Millane v Nationwide News Pty Ltd t/as Cumberland Newspaper Group - [2004] NSWSC 853

No judgment structure available for this case.

CITATION: Millane & Ors v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 853

HEARING DATE(S): 31/08/04, 01/09/04, 02/09/04, 03/09/04, 06/09/04, 07/09/04, 08/09/04, 09/09/04

JUDGMENT DATE:
17 September 2004

JUDGMENT OF: Hoeben J at 1

DECISION: Judgment for the defendant. Plaintiffs to pay the defendant's costs of these proceedings.

CATCHWORDS: Defamation Act 1974 s15, 22, 34. Substantial truth - public interest - qualified privilege - comment by a stranger, nominal damages.

LEGISLATION CITED: Defamation Act 1974
Property Stock and Business Agents Act, 1941

CASES CITED: Allsopp v Incorporated News Agencies Co Pty Limited (1975) 26 FLR 238
Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354 @ 359
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 @ 40
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Chappell v TCN Channel 9 Pty Limited (1988) 14 NSWLR 153
Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165 @ 173
Green v Schneller [2000] NSWSC 548
Grundmann v Georgeson (Qld Court of Appeal, unreported, 18.6.1996)
Hamilton v Whitehead (1988) 166 CLR 121 @ 127
London Artists Limited v Littler (1969) 2 QB 375
Morgan v John Fairfax & Sons (No 2) (1991) 23 NSWLR 376 @ 387-8
Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749
NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Nissho Iwai Australia Limited v Malaysian International Shipping Corporation (1989) 167 CLR 219 @ 229-30
Pervan v North Queensland Newspaper Co (1993) 178 CLR 309
South Hetton Coal Co Limited v North-Eastern News Association Limited (1894) 1 QB 133
Star Hotel Holdings Limited v Newcastle Newspapers Pty Limited & Anor [2001] NSWSC 53 @ [33]-[38]
Sutherland v Stopes [1925] AC 47 @ 79
Wake v John Fairfax & Sons Limited (1973) 1 NSWLR 43 @ 47
Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697

PARTIES :
John Millane - First plaintiff
Andrew Partridge - Second Plaintiff
Mathew Partridge - Third Plaintiff
Relocorp Pty Ltd t/as Cousins & Co - Fourth Plaintiff
Nationwide News Pty Ltd t/as Cumberland Newspaper Group - Defendant

FILE NUMBER(S): SC 20213/02

COUNSEL: Mr CA Evatt/Mr CJ Dibb - 1st, 2nd, 3rd Plaintiffs
Mr CJ Dibb - 4th Plaintiff
Mr T Hale SC/Mr Henskens - Defendant

SOLICITORS: Peter R Murphy & Co -1st, 2nd, 3rd, 4th Plaintiffs
Cropper Parkhill - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

HOEBEN J

Friday, 17 September, 2004
20213/02 - John MILLANE, Andrew PARTRIDGE, Mathew PARTRIDGE and RELOCORP PTY LTD t/as COUSINS & Co v NATIONWIDE NEWS PTY LIMITED t/as CUMBERLAND NEWSPAPER GROUP

JUDGMENT

1 HIS HONOUR: The plaintiffs, John Millane, Andrew Partridge and Mathew Partridge (the personal plaintiffs) are the directors of the fourth plaintiff. The fourth plaintiff operates as a real estate agency from premises at 62A Avenue Road, Mosman under the name Cousins & Co. Mathew Partridge is a licensed real estate agent and the other two personal plaintiffs are licensed real estate salesmen.

2 They have brought these proceedings against the defendant claiming to have been defamed by an article which was published by the Mosman Daily on 2 May 2002. The article appeared partly on the front page of the Mosman Daily and partly on an internal page.

3 A trial pursuant to s7A of the Defamation Act 1974 (the Act) took place before Hulme J and a jury on 27 and 28 May 2003. The jury found that the plaintiffs had established that the article in the Mosman Daily of 2 May 2002 conveyed the following imputations:

(a) The plaintiffs changed the locks of the access doors to the flat of a Mosman couple and would not allow them access through the office of Cousins & Co after 5 pm on Monday.

4 The jury found that imputation (b) was defamatory of the plaintiffs.

5 The matter came before the Court for consideration of the defences raised and if appropriate, for the assessment of damages on 31 August 2004. It proceeded for eight days concluding on 9 September.

6 Before dealing with the specific defences, it is convenient to set out so far as possible in chronological order something of the complicated background to these proceedings.

Factual background

7 In 1989 Stuart Gilbert purchased 62A Avenue Road, Mosman. Those premises comprised at that time an office on the ground floor and a residential flat on the first floor. The upstairs premises were a protected tenancy when Mr Gilbert acquired the premises. He ran a real estate business under the name of “Cousins & Co” from the office on the ground floor. From that date until the publication of the article, except for a period of approximately six months, the upstairs premises were at all times used as a residence and were leased to residential tenants.

8 In the mid 1990’s Mathew Partridge commenced working at Cousins & Co. He did so as a real estate salesman and as an employee of Mr Gilbert. Mr Gilbert held the license as a real estate agent. Mr Partridge occupied the position of property manager

9 In December 1999 the upstairs premises became vacant. In January 2000 Stephen and Samantha Fair entered into a six months lease with Mr Gilbert in respect of the upstairs premises paying $500 per week rent. The six months lease was in writing but a copy was not tendered at trial. Ultimately the existence of this lease was not a matter in issue. Upon the expiration of that lease Mr and Mrs Fair appear to have occupied the premises on a holding over basis as monthly tenants.

10 Throughout the period that Mr Gilbert was conducting the real estate business of Cousins & Co, access to the upstairs premises was through the ground floor office of the agency. This continued between January and October 2000 in respect of Mr and Mrs Fair. I find that Mathew Partridge observed this practice over the years that he was employed by Mr Gilbert.

11 In September 2000 Mr Gilbert and the three personal plaintiffs entered into an agreement whereby the personal plaintiffs acquired Mr Gilbert’s shares in the fourth plaintiff. The sale price was $1,500,000. As part of that transaction, Mr Gilbert leased “Lot 1/SP 63993 being office, 62 Avenue Road, Mosman” to the fourth plaintiff. The lease commenced on 17 October 2000 and was for three years. I find that the personal plaintiffs were aware of the occupation by Mr and Mrs Fair of the upstairs premises at the time that they entered into the share acquisition agreement and the lease.

12 The fourth plaintiff, with the three personal plaintiffs as its directors, commenced running the real estate business of Cousins & Co from October 2000. There was no mention in the lease or share acquisition agreement of the occupation by Mr and Mrs Fair of the upstairs premises, nor of their right to gain access to those premises through the ground floor office.

13 It was the evidence of Mathew Partridge and Mr Millane that in negotiations leading up to the execution of the share acquisition agreement and lease Mr Gilbert had told them that the tenants upstairs would only remain for two months after the business was sold and that they would be vacating so that the plaintiffs would then have occupation of the upstairs premises. In the interim the plaintiffs could use the entertainment deck attached to the upstairs premises for the entertainment of clients whenever they wished. (T.11.54-58) This was denied by Mr Gilbert (T.429.4-34).

14 At the time the upstairs premises comprised two bedrooms, one of which opened onto a deck at the back, a loungeroom and an open kitchen. There were internal stairs at the rear of the ground floor office premises which led to the flat. The front door to the flat was positioned approximately half way up those stairs. In order to gain access to the flat, it was necessary for Mr and Mrs Fair to have a key to the office, as well as a key to their flat. They also needed to know the code for the security alarm which operated in the office after hours.

15 It was the evidence of the personal plaintiffs that when they entered into the lease they understood that they were leasing the whole of the building ie both ground floor and the first floor premises. (T.10.36-46) This was denied by Mr Gilbert (T.429.36-40 and T.440.47-58). No documents were tendered in the plaintiffs’ case to corroborate their evidence on this point, such as correspondence with their solicitors. Reliance was placed on the description of the “property leased” in the lease in that it referred to Lot 1 of the strata plan. It was common ground that on the strata plan Lot 1 included both the ground floor and the upstairs premises.

16 Following the sale of the business by Mr Gilbert, Mr and Mrs Fair continued to occupy the upstairs premises. It was the evidence of Mathew Partridge that when he requested from Mr and Mrs Fair access to the entertainment deck it was refused. When Mr and Mrs Fair had not vacated the upstairs premises by January 2001, he asked them on several occasions when they were vacating. No satisfactory response was received from them. Mr Mathew Partridge then raised it with Mr Gilbert on a number of occasions to which Mr Gilbert responded that he would look into it. On a date in 2001 which was not specified, Mr Partridge said that he had also referred the matter to their solicitor, Mr Paul Ward-Harvey. (T.14.13-22)

17 Mr Fair denied that he had been asked on a number of occasions when he and his wife would vacate the premises. He did recall one occasion when he was asked how long they were intending to stay in Australia. Mr Gilbert impliedly denied that any of the personal plaintiffs had raised with him the failure of the Fairs to vacate the premises within two months of the sale of the business. (T.443)

18 Apart from the difference referred to, the evidence of Mr Fair and of the plaintiffs as to their relationship during 2001 is the same. Mr and Mrs Fair continued to reside in the upstairs premises and to use the ground floor office for access. Relations between them and the plaintiffs were cordial. There do not appear to have been any disputes. It must have been obvious to the plaintiffs that Mr and Mrs Fair were continuing to pay rent to Mr Gilbert during that year.

19 A dispute arose in June 2001 between the personal plaintiffs and Mr Gilbert. The dispute related to a retention fund of $85,000 referred to in the share acquisition agreement. In accordance with that agreement, a Mr Friend was nominated in June 2001 by the President of the Real Estate Institute of NSW to arbitrate the dispute. Mr Friend consulted the parties, perused documents and delivered his decision on 6 August 2001 (exhibit 15).

20 As a result of this decision, the personal plaintiffs were obliged to pay to Mr Gilbert an amount of $8,935. How that figure is calculated is set out in the statement of claim, exhibit 5. The personal plaintiffs disagreed with that decision and refused to pay. Relations between the personal plaintiffs and Mr Gilbert deteriorated in August 2001, culminating in Mr Gilbert removing properties which he owned from the management of the plaintiffs (exhibits R and 4).

21 The dispute between the personal plaintiffs and Mr Gilbert appears to have caused the personal plaintiffs to consult their solicitors, Paul Ward-Harvey & Co, in August. The facsimile from those solicitors to the plaintiffs dated 28 August 2001 (exhibit Q) summarises the advice provided on that occasion. Importantly for these proceedings paragraph 6 reads:

“6. Removal of tenants upstairs

You are to attend to this aspect. The vendor does not have the right of occupational control of the above upstairs premises which are vested in Relocorp Pty Limited pursuant to the Lease. You are entitled to evict the tenants and I would suggest that you do it on the basis as if they were “holding over” under a short term residential lease.”

22 A significant issue between the parties was whether the plaintiffs intended the lease to cover both the ground floor and first floor of the premises and whether Mr Gilbert had made the representation which Mr Mathew Partridge and Mr Millane attribute to him that Mr and Mrs Fair would be vacating the upstairs premises within two months of the sale of the business taking place. The issues are related and I will deal with them together.

23 I did not find Mr Mathew Partridge and Mr Millane to be impressive witnesses. Their evidence was at times internally contradictory and evasive. In relation to Mathew Partridge a useful illustration is the comparison of testimony at T.60.58, T.61.1-10 and T.73.21-36. Initially Mr Partridge had agreed that he believed Mr and Mrs Fair were paying rent to Mr Gilbert and then later asserted that he had no idea if they were paying rent or not. I find their denial of any discussion of the facts of the case even for the purpose of answering interrogatories to be unbelievable and I do not accept it.

24 Where the evidence of Mr Mathew Partridge and Mr Millane is in conflict with that of Mr Gilbert and Mr Fair, I prefer the evidence of Messrs Gilbert and Fair. It was clear from the demeanour of Mr Gilbert that he had no interest in the proceedings. His problems with the personal plaintiffs had been resolved (deed of release, exhibit 18) and he was doing the best he could to accurately recall events. He had no motive to do otherwise nor was the contrary suggested to him.

25 In the case of Mr Fair he was obviously hostile to the personal plaintiffs and in some instances (to which I will refer later) may have painted their conduct in too unfavourable a light. Nevertheless, his evidence seemed to me to be generally honest and accurate and he seemed to be doing his best to provide a correct statement of his recollection of events.

26 It was argued on behalf of the plaintiffs that I should accept their evidence as to their intentions when entering the lease and as to the representation made by Mr Gilbert because it would have been an intolerable situation for persons conducting the real estate business in the ground floor premises to have persons such as Mr and Mrs Fair and their guests coming and going at all times of the day and night through those office premises. The argument proceeds that some consideration and therefore discussion of what was going to happen in relation to Mr and Mrs Fair must have occurred before the sale of the business took place.

27 I agree that it must have become a matter of increasing irritation to the plaintiffs to have Mr and Mrs Fair moving through their office premises both when the office was operating and after hours. The lack of security, particularly when guests were visiting, would be a real concern. I do not accept that this problem was necessarily appreciated by the personal plaintiffs before and at the time they acquired the business.

28 What the argument neglects is that Mr Mathew Partridge had been working in the business as an employee of Mr Gilbert for some five years before October 2000. Except for approximately six months, the upstairs premises had been occupied by tenants who would have gained access in the same way as Mr and Mrs Fair – through the office. That situation had continued with Mr and Mrs Fair between January and October 2000 when the personal plaintiffs acquired the business. I am of the opinion that the personal plaintiffs did not appreciate the problem posed by Mr and Mrs Fair having access to the office at all times until after they acquired the business and that it had not formed part of the discussions leading up to the acquisition of the business and the preparation and signing of the lease.

29 In the light of later events, when Mr Gilbert and the personal plaintiffs had their falling out, and in particular from the contents of the letters passing between their respective solicitors, I find it most unlikely that had the position of Mr and Mrs Fair come under consideration or discussion between the personal plaintiffs and Mr Gilbert, some provision would not have been made in relation to them in the agreement or alternatively in the lease. I am of the opinion that the personal plaintiffs and Mr Gilbert did not turn their minds to Mr and Mrs Fair until after the sale of the business and execution of the lease had taken place.

30 On my reading of the lease the use of the word “office” in the description of the property leased and in the reference schedule makes it clear that what was intended by the parties to be the subject of the lease was the ground floor office premises. Mr Mathew Partridge agreed that by no stretch of the imagination could it be suggested in October 2000 that the premises upstairs were used as an office. (T.82.37-40) If the personal plaintiffs thought they were entitled to upstairs, it is unbelievable that they would have allowed Mr and Mrs Fair to occupy those premises and pay rent to Mr Gilbert until August 2001 when the matter appears to have been raised for the first time with their solicitor. There would almost certainly have been correspondence between the plaintiffs’ solicitors and those of Mr Gilbert on that subject before that date.

31 It needs to be kept in mind that exhibit Q came into existence as a result of the conference between the personal plaintiffs and their solicitor in the context of the dispute with Mr Gilbert. I see the raising of the question of what was the subject of the lease in that conference as being an opportunistic attempt by the personal plaintiffs to take advantage of what they perceived to be an ambiguity in the lease for the purpose of assisting them in their dispute with Mr Gilbert. It is not without significance that despite receiving positive advice from their solicitors as set out in exhibit Q concerning the lease and their rights under it, nothing was done by the personal plaintiffs in relation to that advice until February 2002.

32 Similarly, I find that the representation attributed to Mr Gilbert by Mathew Partridge and Mr Millane that Mr and Mrs Fair would vacate the upstairs premises within two months of the sale of the business taking place to be a fabrication. Its purpose was to strengthen their position in relation to their assertion that it was always intended between the plaintiffs and Mr Gilbert that the upstairs premises formed part of the property leased to them.

33 If such a representation had been made by Mr Gilbert to the personal plaintiffs why was it not referred to by their solicitor in exhibit Q or in subsequent correspondence. The first reference to Mr and Mrs Fair vacating the premises within two months of the acquisition of the business is in exhibit F – the letter sent by the plaintiffs’ solicitors to the Mosman Daily on 30 April 2002.

34 As with the lease, had such a representation been made by Mr Gilbert to the personal plaintiffs and had Mr and Mrs Fair not vacated by December 2000, I find it unbelievable that this matter would not have been referred by the plaintiffs to their solicitors and that correspondence would not have passed between those solicitors and the solicitors for Mr Gilbert on that subject. There is no such correspondence.

35 Mr Gilbert issued proceedings in the Local Court for the recovery of the amount of $8,951 from the personal plaintiffs in December 2001 (exhibit 5). Ultimately default judgment was entered in relation to those proceedings but by agreement was set aside in April 2002.

36 At some time after 1 January 2002, and probably towards the end of that month or in February 2002, Mr and Mrs Fair entered into a new lease with Mr Gilbert for two years commencing 1 January 2002. (Exhibit 3). It is clear from the document that it was backdated but it is not clear when it was actually executed. As was said by counsel for the plaintiffs the lease does appear to have been prepared in a hurry. Despite some equivocal responses by Mr Fair on the subject, I infer that this lease was entered into because Mr Fair was being pressured by the plaintiffs to vacate the upstairs premises.

37 The personal plaintiffs gave no specific evidence about any conversations which they had with Mr Fair or Mr Gilbert in early 2002. The only evidence as to what was then occurring comes from Mr Fair. He agreed that by late 2001 or early 2002, he became aware of a dispute between the personal plaintiffs and Mr Gilbert. This was confirmed by a conversation which he had with Mathew Partridge in mid to late February 2002. It was in that conversation (T.366.14-17) that Mr Partridge first asserted to him that Cousins & Co had leased the whole of the premises and that Mr and Mrs Fair ought start making arrangements to get out. Mr Fair responded that this was a ridiculous claim.

38 Mr Fair and Mr Mathew Partridge are at issue as to when Mr and Mrs Fair were first asked to vacate the premises. The evidence of Mathew Partridge was that he had been asking Mr Fair to vacate the premises throughout 2001 (T.84.4-7).

39 I accept the evidence of Mr Fair on this question in preference to that of Mathew Partridge. It is persuasive that the conversation asserted by Mr Fair was followed not long afterwards by the letter from the plaintiffs’ solicitors dated 12 March 2002 which required Mr and Mrs Fair to vacate the upstairs premises within seven days (exhibit C). It is also significant that following the receipt of that letter and subsequent correspondence from the plaintiffs’ solicitors Mr Fair referred those matters to Mr Gilbert. Mr Gilbert (whom I accept) gave evidence that the question of the legitimacy of the Fairs’ occupation of the upstairs premises was never raised with him during 2001. Had such requests to vacate been made by Mr Mathew Partridge to Mr Fair during 2001 it is most unlikely that such requests would not have been communicated to Mr Gilbert. I find that the first occasion that Mr Fair was asked to vacate the upstairs premises by Mr Mathew Partridge occurred in mid to late February as stated by Mr Fair.

40 The next stage in the sequence of events was the receipt by Mr and Mrs Fair of the letter from the plaintiffs’ solicitors dated 12 March 2002 requiring them to vacate the premises within seven days (exhibit C). The personal plaintiffs had no recollection of when they gave instructions for that letter to be sent or what instructions were actually given. They all agreed that instructions must have been given. They had no recollection of how the letter was delivered to Mr and Mrs Fair.

41 In those circumstances I accept the evidence of Mr Fair (T.367.30-48) as to the circumstances in which he received the letter ie it was pushed under their door with a “post-it note” attached to it saying “Please call me, John Millane”, with John Millane’s phone number on it. Mr Fair was unhappy that the letter had been delivered in that way because at the time his wife was heavily pregnant and he was concerned that had she read the letter first it would have greatly upset her. In fact Mrs Fair gave birth to her child, Darcey, on 17 March 2002.

42 Mr Fair contacted Mr Millane as requested and expressed his disappointment as to the way in which the letter was delivered. Mr Millane responded that “This is something Mathew did, I’ll make sure it doesn’t happen again.” He also advised that they would not be acting on the letter but they had been advised by their solicitors to send it. Mr Fair faxed a copy of the letter to Mr Gilbert.

43 There is an important factual issue between the plaintiffs and the defendant in relation to what occurred leading up to the letter from the plaintiffs’ solicitors to Mr and Mrs Fair dated 8 April 2002 (exhibit D). That letter did not assert an entitlement to the upstairs premises but asserted exclusive possession of the ground floor office and required Mr and Mrs Fair to vacate the upstairs premises, or alternatively cease traversing the ground floor office, otherwise the locks to the downstairs office would be changed as of 3 pm Friday 12 April.

44 The personal plaintiffs, in particular Mr Mathew Partridge and Mr Millane, say that this letter was only sent because before 8 April 2002 they had put in place arrangements with Mr Gilbert’s builder, a Mr Coddington, for an alternative means of access to be constructed to the upstairs premises from the rear of the building. This meant that Mr and Mrs Fair would no longer have to move through the ground floor office to gain access to their flat.

45 Mr Fair denies that any such alternative access from the rear had been discussed with him before 8 April 2002 by the personal plaintiffs. Mr Coddington denies that he had any such discussions with Mr Millane or any of the personal plaintiffs (T.348). Mr Gilbert denies that he was aware of any such discussions or arrangement being made with his builder or with him (T.434). I find that the assertion made by the personal plaintiffs that at the time the letter of 8 April, exhibit D, was sent to Mr and Mrs Fair they had in contemplation such an access from the rear to be false. I find it to be an ex post facto fabrication to justify the sending of the letter of 8 April 2002, exhibit D. It represents an attempt by the plaintiffs to make the letter of 8 April 2002 appear reasonable.

46 On this question I accept the evidence of Mr Coddington. Mr Coddington had no interest in the proceedings. Although he remained on good terms with Mr Gilbert, he was no longer performing any work for him and had no motive to tell anything but the truth (T.360.47).

47 If such an alternative access from the rear was under consideration, why was it not referred to in the letter of 8 April 2002, exhibit D? That is the logical place for such an alternate access to be specified and described. No competent solicitor sending a letter containing the threat in exhibit D would have failed to make reference to Mr and Mrs Fair using the alternative rear access if such an access was available or was to be constructed so as to be available by 3 pm 12 April being the deadline specified in the letter.

48 The evidence of Mr Millane and Mathew Partridge as to what instructions were given to Mr Coddington and when was vague in the extreme. Neither gave any evidence of contact with Mr Gilbert on this subject. That is surprising since Mr Coddington was a contractor retained by Mr Gilbert and it was Mr Gilbert who would be ultimately paying for whatever work was done by him.

49 The plaintiffs sought to rely upon telephone records to establish that communications had regularly taken place between Mr Millane and Mr Coddington concerning the construction of a rear access to the upstairs premises. Those telephone records (exhibit T) do not reveal any telephone contact between Mr Millane and Mr Coddington until 12 April 2002. Thereafter the calls were relatively short and are more consistent with discussions taking place in relation to the proposal for an alternate front access to the premises which was referred to in the letter from Mr Gilbert’s solicitors to the plaintiffs’ solicitors, dated 9 April 2002 (exhibit 8).

50 It is apparent from the correspondence passing between the solicitors that once Mr and Mrs Fair had received the letter of 8 April 2002 (exhibit D), Mr Fair had referred a copy of that letter to Mr Gilbert, who in turn had sent a copy to his solicitors. The letters of 9 April 2002 (exhibits 8 and 9) from Mr Gilbert’s solicitors to the plaintiffs’ solicitors represent a response to exhibit D. I find that the first time any kind of alternative access had been raised in discussions by either Mr Gilbert or Mr Fair with the plaintiffs was in the letter of 9 April 2002, exhibit 8. It follows that I reject the answer of Mr Millane at T.228.44-51 as being a correct statement of fact.

51 The evidence of Mr Fair was that there had been some discussion between he and Mr Gilbert about a rear access in March/April 2002. That had never been communicated to the plaintiffs. Mr Gilbert had no recollection of such an early discussion. It was his recollection that definite discussions for a rear access only occurred when he met with Mr Coddington at the premises on 27 April 2002 (T.434). Mr Coddington confirmed the recollection of Mr Gilbert (T.438). Mr Fair’s recollection may be accurate as to a general discussion, but it is clear that no detailed plans in relation to a rear access were made until 27 April 2002.

52 Perhaps the most persuasive evidence as to the falsity of the assertion by Mr Millane that he had been conducting discussions with Mr Coddington for the construction of a rear access to the upstairs premises before 8 April 2002 and that such discussions had continued up to 26 April 2002 is the evidence at T.255.35-58, T.256.1-6. If Mr Millane had engaged in discussions with Mr Coddington concerning the construction of a rear access to the upstairs premises, he would have known that Mr Coddington’s contribution to such a rear access was merely the construction of steps and the cutting of an entrance into the rear deck (photograph exhibit G). The bulk of the construction, being the installation of scaffolding to form a bridge, was carried out by a scaffolder – Rico Scaffolding – whose services had only been retained by Mr Gilbert personally on Friday 26 April 2002 (T.433-434). It is incredible that Mr Millane would not have had such information if he regularly had been discussing the matter with Mr Coddington as he asserts.

53 It follows that when the letter of 8 April 2002, exhibit D, was sent by the solicitors for the plaintiffs to Mr and Mrs Fair no alternative access was being offered to them. The stark choice for them and their then three week old baby was to vacate the premises or find by their own resources some means of gaining access to their flat which did not involve the use of the ground floor office.

54 A general complaint was made by Mr Fair that in March and April 2002 there was a deliberate course of conduct by the personal plaintiffs designed to intimidate him and his wife so as to cause them to vacate the upstairs premises. He referred to instances such as opening mail, locking away a noisy water cooler so that it could not be turned off at night, sending away trades persons by denying that the Fairs resided in the premises and the playing of a radio loudly early in the morning. Mr Fair also described ugly looks when he and his wife walked through the ground floor premises and persons such as Mr Mathew Partridge being slow to move out of his way.

55 While I have no doubt that there were some acts of childish petulance such as relate to the water cooler and the radio, I am not persuaded that there was a concerted campaign of intimidation by all of the personal plaintiffs and in that regard, Mr Fair’s evidence may be somewhat exaggerated or he may have become over sensitive and have interpreted normal conduct in a way adverse to the plaintiffs. The examples given of the hot water boiler and the mail, and even the water cooler, were open to other less sinister explanations. It is not without significance that Ms Igoe from the Mosman Daily had no trouble being directed to the premises of Mr and Mrs Fair on Friday 26 April 2002.

56 Following the letters sent by Mr Gilbert’s solicitors on 9 April 2002 (exhibits 8, 9 and 10), no action was taken by the plaintiffs in relation to the letter of 8 April 2002. I infer that in accordance with the facsimile from Paul Ward-Harvey & Co of 10 April 2002 discussions took place between Mr Gilbert and his solicitors on the one hand, and the plaintiffs and their solicitor on the other, to try to resolve all outstanding matters between them. Such discussions included not only the construction of an alternative access at the front of the premises, but also the possible sale of all or part of the premises by Mr Gilbert to the plaintiffs. The threat of injunctive relief may also have encouraged discussions. I accept Mr Mathew Partridge when he says that the reason why the proposal for a front access to the upstairs premises did not proceed was because it would involve too much disruption to their business and that no compensation for that disruption was being offered by Mr Gilbert. Those negotiations still seem to have been continuing as of 24 April 2002 (exhibit 11).

57 As between Mr and Mrs Fair and the personal plaintiffs, matters came to a head on 24 April 2002. The evidence of Mr Mathew Partridge was that he had come into the office relatively early, a thing which he did approximately three times per week, had turned on the radio when Mr Fair for no reason pushed him in the back causing him to spill a cup of tea which he was holding. Mr Fair is then alleged to have punched Mr Partridge on the jaw and when Mr Partridge referred to the surveillance cameras, Mr Fair ran into the bathroom in order to remove the tape from the video machine. Mr Fair left the premises following which Mr Partridge telephoned Mr Millane who attended the office and having spoken to Mr Partridge, telephoned Mr Coddington and directed him to install the rear access as a matter of urgency (T.18-19).

58 Mr Fair’s version of events is somewhat different. Mr Fair says that he was about to go to work when his attention was drawn to the loud noise of a radio positioned below the baby’s room. When he went down to the office he observed that Mr Mathew Partridge had placed a radio on a top shelf in the kitchen just below the ceiling and that the radio was playing loudly. When he complained to Mr Mathew Partridge, Mr Partridge poked him in the chest, he pushed Mr Partridge’s finger away and left the premises (T.373-374).

59 I reject the evidence of Mr Mathew Partridge that he was struck in the jaw and that Mr Fair went into the bathroom to retrieve the video film. I find that what occurred was closer to the version described by Mr Fair, although I suspect that it was somewhat more acrimonious than he has described. My impression is that voices were probably raised and there was some pushing and shoving, a situation which was impliedly conceded by Mr Fair (T.374.52-4).

60 When Mr Mathew Partridge was asked in cross-examination why he did not take any further action in relation to what was an unprovoked assault on his version of events, he said that he did not do so because there were no witnesses to the incident. I find that explanation rather lame, if events had occurred as described by Mathew Partridge, and given the significant deterioration in relations which had occurred between the plaintiffs and Mr and Mrs Fair up to that point in time. I find it unbelievable that Mr Mathew Partridge would not have reported the matter to his solicitors and that had he done so, that his solicitors would not have sent a letter to Mr Fair. Such an incident would have provided a genuine and reasonable excuse for the plaintiffs seeking to restrict or prevent the access of Mr and Mrs Fair to their office.

61 Not only was there no correspondence from the plaintiffs’ solicitors referring to the assault but the letter to the Mosman Daily, exhibit F, of 30 April 2002 which the plaintiffs had been asked to “carefully peruse” and “to ensure that every statement comprised in it is correct” (exhibit S) contained an assertion which was quite inconsistent with the assault having taken place:

“(9) There is no dispute of any kind between our clients and the first floor occupants. They are both innocent victims of the actions of the landlord.”

62 I find that the assault as described by Mathew Partridge did not take place. I find that some raising of voices and pushing and shoving, close to what was described by Mr Fair, did occur. Whatever occurred it was not sufficiently serious to be either referred to the plaintiffs’ solicitors by them or if it was referred to the solicitors, it was not regarded by those solicitors as being sufficiently serious to cause those solicitors to originate any correspondence or to refer to the incident in correspondence.

63 I reject the evidence of Mathew Partridge and Mr Millane that when Mr Millane attended the office that morning (whether or not in answer to a phone call from Mr Mathew Partridge) he rang the builder, Sean Coddington, described the incident to Sean Coddington to which Sean Coddington replied “I can’t believe it. I can get those stairs built quickly.” (T.19.20-29, T.163.58, T.164.1-26) I have already indicated why I reject Mr Millane’s evidence on this issue generally. In relation to this specific incident, however, while Mr Millane’s telephone records, exhibit T, do show that a call was made to Mr Coddington on the morning of 24 April 2002, that call was for twenty one seconds and would have been insufficient to cover the issues referred to by Messrs Mathew Partridge and Millane.

64 It seems apparent that the personal plaintiffs, or at least Mr Mathew Partridge, were using Mr and Mrs Fair as a bargaining chip in the dispute with Mr Gilbert. Shortly before 24 April 2002 Mr Mathew Partridge told Mr Gilbert “You have got two options, one I’m going to kick the tenants out or two, you can sell the property to me.” Otherwise discussions seem to have taken place between the solicitors (T.434.39-57).

65 Mr Millane gave evidence that he told Mr Fair on 24 April 2002 that the locks to the ground floor premises would be changed on Friday, 26 April. Mr Fair denies this. Mr Fair says that this was not communicated to him until the Friday morning, ie 26 April. I accept the evidence of Mr Fair on this issue. There is no reference in exhibit F, being the letter from the plaintiffs’ solicitors to the Mosman Daily, 30 April 2002, to two days’ notice being given (numbered para 7). There was also some support at p 4 of exhibit 19 for Mr Fair’s evidence.

66 The evidence of Mr Fair (which I accept) (T.375-376) is that he was telephoned by Mr Millane at approximately 10 am on 26 April and advised that the locks to the ground floor premises would be changed that afternoon. Mr Fair said that was ridiculous and that there was no way that they could leave the premises by the afternoon. He told Mr Millane that he would have to call Mr Gilbert urgently. Mr Fair then rang Mr Gilbert and asked that he do something urgently to arrange a rear access to the upstairs premises because they were going to be locked out that afternoon.

67 Following that phone call to Mr Gilbert, Mr Fair telephoned Mr Millane later that morning or early in the afternoon and advised that there was no way that he and his wife could get out by 3 o’clock. Mr Millane responded that he would give to Mr Fair another key for the locks, but that he would have to sign a letter that he would return the key on Monday afternoon by 5 o’clock.

68 After that conversation with Mr Millane, Mr Fair returned home early at approximately 3 pm because his wife was very upset. By that time the old locks had been removed but the new locks had not been placed in position. Mr Fair decided to contact the Mosman Daily and tell them how badly these real estate agents were behaving (T.377.47-50). As a result of that call Ms Igoe, a reporter from the Mosman Daily, together with a photographer, attended the upstairs premises at approximately 4 pm and took notes of what she was told by Mr and Mrs Fair (exhibit 19). She observed both Mr and Mrs Fair to be very upset and that Mrs Fair was crying from time to time.

69 Mr Fair’s recollection was that during the visit of Ms Igoe, the key was delivered to the flat and he was asked to sign the letter. He took the key but did not sign the letter. He was again called to the door and asked to sign the letter, but he refused. Although Ms Igoe had no recollection of those interruptions while she was interviewing Mr and Mrs Fair, her notes, exhibit 19 p 6, support the proposition that Mr Fair was required to sign a letter as a condition of receiving a key.

70 Mr Gilbert attended the premises on Saturday 27 April, together with Mr Coddington and a Mr Ginns from Rico Scaffolding. A plan was devised for a rear access to the upstairs premises utilising the stairs attached to the pharmacy which was next to the leased premises.

71 On Monday, 29 April Ms Igoe having discussed the matter with her editor, contacted Mr Millane on behalf of the plaintiffs. There is a dispute between Ms Igoe and Mr Millane as to the exact terms of the conversation, but I am satisfied that in the course of the conversation Ms Igoe identified herself, advised that she had interviewed Mr and Mrs Fair who had told her that the locks enabling them to gain access to their premises had been changed, and would he like to discuss that with her. Mr Millane responded:

72 After talking to Mr Millane, Ms Igoe also telephoned Mr Gilbert and took notes of her conversation with him. Those notes are included in exhibit 19. She then prepared five drafts of the article (exhibit 20). Because there was a threat of litigation, each draft was referred to Mr Campion, the solicitor acting on behalf of the Mosman Daily. He suggested a number of changes.

73 It was on Monday 29 April that personnel from Rico Scaffolding attended the premises and placed in position a scaffolding bridge as is depicted in exhibits E and G. The small steps depicted in photograph, exhibit G, were not then in existence. As of Monday afternoon, a ladder had been attached to the scaffolding. It was agreed by Mr Fair that although it would have been impossible for his wife on her own with the baby to have accessed or exited the premises even after the scaffolding had been put in position, this could be achieved if both of them worked together with one of them holding the baby.

74 Mr Fair returned the key to the plaintiffs’ office at approximately 4 pm on that Monday afternoon. The access to the premises remained as I have described between that time and a time on Tuesday morning when the employees of Mr Coddington over a period of between five to six hours constructed the steps depicted in photograph, exhibit G, and cut a gap through the fencing which surrounded the outdoor deck at the rear of the upstairs premises. It is not clear whether the blue door was put in position on that day.

75 There was an issue between Mr Fair and Mr Millane as to what instructions accompanied the handing over of the keys to Mr Fair. Mr Millane said that the key was given to Mr Fair on the basis that he could retain it until the new access had been completed. It was the evidence of Mr Fair that he had to return the key by 5 pm and he was not told that the key could be retained until the new access was completed.

76 It was submitted on behalf of the plaintiffs that Mr Fair’s version of events was inherently improbable. If Mr Fair had been given the 5 pm time limit it would have been an easy matter for him to ask for an extension. Why would he have exposed his family to such a difficult access if it could have been easily avoided? When these propositions were put to Mr Fair his response was that he didn’t want to have any further dealings with the plaintiffs and that he believed the steps would be in position on the Tuesday morning in any event. Some support for Mr Fair’s version is provided by exhibit 19, p 11 which refers to “5 pm key back”.

77 I accept the truth of Mr Fair’s evidence on this point. From the evidence of Ms Igoe at trial and as recorded in her notes, exhibit 19, Mr Fair was quite upset by what his family had been put through during the preceding weeks and particularly on that Friday. I can well accept that he was reluctant on Monday afternoon to ask a favour of any of the personal plaintiffs. That approach is consistent with the reference in the notes and article to him being unwilling to “capitulate”.

78 I find that when the key was provided to Mr Fair on Friday, 26 April it was on the condition that it be returned to the plaintiffs by 5 pm on Monday, 29 April.

79 On the morning of Tuesday, 30 April exhibit F was faxed to the Mosman Daily, being a letter from the plaintiffs’ solicitors Messrs Paul Ward-Harvey & Co setting out the position of the plaintiffs. It can be seen from the drafts subsequently forwarded to Mr Campion (exhibits 20 and 21) that some of this material was incorporated into the article.

80 It was Mr Fair’s recollection that some time on the Tuesday he raised with Ms Igoe whether it was necessary for the article to go ahead. Ms Igoe had no recollection of such a conversation. Mr Gridley, Ms Igoe’s editor, was unaware of any such conversation but gave evidence that had such a request from Mr Fair been communicated to him he would still have gone ahead and published the article.

81 The article was published in the form of exhibit A, in the Mosman Daily on 2 May 2002. It was common ground that the Mosman Daily had a readership of 72,000 and circulated principally on the lower North Shore of Sydney. It was also common ground that it was the principal means whereby real estate information was disseminated in that area.

Defences

82 Although the defence is pleaded in broad terms, it was made clear in submissions that in essence the defendant relied upon three defences:

(i) That imputation (b) was a matter of substantial truth and related to a matter of public interest (s15).

(ii) That imputation (b) was published in circumstances giving rise to the statutory defence of qualified privilege (s22).

83 The defendant raised its intention to show in mitigation of damages that imputation (b) was substantially true.

Substantial truth

84 Fundamental to the first two defences is the proposition that even if some of the details upon which the imputation was based were incorrect, the substantial thrust of the allegations was true.

85 In determining this question the approach I take is whether the “sting” of the imputation has been sufficiently made out. In other words the precise imputation made against the plaintiffs is justified if although the truth and accuracy of all of the statements or comment associated with the imputation have not been made out, the essence of the imputation is found to be true. Sutherland v Stopes [1925] AC 47 at 79:

“If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from my stable but from the harness room, and that he did, without my knowledge or consent, sell my saddle, so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.”

86 I accept the proposition that insofar as the corporate plaintiff is concerned, the conduct and intent of the personal plaintiffs corresponds with the intent of the corporate plaintiff since they were the controlling servants or agents of the fourth plaintiff for all relevant purposes. (Hamilton v Whitehead (1988) 166 CLR 121 at 127.2-127.9, Nissho Iwai Australia Limited v Malaysian International Shipping Corporation (1989) 167 CLR 219 at 229.9-230.2).

87 The plaintiffs say that the article was not substantially true in the following respects. In referring to the plaintiffs’ submissions on this question I use the paragraph numbering on exhibit A. It is said that para 3 is untrue in that Mr and Mrs Fair had never been “denied access to their flat” in that either a key had always been provided or access, albeit difficult, had always been available.

88 It is submitted that para 16 is incorrect in that Mr Fair’s wife and daughter were not “shut out” and they were not given two days’ notice to leave.

89 In summary it is submitted, on behalf of the plaintiffs, that they were carrying on business under intolerable circumstances ie with Mr and Mrs Fair and their guests having access to their offices at all times, both night and day. In those circumstances there was no “reasonable time” at which to require Mr and Mrs Fair to cease using the office premises to gain access to their flat. Whatever time was chosen would be inconvenient for Mr and Mrs Fair.

90 As indicated in my recital of the background facts, I have generally rejected the evidence of the personal plaintiffs where it conflicts with that of Messrs Fair, Gilbert and Coddington. It follows that although it may not be strictly accurate to say that Mr and Mrs Fair were denied access to their flat, or that Mr Fair’s wife and daughter had been shut out and given two days’ notice to leave, the sting in imputation (b) that the plaintiffs acted in a very unreasonable way towards Mr and Mrs Fair and their six week old daughter has been well and truly established.

91 In summary, the sending of the letter of 12 March 2002 was very unreasonable because:

(i) Mr and Mrs Fair had been living in the premises since January 2000.

(ii) The legal basis for the letter was incorrect.

(iii) There had been no prior complaint or demand in writing to Mr and Mrs Fair in which the plaintiffs had claimed an entitlement to the upstairs residence.

(iv) Seven days’ notice was manifestly inadequate having regard to Mrs Fair’s advanced state of pregnancy which would have been obvious to the personal plaintiffs.

92 The letter of 8 April 2002, exhibit D, was very unreasonable because:

(i) The legal basis for this demand was tenuous in the extreme, having regard to the law of estoppel and the plaintiffs’ knowledge when the lease was entered into.

(ii) No prior written assertion had been made that Mr and Mrs Fair were not entitled to have access through the office.

(iii) Mr and Mrs Fair had obtained access through the office since January 2000.

(iv) Four days’ notice was manifestly unreasonable in that the baby was only three weeks old.

(v) The effect of the letter was to require Mr and Mrs Fair to vacate the premises since no provision had been made for any alternate access.

93 The notice given on Friday, 26 April 2002 that locks would be changed that afternoon was very unreasonable because:

(i) The notice was patently inadequate and should have been expected to cause extreme distress to both Mr and Mrs Fair.

(ii) As originally communicated, the changing of the locks would have had the inevitable effect of preventing Mr and Mrs Fair from either getting in or out of the upstairs premises.

(iii) Mr and Mrs Fair had been obtaining access through the office since January 2000.

(iv) Notice was given while negotiations were taking place between the plaintiffs and Mr Gilbert.

(vi) No alternative arrangements had been made for access.

(vii) The plaintiffs were on notice because of the advice which they had received from their own solicitors that their legal position was uncertain.

94 I find that the defendant has established that imputation (b) was a matter of substantial truth for the purpose of defence (i).

Public interest

95 Defences (i) and (iii) as set out in [82] hereof, depend upon the requirement that the imputation must relate to a matter of public interest. If the defendant is to succeed in those two defences, it is necessary that it establish that the imputation related to a matter of public interest.

96 As was pointed out by Simpson J in Green v Schneller [2000] NSWSC 548 at [19]:

“19 There is no precise line that divides matters that fall within the domain of public interest from those that do not. To a very large extent, whether an imputation relates to a matter of public interest or not is determined by value judgment, by the individual perception of the tribunal charged with the task of making the decision, and current mores and attitudes. Although the concept of public interest has existed in the law for many years, and a number of decisions of various courts throw some light on the practical application of the requirement, fewer have attempted to refine or define the language of the concept. Some assistance can no doubt be gained from the factual circumstances of the cases in which a publication has been held to fall on one side or the other of the public interest line.”

97 The United Kingdom decisions seem to adopt a broad approach to the concept. A publication concerning living conditions provided by a colliery to its employed miners and their families was regarded as a matter of public interest. (South Hetton Coal Co Limited v North-Eastern News Association Limited (1894) 1 QB 133.) Factors relevant to the finding in that case were the numbers of persons involved and the size of the district affected by the living conditions.

98 The United Kingdom Court of Appeal has also held that the sudden and apparently co-ordinated resignation of four cast members of a theatrical production then playing with a resultant threat to the production’s continued viability was a matter of public interest. (London Artists Limited v Littler (1969) 2 QB 375.) A determining consideration in that case was that the public were legitimately interested in the actions of persons in the theatrical industry. Lord Denning (p 391) declined to confine the concept of public interest “within narrow limits”. – “Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment …”.

99 In Australia decisions have tended towards a more narrow approach. Allsopp v Incorporated News Agencies Co Pty Limited (1975) 26 FLR 238 held that a publication that concerned the competence in employment of a newspaper editor was not a matter of public interest. Whereas the operation of a newspaper generally may be a matter of public interest. Blackburn J held that the competence of a particular employee of that newspaper was not.

100 Similarly in Chappell v TCN Channel 9 Pty Limited (1988) 14 NSWLR 153 Hunt J held that notwithstanding that the proposed publication concerned a famous cricketer and that his life in many ways had a public character, his private life did not become a matter of public interest unless in some way he made it so.

101 The leading case for courts in Australia is the decision of the High Court in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183. The majority in that case approved the following statements of principle:

“In that branch of the law a subject of public interest meant the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion.” (p 215)

“In one of the early cases on the subject, Parke B said that “every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if he do not make his commentary a cloak for malice and slander”. Likewise when a person publicly exhibited his or her work or advertised or sold goods or services to the public, that person’s conduct while engaged in those activities was regarded as a subject of public interest” (p 218).

102 An initial problem for the defendant arises from its pleading in relation to public interest. As was pointed out by the High Court in Bellino it is not sufficient for the defence to be made out for recourse to be had to abstractions or generalities such as “the conduct of real estate agents”. The imputation, if it were to be a matter of public interest, had to relate to the conduct of a person or institution. (pp 214-15)

103 The only particulars which were directly relevant were:

“(i) The manner in which the plaintiffs treat their tenants is a matter of relevance to the continuation of their licences as real estate agents and their membership of the Institute.

(j) The conduct of the plaintiffs in depriving tenants from access to their flat is a matter of public interest.

(l) The conduct of members of the Institute is a matter of public interest.

(m) The plaintiffs conducted or were actively involved in the conduct of a business of a real estate agency which traded under the name of “Cousins & Co” in Mosman in the course of which they sought the custom of Mosman residents (and other residents of the lower North Shore of Sydney) and sought to have professional and business dealings with such residents and in so doing sought to rely upon the fact that the real estate agency, “Cousins & Co”, had been established for almost one hundred years. Part of those professional and business dealings involved dealing with landlords and tenants in relation to rental properties being managed by them. The plaintiffs’ conduct in the course of the business of Cousins & Co, their dealing with such residents, tenants and landlords including any unreasonable and unethical conduct in pursuit of their commercial interest or in their dealings with such residents, tenants and landlords is a matter of public interest.”

104 As indicated in the outline of facts, the precise relationship between Mr and Mrs Fair and the plaintiffs was not clear. Mr and Mrs Fair were not tenants or sub-tenants of the plaintiffs, although at one point Mr Fair gave evidence that there had been a demand on behalf of the plaintiffs that Mr and Mrs Fair pay rent to the plaintiffs, rather than to Mr Gilbert. The plaintiffs were asserting that they had an entitlement to occupy the premises then being occupied by Mr and Mrs Fair. At the time of publication both Mr and Mrs Fair and the plaintiffs were paying rent to a common landlord, Mr Gilbert. The plaintiffs were conducting their business as real estate agents in close proximity to Mr and Mrs Fair and one of their complaints was that their capacity to conduct that business was being compromised by the uncontrolled access through their office of Mr and Mrs Fair and their guests. Given that complicated factual background, it was of course not accurate for the defendant to plead that at any time Mr and Mrs Fair were “their” tenants. Nevertheless, given the disputed issues in relation to the occupation of the upstairs premises by Mr and Mrs Fair, I do not regard the particulars of the public interest defence to be misleading and such was not submitted on behalf of the plaintiffs.

105 The defendant puts its argument as to public interest as follows. It says that certain ethical and educational standards are required to be met by persons who practise as real estate agents. One of the principals of such a business has to hold a licence issued by the Department of Fair Trading of NSW. In those circumstances it is submitted the public, particularly those on the lower North Shore, have an interest in how real estate agents are conducting their business in that region. By analogy support is provided by Wake v John Fairfax & Sons Limited (1973) 1 NSWLR 43 at 47 – that being a case which supported public interest in the conduct of the greyhound racing industry.

106 Reliance is placed upon note 110 in Bellino at p 220:

“What acts and conduct are open to public comment is a question for the court, but one of judicial common sense rather than of technical definition. Subject matter of this kind may be broadly classed under two types. The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs, of those in authority, whether imperial or local, in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like. Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits.” This passage, although doubting that “subject of public interest” had a technical definition, makes it clear that it is the “acts and conduct” of particular persons that constitute the subject of public interest.”

107 Reliance is also placed on Bellino p 221:

“Thus the discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct that invites public criticism or discussion comes within the protection of s377(8).”

108 The defendant submits that the plaintiffs not only held themselves out to the public as offering and providing services as real estate agents thereby impliedly representing themselves to be of good fame and character and being fit and proper persons to provide such services, but they also regularly advertised to the public that fact, particularly in the Mosman Daily (bundle of advertisements, exhibit U).

109 The defendant relies upon the 10th edition of Gatley “Libel and Slander”, chapter 12 – para 40 – where examples are given of cases where plaintiffs who have advertised their goods or otherwise drawn public attention to themselves have been found to give rise to a legitimate public interest. The defendant submits that in this case the plaintiffs were clearly offering services to the public which included services in relation to tenanted properties in their management of a substantial rent roll the majority of which were in the lower North Shore. The treatment of tenants in the course of the plaintiffs’ business as real estate agents was clearly a matter relevant to the services they were offering to the public, such as to create a legitimate public interest. The defendant submits that the imputation need only “relate” to a matter of public interest.

110 The defendant argues that because the licence to operate as a real estate agency was issued under the Property Stock and Business Agents Act 1941 regard has to be had to the provisions of that act to regulate the operation of real estate agents in the public interest. Many of the provisions relating to the issue of licences and the qualifications necessary before such a licence is issued are directed to the protection of the public. By analogy the defendant compares the situation with the protection of the public in the case of the legal and medical professions. The public, it is said, has a legitimate interest in knowing whether such persons, including real estate agents, are behaving in accordance with their statutory authorisation. Reference was made to the evidence of Mr Dekell (T.289-294), a real estate agent called to give evidence as to damages in the plaintiffs’ case, who thought that the conduct described in the article if true, fell short of the professional standards of the Real Estate Institute of NSW.

111 Reliance was placed upon what was said by Whealy J in Star Hotel Holdings Limited v Newcastle Newspapers Pty Limited & Anor [2001] NSWSC 53 at [33]-[38]. In the context of an unsuccessful application for an injunction, Whealy J considered that comments concerning a substantial hotel in the commercial centre of Newcastle providing accommodation for the public generally and providing for the operation of shops and other commercial property may well involve a matter of public interest. Reliance was also placed on Grundmann v Georgeson (Queensland Court of Appeal, unreported, 18 June, 1996) where it was held that the proposal to establish in Rockhampton a fertility control clinic for the first time for the purpose of enabling abortions to be performed, raised a matter of public interest because “at the very least, the appellant was proposing to offer services to the public and was therefore inviting public criticism or discussion concerning his conduct in so doing.”

112 The plaintiffs submit that no question of public interest is involved. They say that it is not sufficient for the article generally to relate to a matter of public interest, but the specific imputation of and concerning the plaintiffs must in the terms of s15 relate to the matter of public interest. (Chappell at p170). The particular imputation here does not relate to a matter of public interest but merely to a dispute between neighbouring tenants or neighbours such as was considered in Green v Schneller.

113 The plaintiffs submit that the defendant’s reliance upon Bellino misunderstands the effect of that case. On a correct reading of Bellino an imputation only relates to a matter of public interest if the imputation deals specifically with the actions of a person or institution when offering services to the public or when engaging in public conduct.

Bellino p 222).

114 Applying that principle to the facts of this case, the plaintiffs say that the imputation does not relate to the conduct by the plaintiffs of their real estate agency, or their actions as real estate agents. It relates to their actions as good or bad neighbours depending upon which version of the evidence one accepts.

115 The plaintiffs refer to the particulars of public interest pleaded in the amended defence. Particulars (a), (b), (c), (d), (e), (f) and (g) raise material facts from which an argument might be launched that a matter of public interest was involved but they do not themselves identify such a matter. Of the remaining paragraphs (h), (k) and (l) are “abstractions” of the kind criticised in Bellino. Particular (i) is irrelevant since Mr and Mrs Fair were not “their tenants” in the sense that they were not tenants of the plaintiffs. Particulars (j) and (m) did not apply because the property being occupied by Mr and Mrs Fair was not part of the “properties being managed by them” where “them” refers to the plaintiffs.

116 In summary the plaintiffs submit that it was not the case that the imputation was published in the course of some wider discussion of the appropriate standards of behaviour of real estate agents, the conditions attaching to such licences or any similar topic. The report was and can only be read as a report of an individual dispute between neighbours. By way of illustration, it was said that the article would not have read any differently if the ground floor premises had been a travel agency or newsagent’s shop.

117 I am of the opinion that the defendant has established that the imputation related to a matter of public interest.

118 It is too simplistic to require that imputation (b) be looked at entirely in isolation and because it makes no reference to “real estate agents” in terms, the fact that the plaintiffs were real estate agents ought be ignored. In saying that I do not disregard the fundamental requirement that it is the imputation itself which needs to relate to a matter of public interest.

119 Support for my conclusion comes, at least by implication, from Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165 at 173. Although that case concerned the decision of a jury on a s7A question, the court rejected the proposition that the imputation ought be removed from the context of the article as a whole before the jury could consider whether or not it was defamatory. It seems to me that if as a matter of logic in this case the jury went through that process when considering whether the imputation was defamatory, I ought also consider the imputation in the context of the article as a whole when considering whether it relates to a matter of public interest.

120 It is also too simplistic to approach the question on the basis that this is merely a dispute between neighbours such as was considered by the court in Green v Schneller. The sting of the imputation, as was made clear by the evidence as to damage to reputation, was that the plaintiffs were in fact real estate agents. It was their reputations as real estate agents which had been damaged. Similarly it was made clear in the article that the actions described in the article had been taken by the plaintiffs in the course of their business (exhibit A, paras 3,4,6,8,9,15,21 and 24).

121 The plaintiffs operated a business where they offered services to the public both by way of advertisements (exhibit U) and from an office at 62A Avenue Road, Mosman. Members of the public would come and go to that office. The matter complained of concerned that place of business and whether Mr and Mrs Fair could continue to pass through that place of business or were to be locked out. The plaintiffs were not the landlord of Mr and Mrs Fair but did claim an interest in that part of the premises occupied by them. In my opinion, in the terms of Bellino the imputation did relate to the offering and performance of services to the public by the plaintiffs as real estate agents.

122 The difficulty in the plaintiffs’ submission is made clear by the illustration relied upon ie that the article would not have read any differently if the ground floor premises had been a travel agency or a newsagent’s shop. The matter of public interest arose precisely because they were operating as real estate agents. There was a “problem” relating to the access and occupation by Mr and Mrs Fair of the upstairs premises. The plaintiffs claimed an interest in those upstairs premises or, at the very least, to have been disadvantaged by the access which Mr and Mrs Fair were using through their office. The public interest arose because of how the plaintiffs as real estate agents were acting in those difficult circumstances which related directly to the sort of business conducted by real estate agents and to the sort of problems likely to be confronted by real estate agents and persons dealing with them.

123 A member of the public within the 72,000 readership of the Mosman Daily would have a legitimate interest in the conduct of the plaintiffs towards Mr and Mrs Fair against the somewhat complicated background of competing claims set out in the article. That interest would not be one of mere curiosity relating to a dispute between neighbours, but would be founded in a proper concern for how these real estate agents conducted themselves in circumstances where there was a dispute affecting their business and the dispute was of such a kind as to involve matters with which real estate agents had a particular interest – tenancies and the disputed occupation of property. Such a member of the public would be legitimately concerned that, if real estate agents used aggressive tactics where their own business concerns were involved, they would behave similarly when administering tenancies and performing other real estate functions for their clients.

124 Although the question is not without doubt, it seems to me that in this case the imputation does relate to the conduct of the plaintiffs as real estate agents and as such does relate to a matter of public interest. It follows that the defence under s15(2) of the Act has been made out.

Qualified privilege

125 The defendant relies upon the defence provided by s22 of the Act. Subsection (1) provides:

“22(1) Where, in respect of matter published to any person:

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to him information on that subject; and

(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances

there is a defence of qualified privilege for that publication.”

126 There are three components to the defence, each of which must be established by the defendant. The first is that the recipient of the matter complained of has an interest or apparent interest in having information on the subject of the publication. The second is that the matter is published to the recipient in the course of giving information on the subject. The third concerns the reasonableness of the publisher.

127 It was submitted on behalf of the defendant that the requirement that the recipient “has an interest or apparent interest in having information on some subject” was less onerous than the public interest requirement under s15 or s34 of the Act. It follows that if my finding that the imputation related to a matter of public interest is correct, then the requirement under s22(1)(a) is satisfied.

128 If, however, I have erred in that finding it is necessary to examine whether the less onerous requirement of s22(1)(a) has been made out. Reliance was placed on Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354 at 359:

Wright v Australian Broadcasting Commission

“It cannot be denied that the recipient, in this case the general public, had an interest in having information on the subject of public affairs”.

Morosi v Mirror Newspapers Limited

“The limited application of the common law principles of qualified privilege to publications in newspapers has already been discussed. Section 22 was designed to enlarge the protection afforded by these principles to defamatory publications generally, and it has a particular relevance to publications in newspapers; but it gives no carte blanche to newspapers to publish defamatory matter because the public has an interest in receiving information on the relevant subject. What the section does is to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established.”

Barbaro v Amalgamated Television Services Pty Ltd

“The word ‘interest’ is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news.”

129 The “subject” on which the “recipients” are said to have an interest has to be defined. The subject here is broadly the conduct of the plaintiffs as real estate agents, or more restrictively the conduct of the plaintiffs as real estate agents when an issue arises as to occupancy or access which affects their business. Either subject would be a matter of legitimate public concern to many of the 72,000 readership of the Mosman Daily who might be dealing with the plaintiffs or have family or friends who might be dealing with the plaintiffs.

130 The plaintiffs submit that the s22 defence will fail automatically if I find that the imputation did not relate to a matter of public interest. As indicated above, I do not accept that submission. I am of the opinion that the statutory formulation of the defence of qualified privilege was intended to broaden the nature of the interest that suffices for the defence beyond that of public interest as referred to in s15(2).

131 The plaintiffs submit that in conformity with Green v Schneller and Barbaro v Amalgamated Television Services Pty Ltd only a quite direct interest will underpin the defence. That submission does not sit easily with the statement in Barbaro by Hunt J:

“An interest must be definite; it may be direct or indirect, but it must not be vague or insubstantial – so long as the interest is of so tangible a nature that it is expedient to protect it for the common convenience and welfare of society, it will come within the privilege afforded by the section.” (40C)

132 It seems to me that the interest of a significant number of the 72,000 readership of the Mosman Daily in the conduct of the plaintiffs as real estate agents in the context of the particular occupancy and access problems with which they were confronted on this occasion, does indicate an interest of so tangible a nature that it is expedient to protect it.

133 Consistently with my conclusion in relation to public interest, I am satisfied that the conduct of the plaintiffs as real estate agents in relation to the occupancy and access problem created by the occupation by Mr and Mrs Fair of the upstairs premises was a matter on which the readers of the Mosman Daily had an interest, or apparent interest, for the purposes of s22(1)(a).

134 It follows from that finding that the requirement of s22(1)(b) is made out in that the article was published in the course of giving to the readership information on that subject.

135 In relation to s22(1)(c), my finding as to the substantial truth of what was said in the article goes a long way towards establishing that the conduct of the publisher in publishing the article was reasonable in the circumstances.

136 It was, however, submitted on behalf of the plaintiffs that the conduct of the publisher was not reasonable in the circumstances in that no real attempt was made to obtain the plaintiffs’ side of the story, the article was inaccurate in the way previously described and that only part of the plaintiffs’ side of the story was set out in the article. This, it was submitted, is clear from the form of the drafts of the articles (exhibits 20 and 21) where significant parts of the plaintiffs’ solicitors’ explanation were originally included in the article but were deleted from the version finally published.

137 I am satisfied that the defendant acted reasonably in seeking to obtain the plaintiffs’ side of the story. Mr Millane was asked to provide an answer to what Mr and Mrs Fair had said, but he declined. He referred the defendant to his solicitors who provided a letter setting out the plaintiffs’ version of events (exhibit F). The defendant through its solicitors discussed with the plaintiffs’ solicitors what use it could make of that letter. In due course the defendant included in the article sufficient parts of that letter to set out the defendant’s side of the story. The fact that the overall effect of the article was adverse to the defendant was a product of their conduct not because the defendant unfairly excluded exculpatory information from the article.

138 In relation to the overall accuracy of the article, I have already set out my opinion under the heading “Substantial truth”. Although it was not accurate to say that access had been denied, the total effect of the article clarified what was meant by that comment and made it clear that access was available, albeit difficult. It was also clear from the evidence of Ms Igoe that she believed that what she had been told by Mr and Mrs Fair was true. The tests in Morgan v John Fairfax & Sons (No 2) (1991) 23 NSWLR 376 at 387-8 have been made out.

139 If I have erred in my finding as to public interest, I find that the defence of qualified privilege, pursuant to s22 of the Act, has been made out.

Comment

140 The remaining defence is of comment, as provided by s34 of the Act – comment by a stranger. With respect to the defence of comment the Act is a code and the defendant must bring itself within its provisions. I have already decided the question of public interest in favour of the defendant (s31). Section 34 provides:

“34(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.”

141 The comment relied upon by the defendant is that of Mr Gilbert in exhibit A para 21:

“Mr Gilbert said on Monday the building had been a shop and residence since 1912. “If Cousins & Co took a step back they would see that what they are doing to this couple and their baby is very unreasonable”.”

142 The defence must fail if the “comment” was not a comment but a statement of fact. The distinction between the two concepts is often difficult to make (Pervan v North Queensland Newspaper Co (1993) 178 CLR 309. On one approach para 21 of exhibit A is a statement of fact in that it records that which was said by Mr Gilbert. The contrary view is that it sets out the opinion of Mr Gilbert.

143 In my opinion the impression given to a reasonable person reading the article is that para 21 was setting out the opinion of Mr Gilbert as expressed to the author of the article. Accordingly, I find that para 21 of exhibit A sets out comment rather than a statement of fact.

144 The defence of comment is made not to the article as a whole but to the imputation (NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340. I have already found that the facts supporting the imputation were substantially true. Accordingly, it follows that facts existed upon which the comment of Mr Gilbert could be reasonably based.

145 I am of the opinion that the defence of comment pursuant to s34 of the Act has been made out by the defendant.

146 The plaintiffs raised the issue of malice and lack of good faith, albeit somewhat faintly, by way of reply to the s34 defence of comment. In view of my findings as to substantial truth, such a defence would be hard to establish. Even without that finding there are difficulties inherent in making out such a defence (Barbaro v Amalgamated Television Service Pty Ltd – pp 50-54.) Moreover the matters pleaded by the plaintiffs in their reply as to an absence of good faith or malice are misconceived in that they relate to the state of mind of the sources of the publication, rather than the state of mind of the defendant publisher. I find that no malice or lack of good faith has been established in the defendant.

Damages

147 I propose to make an assessment of damages in case my findings as to the defences under ss 15, 22 and 34 of the Act are set aside.

148 The plaintiffs have asked that each plaintiff be considered individually in the assessment of damages. In that regard I should comment on the evidence of Andrew Partridge. It was clear from his evidence that insofar as dealings with Mr Gilbert and Mr and Mrs Fair were concerned, he left matters to the other two personal plaintiffs. Nevertheless he adhered to the evidence of Messrs Mathew Partridge and Millane that no discussion had taken place between the three personal plaintiffs at any time leading up to the proceedings about what exactly had happened and as to the sequence of events. I rejected that evidence when given by Messrs Mathew Partridge and Millane and I reject it when given by Mr Andrew Partridge (T.321-323). He also shared the somewhat surprising lack of recollection of exhibit C (T.323.49-58, T.324.1-13). His lack of concern as to the effect of exhibit C on Mrs Fair in her advanced state of pregnancy is also revealing (T.325.27-52). Even though his participation in the events leading up to the article was substantially less than that of the other two personal plaintiffs, I regard his evidence as equally unsatisfactory. His evasive replies as to his knowledge of the advanced state of pregnancy of Mrs Fair are illustrative of that (T.323.39-47, T.324.41-53, T.325.18-25). Accordingly, in the assessment of damages I do not place Andrew Partridge in any different position to that of the other personal plaintiffs.

149 The personal plaintiffs have given evidence of injuries to their feelings when comments were made directly to them concerning the article, or when comments of other persons in respect of the article were relayed to them. This evidence may be true. In view of my finding as to the substantial truth of the article and the imputation complained of, I find that this reaction was essentially due to shame and upset that their actions had been publicised. I do not propose to have any regard to injury to feelings in my assessment of damages.

150 Injury to reputation is in a different category. Even though an imputation is substantially true, there can still be damage to reputation. I accept the evidence of the plaintiffs that before the publication of the article, they were held in high esteem as real estate agents in the lower North Shore area. As the evidence revealed, the publication of the article and in particular the imputation found by the jury to flow from the article has damaged that reputation.

151 On the other hand, the plaintiffs embarked on a course of conduct in relation to Mr and Mrs Fair in the months of March and April 2002 which at the very least could be described as “very unreasonable”. Harsher epithets could be used and would be appropriate. It must have been appreciated by the personal plaintiffs that should their conduct in that regard be placed under scrutiny, it might well reflect adversely on their professional reputation.

152 Accordingly, if I am in error in my finding that the defences under ss 15, 22 and 34 have been made out, I propose to award only nominal damages in favour of the plaintiffs. I do so as follows:

John Millane - $1,000
Andrew Partridge - $1,000
Mathew Partridge - $1,000
Relocorp Pty Limited trading as Cousins & Co - $500.

In that circumstance my order as to costs would be that the plaintiffs have no costs of the proceedings.

Judgment

153 As indicated above, my assessment of damages only arises if I am found to have erred in my finding that the defences under ss15, 22 and 34 have been made out. My finding is that those defences have been established. I enter judgment in favour of the defendant and order the plaintiffs to pay the defendant’s costs of these proceedings.

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Last Modified: 09/29/2004

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Citations

Millane v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 853

Most Recent Citation

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CITATION:	Millane & Ors v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 853
HEARING DATE(S):	31/08/04, 01/09/04, 02/09/04, 03/09/04, 06/09/04, 07/09/04, 08/09/04, 09/09/04
JUDGMENT DATE:	17 September 2004
JUDGMENT OF:	Hoeben J at 1
DECISION:	Judgment for the defendant. Plaintiffs to pay the defendant's costs of these proceedings.
CATCHWORDS:	Defamation Act 1974 s15, 22, 34. Substantial truth - public interest - qualified privilege - comment by a stranger, nominal damages.
LEGISLATION CITED:	Defamation Act 1974 Property Stock and Business Agents Act, 1941
CASES CITED:	Allsopp v Incorporated News Agencies Co Pty Limited (1975) 26 FLR 238 Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354 @ 359 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 @ 40 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Chappell v TCN Channel 9 Pty Limited (1988) 14 NSWLR 153 Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165 @ 173 Green v Schneller [2000] NSWSC 548 Grundmann v Georgeson (Qld Court of Appeal, unreported, 18.6.1996) Hamilton v Whitehead (1988) 166 CLR 121 @ 127 London Artists Limited v Littler (1969) 2 QB 375 Morgan v John Fairfax & Sons (No 2) (1991) 23 NSWLR 376 @ 387-8 Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Nissho Iwai Australia Limited v Malaysian International Shipping Corporation (1989) 167 CLR 219 @ 229-30 Pervan v North Queensland Newspaper Co (1993) 178 CLR 309 South Hetton Coal Co Limited v North-Eastern News Association Limited (1894) 1 QB 133 Star Hotel Holdings Limited v Newcastle Newspapers Pty Limited & Anor [2001] NSWSC 53 @ [33]-[38] Sutherland v Stopes [1925] AC 47 @ 79 Wake v John Fairfax & Sons Limited (1973) 1 NSWLR 43 @ 47 Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697
PARTIES :	John Millane - First plaintiff Andrew Partridge - Second Plaintiff Mathew Partridge - Third Plaintiff Relocorp Pty Ltd t/as Cousins & Co - Fourth Plaintiff Nationwide News Pty Ltd t/as Cumberland Newspaper Group - Defendant
FILE NUMBER(S):	SC 20213/02
COUNSEL:	Mr CA Evatt/Mr CJ Dibb - 1st, 2nd, 3rd Plaintiffs Mr CJ Dibb - 4th Plaintiff Mr T Hale SC/Mr Henskens - Defendant
SOLICITORS:	Peter R Murphy & Co -1st, 2nd, 3rd, 4th Plaintiffs Cropper Parkhill - Defendant