had no power to make a finding that Ms Kurniawan was lying because the proposition that she was lying was not put to Ms Kurniawan in cross-examination, and the issue of whether she knew about the no dog rule when she moved in was not a fact in issue because it was not pleaded in the Defence. Acknowledging that no objection was taken to the questioning on what was said to be an irrelevant issue, and that Ms Kurniawan’s credibility was in issue generally, Ms Hart submitted that Ms Kurniawan had been denied procedural fairness in relation to this finding.
There was no necessity for it to be put to Ms Kurniawan in cross-examination that she was lying about her knowledge of the no dog rule because the Local Court did not make a finding that Ms Kurniawan lied in the witness box about this issue. The Local Court found, on the basis of her answer that she was not completely sure about a by-law prohibiting dogs, that she was aware when she moved in that having a dog was against the rules. The distinction between that finding and the express findings that Ms Kurniawan lied about not using bolt cutters to cut a lock and that she was getting changed when Mr Gifkins took photos of her, makes that clear. Reading the Local Court’s reasons as a whole, the finding was that Ms Kurniawan’s evidence on this issue was unreliable, as was her evidence on various other issues.
To find that Ms Kurniawan was an unreliable witness was not a denial of procedural fairness in circumstances where there were differing versions before the Court of numerous interactions between the players, those players were called to give evidence, and the Local Court would be required to consider their credibility in determining the factual contests.
The assertion that this ‘erroneous’ finding was ‘critical’ to the Local Court’s assessment of Ms Kurniawan’s credibility and the justification defence simply cannot be accepted, given the positive findings that she lied in the witness box in relation to two other issues, and gave unreliable evidence in relation to numerous other matters.
Further, credibility evidence may be adduced in cross-examination, whether it relates to a fact in issue in the proceedings or not.[32]
In reply, Ms Hart submitted that the Local Court gave ‘too much weight to adverse credit findings to the extent that his Honour failed to take into account what was relevant in essence in finding the defences’. When it was pointed out that giving too much weight to evidence is merely a question of fact, and that none of the 21 asserted questions of law referred to giving too much weight to this evidence, she responded that: ‘one of the grounds of appeal includes credibility ... and that falls under the same umbrella’.
This submission supports the view expressed in paragraph [69] above, that there was a colourable attempt to disguise pure questions of fact as questions of law.
No error of law is demonstrated and this ground fails.
9^th asserted question of law (amended notice of appeal, [14])
The ninth asserted question of law was stated as follows:
His Honour erroneously took account of matters not particularised by [Mr Gifkins] in the Defence and not in issue in finding the justification defence. His Honour failed to restrict [Mr Gifkins] to his pleaded case. It is a fundamental rule of fairness that a party is restricted to his pleaded case.
This was a complaint that, in assessing the justification defence, the Local Court conflated the various findings about the ‘controversial facts’ and relied upon all of them, rather than those particularised by Mr Gifkins in his Defence when pleading the justification defence in respect of each asserted imputation.
Imputations 1, 8 and 9 are set out in paragraph [74] above. Imputations 2 through 7 are set out in paragraph [101] above.
As submitted by counsel for Mr Gifkins, Ms Hamlyn, this complaint can only arise in relation to imputations 1 through 7, as imputations 8 and 9 related only to the guilt of Ms Kurniawan in the criminal proceeding for breaching the PVRO. As also submitted by Ms Hamlyn, the ‘controversial facts’ found by the Local Court were pleaded in the Defence to relate to each of the imputations as follows (with the dots indicating that a controversial fact was pleaded in relation to a particular imputation):

Imputation →

1

2

3

4

5

6

7

Controversial fact ↓

First pool incident

●

●

●

●

●

Second pool incident

●

●

●

●

●

Locked storage cage

●

●

●

●

●

Persistent filming

●

●

●

●

●

Basement incident

●

●

●

●

●

●

Slamming gates

●

●

●

●

April 2019 foyer incident

●

*

●

●

Involvement in legal proceedings

●

**

●

●

* Only insofar as it was evidence of the slamming complaint

** Only NTCAT proceedings relating to removal of the dog and PVROs sought by Mr Gifkins, Mr Gay and Ms Richardson against Ms Kurniawan

It follows that all of the controversial facts were pleaded in relation to imputations 1, 2, 3 and 7. The pleadings in relation to imputations 4, 5 and 6 were more confined, consistently with the more confined and specific subject matter of each. Imputation 4 related specifically to aggression against committee members around the pool during BBQs, and it was expressly dealt with by the Local Court in that way (at [97]). Imputation 5 related specifically to swearing at Mr Gifkins and Ms Richardson in the basement, and it was expressly dealt with by the Local Court in that way (at [98], referring to [65]-[70]). Imputation 6 related specifically to damaging property (the lock) and breaking into the locked storage cage, and it was expressly dealt with by the Local Court in that way (at [99], referring to [47]-[54]). There is nothing in this complaint.

This asserted question of law is, in substance, solely a question of fact. It seeks to challenge the Local Court’s finding of fact (at [110]) that there was no malice evident in the report, when the Reasons clearly demonstrate that the Local Court took into account the words appearing in the report, and to have this Court make a different finding. That would require the weighing of evidence or choosing between available inferences or findings, which is not permitted in an appeal on a question of law.
It is not open to Ms Kurniawan on this appeal to raise this ground.
16^th asserted question of law (amended notice of appeal, [23])
The sixteenth asserted question of law was stated as follows:
His Honour failed to take account of the relevant fact that the heading ‘Time to open the kimono’ was used by [Mr Gifkins] in circumstances where [Ms Kurniawan] was both Asian and a woman. His Honour erroneously relied upon R v Waldron, where the parties were business people and the expression was used in a business context.
The Local Court addressed this heading at [111]-[115]. Reference was made to the submission that this heading was racist, sexist and strongly indicative of malice. The Local Court observed Ms Kurniawan give evidence in person. The Local Court expressed understanding why someone might take offence to the phrase, but accepted Mr Gifkins’ evidence that he was not using it to cause offence, and his evidence that it was a commercial term he had used in the past to refer to being open and transparent.
In the face of those reasons, there is no foundation for the submission that the Local Court failed to take into account Ms Kurniawan’s race and gender when considering whether the heading was used with malice. Furthermore, the Local Court’s reference to R v Waldron (No 3)[41] was simply supportive of Mr Gifkins’ evidence that it was a commercial or business term he had used in the past. Given that it is Mr Gifkins’ motive that matters, there was nothing erroneous about referring to that decision.
Ms Hart also made an oral submission which was not grounded in the asserted question of law, that the Local Court should have rejected Mr Gifkins’ evidence about this because it could be inferred that he had done a Google search of the term the day before giving supplementary evidence about his use of it, over the objection of Ms Kurniawan.
This asserted question of law is, in substance, solely a question of fact. It seeks to challenge the Local Court’s finding of fact (at [110]) that there was no malice evident in the report, when the Local Court clearly took into account the heading, and to have this Court make a different finding. That would require the weighing of evidence or choosing between available inferences or findings, which is not permitted in an appeal on a question of law.
It is not open to Ms Kurniawan on this appeal to raise this ground.
17^th asserted question of law (amended notice of appeal, [24])
The seventeenth asserted question of law was stated as follows:
His Honour erroneously failed to take account of the relevant fact that [Mr Gifkins] failed to inform the recipients of the [report] that the criminal proceedings he had caused to be brought against [Ms Kurniawan] had been dismissed and conclude on that basis that [Mr Gifkins] was actuated by malice. Mr Gifkins had told recipients of the [report] that [Ms Kurniawan] was facing criminal prosecution. It was as much of interest to those recipients to know that she was acquitted. The only explanation for this failure is that [Mr Gifkins] did not want the recipients to know that his attack on [Ms Kurniawan] was baseless. That really means he was actuated by malice.
Ms Hart relied on Matheson v Schneiderman[42] for the proposition that, where a defendant becomes aware that the statement is false but thereafter still refuses to withdraw it or apologise, that may be evidence from which malice can be inferred.
It is only necessary to repeat the proposition to demonstrate the flaw in the submission that the authority applies here. There is no suggestion or argument here that the statement in the report that Ms Kurniawan was the subject of an ongoing criminal proceeding is false. If that statement is not false, there is nothing to correct or apologise for.
Furthermore, in that case, what was actually held by the New Zealand Supreme Court was (at 155), by reference to authority, that while a refusal on the part of a defendant to apologise for, or retract, a defamatory statement when they become aware of its falsity may be properly considered on the issue of damages, it is not (at all events per se) to be regarded as evidence of malice. The Court observed (at 155-156) that it was somewhat difficult to see why such evidence should not be taken into consideration for the purpose of considering the issue of malice, but it was unnecessary to express a concluded opinion on the point. The Court held (at 156-157) that a direction by the trial judge to the jury that a failure to retract was not evidence of malice was not a misdirection.
The case does not stand for the proposition for which it was relied upon and the proposition is not relevant to the present case when the statement in question was not false.
Furthermore, the words ‘attack’ and ‘baseless’ in the asserted question are inappropriately emotive characterisations of the report and the particular part of it which was in issue. Nor is there any merit in the submission that the only available inference from Mr Gifkins’ failure to notify the recipients that Ms Kurniawan was acquitted is that he was actuated by malice. The point of the report was to inform the owners about how the body corporate’s money and time had been expended. The report set that out in relation to the criminal proceedings, and made clear they had been heard but not determined. It also expressly indicated when and where the decision would be delivered, if any recipient was interested to hear the outcome.
Even if this ground was a question of law (which I do not accept), no error of law has been demonstrated and this ground fails.
18^th asserted question of law (amended notice of appeal, [25])
The eighteenth asserted question of law was stated as follows:
His Honour erroneously took into account an irrelevant matter in determining the existence of malice. The irrelevant matter was the objective accuracy of the [report] at [110] of the judgment where malice depends on [Mr Gifkins’] state of mind.
I repeat my observations at paragraphs [113]-[114] above about the flaws in such an argument and the proper approach to such a ground of appeal.
As set out in paragraph [184] above, knowledge on the part of the defendant as to the falsity of a defamatory statement is a highly relevant, potentially conclusive, matter in considering the issue of malice. If a statement is objectively true, a finding that the publisher knew it was false would be extremely difficult, if not impossible, to make. How this was said to be an irrelevant matter is difficult to comprehend.
No error of law is demonstrated and this ground fails.
19^th asserted question of law (amended notice of appeal, [26])
The nineteenth asserted question of law was stated as follows:
His Honour’s reasoning at [116] of the judgment clearly reveals both a misunderstanding of the law and how [Ms Kurniawan] put her case, which deprived [Ms Kurniawan] of procedural fairness. The paragraph [is repeated].
The dichotomy expressed, that is, either no malice or that both [Mr Gifkins] and his lawyer were actuated by malice is fallacious. With respect it shows a misunderstanding of the concept of malice which, in this area, is publication for an improper purpose. That state of mind can easily exist whether or not a defendant obtained legal advice or followed such advice.
The Local Court held (at [116]) that Mr Gifkins had sent drafts of the report to the other committee members and to the body corporate’s lawyer, and adopted all changes recommended, which, the Local Court found, suggested no malice, or that Mr Gifkins and the lawyer were acting with malice, which was unlikely.
On any approach to the need for precision in identifying a question of law, this is not, in substance, a question of law. It is a series of submissions which are, overall, unpersuasive.
In oral submissions, Ms Hart argued that malice on the part of the lawyer was irrelevant and the ‘fallacy’ was that receiving legal advice about the content of a proposed publication does not give a person ‘a licence to put some materials which [are] inflammatory and inappropriate, extraneous, in the publication’.
The Local Court was not making any findings about malice on the part of the body corporate’s lawyer. The Local Court was, rationally, taking into account the conduct of Mr Gifkins in relation to the content of the report prior to its publication, namely the step of having the report settled by the body corporate’s lawyer, which could rationally bear upon the consideration of whether he published that report for an improper purpose not germane to the occasion of its publication. That is not to say that getting legal advice as to the content necessarily denies the existence of malice. It is simply taking account of a fact probative to that issue along with the other facts relevant to that issue.
Even if this ground was a question of law (which I do not accept), no error of law is demonstrated and this ground fails.
Asserted question of law relating to admission of interrogatory answer 4
20^th asserted question of law (amended notice of appeal, [28])
The twentieth asserted question of law was stated as follows:
His Honour erred by admitting into evidence, over objection by [Ms Kurniawan] [Mr Gifkins’] own answers to [Ms Kurniawan’s] interrogatory 4 as his evidence. His Honour did not have a discretion to admit evidence which the Evidence Act renders inadmissible. Court rules cannot operate to repeal an item of legislation.
On 2 February 2024, the Local Court delivered reasons for a ruling that Mr Gifkins could tender and rely upon as part of his evidence-in-chief an affidavit he had made earlier in the proceedings deposing to all of the materials he had in his possession about the subject matter of the report at the time of its publication. The Local Court admitted the affidavit because the affidavit evidence filed by Mr Gifkins as his evidence-in-chief had inadvertently failed to include the materials he had in his possession at the time he made the report, it was a necessary part of his case to establish that the materials he had provided a firm or logical basis for the imputations conveyed by the report, and there was no prejudice to Ms Kurniawan because she was on notice of Mr Gifkins’ intention to seek to rely on this affidavit and thereby had the opportunity to cross-examine Mr Gifkins about it if she chose.
Ms Hart argued that the affidavit was rendered inadmissible by the hearsay rule in s 59 of the Evidence (National Uniform Legislation) Act 2011 (NT). She argued that a lack of prejudice cannot render inadmissible evidence admissible, there was prejudice because Ms Kurniawan had conducted her case and her cross-examination of Mr Gifkins on the basis that the affidavit was inadmissible, and the Local Court’s interpretation of rule 30.11 of the SCRs and rule 17.08 of the Local Court Rules was ‘fallacious’.
The short answer to these arguments is that nothing contained in that affidavit was the subject of findings by the Local Court, or otherwise featured in the Local Court’s decision. If admitting this affidavit was an error, about which I express no opinion, it was not an error which had any bearing at all upon the outcome of the case. There was absolutely no possibility that the error could have affected the decision.[43]
No error of law is demonstrated and this ground fails.
Asserted question of law relating to credibility
21^st asserted question of law (amended notice of appeal, [28])
The twenty first asserted question of law was stated as follows:
His Honour erred in making the finding in relation to [Ms Kurniawan’s] knowledge of the no dog rule, as this was neither placed in the Defence nor such case was made by [Mr Gifkins] at trial and in cross-examination and so deprived [Ms Kurniawan] of procedural fairness.
This is a repetition of the eighth asserted question of law. No additional submissions were made in respect of this ground separately from those made in respect of the eighth asserted question of law.
For the reasons set out above in relation to the eighth asserted question of law, no error of law is demonstrated and this ground fails.
Disposition
None of the 21 grounds of appeal have been made out.
The appeal is dismissed.
I will hear the parties as to costs.
-----------------

[1] Kurniawan v Gifkins [2024] NTLC [the decision does not appear to have been allocated a number] (‘Reasons’).

[2] Reasons at [11].

[3] Lee v MacMahon Contractors Pty Ltd (2018) 41 NTLR 168 (‘Lee v MacMahon’).

[4] Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32 at 37 per Mildren J. Mildren J’s observations had also been adopted and repeated by the Court of Appeal in Wilson v Lowry (1993) 4 NTLR 79 at 84 per Gallop, Martin and Angel JJ.

[5] Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 (‘Haritos’).

[6] Section 7 provided that only the President and the Deputy President of the Tribunal were required to be lawyers. There is no equivalent to that provision in the Local Court (Civil Procedure) Act.

[7] Section 45 provided that the Tribunal could refer questions of law to the Federal Court. There is no equivalent to that provision in the Local Court (Civil Procedure) Act.

[8] The history was set out at [116]-[117], which included that for a period of four years after its enactment, the alternative construction of s 44 (that it conferred a right of appeal on pure questions of law only) would have meant that the only remedy available in federal courts in relation to an error of law by the Tribunal which was not a pure question of law would have been the High Court under s 75 of the Constitution, which seemed unlikely to be the intention of the Parliament. There is no such history in relation to the Local Court (Civil Procedure) Act.

[9] At [118]-[162], the Court reviewed numerous authorities and concluded (at [161]-[162]) that they showed that the appeal jurisdiction did not extend to questions of fact and that not all mixed questions of fact and law stand outside the appeal jurisdiction. There is no such body of authority in relation to s 19 of the Local Court (Civil Procedure) Act.

[10] The purpose was noted at [133], namely to ensure that the merits of the case are dealt with, not by the Federal Court, but by the Tribunal.

[11] Lipohar v The Queen (1999) 200 CLR 485 at [46] per Gaudron, Gummow and Hayne JJ, citing Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591 per Barwick CJ.

[12] Bassell v McGuiness (1981) 29 SASR 508 at 509 per King CJ, citing Viro v The Queen (1978) 141 CLR 88 at 93 per Barwick CJ, at 120 per Gibbs J, at 129 per Stephen J.

[13] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

[14] See Haritos at [124] and [158], referring to earlier decisions to that effect, apparently with approval.

[15] Citing Brown v Repatriation Commission (1985) 7 FCR 302 at 304; Federal Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 363-364.

[16] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

[17] Housing Commission (NSW) v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378 at 385-386, recently cited with approval in Kemp v Findlay [2025] NSWCA 46 at [97] per Ward P (Leeming and Ball JJA agreeing).

[18] The Questions of Law document refers to these paragraphs ‘of the MCO’, being the ‘matter complained of’, i.e., the report. It is clear from ground 3 in the original notice of appeal that this was intended to be a reference to the paragraphs of the Local Court’s reasons for decision.

[19] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496.

[20] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137.

[21] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300.

[22] Farquhar v Bottom [1980] 2 NSWLR 380.

[23] House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

[24] Norbis v Norbis (1986) 161 CLR 513 at [4] per Mason and Deane JJ (Brennan J agreeing); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [46], [49] per Gageler J, at [85], [87] per Nettle and Gordon JJ (Kiefel CJ agreeing), [147], [150] per Edelman J.

[25] While sentencing orders, cost orders, interlocutory orders and assessments of damages have been held to be discretionary, judgments that a party was negligent or guilty of contributory negligence, that a testator made inadequate provision for a member of his family, and a finding that a contract is unjust have been held not to be discretionary. See D Mildren, The Appellate Jurisdiction of the Courts in Australia, 2^nd ed, The Federation Press, 2023, [7.38] and the authorities there cited.

[26] See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39, 44, 47 per Mason J (Gibbs CJ agreeing).

[27] Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138] per McColl JA (Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing).

[28] Ibid.

[29] Ibid.

[30] Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 22 per Street ACJ; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138] per McColl JA (Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing).

[31] Appeal Book (‘AB’): pp 139-140.

[32] See s 103 of the Evidence (National Uniform Legislation) Act 2011 (NT), which provides that the credibility rule (in s 102 – that credibility evidence about a witness is not admissible) does not apply to evidence adduced in cross-examination if the evidence could substantially affect the assessment of the witness’s credibility. ‘Credibility evidence’ is (relevantly) evidence relevant to the credibility of a witness that is relevant only because it affects the assessment of the credibility of the witness: s 101A.

[33] See, for example, Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 at 504 per Griffith CJ; Aravas v Metropolitan Water, Sewerage & Drainage Board (NSW) (1970) 72 SR (NSW) 596; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 293 per Dawson J; Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666; Dare v Pulham (1982) 148 CLR 658.

[34] Cush v Dillon (2011) 279 ALR 631 at [19] per French CJ, Crennan and Kiefel JJ.

[35] Roberts v Bass (2002) 212 CLR 1.

[36] Cush v Dillon (2011) 243 CLR 298.

[37] Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50, citing Horroks v Lowe [1975] AC 135 at 151.

[38] Prince v Malouf [2014] NSWCA 12 at [225]-[226] per McColl JA; Basten JA; Ward JA.

[39] AB, pp 1361, 1362, 1627.

[40] See Skalkos v Assaf [2002] NSWCA 14, where it was held that it was not erroneous to take a vituperative tone into account in that case, where the content of the publication was false and irrational and the publication was to a wide audience raising issues of reasonableness.

[41] R v Waldron (No 3) [2024] NSWDC 159.

[42] Matheson v Schneideman [1930] NZLR 151.

[43] See NB v SB (2020) 349 FLR 409 at [64] per Grant CJ, and at [113] per Coulehan AJ, citing Development Consent Authority v Phelps (2010) 27 NTLR 174 at [9]-[11] and Phelps v Development Consent Authority (2012) 31 NTLR 51 at [7]. See also Haritos at [192] citing Waterford v Commonwealth, and at [213].

Imputation →	1	2	3	4	5	6	7
Controversial fact ↓	1
First pool incident	●	●	●	●	●
Second pool incident	●	●	●	●	●
Locked storage cage	●	●	●	●	●
Persistent filming	●	●	●	●	●
Basement incident	●	●	●	●	●	●
Slamming gates	●	●	●	●
April 2019 foyer incident	●	*	●	●
Involvement in legal proceedings	●	**	●	●