Luke v Richardson - [2014] WADC 27

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LUKE -v- RICHARDSON [2014] WADC 27

CORAM: BOWDEN DCJ

HEARD: 16-17 DECEMBER 2013

DELIVERED : 7 MARCH 2014

FILE NO/S: CIV 1315 of 2013

BETWEEN: MATUENY MARIAL LUKE
Plaintiff
AND
DEBBIE RICHARDSON
Defendant

Catchwords:

Defamation - Defences of justification - Contextual truth - Triviality – Plaintiff's conduct before and at the time of defamatory remarks

Legislation:

Defamation Act 2005 (WA)

Result:

Plaintiff defamed.
Damages reduced due to plaintiff's conduct before and at the time of defamatory remarks.

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr G Scott

Solicitors:

Plaintiff: Not applicable
Defendant: Arns & Associates

Case(s) referred to in judgment(s):

Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Campbell v News Group Newspapers Ltd [2002] EWCA Civ 1143
Crampton v Nugawela (1996) 41 NSWLR 176
Dingle v Associated Newspapers Ltd [1961] 2 QB 162
Harding v Essey (2005) 30 WAR 1
Jameel v Dow Jones & Co Inc [2005] QB 946
Jones v Sutton [2004] NSWCA 439
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
Rossen v Airey [2012] WASCA 26
Trumm v Norman [2008] EWHC 116
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539

BOWDEN DCJ: Mr Luke brings this defamation action arising from events occurring in November 2012.

The plaintiff's case

Mr Luke hired a red Hyundai i20 motor vehicle (the red Hyundai) from the defendant's employer, a car hire company. In early November 2012 he returned that car and exchanged it for a silver Hyundai Getz.
Within about 15 minutes of this occurring, Ms Richardson rang and accused him of stealing tyres from the red Hyundai and returning it with different tyres and said that if he did not return the Hyundai Getz she would report that car as stolen and the police would be looking for him.
Mr Luke says that when he and his friend returned the Hyundai Getz as requested Ms Richardson accused him, in front of his friend, staff of the hire company, a taxi driver and his two passengers, of being a thief, a criminal and stealing car tyres. These statements form the cause of action.

The defendant's case

Ms Richardson says she did not utter any defamatory remarks. She says when she rang Mr Luke, she asked him to return to the car yard because the red Hyundai had been returned with some different tyres and they needed to discuss the matter. When Mr Luke returned, she repeated her query, but denies that she called him a thief or a criminal.
Ms Richardson says that if she is found to have uttered the defamatory remarks, they were justified pursuant to s 25 of the Defamation Act 2005 (WA) or contextually true pursuant to s 26 or trivial within s 33 and says that, in any event, Mr Luke failed to prove any loss or damage as a result of the defamation.

The evidence

Witnesses called by the plaintiff

Mr Luke

Mr Luke came to Australia from Nairobi in 2006 and graduated with a Bachelor of Criminology and Criminal Justice in 2007, Master of Conflict and Dispute Resolution in 2009, Juris Doctor Degree in 2011 and is currently studying for a Masters of Aviation Management.
He said that in 2006, he was elected the chairman of the South Sudanese community and in 2007, became the chairman of the African community's students' organisation of sport in Australia and deputy chairman of the Sudanese Australian Federation. In 2008 he was an advisor to the minister of local government and citizenship representing African Australian ethnic groups, and in 2013, was nominated by the Family First party as a candidate for the federal seat of Stirling. He also said that he had previously worked for the Department of Housing, Chep and Qantas.
With the greatest of respect to Mr Luke, his evidence was in parts, difficult to follow. He spoke quickly and on occasions in a disjointed fashion. I make allowances for the fact that English is not his native tongue.
Mr Luke says on 2 November 2012 (other witnesses say it was on the 1st, however nothing turns on this) he and his friend Mr Agok returned the red Hyundai to the defendant's employer's yard. He says it was inspected by Mr Chhouk who permitted him to exchange it for a Hyundai Getz which he then hired. He points out that Mr Chhouk did not raise any issue about the state of the red Hyundai after the inspection.
Later that day he says he received a call from Ms Richardson who said:
I'm not happy because you have stolen my car tyres and returned it with damaged tyres. If you don't bring my car back at 5 pm I'll report my car as stolen and the police will be looking for you as a thief to arrest you.
Mr Luke says he told her to stop saying those words and denied being a thief.
This conversation involved Ms Richardson and Mr Luke only and cannot be a cause of action in defamation because there was no publication to a third party and therefore, no actionable wrong: Rossen v Airey [2012] WASCA 26.
Mr Luke said he went to the premises with Mr Agok who told him to keep quiet and said he would deal with Ms Richardson. Mr Luke said that when he went into the office he did not speak to Ms Richardson: ts 32.
He said Ms Richardson demanded the car keys and called him a thief and criminal in front of Ms Dunne and Mr Agok. He said she later repeated this in the presence of Ms Dunne, Mr Agok, a taxi driver and his two passengers. He said Ms Richardson also said words to the effect of 'I would have forwarded your name dogs and you will not get the rental car here in Australia until you go back to your country'. He described Ms Richardson as arrogant, intimidating, and shouting and said he left the office and remained outside.
Mr Luke said that later he called the police and was told, essentially, to leave the premises.
He testified that Ms Richardson said to him 'If you remove the tyres and replaced them with worn ones … it's stealing'. He said she told them they had taken four tyres.
Mr Luke said he understood the word 'took' or 'removes' in the context in which they were used meant 'stolen': ts 33.
He denied saying he would kill or burn anyone.
During re‑examination and further cross‑examination Mr Luke's version of what occurred when he and Mr Agok returned to the Rent‑A‑Car office was somewhat expanded and different.
He said that upon their return, Mr Agok asked Ms Richardson to tell him exactly what had happened and Ms Richardson demanded the car keys and told them to leave the office immediately. Mr Luke said Mr Agok handed over the keys, and Ms Richardson repeated what she had said about stealing the tyres. Mr Luke said he became annoyed and told Mr Agok not to give her the keys and said that he needed to call the police to come and take photos of the tyres as evidence for the court.
Mr Luke said to Ms Richardson 'Why do you repeat that I am a thief without evidence', and told her that the car had the same tyres in the same condition as when he rented it. He testified that he told Ms Richardson that she was blackmailing him and had done something to him because he inspected and chose a different vehicle to the one she gave him and she now accuses him of removing tyres from the vehicle she gave him.
Mr Luke testified that he had inspected and selected another Hyundai (1DRZ754) but was given the red Hyundai which was wet from being washed and therefore he could not see whether its tyres were worn or anything was wrong with that vehicle.
Mr Luke says he left the office when Ms Richardson asked him to and rang the police complaining about her conduct and asked them to come and take photos of the car. He said he did not want the keys to be handed over without the police attending because if he left the car without taking photos, Ms Richardson could replace the tyres and make accusations against him. He said he was told by the police to leave, take the matter to court and go to Consumer Protection.
He said that Ms Richardson came out of the office whilst he was waiting for a taxi and when a taxi dropped two customers off, he asked the driver to take him home. He said Ms Richardson told the taxi driver not to take him as 'these guys are criminals; he is a thief and is a dangerous man'. Mr Luke said the taxi driver replied 'We take thieves, we can take criminals, we can take old and unclean'. He said Ms Richardson asked the taxi driver to give her his number so that if anything happened she would be able to report it to the police because he (referring to Mr Luke) was 'dangerous and a thief'.
Mr Luke said he wanted to fight Ms Richardson but the taxi driver said that if he did he would be charged with assault and told him not to get out of the taxi.
Mr Luke said Mr Agok came out and told him to go to the taxi and they both then left in the taxi.
Mr Luke had earlier testified that when the red Hyundai was being driven home by Mr Agok, after it was first hired, he did not notice anything unusual about the car, however, the following day when he drove the vehicle he did.
He said he reported the problems with the red Hyundai to Mr Chhouk by phone on 3 October 2012 and Mr Chhouk told him he could change the vehicle and choose what he wanted when a new car came in ,which may be in about three weeks.
Mr Luke said he finished work with Chep in March and commenced work with Qantas in March.
Mr Luke said that being called a thief by Ms Richardson damaged his reputation with hire companies and his standing with the public and the community, created conflict with others and caused him such distress that he underwent counselling.

Mr Peter Agok

Mr Agok said that when he drove the red Hyundai from the Rent‑A‑Car yard to his house on the day it was hired, he noticed the car made noises and bumps and was 'laying on one side'. He said there was no time to return the car to the yard as it was already closed.
He said when they got home he and Mr Luke looked at the tyres which were worn and flat and he told Mr Luke to take the car back the next day. He agreed that he did not see any wire on the tyres and did not tell anyone about the condition of the car, other than Mr Luke.
In any event he said that, on the day the red Hyundai was returned and replaced with the Getz, Mr Luke contacted him and told him of his conversation with Ms Richardson.
Mr Agok said he went to the hire car office with Mr Luke about 5.00 pm and Ms Richardson asked him to give her the keys and then told them to get out of the office because they had stolen her car tyres. He said that Mr Luke asked why they were being called thieves and queried whether it was because they were black and Ms Richardson replied effectively that she did not care about their colour and all she needed was the stolen tyres. He said Ms Richardson called Mr Luke and himself a thief and a criminal and said Mr Luke was very angry and about to fight her and he urged Mr Luke to calm down.
Mr Agok said he asked Ms Richardson to settle down and tell him how they had stolen the car tyres, and she again demanded that they leave the yard so he asked her again to tell him what happened.
He said Ms Richardson then took him outside and showed him the car and said that the four tyres of the car had been stolen and that he and Mr Luke had stolen her car tyres. He said when he asked Ms Richardson how they had stolen the car tyres she said that they had taken the car to a service person, and the person who serviced the car stole the car tyres and repeated her claim that the tyres that should be on the car were not there.
He said Ms Richardson told them to leave the yard and said if they did not she would call the police. Mr Agok said she then took out a phone and he and Mr Luke walked out of the office.
Mr Agok said he returned to the office to ask for the balance of the rental money on the Hyundai Getz, which they had just returned, but Ms Richardson would not give them a refund. He said Ms Richardson then said words to the effect that she did not care what colour they were but to get out of their yard and shortly after that a taxi arrived. He said Ms Richardson was really angry and walked out to the taxi and told the taxi driver that they were thieves and that she was calling the police to come and lock them up.
He said Mr Luke and Ms Richardson were nearly having a fight and he told Mr Luke to step away from there. He said Ms Richardson told the taxi driver 'Don't pick them up from my yard because they are thieves, they have stolen my car tyres and also they are criminal'. He said Mr Luke was about to get out of the taxi but he and the taxi driver urged him not to.
Mr Agok said he told about 20 or 30 people in the community about the conversation involving Ms Richardson. He agreed he told Mr Luke that he was telling other people about that conversation and Mr Luke did not ask him not to repeat the conversation.

Mr Lino Malou

Mr Malou said he drove the red Hyundai from Langford to Kewdale when he and Mr Luke were working together on either 6 November or 6 December 2012 and he felt the car was pulling to the left side.
He said that on another occasion when he was a passenger he noticed that the air‑conditioner was just blowing hot air.
He said he saw the red Hyundai at his workplace and noticed that the front two tyres were completely bald and told Mr Luke that as the steering wheel was not straight and the car had bald tyres he could get a yellow sticker from the police for driving it.
He said he did not see wire hanging or mesh coming through the bald tyres.
He said he saw Mr Luke drive the car on two other occasions.

Witnesses called by the defendant

Ms Richardson

Ms Richardson is the administration manager of the car hire business.
She says that in October 2012 Mr Luke hired the red Hyundai from the business. She said Mr Luke was not permitted to drive the vehicle pursuant to the contract because he was unable to provide his driver's licence details and the only person permitted to drive was Mr Agok. She could not recall if she physically showed Mr Agok and Mr Luke the car before it was hired or whether it was wet after having come out of the wash bay.
She said that before Mr Luke took possession of the car she prepared a damage report (more correctly described as a vehicle condition docket) after inspecting the vehicle. She explained that such a report is completed when a vehicle is hired out not when it is returned.
She said it was not possible for Mr Luke to have chosen the other vehicle as he claimed because it was not at the premise at that time and was out on hire: ts 114.
Ms Richardson said the red Hyundai was later swapped on 1 November 2012 for a Hyundai Getz and after the swap Mr Chhouk came into the office and asked her to examine the red Hyundai, so she went to the wash bay.
Upon inspecting the vehicle she saw that the tyres appeared to be very badly worn, with wire hanging out of them, and the two front tyres were a different brand to those used on any of the business' hire vehicles.
She said her supervisor asked her to call Mr Luke so she rang him and said the conversation went along the lines that the vehicle had been returned with tyres different to what it went out with and he would need to come into the office and discuss the matter: ts 101.
She denied saying to Mr Luke that he had stolen the tyres, but maintained that as the main hirer, Mr Luke was responsible for any damage or loss to the vehicle and that is why she called him.
She says that Mr Luke and Mr Agok attended their premises at about 5.00 pm and she explained that the vehicle had been returned with tyres that were not the original tyres, and were neither a make nor brand used on the business' rental vehicles.
She says that Mr Luke then commenced yelling, effectively saying that they were racist. She says she told him that it was not a question of his race but the fact that the vehicle was returned with different tyres and Mr Luke said he was going to sue for racism.
She said Mr Agok then asked if he could look at the vehicle and she walked with Mr Agok to the wash bay where the vehicle was parked and it was inspected by Mr Agok.
She said Mr Luke came to the wash bay and was yelling at her. Ms Dunne, told her to 'get out of there' and she walked towards the rear yard of the premises. She said Mr Luke threatened her, saying he was going to 'kill her' and 'burn you bitches'. Ms Richardson said she rang the police and asked them to attend the premises.
Mr Luke and Mr Agok then left the premises in a taxi and she notified the police of that fact. She denied that she accused Mr Luke of being a thief and/or a criminal.
She said she sent an email (exhibit DR5) on 2 November to six other hire businesses providing Mr Luke and Mr Agok's address and stating:
These clients hired a vehicle off us, when vehicle was returned they had removed two of our tyres and replaced them with bald tyres. They became very abusive and police had to be called. Threatened staff and were very aggressive.
They will be trying to get a car from another company if they have not already done so.
She said that on 5 November 2012 the vehicle was taken to Bob Jane T‑Mart where three tyres and one rim were replaced. She said the spare rim was not the correct fit for that vehicle and they were also advised that there was damage to the left front lower control arm, which was later repaired at a cost of $485.60. This is hearsay evidence as to the truth of the repair work performed, the damage to the vehicle and the tyres fitted at the time it was seen at Bob Jane T-Mart.
She says some time later Mr Luke came to the premises saying he wanted to sort the matter out. When he was told that there was money to pay for repairs and replacement of tyres he said he would not pay. She said that she explained that he was responsible for any loss and damage to the vehicle and it was the last she heard from him. I observe that none of this was put to Mr Luke in court or commented on by him when he testified.

Ms Dunne

Ms Dunne is the operations manager of the business.
There were aspects of Ms Dunne's evidence which showed, in my opinion, some confusion or lack of accuracy.
For example, she said initially that she prepared the damage report on 2 October 2012 at the commencement of the hirer period for the red Hyundai and was sure she provided a copy to Mr Luke. Later she corrected this and said that the damage report she prepared was for the previous hirer of the red Hyundai, Ms Nelson, and not Mr Luke.
In one part of her evidence she said that on 1 November when Mr Luke returned the red Hyundai he left the yard with a Hyundai i20, and in another part of her evidence said he left with a Hyundai Getz.
In any event she says that at 3.30 pm on 1 November her attention was drawn to the vehicle that had been returned by Mr Luke, so she went to the wash bay and inspected it and noted that the tyres were badly worn and were different brands to what were used on Hyundai i20s. She said that Hyundai i20s have Kumho brand tyres and the two front tyres on the returned vehicle were not Kumho tyres, although she could not recall what brand they were. She testified that the non‑Kumho tyres then fitted to the vehicle were all different brands.
She said she was in the office when Ms Richardson made a phone call and said in one part of her evidence that she heard Ms Richardson say there was a problem with the returned vehicle and asked the person to attend the offices before close of business to resolve the matter. In another part of her evidence she said that she heard Ms Richardson say that there was a problem with the tyres, saying something to the effect that they were different to the tyres on the vehicle when it went out, but she was not sure if Ms Richardson referred to the tyres as being bald.

She said that around about 5.30 pm Mr Luke and Mr Agok came to the office and she was present when Ms Richardson and Mr Luke spoke to each other.
She confirmed that Ms Richardson said the vehicle appeared to have been returned with different tyres as they were not of the make or brand used by the business.
She confirmed Mr Luke yelled 'You're only doing this due to the colour of my skin', or 'Why you accuse me? Is it because I am black?' to which Ms Richardson replied 'I couldn't give a fuck whether you're red, green, orange, purple or brown' and effectively said the only thing of interest to her was the vehicle's return with different tyres. Mr Luke then threatened to sue for racism.
She said she intervened and told Mr Luke that about half of their clients had coloured skins and they were not racist.
She confirmed that Mr Agok then asked Ms Richardson if he could look at the vehicle and those two walked to the wash bay. Mr Luke walked into the back office yelling into his mobile phone and then left the office and she followed him.
She says that Ms Richardson told Mr Agok the tyres were worn and were different to the other tyres on the vehicle.
About this time Ms Dunne said she yelled to Ms Richardson 'Get out of the wash bay' as she was concerned because there were now two men in the wash bay and no exits. Ms Dunne said Ms Richardson then walked to the rear of the car yard. Mr Luke followed her and was yelling but she could not recall what he said. Mr Luke was told he had to leave the premises immediately or the police would be called and he then said words to the effect of, 'I'm going to kill you, I'm going to burn you bitches'.
Ms Dunne said Mr Luke was raving like a mad man, screaming and yelling in Ms Richardson's face. Ms Dunne said she was concerned about the anger being exhibited and would have been even more concerned if Mr Agok had not asked Mr Luke to leave the premises.
Ms Dunne said she yelled at Mr Luke to get away and Ms Richardson went to use the phone.
A taxi then arrived and Mr Luke and Mr Agok entered the taxi. She could not recall the taxi driver saying anything but heard Mr Luke say to the taxi driver 'Shut your fucking mouth and do as you are told'.
The taxi then left and Ms Richardson called the police again and advised them that Mr Luke and Mr Agok had left the premises.

Ms Haberfield

Ms Haberfield is a car detailer and her role in the events was relatively minor. She struck me as a witness of the truth, although obviously nervous when giving evidence.
She said at around 3.30 pm on 1 November she went to the wash bay to wash the vehicle parked there by Mr Luke about 15 minutes earlier and when she looked at the vehicle she noticed the two front tyres were badly worn with wire hanging out and she let Mr Chhouk know to go and check them.
She said that Mr Luke was in the yard when she reported these matters to Mr Chhouk.

Mr Chhouk

Mr Chhouk was the yard manager for the business.
He said that in September 2011 the business took delivery of 10 red Hyundai i20s and all were fitted with Kumho brand tyres.
He said he had one prior dealing with Mr Luke and that was when Mr Luke hired a Hyundai Elantra that had some problem with a door switch and he arranged for Mr Luke to swap that vehicle for another vehicle.
Insofar as the red Hyundai is concerned, Mr Chhouk said that on 1 November at around 3.15 pm Mr Luke entered the premises and said he wanted to swap the red Hyundai, for a cheaper vehicle. In another part of his evidence he said the changeover was pre-booked. This inconsistency is, in the overall scheme of the evidence, relatively minor.
In any event, when Mr Luke arrived to do the swap, Mr Chhouk 'checked in' the red Hyundai by checking the kilometres and the fuel and the condition of the car's surrounds to make sure there were no dents or scratches.
Mr Chhouk said he did not, at that stage, look at the tyres because the car was in good condition with no dents or scratches on the panels, so he completed the swap for the Hyundai Getz and signed the hire contract for it with Mr Luke.
Mr Chhouk said that at 3.30 pm Ms Haberfield told him something and he went to the wash bay and looked at the tyres and noticed that three tyres were badly worn and totally bald, with the metal exposed, and noticed that those tyres were not Kumho brand. Mr Chhouk was unable to remember what brand the replacement tyres were.
He said he immediately went to the office and spoke to Ms Dunne and Ms Richardson and asked Ms Richardson to call Mr Luke and ask him to return to the office.
He said that on 5 November the vehicle was taken to Bob Jane T‑Mart and the two front tyres were replaced and a wheel alignment completed.
He confirmed that the front lower left control arm on the vehicle was later replaced.
Mr Chhouk denied knowing anything about conversations with Mr Luke on the premises on 3 October 2012 and whilst he later said he could not recall or he could not remember, the clear effect of his evidence was that he dealt with Mr Luke on only two occasions. That is when Mr Luke had an issue with a Hyundai Elantra and its door switch and when he returned the red Hyundai and swapped it for the Hyundai Getz: ts 131 ‑ 134.
I found Mr Chhouk an impressive witness. He answered honestly the questions put to him and his evidence remained unchanged and non‑argumentative in cross‑examination.
I accept that he is a witness of the truth.

Mr Steer

Mr Steer is a car detailer who said that on 1 November at 5.30 pm he heard yelling coming from the office and, upon entering the office, saw a man yelling at Ms Dunne and Ms Richardson and heard the man saying 'You're a racist'. He said he heard the man use that phrase both inside and outside the office but could not remember what was said before or after those words.
He saw Ms Richardson leave the office with another man and go to the wash bay. Mr Steer said he went out to the yard and saw that Ms Richardson and Mr Luke were, by that time, in the rear of the yard.
He said Mr Luke was screaming, yelling and intimidating and was standing close to Ms Richardson when she told him to step away. He said Ms Richardson borrowed his mobile phone to call the police. He said the screaming and yelling consisted of a lot of swear words but he could not recall what words were used.
Mr Steer said the other man asked Mr Luke to calm down and then a taxi arrived and Mr Luke and the other man got into the taxi with Mr Luke yelling at the taxi driver. Mr Steer said he could not recall what words were used.
Mr Steer was a most unconvincing witness. By his own admission, he had a shocking memory and he was unable to recall much more than he heard the word 'racist' used. The inability to recall what was said before and after the word 'racist' was used, and his inability to recall the words used and what was said to the taxi driver, causes me to doubt the accuracy and reliability of all of his evidence and I have no regard to it.

The issues

I am entitled to accept all, part or none of what a witness says.
In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA recognised the difficulties that can confront a trier of facts when he said [35]:
It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding, the test for trier of fact is to separate the truthful parts from the rest.
As in Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, the very divergent evidence of the parties needs to be considered and a trier of fact may work out a view of the case which has not exactly represented what either party said.
All parties agree that Mr Luke and Mr Agok returned to the premises as a result of a phone call from Ms Richardson. Mr Luke's cause of action is based on what was said when they returned.
Four witnesses gave evidence of what was said.
Mr Luke and Mr Agok said Ms Richardson called Mr Luke a thief and criminal and said he has stolen the car tyres. Mr Luke, but not Mr Agok, said the word 'dogs' was also used as was the phrase 'dangerous thief'. They both deny Mr Luke threatened to kill or burn anyone.
Ms Richardson and Ms Dunne both said Ms Richardson did not call Mr Luke a thief or criminal or accuse him of stealing the car tyres. They both say Mr Luke made threats to kill and burn.
The plaintiff must satisfy me on the balance of probabilities that the words pleaded were spoken.
I do not consider Mr Luke a credible witness for the following reasons. His evidence was internally inconsistent. For example, in one part of his evidence (evidence‑in‑chief) he made no mention at all of the conversations he bases his case on, that is, the conversation he says occurred when he and Mr Agok returned to the car yard. In another part of his evidence he recounts those conversations in some detail. Overall, I attach little weight to this point, bearing in mind that as Mr Luke was unrepresented, his evidence‑in‑chief may have been mistakenly prepared on the basis that his already filed statement of claim stood as evidence of those conversations.
In one part of his evidence he said he did not speak whilst he was in the office. In re‑examination, however, he gave evidence of a number of remarks he made in the office, including telling Mr Agok not to hand over the keys, asking Ms Richardson why she said he was a thief without any evidence, telling Ms Richardson that the car had been returned with the same tyres and in the same condition as when he hired it and accusing her of blackmailing his name by providing him with a vehicle different to the one he had inspected and then accusing him of removing the tyres from that vehicle.
He says he asked Mr Agok not to hand over the keys after, on his evidence, he had seen Mr Agok hand the keys to Ms Richardson. Again, not too much turns on this point, but it does some show confusion in this aspect of his evidence.
It was only later in his evidence that he said for the first time that Ms Richardson told the taxi driver he was dangerous and asked for the taxi driver's number.
He said in one part of his evidence that he returned to the yard with his then hire car in October to complain about its condition, whereas in another part he says that he rang to complain.
His evidence is also inconsistent with Mr Agok's evidence. Mr Agok makes no mention of hearing Mr Luke tell Ms Richardson that she was blackmailing him and had given him a vehicle different to the one he chose. Mr Agok made no mention of hearing Ms Richardson referring to 'dogs'.
Allowance must be made for differences of culture and manners of expression and the fact that Mr Luke is self-represented, however the onus is on Mr Luke to satisfy me of his case and I am not, for the reasons I have expressed, satisfied as to the honesty or accuracy of his evidence. It seems that every time he recounts the events he adds a little bit more detail. I do not find his evidence credible and I do not rely upon it.
As to Mr Agok's evidence, he said immediately after his statement was tendered as evidence‑in‑chief, that because of the time constraints he did not put all he knew in the statement, but would tell the rest of the information by word: ts 61.
Mr Agok mentioned a number of matters for the first time in court, including that Ms Richardson took him to the wash bay and showed him the car, answered his question when he asked how the tyres were stolen, and said that she would call the police.
There are also some inconsistencies in Mr Agok's evidence, for example, in one part of his evidence he said he told Mr Luke the day after they collected the vehicle to return it, in another part he said he told Mr Luke to return it on the day it was collected.
In one part of his evidence he refers to Ms Richardson's 'I don't care about the colour of your skin' remark being made after Mr Luke's query as to whether the accusations were because he was an 'Australian African'. In another part of his evidence he says that remark was made in response to his request for a refund of the deposit paid for the returned Hyundai Getz.
There were also some differences between Mr Agok and Mr Luke's evidence such as Mr Agok saying that as soon as he left the hire yard, the vehicle was making noises and bumps and the car was 'laying to one side', whilst Mr Luke who was a passenger in the vehicle at that time did not notice any difficulties until he drove the vehicle the next morning. Mr Agok said the front tyres were worn out and flat whilst Mr Luke said one tyre was not good.
Mr Agok gave evidence of matters adverse to Mr Luke including saying that Mr Luke was very angry and was about to fight Ms Richardson and was perfectly frank in admitting that he told people in the community of the conversation involving Ms Richardson.
Notwithstanding there are some deficiencies in his evidence I accept his evidence that the words 'thief' and 'criminal' were used by Ms Richardson. It seems inherently more probable that Ms Richardson used those words.
As to Ms Richardson's evidence, exhibit DR5 and her own evidence, show her state of mind and the beliefs she held at the time. I have no doubt that she genuinely believed that Mr Luke had removed two tyres and replaced them with bald tyres. Her position was that Mr Luke, as the last hirer of the vehicle, was responsible for any damage or loss to the vehicle.
Although she denies calling Mr Luke a thief and criminal, I consider it inherently more probable that she did. I consider that in the heat of the argument, when challenged and accused of effectively being a racist, Ms Richardson accused Mr Luke of being a thief and a criminal.
I add that there was no evidence whatsoever to suggest Ms Richardson's remarks were racially based or had racial overtones. They were made because of her belief that Mr Luke had removed the tyres and replaced them and because Mr Luke's initial response was to accuse her of racism, which further inflamed the situation.
Whilst I do not accept Ms Richardson and Ms Dunne's evidence that the words 'thief' and 'criminal' were not used, I accept their evidence as to the nature of Ms Richardson's initial statements when Mr Luke returned to the office. I find that when Mr Luke and Mr Agok returned at her request, she initially pointed out that the vehicle had been returned with different tyres and, as the hirer, Mr Luke was responsible. I find that after Ms Richardson's initial enquiry the situation degenerated into a slanging match of sorts and the position may have been further aggravated by language and cultural barrier.
It is quite clear from the evidence of all witnesses that Mr Luke became upset. Mr Luke said he got annoyed immediately because of his culture and military background. I find Mr Luke reacted angrily, aggressively and loudly to Ms Richardson's initial query and accused her of being racist and Ms Richardson, who was also angry and upset, made the remarks loudly that he was a thief and a criminal and said he had stolen the car tyres and a short time later repeated those remarks.
I am satisfied, even after applying the Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd(1992) 67 ALJR 170 standard, that Mr Luke made threats to burn and kill. The way all four witnesses describe the argument developing makes it inherently more probable that Ms Richardson and Ms Dunne's evidence on this point is accurate. Mr Luke and Mr Agok both denied these threats were made. Mr Luke said that because of his very strong culture he would have killed Ms Richardson if he had made that threat. All four relevant witnesses agree that Mr Luke was angry. Mr Agok said he tried to calm Mr Luke down; Ms Dunne acknowledged Mr Agok's efforts in this regard. Mr Luke, I find, was very angry. I find he was so angry that he made these threats during the course of the argument. I reject Mr Agok's evidence that the threats were not made. I am not able to say whether these threats were made before or after Mr Luke was accused of being a thief and a criminal, however I am satisfied he made those threats.
As previously stated, there were some unsatisfactory aspects of Ms Dunne's evidence and although I have accepted her evidence on some matters, I do not accept her evidence that Ms Richardson did not call Mr Luke a thief and criminal and say he stole the car tyres. It is contrary to what I consider to be the inherently more probable way the argument developed and I prefer Mr Agok's evidence that the majority of the words complained of were uttered.
I am satisfied on the balance of probabilities that Ms Richardson did, in the presence of Mr Agok and Ms Dunne, and later in their presence and that of the taxi driver and his two passengers, call Mr Luke a thief and criminal and said he had stolen the car tyres.
I am not satisfied that Ms Richardson used the words 'dogs' or 'African dogs' or the phrase 'dangerous criminal'.

Was the vehicle returned with different tyres?

Mr Chhouk said that in September 2011 the business took delivery of 10 red Hyundai i20s and they were all fitted with Kumho brand tyres. I accept that Kumho tyres were fitted on the red Hyundai when it was first purchased.
Mr Chhouk, Ms Richardson and Ms Dunne, all workmates and employees of the business, said that when they examined the vehicle in the wash bay after it had been returned some of its tyres were not Kumho. They were unable to say what brand the different tyres were, however they all said they were not Kumho.
Ms Richardson said there were two different brands. Ms Dunne said that the two front tyres were brands that she did not recognise, and Mr Chhouk said that there were three tyres that were not Kumhos.
Exhibit DR8 is a letter from Bob Jane T-Marts. The author of the letter was not called as a witness and although there was no challenge to its admission, perhaps unsurprising given that Mr Luke was unrepresented, I place no reliance on it as there is no evidence showing the author knew what brand of tyres were originally fitted to the red Hyundai.
Some witnesses said there were two different tyres and others said there were three tyres that were different. Everyone agreed the tyres were badly worn, and this may have made brand names more difficult to recognise. The crucial question is not the number or brand of the replacement tyres but whether tyres were replaced.
I place no reliance whatsoever on exhibit DR7, the photographs of the tyres. The photographs are of such poor quality that from an evidentiary point of view they are worthless.
I also place no reliance on exhibit DR2, showing that the red Hyundai was serviced in November 2011and in May 2012. There is no evidence of what a service involves, or to show that the tyres were examined when the vehicle was serviced.
When Mr Luke returned the red Hyundai on 1 November the vehicle was inspected by Mr Chhouk and he approved the swap for the Hyundai Getz. I accept Mr Chhouk's evidence that his inspection consisted of checking the kilometres, the fuel and the surrounds of the car in relation to dents and scratches and, at that stage, he did not notice anything wrong with the tyres. He may have shown a certain degree of laxity in performing his duty, however, I accept that he was a truthful witness and I accept his evidence that he shortly thereafter examined the tyres and noticed their condition and the presence of non‑Kumho tyres.
Mr Malou's evidence, at its highest, establishes that the tyres were bald at some stage when he saw the vehicle, he says on or about 6 November or 6 December 2012. Those dates must be wrong because the car was returned to the hire company on either 1 or 2 November 2012. His evidence does not assist in answering the question of whether some Kumho tyres were removed from the vehicle.
The effect of Mr Luke, Mr Agok and Mr Malou's evidence was that the tyres were worn when the vehicle was first collected and other defects were apparent with the vehicle when it was driven. Mr Luke's evidence is, I have found, generally unreliable and whilst his friend Mr Agok's evidence was more credible, I prefer the evidence of Mr Chhouk on this point. In addition, although I have found Ms Richardson and Ms Dunne's evidence unreliable in some aspects and have rejected key aspects of their evidence, I accept their evidence on this point. Further, Mr Agok says, as does Ms Richardson and Ms Dunne, that Ms Richardson took Mr Agok to the wash bay and showed him the tyres after she had accused Mr Luke of replacing the tyres. I think it unlikely that she would have done so if the tyres had not been swapped.

The preponderance of the evidence supports the finding that some tyres had been swapped. Whilst Mr Chhouk, Ms Richardson and Ms Dunne were not able to recall or identify the brand of the replacement tyres, I accept on the balance of probabilities that the vehicle was returned with at least two tyres that were not of the brand used on the business' hire vehicles.

Were the words uttered defamatory?

I have found that Ms Richardson called Mr Luke a thief and a criminal and said that he had stolen car tyres.
The natural and ordinary meaning of words includes inferences and conclusions that an ordinary person draws from those words: Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245; Harding v Essey (2005) 30 WAR 1 [35].
The law recognises that people have an interest in their reputation and that reputation may be damaged by the publication of defamatory matters about them to others: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, 1.
A person's reputation is said to be injured where the esteem in which that person is held by the community is diminished in some respect. Generally, the test is whether the published matter leads to a person's standing in the community, or the estimation in which people hold that person, been lowered or where the imputation is likely to lead ordinary reasonable persons to think lesser of a plaintiff: Radio 2UE Sydney Pty Ltd v Chesterton (5, 36, 40, 53).
Ordinary reasonable people are fair‑minded, of ordinary intelligence, experience and education and people who are not avid for scandal and who bring to the matter in question their general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton [6].
Mr Luke pleads that Ms Richardson said 'You are a thief. You have stolen our car tyres. You are a dangerous thief, you are a criminal' and says that in their natural and ordinary meaning those words carry the defamatory imputation that he was a thief and criminal. I have found that, with the exception of the phrase 'dangerous thief', those words were used.
Clearly, it is defamatory to impute or call a person a 'thief' and/or 'criminal', that tends to diminish the esteem in which a person is held by the community, and/or diminish his standing in some respect and would lead an ordinary reasonable person to think lesser of the plaintiff: Radio 2UE Sydney Pty Ltd v Chesterton [3], [37], [46], [60].

The defences

The defendant relies on s 25, s 26 and s 33 of the Defamation Act 2005. Those provisions state:
25.     Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
26.     Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that —
(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
33.     Defence of triviality
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

Defence of justification

The defence of justification must be proven by the defendant on the balance of probabilities.
Even though I have found that the red Hyundai was returned with at least two different tyres, there is no evidence to establish that Mr Luke stole those tyres or behaved in a criminal matter.
The evidence clearly establishes that Mr Luke was not the only person who had access to the vehicle. Mr Agok and Mr Malou each drove the vehicle at some stage. It is true that as the hirer Mr Luke may be civilly liable for breaches of the hire contract, but that is worlds apart from proving he committed the criminal offence of stealing tyres or committed any other criminal act. As the bailee of the vehicle he had contractual obligations, however his breach of those obligations are not necessarily criminal acts.
Even if Mr Luke is civilly liable for the criminal acts of others, that does not establish he has stolen the tyres or committed any criminal offence. The defendant has not established that Mr Luke is a thief or criminal and the defence of justification fails.

Defence of contextual truth

This defence can apply where there are several possible defamatory imputations arising from a publication, some of which are true and some of which are not.
Therefore if the defendant proves in addition to the defamatory imputation that Mr Luke was a criminal and a thief, that there was one or more other imputations that are substantially true (the contextual imputations) and then proves that the defamatory imputations do not further harm Mr Luke's reputation when the truth of the contextual imputations are taken into account, the defence would apply: Barker et al, The Law of Torts in Australia (Oxford University Press, 5th ed, 2011, 7.6.1.3).
The actionable words pleaded are that Mr Luke was a thief and a criminal and had stolen the tyres.
The contextual imputations that the defendant relies upon on are that Mr Luke removed and replaced some of the tyres. The defendant says that if I find that the words 'criminal' and 'thief' were used, it was in the context of Mr Luke having removed the Kumho tyres from the vehicle and replaced them with other tyres and, as this is substantially true, the pleaded defamatory imputation that Mr Luke is a criminal and a thief do not further harm his reputation because he was the person who removed and replaced the tyres.
The difficulty for the defendant is that they are not able to establish the substantial truth of the contextual imputations upon which they rely. The defendant is not able to establish that Mr Luke is the person who removed and replaced the tyres.
The contextual imputation itself is not true, therefore the court cannot carry out any 'weighing up' between the seriousness of the false imputation that Mr Luke was a thief and a criminal and the supposedly truthful contextual imputation that he removed and replaced the tyres.
For the defence of contextual truth to apply the defendant must establish, firstly, that the contextual imputation is true and then that is compared with the defamatory imputation. However, the defendant has failed to establish the truth of the contextual imputation upon which they rely and therefore the defence is not available.
I find that there is no evidence establishing that Mr Luke removed the tyres and replaced them himself. I would not draw the inference on the balance of probabilities that because Mr Luke hired the vehicle and it was later returned with at least two different tyres, that he had removed those tyres when the evidence establishes that others had access to and drove the vehicle. Mr Luke may well have breached his hire contract and be civilly responsible for that breach, but that does not establish that he removed and replaced the tyres or aided or abetted others to do so.
The defence of contextual truth is not made out.

Defence of triviality

The onus is on the defendant to prove the circumstances of the publication are such that Mr Luke was unlikely to sustain any harm and this is a very different question from whether harm has been actually suffered by Mr Luke.
Section 33 requires the defendant to prove that there is an absence of 'a real chance' or 'real possibility' of harm. It is relevant for the purpose of s 33 to consider whether there is a chance of re‑publication of the defamatory remarks in circumstances where there is a likelihood of harm.
Section 33 is concerned with the 'circumstances of the publication and the likelihood of harm being suffered' and requires the court being aware of the circumstances to consider prospectively the likelihood of harm ensuing and not whether harm did actually ensue. It seems to me that the defence of triviality does not involve examining the plaintiff's conduct at the time the defamatory remarks were made. Jones v Sutton [2004] NSWCA 439, establishes that a court should look, inter alia, at the content of the defamatory material, the extent of its publication and the nature of the recipients and their relationship with the plaintiff. The plaintiff's conduct can be relevant to the amount of damages awarded.
A person can also suffer harm even when a person hearing a defamatory remark does not necessarily believe it but holds final judgment in suspense: Dingle v Associated Newspapers Ltd [1961] 2 QB 162.
Clearly, the defamatory remarks were not made in circumstances of jocularity, they were serious allegations.
Insofar as the natures of the recipients are concerned, the taxi driver and the passengers had no relationship with Mr Luke. Mr Agok was Mr Luke's friend and Ms Dunne was an employee of the Rent-A-Car company. Mr Agok was well acquainted with Mr Luke and able to make his own assessment as to whether there was any substance in the allegations made, however the taxi driver and the two passengers were not.
For the defence to succeed the 'circumstances' of the publication must involve factors such that the person defamed is not likely to suffer harm. Given the content of the defamatory remarks and the fact that they were made to at least five persons, the defendant has not established that the circumstances were such that they were unlikely to suffer harm: Jones v Sutton [12] – [73].
Even in the sense of a relatively brief confrontation, to call a person a thief and a criminal in front of others is likely to cause that person harm.
The defence of triviality has not been made out.

Damages

Under s 7 of the Defamation Act Mr Luke is not required to prove special damages. Section 34 of the Defamation Act requires that any damages awarded have an appropriate and rational relationship to the harm actually suffered. The damages must be realistic. Although s 33 relates to the likelihood of Mr Luke sustaining harm, s 34 requires a court to look at the harm sustained by Mr Luke.
Having found that Mr Luke has been defamed, damages in most circumstances would be appropriate to vindicate him and repair the harm to his reputation and console him for the associated distress, injured pride and feelings, affront and indignation and the fact that Ms Richardson has continued with the unfounded assertion by maintaining her defence.
Mr Luke has not proven any consequential financial loss. There is no credible evidence that he suffered any financial loss or detriment. His evidence was that he finished his employment with Chep in March and started with Qantas the same month. He said he had been getting a lift to Chep with his cousin and then when his cousin went to Africa he started taking taxis to work and he then told his employer he would not be working because he did not have a car. However, he agreed that when he finished at Chep he started work at Qantas as he was able to get to work because his cousin used his credit card to rent a car. I am not satisfied that Mr Luke has suffered any consequential financial loss.
Consideration must be given both to the extent of the publication and the gravity of the allegation when assessing damages.

The gravity of the allegations

Mr Luke has a proven record of involvement in community affairs and undertaking educational activities to advance himself. Allegations relating to integrity are recognised as being amongst the most serious: Trumm v Norman [2008] EWHC 116 [47].

The extent of the publication

The original publication

In this case there was very limited publication of the remarks; they were made firstly in the presence of Ms Dunne and Mr Agok and then repeated a short time later in the presence of a taxi driver and two passengers, Ms Dunne and Mr Agok.
The taxi driver and the two passengers were complete strangers to Mr Luke. Ms Dunne was a work colleague of Ms Richardson. Mr Agok was well acquainted with Mr Luke and made his own assessment that there was no substance in the allegations.

The re‑publication

Mr Luke says the admitted re‑publication by Mr Agok of what Ms Richardson said to 20 or 30 people in the 'community' was a natural and probable result of Ms Richardson's defamation. Mr Luke does not plead that the re‑publication is a separate cause of action but submits, and I accept, that any re‑publication is relevant to the assessment of damages flowing from the original publication.
Generally, a person is not liable for the voluntary re‑publication of words by a third party, however, if Ms Richardson authorised or intended the repetition or there was a moral duty on any of the recipients to repeat it or the re‑publication of that defamatory matter is a natural and probable result of the original publication by Ms Richardson, she is liable for the re‑publication: Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Rossen v Airey; and also Harding v Essey.
There is no evidence of intention, authorisation or moral duty in this case. I also find that it was not a natural and probable consequence of the defamatory remark being made in Mr Agok's presence that he would repeat those remarks.
The whole tenor and effect of Mr Agok's evidence shows that he positively did not believe the accusations. The natural and probable consequence of the defamatory remark being made in his presence would be that he would not repeat something about his friend that he clearly believed was not true or if he did, he would add a complete denial of any wrongdoing by Mr Luke. Ms Richardson is not liable for any re‑publication of the remarks by Mr Agok.

The grapevine effect

A damages award must be sufficient to convince a bystander of the baselessness of the allegation should the defamation spread along the grapevine and emerge at a future date: Crampton v Nugawela (1996) 41 NSWLR 176.
In Palmer Bruyn & Parker v Parsons Gummow J said [88]:
The expression 'Grapevine effect' has been used as a metaphor to help explain the basis on which general damages maybe recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton (1935) 153 LT 384, 386 as follows:
'It is precisely because the "real" damage can't be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach, it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of false accusation.'
In considering the risk of re‑publication and/or the grapevine affect, inter alia, the content of what was said, the nature, size and character of the audience to whom it was said, and the ease of repetition are all to be considered: Palmer Bruyn &Parker Pty Limited v Parsons [118] (Kirby J).
Mr Luke relies on three SMSs (exhibit 1) as showing either, as I understand it, re‑publication of the allegations or the commencement of the 'grapevine effect'.
The SMS state as follows:
Is this what u can do? What about your car rental crash in November? We will make u hell my friend.
You want me to pay 390.000 dollars to you as well …? Come here I give u cash.
I mean you wrong not paying rent damage care to Debbie, we are 2 people against you, I will not report anyone cant bother wasting my time for 2 weeks rent so we can be still friend, that's why I asked you what u want me to do with your letter, but if I see a report against me then I need to the same as Debbie, sorry Luke but let me know friends or not friends?
Mr Luke accepts that these SMS were not sent by Ms Richardson and there is no evidence to suggest they were sent at her request or with her acquiescence. The contents show, perhaps, some knowledge of an issue between Mr Luke and Ms Richardson over a hire car and of a claim for $390,000 by Mr Luke, however, they did not establish knowledge by their author of the nature of any defamatory words spoken by Ms Richardson.
Mr Luke also asked me to consider exhibit 2, which was a message apparently placed on Gumtree by a person other than Ms Richardson, which states:
Who Rents to none australians in the first place this is auatralia no china or Africa they are dogs look at theirs country's u thought they'd be good ha less of them the better.
Again, there is no evidence to suggest this was posted at the request or with the acquiescence of Ms Richardson and its content does not establish that its author had knowledge of the nature of any defamatory words spoken by Ms Richardson.
Mr Luke says Ms Richardson put his name on a rental blacklist which meant that he could not hire any rental cars in Australia and gave an example where he was unable to hire a car because his name was on the blacklist.
Mr Luke also said he had given up trying to rent cars because his name was on that list and he found this embarrassing. Mr Luke says that he had to catch taxis because he could not hire cars or get lifts with his cousin who it appears was able to use Mr Luke's credit card to hire cars.
I note no taxi vouchers or receipts were produced, nor was the cousin called as a witness. There was no evidence from Mr Luke as to how often he hired cars, although on the available evidence I can infer that it was fairly regularly. Mr Luke agreed that there were several well-known hire companies that he had not tried to hire cars from. At the very highest he has proven that he cannot hire from some hire companies. Irrespective of this, I find that any inability of Mr Luke to hire cars is as a result of the email.
Mr Luke has failed to satisfy me that he has been blacklisted as a result of Ms Richardson's defamatory remarks the subject of this action. On the contrary, the evidence establishes that any blacklisting is likely to be as a result of the email (exhibit DR5).
The email was sent by Ms Richardson to nine other car rental businesses. The pleaded defamation is that the natural and ordinary meaning of those words spoken by Ms Richardson was that he was a thief and criminal. The email contains no re‑publication of the pleaded defamatory words. It contains written accusations that Mr Luke returned the vehicle having removed two of its tyres and replaced them with bald ones (contextually an allegation that he stole the tyres) and says that he became abusive and aggressive and threatened staff and police had to be called.
The email is a separate and discrete occurrence that, properly pleaded, may have given rise to a separate cause of action. It was published to parties other than and different to those to whom Ms Richardson's verbal remarks were made. Its content was different; the fundamental facts necessary to give rise to the cause of action are different: Rossen v Airey. If Mr Luke is saying the natural and ordinary meaning of the words contained in the email or the contextual imputation is that he was a thief or criminal that ought to have been specifically pleaded.
If damages are sought as a consequence of the contents of that email on the basis that it increased the injury from the original defamation, then there is no pleading that the injury from the pleaded defamation was increased because the natural and ordinary meaning or, alternatively, the contextual imputation or innuendo of the email was that he was a thief and criminal. If he was going to rely on the email as increasing his damages, it ought to have been included in the pleadings.
As a matter of common sense and experience any inability on Mr Luke's behalf to hire a car was not caused or materially contributed to by Ms Richardson's defamatory remarks of 1 November 2012. Those remarks were not made to other hire car companies. Any inability to hire a car, on the evidence before me, arises solely as a result of the email and not as a result of her defamatory remarks at the car yard or the grapevine effect and therefore is not causatively linked to the pleaded defamation: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1995) 182 CLR 1.

Accordingly, any inability to hire a car is not a result of the defamation or grapevine effect but rather the direct result of the email (sent to different businesses and containing allegations of tyre swapping, aggressive behaviour and threats) and therefore is not causatively linked to the pleaded defamation.
In any event, the content of the email were not pleaded as either a separate cause of action or as leading to an increase in the losses suffered by Mr Luke, and therefore I would not have made any allowance for the inability of Mr Luke to hire a car from some hire companies.
Mr Luke said he underwent counselling but gave no evidence as to the nature and extent of the counselling nor of the conflicts these remarks caused him to have with others.
However, the fact remains that Mr Luke was defamed in the presence of Mr Agok, the taxi driver, two passengers and Ms Dunne.
I have found the remarks were made by Ms Richardson as a result of Mr Luke unfairly alleging that her enquiries about the replacement of the tyres were race based.
Mr Luke clearly considers that the remarks were made as and by way of racial abuse, however I have found categorically that they were not.
In assessing damages the behaviour of Mr Luke and Ms Richardson is relevant, the whole of their conduct before or after the action and in court during the trial may be considered: Cassell & Co Ltd v Broome [1972] AC 1027, 1071 (Lord Hailsham); Campbell v News Group Newspapers Ltd [2002] EWCA Civ 1143
Ms Richardson's state of mind at the time she uttered the defamatory remarks is to be disregarded: s 36 Defamation Act.
A claimant who brings a defamatory publication on himself will normally receive a lower award of damages than a claimant who has been defamed without provocation: Burstein v Times Newspapers Ltd [2001] 1 WLR 579 [48]. Damages can be reduced if Mr Luke provoked Ms Richardson or defamed her in return: Cassell & Co Ltd v Broome (1071).
The allegation that Mr Luke was a thief and criminal was unfounded. There was no justification for Ms Richardson making that remark. However, Mr Luke's conduct towards Ms Richardson in accusing her of being racist because she was questioning him about the return of the vehicle with different tyres was made before her defamatory remarks and casually contributed to her outburst. Mr Luke's threats to kill and burn were made sometime during the heated argument. These remarks are relevant background context: Burstein v Times Newspapers Ltd.
Both parties' conduct since has aggravated the situation.
Ms Richardson has denied uttering the remarks, made no apology and pleaded justification and contextual justification if found to have uttered the remarks.
Even in court Mr Luke maintained in his closing submissions that Ms Richardson's motivation was race based (ts 185 ‑ 187):
…what I know for the case is that it's a defamation case against my colour…they thought that all African are like that… They're covering all the things because of my colour … They thought that I'm thief like what other people say it in Australia … But it is defamation because I am an African. I'm black bastard. You cannot – if I'm not black she would have provided the evidence of the tyres which has been removed.
There was no justification for Ms Richardson calling Mr Luke a thief and criminal, however his conduct towards Ms Richardson which caused those remarks must be considered.
Additionally, it must also be considered that the publication was to a very small number of persons. There have been cases where limited publication of the defamatory remarks has led a court to conclude that it was unlikely to cause any significant damage to the claimant's reputation: Jameel v Dow Jones & Co Inc [2005] QB 946.
There is nothing to indicate the taxi driver or two passengers knew Mr Luke or would ever have anything to do with him. In the heated circumstances that existed at the time it seems to me they would have treated the remarks as part of an expression of anger and annoyance by Ms Richardson and, even if they later repeated those remarks, there is no evidence showing that they knew Mr Luke by name. Mr Agok clearly did not accept what was being said about his friend and Ms Dunne was never asked whether or not the remarks affected her view of Mr Luke. There is no evidence showing Mr Luke has been shunned by his friends or workmates.
The damages must be realistic and reflect the absence of any actual pecuniary loss, the very limited audience to which the remarks were made and Mr Luke's conduct at the time of those remarks and the damage he actually suffered.
Although it was a loud and heated argument, Ms Richardson should not have called Mr Luke a thief and criminal in front of others. Mr Luke is entitled to public acknowledgement that he did not steal the car tyres and is not a thief and criminal, however Mr Luke should not have accused Ms Richardson of being a racist and should not have made the threat to kill and burn.
Bearing in mind the limited circulation of the remarks, if not for Mr Luke's conduct in accusing Ms Richardson of being racist and later threatening to burn and kill her and Ms Dunne, I would have awarded him $7,500, however whilst acknowledging the allegation that Mr Luke was a criminal and thief was defamatory and without foundation, I reduce that amount to $1,000 considering the circumstances in which the defamatory remarks were made and considering the nature of the threats made by Mr Luke.