Manefield v Child Care NSW - [2010] NSWSC 1420

No judgment structure available for this case.

CITATION: Manefield v Child Care NSW [2010] NSWSC 1420

HEARING DATE(S): 22-23/11/10

JUDGMENT DATE :
15 December 2010

JURISDICTION: Common Law Division
Defamation List

JUDGMENT OF: Kirby J

DECISION: 1. There shall be a verdict for the plaintiff in the sum of $150,000.
2. The defendant should pay the plaintiff’s costs.
3. Liberty to apply on 2 days notice.

CATCHWORDS: DEFAMATION - dismissed manager - establishing business in same industry - publication to industry - whether imputations conveyed - defence qualified privilege at common law - malice - aggravated damages.

LEGISLATION CITED: Associations Incorporation Act 1984 (NSW)
Corporations Act 2001
Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Farquhar v Bottom [1980] 2 NSWLR 380
Megna v Marshall [2010] NSWSC 686
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Adam v Ward (1917) AC 309
Hunt v Great Northern Railway Co [1891] 2 QB 189
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Guise v Kauvelis (1947) 74 CLR 102
Andreyevich v Kosovich (1947) SR (NSW) 357
Aktas v Westpac Banking Corp Ltd [2010] HCA 25
Justin v Associated Newspapers Limited (1966) 86 WN (Pt 1) (NSW) 17; (1967) 1 NSWLR 61
Mowlds v Fergusson (1939) 40 SR (NSW) 311
Fraser v Holmes [2009] NSWCA 36
Huntley v Ward (1959) 6 CB (NS) 514
Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511
Weldon & Co v Harbinson [2000] NSWSC 272
Davidson v Barclay's Bank Ltd (1940) 1 All ER 316
Horrocks v Lowe [1975] AC 135
Gross v Weston [2007] NSWCA 1
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Jameel v Dow Jones [2005] QB 946
Trigell v Pheeney (1951) 82 CLR 497

PARTIES: Bruce Manefield (Pl)
Association of Quality Child Care Centres of NSW Inc t/as Child Care NSW (Def)

FILE NUMBER(S): SC 2009/297613

COUNSEL: B R McClintock SC/R de Meyrick (Pl)
R Rasmussen (Def)

SOLICITORS: Paris J Carr & Assoc (Pl)
Guild Legal Limited (Def)

Bruce MANEFIELD

v

ASSOCIATION OF QUALITY CHILD CARE CENTRES

OF NSW INC. T/AS CHILD CARE NSW

(2009/297613)

I N D E X

Para No.

1. LIABILITY

The matter complained of.
1

The issues.
3

Background.
6

Employment by Child Care New South Wales.
10

Proposed federal organisation.
31

Termination of Mr Manefield.
39

The establishment of Early Learning Australia.
42

A planned media launch.
45

Were the imputations conveyed?
55

Qualified privilege at Common Law.
87

Submissions of the parties.
108

The circumstances of the publication.
122

The question of confidentiality.
124

The public interest.
133

Express malice.
143

Submissions of the parties on malice.
149

Was there malice?
161

2. DAMAGES

Principles with respect to damages.
175

Damage to reputation.
177

Hurt to feelings.
189

Aggravated damages.
198

Quantification of damages.
205

Orders.
209

*********

1. LIABILITY

The matter complained of.

Mr Bruce Manefield (the plaintiff) has commenced an action for defamation against Child Care New South Wales (“Child Care NSW”) (the defendant), an employers’ association incorporated under the Associations Incorporation Act 1984 (NSW). The action relates to a letter of 7 July 2008 that Child Care NSW sent to “all or almost all” of its members. There were, at the time, about 650 members operating private (as opposed to community based) child care centres and long day care centres throughout New South Wales. The letter was on the letterhead of Child Care NSW and was in these terms: (Ex A)

“Dear Child Care Operators,

As some of you may be aware, Mr Bruce Manefield is no longer in the position of Executive Officer of Child Care NSW.

A decision to terminate Mr Manefield’s services was taken by the Executive following a meeting between nominated representatives of the Executive and our Industrial Relations Advisor, Mr Peter Rochfort, with Mr Manefield on Friday 9 May, 2008.

Members should be advised that Mr Manefield remains under ongoing duty of confidentiality to the Child Care NSW in terms of information to which he has become privy by virtue of and during the course of his employment, relating to the affairs, both financial and commercial, of the Child Care NSW and of its members. This information includes, but is not limited to, membership lists. We have reason to believe that Mr Manefield is in the process of contacting members, and we suspect that he is availing himself of confidential information in order to do so.

Members are advised to respond cautiously to any approach by Mr Manefield, or any person acting in connection with Mr Manefield, particularly given the legal ramifications which may arise.

Your Executive is conscious of the difficulties which Child Care NSW has faced over the past couple of years, which have impacted in one way or another on all of us. We are now taking the steps necessary to resolve this impact and to see Child Care NSW restored to the pre-eminent position it holds in the child care community.

The infrastructure of Child Care NSW and its ability to represent our membership effectively remains sound. However, in order to achieve our objectives, the Executive continues to rely upon the support of you, the membership.

There are a number of looming challenges, particularly given the priorities of the (relatively) new Federal government. There is a lot of impetus being given to changing the regulatory basis under which the industry operates, including, for example, the industrial framework.

We have at our disposal, the infrastructure, the resources and the personnel which will enable and equip us to face the challenges ahead far better than any alternative body, and we ask you not to be deluded into thinking otherwise.

We, the Executive, invite you to refer any contact from Mr Manefield, or any entity with which Mr Manefield is associated, to any member of the Executive, who will respond as necessary.

We are also contacting Mr Manefield directly to remind him of his legal obligations.

Kind Regards

Child Care NSW Executive Committee”

2 In the Statement of Claim, the plaintiff asserted that the letter, in its natural and ordinary meaning, conveyed the following imputations:

“(a) The plaintiff is an untrustworthy person prepared to use devious and underhand means to take members away from the defendant.

(b) The plaintiff is a dishonest person prepared to deceive the defendant’s members.

(c) The plaintiff had attempted to deceive members of the defendant.

(d) The plaintiff had breached the obligation of confidentiality which he owed to the defendant.

(e) The plaintiff had breached his legal and contractual obligations to his former employer.

(f) The plaintiff by his mismanagement and incompetence had damaged the standing of the defendant in the childcare community and created the difficulties which it had faced.”

The issues.

3 The matter began on 22 November 2010. Mr Manefield was called in the plaintiff’s case and a number of documents were tendered. The case was then closed shortly after lunch. No evidence was called by the defendant. The parties then addressed.

4 The issues to emerge from the addresses were as follows:

First,

Secondly, no arguments were put to suggest that the imputations were otherwise than defamatory.

Thirdly, the only defence relied upon was qualified privilege at common law.

Fourthly, the plaintiff asserted that, if the letter was sent on an occasion of qualified privilege, there was express malice on the part of defendant which defeated that privilege.

Fifthly,

5 Before dealing with these issues, I should set out the background to this claim, as it emerged from the evidence.

Background.

6 Mr Manefield is a man aged 47 years. He is married with five children. His background was in marketing and information technology. In 1993, or thereabouts, he sent his oldest child to pre-school at Westmead. The pre-school was part of the Kindergarten Union, a community based, not-for-profit organisation, that operates approximately 130 pre-schools and a number of long day care centres.

7 Mr Manefield was impressed by the organisation and joined the Parent Committee (T 10). In time, he became the pre-school’s representative on the Council of KU Children’s Services. He became aware that the Board of KU Children’s Services was looking for members. He was encouraged by the Director of the pre-school his child attended to apply. Because of his background in marketing and information technology, he was “snapped up” (T 11). He became a board member in 1994. By 2001, he was the President of the organisation and remained in that office for five or six years.

8 The offices he held with KU Children’s Services were honorary positions. To earn his living he worked as a consultant to Telstra. He also had a car rental business. However, through his association with KU Children’s Services, he became passionate about early childhood learning programmes. He recognised from his reading, that intervention, to correct difficulties that children experience with learning, was fundamental. There were enormous benefits from early intervention, both for the child and ultimately for society.

9 Mr Manefield determined upon a career change. In 2005 he applied for a position as Chief Executive Officer of the National Family Day Care Association. He was placed on a short list, but not selected. He was told that he was “the runner-up”.

Employment by Child Care New South Wales.

10 Ms Bernadette Dunn of Macarthur Management Services was a member of the interviewing panel. She knew the President of Child Care NSW, Mr Vic Laurence. She became aware that Child Care NSW was looking for an Executive Officer. Mr Manefield was contacted and asked whether he would be interested in such a position. He said that he was. He was then interviewed by Mr Laurence and the Vice President, Mr Wilson. In January 2006 he met the incoming President, Ms Lyn Connolly, and was interviewed by her. He was then offered the position of Executive Officer and began work on 7 February 2006. He was to receive a salary package of $100,000, including superannuation. He resigned from his position with the Kindergarten Union Board.

11 On the day that Mr Manefield commenced work he was handed a Contract of Employment, which he read and signed (Ex E). There was to be a probationary period of five months (Clause 1) and the contract could be terminated, either for misconduct or by either party “on 24 hours written notice or payment in lieu of notice” (Clause 6). Clause 10 included the following: (Ex E)

Association Information

By signing this agreement you agree to the Confidentiality provisions set out in Schedule 3 of this Agreement. ...”

12 Schedule 3 of the agreement contained a number of provisions. It identified the information that may be disclosed to an employee in the course of his employment, in these words: (Ex E, Sch 3)

“1. In the course of your employment with Child Care New South Wales, Child Care New South Wales may elect to disclose information of the following types to the Employee:

Financial, technological, strategic or business information;

Research, development, operational, legal, marketing or accounting information;

Technology and intellectual property rights;

Customer and supplier information; and

Other information specifically marked as being confidential.”

13 Such information was to be regarded as “Confidential”, subject to defined exceptions. The agreement provided as follows:

“2. All such information (whether or not about Child Care New South Wales or related companies, its customers & business associates) will be ‘Confidential Information’ for the purposes of this agreement unless it:

Is trivial in nature;

Is already public knowledge when it is disclosed to the Employee;

Becomes public knowledge after it is disclosed to the Employee other than because of a breach of confidentiality by the Employee or a person to whom the Employee discloses it; or

Is in, or comes lawfully into, the possession of the Employee other than because of a breach of confidentiality by some other person.”

14 The schedule then included a prohibition on disclosure, as follows:

“3. In return for Child Care New South Wales disclosing any Confidential Information to the Employee, the Employee agrees that:

The Employee Must Always Keep Information Confidential

The Employee must hold the Confidential Information in strict confidence and must take all steps necessary to preserve its confidentiality. ... All of these restrictions will continue even if the Employee’s employment ends or this agreement is terminated.”

15 Finally, the agreement included the following provision:

Ownership of Results

Any information or intellectual property developed or created by the Employee using the Confidential Information will itself be Confidential Information and will be the property of Child Care New South Wales.”

16 Mr Manefield’s employment continued on the same terms beyond the five month probation period. One of his responsibilities under Schedule 1 of the Contract of Employment was defined in these terms: (Ex E, Sch 1)

“For the initial period it will be the Executive Officer’s responsibility to promote the benefits of this organization and to increase membership by providing extra services to the members.”

17 The primary role of Child Care NSW was to act as the employer’s representative in industrial matters (T 14). Advice was provided to child care centres and long day care centres, over the phone, as to wages and conditions under various awards. Information seminars were conducted from time to time for persons interested in owning a child care centre.

18 When Mr Manefield began work, the membership database was in a “mess” (T 14). It was not clear how many members there were, or who they were. There appeared to be 300, or perhaps 400 members. Some were companies, others were sole traders. Some operated through partnerships and others through a trust. The complexities of these arrangements added to the confusion. With the assistance of consultants, a database was set up to identify members. By the time his services were terminated, almost two years after his commencement, the membership had increased to about 650 members (T 15).

19 Child Care NSW operated through an executive committee of ten members. During Mr Manefield’s time as Executive Officer, the President was Ms Lyn Connolly and the Vice President, Ms Vicki Skoulogenis. Both owned child care centres or long day care centres. Mr Manefield reported to the committee each month. He was required to manage the association’s staff and provide the President with advice and support (T 16). He was also required to represent Child Care NSW at meetings with state and federal governments.

20 Towards the end of 2007, Mr Manefield became aware that there was some dissatisfaction with him on the part of the President and Vice President. Ms Vicki Skoulogenis sought a meeting to discuss the financial status of the organisation (T 16). The meeting took place on 14 November 2007. Mr Manefield was asked to explain why the cash reserves were so low. He told the Vice President that money had been paid in advance for the forthcoming annual conference, which was scheduled for early 2008. Income would be provided by participants in that conference.

21 On 21 November 2007, a letter was sent to Mr Manefield from “Vicki and Lyn”, the Vice President and President respectively. The opening paragraph was in these terms: (Ex F)

22 There followed a number of directions, which included that all cheques written by the organisation were to be approved by either the President or the Vice President. The newsletter was not to be published, and no consultants were to be engaged.

23 The letter thereafter provided a brief explanation of “some concerns the office staff have” in respect of four issues:

1. The newsletter which, apart from being expensive, was published late and deficient in various ways.

2. Mr Manefield was to take charge of the various projects of Child Care NSW and report on progress and estimated time of completion.

3. Concern was expressed about the database and the choice of one package when there was a cheaper package available. The question was asked whether it was delivering all that had been promised.

“Conference very expensive and if we make a loss like last year CCNSW will not exist. Our position is to stop now and not proceed. What expenses will we be charged with?”

24 The letter ended with the following words:

“As the above reads quite negative can I please assure you that your efforts have not gone unnoticed. Your performance is of a high standard and I truly believe you will continue to give CCNSW all your best. Please understand me when I question the above as an executive officer I represent all our members and at this stage staying afloat is of the extreme importance. Lets work together with the above changes and see the year through with some relief and re-evaluate in the new year.”

25 On 3 December 2007, Mr Manefield responded to the letter at length, providing general comments before addressing each issue of concern. His reply included the following commentary upon the organisation’s finances: (Ex F, p 1)

“It appears to me that the main concern that you both share is the financial performance of the Association.

This concern has been particularly triggered by the level of cash in the day-to-day bank account.

The arrival of a substantial bill from Sane Event Management now means that we have to dip into the reserves.

This apparently sudden need to use the cash reserves quite understandably concerned you.

However, you will see from the attached Profit & Loss and Balance Sheet that we are in a strong financial position.

The year-to-date surplus as at the end of October, 2007 is just over $50,000. The Balance Sheet shows that we have net assets of over $220,000. In liquidity terms, the Balance Sheet shows that we have a working capital of just on $200,000.”

26 The letter dealt with the database in these terms: (p 5)

Database.

27 An outline of plans for the future was then provided. The response by Mr Manefield also dealt with the conference schedule for 2008. His reply included these words: (p 6)

Conference very expensive and if we make a loss like last year, CCNSW will not exist.’

The loss on the conference last year was estimated at around $50,000.

Given the net assets of the organization, I cannot see how such a loss would cause CCNSW to cease to exist.

‘Our position is to stop now and not proceed. What expenses will we be charged with?’

28 There followed details of the financial cost of cancelling the conference.

29 The letter included the following “closing comments”: (p 7)

“Thank you for your positive comments with respect to my performance.

I share your view that I have performed well and that I have, and always will have, the interests of CCNSW in the forefront of all my thinking and activities.

As outlined above, I do not think that we are in any danger of not ‘staying afloat’.

I hope I have demonstrated that things may not be as bad as they originally seemed.

Clearly there are a number of key projects that need my focus in the short term (eg Guild).”

30 On 15 December 2007, Mr Manefield was called to a further meeting with Ms Connolly and Ms Skoulogenis. The President told him that he was not to tell other members of the executive committee of the Vice President’s fax (of 21 November 2007) and his own response. Ms Manefield endeavoured to reassure the President and Vice President that the association was in a “quite good financial state” (T 20). The fax, he believed, was based upon a misunderstanding of the cash flow. Recounting the conversation, Mr Manefield said this: (T 20)

“A ... I explained to them again that of course we were running down the cash reserves, we had expenses that we had to pay for the conference and they necessarily came up early in the timeframe, and then basically from December onwards into January we would start reaping and generating the revenue as we sold the stands, the sponsorship packages and tickets to the conference. I said ‘Look, let me take you through the financial statements and I'll show you’. At that point Lynne said ‘I don't understand financial statements and that's why I have Vicki to help me with this sort of stuff’. I said ‘Look it's very simple, I don't have to use technical accounting terms, I can just tell you in very straightforward ways that this is what we can do’ and at that point they both shouted at me and said ‘Look we don't want to see the financial statements’. ...”

Proposed federal organisation.

31 In March or early April 2008, a meeting was held at Parramatta involving the President of Child Care NSW and the Presidents of equivalent associations in Victoria and Queensland. The Executive Officers from each association were also present, including Mr Manefield (T 21). The establishment of a federal umbrella organisation was discussed. The discussion included suggestions about possible names for the national body. Mr Manefield said this: (T 21/22)

“A. There was a discussion about the name that we could call a new national body and I proposed Early Learning Australia.

Q. What was said in the course of this meeting about that?
A. There was some general support for the idea, given that we were trying to re-brand child care as an early learning type of idea.

Q. Was there any decision taken during the course of the meeting about the name Early Learning Australia or about what would happen?
A. I thought that there was.

32 Mr Manefield added: (T 22)

“A ... I have to say, I don’t believe there was an absolute clear decision to do so, but I felt there was general support from the meeting that that be the name.”

33 In cross examination there was an elaboration: (T 35)

‘Q. And there was indeed a resolution that those present, that all agreed that they should go with ‘Early Learning Australia’ as a name for that organisation, do you remember that?
A. I don't specifically remember it as a resolution. As I said earlier, I do remember that the meeting was very much for the idea, yes.

Q. Sir, is it not the case that Mr Frank Guzmano was the one that suggested that ‘Early Learning’ needed to be included, because that was the way the government was leaning, do you remember him saying anything like that?
A. Yes, that's totally possible, yes.

34 Later, Mr Manefield gave the following evidence: (T 40)

“Q. But so far as you knew, sir, there had been nothing from the three organisations that had previously proposed this idea to suggest to you--

HIS HONOUR: Sorry, that question, the three organisations had proposed the idea, I thought he said he proposed it.

Q. Is that right, the original meeting was it you who proposed?
A. In the meeting of April, yes. I mean, Frank Guzmano actually mentioned Australian Early Learning, we were brainstorming ideas for a name at that stage, right, because the organisation didn't exist, we were about to form at that stage a new organisation, your Honour, and we were brainstorming some ideas around a name.

35 The issue was pursued by counsel for the defendant, by reference to a document, suggested to be Minutes of the meeting (T 41). The Minutes were not shown to Mr Manefield. They were not his document. Indeed, he said that he had not seen them (T 41). They were not tendered. The following exchange took place: (T41)

36 After the meeting, Mr Manefield spoke to the President, Ms Connolly, as follows: (T 22)

37 Mr Manefield, in cross examination, added: (T 39)

“Q. I'm sorry, sir, what you understood was what she told you was no more than her personal view?
A. You mean when she told me not to go ahead and register the name because she didn't like it, is that what you mean?

38 Mr Manefield acknowledged that nothing was said by the representatives of the Victorian or Queensland associations (T 39).

Termination of Mr Manefield.

39 On Friday 9 May 2008, Mr Manefield was asked to attend a meeting of the executive committee (Ex C). Three members of the executive, the President, the Vice President and Ms Nesha O’Neill, were present, together with Mr Peter Rochford, the Industrial Advocate for the association. Mr Rochford said that Mr Manefield was not doing the work he had been employed to do and would be dismissed (T 23). Mr Manefield described his response in these words: (T 23)

“A. Well, I said that the main concern had appeared to be the financial viability of the organisation and that I had attempted on a number of occasions to discuss directly with Miss Connolly and Miss Skoulogenis that in fact I believed that the organisation was not only viable, it had significant reserves and working capital and I was able to demonstrate so. I also reminded that particular meeting that I had also presented a board paper in early 2008 which outlined the financial situation of the organisation and that at that time the executive committee seemed very comfortable because when I offered to provide cash flow forecasts they said it wasn't necessary, they were happy with the way things were going. “

40 On the following Monday, 12 May 2008, Mr Manefield sent an email suggesting a “way forward” (Ex G). He accepted the criticism that he needed to spend more time raising revenue and less time managing staff. Since the principal concern appeared to be finance, he made the following suggestion: (Ex G)

“1. We need to get the Auditor to quickly review the current state of the finances. This will enable us internally to have a clear and independent perspective on where we are at financially. ...”

41 The next day he received an email from “Lyn and Vicki” that indicated that his employment relationship with Child Care NSW executive had “irrevocably broken down”. On 16 May 2008, his termination was confirmed by letter and he was provided with his termination pay.

The establishment of Early Learning Australia.

42 Mr Manefield remained passionate about early childhood learning. After his termination, he spoke to a number of people in the industry whom he knew well. They included Ms Elke Small, who ran a childhood consultancy team, Mr Collin Mead, who owned a childhood centre and was a member of Child Care NSW. They and others decided to establish a company, limited by guarantee, that would provide specific services in the area of child care. Mr Manefield described the concept in these words: (T 24)

“Q. Now, after the termination of your employment with Child Care NSW, Mr Manefield, did you advance the concept of Early Learning Australia?
A. Yes.

43 In a draft letter, to which I will shortly make reference, Mr Manefield described the nature of the services he saw Early Learning Australia providing, in these terms: (Ex B)

“Early Learning Australia has been formed to support the development and improvement of integrated Early Learning Services that meet the needs of Australian children and their families.

There are three key ways we plan to do that:

1. Firstly, by working with all levels of government to develop consistent national standards for all types of Early Learning.

We also need to ensure that services are developed only where there is a real need. This will require a coordinated planning approach across all levels of government.

This two pronged approach is essential to ensure that high quality, affordable (services) are accessible to all Australian families in a way that communities can support.

2. Secondly, by providing services and products to Early Learning services all over Australia to make it easier for them (to) deliver the high quality Early Learning programs that they do. These services and products will cover the necessities, as well as innovative items that will further enhance the Early Learning programs in these services/centres.

We will use the buying power of 8000+ Early Learning services to obtain great deals from suppliers.

3. Thirdly, by developing systems and training for service operators to show them how to run multiple services types within their service and integrate those services with playgroups, health services and parenting support.”

44 The company limited by guarantee under the Corporations Act 2001 (Cth) was registered, with the name “Early Learning Australia” (T 24). It was to be a national body, rather than an association registered under the New South Wales Act. Mr Manefield was appointed its Executive Officer, although without salary until such time as the company could afford to pay him. He began meeting possible partners in a range of services required by those engaged in child care, including paying child care fees online, selling nappies at good prices and so on (T 24).

A planned media launch.

45 Mr Manefield and those associated with Early Learning Australia saw themselves as working in co-operation with Child Care NSW and equivalent associations interstate, as well as other organisations concerned with child care. He thought it prudent to write to each of these organisations, including Child Care NSW, in advance of the planned media launch, identifying the concept. His letter was despatched on Friday 4 July 2008, almost two months after his termination. It was framed with the following purpose in mind: (T 25)

46 The letter of 4 July 2008 opened with these words: (Ex B)

“Early Learning Australia has been formed to support the development and improvement of integrated Early Learning Services that meet the needs of Australian children and their families.

The idea of integrating different childrens services with playgroups and health professional services is not new. There are a number of places where this is already happening. These ‘one-stop-shops’ or ‘childrens service hubs’ have been operating for some time.

As well, many Long Day Care centres have been networking with their local health professionals for many years. As a result, many children have benefited from early detection of developmental issues and their lives (and the lives of their families!) have been greatly improved.

But all of this is ad-hoc and there is no national framework to ensure that such benefits reach all Australian children – not just the 21.1% of 0-5 year olds that attend Long Day care centres.”

47 Reference was then made to a speech of Prime Minister Rudd, where he spoke of the creation of high quality, affordable, parent/child centres, “one stop shops for parents with young kids”. The letter then described the services that Early Learning Australia intended to provide: (Ex B)

“Early Learning Australia wants to provide those Early Learning services/centres with the information they need to make informed decisions on the best way for them to participate in the emerging integrated Early Learning services model.

We believe that the best way for all of this to happen is for us to work with your association, and the associations representing the other service types, to develop the resources and systems to help service operators develop an integrated model that works for their community.”

48 The letter concluded by making reference to a draft letter that Early Learning Australia intended to send to service operators. It said this: (Ex B)

“To give you a sense of how we intend to communicate this idea to the Early Learning services around Australia, I have attached a draft letter to service operators.

I will call in the next few days to set up a mutually convenient time to meet with your Executive Committee to discuss the opportunities for working together.

In the meantime, if you have any questions please call me on 0408 974 454.”

49 Reference has been made to the draft letter (supra [43]). Having set out the specific areas in which Early Learning Australia would be offering services, it described its philosophy in these terms: (Ex B)

“Early Learning Australia believes that these support networks should be developed and supported at the national level by government and the health professional associations related to early childhood health.

Early Learning Australia also supports the view that all types of Early Learning services need to work together to develop a strong voice on behalf of the children and families that benefit from attending their programs.

That is why Early Learning Australia is a national organisation that welcomes members from any state/territory, any service type and any ownership type (ie community based or private).

Those who engage in argument and derogatory comment based on state-based issues or whether a centre is privately owned or community owned are missing the point.

Only if we all work together to advocate for changes to the current system that support Early Learning programs will we achieve a consistent, accessible Early Learning framework for all Australian children.

Early Learning Australia exists to support that objective. We look forward to working with you.”

50 The defendant lost no time in responding. On the following Monday, 7 July 2008, Child Care NSW sent the letter to all, or almost all, of its 650 members under the signature of the NSW Executive Committee. For convenience, in this chronological survey of relevant material, I repeat the letter forwarded by the association to its members. I have identified each paragraph with a number so that the text may be readily referred to in the discussion that follows: (Ex A)

1. As some of you may be aware, Mr Bruce Manefield is no longer in the position of Executive Officer of Child Care NSW.

2. A decision to terminate Mr Manefield’s services was taken by the Executive following a meeting between nominated representatives of the Executive and our Industrial Relations Advisor, Mr Peter Rochfort, with Mr Manefield on Friday 9 May, 2008.

3. Members should be advised that Mr Manefield remains under ongoing duty of confidentiality to the Child Care NSW in terms of information to which he has become privy by virtue of and during the course of his employment, relating to the affairs, both financial and commercial, of the Child Care NSW and of its members. This information includes, but is not limited to, membership lists. We have reason to believe that Mr Manefield is in the process of contacting members, and we suspect that he is availing himself of confidential information in order to do so.

4. Members are advised to respond cautiously to any approach by Mr Manefield, or any person acting in connection with Mr Manefield, particularly given the legal ramifications which may arise.

5. Your Executive is conscious of the difficulties which Child Care NSW has faced over the past couple of years, which have impacted in one way or another on all of us. We are now taking the steps necessary to resolve this impact and to see Child Care NSW restored to the pre-eminent position it holds in the child care community.

6. The infrastructure of Child Care NSW and its ability to represent our membership effectively remains sound. However, in order to achieve our objectives, the Executive continues to rely upon the support of you, the membership.

7. There are a number of looming challenges, particularly given the priorities of the (relatively) new Federal government. There is a lot of impetus being given to changing the regulatory basis under which the industry operates, including, for example, the industrial framework.

8. We have at our disposal, the infrastructure, the resources and the personnel which will enable and equip us to face the challenges ahead far better than any alternative body, and we ask you not to be deluded into thinking otherwise.

9. We, the Executive, invite you to refer any contact from Mr Manefield, or any entity with which Mr Manefield is associated, to any member of the Executive, who will respond as necessary.

10. We are also contacting Mr Manefield directly to remind him of his legal obligations.

Kind Regards

Child Care NSW Executive Committee”

51 Mr Manefield had no advance warning. Although he had provided his mobile number in the letter he had sent the previous Friday, no-one from Child Care NSW telephoned him beforehand, or at any stage (T 25). On the day of his termination he left his laptop in the office (T 25). He did not retain any membership list or any confidential material. He first learned of the publication on 10 July 2008, in circumstances that I will later describe.

52 The letter from Child Care NSW stated in its final paragraph that it would be contacting Mr Manefield to remind him of his legal obligations. No such contact was made. No letter was received. However, the defendant, on discovery, disclosed the following draft letter, that was never sent: (Ex D)

I have received your e-mail promoting the concept of Early Learning Australia (ELA).

I place you on notice that Child Care New South Wales (CCNSW) requires you to immediately cease and desist from any further activity in the name of Early Learning Australia. By your doing so, it is our view that you are acting in breach of the confidentiality provisions which comprised part of the terms and conditions of employment with CCNSW insofar as you are using confidential information gained by you whilst in the said employ, information which is not otherwise available.

The information being used clearly and unambiguously paraphrases decisions taken by CCNSW and others in meetings which were held privately and intended to be availed by the various Associations participating in the meeting, and not for the persons attending the meeting who were in attendance in order for them to fulfil their administrative responsibilities only.

You are placed on further notice that unless we receive your unequivocal and irreversible undertaking that you will cease your soliciting child care operators in the way you are doing at present, CCNSW will commence legal action against (you) seeking to obtain an injunction restraining you from further activity which (is) in breach of your obligations to observe an ongoing duty of confidentiality, together with an order for payment (of) the costs involved in taking such action and for damages to the extent they are identified.

Yours sincerely,

53 The letter is relied upon by the plaintiff in its case on malice, which I will deal with below.

54 Against that background, let me turn to the first issue, namely whether the imputations were conveyed.

Were the imputations conveyed?

55 The test is well known, but worth repeating. The attributes of the ordinary reasonable reader were summarised by Hunt J in Farquhar v Bottom [1980] 2 NSWLR 380: (at 386)

Lewis v Daily Telegraph Ltd

Jones v Skelton

Lang v Australian Consolidated Press Ltd

Lewis v Daily Telegraph Ltd

Morgan v Odhams Press Ltd

Lang v Australian Consolidated Press Ltd

Middle East Airlines Airliban SAL v Sungravure Pty Ltd

56 Imputation (a) is in these terms:

(a) The plaintiff is an untrustworthy person prepared to use devious and underhand means to take members away from the defendant.

57 In support of the submission that the matter complained of would provide the ordinary reasonable reader with that meaning, the plaintiff relied especially upon paragraphs (3), (4) and (10). Paragraph (4), according to the plaintiff, was an instinctive warning to members that they should respond cautiously to Mr Manefield, it being suggested that he was ignoring his legal obligations and was untrustworthy.

58 The defendant did not make submissions in respect of each imputation, beyond an assertion that no such imputations had been conveyed. Whilst the defendant acknowledged that the material was capable of giving rise to each imputation, it said that only a reader avid for scandal would draw from the letter any of the meanings asserted by the plaintiff.

59 Dealing with these arguments, and rearranging the imputation, it can be broken down into the following elements:

First, that Mr Manefield had the objective of taking members away from the defendant.

Secondly, that in doing so, he was prepared to use devious and underhand means.

Thirdly, that Mr Manefield was thereby demonstrated to be an untrustworthy person.

60 Dealing with the first element, the letter as a whole certainly gives the impression that the association felt itself under threat. It had “over the past couple of years” faced difficulties, which had impacted on everyone. The executive was conscious of those difficulties (para (5)). There were a number of looming challenges (para (7)). Nonetheless, the executive reassured its members that it had the ability to continue to represent them “far better than any alternative body”. The letter included:

far better than any alternative body,

and we ask you not to be deluded into thinking otherwise

61 The words emphasised are important. The fear was competition from an alternative body. Mr Manefield, members are told, is in the process of contacting members (para (3)). They are advised to “respond cautiously” (para (4)). Indeed, members should refer any contact to the executive, who will respond as necessary (para (9)). They should not be deluded into thinking that Child Care NSW is incapable of meeting the challenges ahead (para (8)).

62 The ordinary reasonable reader, I believe, would infer that Mr Manefield’s objective was to undermine, and ultimately replace, the association by attracting its membership. The first element is established.

63 The second element involved the means Mr Manefield was prepared to employ to obtain his objective. The imputation uses the words “devious” and “underhand”. One meaning of “devious” is “not straightforward, tricky, deceptive and deceitful” (Macquarie Dictionary). “Underhand” is “not open and above board, but secret crafty or dishonourable, slyly”. Here, notwithstanding the use of the word “suspected”, there is the clear impression that, having been dismissed from the job, Mr Manefield had available to him and was using information that was confidential (para (3)). It is information he should not have had. Having such information, and using it, was deceitful. He was acting improperly, such that there may be legal ramifications unless caution were exercised (para (4)). Further, in his contact with members, he may delude them into believing that the association was unable to cope with the challenges that lie ahead (para (8)). The implication is, that to engender such delusions, he would provide misinformation or would lie about the association, when the truth was that the association had the infrastructure, the resources and personnel to meet those challenges. Such conduct may be described as “devious” and “underhand”. The second element, I believe, has been established.

64 The third element is simply the product of the first two. Mr Manefield, in such circumstances, is a person who can accurately be described as untrustworthy. That is, he is not worthy of their trust, such that caution should be exercised should he approach. Members, exercising caution, should refer him to the executive, so that they may respond.

65 I accept that Imputation (a) has been conveyed.

66 Imputation (b) is in these terms:

(b) The plaintiff is a dishonest person prepared to deceive the defendant’s members.

67 The plaintiff, in support of this imputation, relied especially upon paragraphs (3), (4) and (8) set out above. It was submitted that the word “deluded” was a synonym for “deceived”. Hence, it was being suggested that Mr Manefield was a deceitful person, a dishonest person, endeavouring to delude members of the association concerning the capacity of the association to meet the challenges of the future.

68 So the elements of Imputation (b) are:

First, that the plaintiff is a dishonest person.

Secondly, and he is a person prepared to deceive the association’s members.

69 Dishonesty is different from, although kindred to, untrustworthiness. Mr Manefield was subject to an ongoing duty of confidentiality in respect of financial and commercial information to which he had been exposed (para (3)). He was suspected of improperly using such information (para (3)). His abuse was not limited to membership lists. It extended to other financial and commercial information that was confidential, and that he was bound to keep confidential. He was about to be reminded of his legal obligations. There may be legal ramifications in dealing with him (para (4)). Members should therefore respond cautiously to any approach (para (4)). The ordinary reasonable reader, I believe, on the basis of this material, would have the firm impression that Mr Manefield was dishonest. To have confidential information in his possession after his termination, and to use it, was dishonest.

70 Dealing with the second aspect, (although relevant also to dishonesty) paragraph (8) sets out the association’s fear, were members incautiously speaking with Mr Manefield. He is likely to spread misinformation or to lie to them, representing that an alternative body can better meet their needs than Child Care NSW. It asks members “not to be deluded” by his representations. The ordinary reasonable reader would, I believe, have the firm impression that Mr Manefield was prepared to deceive them as to the capacity of the association to deliver. Imputation (b), in my view, is conveyed.

71 Imputation (c) is as follows:

(c) The plaintiff had attempted to deceive members of the defendant.

72 The plaintiff particularly relied upon paragraph (8) to establish this imputation, in the context of the letter as a whole.

73 What evidence is there, within the letter, that the plaintiff had already acted to deceive members? Reference has been made to the threat the executive of the association perceived, that Mr Manefield was seeking to take members from the association (supra [61]). Paragraph (8) anticipates his modus operandi, that by misinformation or lies, by what is colloquially known as “white anting”, he would attempt to delude members into believing that the association could not meet the challenges of the future. The letter states that the executive had reason to believe that Mr Manefield “was in the process of contacting members” (para (3)). So the process of deception had begun, requiring caution (para (4)). Members were counselled to refer any contact from Mr Manefield or his organisation to a member of the executive. Applying the test, I accept that the imputation was conveyed.

74 Imputations (d) and (e) may conveniently be dealt with together. They are:

(d) The plaintiff had breached the obligation of confidentiality which he owed to the defendant.

(e) The plaintiff had breached his legal and contractual obligations to his former employer.

75 The plaintiff, in argument, relied especially on paragraph (3) in respect of Imputation (d) and the last sentence of that paragraph. In respect of Imputation (e), the plaintiff pointed to paragraphs (3), (9) and (10) as being especially relevant.

76 Dealing with these imputations, they refer respectively to a breach of the obligation of confidentiality (Imputation (d)) and a breach of Mr Manefield’s “legal and contractual obligations to his former employer” (Imputation (e)). So there are three concepts, confidentially, legal obligations and contractual obligations. The letter refers to the duty of confidentiality (para (3)) and the legal obligations that Mr Manefield is to be reminded of (para (10)). There is no reference, as such, to “contractual obligations”. There is, however, a reference to the duty of confidentiality arising from information received “in the course of his employment” with the association (para (3)). The ordinary reasonable reader would understand that he was under a contractual obligation to maintain secrecy. He should not be in possession of confidential information, having been terminated and left the association’s employ.

77 Paragraph (3), however, is framed in terms of “we suspect that he is availing himself of confidential information”. It does not assert, in terms, that he had breached his obligations of confidentiality or his legal and contractual obligations to his employer. Would the ordinary reasonable reader, reading between the lines, nonetheless understand that he had done so? The reader is told that he was terminated (para (2)). He or she is also told that he was privy to confidential information, financial and commercial (para (3)). The reader is told that the information included, but is not limited to, membership lists (para (3)). There was also reference to the fact that he was in the process of contacting members (para (3)), and that the executive suspected he was availing himself of the confidential information in doing so (para (3)).

78 The ordinary reasonable reader would also understand that Mr Manefield, having been terminated, is now on his own. He would naturally conceal his possession of confidential information and the fact he was using it. I believe the reader would also assume that the Executive Committee had put 2 + 2 together. It was obvious what he was doing. Accordingly, the Executive Committee had resolved to remind him of his legal obligations (para (10)). Members, meanwhile, were advised to respond cautiously to his approach, “particularly given the legal ramifications that may arise”. They were invited to refer any contact from Mr Manefield, or his organisation, to the executive.

79 I believe the ordinary reasonable reader would take away the clear message that Mr Manefield had breached his obligations of confidentiality and his legal and contractual obligations to his former employer. The imputations are conveyed.

80 Finally, Imputation (f) is in these terms:

(f) The plaintiff by his mismanagement and incompetence had damaged the standing of the defendant in the childcare community and created the difficulties which it had faced.”

81 In support of that imputation, the plaintiff drew attention to the opening paragraph of the letter, where it was said that Mr Manefield was no longer in the position of Executive Officer of Child Care NSW (para (1)). The decision had been taken by the executive to terminate his services following a meeting on 9 May 2008 of members of the executive with the Industrial Advocate, Mr Rochford (para (2)). The following paragraph, according to the plaintiff, is especially important:

“5. Your Executive is conscious of the difficulties which Child Care NSW has faced over the past couple of years, which have impacted in one way or another on all of us. We are now taking the steps necessary to resolve this impact and to see Child Care NSW restored to the pre-eminent position it holds in the child care community.”

82 Dealing with these submissions, the imputation identifies two things concerning Mr Manefield, that is his management and his incompetence, that were said to have had two consequences:

first, they had damaged the standing of Child Care NSW in the child care community; and

secondly, they had created the difficulties which Child Care NSW had faced.

83 There is, of course, no question that Mr Manefield managed the association. The decision by the executive, in conjunction with Mr Rochford, to terminate his services, had been taken almost two months before. The letter does not state the reason for termination. However, “terminate” is a strong word. The association did not use a softer expression such as “left our employ”, or “no longer working for us”. “Terminate” is an execution, a dismissal, swift and final. Reading between the lines, the ordinary reasonable reader would assume that he had been dismissed for incompetence or worse. The impression of incompetence, as the likely explanation, was reinforced by paragraph (5). So that his incompetence, whilst managing the association, would have been conveyed.

84 Further, I believe the ordinary reasonable reader would understand from paragraph (5) that, as a result of Mr Manefield’s mismanagement and incompetence, its standing had slipped. Having taken the first step, that is getting rid of Mr Manefield, Child Care NSW was now in the position where it needed to take steps to restore the association to the pre-eminent position it had held. The ordinary reasonable reader would understand that responsibility for the difficulties members had faced over the last couple of years could be laid at the door of Mr Manefield, through his management and incompetence.

85 I accept, therefore, that Imputation (f) was conveyed, so that all Imputations (a) to (f) were, in my view, conveyed. All were clearly defamatory.

86 I therefore turn to the defence of qualified privilege at common law.

Qualified privilege at Common Law.

87 Three issues arise in the context of qualified privilege at Common Law, as set out by Simpson J in Megna v Marshall [2010] NSWSC 686: (at [50])

“50. ... a defence of qualified privilege at common law involves three strands of inquiry:

occasion

and

relevant, germane

sufficiently connected

malice

88 Dealing first with the concept of a privileged occasion, discussion usually begins with the statement of principal by Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050:

or in the conduct of his own affairs, in matters where his interest is concerned

,

89 In Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, Gaudron, McHugh and Gummow JJ restated the principle in these terms (identifying Adam v Ward (1917) AC 309 at 334, per Lord Atkinson and Toogood v Spyring (supra) as the sources): (at [62])

“The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified – hence the name qualified privilege – by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.”

90 Here, the suggestion is a “community of interest” between the association and its members. In Hunt v Great Northern Railway Co [1891] 2 QB 189, Lord Esher MR said this, in respect of such a case: (at 191)

“... The occasion had arisen if the communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When those two things co-exist, the occasion is a privileged one, and the question whether it was or was not misused is an entirely different one.”

91 “Interest”, as the defendant points out, is broadly defined. In Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366, Gummow J said this: (at [148])

Howe & McColough

‘The word ‘interest’, as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is ‘interested’ in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news.’

In the same case, Higgins J justified the existence of a requisite interest on the part of the recipients of the defamatory communication in the following way:

‘When information is given to these men as to the solvency of a buyer, it is not given to them as idle gossip; it is for solid business uses.’”

92 In Bashford Gleeson CJ, Hayne and Heydon JJ noted that the principles are stated “at a very high level of abstraction and generality” (para [10]). Expressions such as “public or private duty, whether legal or moral” and “the common convenience and welfare of society” (and one may add “community of interest”), are very broad concepts and difficult to apply (para [10]). Definition and guidance are to some extent provided by two concepts, the first being the need to have regard to the “circumstances of the case” and the second, “the public interest”. As to the first, Dixon J in Guise v Kauvelis (1947) 74 CLR 102, said this: (at 116)

“The very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication.”

93 As to the need to consult the public interest, Jordan CJ in Andreyevich v Kosovich (1947) SR (NSW) 357, said this (referring to the defendant): (at 363)

“... it was necessary that they should show by evidence that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party.”

94 More recently, the public interest was given some prominence (as I will later describe) in Aktas v Westpac Banking Corp Ltd [2010] HCA 25, by the majority (French CJ, Gummow and Hayne JJ). Reference was made (at para [22]) to Justin v Associated Newspapers Limited ((1966) 86 WN (Pt 1) (NSW) 17 at 32; (1967) 1 NSWR 61 at 75). Walsh JA, in that case, said that the “broad principle” underlying qualified privilege is that occasions exist in which it is desirable, as a matter of public policy, that freedom of communication should be given priority over the right of the individual to protection against loss of reputation.

95 But, even after using “the circumstances” and the “public interest” to refine the issue, large choices remain concerning an appropriate level of abstraction when dealing with:

whether there is a community of interests between the publisher and the recipients, and

whether extending the privilege to such circumstances is in the public interest.

96 The difficulties are illustrated by Bashford (supra) which concerned a newsletter on occupational health and safety published to subscribers. A company controlled by Bashford and his wife was found, by the Federal Court, to have been liable to pay damages and costs. The publishers of the Bulletin reported the case, referring to Mr Bashford, rather than his company, thereby defaming him. The publishers, in their defence, relied upon qualified privilege at common law. Gleeson CJ, Hayne and Heydon JJ took a broad view of the community of interest between the publisher and subscribers. They said this, referring to the leading judgment in the Court of Appeal: (at [12])

“[12] In the Court of Appeal, however, a deal of attention was directed to identifying the circumstances which made the occasion of publication a privileged occasion. Five features of the circumstances of publication were noted by Hodgson JA who, in this respect, stated the reasons of the Court. First, occupational health and safety was identified as a matter of importance for the common convenience and welfare of society. Secondly, the communication of matters relevant to that issue to persons responsible for occupational health and safety was said to promote that common convenience and welfare. Thirdly, it was noted that the respondent’s publication was a subscription periodical distributed to persons responsible for occupational health and safety, and not to a wider audience. Fourthly, it was said that having accepted subscriptions, the respondent was morally and legally obliged to publish for its subscribers matters of significance on the topic. Finally, it was said that the Federal Court’s decision on the claim made by ACOHS for damages for contravention of s 52 was a matter of significance on the topic of occupational health and safety.”

97 Thereafter, in addressing the issues arising under qualified privilege, their Honours said this: (at [23]-[24])

“[23] Was there, in this case, that reciprocity of duty or interest between maker and recipient of the matter of which complaint was made which would make the occasion of its communication privileged? What legal, social, or moral duties or interests were engaged between the respondent as publisher and those subscribers to whom it published its Bulletin?

[24] The respondent described its Bulletin, on the masthead of the publication and in the advertising material it distributed, as a ‘plain English guide to workplace health and safety’. The subscribers to the Bulletin were persons responsible for health and safety in the workplace, not any wider audience. By accepting subscriptions, the respondent undertook to publish a periodical of the kind it described – a guide to workplace health and safety. The subject of the guide was rightly identified in the Court of Appeal as important to society as a whole. The dissemination of information about that subject to those responsible for it was rightly held by the primary judge and the three judges in the Court of Appeal as advancing the common convenience and welfare of society. ...”

98 McHugh J (diss), on the other hand, said this: (at [37])

“[37] The majority decision holds that an occasion of qualified privilege arises when matter is voluntarily published to subscribers concerning a subject of public interest, if the subscribers have a business or professional responsibility for that subject. If they have that responsibility, the occasion is privileged even where, as here, the subject matter is described at a high level of abstraction – ‘occupational health and safety’ or a ‘guide to workplace health and safety’. It is possible to imagine more abstract statements of a subject of public interest, but there is certainly nothing concrete in the description of the subject matter in this case. Thus, the majority decision appears to protect the extensive publication of defamatory statements, true or false, that can be related to a widely defined subject of public interest when they are published to persons who have some responsibility for matters falling within the subject of interest.”

99 Moving to the second issue, that is the need for the defamatory statement to be relevant to the communication which is privileged, Jordan CJ in Mowlds v Fergusson (1939) 40 SR (NSW) 311, having identified the circumstances in which an occasion of qualified privilege arises, said this, referring both to relevance and the malice which will destroy the privilege: (at 318)

“... and if he restricts himself to a communication which is capable of serving the purpose of the occasion and is made with no other object than that of serving that purpose, he incurs no liability for libel or slander to any person of whom his communication may be in fact defamatory. ...”

100 In Adam v Ward (supra [89]), Earl Loreburn referred to the issue of relevance in these terms: (at 320)

“But the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. ...”

101 His Lordship stated the issue of relevance in these words:

“... whether or not the defendant has published something beyond what was germane and reasonably appropriate to the occasion ...”

102 Lord Dunedin, in the same case, said this: (at 327)

“If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, though the result may be the same, that the defamatory statement is evidence of malice.”

103 Simpson J in Megna v Marshall (supra [87]) illustrated the concept with the following example: (at [72])

“72. The relevance principle may be illustrated in this way: ordinarily speaking, discussion during the course of a Council meeting would attract privilege. The occasion confers a privilege upon the members of the Council, so that they may freely, openly and honestly exchange information and express views on matters relevant to Council business. For that purpose, the occasion is privileged. But the privilege conferred on specific communications is limited to those that are relevant to or have the necessary connection with Council business. If a defamatory statement is made that is not relevant to the business of the Council, while the occasion may be privileged, the specific communication is not. ...”

104 The focus is upon the imputation and whether it falls within the umbrella of the privilege, or whether the imputation is not relevant and, therefore, not covered by the defence (Bashford (supra [91]), per Gummow J at [135]). The umbrella of qualified privilege arises through the necessary reciprocity of interest and duty between the publisher and recipient. That being the context, Tobias JA in Fraser v Holmes [2009] NSWCA 36, said this: (at [37])

truly unconnected

Bashford v Information Australia (Newsletters) Pty Ltd

germane and reasonably appropriate to the occasion.

105 Most of these formulae for identifying relevance can be traced to the speeches in Adam v Ward (supra [89]). In Bashford, Kirby J said this: (at [194])

“194 All of these formulae are attempts to define the boundaries of discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case a judgment is evoked. ...”

106 Although relevance is a requirement and a separate question, the introduction of extraneous matter upon a privileged occasion may also afford evidence of malice (Adam v Ward (supra [89]), per Lord Finlay at 318). I will deal with the issue of malice below.

107 The defendant has the onus of establishing that the defamatory imputations were published upon a privileged occasion and were relevant to that occasion. But once these requirements are satisfied, a number of things flow. First, the contents of the communication are protected, including the defamatory imputation, whether they be true or false and whether “harsh or hasty” (Huntley v Ward (1959) 6 CB (NS) 514 at 517), whether reasonable or unreasonable (Roberts v Bass (supra [89]), per Gleeson CJ at [14]). The privilege protects the communication whether “it be expressed as a fact or as an opinion” (Megna v Marshall (supra [87]) at [59]). Secondly, there is a presumption that the defendant publisher believed the truth of what was published. In Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511, Hunt J said this: (at 542)

“The common law presumes the existence of such a belief in the truth (where it is relevant) as soon as the occasion of qualified privilege has been established, and it requires the Plaintiff then to establish its absence (as constituting malice).”

Submissions of the parties.

108 It was, according to the defendant, a classic case of qualified privilege, a communication between an association and its members. No-one, apart from members, received the letter. The defendant made the following submission: (p 5)

“7 ... All the recipients would have an interest in knowing of the internal affairs of the company, its management, the capabilities and the conduct of its managers to (sic). The Plaintiff himself has established an interest between the communicator (the Defendant) and the recipients.”

109 It was also said that, apart from the reciprocity of interest, there was a duty to advise members of the termination of Mr Manefield’s employment.

110 Counsel for Mr Manefield acknowledged that, at first blush, the circumstances would appear to be a case of qualified privilege. If one assumed, for the purposes of argument, that the information conveyed by the letter were true, including the imputations, and then asked the further question whether the defendant had a duty or interest to convey that information to members, the answer would be in the affirmative.

111 However, on closer analysis, especially in light of the High Court’s recent decision in Aktas v Westpac Banking Corporation Ltd (supra [94]), there was no such occasion. First, there was no duty to apprise members of the termination of Mr Manefield. There may have been some interest in letting members of the association know of his termination in May 2008. However, by 8 July 2008, when the letter was sent, the information was stale. At that point there was no interest in members receiving that information. Its inclusion in the letter had another purpose.

112 Secondly, Aktas emphasised the distinction between the underlying facts, that create the occasion of qualified privilege, on the one hand, and on the other, the material conveyed by the communication on such an occasion. The underlying facts, to create the occasion, must exist. They must demonstrate the reciprocity of interest and the desirability, as a matter of public policy, that, in the general interests of the whole community, the communication should be made with impunity (Aktas [34]). In other words, errors can be made in a communication sent on a privileged occasion. However, the publisher cannot be mistaken concerning the facts said to exist that give rise to the privileged occasion, that is the facts that prompt the communication.

was an action in defamation by a customer of the bank who had drawn a number of cheques. The cheques were regular on their face and there were funds within the account sufficient to meet each cheque. The bank, however, dishonoured the cheques, endorsing them “return to drawer”. It did so by mistake. In an action for defamation, it relied upon the defence of qualified privilege at common law. French CJ, Gummow and Hayne JJ (forming the majority) identified the issues in these terms: (at [26])

“26 Was communication of dishonour of the cheques made on an occasion of qualified privilege? Was there an occasion where there was a duty or an interest in making and receiving the defamatory communications?”

114 The underlying fact that prompted the communication was that, through an error of procedure, Westpac determined that there was no money in the account. In that context, their Honours said this: (at [28])

“28 If there were funds to meet the cheque, and the cheque was otherwise regular on its face, there was no reason for Westpac, as the paying bank, to make any communication about the fate of the cheque. ...”

115 Having referred to the words of Jordan CJ in Andreyevich v Kosovich (supra [93]), their Honours said this: (at [32])

Bashford v Information Australia (Newsletters) Pty Ltd

164 Dealing with these possibilities, there are problems with the defendant’s argument. There was, on the evidence, no real definition concerning the role and function of the proposed federal umbrella organisation, discussed at the meeting of the New South Wales, Victorian and Queensland Child Care associations attended by Mr Manefield. Certainly the name, Early Learning Australia, had been discussed at that meeting. It may even have been incorporated into a resolution that the federal organisation, if established, should have that name. The name was an attempt to “re-brand” the service offered by child care operators, signalling that its child care centres were far more than child minders. All that may have been said, but no attempt was made in the cross examination of Mr Manefield to suggest that the services he was proposing were the very services discussed at the meeting of the projected federal umbrella organisation.

165 It may be accepted that the executive of the association wrongly believed that the name, Early Learning Australia, was confidential information, or even the intellectual property of the association. However, there is no basis, on the evidence, for the suggestion that the executive believed that the association had any legitimate claim or grievance in respect of the areas of interest Mr Manefield had identified in his letter of Friday 4 July 2008 (Ex B) (supra [43]). The ideas he canvassed, as he said himself, were not new. They were directed towards the objective described by the Prime Minister as the “one stop shop”, the multi-service hub, where all services relevant to the needs of children would be available under the one roof.

166 It appears that Mr Manefield may even have transplanted to Early Learning Australia one idea which he had attempted to implement (one gathers without success) in Child Care NSW in his time as Executive Officer. One of the services that Early Learning Australia intended to offer to child care centres was the use of bulk purchasing power in respect of recurring items, such as nappies. It will be remembered that, in the draft letter attached to the letter he sent Child Care NSW, Mr Manefield identified one of the services of Early Learning Australia in these terms: (Ex B)

“2. Secondly, by providing services and products to Early Learning services all over Australia to make it easier for them (to) deliver the high quality Early Learning programs that they do. These services and products will cover the necessities, as well as innovative items that will further enhance the Early Learning programs in these services/centres.

We will use the buying power of 8000+ Early Learning services to obtain great deals from suppliers.”

167 Mr Manefield had apparently attempted to develop similar ideas, without success, when Executive Officer of Child Care NSW. He gave the following evidence: (T 14)

“A ... The other thing that I had said that I would do when I joined the association is try to increase the revenues by providing a number of other services, such as group buying of nappies is one example, but I continued to be frustrated in that in the sense --

168 After his termination, one infers that he identified that area as an area of neglect. It therefore provided an opportunity for his new organisation. He said this: (T 24/25)

“A. Yes, well, my role was that I was the executive officer of Early Learning Australia, I was acting in an honorary capacity because there was no funds at that stage, and I was basically still living off my termination payment and my, I started then to commence meetings with possible partners of a range of services like payment services for paying your child care fees on-line, things like that, or that sold nappies so that we could get nappies at good prices for the child care centre services.

169 There was nothing whatever confidential in respect of such a proposal. There could be no legitimate objection on the part of the association to Mr Manefield, or his proposed organisation, pursuing that objective and offering it to members of the association. Indeed, you would expect the mothers and fathers who used child care centres to welcome such an initiative. It had the potential to reduce the price of common recurring items, such as nappies. You would also expect that child care centres, that is the members of the association, would be interested in such a proposal. The plaintiff submitted, and I accept, that it was odd and instructive in these circumstances that, in communicating with members, the association said nothing concerning these and other services Mr Manefield and Early Learning Australia were hoping to market. The communication by the association to members, although a response to Mr Manefield’s letter of the previous Friday, was plainly directed towards another purpose.

170 I have accepted that the executive of the association, or the author of the letter, may have honestly (although wrongly) believed that the name Early Learning Australia was confidential information, or even the association’s intellectual property, so that it should not have been used by Mr Manefield. It is instructive to ask, in these circumstances, how you would have expected the association to have acted, had it entertained such a belief. You would have expected the association or its lawyers, in such circumstances, to have contacted Mr Manefield or Early Learning Australia asking them to change the name and undertake not to use the name, Early Learning Australia, in the organisation they intended to launch. You would not have expected the association, in pursuit of that issue, to write to members in the terms it chose, unless its objective was, as the plaintiff suggests, to poison the minds of members against Mr Manefield, so they would have nothing to do with his corporation. In other words, you would not have expected the association to write to its members in the terms it did unless its objective was to emasculate Mr Manefield’s company in advance of its projected launch, robbing it of its potential customer base.

171 There is a further matter that pointed to an improper purpose on the part of the defendant. It is, I believe, a matter of some importance. It concerns the delay between the termination of Mr Manefield on 16 May 2008, and the occasion that the association chose on Monday 7 July 2008 to apprise members of that fact (Ex A). I have held that there was, even in July 2008, a community of interest between the association and its membership advising members that Mr Manefield had been terminated (supra [140]). Nonetheless, you would ordinarily have expected the association to have done that some time soon after, that is in May 2008. It was relevant information. Further, if the executive believed that Mr Manefield was responsible for the decline of the association in the two years or so that he had been in charge, it was legitimate that they should say that to members and reassure them that, with his departure, the association was now on an even keel.

172 However, the association did not communicate these matters in a timely way, soon after they occurred. They did not do so until Mr Manefield resurfaced on Friday 4 July 2008, proposing an organisation, Early Learning Australia. For the reasons I have given, the circumstances and the text of the letter suggest that they saw Mr Manefield’s organisation, and perhaps Mr Manefield himself, as some sort of threat. These were the circumstances in which they chose to inform members of the events of six weeks before. But their real purpose was not to inform. Their purpose was to blacken Mr Manefield’s name so that members would have nothing to do with him. By this means they would remove the threat of competition, which they perceived that he or his organisation represented.

173 In short, I accept the plaintiff’s arguments. I accept that the occasion was used for an improper purpose and that it was the dominant purpose. It was not the communication of information to members upon matters in respect of which they had a community of interest. Their purpose was the stifling of competition, and in that they succeeded. The organisation was, indeed, still born. Mr Manefield gave up. He did not pursue his objective, because he saw that it was pointless.

174 I therefore find malice, which defeats the privilege. I turn, then, to the question of damages.

*****

2. DAMAGES

Principles with respect to damages.

175 In quantifying damages in defamation the Court is obliged to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded (s 34 Defamation Act 2005). Damages are compensatory. A plaintiff cannot be awarded exemplary or punitive damages (s 37). There is a single cause of action in relation to the publication, even where, as here, that publication gives rise to more than one defamatory imputation (s 8). A single verdict is appropriate. The maximum award for non economic loss, that is general damages, is $311,000 (s 35(1) and (3)), absent circumstances that warrant an award of aggravated damages (s 35(2)).

176 Upon publication, damage is presumed. An award of general damages serves three purposes, the first being to compensate the person defamed for the harm to his reputation. The second is to compensate for the hurt to his feelings, and the third is to vindicate his reputation, by showing the falsity of the allegations made against him (Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 60/61). The amount awarded operates simultaneously in respect of all three purposes (Carson, per Brennan J at 72).

Damage to reputation.

177 Mr Manefield, at the time of publication, was a man aged 45 years. From about 1992, he had significant exposure to the child care industry through his five children. His children attended Kindergarten Union, community based centres. At the urging of the Director of the pre-school his oldest son attended, he sought a position on the board of Kindergarten Union (supra [7]). He was made a board member in 1994 and the President of the Kindergarten Union in 2001 (supra [7]). He remained President until shortly before his commencement with Child Care NSW in February 2006 as its Executive Officer.

178 The position of Executive Officer with the defendant was his first paid position in the industry (T 32). His salary package was approximately $100,000 per annum, including superannuation and benefits. He acknowledged that, before joining Child Care NSW, his reputation in the child care industry was amongst community based organisations (T 45).

179 The publication was limited to the 650 or so members of the association. The letter was first drawn to Mr Manefield’s attention on 10 July 2008 by Mr Colin Mead, one of the Directors of Early Learning Australia. Mr Mead owned a child care centre and had received it by email (T 26). A couple of days later, Ms Nesha O’Neill contacted him. She said that she had received the letter from the association, both by email and then through the post. She said that she was dumbfounded and astonished that the association could be so stupid (T 29). Mr Manefield, in that context, said this: (T 29)

“A. Well, I felt a little bit supported by that in the sense that I agreed with that, it seemed a rather reckless thing to do, but I didn't feel that much better, because the letter was out and it was clear that, you know, she heard, Nesha told that she heard that other people had received it, they had rung her and asked her what it was about.”

180 Mr Manefield also gave the following evidence: (T 29)

“Q. Right; did anyone else contact you, did anyone else say anything to you about the fact that they'd received the letter, received and read the letter?
A. Well, yeah, about five months ago I met a guy I knew on the street who'd been doing some admin work. The first thing he said when, he asked this, look, two years after they'd gone out, he said, oh, what was that very strange letter that went out about you taking a membership list?

Q. And who was that person?
A. His name was Tony Woodlam.

Q. Where's he from?
A. I knew him from the church, St John's in Parramatta, and he was an admin support person in a child care centre in Girraween.

181 Mr Manefield added: (T 29)

182 As to Early Learning Australia, Mr Manefield said this: (T 29/30)

“Q. Right; now, what happened to Early Learning Australia?
A. Well, it ground to a halt, I mean, we didn't bother going ahead, we planned to do media launches, we'd planned a series of things and we just didn't do them.

183 Although the publication was limited to the approximately 650 members of the association, counsel for Mr Manefield submitted that it was a publication to the very audience that Mr Manefield saw as his future. Publication in that context, in some respects, it was submitted, could be far more damaging than publication through the mass media about people who were unknown, from walks of life that had no particular relevance to the audience. Here, according to the plaintiff, the damage to reputation was significant. Mr Manefield gave up his passion. He recognised the reality, that he had no future in the child care industry.

184 The defendant, in contrast, said that whilst the publication may have hurt Mr Manefield’s feelings, there had been no damage to his reputation. No witnesses had been called on his behalf on the question of reputation. There was no evidence from which it could be inferred that the plaintiff had been shunned or avoided. The defendant said this: (p 2)

“8 The Plaintiff gave evidence of conversations with three people, none of whom were called to give evidence that they believed the allegations in the letter to be true and thought the less of the Plaintiff. Indeed the evidence of their reaction to the matter complained of could be understood to be evidence that they did not believe the allegations made in the matter complained of.

Nesha O’Neill

Colin Mead –

Tony Woodlam –

185 The defendant acknowledged the presumption of damage. However, counsel submitted that it was “not absolute and has its limits”. The submission continued: (p 1)

Jameel v Dow Jones

186 In argument, counsel for the defendant drew attention especially to paragraphs [55] to [60] in Jameel v Dow Jones. Paragraph [55] is in these terms: (at 966)

Human Rights Act

187 That introductory paragraph, referring to statutes having operation in the United Kingdom, makes it clear that the material that follows has no relevance to this trial. Mr Manefield certainly sustained damage to his reputation. I accept the plaintiff’s submission (supra [183]) that, although the audience was limited, the damage was considerable, because it was the audience he needed to impress if he was to have a future in the child care industry. He quickly recognised, after what had been said about him, that he had no future.

188 Let me move to the evidence in respect of the hurt to his feelings.

Hurt to feelings.

189 Having been told of the letter, Mr Manefield received a copy by fax. He provided his reaction in these words: (T 26)

190 He added: (T 26/27)

“Q. How did you feel about that?
A. Well--

OBJECTION; OBJECTION WITHDRAWN

A. Yes, right, well, I was upset, I mean, I thought that was, especially given that I'd actually handed out effectively an olive branch to say look, let's work together on this, let's discuss, if there's any issue, you know, let's discuss it, and then I was told that I had effectively stolen a membership list, and it was clear to me given the way they gone about it that way that it was plain that it had gone out forwarded as a letter to child care centres, it had gone to every child care centre in New South Wales.
Q. And how did you feel about it going to every child care centre in New South Wales?
A. Well, I was devastated, because it meant that New South Wales being one of the largest states was effectively, everybody's warned off being involved in this early learning concept that we were trying to start up and, you know, I thought that was really unfair and unfortunate, that we weren't going to be able to discuss and all the work that I'd done was effectively going to go to waste.”

191 Mr Manefield was then taken to the text of the letter (Ex A) and the suggestion in paragraph [3] that he was “availing himself of confidential information in order to” contact members of the association. He said: (T 27)

“Q. The suggestion is that you'd taken a customer list, or membership list?
A. Well, the next paragraph, which makes sure I had to respond cautiously, implies that if in fact they did engage with me they would be subject to legal action themselves, and I thought that was very unfair on them, because I thought, well, even if they're interested in what we're doing they're going to stay away from it and then I thought, well, that means that they might be able to read the web site but that's about it, nobody's going to join, nobody's going to get the benefit of trying to work through ideas about how that could turn into a long day care integrated children's services hub.”

192 The plaintiff’s attention was drawn to paragraph [5], which spoke of the difficulties experienced by the association in the past “couple of” years and the steps being taken to restore it to its pre-eminent position. He gave his reaction as follows: (T 27)

“A. Well, again, it was a little bit more subtle but I felt that, I felt that in the context of the letter this implied that I had been a party to Child Care NSW going down and that, and that now that I was going that Child Care NSW could be restored to its previous, you know, pre-eminent position and I felt that reflected on me when I was, you know, I felt that I'd done a lot of very good work to try and help people understand the benefits of child care et cetera.”

193 Finally, his attention was drawn to the last two paragraphs of Exhibit A. He said this: (T 27)

“A. The last, oh, well, basically it was very clear that if anybody heard from me or any organisation I was associated with, you know, just don't talk to him, flick it back to us, flick it back to us and we'll sort him out, and again it was like, you know, just stay away from him.”

194 One by one, he denied the truth of each imputation (T 27/28). His evidence was not challenged. He spoke of the anguish occasioned by this litigation (T 30).

195 Mr Manefield described the aftermath of the letter, and his abandonment of Early Learning Australia: (T 30)

“A. Well, I was basically in a position where I had to stop doing what I was passionate about, that I'd made the decision to make early learning my field in my career in terms of at the association level, some way of helping promote, to promote early learning and the benefits it provides and it was basically stopped and I'd been, basically everybody in New South Wales thought I was a dishonest person and, you know, I was going to have a lot of difficulty.

Q. How did that make you feel?
A. Well, I was bitterly disappointed because I thought I had a lot to offer and I was, you know, I was one of the few people who had commercial background and experience who could help promote the early learning sector, you know, at the government level.

Q. Did you obtain, are you working, withdraw that, you're not working in the child care centre industry now, are you?
A. No. No, I'm basically a manager helping manage a small internet company selling green slips and travel on-line.

196 Later, Mr Manefield gave the following evidence: (T 31)

197 He added: (T 31)

“Q. And how did you, that fact that it hasn't happened, how did it make you feel?
A. Well, it's a dreadful shame, there are children who now have been, missed the opportunity to get a better life as a result of that. It's a bold statement but the evidence is there, and they will, they will have lives of crime and difficulty, drugs, that they didn't need necessarily to have.”

Aggravated damages.

198 To justify an award of aggravated damages, the aggravating conduct of the defendant must be improper, unjustifiable, or lacking in bona fides (Trigell v Pheeney (1951) 82 CLR 497). Such conduct justifies an increase in the damages awarded. The damages are compensatory in nature. The misconduct must have caused additional harm to the plaintiff. Sometimes the harm will be in the nature of an increase in the emotional distress caused to the plaintiff by the publication. It may, in addition, enlarge the reputational damage suffered.

199 The plaintiff identified a number of bases upon which aggravated damages were claimed. They were:

First, his knowledge of the falsity of the imputations.

Secondly, the malice of the defendant in seeking to harm him by publication of the matter complained of.

Thirdly, the late application by the defendant to amend its defence, to assert truth in respect of certain imputations.

200 Each of these matters was said to have increased the hurt occasioned by the publication.

201 The defendant’s conduct, in publishing its letter to members (Ex A) to ensure that Mr Manefield’s proposed corporation never became airborne, was unjustifiable. I accept that the imputations were false to his knowledge and that that increased his hurt. I also accept that the hurt was aggravated by his knowledge that the defendant had set out to harm him by its publication, made without consultation or warning.

202 Turning to the third particular, the defendant made an application to Nicholas J to amend its defence to allege truth and plead contextual truth. The imputations that the defendant sought to justify were:

(d) The plaintiff had breached the obligation of confidentiality which he owed to the defendant.

(e) The plaintiff had breached his legal and contractual obligations to his former employer.

203 The matter had been set down for hearing on 5 July 2010, after assurances from both parties that it was ready for trial. The trial was fixed for 22 November 2010. Nicholas J refused the application to amend. Mr Manefield said, and I accept, that the application added to his annoyance and hurt.

204 The plaintiff is entitled to aggravated damages in respect of the matters identified.

Quantification of damages.

205 The Court is obliged to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the damages awarded.

206 Mr Manefield, at the time of publication, was a man of maturity and achievement. He had been a consultant for much of his life and also a manager. He had been on the KU Children’s Services Board and had been its President for five or six years. Here, each imputation was serious. Imputations (a) to (e) attacked Mr Manefield’s honesty and integrity. Imputation (f) imputed incompetence to him. Collectively, they were a well aimed knock-out blow in respect of his ambitions to have his own operation (with other members of his Board) in the area of his passion, child care. Although no claim is made for special damages, it is unsurprising that, following the publication, he abandoned the Early Learning Australia project and left the industry.

207 I accept that Mr Manefield’s reputation in the child care industry suffered greatly. I also accept that he was very hurt by the attack that had been made upon him, and the more so because it was misconceived and utterly baseless.

208 I believe the appropriate award is $150,000 including aggravated damages.

Orders.

209 I therefore make the following orders:

1. There shall be a verdict for the plaintiff in the sum of $150,000.

2. The defendant should pay the plaintiff’s costs.

3. Liberty to apply on 2 days notice.

**********

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Citations

Manefield v Child Care NSW [2010] NSWSC 1420

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CITATION:	Manefield v Child Care NSW [2010] NSWSC 1420
HEARING DATE(S):	22-23/11/10
JUDGMENT DATE :	15 December 2010
JURISDICTION:	Common Law Division Defamation List
JUDGMENT OF:	Kirby J
DECISION:	1. There shall be a verdict for the plaintiff in the sum of $150,000. 2. The defendant should pay the plaintiff’s costs. 3. Liberty to apply on 2 days notice.
CATCHWORDS:	DEFAMATION - dismissed manager - establishing business in same industry - publication to industry - whether imputations conveyed - defence qualified privilege at common law - malice - aggravated damages.
LEGISLATION CITED:	Associations Incorporation Act 1984 (NSW) Corporations Act 2001 Defamation Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Farquhar v Bottom [1980] 2 NSWLR 380 Megna v Marshall [2010] NSWSC 686 Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Adam v Ward (1917) AC 309 Hunt v Great Northern Railway Co [1891] 2 QB 189 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 Guise v Kauvelis (1947) 74 CLR 102 Andreyevich v Kosovich (1947) SR (NSW) 357 Aktas v Westpac Banking Corp Ltd [2010] HCA 25 Justin v Associated Newspapers Limited (1966) 86 WN (Pt 1) (NSW) 17; (1967) 1 NSWLR 61 Mowlds v Fergusson (1939) 40 SR (NSW) 311 Fraser v Holmes [2009] NSWCA 36 Huntley v Ward (1959) 6 CB (NS) 514 Morgan v John Fairfax & Sons Limited (1990) 20 NSWLR 511 Weldon & Co v Harbinson [2000] NSWSC 272 Davidson v Barclay's Bank Ltd (1940) 1 All ER 316 Horrocks v Lowe [1975] AC 135 Gross v Weston [2007] NSWCA 1 Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 Jameel v Dow Jones [2005] QB 946 Trigell v Pheeney (1951) 82 CLR 497
PARTIES:	Bruce Manefield (Pl) Association of Quality Child Care Centres of NSW Inc t/as Child Care NSW (Def)
FILE NUMBER(S):	SC 2009/297613
COUNSEL:	B R McClintock SC/R de Meyrick (Pl) R Rasmussen (Def)
SOLICITORS:	Paris J Carr & Assoc (Pl) Guild Legal Limited (Def)

Para No.
1. LIABILITY
The matter complained of.	1
The issues.	3
Background.	6
Employment by Child Care New South Wales.	10
Proposed federal organisation.	31
Termination of Mr Manefield.	39
The establishment of Early Learning Australia.	42
A planned media launch.	45
Were the imputations conveyed?	55
Qualified privilege at Common Law.	87
Submissions of the parties.	108
The circumstances of the publication.	122
The question of confidentiality.	124
The public interest.	133
Express malice.	143
Submissions of the parties on malice.	149
Was there malice?	161
2. DAMAGES
Principles with respect to damages.	175
Damage to reputation.	177
Hurt to feelings.	189
Aggravated damages.	198
Quantification of damages.	205
Orders.	209