Peterson v Simopoulos
[2021] VCC 1080
•13 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-20-00643
| COLIN FRANCIS PETERSON | Plaintiff |
| v | |
| APHRODITE SIMOPOULOS | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27, 28 and 29 April and 18 June 2021 | |
DATE OF JUDGMENT: | 13 August 2021 | |
CASE MAY BE CITED AS: | Peterson v Simopoulos | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1080 | |
REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords: Defamatory imputation – defences – common law and statutory qualified privilege – privileged occasion – honest mistake
Legislation Cited: Defamation Act 2005 (Vic)
Cases Cited:Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Farquhar v Bottom [1980] 2 NSWLR 380; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364; Hardie v The Herald and Weekly Times Pty Ltd [2016] VSCA 103; Jones v Skelton [1963] 1 WLR 1362; Morgan v Odhams Press Ltd [1971] 2 All ER 1156; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; Lewis v Daily Telegraph Ltd [1964] AC 234; Charan v Nationwide News Pty Ltd [2018] VSC 3; Wraydeh v Fairfax Media Publications Pty Limited; Wraydeh v Nationwide News Pty Limited [2021] NSWCA 153; Bowen v Hall (1881) 6 QBD 333; Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; Cush v Dillon (2011) 243 CLR 298; Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd [1947] NSWStRp 2; Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044; Roberts v Bass (2002) 212 CLR 1; Hunt v Great Northern Railway Co [1891] 2 QB 189; Guise v Kouvelis (1947) 74 CLR 102; Adam v Ward [1917] AC 309; Bennette v Cohen [2009] NSWCA 60; Bashfordv Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366; Howe & McColough v Lees (1910) 11 CLR 361; Papaconstuntinos v Holmes à Court (2012) 249 CLR 534; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; Szanto v Melville [2011] VSC 574; Horrocks v Lowe [1975] AC 135; Clark v Molyneux (1877) 3 QBD 237; Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Murray v Raynor [2019] NSWCA 274
Judgment: Damages to the plaintiff assessed in the sum of $40,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Sowden with Mr D Mence | Ken Smith & Associates |
| For the Defendant | Mr J Castelan | Goldsmiths Lawyers |
HER HONOUR:
1The plaintiff sues for defamation arising from an email dated 20 October 2019 sent by the defendant to fourteen people, all of whom are members of the Owners Corporation of Moe Village (“the OC”), a strata development of forty-five units at 48 Haigh Street, Moe. The plaintiff purchased his unit in the development in 2001. The defendant and her husband purchased ten units in the development in 2018 and subsequently an additional four units.
2The development was originally intended to be a quasi-retirement community in which people receiving aged or disability pensions could rent the units from the investor owners. The rent, which was tied to the government benefits tenants received, would be pooled to provide a reliable income stream for investors, which would make the development an attractive investment proposition.
3The development included a common area where residents ate their meals, prepared in the onsite kitchen either by an employed cook, or by the building manager. The individual units did not have full kitchen facilities. Presumably the wages of the building manager and cook were paid from the income stream generated by the pooled rent.
4However, as government pensions ceased to keep pace with inflation, the model became less profitable and tenancy of the units decreased. By around 2010, there were only four units occupied and investors were not receiving any return on their investment.
5As a result of this, units were selling for low prices. On the plaintiff’s evidence, some units changed hands for as little as $4,000, well below the $80,000 he had paid in 2001.
6The structure of the development was then changed. The OC was established, rent ceased to be pooled and a trust company was set up, Moervo Pty Ltd. The only assets of the trust were Unit 7 of 48 Haigh Street, Moe, and subsequently Unit 46. These two properties came to be in the possession of the trust company in circumstances which I will not detail here. The trust company was owned by the unit owners. An OC committee was established to make decisions about the management of the OC. The plaintiff was a member of the OC committee between 2010 and 2019. A strata manager was also appointed to collect OC fees and administer the development. However, the development continued to employ a building manager, now paid from OC fees.
7As well as the plaintiff and the defendant, other important players in this case are Heather and Fred Smith who, through their family trust, owned a number of units in the development. Heather Smith had been a client of the plaintiff in the 1990s, when he was working as a financial advisor. He brought the development to her attention as an investment opportunity. Both the plaintiff and Heather Smith had invested in other similarly-structured residential developments in Caloundra and Dromana.
8The plaintiff and Heather Smith have known each other through their investments and as members on various boards for twenty-five to thirty years. The plaintiff describes their relationship as “friendly” though they are not “friends” and do not socialise outside of committee meetings. The plaintiff first met Fred Smith several years after he got to know Heather Smith, when Fred Smith did some work on the plaintiff’s car.
9The development had a run of bad luck with building managers stealing from the properties, and an OC manager embezzling from the OC. In around 2016, Heather Smith was installed by the OC committee as the building manager. This was a live-in position and carried with it a salary of $60,000 per annum. Mrs Smith lived in Unit 46, a unit owned by Moervo Pty Ltd. The rent for this unit was paid by the OC. From time to time, Fred Smith would undertake repairs and maintenance work at the Village. Whether he was paid for this work, or only paid for expenses, was not clear from the evidence.
10The plaintiff said that, prior to the events that transpired in the second half of 2019, he had not been to the development for about ten years. He was not sure what work was required of the building manager, but considered that Heather Smith had done an outstanding job improving the occupancy of the development.
11There was no evidence as to the building manager’s job description. It was not clear whether the building manager’s role was to increase occupancy of the units or to maintain gardens, buildings or both. In any event, the defendant and other owners were concerned that the building manager’s salary was the largest component of the OC fees and they wanted to reduce those fees by removing the building manager and outsourcing maintenance and gardening to private contractors.
12This is the general background to the events that led to the publication of the email of October 2019, the subject of this litigation.
The May 2019 Annual General Meeting
13On 7 May 2019, the OC held its annual general meeting (“the AGM”). Attending this meeting, either in person or by proxy, were owners who between them held thirteen units. This was less than 50 per cent of the total available units so a quorum was not established, and all resolutions were interim only. A committee was elected which included the plaintiff. The meeting commenced at 5.00pm and finished at 5.30pm.
14Afterwards, the defendant and her husband, neither of whom had attended this meeting, began canvassing other lot owners about their views on how the OC was being conducted, and in particular about the OC fees. It became clear that a number of owners had concerns about the fees and questioned whether an onsite building manager was necessary or justifiable. From this point, two distinct “camps” emerged which, for convenience, I will identify as the plaintiff’s camp and the defendant’s camp, though in reality they might more appropriately be identified with the defendant’s husband, Peter Mousaferiadis, on the one hand, and Heather and Fred Smith on the other.
15The plaintiff’s camp considered that after years of difficulties with different strata managers and building managers, and work to establish a trust company, the development was finally getting back on track, occupancy was increasing and Heather Smith was doing a good job as building manager.
16The defendant’s camp considered that the OC fees were too high and most of those fees were going to pay the salary and associated costs of the then building manager, Heather Smith. Some in the defendant’s camp appeared to be interested solely in reducing OC fees, however that might be achieved. Others seem to have had at least as much interest in replacing the old committee and getting rid of Heather Smith as building manager.
17On 31 May 2019, the defendant emailed a group of owners that she identified as being on “our team” and “in our camp” and informed them that she and her husband would contact the strata managers, Excel Strata Management, and tell them that twenty owners objected to the specific resolutions passed at the AGM and “demand a ‘SPECIAL GENERAL MEETING’ that they are obliged to organise on our behalf”. She attached to this email a form for those who wanted to provide a proxy to vote at the Special General Meeting (“the SGM”).
18Over the next week or so, various unit owners emailed the defendant, asking questions and expressing support for reducing the OC fees. Some went further and included insinuations that planted the seed within the defendant’s camp that dubious things were happening on the OC committee. Kerrie Brooks said in an email that “David Adams will also be in our camp, he moved out of his unit as they made it so unpleasant for him”. Who “they” are is not specified, nor is the manner of unpleasantness.
19On 3 June 2019, the defendant emailed Matt Twiselton of Excel Strata Management and requested, on behalf of 25 per cent of the lot owners, that a SGM be called. In that email she noted that the lot owners seeking the SGM objected to the resolutions made at the AGM on 7 May 2019. She outlined her specific concerns, which included the insurance renewal, the building valuation and the budget, and the reasons for those concerns. She noted in that email that she considered it a conflict of interest for Heather Smith to be “on the board” and “also contracted out as an employee to be the building manager”. She also commented that:
“We believe it is not the lot owners responsibility to babysit current tenants who could achieve their special needs by tapping into NDIS funding or Aged Care packages that they currently receive. As such we believe that the role of building manager is redundant and superfluous.”[1]
[1] Joint Court Book (“JCB”) 229
20On 6 June 2019, the plaintiff emailed the defendant and others, acknowledging the request for the SGM and noting it would be called by Excel Strata Management without delay. He responded to the various matters raised in the defendant’s email. In response to the defendant’s comment about the lot owners “babysitting” tenants, he wrote “[m]aybe you should talk to a wider range of people to obtain your information from, before making a stupid statement like the one highlighted immediately above”.[2]
[2] JCB 229
21It would be fair to say that from this point on, relations deteriorated. The defendant circulated the plaintiff’s response to those in her camp. In reply, owner, Rose Joseph, agreed with the plaintiff that under-insurance was a problem, and said that she did not want to insult anyone by suggesting they were being babysat, nor did she want to underestimate the role of building manager, but would still like to know whether there was a safer and cost-effective solution. Kerrie Brooks saw the plaintiff’s response as a “personal attack” on the defendant and David Adams thought it was “very rude”.
22The tenor of discussions became more heated. The defendant emailed Excel Strata Management twice more, seeking to have the date for the SGM fixed. The second email requested Mr Twiselton to “stop ignoring my emails”[3] and asked that he chair the SGM as Colin Peterson’s response was “utterly hostile and abusive”. Mr Mousaferiadis and the plaintiff engaged in some unedifying verbal sparring.
[3] JCB 500
23On 24 June 2019, Mr Anthony Wilkinson of Pelham Strata Lawyers sent a letter to the defendant, Mr Peter Mousaferiadis, Ms Elisabetta D’Amore and Ms Kerrie Brooks. Mr Wilkinson advised that he acted on behalf of the OC and sought clarification of what should be on the Agenda for the SGM.
24The defendant conferred via email with various people in her camp and responded to Mr Wilkinson on 28 June 2019. Her email states:
“I must say I am surprised that the need was felt to engage a lawyer for simple communication. Is this normal practise? If so, can you direct me to the section of the Act or Regulations that explains that this is a proper step, in this process?
If you act on behalf of our Owners Corporation, then you also represent us. Are you in fact acting on behalf of the committee that was elected (for the interim) and is not yet resolved, as there was no quorum? Do you represent Excel Strata?”[4]
[4] JCB 517
25Mr Wilkinson responded on 1 July 2019 and pointed out “a few problems with your Agenda, which will only cause problems moving forward and likely not result in what you want”.[5] The defendant responded to this on 12 July 2019 and set out in further detail her position, including that termination of the building manager was warranted on the basis that there had been “numerous complaints” made against her and there was an “obvious” conflict of interest.
[5] JCB 521
26On 14 July 2019, Ms Brooks forwarded a number of emails to the defendant, including one which purported to show that “the committee were expected to approve Fred’s expenses without ever viewing a receipt”[6] and one attaching the Minutes, where “they gave Heather a $5,000 bonus on a job well done, this is the period where Heather and an owner (who was intimidated by Heather actually moved out of her unit) took out Restraining Orders this was never mentioned. What an insult”.[7]
[6] JCB 525
[7] JCB 527 – emphasis in original
27On 26 August 2019, a Notice and accompanying Agenda was sent out to all lot owners advising of the SGM on 17 September 2019.
28On 17 September 2019, the SGM was held in Collingwood at Peter Mousaferiadis’ business premises. In attendance were eleven unit owners, including the plaintiff and defendant. In addition, a number of unit owners had provided proxy forms, some to the defendant’s camp and some to Anthony Wilkinson, the lawyer who had been appointed by the existing OC committee, including the plaintiff. Mr Wilkinson also held proxy votes for the two units owned by Moervo Pty Ltd, Units 7 and 46. While Mr Wilkinson was ostensibly there on behalf of all lot owners, he had been appointed by the committee and his proxy votes were all proxy votes for the plaintiff’s camp. A question was raised as to whether Units 7 and 46 could vote by proxy, which does not seem to have been resolved. It did not matter, because even if those votes were included in the plaintiff’s camp total, the defendant’s camp “had the numbers”. The SGM duly voted to remove the committee elected at the May 2019 AGM, elect a new committee, approve a budget of $50,000, review the current strata manager and review the role of the building manager.
29A transcript of the SGM was provided and an audio recording, taken by the plaintiff, was played in Court. Much of the meeting was taken up trying to determine who was present, who held proxy votes, what lot number corresponded to which unit, and other housekeeping matters. The meeting grew heated and the plaintiff’s camp felt they were not given an opportunity to be heard or to address issues. The defendant’s camp considered that the plaintiff’s camp were not speaking to the motion and were behaving rudely and aggressively. The transcript ends when the plaintiff left with the Smiths, Heather Smith having been asked to leave by Mr Mousaferiadis and a security guard who was present.
30Various witnesses gave evidence about what happened at that meeting. Some witnesses said that Heather Smith slammed her hands down on the desk and knocked over the chair. Ena Papak said the plaintiff said words to the effect of “do you really want these idiots running the committee?”.[8] Dr Myers-Briggs said the plaintiff said “‘[y]ou call yourself a doctor’”[9] to her, which she thought was rude. The plaintiff’s version of events was that he was shut out from properly participating in the meeting and unable to express any of his concerns or speak to the motion. Having listened to the audio recording and read the transcript, it is fair to say the SGM was not an exemplar of an orderly meeting, and both sides were responsible for the chaos. The plaintiff was clearly annoyed and frustrated, as were the Smiths. Mr Mousaferiadis, who chaired the meeting, wanted to overturn the motions passed at the May 2019 AGM and vote in a new OC committee, and clearly did not want any debate or discussion. The impression I had was that the formalities were rushed through in order to adjourn the meeting without any discussion.
[8] Transcript (“T”) 337
[9] T412
31On 19 September 2019, the new OC committee held a committee meeting. At that meeting, the committee resolved to appoint new strata managers, terminate the position of “live in residential Building Manager” effective “immediately and in accordance with statutory requirements”,[10] task the new strata managers to prepare a report on the ownership of Units 7 and 46, and prepare a budget inclusive of maintenance items for the next meeting.
[10] JCB 581
32The following day, Kerrie Brooks sent an email to the defendant and other unit owners titled “Personal Threats”. I reproduce this email in full as it is relevant to the email the subject of this hearing, and the defence of qualified privilege raised by the defendant:
“Hi Committee
Hope this email finds you well and I [am] sorry to have missed the meeting last night. Just to keep you in the loop ever since the request went out to the old Moe committee for a Special General Meeting to be called, I have been under attack.
In 20 years of living in my home I have never suffered from graffiti nor have my neighbours or the blocks around us but as soon as my name was put on the letter to call the meeting, first my fence has been sprayed with a red painted line which the police say is not graffiti but wilful damage as it across the four panels in a straight line. Then I had a bike placed down my drive next to my car these incidents all happen very early on a Friday morning.
Today it was nails in cardboard placed under my front and back tyres. Luckily, I now commute to work so didn’t rush out and drive off. It is not hard to guess who it is. I’ve contacted the police and this will be an ongoing situation. Photos attached.
This has only strengthened my resolve to sort out the opportunist, fraudulent activity and to get this property back on track. I have always believed it has potential to be far better than it is next to the CBD. Location, Location, Location they say….
Look forward to our next meeting.”[11]
(sic)
[11] JCB 583
33Attached to this email were three photographs, one showing a red painted line sprayed on a timber fence and two showing what appears to be a piece of paper on the ground. Presumably this is the cardboard with nails in it referred to in the email.
34Ms Brooks’ email provoked a number of responses, including one from David Adams on 21 September as follows:
“Hi all
I’m sure it’s just a coincidence but yesterday my tenants came home from work and their hot water system was gushing water all over the place, and the whole top of the hot water system had lifted up and the gushing water coming out was still being heated and was very hot.
As I said it’s possibly only a coincidence, but I don’t like coincidences.
However it is important for us to all be aware that the ‘Building Manager’ has keys to all the properties.”[12]
[12] JCB 585
35Amanda Stephens emailed the defendant’s husband on 3 October 2019 to let him know that someone called “Fred” had contacted her and that he became “really cross and hostile”[13] when she said she did not believe that the salary paid to his wife was “value for money”[14] and that she saw no need for the building manager.
[13] JCB 589
[14] JCB 589
36On 8 October 2019, lot owners were informed that another SGM was to be held on 24 October 2019. This SGM was called by members of the former committee, including the plaintiff, and proposed the following resolutions:
(a) that the outcome of the resolutions passed at the SGM on 17 September 2019 be rendered null and void;
(b) that Excel Strata managers be reinstated as OC managers; and
(c) that Heather Smith be reinstated as building manager.
37On 9 October 2019, Amanda Stephens sent an email to the defendant and others in which she recounted her discussion with Fred Smith and said:
“Today I was contacted by the real estate that manages my unit, stating they needed to get a lock smith due to issues with the mailbox.
I queried (given my recent interaction with Mr Smith) has the box been tampered with?
The real estate replied; that is what the tenant believes
…
I have never had any previous issues with the mail box.
…
I find the timing more than uncanny.”[15]
[15] JCB 595
38On 14 October 2019, the defendant emailed the new body corporate manager, Stephen Nippers, asking him about the vacation of the building manager “[a]s per the termination letter”.[16]
[16] JCB 596
39On that same day, David Adams sent an email to the committee saying “I was informed today that Fred did a major load up last night, filing Cabinets, white goods, furniture etc”.[17]
[17] JCB 597
40Kerrie Brooks responded to this email saying she had a “call from a tenant just now” stating that Fred went off with “2 trailer loads and then came back with a truck and loaded it up and left”.[18] Ms Brooks wrote “it is criminal what they are doing. We should be putting a stop to what they are saying or we could find that we loose (sic) proxies and won’t know it until the night”.[19]
[18] JCB 597
[19] JCB 597
41Further emails flowed between members of the defendant’s camp, containing allegations about the behaviour of the Smiths and implying that they were stealing common property.
42On 18 October 2019, Marina Chernishov emailed the defendant, amongst others, as follows:
“Hey guys
I received a copy of written minutes in the mail and there was a sticky note from Heather who stated ‘The correct contact for Colin Peterson is XXXX XXX XXX’.
Does anyone know who Colin is and why would Heather provide his contact information?
They are as dodgy as they come.
Marina.”[20]
[20] JCB 294
43It was in response to this email query about “who Colin is” that the defendant wrote and sent to fourteen people the email that is the subject of these proceedings (“the publication”).
44That email, dated 20 October 2019, says:
“Hello fellow Haigh St lot owners,
Firstly, just letting you know I have removed one person from this thread, as he has sold his unit, so this no longer concerns him. His name is XXXXX .
I am BCC (ing) 2 other lot owners (including 1 new owner) who’s addresses you wont see as I don’t yet have permission to use their email addresses openly. If you are a new owner, this email may not make total sense to you, but I feel it’s important to bring you up to speed with the situation anyhow.
I apologise for the scarce communication since the SGM we held on the 17/9/19. Our new strata manager (Ace strata Latrobe) has been waiting on the contact details of all lot owners from Excel strata (former strata manager), whom have been refusing to comply with that request up until a few days ago. Our new strata manager will send out letters and SGM minutes etc this week. Our committee will formally respond to Colin’s claims this week too. In any case, I’m writing to you as a lot owner, not a committee member to keep you in the loop until then.
And now answers to your question Marina, you ask who Colin is in relation to Heather;
Colin Peterson is the former chairperson of the previous Owners Corp committee, who has always run the show as Chair and kept the committee limited to his close knit friends & allies, to ensure he could control EVERYTHING and shut down any questions or challenges.
Colin and his friends on the previous committee carry out their work with no real transparency and are insistent upon having a full time building manager, who gives all contract/maintenance work to her husband Fred, without getting other quotes, and often this work has to be done again, as Fred is unqualified to complete the work in the 1st place. Colin gets paid 10K from our fees to complete the accounting for MOERVO P/L, which we all thought we owned (lot 7 and lot 45 common area) but ASIC search reveals that MOERVO is a private company with 6 shareholders (instead of all of us). We are currently looking into the legality of the ownership of what is supposed to be common property belonging to all of us and whether Colin and his friends have the right to use these votes in their favour, as they did in the last SGM.
Colin (and his friends) have called the SGM for this coming Thursday 24/10, to undo what the new committee is trying to do, which is basically to reduce body corp fees & save everyone money. We suspect they have a lot to hide. Our committee have so far dismissed Excel strata as we felt they were not acting in our best interests and appointed a new local Strata manager called Ace strata Latrobe. We also dismissed the building manager last Wednesday.
Colin is the one who will try to convince everybody that the new committee is recklessly about to lose everyone a lot of money. Why you ask?
He claims that the building manager will make a claim for a 6 figure sum. This is pure RUBBISH without any foundation. Our OC has the right to dismiss building manager (& give her due entitlements of 4 weeks pay) and there can be no unfair dismissal claim as our owners corp employs less than 15 employees, according to Fairwork rules). Previous 2 building managers were dismissed by old committee, with no notice & no entitlements. So, this is a scare tactic designed to make us jump ship with fear.
Secondly, Colin and his friends are claiming that we stand to pay out old strata manager $20K or so for dismissing them. We the committee highly doubt this will happen as Excel is up to their eyeballs in unprofessional conduct which we can prove; They will not want to stand in front of a member at VCAT and explain their actions which breach the rules that govern strata managers. Again fear tactics. In the event, that Excel do try to claim 20K from our OC, we are likely to make up this money in less than 5 years as our new strata manager charges over 2K less p/annum as well as half the hourly rate. In addition to this, our OC will have a substantial saving without a full time live in building manager, so we are still better off financially.
We are aware that some of you have been approached and pressured into giving your proxy’s to Colin Peterson/Fred Smith to support the reinstatement of the old committee. One of our committee members has had her personal residence vandalised on 4 separate occasions since calling our original SGM, so we understand the pressure is great. Another lot owner has had to call the police, when Fred refused to leave her property. Numerous lot owners/tenants have reported sudden damage to external hot water units and mailboxes at the units in Moe. Again, they are hoping we will all cave in with fear. Their actions show they are very desperate right now, as they have a lot to lose.
Meanwhile the (former) building manager Heather and her husband Fred have been loading up trailer loads of what we believe to be OC inventory, in her anticipation of moving on. Residents at Haigh St, have reported that building managers husband (Fred) loads up late at night on a Sunday and drives off just before midnight. This has happened over the last 4 weekends. As of yesterday Fred and building manager Heather is now openly loading up in broad daylight. Yes, he may be loading up his personal items, but we currently have a commercial kitchen that has been stripped bare, and why would he wait till just before midnight if he wasn’t stealing OC property? We are following up with this but currently without an inventory list from Excel, we can’t prove OC ownership of items taken, so the police can’t do much. We will be following up on this issue of (alleged) theft as well.
If the SGM goes ahead this Thursday, please turn up to vote OR give one of our committee members your proxy. We have come so far, and have so much to lose if Colin and his camp gets their way and is reinstated as our OC committee.”[21]
(emphasis in original)
(sic)
[21] JCB 298
45The rest of the email provides details of the current committee members and reminds recipients to pay body corporate fees.
Defamatory imputations
46The plaintiff pleads that, in its natural and ordinary meaning, the publication meant and was understood to mean that the plaintiff:
(a) operated the OC in a way that promoted his and his fellow committee members’ interests over those of other lot owners in the development;
(b) was paid $10,000 by the OC for services performed for his own benefit;
(c) has wilfully and maliciously damaged the property of other lot owners, including hot water units and mailboxes; and
(d) intimidated or attempted to intimidate lot owners into obtaining their votes for a SGM of the OC.
47By her Defence filed 16 April 2020, the defendant says, in relation to paragraph 4 of the pleadings:
(a) if her words were defamatory, which is denied, then the words were true in substance or in fact, or were substantially true, and, accordingly, she relies on s25 of the Defamation Act 2005 (Vic) (“the Act”);
(b) she admits to using the words alleged, but says she was honestly mistaken in asserting that “Colin gets paid 10K from our fees”;[22]
(c) the true meaning of the damage to property alleged in paragraph 4(c) is that there was a climate of fear in which former committee members, but not specifically the plaintiff, operated to intimidate lot owners;
(d) the true meaning of her email was to warn lot owners of what former committee members, but not specifically the plaintiff, were capable.
[22] At paragraph 3(b)
48She consequently denied defaming the plaintiff.
49On 27 January 2021, the defendant filed an Amended Defence in which she did not admit, rather than denied, that the meanings pleaded in paragraphs 4(a), (c) and (d) of the Statement of Claim were false. She admitted that the publication pleaded at paragraph 4(b) of the Statement of Claim carried the meaning that the plaintiff was paid $10,000 by the OC for services performed by him, but did not admit that the publication carried a meaning that the plaintiff was paid the sum for his own benefit, and pleaded that it carried a meaning that he was paid the said sum in consideration for completing accounting work for Moervo Pty Ltd. She pleaded that the statement that he had been paid that sum by the OC was incorrect and an “honest mistake”[23] and that she is “ready, willing and able to apologise”[24] for the publication of that incorrect comment.
[23] At paragraph 5.(v)
[24] At paragraph 5.(vi)
50She raised a new defence of qualified privilege at common law and pursuant to s30 of the Act.
51On 11 March 2021, the defendant filed a Further Amended Defence, in which she pleaded further particulars of her defence of qualified privilege and further particulars of her claim, in mitigation of damages, that a number of recipients held a negative view of the plaintiff prior to the publication.
Is the publication defamatory of Mr Peterson?
Principles in relation to defamatory imputations
52It is necessary for Mr Peterson to show that the imputations he relies upon are conveyed by the article and that those imputations are defamatory of him.
53In relation to the first point, the principles are well settled, as encapsulated in the following passage from the judgment of White J in Hockey v Fairfax Media Publications Pty Ltd:[25]
“… The question is whether ordinary reasonable readers would have understood the matters complained of in the defamatory senses pleaded. The ordinary reasonable meaning of a matter may be either its literal meaning or that which is implied or inferred by the matter. It includes inferences and conclusions which the ordinary reasonable person draws from the words used, taking into account the observation of Lord Reid in Morgan v Odhams Press Ltd … at 1245, that the reader may engage in a certain amount of ‘loose thinking’.
…
Ordinary reasonable readers are taken to be persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind, nor avid for scandal. They do not live in ivory towers and can and do read between the lines in the light of their general knowledge and experience. They do not engage in over‑elaborate analysis in search for hidden meanings, nor do they adopt a strained or forced interpretation. They are not lawyers and their capacity for implication may be greater than that of lawyers.
The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published … ”.
[25](2015) 237 FCR 33 at 49-50 paragraphs [63]-[65]. See also Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505; Farquhar v Bottom [1980] 2 NSWLR 380 at 386; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 466-467, paragraphs [1]-[5]; Hardie v The Herald and Weekly Times Pty Ltd [2016] VSCA 103 at paragraph [46]
54The attributes of the hypothetical ordinary reasonable reader have been described in a number of authorities.[26] In Lewis v Daily Telegraph Ltd,[27] Lord Reid described such a hypothetical person as one who is not “avid for scandal”.[28] Such a person:
“…does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.”[29]
[26]Jones v Skelton [1963] 1 WLR 1362 at 1370 (Lord Morris of Borth-y-Gest); Morgan v Odhams Press Ltd [1971] 2 All ER 1156 at 1245 (Lord Reid); Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 190 (Gleeson CJ, McHugh, Gummow and Heydon JJ)
[27] [1964] AC 234
[28] (Ibid) at 260
[29] (Ibid) at 258
55If any of the imputations are made out, the second question is to determine whether those imputations are defamatory. Words are defamatory when the imputation lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, shunned or avoided by members of the general public.[30]
[30]Radio 2UE Sydney Pty Ltd v Chesterton (supra); applied in Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364 and considered in Hardie v The Herald and Weekly Times Pty Ltd [2016] VSCA 103, with some discussion as to the ‘shun or avoid’ approach as being exceptional and related to certain special attributes of the plaintiff
Application of the principles to this case
56I have set out the content of the publication above. It is important to look at the sting of the publication in the eye of the reasonable reader of the email. One should avoid the “trap of parsing and analysing each sentence or paragraph”[31] to see whether the publication as a whole conveyed the alleged imputations.
[31] Charan v Nationwide News Pty Ltd [2018] VSC 3 at paragraph [35]
57I now consider the alleged imputations.
Imputation (a) ꟷ Mr Peterson operated the OC in a way that promoted his and his fellow committee members’ interests over those of other lot owners in the development.
58The defendant says she did not state anything in the email to convey the meaning that the plaintiff operated the OC in a way that promoted his own interests over other lot owners.
59I disagree with this submission. The words “has always run the show”,[32] “kept the committee limited to his close knit friends & allies, to ensure he could control EVERYTHING [emphasis in original] and shut down any questions or challenges”[33] and “Colin … carry(s) out their work with no real transparency”[34] clearly, in my view, convey the impression that the way in which Mr Peterson ran the committee was not to the benefit of all lot owners. The rest of the publication, in referring to the fact that Mr Peterson has a lot to lose and a lot to hide, conveys the imputation that, until the new committee came along, Mr Peterson was running things to promote his and his friends and allies interests over those of other lot owners. The imputation is made out.
[32] JCB 22
[33] JCB 22
[34] JCB 22
Imputation (b) ꟷ Mr Peterson was paid $10,000 by the OC for services performed for his own benefit
60The defendant submits that the imputation is not conveyed by the email. There is nothing in the email that conveys a meaning that any services were performed for the benefit of the plaintiff. It states:
“Colin gets paid 10K from our fees to complete the accounting for MOERVO P/L, which we all thought we owned (lot 7 and lot 45 common area)”[35]
and it conveys, at most, that services were performed for the benefit of Moervo Pty Ltd.
[35] JCB 22
61For the reasons below, I do not accept that submission.
62When the publication is read as a whole and not dissected minutely, it is clear that the defendant is doing more than merely imparting information that Mr Peterson was paid an amount of money for accounting services rendered to Moervo Pty Ltd. The tenor of the entire document is replete with the suggestion that Mr Peterson is behaving badly if not criminally, and that he has something to hide and has a lot to lose. I reject the submission that the publication carries the imputation that the services were performed for the benefit of Moervo Pty Ltd. The actual words used – “gets paid” – implies that this is an ongoing arrangement, and that Mr Peterson continues to get paid $10,000 from the fees paid by lot owners for work done for a company which turns out not to be owned by all the lot owners as they thought, but is in fact a private company. The imputation here is that Mr Peterson is getting paid an amount of money from OC fees to which he is not entitled and therefore for his own benefit. The imputation is made out.
Imputation (c) – the Plaintiff has wilfully and maliciously damaged the property of other lot owners including hot water units and mailboxes
63The defendant submits that the email does not go so far as to convey the meaning that it is the plaintiff who wilfully and maliciously damaged the property.
64While it is true that the email does not specify that anyone in particular is responsible for the wilful and malicious damage alleged, when looked at in the context of the whole publication, it clearly conveys the meaning that Mr Peterson has been involved in this behaviour. The defendant, in this publication, is ostensibly answering a question “Who is Colin in relation to Heather”. The first five paragraphs start as follows:
“Colin Peterson is the former chairperson”[36]
“Colin and his friends on the previous committee”[37]
“Colin (and his friends) have called”[38]
“Colin is the one who will”[39]
Secondly, “Colin and his friends”.[40]
[36] JCB 22 – emphasis in original
[37] JCB 22
[38] JCB 22
[39] JCB 22
[40] JCB 22
65The paragraph relevant to this imputation starts “We are aware that some of you have been approached and pressured into giving your proxy’s to Colin Peterson / Fred Smith to support the reinstatement of the old committee”.[41] It then immediately goes into the allegations that one committee member had her personal residence vandalised on four separate occasions.
[41] JCB 22
66The ordinary reader of this paragraph would clearly link the preceding paragraphs which explicitly mention Colin Peterson to the first sentence of the paragraph discussing the pressure on lot owners to give Colin Peterson a proxy vote to understand that the person, or one of the people, who has been applying that pressure, is Colin Peterson. The fact that the publication immediately goes into the allegation that one committee member has had her personal residence vandalised clearly also links this vandalisation to Mr Peterson. The linking of the “pressure” to give Mr Peterson a proxy, with the vandalisation of the property by the words “so we understand the pressure is great”,[42] supports the finding that the imputation conveyed is that it is Colin Peterson who is responsible for the damage.
[42] JCB 22
67The only time in this paragraph when Colin Peterson is not implicated in the alleged acts of vandalism is when the defendant specifically refers to an occasion when a lot owner called the police because “Fred” refused to leave her property.
68The defendant then says that “numerous” owners and tenants have reported “sudden damage” to hot water systems and mailboxes. The defendant says she does not attribute this damage to any specific person. However, in the context of the publication as a whole, it is clear that she is attributing this conduct to Mr Peterson and his “friends and allies”. She goes on to say “they are hoping we will all cave in with fear. Their actions show they are very desperate right now, as they have a lot to lose”.[43] A reasonable reader would consider that the “they” referred to is Colin Peterson and his friends, as there have been numerous mentions prior to this sentence of “Colin and his friends”. It is difficult to accept that “they” would suddenly refer to some other unidentified group of people, or, alternatively, would refer only to Heather and Fred Smith, or other OC members and not Mr Peterson. The use of the words “their actions show that they are very desperate right now” clearly relates to the actions she has just described – the vandalising of personal property, hot water systems and mailboxes.
[43] JCB 22
69I am bolstered in this conclusion by the fact that, elsewhere in the publication, the defendant uses phrases such as “this is a scare tactic designed to make us jump ship with fear”[44] when specifically referring to a claim made by Mr Peterson that the building manager may take action for unfair dismissal. By the time the reader gets to the paragraph relating to malicious damage, they have been told twice that Colin Peterson uses scare or fear tactics to get his way. In the paragraph in which imputation (c) arises, she says “[a]gain, they are hoping we will all cave in with fear”.[45] The reader will understand that this is another example of the scare tactics deployed by Mr Peterson. The imputation is made out.
Imputation (d) – the Plaintiff intimidated or attempted to intimidate lot owners into obtaining their votes for a SGM of the OC
[44] JCB 22
[45] JCB 22
70The defendant submits that the email does not state that the plaintiff intimidated or attempted to intimidate lot owners into obtaining their votes. It simply states that people were approached to give their proxies to Colin Peterson or Fred Smith. It does not state that anyone was approached by the plaintiff himself, let alone intimidated by him.
71Again, the defendant has not set out who approached or pressured lot owners to give their votes to Mr Peterson. There is, in this paragraph, a specific reference to “Fred” refusing to leave a lot owner’s property. However, I reject the assertion that a reasonable reader would not draw the conclusion that Mr Peterson had been one of the people approaching or pressuring lot owners for their proxy. The reference to “their actions” and “they have a lot to lose” encompasses Mr Peterson for the reasons set out above in relation to the malicious damage imputations.
72The next paragraph starts “Meanwhile” and then deals with allegations made specifically about Heather and Fred Smith. This paragraph contains no allegations about Colin Peterson. An ordinary reader would understand that the preceding six paragraphs all relate to Colin and his friends, particularly as Colin Peterson’s name is mentioned in every paragraph at least once. The seventh paragraph then marks a transition, aided by the use of the word “meanwhile”, to those allegations directed solely against the Smiths. The imputation is made out.
Are the Imputations defamatory?
73The defendant accepts that imputations (a), (c), and (d) are defamatory if made out. The defendant submits that imputation (b) is not defamatory as it is not defamatory to simply state that a person was paid $10,000, even if they were not.
74As I have found that imputation (b) is more than an imputation that Mr Peterson was paid $10,000, but was in fact an imputation that he was paid $10,000 from OC funds for his own benefit, I am satisfied that this imputation is defamatory of the plaintiff.
Defences
75The common law defence of qualified privilege applies where the publisher of a defamatory statement has a relevant duty or interest to make that statement and the recipient of the statement has a corresponding duty or interest to receive it. The law recognises that, “in some circumstances the importance of the protection of the reputation of an individual may have to give way to the importance of freedom of communication”.[46]
[46]Wraydeh v Fairfax Media Publications Pty Limited; Wraydeh v Nationwide News Pty Limited [2021] NSWCA 153 (“Wraydeh”) at paragraph [41] (citing Bowen v Hall (1881) 6 QBD 333 at 343; Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79 at paragraph [22], Cush v Dillon (2011) 243 CLR 298 at paragraph [12]; Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd [1947] NSWStRp 2
76As set out in the foundational passage of Parke B in Toogood v Spyring:[47]
“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”
(My emphasis.)
[47] (1834) 1 Cr M & R 181 at 193; (1834) 149 ER 1044 at 1049-1050
77To establish the defence of qualified privilege, the defendant must establish the following, (per Heydon J):[48]
(a) that the communication was published on a privileged occasion;
(b) that the communication was related to the occasion; and
(c) that there was no malice in the publication.
[48] Aktas v Westpac Banking Corporation Ltd (supra)
78In Roberts v Bass,[49] Gaudron, McHugh and Gummow JJ expressed the defence in the following terms:
“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.”[50]
[49] (2002) 212 CLR 1
[50](Ibid) at 26 paragraph [62] (citations omitted). See also Toogoodv Spyring (supra) at 193 (Parke B); Hunt v Great Northern Railway Co [1891] 2 QB 189 at 191 (Lord Esher MR)
79As pointed out in Wraydeh,[51] the privileged occasion is distinct from a privileged communication. Though the two terms are sometimes used interchangeably, an occasion may be “privileged”, but a communication is “protected” by the operation of the privilege.
[51] (Supra) at paragraph [43]
80In some cases, the content of the communication will determine whether the occasion is privileged. In Guise v Kouvelis,[52] the defendant, a club committee man, believed that he had witnessed the plaintiff cheating at cards. He called out to the assembled members and non-members, “you’re a crook”. He relied on a defence of qualified privilege, but the Court held that he had no moral, social or legal duty to make the statement, nor did anyone assembled have a reciprocity of interest in hearing the statement, and therefore no such occasion of privilege existed.
[52] (1947) 74 CLR 102 (“Guise”)
81In other cases there may be an occasion of privilege, but the communication complained of may not be protected because it falls outside matters that are relevant to the occasion.[53]
[53] Adam v Ward [1917] AC 309, per Lord Finlay LC at 318
82Looked at another way, one does not determine whether the occasion is privileged by looking at the specific utterance and determining whether:
“… the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made.”[54]
[54] Bennette v Cohen [2009] NSWCA 60, per Campbell JA
83It has been recently and helpfully summarised by the New South Wales Court of Appeal in the case of Wraydeh:[55]
“In many cases, the content of a communication will itself dictate whether an occasion is privileged. But it is not always so. In determining whether an occasion is privileged attention is directed to the commonality of interest in the subject matter of the communication. It is reciprocity (or community) of interest in the subject matter, not limited to the precise terms of the communication, that marks out whether the occasion is one of privilege. That that is so is a common thread in various of the decisions. Whether the communication (as distinct from the occasion) is privileged (or protected) is a separate question, determined by reference to the second of Heydon J’s three conditions.”
[55](Supra) at paragraph [44]
84By close examination of the circumstances, one must determine whether the occasion exists before turning to consider whether the statements were sufficiently related to the occasion to be protected.
Was there an occasion of privilege?
85Leading up to the publication, the following circumstances existed:
(a) the plaintiff and defendant were both trying to get sufficient support from other unit owners to ensure that their respective “camp” controlled the OC committee;
(b) the plaintiff’s camp had controlled the OC committee until the September SGM;
(c) at the September SGM, the defendant’s camp had ousted the plaintiff’s camp, gained control of the OC committee, dismissed Heather Smith as building manager, reduced the budget, and replaced the previous strata managers with new strata managers;
(d) the defendant had concerns that if the plaintiff’s camp regained control of the OC committee, Heather Smith would be reappointed as building manager;
(e) the plaintiff had the following concerns: That Heather Smith may have a legal claim for termination against the OC and this could result in higher costs for the OC; the new budget did not allow for sufficient insurance on the development, and the new strata managers might be more costly as they were not engaged on a fixed rate basis;
(f) the plaintiff had called a further SGM where he proposed to hold a vote which, if successful, would displace the defendant’s camp from the OC committee and reinstate Heather Smith as building manager;
(g) if the plaintiff’s camp was not successful at the further SGM, the defendant’s camp would remain in control of the OC committee and Heather Smith would not be reinstated as building manager; and
(h) the employment of Heather Smith as building manager had a direct impact on OC fees.
86The defendant submits that the email was published on an occasion of qualified privilege and that the occasion was communication to lot owners in the development about the proper management of the development by the OC. The plaintiff concedes the communication was made in the context of a political struggle for control of the OC. However, he does not concede that privilege attaches to the occasion. The plaintiff’s submissions on this point, however, somewhat confuse the “occasion” with the “communication”. He says that “[i]t was no part of the occasion to accuse the plaintiff of criminal conduct, criminal damage, coercion and intimidation or of embezzling funds from the OC for his own benefit”.[56] However, that really concedes the existence of the occasion, and argues that the communications went beyond the occasion.
[56] Plaintiff’s Outline of Closing Submissions at paragraph [16], page 5
87As in Guise,[57] the plaintiff says that, in this case, the words used are “‘so foreign to the occasion [as to be] extraneous or irrelevant’”[58] and, by extrapolation, render the occasion not one of qualified privilege.
[57] Supra
[58] Plaintiff’s Outline of Closing Submissions at paragraph [16], page 5
88The analysis in Guise[59] resulted in a finding that no occasion of privilege existed. There was only one statement made (“you’re a crook”), and there being no reciprocity of interest between the defendant publisher and the recipients for the words spoken, no occasion arose.
[59] Supra
89For the defence to be upheld, there must be reciprocity of interest and duty between the maker of the statement and the recipient of it. As Gleeson CJ, Hayne and Heydon JJ stated in Bashford v Information Australia (Newsletters) Pty Limited,[60] “reciprocity of duty or interest is essential”.[61]
[60] (2004) 218 CLR 366 (“Bashford”) at 373, paragraph [9]
[61]Ibid. See also Howe & McColough v Lees (1910) 11 CLR 361 at 369 (Griffith CJ); Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at 541, paragraph [8] (French CJ, Crennan, Kiefel and Bell JJ)
90In the context of qualified privilege, the term “interest” is not used in any narrow or legalistic sense, but rather refers to any relevant moral, social or legal interest or duty. The interest must be more than mere gossip or curiosity, it must be a “matter of substance apart from its mere quality as news”.[62]
[62] Howe & McColough v Lees (ibid) at 398
91In determining whether qualified privilege applies in respect of a publication, it is necessary to make a “close scrutiny” of the circumstances of the case, the relationships between all concerned and the events leading up to the publication.[63]
[63] Guise (supra) at 116
92The Court must consider to whom the publication was directed and the means by which it was made. In Bashford,[64] the defendant published a newsletter called “Occupational Health and Safety Bulletin”, which was essentially an “industry” subscription publication, concerned solely with occupational health and safety. The defendant incorrectly reported in the bulletin that the plaintiff was a party to a Federal Court proceeding. On appeal, the majority of the High Court (McHugh and Callinan JJ dissenting) held that the defence of qualified privilege applied, because the newsletter was only published to persons who were responsible for occupational health and safety. In their joint judgment, Gleeson CJ, Hayne and Heydon JJ stated:
“What set the respondent’s bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership. Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest between maker and recipient which attracted qualified privilege.”[65]
[64] Supra
[65] Bashford (supra) at paragraph [26]
93In Wraydeh,[66] the defendants published various articles and named Mr Wraydeh as a person who was suspected of being the driver of a vehicle which had been involved in a fatal collision and from which scene the driver had fled. Mr Wraydeh was, in fact, the brother of the person suspected by police. The brothers had similar first names. The articles published by the defendants went beyond the information contained in the police press releases, which had named Mr Wraydeh as a person “believed to have information relevant”, but did not name him as the suspected driver of the vehicle.
[66] Supra
94The trial judge found, and the Court of Appeal upheld, that an occasion of qualified privilege existed. Once the occasion of privilege was established, the respondents were at liberty to publish information “germane” to the occasion.
95In this case, the recipients of the defamatory email were all members of the OC and all had an interest in the management of the OC. Most, but not all, of the recipients had aligned themselves with the defendant’s camp’ and some had already formed a view about Mr Peterson’s management of the OC committee to date. For example David Adams said, after observing the plaintiff in previous committee meetings, he did not hold him in high regard. Marina Chernishov considered him an ineffective leader.
96Two of the recipients of the email were new lot owners who may have known nothing at all about the history between the plaintiff and defendant camps. Nevertheless, it is reasonable to say that anyone who purchased a lot in the development would have an interest in knowing something about the way in which the OC had been conducted in the past and might be conducted in the future. A lot owner would have an interest in knowing whether there were reasonable ways in which the OC fees could, or should, be reduced. The interest that lot owners have in the running of the OC is a matter of substance and is more than gossip or mere curiosity.
97In the circumstances of this case, I am satisfied that there was an occasion of reciprocity, or a community interest between the defendant and the recipients, of the information about the proper management of the OC and, therefore, there existed an occasion of privilege.
Was the communication related to the occasion?
98Not every communication made on a privileged occasion is protected by the privilege. What is published must have a sufficient connection with the duty or interest by reason of which the privilege arises.[67]
[67]Wraydeh (supra) at paragraph [52]
99The privilege does not extend to a communication upon any other extraneous matter.[68] 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.[69]
[68] Adam v Ward (supra) at 318
[69] Adam v Ward (supra) at 321
100Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion.[70]
[70] Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; [1996] HCA 47
101Bashford[71] establishes that if the occasion is privileged, the further question arises as to whether the defendant “has fairly and properly” conducted themselves in the exercise of it. It is not a “licence to defame”.
[71] Bellino v Australian Broadcasting Corporation (supra) at paragraph [22]
102In Wraydeh,[72] the New South Wales Court of Appeal described the communications as being “germane” to the occasion and rejected the submission that communications that went beyond the scope of the police media release were “foreign” to the occasion of privilege. Once the occasion was established communications would be protected, whatever their source, provided they did not go beyond the scope of the privilege.
[72] Supra
103In the present case, the defendant submits that a close scrutiny of the surrounding circumstances demonstrates that the communications were all “germane” to the occasion and did not go beyond the scope of the privilege. The defendant relies on the following circumstances:
(a) Heather Smith had been given a bonus of $5,000 for her work as building manager. The plaintiff, Heather Smith, Fred Smith, and another committee member, had all voted on this bonus;
(b) Heather Smith, as the building manager, gave maintenance jobs to her husband;
(c) the plaintiff’s email to the defendant of 6 June 2019 was “demeaning, offensive and hostile”;[73]
[73] Defendant’s Closing Submissions at paragraph 17.(k), page 5
(d) at least six lot owners had told the defendant that they were dissatisfied with how the OC was being conducted and thought that the fees were too high;
(e) during the SGM in September 2019 the plaintiff “behaved badly”, including interjecting and seeking to cross-examine the meeting Chair when he was given the floor. He had a “hostile demeanour”. He engaged a lawyer to attend, ostensibly on behalf of all unit owners, but who actually appeared to be there to represent the plaintiff and the Smiths;
(f) he made unpleasant remarks about people’s intelligence, for example asking Ena Papak “do you really want these idiots running the committee” and saying to Dr Erica Myers-Davis “you call yourself a doctor”;[74]
(g) Heather Smith attempted to kick a security guard as she left the meeting and she and her husband were aggressive;
(h) shortly after the SGM, the defendant was told by Kerrie Brooks that her house fence had been “vandalised” and nails were placed under her car tyres. The plaintiff denied having any involvement in this incident, but said in evidence “I can’t speak for Fred”; [75]
(i) the defendant was told that hot water units at the development had been damaged at around the time of the SGM;
(j) the defendant was told that approaches had been made by people in the plaintiff’s camp to obtain proxies;
(k) the plaintiff phoned Ena Papak and said the defendant’s camp were a “bunch of idiots” and didn’t know what they were doing;
(l) the Smiths were observed loading trailers with property from the development; and
(m) mailboxes at the development had been tampered with.
[74] Defendant’s Closing Submissions at paragraph 17.(n)(iv), page 5
[75] T69
104Given the circumstances and the defendant’s honest belief that the reports she heard were true and implicated the plaintiff, her communications were both sent on an occasion of privilege and were “germane” to the occasion. The defendant said that all the communications concerned matters of direct relevance to the lot owners who were having to vote on who should run the OC committee.
105The plaintiff submits that the defendant’s communications do not attract the protection afforded by the occasion of qualified privilege, because they were not made in good faith, they were not made honestly and they were made with a desire to damage the plaintiff. This led the defendant to be indifferent to the truth or falsity of the contents. She failed to make any, or any reasonable, enquiries concerning the accuracy of the information in the publication. The plaintiff relies on the reasoning of Gleeson CJ in Roberts v Bass:[76]
“… it would be inconsistent with the purpose of the privilege to use the occasion, not for the honest expression of views, but for the publication of defamatory matter, knowing it to be false, or not caring whether it was true or false. Recklessness is a word sometimes used to describe the last-mentioned state of mind; but it does not simply mean carelessness, even in a high degree. It means ‘indifference to its truth or falsity’.
…
[76] Supra
… A statement made in the course of political debate in an election campaign does not become honest merely because it serves a purpose of damaging the reputation, and therefore the electoral prospects, of a candidate. The genuineness of a belief that it is in the public interest that a candidate should be defeated does not cast a mantle of honesty over anything and everything that may be said in order to achieve that objective. The end does not justify any means … .”[77]
[77] Roberts v Bass (supra) at paragraphs [13]-[14]
106The plaintiff submits the defendant did not establish honest or reasonable belief such that her defence can succeed.
107I now turn to consider the evidence and the circumstances surrounding the email as it relates to the statements that carry each imputation.
Imputation (a): The Plaintiff operated the OC in a way that promoted his and his fellow committee members’ interests over those of other lot owners in the development
108The first defamatory imputation is that the defendant ran the OC committee in a way that promoted his and his fellow committee members’ interests over those of other lot owners in the development. The germination of this belief in the defendant appears to be the plaintiff’s 6 June 2019 email which she found offensive, demeaning and hostile. At this point, I note the general tenor of emails between all parties could have benefited from a more considered and restrained approach.
109After receiving this email and disseminating it to people in her “camp”, including Kerrie Brooks and David Adams, the situation rapidly escalated.
110What might have started simply as a desire to reduce the OC fees, quickly transitioned into a desire to remove the Smiths from their roles in the development, and to remove the plaintiff from the OC committee. It is difficult to avoid the conclusion that the defendant became a person avid for scandal and was credulous of all the information she received, particularly from Kerrie Brooks, that confirmed her negative views about the plaintiff.
111In fact, a great deal of the negative information that the defendant received about the plaintiff appears to have originated with Kerrie Brooks. Kerrie Brooks told her that “they” had made life so unpleasant for David Adams that he had to move out. There was no evidence from David Adams about this. Kerrie Brooks told her that Heather Smith had intimidated an owner so severely that the owner had moved out and that Heather Smith had then taken out a restraining order against the owner and during this period, “they” had given Heather Smith a bonus. Kerrie Brooks told the defendant that the committee were expected to approve all Fred Smith’s expenses without being provided invoices with proper documentation.
112Nevertheless, despite the allegations being reported to the defendant bearing an uncomfortably close relationship to gossip, an examination of the circumstances supports the view that the defendant held an honest belief that the plaintiff was conducting the OC committee in a way that promoted his and his fellow committee members’ interests over those of other lot owners. He was apparently invested in retaining the position of building manager, from which his long-term associate and former client, Heather Smith, directly benefited. Although he said he did not particularly want to maintain control of the OC committee and just wanted proper protocols to be followed and for all members to have a say, his actions somewhat belie his words. He did fight to remain in control, including calling a further SGM after the September 2019 SGM. There was a clear conflict of interest in allowing Fred Smith to vote on the bonus payable to his wife, and this vote had taken place when the plaintiff was the President of the committee. The language that the plaintiff used in his email of 6 June 2019 was unnecessarily antagonistic, and his conduct in engaging a solicitor to attend the SGM and having that solicitor hold proxy votes all in favour of the plaintiff’s camp, was sufficient to give rise to a reasonably held, if erroneous, belief by the defendant that the plaintiff was not conducting the OC committee in a way that benefited all lot owners equally.
113Those statements relating to the way in which the plaintiff conducted the OC committee are, accordingly, protected.
114I am therefore satisfied the statements that gave rise to the first imputation are protected statements and the defence of qualified privilege applies.
115Having regard to all the circumstances as set out above, I am satisfied that the defendant honestly held a belief that the statements were true, and therefore was not motivated by malice.
Imputation (b): The Plaintiff was paid $10,000 by the OC for services performed for his own benefit
116It is not unreasonable to say that, prior to sending the email, the defendant was primed to believe the worst of the plaintiff. In this state of mind, she attended the offices of Excel Strata Management to look through the files as part of the new OC committee installed after the September 2019 SGM. Amongst the documents there, she saw an email from another lot owner and former OC committee member, Doug Cameron, to the plaintiff, Heather Smith, Andrew Cameron and Excel Strata Management, dated 12 May 2015. This email had the subject matter “Accounting Work”. In this email, Mr Cameron, who was apparently an accountant, says:
“I have been asked to give a discounted quote for accounting work required by Moervo Pty Ltd.
I can give an estimate, but I am not willing to provide a discounted quote.
There is no reason for me to discount the work, particularly when the risk from disgruntled owners corporations members is significant and the scope of work is yet to be determined.
At this stage what I recommend is that the work be kept as arms length as possible, so that a partner and an accountant who have no direct interest in the village conduct the work. As you know preparation of accounts will soon be three years in arrears and there has been no reporting to owners whose units have been occupied with their rent left within the ‘pool’.
The initial task would be to prepare accounts to June 2015 and analyse the contribution by each unit to the pool.
Preparation of the June 2015 Business Activity Statement, preparation of PAYG obligations and payment of the quarter superannuation, would also be required. My estimate for this work is $10,000 plus GST.
We would not be giving any tax advice and would refer the issues such as structure, tax obligations, GST issues to an external adviser.
Subject to the committees acceptance of that advice, we would also rely on those instructions regarding income tax and GST treatment. After that advice, we would be able to satisfy the tax obligations of the company and/or trust and report to the Australian Taxation Office and Owners Corporation.
There is no escaping the fact that there is clearly a conflict of interest, but at any time there is more than a simple question, we would refer that outsiders or the committee for resolution.
Our billing procedures provide for timesheet recording and we will render accounts for payment on presentation of the account.
There are many bookkeeping functions that I perform now and if the firm is engaged then on each occasion of a new task, I will identify whether it is something that I will continue to do for free, or will be included on the tasks of the firm and therefore progressively, provide a job specification.
Should the general terms be agreeable, I will request the partner responsible prepare a letter of engagement.
Regards
Doug Cameron.”[78]
(sic)
[78] JCB 397
117It was this email that caused the defendant to write that the plaintiff “gets paid” $10,000 by the OC. The defendant’s evidence was that she saw the sum of $10,000 and the plaintiff’s name on the email (he was a recipient) and she thought that Doug Cameron was Colin Peterson. She says that she “somehow got it in my head”[79] that Colin Peterson must have been paid $10,000. She said she discussed it with Kerrie Brooks, who said words to the effect of “it’s really troubling because I’ve always … wondered what happened with that, and I’ve never been able to find any information”.[80] I note here that Kerrie Brooks gave evidence that after receiving the email, she told the defendant that she had got it wrong about the $10,000 and that it would not have been paid to the plaintiff. The defendant said the basis for her saying that Colin Peterson gets paid $10,000 was that Doug Cameron and Colin Peterson had both been directors of Moervo Pty Ltd and she got the two names confused. She said that she “skimmed”[81] the document, “it was fleeting”,[82] and that she did not have time to sit there and examine every document in depth. However, she did have time to undertake an ASIC search on Moervo Pty Ltd. When it came time to draft the publication, she said she “relied on [her] memory”,[83] despite only having “skimmed” the document. She gave evidence that, at the time she wrote the email, she “wholeheartedly believed”[84] what she said about the $10,000. She said that everything she wrote was true, but she had made a mistake in relation to the $10,000, and called it an “error of fact”.[85]
[79] T254
[80] T255
[81] T279
[82] T272
[83] T281
[84] T453
[85] T465
118I accept the authorities establish that the defence of qualified privilege can operate, even where there is a mistake. However, the erroneous belief must be honestly held. If the belief was not honestly held, it may support a conclusion that the defendant was motived by actual malice, though “knowledge of the falsity of the defamatory material is not, of itself, equivalent to the existence of the requisite improper motive”.[86] The plaintiff must establish that the ulterior motive was the dominant purpose of the publication by the defendant.[87]
[86] Szanto v Melville [2011] VSC 574; Roberts v Bass (supra) at paragraph [76]
[87] Szanto v Melville (ibid) at paragraph [96]
119The defendant’s evidence about this mistake was simply not credible. She said she got the two names confused, but she also said she thought that Doug Cameron was Colin Peterson. She did not give a credible explanation for this apparent confusion. She said she saw Colin Peterson’s name and the amount of $10,000 and “believed” that Colin Peterson had been paid $10,000. This is, at best, an unsatisfactory basis for reaching an erroneous conclusion, and I do not accept that the defendant “wholeheartedly believed” in its truth. Rather, I think that the defendant had formed a particular view about the plaintiff and any information that supported that view was accepted by the defendant without further interrogation or investigation. On her own evidence, she saw the name Colin Peterson and the amount of $10,000 and put the two together to reach an entirely erroneous conclusion. There was nothing in the email that supported the conclusion that Colin Peterson was paid $10,000 for anything, let alone for work done for his own benefit. There was in fact nothing in the email to support the conclusion that anyone had been paid $10,000. It was simply an estimate or quote for a job to be performed by another person.
120If the defendant did not actually know that the allegation was false, she did nothing to find out, particularly given that she had only skimmed the document fleetingly and had not had time to read it properly. There was no support for her mistaken conclusion. Kerrie Brooks did not confirm or bolster the defendant’s belief that Colin Peterson had been paid this amount, but said that she did not know what had happened. Ms Brooks also knew that, if anyone had received the money, it was not Colin Peterson, and given Ms Brooks’ evidence on this point, it is clear that the defendant’s “belief” was reached entirely on her own.
121I consider her conduct in relation to this allegation so reckless as to constitute indifference as to truth or falsity. At the point where the defendant wrote the email, her motive for including this communication was, in my view, foreign or ulterior to the privileged occasion. She did not have any real understanding of what the $10,000 was paid for and she had no clear understanding of Moervo Pty Ltd’s involvement. She not only got the identity of the person said to have been paid the money wrong, but she did not know whether Moervo Pty Ltd was a company owned by the unit owners or not. Despite her lack of understanding, she did not hesitate to throw into the mix that allegation against the plaintiff in terms sufficiently vague that it exposes that she did not actually know what had transpired with the money, but carrying sufficient imputation to damage the plaintiff. She knew it would look bad for him – a member of the OC committee receiving a substantial sum of money for work that was not done for the OC or for lot owners, but for some private company about which unit owners had been misled – and this was her dominant purpose for including that communication in the email, rather than a genuine belief that it was information relevant or “germane” to the occasion.
122It follows then that the communication is not protected as it was motivated by actual malice and constituted by the defendant’s reckless indifference to the truth so as to negate the operation of the defence.
123It follows from my findings above that the defendant’s conduct was not reasonable and her statutory defence pursuant to s30 of the Act must also fail. The Act requires that:
“(1) …
(a)the recipient has an interest or apparent interest in having information on some subject; and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.”[88]
[88] Section 30(1) of the Act
124In determining whether the conduct of the defendant in publishing the matter is reasonable, the Court may take into account the following factors to the extent that the Court considers them applicable in the circumstances:
“(3)…
(a)the seriousness of any defamatory imputation carried by the matter published;
(b)the extent to which the matter published distinguishes between suspicious allegations and proven facts;
(c)the nature of the business environment in which the defendant operates;
(d)whether it was appropriate in the circumstances for the matter to be published expeditiously;
(e)any other steps taken to verify the information in the matter published.”[89]
[89] Section 30(3) of the Act
125Having regard to my analysis above, it is obvious that the defendant did not act reasonably. The imputation was serious and she made no attempts to distinguish between her own suspicions and the proven facts. The nature of the environment provides no cover for her, it was sent in her capacity as another unit owner to bolster support at the forthcoming SGM. It was expressly not sent as part of her role on the OC committee, but I do not consider that this impacts the matter one way or the other. Although the SGM was in the offing, there was no requirement to send this allegation expeditiously, as there was no requirement to send it at all. She took no steps to verify the information, as a quick call to Kerrie Brooks would have alerted her immediately to the fact that she had “misremembered” by whom the email was sent. The defendant’s statutory defence fails.
Imputation (c): The Plaintiff has wilfully and maliciously damaged the property of other lot owners, including hot water units and mailboxes
126The defendant wrote in her email that “[n]umerous lot owners/tenants have reported sudden damage to external hot water units and mailboxes”.[90] Her basis for writing this was as follows:
(a) a single report from Amanda Stephens that her real estate agent had reported that her tenant had said that a locksmith was required due to issues with the mailbox, and that the tenant believed it had been tampered with.
This is a report to the defendant, from a third party (Ms Stephens), who has herself received a report from a third party (the real estate agent) about the belief of yet another third party (the tenant). On any view, this cannot amount to any sort of reliable evidence that there was any tampering with any mailbox. This, on its own, could not give rise to a reasonably-held belief in the defendant that “numerous owners” were complaining of “sudden damage” to mailboxes;
(b) a single report from David Adams that his tenant had reported that the internal hot water system had broken down after many years and had been gushing water for a couple of days before being fixed; and
(c) after reading the email from David Adams about his hot water service, her husband told her that they had to change a few hot water services recently.
[90] JCB 22
127The defendant said in evidence that “I remember having it in my head that okay, now we’ve got hot water services in addition to mail boxes that seem to be tampered with and this is ridiculous and I need to let people know”.[91] When pressed about why she thought the hot water services in her units may have been tampered with, she said she did not know whether they had been tampered with or had just broken down. She said she had “no idea” they were twenty years old and had assumed that they were external because her hot water service at home is external, and she had forgotten that the hot water systems in the units were actually small internal systems.
[91] T481
128When asked what she meant by use of the word “numerous”, the defendant said she meant three. She said that “numerous” means more than two and she knew about David Adams’ problem with his water service and thought that “our hot water services may have been tampered with”[92] as well.
[92] T481
129The defendant explained that by using the word “numerous” she meant “there were numerous things being reported to us. Mail box. Hot water service. And perhaps I didn’t word that properly.”[93]
[93] T483
130The Macquarie Dictionary defines numerous as “very many; forming a great number, consisting or comprising a great number of units or individuals”. It is clear there was not a “great number” of reports of damage. There were two reports, one from Amanda Stephens and one from David Adams. It was unclear from both those reports as to whether there was any tampering or intentional damage. The defendant heard about the problems with David Adams’ hot water service and, it appears, immediately formed the view that her own hot water services might have been tampered with.
131She had also heard from Kerrie Brooks that her house had been subjected to “malicious damage”. Kerrie Brooks had said “it is not hard to guess who is responsible”. Ms Brooks meant that it was Fred Smith. In the defendant’s evidence, she said that she thought it was Fred Smith as she knew from Kerrie Brooks that he had a connection to a car repair business where they would likely have had paint.
132I noted above that it appears the defendant was avid for scandal and credulous as to anything that she was told about the plaintiff. There is no doubt that she exaggerated the supposed risk to unit owners and overstated the facts. There were not numerous complaints, and Ms Brooks’ property had not been vandalised four times.
133Nevertheless, I do accept the defendant’s evidence that, in the context of the heated SGM, the report from Kerrie Brooks about the vandalisation of her property, the reports from other unit owners about unpleasant encounters with Fred Smith, and the reports of property being stolen from the OC, the defendant had formed a genuine, if erroneous, belief that these events were occurring and were attributable to the plaintiff’s camp. Unlike the view she took in relation to the $10,000 which was derived entirely in her own mind after a fleeting reading of an email and was not bolstered by anyone else, the defendant did have a basis for her belief, founded in information from others.
134As Lord Diplock stated in Horrocksv Lowe:[94]
“… The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that ‘express malice’ can properly be found.”
[94] [1975] AC 135 at 151
135In Roberts v Bass,[95] the High Court held that:
“Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice.[96] The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice.”[97]
[95] Supra
[96]Clark v Molyneux (1877) 3 Q.B.D. 237 at 244 per Bramwell LJ; Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128 at 133 per Lynskey J
[97] Roberts v Bass (supra) at 41
136The defendant disliked the plaintiff and that dislike meant that she welcomed the opportunity to expose what she considered to be his poor conduct. It would be fair to say that there was a degree of irrationality in her own behaviour. Rather than looking for rational explanations for the events, or approaching the allegations with restraint and caution, she leapt straight to conspiracy. Rather than take a measured approach to Kerrie Brooks’ allegations about the vandalisation of her property, she accepted without question that it was the plaintiff or people in his “camp” that were responsible. She did not exercise restraint. She did not exercise good judgement. Instead of considering hot water services that are old may require replacement and, given that they were installed at the same time, may reach the end of their lifespan around the same time, she concluded that the more likely explanation was that they had been tampered with. There was an environment of something bordering hysteria, which is most unfortunate, and resulted in unfounded and defamatory accusations being made against the plaintiff.
137I do not consider, and it was not the defendant’s evidence, that she thought the plaintiff was himself directly or personally responsible. She attributed the conduct to people, particularly Fred Smith, in the plaintiff’s camp. She was careless in her expression of the allegations, and therefore the imputations as against the plaintiff arise. Carelessness in expression is insufficient to make a finding of malice.
138However, as I have found the defendant did have an honest, albeit erroneous belief in the allegations, I consider that this communication is protected by the defence of qualified privilege. I am not persuaded that, in relation to this allegation, the defendant was predominantly motivated by malice, even though I do accept that she did not like the plaintiff and hoped to cause him political damage. This was not her primary motivation and thus actual malice is not made out.
Imputation (d): The Plaintiff intimidated or attempted to intimidate lot owners into obtaining their votes for a SGM of the OC
139The matters that the defendant relies on to support the basis for her statement that “We are aware that some of you have been approached and pressured into giving your proxy’s to Colin Peterson / Fred Smith to support the reinstatement of the old committee”[98] are as follows:
[98] JCB 22
(a) by email dated 9 October 2019, Amanda Stephens told the defendant that she had received a call from Fred Smith. Ms Smith said:
“He was clearly in opposition to any change and quite combative. The call did not end on pleasant terms, with Mr Smith adamant his wife was needed/valid ect
In the management of the property and further added he feels the fees associated are more than fair and reasonable. We agreed to disagree.”[99]
[99] JCB 595
(sic)
(b) by email dated 18 October 2019, Marina Chernishov informed the defendant that:
“I received a copy of written minutes in the mail and there was a sticky note from Heather who stated ‘The correct contact for Colin Peterson is XXXX XXX XXX’.
Does anyone know who Colin is and why would Heather provide his contact information?
They are as dodgy as they come.”[100]
[100] JCB 613
(sic)
(c) Ms Chernishov said in evidence that she –
“… found it quite strange that the head of our committee would drop in a sticky note into my letterbox. My concern was that they were actually attending … my private property.”[101]
She went on:
“… I can’t tell you who dropped it off into my letterbox. It may’ve been Colin Peterson. So that raised red flags, and that was further then, um, validated for me when I had a note left at my door, from a person named Fred Smith … that he had attended my private property and had left this note for me to call him.”[102]
[101] T366
[102] T367
(d) She gave evidence that she had called Fred Smith and “he wanted to know why I was voting the way I was voting. Um, that I had been told lies.”[103] She gave evidence that she had called the defendant to discuss this occurrence.
[103] T367
140The defendant gave evidence that she held a proxy for Ms Chernishov and “the fact that I already have a proxy from Marina, and she’s being approached by Fred, or Heather, at her residence shows that he can only be there to get her to change her proxy”.[104]
[104] T475
141It is clear from an examination of the evidence before the Court that there is no mention in the emails from either Ms Stephens or Ms Chernishov that there had been any request for a proxy or any pressure to provide a proxy. At most, it appears that Mr Smith sought to discuss Ms Stephen’s vote, and argue that his wife’s position was required and the fees were fair. While I can make no comment on Mr Smith’s demeanour, there is nothing in this evidence to indicate that a proxy vote was sought, although one can infer that Mr Smith was attempting to change Ms Stephen’s mind about her vote. Perhaps the mere fact of making a call to a unit owner could be construed as exerting pressure, but that is stretching the evidence to its most favourable accommodation for the defendant.
142In terms of Ms Chernishov’s interaction with Mr Smith, her main concern was that he had attended her property, which she felt was inappropriate. The defendant reached her own conclusions about Mr Smith’s intentions on the basis of Ms Chernishov’s evidence that a sticky note on some documents which contained Colin Peterson’s phone number had been left in her letterbox, and another note asking her to call Fred Smith had been left at her property, and her telephone conversation with Mr Smith. None of that evidence related directly or indirectly to the plaintiff intimidating or pressuring lot owners for proxy votes.
143The plaintiff said he had not sought proxy votes from anyone. He said “[i]t is illegal to tout for proxies. I have never done that.”[105] I accept the plaintiff’s evidence about that.
[105] T59
144There was no evidence before the Court which could support any allegation by the defendant that the plaintiff intimidated or attempted to intimidate lot owners into obtaining their votes. There is evidence, which I accept, that the plaintiff did not contact anyone to obtain their vote. There is no evidence that Mr Smith was acting on behalf of, or in concert with, Mr Peterson. There was no evidence that Mr Peterson’s name was ever mentioned by Mr Smith during the two telephone calls with Ms Stephens and Ms Chernishov. Indeed, Ms Chernishov did not know who Colin Peterson was, even after her phone call with Mr Smith, which is why she asked the question which prompted the defendant’s email.
145The defendant had no basis for any honestly-held belief that the plaintiff was intimidating or attempting to intimidate lot owners into voting for him. The defendant’s own evidence fell short of establishing that she ever held this view. The evidence was all about Fred Smith, not the plaintiff. Although she considered that Mr Smith was in the plaintiff’s camp, it was not her evidence that Mr Smith was acting at the behest of the plaintiff. I do not accept that the defendant had an honestly-held belief that the plaintiff was pressuring people for their votes.
146The defendant submits that her dominant purpose in writing the email was to convey information to people she considered in her “camp”, and that the dominant purpose was not an improper purpose. The defendant says that if her dominant purpose was to injure the plaintiff, she would have sent it to all and sundry at the development, but she did not. Her stated purpose in writing the email may well have been to convey information to people she considered in her “camp”. However, that does not mean that anything about the behaviour of the OC committee members, no matter how untrue or farfetched, attracts the protection afforded by the privilege. As the plaintiff submits, there must be some work for the second leg of the test, as set out by Heydon J above in Aktas v Westpac Banking Corporation,[106] to do. The communications must be relevant to the occasion.
[106] Supra
147At a high level, it is relevant to convey allegations about attempts to intimidate lot owners for their vote. However, if the allegations are so lacking in substance as to have no foundation, it must call into question the defendant’s state of mind. Her state of mind was not one of honest belief, but was rather a state of mind where she disliked the plaintiff; she found him offensive and demeaning, and had formed a view that he was capable of the sort of behaviour of which she accused him. She was indifferent to the truth or falsity of her allegations.
148Her primary motivation in attributing the conduct of Mr Smith to Colin Peterson was to cause him damage so as to ensure that he did not resume control of the OC committee. I am satisfied that she was, in relation to this communication, motivated by malice.
149Accordingly, the defence of qualified privilege fails.
150It follows that the statutory defence also fails. The defendant’s reckless disregard for the truth necessarily means that her action was not reasonable. Reasonableness would have at the least required her to attribute the conduct of Mr Smith to Mr Smith, not to Colin Peterson.
151In summary, I find as follows:
(a) the imputations alleged by the plaintiff are made out;
(b) the defence of qualified privilege is made out in relation to imputations (a) and (c);
(c) The defence of qualified privilege is not made out in relation to imputations (b) and (d);
(d) The defence of statutory qualified privilege is not made out in relation to imputations (b) and (d).
Assessment of damages
152The plaintiff has been successful in relation to two of the four defamatory imputations; that he was paid $10,000 for his own benefit, and that he intimidated or attempted to intimidate other lot owners for their votes.
153The defendant says that the plaintiff did not have a good reputation and called evidence from a number of witnesses. This evidence is of limited relevance to the assessment I must undertake. The defendant did not rely on a defence of truth, and therefore cannot seek to diminish the sting of the defamation by calling evidence that no one thought much of the plaintiff anyway. Further, evidence that some people did not have a good opinion of the plaintiff does not mean that the defamatory imputations would not, or could not, lower his reputation in the eyes of other recipients.
154There are well-established principles for assessing damages in defamation, such principles helpfully summarised by John Dixon J in Wilson v Bauer Media Pty Ltd[107] as follows:
[107] [2017] VSC 521 (“Wilson”) at paragraph [59]
(a) damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[108]
[108] Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [242]
(b) damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgement;[109]
[109] Wilson (supra) citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
(c) the gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;
(d) there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
(e) the extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f) in determining the damage done to a plaintiff’s reputation, the Court should also take into account the “grapevine” effect arising from the publication;[110]
(g) it is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;[111] and
(h) aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.
[110]Belbin & Ors v Lower Murray Urban and Rural Water Corporation (2014) 43 VR 348 at 388-390
[111] Wilson (supra) citing Carson vJohn Fairfax & Sons Ltd (supra) at 71
155The Court may also consider an award for aggravated damages where the conduct of the defendant has increased the injury suffered by the plaintiff. Aggravating conduct may include a failure to publish a retraction or an apology that amounts to a continuing assertion of the defamatory imputations.[112]
[112] [2017] VSC 521 at paragraphs [84]-[88]
156The defendant submits that any damages should be nominal. The plaintiff adduced no evidence that any person read the email, though some of the witnesses for the defendant recalled having read it. The email was only published to fourteen people, and six of those people gave evidence that their views of the plaintiff were not impacted by the email and they already held negative views about him regardless. There was no evidence that the plaintiff was treated differently as a result of the defamation.
157The defendant points to the case of Murray v Raynor,[113] in which a defence of qualified privilege was upheld on appeal, but where the Court opined that if the defence had not been established, the damages awarded by the trial judge were manifestly excessive and ought to be reduced to $25,000. In that case, the plaintiff alleged he had been defamed by an email sent to all the tenants in a building in which both the plaintiff and defendant resided, alleging that the plaintiff unreasonably harassed the defendant, acted menacingly toward the defendant, was a malicious person who sent threatening emails and was a small-minded busybody.
[113] [2019] NSWCA 274
158The plaintiff submits that the appropriate range of damages is $80,000 to $120,000. He says the evidence from the recipients was “piecemeal”, was not from all recipients so as to displace the presumption of his good reputation, and consequently ought to be disregarded. He gave evidence about the distress and embarrassment that this had caused him and called evidence from two colleagues as to his professional reputation, which was of high standing. From the evidence of those colleagues, however, it is clear that if there was any “grapevine” effect from the emails, it did not extend into Mr Peterson’s professional realm.
159The plaintiff also submits that he is entitled to an award of aggravated damages, having regard to the manner in which the case has been run, particularly relying on a defence of truth until shortly before the trial, even in relation to the allegation about the payment of $10,000, which the defendant knew to be false shortly after she sent the email. Further, the defendant has not apologised to the plaintiff, even after abandoning the defence of justification, and has persisted in a misconceived claim in mitigation – that the plaintiff’s reputation was so bad that the defamation did nothing to harm him.
160The plaintiff is entitled to compensatory damages for two of the imputations – that he was paid $10,000 for his own benefit and that he had intimidated or attempted to intimidate other lot owners to obtain their votes. These are both serious imputations. They carry with them a sting which would likely cause real hurt and embarrassment to the plaintiff and damage his reputation, even in the eyes of people who might not have liked him or thought much of him. It is one thing for a fellow unit owner to think that the plaintiff is an “ineffective leader” (Marina Chernishov), “rude” (Erica Myers-Davis), “argumentative” (Erica Myers-Davis) or “arrogant” (Kerrie Brooks), it is another to be told that he gets paid money from the OC for his own benefit and intimidates people for their votes. For people who did not know the plaintiff at all, and there were a couple of recipients of the email who were new to the development, the imputations would inevitably have caused some damage to their view of him. The defendant has not apologised and maintained a defence of truth even in relation to the one imputation she knew was wrong until shortly before the trial. She pleaded that her mistake was honest, “an apology was appropriate”[114] and she is “ready, willing and able to apologise to the addressees of the publication for making that incorrect comment”.[115] That is, at least, an unorthodox pleading, and does nothing to mitigate the additional damage caused by maintaining this defence. She also particularised the allegedly negative views held by eleven recipients about the plaintiff, but did not call all those persons named in the pleading. There is a degree of aggravation to the damage by the defendant’s conduct.
[114] Amended Defence, dated 27 January 2021, paragraph 5.(v), page 4
[115] Amended Defence dated 27 January 2021, paragraph 5.(vi), page 4
161However, the email was published to a very small group of people. To the extent that there was any “grapevine” effect, it was likely to be extremely limited. This was not the sort of email that one would imagine would be readily shared on social media or be of any interest to people beyond the group of recipients. It certainly does not appear to have travelled into the plaintiff’s professional sphere, as the character witnesses were only aware of the email after being shown by the plaintiff. The main damage done by the email was injury to the feelings of the plaintiff.
162In assessing damages, I accept that a global sum is appropriate. The damages should reflect the high regard the law places on a person’s reputation and provide him with vindication for his reputation, but must also bear a “rational” relationship to the actual harm done, having regard to all of the circumstances of the case.
163I consider that the amount of $40,000 fairly reflects that harm and, accordingly, award the plaintiff the sum of $40,000, plus interest.
164I will hear the parties on the question of costs.
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