Rader v Haines - [2021] NSWDC 610

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Rader v Haines [2021] NSWDC 610
Hearing dates: 23 – 24 August, 28 September and 1 November 2021
Date of orders: 17 November 2021
Decision date: 17 November 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   Pursuant to Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8 the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment.
(2)   Judgment for the defendants.
(3)   Costs reserved, with liberty to apply.

Catchwords:
Tort – defamation – plaintiff’s parents-in-law send email to plaintiff’s parents in England – content refers to ADVO proceedings involving their respective offspring following the breakdown of their marriage – parties agree that the applicable law is the Defamation Act 2013 (UK) – whether plaintiff can establish serious harm under s 1 of that Act – qualified privilege at common law – whether matter published on a protected occasion – malice – joint tortfeasors – whether the company employing the first defendant was vicariously liable for a publication sent by the first and second defendants using the company’s email account – damages

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8
Defamation Act 2005 (NSW)
Defamation Act 2013 (UK) s 1
Evidence Act 1995 (NSW) s 174
Law Reform (Vicarious Liability) Act 1983 (NSW) s 7

Cases Cited:
Adam v Ward [1917] AC 309
Aicken v Caledonian Railway Co [1912] SLR 45; [1913] SC 66
Avery v The Sydney Harbour Trust Commissioners (1905) 22 WN (NSW) 54
Barclays Bank plc v Various Claimants [2020] UKSC 13; [2020] AC
Barrow v Bolt [2013] VSC 107
Barrow v Bolt [2015] VSCA 107
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Bonette v Woolworths Ltd (1937) 37 SR NSW 142
Briggs v Jordan [2013] EWHC 3217 (QB)
Calwell v Ipec Australia (1975) 135 CLR 321
Cassegrainv Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260
Chong v CC Containers Pty Ltd [2015] VSCA 137
Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB)
Cornwell v Rowan [2004] SASC
Cosco v Hutley (No 2) [2020] NSWSC 893
Cox v Minister of Justice [2016] UKSC 10
Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370
Dougherty v Chandler (1946) 46 SR (NSW) 370
Dow Jones v Gutnick (2002) 210 CLR 575
Egger v Viscount Chelmsford [1965] 1 QB 248
Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB)
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
Hutley v Cosco [2021] NSWCA 17; 104 NSWLR 421
Jameel v Dow Jones [2005] EWCA Civ 75
Jones v Dunkel (1951) 101 CLR 298
KSMC Holdings Pty Ltd v Bowden [2020] NSWCA 28
Lachaux v Independent Print Ltd [2018] EWHC 620
Lachaux v Independent Print Ltd [2019] UKSC 27
Lachaux v Independent Print Pty Ltd and another [2021] EWHC 1797 (QB)
Lillie and another v Newcastle City Council [2002] All E R (D) 465
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86
Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375
Murray v Raynor [2019] NSWCA 27
Neilson v Overseas Projects Corp (Vic) Ltd (2005) 223 CLR 231
Polson v Harrison [2021] NSWCA 23
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Reberger v R [2011] NSWCCA 132
Roberts v Bass (2002) 212 CLR 1
Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71
Spencer v Bamber [2012] NSWCA 274
Thornton v Telegraph Media Group [2011] 1 WLR 1985; [2010] EWHC 1414 (QB)
Toogood v Spyring (1834) 149 ER 1044
Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845
Trkulja v Markovic [2015] VSCA 298
V’Landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500
Vakautav Kelly (1989) 167 CLR 568
W M Morrison Supermarkets plc v Various Claimants [2017] EWCA 2339
W M Morrison Supermarkets plc v Various Claimants [2020] AC 973
W M Morrison Supermarkets plc v Various Claimants [2020] UKSC 12; [2020] AC 989
Wagner v Nine Network Australia [2019] QSC 284
Webb v Bloch (1928) 41 CLR 331
Weissensteiner v The Queen (1993) 178 CLR 217

Texts Cited:
The Hon Justice P L G Brereton AM RFD, “Proof of Foreign Law: Problems and Initiatives”, Address to the Sydney University Law School Symposium, “The Future of Private International Law”, 16 May 2011),

Category: Principal judgment
Parties:
Plaintiff:
Mr Damian Rader
Defendants:
First Defendant: Mr Donald Haines
Second Defendant: Mrs Janet Haines
Third Defendant: X & Y Haines Pty Ltd
Representation:
Counsel:
Plaintiff: Mr R Rasmussen
Defendants: Mr M Richardson SC with Mr D Helvadjian
Solicitors:
Plaintiff: O’Brien Criminal and Civil Solicitors
Defendants: Mathas Law

File Number(s): 2020/00047051
Publication restriction: See Order 1

Judgment

Introduction

The plaintiff brings proceedings on 13 February 2020 for defamation against his parents-in-law and a company of which his father-in-law is a director. The matter complained of is an email they sent (using the company’s email address) on 16 February 2019 to the plaintiff’s parents, who live in England.
The fact that publication occurred only in England is significant, as liability for the publication must be determined in accordance with the lex loci delicti (Dow Jones v Gutnick (2002) 210 CLR 575 at 607 [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ). I have proceeded to determine the issues of fact and law on the following bases:

The parties agree that the applicable law is the Defamation Act 2013 (UK) (“the UK Act) and not the Defamation Act 2005 (NSW) and have agreed to this court hearing these proceedings and determining them conformably with English law.

The parties have chosen the course of interpreting English law themselves, without the benefit of expert evidence on this subject, and make no challenge to the jurisdiction of this court to hear the action.

No application was made by either side for determination of any interlocutory issues such as referral to the Supreme Court for determination of foreign law issues or orders for expert evidence, or in relation to capacity of imputations or serious harm defence, although imputation rulings and serious harm defences are often determined prior to a hearing in the United Kingdom.

The defence pleaded defences under the Defamation Act 2005 (NSW) (“the Australian Act”) as well as under the UK Act, but these were abandoned at trial.
Thanks to s 174 of the Evidence Act 1995 (NSW), proof of foreign law now permits materials such as books containing statutes or proclamations and judgments of foreign courts to be adduced to prove foreign law. A party no longer necessarily must call an expert to prove the content of foreign law, particularly where the law of England and Wales is the system of law in question. I note the observation of Brereton JA, writing extra-curially (The Hon Justice P L G Brereton AM RFD, “Proof of Foreign Law: Problems and Initiatives”, Address to the Sydney University Law School Symposium, “The Future of Private International Law”, 16 May 2011 < that:

“Although the law of England and Wales is, for relevant purposes, foreign law, its content and methodology is so familiar to us that resort to expert evidence is rarely necessary, and we would usually embark with little concern on deciding its content”.

The parties did not address me as to English law on evidentiary or procedural issues and proceeded on the basis that, apart from the serious harm provision, vicarious liability and the absence of the cap on damages, Australian law applied. I have accordingly proceeded on the same basis, conformably with the approach taken in Neilson v Overseas Projects Corp (Vic) Ltd (2005) 223 CLR 231 at [16], [36]–[37], [125], [198], [202]–[204], [249] and [267].
I briefly note that English law is a mixture of common law and legislation (Lachaux v Independent Print Ltd [2019] UKSC 27 (“Lachaux”) at [1] per Lord Sumption). The principles of law discussed in Lachaux in relation to serious harm are central to the issues in this case.

An overview of the issues

The publication in question is addressed to the plaintiff’s parents and headed “Subject: children’s schooling”, but the contents set out recent events in relation to the breakdown of the plaintiff’s marriage to the first and second defendants’ daughter, of which the disagreement between the plaintiff and the defendants concerning payment of school fees was the most chronologically recent.
In his closing submissions (paragraph 29), Mr Rasmussen states that “it is hard to imagine a more serious harm that could be suffered” by the plaintiff from this publication, which contained “terrible allegations”. These were made “under the guise of informing the plaintiff’s parents of an alleged dispute as to the payment of school fees of the two children of the marriage” (plaintiff’s opening submissions, paragraph 1). As a result, “the plaintiff’s parents would not speak to the plaintiff for some time after having read the email” and “when contact was made the plaintiff was required to prove the falsity of the contents of the email to his mother”. This gratuitously harmful email “subjected the plaintiff to serious harm” (paragraphs 2 and 3) and was not published on an occasion of qualified privilege (which occasion would be defeated by the defendants’ malice).
After a two-day hearing, at which the defendants did not give evidence, the parties exchanged comprehensive written submissions, which were orally addressed on 28 September 2021, when I reserved my decision.
A subsequent application was brought by the plaintiff on 1 November 2021 for me to disqualify myself. My reasons for refusal of that application are set out at the end of this judgment.

The names of the parties

The plaintiff has commenced or defended proceedings in a series of courts and tribunals at Commonwealth and State level. These range from family law issues to claims for malicious prosecution and racial discrimination. Some have been the subject of judgments which the relevant courts or tribunals have anonymised, but at least one of the judgments is not anonymised.
During the hearing and in closing submissions, I asked the parties to address me as to whether the names of the parties in these proceedings should be anonymised. Mr Rasmussen was firm in his desire for public vindication for the plaintiff and required publication of the names. Mr Richardson SC thought it was a matter for the court.
It is my opinion, from the material tendered, that this is a family “exposed to high conflict and adversarial” court proceedings (Exhibit D, paragraph 84). I have adopted Mr Rasmussen’s alternate suggestion that I should use the surnames conferred on the parties in the Federal Circuit Court of Australia, namely “Rader” (in the case of the plaintiff and his parents) and “Haines” (in the case of the defendants). I have similarly anonymised the names of the children, and they are referred to as “X” and “Y”.

The matter complained of and the imputations

The matter complained of, an email sent on 16 February 2019 at 10:07 PM Australian time (AEDT) to the plaintiff’s parents in the United Kingdom (at 11:07 AM in English time (GMT)) and is as follows (original spelling and punctuation retained):

“Subject: Children’s schooling
Dear Margaret and Derek,
We realise it has been a rather long time since we last communicated. Christmas would have been special for you, spending it with Damian and the kids and we trust you are now well recovered and are also both in good health.
We thought we would contact you to keep you fully informed regarding the kids [sic] ongoing schooling. As you may be aware we have endeavoured to provide funds for all of our grandchildren to cover the cost of private school tuition with the parents contributing as appropriate, depending on their circumstance.
Up until now we have been happy to pay the full costs of both X and Y’s school fees but our situation is changing this year for them. We note Damian elected not to work at all during all of 2018, has purchased himself an expensive motor vehicle and has then taken the children on two extensive and expensive holidays, one in October and the other over Christmas. We also note he decided for them to all travel in business class. We have always considered it an extravagance to travel with children other than in economy. Damian obviously has access to funds and we think it is only appropriate for Damian to contribute towards the cost of school fees this year. For 2019 we have advised Damian that we are prepared to pay 50% of the tuition fee costs on a term by term basis, with Damian paying the balance. For your information Damian hasn’t yet advised whether or not he intends to pay his share of the costs.
The attitude of Damian towards Karen and us is also not helping in our position regarding school fees. Up until Tuesday of this week, Damian has denied us access to the children (with Damian present, of course) without having an “independent third party present”. We consider this offensive. The last time we saw them was in the business class departure lounge of Sydney airport, around the 5^th of October, when we were travelling overseas and they were leaving for Japan.
In addition to the above circumstances, Damian’s attitude towards Karen has been appalling. Damian had been coming to Karen’s apartment in Waverley uninvited on many occasions since she had been there. In case you may have not been aware of the reason Karen move out of Paddington, this occurred about two weeks after Damian forcibly made her leave the house by waking her up at midnight, making her pack one bag and leave immediately. She collected her dog, then drove her car and parked outside a local police station where she felt it was the safest place to spend the night, (in the car). Damian had been shouting obscenities to her as she drove away. She returned the next day, stayed in a room separate to Damian and quietly arranged to rent a flat in Waverley. She finally left about two weeks after the incident.
When Karen left Paddington she took the children with her, together with the cat. She went back for her cat after Damian threw it into the street, saying Karen had to look after it. During the twelve months Karen was living in this apartment in Waverley, the children alternated staying with her and staying with Damian. Karen was working during this period.
Karen left the apartment in Waverley when the leave expired in August. Damian had been using Karen’s Nissan and refused to give Karen access to it, causing Karen to hire removalist for the move. Damian told Karen the car was “communal property” even though it is registered in her name and Karen paid all costs associated with it. Karen eventually reported the car to the police as having been taken without her consent. Karen and the kids then decided to move into a larger three bedroom apartment in Double Bay. Damian continued to make uninvited visits to her apartment, almost to the extent of stalking. He actually had begun stalking Karen by arriving unannounced in the middle of the day at her place of work, causing her significant embarrassment. Damian’s unwanted attention was causing Karen immense stress. It was during this period that Damian apparently contacted you to advise that reference to suicide site was found on Karen’s computer, apparently by Y. We understand you advised Damian to pass this information to us. The suicide site did not in fact, originate from Karen’s computer. Karen subsequently found they had originated from Y’s smart phone while he was at camp. It is still unclear as to how the information came from Y’s phone to Karen’s computer.
Karen decided to travel to Launceston to relax over a long weekend and do some work on her house. She arranged for a tradesman to travel with her to do the work and while at Sydney airport departure was once again confronted by Damian while waiting to board. Damian had begun to actively stalk her. Damian also verbally and nastily abused the tradesman travelling with her.
The stress that Karen was under caused her to have a breakdown before she left Launceston. When she returned to Sydney she sought medical help which caused her to leave her job. To facilitate her recovery she was admitted to a specialised clinic, under the care of medical specialist. During this period the children stayed with Damian. As soon as Damian became aware of Karen’s medical issues he cancelled her private health insurance without notifying her, causing Karen more stress as an outcome.
Karen recovered from her breakdown and began looking for work late last year. To keep Damian from causing her stress she took out an ADVO against him. Damian can no longer come near her. In apparent retaliation it appears that Damian encouraged the children to each take an ADVO out against her. We consider the children’s apparent stated cause to be spurious at best. Karen has had no access to (or from) her children since September last year, including any access at school events. Karen’s ADVO against Damian cites violence (when police came to Paddington and took Damian away, around 2008, for near strangulation), for stalking at her residence and at her place of work as well as stalking her at Sydney airport. Of course, there was also a lot of physical and mental abuse by Damian during all the years Karen was with him. The children’s ADVO against Karen apparently cites drunkenness and hitting, causing bruising. Karen vehemently denies hitting and causing bruising. Karen agrees she was drinking to excess, caused by stress during that period. Karen no longer drinks heavily and is not dependent on alcohol.
A few weeks before Christmas Rebecca contacted Y by Facebook asking him if he would like a particular T shirt for Christmas. Damian responded by having the NSW police telephoned Rebecca asking why she was contacting Y. (In fact there is no restriction on Rebecca’s siblings contacting the children, in any cases). Rebecca, of course was stunned and upset by that phone call. Damian is controlling all of the children’s communications both to and from them.
We are sorry to burden you with unpleasant information, but the above are all facts. We are fully aware that relationship breakdowns are awful and unbelievably stressful on the parties concerned. We can only hope that both Karen and Damian get over their animosity and decide to have an amicable approach to each other and make their own separate paths in the future.
Our very best regards,
Janet and Donald
Donald F. Haines
Director”

The imputations

The imputations pleaded to arise are as follows:

The plaintiff stole his ex-partner’s car;

The plaintiff is a thief;

The plaintiff stalked his ex-partner;

The plaintiff is a stalker;

The plaintiff inflicted violence on his ex-partner;

The plaintiff inflicted mental abuse on his ex-partner;

The plaintiff attempted to strangle his ex-partner;

The plaintiff is a violent man.

In the alternative, there are reasonable grounds to suspect that the plaintiff stole from, stalked and inflicted violence upon his ex-partner.

Although the proceedings were conducted by the parties on the basis of imputations pleaded conformably with Australian law, Mr Rasmussen raised, in his submissions, the question of whether these should be dealt with conformably with English decisions on defamatory meaning, although he later appeared to resile from this position. (I also note that during closing submissions, Mr Rasmussen proposed, but then abandoned, a single defamatory meaning.) In view of his uncertainty, I consider it preferable to determine this issue under both English and Australian law.
The approach to defamatory meaning for publications in the United Kingdom is set out by Eady J in Lachaux v Independent Print Ltd [2018] EWHC 620 at [6] – [7]. The approach to defamatory meaning at trial level in Australia is as set out in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [63] – [73]. In practical terms, since the only imputations challenged are (b), (d) and (h), I can make findings as to the challenged imputations under each of these methods of analysis.

Applying the principles set out by Eady J, I am satisfied that each of the imputations pleaded is conveyed save for imputation (b), which is that the plaintiff is a thief. While there are references to more than one incident of stalking and violence of the kind capable of conveying imputations that the plaintiff is a stalker and capable of violence (imputations (d) and (h)), the only reference to theft is that the plaintiff took his former wife’s car without her consent and that she reported this to the police. That one act does not amount to a pattern of conduct warranting an imputation that the plaintiff is a thief.
If I were to apply the principles set out by White J in Hockey v Fairfax Media Publications Pty Ltd, I would arrive at the same conclusion.
The parties did not address me as to imputation (i), which is in the alternative. An imputation of reasonable grounds of suspicion cannot arise at the same time as an imputation of guilt. Accordingly, imputation (i) (which I note was pleaded as a fall-back) is not conveyed.
In practical terms, whether imputation (b) is conveyed or not makes no difference in terms of the defences pleaded. I should note, however, that I have determined the defences on the basis that this imputation is conveyed, as well as whether it is not, to accommodate the possibility that I have erred in this finding.

The evidence

The plaintiff gave evidence and was cross-examined (T 7 – 134). He called the following witnesses:

His mother, to whom I will refer as Mrs Margaret Rader, who received and read the matter complained of (T 159 - 180).

Margaret Clayton, a witness on hurt to feelings and serious harm issues (T 136 –138).

Margaret Brooks, a witness on hurt to feelings and serious harm issues (T 143 – 147).

Mr John Allan, a witness on hurt to feelings and serious harm issues (T 149 – 153).

His aunt, a witness on hurt to feelings and serious harm issues (T 155 – 157).

As noted above, the matter complained of was only read by the plaintiff’s parents; the other witnesses gave evidence of statements made by the plaintiff and/or his mother concerning the matter complained of. The plaintiff’s father, who is ill, was not called to give evidence.

The defendants’ failure to give evidence

The defendants did not give evidence. As a general rule, this places a more significant burden on them in terms of the determination of issues of fact than would otherwise be the case: Weissensteiner v The Queen (1993) 178 CLR 217 at 225 [23]. However, that principle, which must be “applied carefully” (Cosco v Hutley (No 2) [2020] NSWSC 893 at [16] - [19]), differs from the inference in Jones v Dunkel (Jones v Dunkel (1951) 101 CLR 298).
Where a court is asked to draw inferences, it is important for the party making such a submission to identify the inference to be drawn, and the evidence to which it applies, in the same clear way as occurred in Cosco v Hutley (No 2), Barrow v Bolt [2013] VSC 107 at [55] and Trkulja v Markovic [2015] VSCA 298 at [91] – [98]. (Hutley v Cosco [2021] NSWCA 17; 104 NSWLR 421) was overturned on appeal in relation to the justification findings, but the appellate court did not revisit this part of the first instance judgment.)
I drew Cosco v Hutley (No 2) and Barrow v Bolt to the attention of the parties during the hearing and in submissions, as I considered these issues important for fact-finding. Mr Rasmussen responded that he asked the court to draw a Jones v Dunkel inference from the failure of the defendants to give evidence (T 249 - 251), but only in a general way. I have been guided by the approach taken by the trial judges in the judgments I identified, and in particular by the observations of T Forrest J in Barrow v Bolt at [55].

Drawing inferences from failure to cross-examine or address evidence

Failure to cross-examine a witness on a particular issue will generally lead the court to accept the witness’s evidence on that issue. The court is entitled to treat the party who has failed to cross-examine as taking no issue with the accuracy of the witness’s evidence: Chong v CC Containers Pty Ltd [2015] VSCA 137 at [201]-[204]. As a general rule, unchallenged evidence should be accepted by a tribunal of fact, although a court is not bound to accept such evidence: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362.
However, a court may, in some circumstances, reject evidence that has not been cross-examined on. A common example is where such evidence is inconsistent with other evidence that the court accepts, or is simply inherently incredible: Reberger v R [2011] NSWCCA 132 at [48]; Spencer v Bamber [2012] NSWCA 274 at [134].
One difficulty that I raised with the parties during closing submissions was what I should make of evidence arising from documents that was not the subject of cross-examination. The example that particularly troubled me was that the plaintiff’s mother had included the plaintiff’s email address as a recipient to her reply (CB:30) to the matter complained of, which appeared to be inconsistent with the plaintiff’s evidence of “shunning” by his parents. This was not referred to in the plaintiff’s or his mother’s evidence, or the subject of cross-examination.
Another issue I raised was how to deal with apparent inconsistencies in evidence that was the subject of cross-examination. One example was the plaintiff’s mother’s evidence that, when she read the matter complained of, she was shocked because this was the first time allegations of domestic violence and stalking had ever been made about her son, although there was an ADVO taken out by police in relation to his wife Karen’s allegations four months prior to the matter complained of. The plaintiff’s mother said that the plaintiff had told her that Karen had dropped her ADVO, but the plaintiff did not give this evidence.
Issues of this kind also arose in the Lachaux proceedings when the claim was eventually before the court for determination (Lachaux v Independent Print Pty Ltd and another [2021] EWHC 1797 (QB) (“Lachaux [2021]”). Nicklin J (at [115]) noted the unreliability of memory as opposed to factual findings on inferences drawn from documentary evidence, citing the following observations in Gestmin SGPS SA -v- Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) by Leggatt J:

“[22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

When I raised these specific issues, neither counsel considered them to be of any real significance. Mr Rasmussen’s case is that I should accept the evidence that the plaintiff’s parents thought ill of the plaintiff for a number of weeks because of the terrible allegations made, whether these were new allegations or not, because they required proof from him before they apologised for not believing him. Mr Richardson SC’s case is that, even if I accept everything that the plaintiff and his mother says, that is insufficient to establish serious harm or malice. The inconsistencies in the evidence that were troubling me during closing submissions did not trouble them.
As this is the way that the case was conducted by both counsel, I do not propose to address these issues further, although attention to the chronology of events is important in terms of correctly stating the facts of the case and the conclusions I have drawn from those facts.

The events described in the matter complained of

The matter complained of refers to ADVO proceedings taken out on behalf of Karen and the children and other events of a similar kind. I set out the main events referred to in the matter complained of in date order:

13 July 2018: At a time when the marriage is undergoing difficulties after attempts at reconciliation, the plaintiff discovers searches for suicide methods on Y’s phone and concludes from his inquiries that his wife Karen may have performed these searches (CB: 43). The plaintiff rang his mother for advice, and she told him to ring Karen’s mother (the second defendant), which he did (CB: 44).

21 September 2018: This is the date given by the plaintiff in his police statement as being the date the plaintiff’s marital relationship with Karen ended. It is the date he and Karen had a confrontation at the airport (CB: 47) as well as the last day that the children saw their mother (CB: 38). It is also the date that Karen was admitted to Launceston Hospital (CB: 48).

25 September 2018: Citing the encounter at the airport on 21 September and other instances, Karen goes to the police, who issue an Apprehended Domestic Violence Order (“ADVO”) against the plaintiff. This ADVO contains the allegations of stalking and domestic violence set out in the matter complained of.

4 October 2018: The plaintiff consents to an interim ADVO at Waverley Court without admissions; later that day, he and the children travel to Japan for a holiday. (This led to the chance encounter between the plaintiff, the children and the defendants at the airport which is referred to in the matter complained of; this was the last time the defendants saw the children before they wrote the matter complained of.)

18 October 2018: After returning from his trip to Japan with the children, the plaintiff reports their allegations about Karen to police, who take out a provisional ADVO against Karen (Exhibit B).

22 October 2018: Karen made two suicide attempts (CB: 44; CB: 103). The plaintiff rang his mother and told her “The police had just told me that Karen tried to kill herself and has been admitted to the hospital” (CB: 44).

28 November 2018: The plaintiff emails the defendants (with a CC to his solicitor) proposing the defendants have access to the children supervised by both himself and a “mutual family friend” so that “there are no misunderstandings” (CB: 113) and asking them to collect Karen’s car roof. At or after this time, Karen’s sister sends a text message to Y about a T-shirt for Christmas. The plaintiff contacts the police about this, who contact Karen’s sister. There is no further contact between any member of Karen’s family with the plaintiff or his family until the plaintiff’s email of 17 January 2019 asking the defendants to pay X (and later Y’s) school fees.

Christmas 2018: The plaintiff and the children travel to England to spend Christmas and New Year in the home of the plaintiff’s parents, who will later be the recipients of the matter complained of.

17 January 2019: The plaintiff, who is still in Europe, writes to the defendants saying “Merry Christmas and Happy New Year” and forwarding to them the private school fees invoice for X for them to pay (a copy of this email is also sent to the plaintiff’s solicitor). He adds that it is a shame the defendants did not take up the offer of a supervised visit with the children before he and the children left for their Europe holiday.

24 January 2019: The defendants reply offering to pay 50% of both children’s school fees for term 1 and referring to the circumstances in which their other daughter had been contacted by police after she had texted Y about a particular T-shirt for Christmas.

30 January 2019 to 13 February 2019: There are further emails between the plaintiff and defendants, headed “school fees”, about payment of X and Y’s school fees, continued arrangements for the collection by the defendants of Karen’s belongings and also concerning proposed arrangements for the defendants to see the children, under supervision by a third party (copies of some of these are “CCed” by the plaintiff to his solicitor). On 11 February 2019 the defendants advise that their decision to pay only Y’s school fees is “not open for debate” (CB: 124); the plaintiff replies, stating that he is “likewise not interested in “negotiating””.

12 – 13 February 2019: The defendants are drafting the matter complained of and send it to their daughter Karen to check its correctness (no claim is made for this as a publication of the matter complained of). The first defendant states that he intends to send a copy to the plaintiff (CB: 147), but does not do so.

16 February 2019: The defendants send the matter complained of to Mr and Mrs Rader at 10:07 PM (AEDT) (which is 11:07 am (GMT) on the same day, in terms of English time).

18 February 2019: The plaintiff’s mother forwards the defendants’ email to her son at 10:25 PM (GMT) (which is 9:25 AM (AEDT) on 19 February 2019), marked “FYI”.

19 February 2019: After speaking to the plaintiff (T 170 and T 172), the plaintiff’s mother replies to the defendants’ email at 10:00 PM (GMT) (which is 20 February 2019 at 9:00 AM (AEDT)), suggesting a video/telephone conversation in the UK morning/Australian night-time slot. She sends a copy of this email to the plaintiff, as his email address in the “CC” section confirms (CB: 30).

20 February 2019: At 12:01 PM (AEDT) (which is 11 hours earlier in England, namely 1:01 AM (GMT)) the first defendant replies to the plaintiff’s mother (but not to the plaintiff) suggesting 20 or 21 February for the video/telephone call (CB: 155).

20 February 2019: The plaintiff emails the first defendant to see if a telephone call to X for her birthday the following day can be arranged and advising he would be in contact in due course on the school fees, adding “As events unfold over the coming weeks I suspect we will have a very different discussion to the one we might have now…” (CB: 164).

20 or 21 February 2019: There is a 20-minute conversation between the defendants and the plaintiff’s mother and father in the course of which the defendants’ allegations are answered by the plaintiff’s parents point by point.

Subsequent to 21 February 2019: The plaintiff’s parents ask the plaintiff to send them “evidence” of the falsity of the claims in the matter complained of. A few weeks later (T 176), the plaintiff’s mother tells the plaintiff she believes his version and apologises for doubting him.

21 June 2019: The defendants send an email to the plaintiff’s mother expressing concerns about Y’s welfare (who has suffered an accident and is using a wheelchair), noting that the plaintiff has failed to reply to phone messages. This time, the plaintiff’s mother does not reply (CB: 166).

Apart from the 21 June 2019 email, the above dates relate to the exchanges of information between the plaintiff and his parents with the defendants up to and shortly after the matter complained of was sent. I have not included references to the ADVO or Family Court hearings, all of which were determined (in the plaintiff’s favour) after the matter complained of was sent.
The evidence of serious harm in these proceedings relates to the period of time outlined above. The parties went on to participate in a series of court proceedings. Karen consented to the ADVO taken out on behalf of the children and the magistrate dismissed the ADVO based on her complaints about the plaintiff. There were then proceedings in the Federal Circuit Court of Australia on 13 September 2019, as set out in Exhibit D. I will not dwell on this judgment, beyond noting the extraordinary circumstances in which the first instance judge, suddenly and without any encouragement from anyone, proposed that the defendants (who were in court to support their daughter) should intervene and have custody and, later that night, sent the police to collect the children from the plaintiff for this purpose, causing distress and leading one of the children to self-harm. One of the judges on appeal said: “it is beyond me to identify any urgency or risk to the children that justified such drastic, peremptory, ex parte action” (Exhibit D, paragraph 28), a sentiment with which I can only concur. The children were restored to the plaintiff, with whom they have remained ever since.

The plaintiff’s evidence

The plaintiff’s evidence was that, as an only child, he had an extremely close relationship with his parents and that the impact of the matter complained of on that relationship was devastating. His mother gave the same evidence, stating that this was “the first time that I have ever in my life had a disagreement with my son” and that the “violent” nature of the allegations “really shook the foundations” of their relationship for “quite a long time” (T 177).
The plaintiff described how orders had been made on 18 October 2018 for Karen not to approach the children and how he and the children had travelled to England to spend Christmas and New Year with his parents. While he was away, he received the fees invoices for the school fees from both the children’s private schools. In the past, the defendants had paid those school fees, something they were doing for all their grandchildren, so he forwarded the school fee invoices to the defendants, expecting them to pay them.
However, this did not occur. Instead, the defendants had only offered to pay 50% or alternatively only to pay Y’s school fees. Unbeknownst to the plaintiff, they wrote to his parents in England, referring to the school fees issue but then expressing support for their daughter’s position in relation to her ADVO and describing the allegations made in the ADVO taken out on behalf of the children as “spurious”.
The plaintiff and the children regularly spoke to his parents every Sunday by FaceTime but, on the weekend of 16/17 February 2019, his mother did not answer the phone when he rang.
This caused the plaintiff the gravest concern. He received a copy of the matter complained of, with the terse note “FYI”, on 19 February 2019 at 9.25 am, which horrified him. He described a period over which his parents were not speaking to him as going up to 24 or 25 February 2019:

“Q. Did that cause you any concern?
A. Absolutely. I was a little bit concerned to start with once I didn’t reach them on the weekend ‘cause we pretty much spoke every weekend but we always like to catch up with the children and have a FaceTime video session with them. So, I would normally speak to them first and then children ..(not transcribable).. when I’m on with my parents and that particular week because it’s the weekend and then obviously when I saw that email I was extremely shocked and with the cursory “FYI” that was in front of it I was very alarmed and then I obviously saw that the date was the 16th which explained to me why I hadn’t been able to reach them previously so I knew that the minimum my parents were concerned with that email.
Q. When you did speak to them were they in fact concerned about the email to your perception?
A. Yes, very much.
HER HONOUR
Q. When was that?
A. I believe it was at the following weekend after the 19th, so the 24th, 25th around that timeframe.
RASMUSSEN
Q. Do you think you might’ve spoken to your mother earlier than that weekend at or about the time the email was sent to you?
A. Possibly. I can’t remember specific exact dates but I do know I tried to call her a couple of times but I was obviously - would’ve been working, the children would’ve been at school but from memory it was shortly thereafter.
Q. Your contact with your parents was via FaceTime so you got to see and hear them, is that correct?

A. Yes.
Q. Did you observe your mother to be happy or unhappy when she was discussing this email with you?
A. Very unhappy.
Q. Well, what did you observe?
A. So as I had mentioned previously there were no niceties when the conversation started. Both of my parents were sat very upright and very still. There was limited pleasantries during the call and both of them were very short and a couple of times they snapped in response to things that were said. Again, it was a fairly short conversation.” (T60-61)

In fact, there was at least one phone conversation and an email on or about 19 February, which was three days later. According to Mrs Rader (T170), she spoke to the plaintiff once before sending an email to the defendants on 19 February 2019 to set up a phone meeting to discuss the matter complained of. It was in the course of that “verbal” (T 170) conversation that she obtained from him the information she used, in the twenty-minute 20 or 21 February 2019 phone call with the defendants, to refute the allegations one by one. Mrs Rader also sent the plaintiff a copy of the email she sent on 19 February 2019 at 10:00 PM (GMT) to the first defendant proposing the meeting (CB:30).
The plaintiff did not give evidence in chief of his parents telling him what they talked about in their telephone conversation with the defendants. Instead, he said that for a number of weeks after that conversation, his parents had demanded proof of the falsity of Karen’s allegations during “numerous” telephone calls before deciding that “it beggars belief” that the defendants had sent such an email and apologising to the plaintiff for doubting him:

“Q. Did there come a point in time when your mother seemed to feel satisfied or not?
Yes, yeah, actually, you know, after we'd spoken numerous times, it would have been a number of weeks later that, you know, things to started to get, you know, back to normal and I think at one point I do remember very specifically my mother turned around to me and saying, "Yes, you know, I'm convinced that what they said is false. I still don't understand why they did this. I thought they'd ..(not transcribable).. priority with me and the children and it's just absolutely, you know, it beggars belief why they would have sent the - these email messages to us. But thank you, Damian, for taking all the time and the effort" and she apologised to me and said, "I'm sorry that I doubted you" and so - yeah, that's pretty - excuse me.” (T38-39)

The plaintiff described his own shock that the defendants would believe their daughter’s lies over his truthful account of what had happened:

“I met them at the airport on 4 October once these allegations had - originally had surfaced. They never mentioned anything, they never changed their behaviour towards me. Literally days after, the police had served me with, with an AVO for all of these things that they had said. They sat there and just - for three or four hours, we sat in the, the lounge that's in the airport and they didn't for a moment change their behaviour towards me in any way. And so it was just, you know, incredible that they would do this and, and come up with these, you know, allegations, and to my parents of all people who they must have known would have believed them or at least given them, you know, the benefit of the doubt in terms of making all of these serious allegations. Like, I was just - I didn't understand why they were doing it. I was a little bit naive back then. But I just always assumed that the [Haines] would be neutral, would put my children's best interests first and foremost, and they knew what was going on with Karen, they knew about the sexual assault in Tasmania, they knew about everything that happened in 2018, and so to make these claims was just - yeah, I, I, I just couldn't - I couldn’t even process it for, you know, for hours.” (T 66)

The plaintiff went through the matter complained of and identified each of the imputations as being false (Exhibit C). He also stated that these were false to the knowledge of the defendants.
The plaintiff gave evidence of his distress at learning that others apart from his parents knew about the matter complained of being sent. The first of these occurred in April 2019, when mutual friends told him that Karen had told them her parents had sent a letter to the plaintiff’s parents to set the record straight (T 73). One of the friends said:

“You know, we were surprised that, you know, Donald and Karen Haines would interject with your parents. It is obviously upsetting for you." (T 74)

There was a second occasion in July 2019, when one of the children’s godparents said to him:

“Damian, Karen called us recently in relation to the children. Karen raised concerns about the children and asked us, as godparents, to get involved and Karen told us during those discussions that her parents were intervening, that they'd been in contact with your parents, Damian, and that they were going to help set the record straight and that they would get your parents or had got your parents to get involved and was going to clear things up in respect to the domestic violence and the AVOs." (T 75 – 76)

The plaintiff identified further occasions as follows:

“A. Yes, so a number of family friends, who will be appearing as witnesses in these proceedings and family members have spoken to me about the emails and their conversations with my parents over the course of 2019.”

The ADVO taken out for Karen was dismissed on 14 June 2019. The magistrate stated that she was not satisfied on the basis of probabilities that the fears Karen had articulated were reasonable or that those fears related to the commission of a domestic violence offence to conduct that intimidates or stalks, adding that time had passed a lot, the matter was now in the Family Court jurisdiction which was “far better suited to deal with disputes as to property and children”, noting that the parties were having no contact with each other except in relation to the children (CB: 55).
The plaintiff agreed that he had seen and dealt with the defendants on many occasions from February 2019 until he commenced proceedings in February 2020 without raising the contents with them. This included arranging for the disposal of Karen’s belongings and also one occasion when the defendants had supervised access to one of the children:

“Q. I just want to ask you about some of the occasions over the previous 12 months. You've already spoken to the effect that you had a meeting with Mr Haines in a park on 20 May I think it was, 2019. That's correct, isn't it?
A. Yes.
Q. At that meeting, your daughter X attended?
A. Yes.
Q. Also a neighbour? A. Yes.
Q. Her name is Margaret Brooks?
A. Yes.
Q. She was there because you had insisted in the email that a third party be present for the meeting?
A. No, I believe David agreed; he actually contacted me and said, "We agree to the third party being present".” (T 105).

The plaintiff agreed that he had never raised the matter complained of with the defendants during this period:

“Q. At no stage during that meeting I suggest to you did you say anything about the email that the Haines had sent to your parents on 16 February?
A. Correct.
Q. Indeed, you didn't mention it in any email correspondence prior to that meeting either, did you?
A. Correct.
Q. You also saw Mr Haines briefly in September 2019 when he came to pick up the children when the custody arrangements were changed by the Family Court?
A. It was the Federal Circuit Court.
Q. I apologise, I withdraw that. The Federal Circuit Court, you saw—
A. Yeah. Yep, I saw him briefly. He sat outside my house in his car for several hours before police officers arrived.
Q. You also exchanged SMS messages with him at or about that time and during the period that the children were in the custody of the Haines?
A. No, because there was a recovery order that was executed, so Mr Haines contacted the independent children's lawyer, [redacted], who I referred to before. She made false allegations to Judge Bruce Smith in the Federal Circuit Court and a recovery order was issued, and based on that recovery order, I wasn't allowed to contact the Haines until such time as that was thrown out by the appeal court in November 2019.
Q. I'm just trying to find something. Just give me a moment please, Mr Rader. A. Okay.
Q. I've just got a message here, and I'm not suggesting there's anything particularly significant about the message, but I just want you to acknowledge that you were in SMS contact with Mr Haines. For instance, on 15 September, he sent you a message saying, "The above is Y's list, plus Apple Watch charger. If you could let me know when ready, I'll come around and collect it. Thanks, David". You said to him, "David, that's all ready to go. I'm assuming X doesn’t need anything today? Please would you bring over my two sets of house keys that the children have?" Do you recall that exchange of messages on or about 15 September 2019?
A. Yes. So, to correct my previous statement, I hadn't had full legal advice as to the conditions of the recovery order, and so I do recall David Haines getting in contact that weekend. After that, there was no further contact from my side to him. (T 106)

Mr Richardson SC asked what had changed in February 2020 to result in the commencement of defamation proceedings:

“Q. You didn't let the Haines know you had any complaint or grievance whatever about the email they sent to your parents.
A. Sorry, you'll just have to repeat yourself. You got a bit garbled in the middle there.
Q. You didn't let the Haines know that you had any complaint or grievance whatsoever about the email they had sent to your parents.
A. That's correct.
Q. I want to suggest to you that the reason you never mentioned it to them or made any complaint is that the email sent by the Haines to your parents hadn't damaged your relationships with your parents.
A. No. I reject that proposition. As I said, I didn't want them to know that they caused such a rift. I didn't want them to use that in any way against myself in the family law proceedings. I didn't want them to give Karen a sense that she'd driven a wedge between my parents and I and that her calls to other people and speaking to other people have caused such an issue. So, again, stiff upper lip.
Q. But those considerations were exactly the same at any point in time, including the day you sued, being 13 February 2020.
A. I don't think they were - definitely were, Mr Richardson, because in December 2019 was the first time that we actually had interim parents orders made that put the children in my care and entirely rejected any semblance of supervised contact for my ex-wife, and so it was only once those family law proceedings were bedded down that I felt confident and I had the finances to pursue the defamation matter. And so as I gave evidence before, between February 2019 and February 2020, I was totally and utterly consumed with the AVO proceedings, the family law proceedings and getting to a point where my children were safe and they would not be harmed any, any longer. And so then it was time that I decided to pursue for all the hurt and upset that had happened over the previous 12 months.
Q. I want to suggest to you that none of that would have stopped you from making a genuine complaint any time.
A. Well, I, I reject that, Mr Richardson. I personally didn't have the funds to be able to launch another set of legal proceedings on top of the family law proceedings. I also always put my children's best interest first and this defamation matter is about clearing my name, but more important than that at all times is my children's safety, and my children were harmed when they were in your client's care between September and November, and so my focus was on going to the appeal to get my children back. Given that there'd been false statements made by an independent children's lawyer, a recovery order had been issued. So I'm afraid those things preoccupied my mind far more than defamation proceedings against your client. And I can tell you that my son tried to hang himself while in the custody of your clients, and so that was my priority, and I did not have the time to pursue defamation proceedings.
Q. I want to suggest to you that your suggestion that my clients, my 81 year old clients, harmed their grandchildren is offensive. And you know it's offensive.
A. I agree it is offensive, but it's still true. (T 107)

In re-examination, Mr Rasmussen asked the plaintiff to outline the other litigation which had distracted him from commencing proceedings for defamation against the defendants. The plaintiff outlined a series of hearings in the Federal Circuit Court of Australia, including the three appeal hearings in the Federal Court of Australia which resulted in the final judgment of November 2019.
The plaintiff was also asked about the hurt caused by Mr Richardson SC’s cross-examination as to his motives for bringing these proceedings:

“Q. You were asked some questions about, and it was suggested to you, that you were not bringing these proceedings genuinely to vindicate your reputation, do you remember that?
A. Yes.
Q. How did you feel when you were asked those questions?
A. I found it quite offensive, I was quite upset that Mr Richardson would suggest such things. As I indicated in my evidence I would like nothing more than to not have any involvement in any further legal proceedings. All of the proceedings that I'm involved in currently have been as a direct result of my marriage breakdown, and I would like nothing more than to have no further involvement with my ex wife or the Haines. The police seek, and as I mentioned previously, seek out a five year extension to the AVO to protect my children and I and I would like nothing more than to be left alone to get on with my life, to bring up my children and to look after them. And so I found it quite aggressive for Mr Richardson to say those things and I just can't see any basis whatsoever for those allegations.
Q. So how did you feel when Mr Richardson accused you of being obsessed with your ex wife, and that these proceedings were nothing more than another way to get back at her?
A. If I wasn't so upset I'd probably have laughed out loud, it was preposterous, but to be honest I took it quite as an upsetting thing to say, given all that I've done to avoid any contact with my wife, that I've done to avoid having any contact with my children. I'm now..(not transcribable)..in the family law proceedings where we have to go through all of the family violence and safety issues because she's breached the AVO on so many times, and so the Family Court have put in place all those provisions. I don't want to have any contact with her, I don't want anything to do with her; I'd rather all these proceedings were just brought to an end and my main motivation, my only motivation for bringing all of these proceedings, is to clear my name and to satisfy all the false allegations that have been made against me.” (T 134)

The plaintiff’s mother’s evidence

In summary, Mrs Rader explained her strong reaction to the matter complained of as being because the defendants were trusted by them and were present in Australia, and could be expected to relate the facts accurately (T 161 – 166; 176). Mrs Rader said that her son had previously withheld the truth from her in the context of his relationship with his wife (T 176) in terms of her having a drinking problem. Mrs Rader said that she and her husband shunned and avoided their only son for some time after reading the matter complained of and forced him to demonstrate that the defendants had got things wrong in the matter complained of (T 162 – 5). She described her husband as saying to her son, “You’re going to have to come up with some good evidence to, you know, turn this around if you haven’t done these things, we need to see the evidence that you haven’t done them because these are serious, really serious allegations” (T 166).
Mrs Rader came to Australia for the Federal Circuit Court proceedings to support her son and, if necessary, give evidence. That is suggestive of her having taken a close interest in what was occurring over a long period. She had the additional advantage of having the plaintiff and the children in her home for some weeks before the matter complained of was sent. The twenty-minute conversation that Mr and Mrs Rader had with the defendants on 20 or 21 February consisted of Mrs Rader going through the allegations point by point, on the strength of the information the plaintiff had provided to her “verbally” (T 172) in their sole conversation prior to this meeting being arranged. All of this suggests a degree of familiarity with her son’s matrimonial problems at the time she read the matter complained of.
Mrs Rader acknowledged that, when she had the conversation with the defendants, she told them there was evidence to disprove most of the things they had said, including statements made by the children to the police. She said that this was information she had obtained from the plaintiff in her phone conversation with him prior to her conversation with the defendants on 20 or 21 February 2019 (T 171 – 172). Importantly, this was evidence that was provided by him “verbally” (T 172), not in writing. Any telephone information provided by the plaintiff beforehand must have been scant, given his description of this call as being short and his parents as being angry. There can only have been one phone call before the twenty-minute conversation with the defendants, as Mrs Rader’s evidence was that she shunned the plaintiff over the period 18 – 20 February 2019 because she was so angry with him.
Having set out this general summary, I set out relevant passages of her evidence on these topics.

The conversation between the plaintiff’s parents and the defendants

I first note what was said by the plaintiff and his parents to each other before Mrs Rader sent the following email (at 22:01 GMT on Tuesday 19 February 2019) to Mr Haines (but not to Mrs Haines), with a copy sent to the plaintiff:

“Dear Donald
Thank you for your email. I would suggest that we speak either by telephone or video to discuss the contents. Given the time difference I would suggest either morning UK time which is evening for you, or morning your time which is evening time in the UK. Please let me know which is more convenient with the time frame, and whether by phone or video.
Regards,
Margaret.” (CB 30)

On Wednesday 20 February 2019 12:01 pm (AEDT), Mr Haines responded to Mrs Rader three hours after her email to him, but did not “CC” the plaintiff in that reply.
On either 20 or 21 February 2019 there was a 20-minute conversation between the plaintiff’s parents and the defendants. According to Mrs Rader this was as follows.

“Q. Well, what you did with the Haines was to go through the email point by point, wasn’t it?
A. That’s correct.
Q. In fact, you said to the Haines, I suggest, “There is evidence to disprove most of the things you’ve said. The allegations have been disproved by statements made by the children to the police”.
A. Yes.
Q. That was information that you’d obtained from your son in the phone call the previous day?
A. Correct.
Q. What I want to suggest to you is that within three or four days of you receiving the email you had spoken to your son - first, do you agree with that?
A. I did.
Q. That you have obtained from your son his response to the allegations. Do you agree with that?
A. Verbally, yes.
Q. That you have put that response back to the Haines. Do you agree with that?
A. Correct.
Q. And that you believed your son. Do you agree with that?
A. No.
Q. Well, what I want to suggest to you is you wouldn’t have said to the Haines, “There is evidence to disprove most of the things you’ve said”, if you believed the allegations at that point, which is the time you spoke to the Haines. You wouldn’t have said that.

A. I would’ve said that because I wanted them to turn round and say, “Well, we’ve got evidence otherwise”.
Q. You recall earlier you gave some evidence to the effect that during the conversation you said something like, “Well, I’ll believe what Damian says and you’ll believe what Karen says”. That may not have it precisely right, but I think that’s the gist of what you said. Is that correct?
A. Correct.
Q. That was, I suggest to you, a truthful remark. You meant what you said?
A. I said that so that if they had any doubts they would tell me.” (T 171 – 172)

When determining how much other information the plaintiff had to give his parents for them to be able to refute the defendants point by point, what did Mr and Mrs Rader say to the defendants about the court proceedings between their son and his wife?
Mrs Rader’s account of what she knew about the break-up of the relationship between her son and the defendants’ daughter when she received the matter complained of underwent some modification as a result of checking against the chronology of events:

“Q. I just want to ask you this, and this is directing your attention to the time as at about 16 February, prior to your receiving the email. You knew your son, Damian, and Karen were in the throes of a bad breakup, didn’t you?
A. I knew they were having marital problems, but as far as I was - understood, they were trying to reconcile.
Q. Did you know that the police had taken out an apprehended domestic violence order on behalf of Karen as a protected person against your son? Had you been told about that or not?
A. Yeah. I thought she’d retracted it or she withdrew.
Q. You’d been told, had you, as at 16 February, that she had retracted that allegation and that it was no longer in play. Was that your understanding? Is that what your son had told you?
A. Yeah.
Q. Did you know that the police had taken out an apprehended domestic violence order to protect the children that was directed against Karen? Did you know that?
A. Yes.
Q. Did you know that Karen had been alleging violence by your son?
A. No.
Q. So at no point had - I want to be clear about this and fair to you and your son. But at no point prior to 16 February had your son advised you that Karen had alleged violence against him; is that right?
A. That’s correct. He said that he - she’d - she had at the AVO, when she - when she tried to take out an AVO, and then that she retracted it. And I said, “Why would she do that?” And he said, “She withdrew”. Q. So you didn’t know—
A. So--
Q. Did you come to understand that in June 2019 there was a hearing about an apprehended domestic violence order that was being taken out by the police against your son? Did you know about that—
A. My son told me, yes. Yes.
Q. So he did tell you about that. But did he tell you about that after-- A. I can’t remember.
Q. --..(not transcribable)..?
A. I can’t remember.
Q. Karen herself had on one occasion told you that Damian was a monster, hadn’t she?
A. She sent me a, a text message to say, “Your son’s the monster. I don’t know how you can sleep at night”.
Q. You understood that the relationship between them had, by February 2019, degenerated into a very poor state?
[Technical problem]
Q. Into a very poor state.
A. We were in Australia early that year, or late the year before, and we have the children stay with us, as is usual. Karen and Damian were still seeing one another. They were going out for meals. They were going to school functions. So I know they had an up and down relationship, but they seemed to be trying to work it out.
HER HONOUR Q. I’m sorry, what date was this when they were still seeing each other? Was this before or after the AVO?
This was before. This was late 2018, early 2019--
RICHARDSON Q. Mrs Rader, I want—
A. --while we were in Australia.
Q. I want to suggest that you’re confused about that and that you’re talking about a period in late 2017. That’s my suggestion to you. Do you agree or disagree? Is it possible?
A. It’s not impossible. I get confused. We used to go out there every year, so it’s
Q. I want to suggest to you that in fact in the Australian summer of 2018 to 2019 your son and the two children had come to visit when you were in the UK and then travelled to Prague?
A. Correct, you're correct, sorry.
Q. Then in late 2018 by that stage at least two apprehended domestic violence order applications existed and there was no contact between on the one hand your son and two children, and Mrs Karen Rader on the other hand?
A. Correct.
Q. In other words, returning to the original question, it was the case wasn't it that by February 2019 things between them were in a very bad state?
A. Can you repeat that please?
Q. It was the case wasn't it that by February 2019 things between them were in a very poor state?
A. It seemed to be that way, yes.
Q. I want to suggest to you that by the time you spoke to the Haines, and you agree that was on perhaps 20 or 21 February, that by that time you believed most of the things they said in their email of 16 February could be disproved by evidence?
A. I'm not sure I did believe it until I got more evidence from Damian which took quite a while to come through.
Q. Your position was by then when you spoke to them, as you told them that you rejected what the Haines had said in their email?
A. I told them that, yeah, because I wanted to see if they would come up with anything to say "Well yeah, this is what Karen told us", but I, I just couldn't believe either side of that point.” (T 172 – 176)

Mr Richardson SC then asked:

“Q. What I want to suggest to you is that within five or six days of receiving the emails you spoke to the Haines for about 20 minutes and gave them a point by point prevailing of the allegations contained in their email?
A. Yes, because that's what Damian had told me. I had to go, go, run that by them to see what their reactions were. I still hadn't had full evidence from Damian, I still hadn't had full evidence from the Haines. Donald Haines said he would take on board everything I'd said and come back to me, and he never came back to me. He never came back and said "This was true, this was true, this was true".
Q. It's the case isn't it though that within a few weeks you said to your son something to this effect, "Yes I'm convinced that what the Haines said is false, and I don't understand why they did this", do you agree with that?
A. Correct.
Q. You said you actually apologised to your son for not having believed him?
A. Yes.” (T 176)

Mrs Rader also agreed (T 172) that she said to the defendants, “Well I’ll believe what Damian says and you’ll believe what Karen says”. Mrs Rader denied that she said this because she believed it, adding that she hoped that if they had any doubts they would tell her.
Mrs Rader’s concession in the above extract, following the challenge to her earlier evidence to the contrary, demonstrates that the plaintiff’s parents knew all about the allegations that Karen had made in the ADVO police had taken out on her behalf on 25 September 2018. If they already knew she had accused the plaintiff of stalking and domestic violence, why were they shocked to hear the defendants repeat this material, and for how long did they “shun” the plaintiff?

The period of time over which the plaintiff’s parents shunned him

Mrs Rader said that she was due to have her regular FaceTime meeting with the plaintiff and the children “later that day” (T 163), which would have been Saturday 16 February, but did not do so because she was so angry:

“Q. Prior to reading it, did you and Damian have a custom of speaking via Facetime with him and the children?
A. Yes.
Q. You did?
A. Yes, regularly.
Q. And how—
A. Regularly, every Sunday they would all sit down in front of the computer and we'd do a Facetime.
Q. After you received that email, did you have one of those Facetime meetings with him?
A. No, we should’ve had one, I think it was later that day, and I didn’t respond to it because I was, these things were all going round in my head and I just couldn’t speak to him, I was so angry.
Q. When you say you couldn’t—
A. I--
Q. Sorry, go on.
A. I couldn’t bring myself to speak to - it was, I, I had to process this through my head and, and think, you know, why would the Haines have even sent this unless they were absolutely sure that what they were saying was true, and that meant that I just couldn’t, couldn’t bring myself to speak to Damian if it was true.
Q. You said that you couldn’t respond to the Facetime, does that mean that he tried to contact you via Facetime and you didn’t pick up, is that what you're saying?
A. Yeah, yeah.
Q. Did that happen more than once?
A. He tried to phone after that, and he kept phoning, and I didn’t take his calls, I just muted to get this through my head and, and try and work things out, but it, it just, it was just so upsetting, the whole thing. As I say, I, I was, I felt like somebody had punched me in the gut. When you, when you feel that somebody's accusing your own son of violence and being abusive and stalking, and Damian never mentioned anything like that to us, and as his dad said..(not transcribable).."What hasn’t he been telling us, has he been keeping things from us?" (T 163 – 4)

As noted above, the plaintiff’s parents received the matter complained of on Saturday 16 February 2019 at 11:07 AM (GMT) (the equivalent of 10:07 PM (AEDT) in Australia). This would suggest that if the plaintiff rang them, the dates over which the plaintiff’s parents were shunning him would have been 16 – 18 February.
Mrs Rader acknowledged that she had spoken to the plaintiff before she sent the email to the first defendant on 18 February 2019 at 10:25 pm (GMT) (which was 19 February at 9:25 am (AEDT) in Australia), and that this conversation was before she replied to Mr Haines (T 170 – 171). She also included the plaintiff as an addressee in the email to Mr Haines, and acknowledges speaking to the plaintiff before sending it. The fact that she included the plaintiff as an addressee to the email suggests that she must have told the plaintiff what she proposed to do in response and, perhaps more importantly, by “CCing” the plaintiff, she was putting the defendants on notice that the plaintiff was aware of these matters.

The evidence the plaintiff send to his parents

Mrs Rader said the plaintiff sent her a lot of evidence, although agreeing that this occurred after the twenty-minute conversation she had with the defendants on 20 or 21 February 2019, and explained that this evidence persuaded her quite a few weeks later that everything in the email was false:

“Q. Nonetheless you agree that within weeks you came to the view that everything in the email was false?
After quite a few weeks when Damian sent the, all the evidence through, yes.” (T 179).

What was the evidence that the plaintiff “sent through” to his parents, and when did he send it to her? Mrs Rader said (at T 166) that he told her: “I’ve got evidence to prove it – to disprove it”, adding that “this took time for him to gather the evidence to send through to me so it was quite a while before we’d got back onto an evil [scil: should be “even”] keel to our old relationship because I questioned every single thing and so did his father” (T 167). When asked what evidence he had sent her, she referred to text messages and an AVO that she had retracted, “stuff like that” (T 167). This took “weeks” (T 167). What was more, the plaintiff’s father questioned him about this evidence “right down to the last detail” (T 167).
There is no documentary evidence, or evidence of the number of, or timing, of the calls, but the plaintiff said in his evidence that he took his parents through the evidence during their FaceTime discussions after the twenty-minute conversation, when he put documents on the screen for them to read. The period of time over which this occurred appears to have been some weeks.

Mrs Rader’s prior knowledge of the marriage breakdown

Mrs Rader acknowledged that she knew about Karen’s ADVO as well as the ADVO for the protection of the children. There is unchallenged evidence that she was involved in giving advice to the plaintiff as early as July 2018, when she advised him to telephone the second defendant to tell her about finding the suicide searches on Y’s phone (which he suspected had been put there by Karen). The plaintiff rang her in October 2018 to tell her about Karen’s attempted suicide that month. He and the children spent some weeks in her home, about four or five weeks before the matter complained of was sent. The likelihood that Mrs Rader knew a great deal about the allegations on both sides is very high.
In conclusion, Mrs Rader was upset and angry that she received the matter complained of, and remained so for quite a few weeks, before accepting the plaintiff’s word and apologising to him for doubting him. I accept her evidence that her husband felt the same way.

The evidence of the plaintiff’s witnesses

The plaintiff called witnesses who attested to the distress the matter complained of caused to the plaintiff’s mother. There was very little reference to the plaintiff’s father, but I am prepared to infer that the level of distress they describe is applicable to both parents.

Mrs Brooks

When Mrs Rader came to Australia in mid to late 2019 to support her son and to give evidence if required in the Family Court proceedings, she stayed with her friend, Mrs Brooks. Mrs Brooks is also the family friend who supervised the access visit the defendants had with X in May 2019. Her evidence about what was upsetting Mrs Rader about the matter complained of is important as she was clearly trusted by both the plaintiff and Mrs Rader.
In the course of staying in Mrs Brooks’ home, Mrs Rader spoke about her feelings concerning the matter complained of.

“Q. Going back to when you were speaking to Mrs Rader about this communication, did she express to you any view about the Haines or -
A. No, she was very disturbed and upset that they would have even thought of communicating this to her because she believed it was untrue.
Q. Thank you very much; that's the evidence in chief. Mr Richardson may ask you questions now.
Q. You just said that Mrs Rader had communicated to you that she was disturbed and upset with what the Haines had done, and that she believes it was untrue; do you remember just saying that a moment ago?
A. Yes.
Q. It's the case isn't it that Mrs Margaret Rader supported her son completely?
A. As any mother would I presume.
Q. She believed that the allegations of abuse were completely false?
A. Yes, she had many occasions when she'd been in the family situation and had never seen such a thing in all that time.” (T 146)

Mrs Brooks also knew about the ADVO process as part of her ongoing association with both sides of the family. She did not believe Karen’s allegations and did believe the plaintiff:

“Q. You yourself also believed the allegations were untrue didn't you? A. Yes I did.
Q. You didn't believe that Mr Rader was guilty of any abusive conduct? A. Well I had never witnessed it.
Q. And remained a friend of his?
A. I remained a friend of both parties.
Q. And your husband has also remained a friend of Mr Rader's?
A. Yes, yes, absolutely.
Q. Otherwise you knew that Damian and Karen had a difficult marriage breakdown?
A. Yes, I became aware of it and even after, even after they were not living together, I still saw both of them on occasion.
Q. You knew that the police had become involved at various points?
A. Well I didn't know the details but yes I did know that.
Q. You knew that apprehended domestic violence orders had been taken out inside the family?
A. Yes.
Q. You knew that she was alleging violence on the part of Damian?
HER HONOUR Q. Mrs Brooks did you hear that?
A. Yes I did, I did know that.
RICHARDSON Q. And you knew that the children were alleging violence on the part of Karen?
A. Yes, I did know that, I had actually witnessed one, one occasion.” (T 147)

Mrs Brooks’ evidence confirms the total rejection by Mrs Rader of the allegations against the plaintiff. The persons with whom Mrs Rader was angry and upset were the defendants, for even thinking of communicating such material to her, when she considered that they should have known that it was untrue.

Mr Allan

Mr Allan, who lives in Thailand, said he had a phone conversation with Mr and Mrs Rader at least once a week (T 149). He described a conversation with the plaintiff’s mother which occurred after the matter complained of was sent but before she had spoken to her son (which, although Mr Allan could not give a date, would place this call as being between 16 and 18/19 February 2019):

“Q. --did you observe or hear an attitude from her about the particular communication or email that she received?
A. An attitude?
Q. Yes.
A. As I say, she was upset, she was very upset. And in addition to what I've related, after a while I talked and tried to calm her down, and, and, and reassure her. And I said, "Look, have you spoken to Damian?" and Margaret said, "No, we haven't spoken to him yet." I don’t know how long it was before they got in contact with Damian again, but this did, to my understanding, it drove a wedge into their relationship which is, I must, I must stress, a very close relationship.” (T 151)

He was asked in cross-examination:

“Q. It's the case, isn't it, that you never believed that Mr Damian Rader had engaged in any mental or physical abuse to his wife?
A. I, I, I just, I couldn’t believe that.
Q. I want to suggest to you that within a few weeks of the conversation with Ms Margaret Rader that you have given evidence about, that she told you she had in fact spoken to Damian.
A. Yeah, I, I, I can't put an exact timeframe on it, but all I, all I remember is that they were back in contact with Damian, and I thought the whole thing had been sort of smoothed over.” (T 152)

Mr Richardson SC asked:

“Q. Did she tell you that Damien had discussed the allegations with her?
A. I don’t think she told me directly, I just assumed because, you know, I would say, "How's things in Australia?" and Margaret would say, "I spoke to Damien for two hours on Sunday morning." So I just assumed that they were back in contact and that particular hurdle had been crossed.
Q. Would it be fair to say within a few weeks you had the impression they had resumed a normal relationship?
A. Yes.” (T 152 – 3).

Mr Allan had been good friends with the plaintiff’s parents since 1973, which included not only working with Mr Rader but, on retirement, buying a home in the same township in which they resided. His long relationship with both of them and his regular weekly phone contact with them means that his evidence can be relied upon. His evidence confirms that within a few weeks, the plaintiff had resumed a “normal relationship” (T 153) with his parents.

The plaintiff’s aunt

The plaintiff’s aunt, who lives in England (and whom I choose not to name), is Mrs Rader’s sister. Her evidence was as follows:

“Q. Can you tell us what Mrs Rader told you was said, the things that you said that Mrs Rader told you about, about Damian, did she tell you who told them to her? A. She said she'd been sent an email by Mr and Mrs Haines saying that, saying that there'd been things going on in Australia and you know things that you know abuse and things about the children, about Damian, about the relationship.
Q. Sorry I didn't mean to interrupt you.
A. No, sorry.
Q. When she spoke to you did you notice anything about her manner? A. Well she was very, very, very upset, very stressed.
Q. Did she tell you that if she was upset or stressed about this communication or just about things generally?
A. Well both, I mean she was extremely upset and she was really concerned about the children because she was thousands of miles away, and you know she'd been sent this and you know couldn't kind of dispute it; it was sent to her and you know she was really kind of emotional and as I say like extremely stressed.” (T 156)

Malice

Once the defendant has established that the matter was published on a protected occasion, the onus switches to the plaintiff to determine malice. The parties agree in their written submissions that the court is slow to infer malice. The relevant principles of law are helpfully set out in Mr Richardson SC’s opening submissions as set out at CB: 190 (paragraphs 44 – 52), in his Submissions at paragraphs 60 – 62 and in his reply to the plaintiff’s submissions at paragraphs 24 – 39.
I will add one authority to those cited by the parties, which deals with the motive of seeking to injure the plaintiff, this being a matter raised in particular 7(v) of the Reply. In Lillie and another v Newcastle City Council [2002] All E R (D) 465, Eady J made the following observations about a dominant motive to injure in circumstances where the relevant defendant was honest:

“1090 The traditional approach to malice, at least in the quarter of a century since their Lordships' decision in Horrocks v. Lowe, is that it is for the claimant in a libel action to prove the defendant “malicious”, in the sense of demonstrating either that he had no honest belief in the words complained of or, at least, that the dominant motive in publishing those words was to damage the claimant's reputation. It was recognised by Lord Diplock that recklessness too had a role to play, as in other areas of law. Thus, malice could be demonstrated if a claimant proved the defendant to have been genuinely indifferent to the truth or falsity of the defamatory allegations.
1091. I am not aware of any example of malice having been found (in a case where the judge or jury concluded that the relevant defendant was honest) simply on the basis that the dominant motive was to injure the claimant. It is, in the light of Lord Diplock's speech, at any rate a theoretical possibility. It may be, however, that it is an increasingly remote one in the light of recent authorities.”

Application of these principles to the matter complained of

The first question is whether the matter was published on a protected occasion.
Both Mr Rasmussen and Mr Richardson SC start with an analysis of the structure of the matter complained of (Mr Rasmussen at paragraph 31 of his submissions of 21 September 2021 and Mr Richardson SC at paragraph 55).
The following features may be noted:

The first paragraph is introductory.

The subject matter and paragraphs 5 and 6 describe the schooling and fees issues.

Paragraph 7 refers to the defendants not having seen their grandchildren since October in the year before.

Paragraphs 8 to 10 set out the circumstances of the separation of the plaintiff and his former wife.

Paragraph 11 refers to the Nissan car, stalking and the possible origin of Internet material relating to suicide.

Paragraphs 12 and 13 relate to the airport incident, the trip to Launceston and the plaintiff’s former wife subsequent breakdown.

Paragraph 14 refers to the taking out of the ADVOs and allegations of violence.

Paragraph 15 refers to the plaintiff seeking police intervention after the defendants’ other daughter contacted Y to organise a Christmas present.

Paragraph 16 expresses the hope for a more amicable approach in future.

Mr Richardson SC has set out a list of the factual matters (closing submissions, paragraph 48) leading up to the publication of the matter complained of, which I gratefully adopt. In addition to the ADVOs, access and Christmas present problems, there were pressing matters in terms of what was to happen with the school fees, as school was about to start. Although the plaintiff denied doing so deliberately (T 91), his linking of the school fees issues to promises of supervised access, in terms of these occurring in the same letter and being “CCed” to his solicitor, contributed to the pressing nature of the problems.

Was the matter published on a protected occasion?

The relevant factors are set out in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [54].
Mr Rasmussen submits that the publication was not made on a protected occasion and that, if it was, that protection was lost because the publication went beyond the parameters of the protected occasion.
The circulation of the matter complained of – from one set of grandparents to another – is extremely narrow. The subject matter is related to the behaviour and welfare of close family members and made at a suitable time, in that something had to be done about school fees as the school term was starting. It was clearly published out of a moral, familial and social duty to communicate between the parties’ parents where the defendants (representing their daughter) were at odds with their son about supervised access, school fees and the ongoing acrimony between the two parties to the marriage. Mr and Mrs Rader had an interest in receiving the information because the subject matter was their grandchildren’s welfare and schooling as well as hearing the different perspective of the defendants, who were clearly concerned about the welfare of both their daughters, as to those events. There had been a prior history of consultation of parents by both parties to the marriage; for example, when the plaintiff found the suicide searches on Y’s phone, he rang his mother to ask what to do, and she told him to contact the second defendant, Karen’s mother (CB:44).
That privilege was not lost because of gratuitous insult, irrelevant material or publication to persons with no interest in receiving it.
For the above reasons, I am satisfied that the matter was published on a protected occasion and that the whole of its contents, as well as the imputations pleaded to arise, was relevant to the occasion.

Can the plaintiff establish malice?

The plaintiff relies upon the particulars of malice for the first and second defendant set out at paragraph 7 of the Amended Reply. Those particulars may be summarised as follows:

The subject matter was “private” and “of no interest to the defendants or the recipients of the matter complained of” (particular i).

The defendants had “no evidence and/or no independent evidence” of the defamatory imputations such that publication was made with reckless indifference to truth or falsity (particular ii).

The defendants deliberately refrained from making any proper inquiry as they preferred not to have the result of such inquiry, which amounted to wilful blindness (particular iii).

The tone of the matter complained of, which was vituperative and amounted to an attack on the plaintiff’s character as well as not being based on proven facts (particular iv).

The defendants were actuated by four improper purposes (7V (a) – (d)). These included a desire to damage the plaintiff’s reputation, anger at his lifestyle, jealousy that the maternal grandparents were seeing the children, anger at his treatment of their daughter, “the plaintiff’s responsibility for the origin of materials relating to suicide”, a desire to turn the plaintiff’s parents against him and a desire to influence the ongoing Family Court proceedings “improperly” (particular v).

Although the plaintiff bears the onus, Mr Rasmussen’s submissions on malice are scant. The plaintiff expressly did not submit on malice in his written submissions, as Mr Richardson SC noted at paragraph 24 of his Reply submissions dated 17 September 2021. Mr Rasmussen provided additional submissions on 21 September 2021 (paragraphs 31 – 36) but referred to malice only briefly in his oral submissions (T 224 – 226).
Both parties referred to Australian rather than English authorities on malice. I note the relevant principles as set out in Roberts v Bass (2002) 212 CLR 1 at [74] – [104], KSMC Holdings Pty Ltd v Bowden [2020] NSWCA 28 at [74] – [75], [135] and [153] and Murray v Raynor [2019] NSWCA 27 at [80].

Particular 1

From 1 October 2018, the parties had retained solicitors (CB: 50) and did not speak to each other, but continued to consult their parents. In one case, the plaintiff’s mother told her son to consult the second defendant. This was on or after 13 July 2018, when the plaintiff found the online suicide searches referred to in the matter as well as in particular V(b)(v); he rang his mother “for guidance about what to do” and as a result of that discussion he not only rang the second defendant but also sent her the suicide searches that he had found (CB:44; CB 102 - 3). Another example is that, according to the plaintiff’s statement of evidence to the police for the ADVO, when Karen attempted suicide, 22 October 2018 he rang his own mother and told her this (CB:44). .
As to the assertion that these were private matters, the Raders and the defendants were the children’s grandparents and they all had an interest in their children’s wellbeing as well as a continuing relationship with the grandchildren.

Particular 2, 3 and 4.

These are particulars of reckless indifference to truth, wilful blindness, lack of evidence of proven facts and a failure to inquire. However, the plaintiff must lead evidence to demonstrate that the defendants deliberately refrained from making inquiries for fear that they would learn the truth: KSMC Holdings Pty Ltd v Bowden [2020] NSWCA 28 at [135]; see also Murray v Raynor at [80]. The circumstances in which the defendants believed their daughter and asked her to read and confirm the accuracy of the publication are a significant indication that the defendants made every effort to put their daughter’s side of the story as accurately as possible.
As to particular 4, Mr Rasmussen did not identify the portions of the matter complained of asserted to be vituperative, although I note the use of the words “appalling” and “spurious”. Use of strong adjectives is insufficient to amount to evidence of malice: Murray v Raynor at [32]; Calwell v Ipec Australia (1975) 135 CLR 321 at 332 per Mason J.

Particular 5

The existence of a dispute (whether personal, legal or both) between a plaintiff and a defendant is not sufficient evidence of itself of a desire to injure of the kind asserted here. The defendants’ observations about the plaintiff’s lifestyle and expenditure and arrangements for access with his parents are put in the context of the plaintiff expecting them to foot the school fees bill while at the same time limiting their access to the children by requiring supervision, not only by the plaintiff, but by third parties.
The issues set out in (iii) and (iv) set out what the defendants’ daughter had told them; there is no evidence that they did not believe her. As to (v), I do not read the matter complained of as accusing the plaintiff of putting the suicide information searches onto Y’s (not X’s as stated) computer. The defendants state only that their daughter was not responsible. The plaintiff himself acknowledged he was not sure who was searching for suicide material and he agreed his wife had always denied responsibility (T 109). Y had the phone at a school camp at the time.
The assertion (in particular (d)) of a desire to influence the ongoing Family Law proceedings is misconceived, as those proceedings did not commence until after the matter complained of was sent. If what the plaintiff meant to assert was a desire to influence the ongoing ADVO proceedings, evidence to that effect must be led. In the absence of such evidence, the particular cannot be made out.
For the reasons set out above, the plaintiff has failed to establish evidence of malice on the part of the defendants. There are, however, two remaining issues relevant to malice. The first of these is whether the failure to call the defendants is itself evidence and the second is the issue of malice between joint tortfeasors.

The admissibility of document CB:143 – 144

Mr Rasmussen submits that this document, which was produced on discovery by the defendants, should not be admitted into evidence because “the plaintiff disputes the authenticity of this document” (Submissions in Reply, paragraph 37) and it is hearsay.
The document in question purports to be a signed list of agreements between the plaintiff and his wife dated 10 May 2009, after an incident where the police came to the matrimonial home and served an interim ADVO on the plaintiff which was dropped very shortly afterwards. The asserted “agreements” included permitting Karen to have a credit card for reasonable shopping, to maintain friendships with her female friends, and the like, and recited that Karen had now told the court that she felt in no danger from the plaintiff.
The fact that an ADVO had been taken out “around 2008” (to quote the matter complained of) does not seem to be in dispute. The plaintiff said in his evidence that the contents of the ADVO Karen took out (for which this document is apparently the source) are falsely stated in the matter complained of (T 52 – 3). He denied that the signature on the document was his and said that Karen “goes to great lengths to recreate forms and documents, and I believe she's forged my signature” (T 108). He added that “in fact, I suggested to my ex-wife that we have a, a version of this document signed in front of a lawyer and she rejected that, and no document was ever signed” (T 108).
The defendants deny that there is a hearsay purpose. They rely upon this document in terms of information they had at the time of preparing the matter complained of (which refers to these events in the third-last paragraph).
Mr Richardson’s cross-examination at T 108 on this document goes beyond the non-hearsay purpose and I propose to disregard it.
The document may, however, remain in evidence for the very limited purpose of being, for the purposes of the qualified privilege defence, information available to the defendants at the time that they were writing the matter complained of and checking its contents with their daughter.

Malice and failure to call the defendants

In Barrow v Bolt [2014], where the matter complained of was an email to two persons, the defendant was not called to give evidence and a Jones v Dunkel inference was argued to support the finding of malice. T Forrest J stated (at [53] – [55]):

“53 This discussion can be reduced to the following conclusions:
(a) The strands, at their highest, prove that Mr Bolt had reason to wish the plaintiff ill.
(b) It is not evident from the terms of the publication that those reasons were present at the time of publication, or that they actuated the publication.
(c) There is no independent ground in the evidence for the conclusion that those reasons actuated the publication. The plaintiff’s ‘knowledge of falsity’ arguments fail because I am either positively satisfied that Mr Bolt did not know each of the Bolt statements to be false or because there is no evidentiary basis for the finding that he did.
54 It follows that the plaintiff must fail on malice. For this reason, I have not considered whether the allegations set out in the strands were or could be established on the evidence, or whether, if established, it could be inferred that Mr Bolt wished to injure the plaintiff or his reputation. I have also not considered the defendants’ first submission, on the applicability of the Briginshaw standard, because the plaintiff has failed to discharge the less onerous, civil standard.
It also follows from my conclusions that Jones v Dunkel can have no material application in this case because there is no ground in the evidence for the inference that any motive Mr Bolt may have had to injure Mr Barrow ‘was really operative in the making of the statement’, or that it was the ‘dominant reason’ for that publication. Until facts are proved from which the asserted inference could be drawn, a defendant is not called upon to say anything. Even if a Jones v Dunkel inference were available in this case, it could not operate as an admission, or to fill gaps in the plaintiff’s case – at best, it would permit the Court to infer that Mr Bolt would not have given evidence that he believed the Bolt statements to be true, not that he would have given evidence that they were false.” [Footnotes omitted]

The plaintiff sought to rely upon his own assertions that most if not all of the matter complained of was false (Exhibit C), adding that his success in the subsequent ADVO and family law proceedings demonstrates the falsity. However, as was the case in Barrow v Bolt (where Mr Bolt was making comments supportive of his own position in relation to a complaint brought to the Press Council by the plaintiff), the defendants were setting out their daughter’s side of the story, which they carefully checked with her beforehand.
The failure of the defendants to give evidence is similarly irrelevant to the four “improper purposes”, which similarly fail. Additionally, the Family Court proceedings were in the future, and not on foot at the time of the matter complained of.

Malice and Joint Tortfeasors

I was not addressed by the parties as to the circumstances in which malice findings operate where there is more than one defendant.
As a general rule, the malice of one joint tortfeasor cannot be attributed to another. It must be established that the malice of one infects the other so that both defendants are liable: Webb v Bloch; Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 at 375-376; Egger v Viscount Chelmsford [1965] 1 QB 248.
The relevant principles are summarised in Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375 at [73] – [75]:

73 The case of Smith v Streatfield was widely disapproved and eventually overruled in Egger v Viscount Chelmsford. Smith v Streatfield was a case where the author and printer of a pamphlet were sued. They were held to be joint publishers and joint tortfeasors. Malice in the author was held to defeat the plea of privilege made by the printer, even though the printer was not malicious and did not know the author was. In Egger, a committee resolved to send a letter which was held to be defamatory. Some of the committee members were found to be actuated by malice; some were not. There is no suggestion in the case that the innocent members of the committee knew of the malice of the other members. Lord Denning MR discussed Webb v Bloch as an example of vicarious liability. He concluded:
“It is a mistake to suppose that, on a joint publication, the malice of one defendant infects his co-defendant. Each defendant is answerable severally, as well as jointly, for the joint publication: and each is entitled to his several defence, whether he be sued jointly or separately from the others. If the plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence of qualified privilege, or to cause a comment, otherwise fair, to become unfair, then he must prove malice against each person whom he charges with it. A defendant is only affected by express malice if he himself was actuated by it: or if his servant or agent concerned in the publication was actuated by malice in the course of his employment.”(My underlining).

74 In these circumstances the authority of Webb v Bloch must be limited. It is suggested in Australian Defamation Law and Practice that the case is limited to the proposition that there will be malice where a joint tortfeasor is vicariously liable for another joint tortfeasor who is actuated by malice. To this effect is Dougherty v Chandler, where Jordan CJ said this (obiter):
“Where several defendants are charged with joint defamation, and express malice is established against one only, it has been said that the express malice of the one is fatal to the success of a plea of privileged occasion of fair comment by all or any … This may be true enough where the others are, on general principles, vicariously liable for the acts of the one … But, except in this class of case, I think, with all respect, that, as a matter of principle, where, to defeat a plea of several defendants sued jointly, it is necessary for the plaintiff to prove express malice, he must fail as against any defendant to whom he is unable to sheet home express malice.”

75 This passage was referenced by the Court of Appeal in New South Wales in Bass v TCN Channel Nine Pty Ltd. Handley JA said in this respect, “There is no doctrine of transferred malice in the law of defamation apart from the ordinary principles of vicarious liability.”

These principles are of particular relevance where there is a corporation. As to the third defendant, a company will not be liable for the publication by a servant on a privileged occasion where the malice of the servant, directed at the plaintiff, is purely personal and private, and unconnected with the affairs of the company: Aicken v Caledonian Railway Co [1912] SLR 45; [1913] SC 66 at 71 (for Australian authority, see Avery v The Sydney Harbour Trust Commissioners (1905) 22 WN (NSW) 54).
Mr Rasmussen has not led any evidence of the malice of the second defendant, as opposed to the first defendant, or vice versa. I note Mrs Rader’s responding email to the defendants is addressed to the first defendant only. What part, if any, did the second defendant play? Her lack of any role or position in the corporation is another relevant factor.
The plaintiff’s failure to provide evidence of malice for each of the defendants is another reason why the plea of malice must fail.

Conclusions concerning the defence of qualified privilege at common law

I am satisfied that the matter complained of was published on a protected occasion and that the plaintiff has failed to discharge the burden of proving the defendants, jointly or severally, were malicious.

Damages

In view of my findings on liability, my observations on damages are limited.
The plaintiff seeks an award of in excess of $100,000 including aggravated damages. Mr Rasmussen sought to refer to comparable verdicts in Australia and to the approach taken to damages here. I consider, however, that the approach taken in English cases to the assessment of damages under the UK Act is to be preferred. (I asked Mr Rasmussen if he was also seeking the publication of a summary conformably with s 12 of the UK Act, but I understand he does not seek this additional remedy.)
The relevant principles are set out in the case referred to in this judgment as Lachaux [2021], namely Lachaux v Independent Print Ltd and another [2021] EWHC 1797 at [209] – [211]. These principles were most recently considered at first instance in Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB) at [150] (22 July 2021), where it was noted that the extent of publication is a very relevant factor in terms of the amount to be awarded.
The imputations are serious. As I pointed out to Mr Rasmussen in closing submissions (T 227), there is a degree of similarity between the imputations and subject matter in these proceedings and in Lachaux, in that both publications refer to claims of domestic violence during a marital breakdown. The judgment of Nicklin J in Lachaux [2021] is a helpful guide to the correct approach to serious imputations of this kind.
The subject matter is, however, where comparison with Lachaux ends. This was a publication to two persons who were the plaintiff’s parents, whom I am satisfied were well aware of the full background to these events. Although others were aware of there being such a publication, they knew little more than that the defendants had written to the plaintiff’s parents to set the record straight, or support their daughter, in circumstances where the precise allegations were unknown. The plaintiff’s principal complaint (T 66) appears to be that the defendants chose to believe their daughter’s allegations rather than consult him.
As to hurt to feelings, the plaintiff’s anger and distress at the defendants supporting their daughter’s lies was a subject to which he turned several times in his evidence. He felt they should have remained “neutral” (T 66). Viewed in the context of the ongoing disputes the plaintiff was having with the defendants over school fees, supervised access and a police complaint about a text message, the plaintiff’s anger and hurt concerning the defendants’ conduct comes from a wide range of sources of which the matter complained of forms only a part.

Aggravated damages

The plaintiff relies upon the following grounds for aggravated damages:

His knowledge that the imputations were false.

The defendants’ failure to publish an apology for the matters complained of.

The defendants’ knowledge that the magistrate had found evidence given by their daughter in relation to allegations of stalking and domestic violence against the plaintiff to be “problematic” and unable to satisfy the court on the balance of probabilities that those things occurred.

The plaintiff’s knowledge of the falsity of the imputations is insufficient to ground an award in the absence of improper or unjustifiable conduct by the defendants: Wagner v Nine Network Australia [2019] QSC 284 at [219] – [221]; V’Landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 at [187]. There was no such improper or unjustifiable conduct; the defendants believe their daughter and checked every word of what they said with her. Nor is it the case that stronger than usual personal indignation at being falsely accused (for example, by reason of the special relationship the plaintiff has with his parents) should result in a greater award. Personal vulnerabilities should not lead to different results in defamation proceedings: Barrow v Bolt [2015] VSCA 107 at [60].
The request for apology was sent approximately two hours before the statement of claim was filed. The Concerns Notice, sent almost a year after the publication in question without any reference to it in the interim, refers to an apology and the payment of damages in a cursory fashion. Given the immediate commencement of proceedings, it is hard to see how the defendants could have complied.
Mr Rasmussen submits, however, that the magistrate’s judgment was handed down on 14 June 2019, four months after publication of the matter complained of, and that the defendants should have apologised then (even though not asked to do so and had no expectation of being sued for defamation) or, at the very least, as soon as they were served with the statement of claim.
The magistrate did not find that the defendants’ daughter lied. Rather than there being unequivocal findings that events had not occurred at all, the magistrate was not satisfied on the balance of probabilities. The magistrate added that “time has passed a lot, the matter is now in the Family Court or the Circuit Court. They are far better suited to deal with disputes as to property and children.” (CB: 107). That does not constitute an attack on the defendants’ daughter of the kind mandating an apology.
For the reasons set out above, I consider that no award of aggravated damages should be made.
By way of observation as to the range of damages for such a limited publication, I note that the inconsistency between an award of damages appropriate for a publication to two members of the plaintiff’s family and the success or failure of a defence of serious harm, which underlines the difficulty of the plaintiff bringing a case under the UK Act for a publication made solely to parents who had the same high opinion of him very soon after the matter complained of that they did before.
Taking all of the above into account, I consider that an appropriate award for general damages would be $15,000.

Application for recusal on the grounds of apprehended and actual bias

I reserved judgment on 28 September 2021. On 26 October 2021, the plaintiff notified his application for me to recuse myself for both actual and apprehended bias. No specifics were provided until the morning of the application being heard (1 November 2021), when the basis was stated to be my conduct during oral submissions on the written submissions provided following the evidence at the trial, which displayed a closed mind to the defences pleaded and to the credit of the plaintiff and his mother. There is no complaint about my conduct of the trial.
The relevant principles for actual bias and for apprehended bias are well-known and need no repetition; they have recently been restated in Polsen v Harrison [2021] NSWCA 23. As Basten JA notes in Spencer v Bamber at [16], the focus of attention differs in a claim of actual bias, as compared with a reasonable apprehension of bias. In the former case it is the actual state of mind of the judge (or juror) which is in issue; in the latter case, the focus is on the apprehension of the fair-minded bystander. The latter test is usually easier to satisfy, particularly where the evidential basis is limited to statements made by the judicial officer in the course of the proceedings.
An application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts. Otherwise the right to do so may be waived: Vakauta v Kelly (1989) 167 CLR 568 and Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260.
Where reliance upon claims of prejudgment are made, the time at which the statements are made is of importance. Prejudgment or partially formed views are not acceptable at the commencement of the trial, but if such views are expressed at the end of the evidence, after written submissions, and in the course of argument, that may be a different matter. The role of written submissions has very substantially reduced and even at times replaced oral advocacy, to the degree that oral advocacy in cases such as the present often consist of taking the judge through the written submissions and answering questions from the Bench. It is not unknown for a trial judge to tell a party’s representative that he/she need not address on a particular issue, or to refer to evidence or legislation that appears to conflict with the submission being made. In a case such as the present, where the parties have provided written submissions designed to cover all issues, expressions of points of view by a trial judge form an important part of the closing submissions process: Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71.
In Slavin, the trial judge, in the course of closing submissions, made observations about the credit of the appellant. Bryson JA, concurring with the dismissal of the appeal from her Honour’s refusal to recuse herself, noted that the fair-minded lay “observer would, in my interpretation, feel no surprise that [her Honour’s] view became an established reality early in the debate on the conclusions to be drawn from his evidence” (at [44]). Bryson JA’s comments underline the fact that the fair-minded lay observer understands that the decision-making is not a process of deferring conclusions until the final moment of the hearing, but a rational analysis of the evidence. That is particularly the case where the vast bulk of the submissions have been completed in writing, and all that remains is for the parties to deal with additional matters in terms of clarification, explanation and/or Socratic debate.
I do not propose to set out the extracts from the oral submissions, as I consider that the transcript of the submissions as a whole will speak for itself. It is neither necessary nor desirable that I answer each and every one of the complaints made by the plaintiff. What I propose to do is to set out a general overview of the complaints.
Mr Rasmussen provided 17 extracts from the closing submissions in which he argued I was either advocating the opponent’s case or hurrying him along by asking “what’s next?” By contrast, he submitted, I was much gentler with Mr Richardson SC, telling him I had fewer questions for him.
The test is that of the hypothetical fair-minded lay observer. I start by noting that such an observer would have expectations that judges should be able to indicate time restrictions and that asking more questions of one barrister than another should not be regarded as suspicious. The hypothetical fair-minded observer of these proceedings can be taken to have been aware that the evidence in this case took two days and allowing a day for oral submissions was done because of the novelty of determining, for the first time, a defence under the UK Act.
I only had one day available because of other court constraints the next day, as I told the parties at the outset. I was anxious to ensure that the parties had a reasonably equal time to address, noting the plaintiff would not only go first but seek to reply, and my observations about time (in circumstances where Mr Richardson SC only started his submissions just before the lunch adjournment) were made in that context.
The observer would quickly have picked up during the morning, as to legal issues about which I wanted to hear, that these were not only concerning serious harm (the most important) but unexpected changes in the plaintiff’s approach to imputation findings, vicarious liability, qualified privilege and damages. Mr Rasmussen abandoned his submissions about imputations on the English principles, foreshadowed a completely new claim against the corporate defendant which was not based on vicarious liability, asserted that the Court of Appeal in New South Wales had held that the defence of qualified privilege went to the imputations and not the matter (and that I must follow this) and claimed entitlement to damages based on Australian comparable judgments. The development of these themes took some time, with Mr Rasmussen finishing just before lunchtime. During the morning I sought to remind Mr Rasmussen of time issues and that I needed to give something approaching equal time to his opponent, depending on whether he would reply. In addition, the constant anxiety of AVL links potentially dropping out was a problem. It was in the context of these problems that I noted that matters about which he was speaking were in his written submissions, or asked “what’s next?”
One of the matters about which I wanted to hear from Mr Richardson SC, was my concern that he had not cross-examined about some factual material I believed to be of importance, namely the fact that Mrs Rader had not only replied to the defendants’ email in two days but had CCed the plaintiff (whose email address can be seen at the top of the email, in the CC line: CB:30). Mrs Rader did acknowledge that she had spoken to her son before sending this email (T 170) but I put it to Mr Richardson SC that his failure to put questions to her about the inclusion of the plaintiff in the email about the proposed telephone call between Mrs Rader and the first defendant was a significant oversight. I did indicate I had fewer questions for him, but this was because his submissions were comprehensive and helpful. I was not aware of being gentler on Mr Richardson SC than I should have been.
The fair-minded lay observer at the back of the court would be familiar with the reasoning set out in Polson v Harrison [2021] NSWCA 23 (notably at [46] (xii) – (xxiii) and [60] – [64]) and would have construed the asserted statements of closed mind as requests for Mr Rasmussen to tell me facts to the contrary from the evidence. For example, I asked where the emails sending evidence (“sent” being the word Mrs Rader used: T 179; T 166 – 167) in the weeks after the telephone call were, because that would have identified the period over which the plaintiff’s parents had continued to doubt his word and call for proof. Mr Rasmussen responded that these requests for more evidence were dealt with by showing the documents during the FaceTime conversations the plaintiff had with his parents. That was the information that I was looking for and I have incorporated it, but it was one of a number of pieces of factual information about which I needed assistance. Another area was what to make of the other witnesses’ evidence, which Mr Rasmussen had barely referred to in his written submissions. As for the manner in which I asked for that information, it would be a triumph of form over content if my manner of asking for it meant that it had to be framed in some special kind of question. As I said to Mr Rasmussen at T 227, the real point of my questions to him was to ask him “the things I need reassurance from you on”, and I needed to challenge him to obtain these facts and reassurances for this reason.
I have reviewed the whole of the transcript. It does not seem to me that any comments that I made during the course of the oral submissions fell outside what might generally be considered to be the ordinary exchanges between counsel and the bench. I do not consider that a bystander or observer at the back of the court would have considered that I was expressing implacable views or a closed mind. If others were in due course to form a different view, the authorities to which I have been referred by Mr Rasmussen do not, in my opinion, warrant a conclusion that I should recuse myself for apprehended bias and certainly not for actual bias.
I would further observe that, if an appellate court finds that I should have disqualified myself on the basis of bias, it does not necessarily follow that the whole case must be heard again. This was a case where there was no objection to my conduct of the hearing, or suggestion that I had in some way poisoned the well of evidence; the objection was restricted to the asserted closed mind I brought to the oral submissions, which followed the exchange of detailed written submissions on all issues.
In Spencer v Bamber, Basten JA explained (at [18]) that applications for disqualification share the tendency of complaints of inadequacy of reasons, namely that both amount to a disagreement with the conclusions reached. His Honour went on to note that, if a given finding, or even a series of findings, adverse to the appellant are nevertheless supportable, it would be unlikely to warrant the setting aside of the judgment on the basis of apprehended bias.
Accordingly, it would be open to the Court of Appeal, however dissatisfied it may be with comments made by me during counsel’s oral closing submissions, to consider, as it did in Slavin, that the evidence in the case was sufficiently supportable to warrant the findings of fact made.

Order:

Pursuant to Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8 the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment.
Judgment for the defendants.
Costs reserved, with liberty to apply.

**********

Amendments

17 November 2021 - add Junior Counsel for the defendants

Decision last updated: 17 November 2021

Medium Neutral Citation:	Rader v Haines [2021] NSWDC 610
Hearing dates:	23 – 24 August, 28 September and 1 November 2021
Date of orders:	17 November 2021
Decision date:	17 November 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Pursuant to Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8 the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment. (2) Judgment for the defendants. (3) Costs reserved, with liberty to apply.
Catchwords:	Tort – defamation – plaintiff’s parents-in-law send email to plaintiff’s parents in England – content refers to ADVO proceedings involving their respective offspring following the breakdown of their marriage – parties agree that the applicable law is the Defamation Act 2013 (UK) – whether plaintiff can establish serious harm under s 1 of that Act – qualified privilege at common law – whether matter published on a protected occasion – malice – joint tortfeasors – whether the company employing the first defendant was vicariously liable for a publication sent by the first and second defendants using the company’s email account – damages
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8 Defamation Act 2005 (NSW) Defamation Act 2013 (UK) s 1 Evidence Act 1995 (NSW) s 174 Law Reform (Vicarious Liability) Act 1983 (NSW) s 7
Cases Cited:	Adam v Ward [1917] AC 309 Aicken v Caledonian Railway Co [1912] SLR 45; [1913] SC 66 Avery v The Sydney Harbour Trust Commissioners (1905) 22 WN (NSW) 54 Barclays Bank plc v Various Claimants [2020] UKSC 13; [2020] AC Barrow v Bolt [2013] VSC 107 Barrow v Bolt [2015] VSCA 107 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 Bonette v Woolworths Ltd (1937) 37 SR NSW 142 Briggs v Jordan [2013] EWHC 3217 (QB) Calwell v Ipec Australia (1975) 135 CLR 321 Cassegrainv Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260 Chong v CC Containers Pty Ltd [2015] VSCA 137 Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB) Cornwell v Rowan [2004] SASC Cosco v Hutley (No 2) [2020] NSWSC 893 Cox v Minister of Justice [2016] UKSC 10 Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 Dougherty v Chandler (1946) 46 SR (NSW) 370 Dow Jones v Gutnick (2002) 210 CLR 575 Egger v Viscount Chelmsford [1965] 1 QB 248 Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB) Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 Hutley v Cosco [2021] NSWCA 17; 104 NSWLR 421 Jameel v Dow Jones [2005] EWCA Civ 75 Jones v Dunkel (1951) 101 CLR 298 KSMC Holdings Pty Ltd v Bowden [2020] NSWCA 28 Lachaux v Independent Print Ltd [2018] EWHC 620 Lachaux v Independent Print Ltd [2019] UKSC 27 Lachaux v Independent Print Pty Ltd and another [2021] EWHC 1797 (QB) Lillie and another v Newcastle City Council [2002] All E R (D) 465 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375 Murray v Raynor [2019] NSWCA 27 Neilson v Overseas Projects Corp (Vic) Ltd (2005) 223 CLR 231 Polson v Harrison [2021] NSWCA 23 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Reberger v R [2011] NSWCCA 132 Roberts v Bass (2002) 212 CLR 1 Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 Spencer v Bamber [2012] NSWCA 274 Thornton v Telegraph Media Group [2011] 1 WLR 1985; [2010] EWHC 1414 (QB) Toogood v Spyring (1834) 149 ER 1044 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Trkulja v Markovic [2015] VSCA 298 V’Landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 Vakautav Kelly (1989) 167 CLR 568 W M Morrison Supermarkets plc v Various Claimants [2017] EWCA 2339 W M Morrison Supermarkets plc v Various Claimants [2020] AC 973 W M Morrison Supermarkets plc v Various Claimants [2020] UKSC 12; [2020] AC 989 Wagner v Nine Network Australia [2019] QSC 284 Webb v Bloch (1928) 41 CLR 331 Weissensteiner v The Queen (1993) 178 CLR 217
Texts Cited:	The Hon Justice P L G Brereton AM RFD, “Proof of Foreign Law: Problems and Initiatives”, Address to the Sydney University Law School Symposium, “The Future of Private International Law”, 16 May 2011),
Category:	Principal judgment
Parties:	Plaintiff: Mr Damian Rader Defendants: First Defendant: Mr Donald Haines Second Defendant: Mrs Janet Haines Third Defendant: X & Y Haines Pty Ltd
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendants: Mr M Richardson SC with Mr D Helvadjian Solicitors: Plaintiff: O’Brien Criminal and Civil Solicitors Defendants: Mathas Law
File Number(s):	2020/00047051
Publication restriction:	See Order 1