Raynor v Murray

[2019] NSWDC 189

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Raynor v Murray [2019] NSWDC 189
Hearing dates:	6, 7 and 8 February 2019
Date of orders:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $120,000. (2) Liberty to apply in relation to interest and costs. (3) Exhibits retained until further order.
Catchwords:	TORT – defamation – email to residents of strata building – defences under ss 25, 31 and 33 Defamation Act 2005 (NSW) – defence of qualified privilege at common law – reply to attack – malice – damages – whether aggravated damages should be awarded – mitigation of damages – award of $120,000
Legislation Cited:	Defamation Act 2005 (NSW) ss 25, 31, 33, 34 and 35 Evidence Act 1995 (NSW) ss 48 and 79 Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Al Muderis v Duncan (No 3) [2017] NSWSC 726 Alexander v Clegg [2004] 3 NZLR 586 at 602 Assaf v Skalkos [2000] NSWSC 418 Attrill v Christie [2007] NSWSC 1386 Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 Blackwell v News Group Newspapers Ltd [2007] EWHC 3098 Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98 Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 Broome v Cassell & Co Ltd [1972] AC 1027 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 Clark v Ainsworth (1996) 40 NSWLR 463 Cole v Operative Plasterers Federation of Australia (NSW Branch) (1927) 28 SR (NSW) 62 Coxon v Wilson [2016] WASCA 48 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 Cripps v Vakras [2015] VSC 193 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374 Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2017] NSWCA 77 Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035 Field v Local Sunday Newspapers (North) Ltd [2002] EWHC 336 Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538 Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 Gray v Motor Accident Commission (1998) 196 CLR 1 Gray v Scottish Society For The Prevention of Cruelty to Animals (1890) 17 IR 1185 Green v Schneller [2000] NSWSC 548 Groom v Crocker [1939] 1 KB 194 Haddon v Forsyth [2011] NSWSC 123 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 Heytesbury Holdings Pty Ltd v City of Subiaco [1998] WASC 183, 9 WAR 440 Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Jones v Sutton (2003) 61 NSWLR 614 Gair v Greenwood [2017] NSWSC 1652 Goyan v Motyka [2008] NSWCA 28 Gross v Weston (2007) 69 NSWLR 279 Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695 Hayson v Nationwide News Pty Limited [2019] FCA 81 Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 Loveday v Sun Newspapers Pty Ltd (1938) 59 CLR 503 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Megna v Marshall [2010] NSWSC 686 Mengi v Hermitage [2012] EWHC 3445 Millane v Nationwide News Pty Ltd [2004] NSWSC 853 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Motyka v Gojan [2007] NSWSC 31 Neesham v 6PR Southern Cross Radio Pty Ltd & Ors [2006] WASC 266 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 O’Brien v Australian Broadcasting Corporation [2014] NSWSC [2016] NSWSC 1289 Otten v Schutt 15 Wis.2d 497, 113 N.W.2d 152 (1962) Palmer v Belan [1999] NSWSC 187 Penton v Calwell (1945) 70 CLR 219 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Ridis v Strata Plan 10308 [2005] NSWCA 246 Rigby v Associated Newspapers Pty Ltd [1969] 1 NSWLR 729 Roberts v Bass (2002) 212 CLR 1 Robinson v Brighton [2007] NSWSC 1125 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rush v Nationwide News Pty Ltd [2018] FCA 357 Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 Sands v State of South Australia [2015] SASCFC 346 Sheales v The Age Co Ltd [2017] VSC 380 Singleton v Ffrench (1986) 5 NSWLR 425 Sleboda v Sleboda [2008] NSWCA 122 Skalkos v Assaf (2002) Aust Torts Reports 81-644 Sonier v Breau (1912) 41 N.B.R 177 Templar v Watt (No 3) [2016] NSWSC 1230 Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 Triggell v Pheeney (1951) 82 CLR 497 Turner v MGM Pictures Ltd [1950] 1 All ER 449 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Watts v Times Newspapers Ltd [1997] QB 650 Wilson v Bauer Media Pty Ltd [2017] VSC 521 Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61 Wootton v Sievier [1913] 3 KB 499
Texts Cited:	Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (Thomson Reuters)
Category:	Principal judgment
Parties:	Plaintiff: Gary Raynor Defendant: Patricia Murray
Representation:	Counsel: Plaintiff: Mr R Potter / Mr A Munro Defendant: Ms S Chrysanthou / Mr B Dean   Solicitors: Plaintiff: Goldsmiths Lawyers Defendant: Barclay Churchill Lawyers
File Number(s):	2017/261180
Publication restriction:	None

Judgment

An overview of these proceedings

1. The plaintiff brings proceedings for defamation for publication of an email on 25 May 2017 by the defendant, the tenant of a unit in a residential block of flats in Manly (“Watermark” or “the Watermark building”), to a number of owners of the apartment building in which the plaintiff and defendant both resided.

2. The plaintiff was, and remains, the chair of the strata committee (generally called “the Executive Committee”) relating to the Watermark building. This building was comprised of residential apartments and some office suites, most owner-occupied, but some tenanted. The defendant, the lessee of unit number 9, moved into the premises in July 2016.

3. Relevantly for the purposes of these proceedings, the Watermark’s mailboxes were a series of standard-sized lockable numbered letter boxes (numbered 1 – 15, together with a separate box labelled “Body Corporate”) outside the building and on the street (Exhibit A tab 7). There is a slit at the top of the box for letters and other documents of a similar size to be inserted.

4. The defendant left her mailbox unlocked most if not all of the time after she moved in. The plaintiff sent an email to the defendant on 31 August 2016 noting her mailbox was unlocked. Eight months later, on 10 April 2017, at a time when there were media reports about mail thefts in the area, he emailed her again about her mailbox being open. There is disputed evidence as to whether on 10 or 11 April 2017, following the plaintiff’s second email, the defendant’s partner had a conversation with the plaintiff concerning the reasons for this, but there is no dispute that the defendant never responded to either email.

5. On 20 April 2017, the mailboxes outside the Watermark building were broken into. The plaintiff circulated an email to all residents asking them to secure their mailboxes and attaching an article from the Manly Daily dated 20 December 2016 containing warnings to this effect. Superintendent Arthur Katsogiannis, from the fraud and cybercrime squad, was quoted in this article as saying that while on the surface mail fraud might seem like a petty crime, local criminals, known as “boxers”, were selling documents to international crime syndicates for identity theft as well as keeping credit cards for their own use; residents were urged to secure their mailboxes and strata managers should consider secure placement and design of letterboxes as well as CCTV.

6. On 27 April 2017, the defendant replied to this email in derisive terms (“Wow! What’s your take on this?” – Exhibit A tab 10), questioning how her mailbox being left open could help a thief break into the Watermark building’s locked mailboxes. The plaintiff replied on 28 April 2017, setting out advice he said he had received from a locksmith.

7. The mailboxes outside the Watermark building were broken into for a second time on 2 May 2017. The plaintiff sent a second email warning residents and asking them to keep their mailboxes locked. According to emails between the plaintiff and other residents (Exhibit A tab 14), the defendant’s mailbox was locked at the time of this second break-in but on or about 3 May the mailbox was left open again. On 5 May 2017 the plaintiff emailed the defendant asking if she had left it open or it had been opened by someone else (Exhibit A tab 15). The defendant did not reply.

8. On 24 May 2017 the plaintiff sent a further email to the defendant, as well as a copy to the real estate agent managing the tenancy of the defendant’s unit, noting that once again the defendant had left her mailbox open “for the last few days” (Exhibit A, tab 16). He asserted this could be a contributing factor to the two mailbox thefts, asked her to keep her mailbox locked in future, and indicated that the defendant could incur financial liability if the boxes had to be rekeyed.

9. The defendant’s reply of 25 May 2017 (Exhibit A tab 17), which is the matter complained of, complained of being harassed by “many emails” from the plaintiff, of which “the latest topic” was the open letterbox, asking the plaintiff directly if he had opened the mailbox himself as part of his “months of campaigning to have all residents comply with your demands”, derided the “Mission Impossible” scenario that her unlocked mailbox played any contributing role to the break-ins and complained the plaintiff had “never asked why we keep the letterbox open”. The email concluded with the complaint that the plaintiff’s “consistent attempt to shame me publicly is cowardly” and that it was “offensive, harassing and menacing through the use of technology to menace me”.

10. Although publication of the matter complained of in the form pleaded (namely the defendant’s email of 25 May 2017 as a stand-alone document) had been admitted in the defence (T 7), the defendant claimed at the beginning of the trial that this email was published in a different form to that which was pleaded and particularised. This was not the publication upon which Mr Potter opened (T 6), namely the email of 25 May 2017, but additional earlier emails which the defendant had “cut and pasted” at the end of the 25 May 2017 email. The problems arising from this late objection are set out at paragraphs [12] to [38] below.

11. The defences pleaded are justification pursuant to s 25 Defamation Act 2005 (NSW) (“Defamation Act” or “the Act”), the defence of honest opinion (s 31 of the Act), qualified privilege at common law and triviality (s 33 of the Act). Capacity of the imputations to be conveyed is challenged. A Reply setting out particulars of malice in relation to the defence of qualified privilege at common law was agreed by the parties’ representatives to apply to the issue of malice in relation to the defence of honest opinion, as well as the defence of qualified privilege at common law.

The matter complained of and the imputations pleaded

12. Any challenge to the form or extent of the matter complained of is invariably an issue resolved at interlocutory level: see the authorities set out in Hayson v Nationwide News Pty Limited [2019] FCA 81 at [9] (“Hayson”). Regrettably, this was not the case here.

13. The text of the matter complained of as set out in the statement of claim (and for which publication was admitted in the defence) is the defendant’s email of 25 May 2017, the text of which is as follows:

“[At the commencement of the matter complained of there is a list of email addresses which I do not propose to set out for privacy reasons. However, these persons are:

1.   The plaintiff

2.   A woman described as “Unit 1”;

3.   A woman described as “Owner Unit 2”;

4.   A man and a woman described as “Unit 4”;

5.   A woman described as “Unit 5”;

6.   A man described as “Unit 6”;

7.   A woman separately described as “Unit 6”;

8.   A woman described as “Owner Unit 7”;

9.   A man and woman described as “Unit 8”;

10.   A woman described as “Unit 10”;;

11.   A man described as “Unit 11”;

12.   A man described as “Unit 12”;

13.   A man whose Unit holding is not identified;

14.   A woman described as “Unit 15”;

15.   Another woman who is described as “Unit 15”;

16.   A man who is described as “Office Suite”;

17.   A “cc” to Mr Jason Hitchman, who is described as “Agent Unit 9”.

Subject: Re: Watermark Unit 9 mailbox

Gary,

You have now sent many emails to me in our time here at Watermark. Your latest topic “mailboxes”.

Your assertion/s that a single unlocked mailbox has allowed a criminal milieu to stalk the watermark building, and spend the time necessary to copy barrels/locks in order to then construct a master key is farfetched.

Each mailbox has an individual key allowing access. I have noticed on several occasions over the last year (because of your fixation on this issue) that other residents mailboxes have also been left unlocked from time to time. Did you open the front panel Garry? It has not gone unnoticed that the panel to all the mailboxes was opened only following your months of campaigning to have all residents comply with your demands!

Residents make an individual decision on whether they lock their own mailbox, which is why we each have a key. We have risk assessed our requirements and decided that, for the most part, we are comfortable with any residual risk to our mail items.

You also may have noticed that you have had some packages personally delivered to your front door? At least on two occasions, I have done so, as a courtesy to you as your packages had been left for you at the entrance outside of the building. I do this for all residents when the opportunity arises and our experience with the other residents has been nothing but delightful.

The foyer of our Watermark building is well lit and has reasonable surveillance from street level and inside the foyer. This, in addition to residents frequent movement in and out of the building at different times of the day and night, makes it somewhat risky for a thief (?) to spend the time you are suggesting they would need to copy locks in order to then obtain master keys, if that is indeed possible in the manner you are prosecuting.

So, unless you know something we dont [sic] know about the spoils/secrets being delivered to residents mailboxes, I am doubtful that thieves would execute a Mission Impossible scenario on the Watermark building. Existing types of mailbox locks are not designed to have the same security features as the key to our respective front doors and, indeed, the security key to the entrance foyer.

The nature of the keys used to open mailboxes such as ours is that, it is more likely that thieves (if that is indeed what has happened) have already got their hands on a master key for the mailboxes. This is what used to happen in years gone by.

These mailbox locks are not designed to make access like a fortress, but more of a convenience for the owner of the mailbox to have easy access and lock (if they so wish). You will also find your key could probably open other mailboxes. Mailbox locks are a deterrent and not fortress security.

May I suggest, given your email hobby, that you may want to elect to have things such as banking statements and the like provided to you in e-Statement format to avoid physical mail being delivered to you.

Now, to put, the risk/reward scenario of stealing from Watermark mailboxes in perspective I offer you as follows;

1.   Theft from mailboxes is opportunistic and thieves weigh up their likelihood of being seen or caught. They may go past a place and see a mailbox unlocked and have a look and take something if they decide.

2.   It is more likely, a thief will roam the streets and steal from unlocked cars and houses where they can immediately take and convert something into cash.

3.   There are faster ways to open the front panel of our mailbox than the manner you suggest (eg. a criminal conspiracy going to great efforts to obtain a master key); if you believe that someone is stalking Watermark and have evidence of this, then please share this information with us.

Gary, we are happy friendly people here in unit 9. My partner has 35 years of Police and forensic expertise, but rather than a simple knock on my door for a chat in person, or speak to me face to face when we have exchanged pleasantries in the foyer, or while I’m putting the buildings bins out on the street, you have consistently chosen the public email option; copy in all residents and/or my real agent, sundry alleging that responsibility for the threat and safety to our home at Watermark is our doing and threatening to hold us financially responsible. You have never asked why we keep the mailbox open?

To avoid further harassment, I’ve not replied to your provoking mailbox emails. However your consistent attempt to shame me publicly is cowardly. It is also offensive, harassing and menacing through the use of technology to threaten me.

Please stop!

Trish Murray”

14. On the first day of the hearing, Ms Chrysanthou stated that the defendant had “cut and pasted” other emails to this chain, and that these other emails needed to be treated as part of the matter complained of. I was not provided with a copy of the alternatively propounded email publication, but fortunately the plaintiff’s tender bundle (Exhibit A, tab 17), as well as Mr Gauld’s affidavit (Exhibit B), both set these emails out.

15. The text of each of these emails, as well as each of the omissions arising from the defendant’s “cut and paste” process, need to be set out in full:

1. The first “cut and paste” addition is the email from the plaintiff dated 24 May 2017 to which the defendant is replying (although with the recipient list cut off). As Mr Potter noted in his submissions, the significance of the recipient address line being cut off is that this means there is no indication to the recipients as to whether the plaintiff sent the email only to the defendant, which is relevant to both the imputations conveyed and to the defences. The text of this email is as follows:

“Hi Trish

As your mailbox has again been open for the last few days it is obvious I have not been able to convince you of the seriousness of this issue.

As I pointed out in my emails on 27/4/17 and 28/4/17 it is probable that your insistence in leaving the mailbox open during many months is the likely cause of the so called “boxers” being able to obtain a skeleton key to our corporate mailboxes.

The consequences of this breach of the security of our mailboxes have been serious – and may get more serious.

In addition to the fact that residents have been inconvenienced and – in some cases – obliged to go to the expense of obtaining Postal Boxes – it is still possible that the Owners Corporation may have to have all the boxes rekeyed. This would be a serious expense and inconvenience to all concerned.

If this becomes necessary – or individual residents suffer losses or expenses as a consequence of the breach – I believe the Committee would – and should – seek compensation from the owner of Lot 9. (By copy, I am notifying the agent of Lot 9 that this is a real possibility.

While it is now too late to overcome the fact that at least one group of thieves have access to the boxes, I must insist that you lock your mailbox – and keep it locked in future – to avoid further aggravating the problem.”

2. The second is the text of the plaintiff’s email to the defendant (again, with the recipient list cut off), under the heading “Email 5/5/17”. The text is as follows:

“Hi Trish

Your mailbox has been open for the last two days.

Was it left open or been opened by someone else?

Rgds

Gary.”

3. The next “cut and paste” is the text of the plaintiff’s email to the defendant (again, with the recipient list cut off), under the heading “Email 27/4/17”. The text is as follows:

“Hi Trish

I presume you are away?

Would you please arrange to have your mailbox closed and kept locked at all times. Exactly what I warned about has now occurred and your open box may have contributed to the ease with which they apparently obtained a master key to open the other boxes.

Thanks

Gary”

4. The next is the text of the plaintiff’s email to the defendant dated 10 April 2017 (again, with the recipient list cut off), under the heading “Email 10/4/17”. The text is as follows:

“Hi Trish

Residents have again expressed their concern over your mailbox being left open all the time.

There have been a number of incidents in Manly of thieves searched thru [sic] mailboxes looking for mail and identity papers and having bokes [sic: should be ‘boxes’] obviously open can only encourage them.

Would you mind closing the box.

Thanks

Gary”

5. The next is the text of the plaintiff’s email to the defendant dated 31 August 2016 (again, with the recipient list cut off), under the heading “Email 31/8/16”. The text is as follows:

“Hi Trish

I notice your mailbox has been left unlocked for quite a while?

Regards

Gary Raynor

[address]

6. In addition, after the email reproduced behind Exhibit A tab 17, the words “Regards Gary Raynor” and the plaintiff’s address appear, after the Gary Raynor sign-off to the final email, a further 3 times, in different fonts. These four addresses for the plaintiff therefore also form part of the matter complained of, in that these addresses, suggestive of other emails, may contribute towards the defamatory meaning and/or issues relevant to the defences.

16. Ms Chrysanthou challenged the admissibility (s 48 Evidence Act 1995 (NSW)) of the matter complained of in any form other than that which she propounded was the full form, namely with all the emails (or part thereof) attached.

The imputations pleaded

17. The imputations pleaded as arising from the matter complained of (in its pleaded form, namely the 25 May 2017 email only) are as follows:

1. The plaintiff unreasonably harassed the defendant by consistently threatening her by email (lines 73-74 and the matter as a whole).

2. The plaintiff acted menacingly towards the defendant by consistently threatening her by email (lines 73-74 and the matter as a whole).

3. The plaintiff is a malicious person who sent threatening emails to the defendant and copied in other residents of the Watermark building for the express purpose of publicly humiliating the defendant (lines 72-73 and the matter as a whole).

4. The plaintiff is a small minded busybody who wastes the time of fellow residents on petty items concerning the running of the Watermark building (the matter as a whole).

18. No challenge to the form or capacity of these imputations was made in the course of case management in the Defamation List. Nor was there any application in relation to the striking in of the additional material which the defendant now claims should be included.

Capacity issues in relation to both forms of the matter complained of

19. In Templar v Watt (No 3) [2016] NSWSC 1230 at [9], an authority cited by both parties, McCallum J commences her summary of the law in relation to capacity by noting that, in those proceedings, the principles to be applied in determining defamatory meaning were “well-established” and “not in dispute”. In general terms, the relevant principles for determination of capacity of the imputations at the trial are set out in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5]-[6] and John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [26]. The relevant standard of “the ordinary reasonable reader” includes recognition that such a reader may draw inferences, particularly where the matter complained of is of a sensational nature (as is the case here), and that such a reader may engage in a certain degree of “loose thinking” (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245).

20. The nature of the defendant’s challenge to the capacity of the imputations pleaded in these proceedings is a familiar one. In Templar v Watt (No 3) (in which Ms Chrysanthou also appeared for the defendant), the overarching submission was that the imputations were “pitched too high”, ordinary reasonable reader would understand the email as merely an expression of concern warranting investigation rather than as definitive imputation of discreditable conduct, as captured in the plaintiff’s imputations. Ms Chrysanthou makes the same submission in this case, as she notes at paragraph 41 of her submissions.

21. However, Ms Chrysanthou submitted that her argument relies, at least in part, upon my accepting her reliance upon the additional earlier emails, which she states the plaintiff attached to the matter complained of (see paragraph 46 of her written submissions).

22. Late applications to amend should generally be viewed with caution, and this is all the more the case where the amendment relates to the form of the matter complained of. Ms Chrysanthou’s explanation was that she only became aware of the actual form of the matter complained of when she received a copy of the court book where the full text of the matter complained of was set out (behind Tab 17 of Exhibit A) (T 16). Since her client sent the matter complained of, that is a surprising claim.

23. I asked Ms Chrysanthou if the explanation could be that this was the latest in a chain of emails, which would explain how the earlier emails were attached. (I note that even if that had been the case, this might raise complex issues as to publication because the question of whether the ordinary reasonable reader only reads the latest email or all the previous one is not a question on which there is any authority).

24. The following exchange then occurred:

“CHRYSANTHOU: No, this is not a chain, your Honour. We say the matter complained of is the document that is marked tab 17A that is six pages, that's the matter complained of. It’s not a chain of emails. This is my client forwarding as part of her email to the recipients what the plaintiff has sent to her. What my learned friend wants to say the matter complained of is just the two pages and hide the rest of the email, “Quoted text hidden”.

HER HONOUR: That's what I mean. What it is, is he's suing on your client's email. He's not suing on this as being a reply to—

POTTER: Yes.

HER HONOUR: If you want to say that this is not the matter complained of—

CHRYSANTHOU: It's not, your Honour. He's cut it in half. He's hidden half the document.

POTTER: That's not correct.

CHRYSANTHOU: He's not entitled to delete half the email.

POTTER: That's not correct.” (T 16)

25. Mr Potter then explained that the document sued upon was not only admitted to be published in the defence but was also the document as discovered by the defendant:

“POTTER: Your Honour, p 33 and p 34 was the document discovered.

HER HONOUR: Page 33 and p 34 is?

POTTER: The bundle behind tab 17. Does your Honour have that?

HER HONOUR: I've got that.

POTTER: It's bright red at the top, “Gmail”.

HER HONOUR: Page 17, I've got, “Unit 9 mailbox Gmail”.

POTTER: Yes.

HER HONOUR: Yes. That's the matter complained of.

POTTER: This is a document that's been discovered from the defendant. It was the defendant who redacted the text in a document discovered and we can establish that by just looking at the BCC column. This is the defendant's own document which she's BCC'd in her partner. That wouldn't appear in any other, in our documents.” (T 17)

26. I pause to note that this particular version of the matter complained of discovered by the defendant (also contained behind Tab 17 of Exhibit A) does contain, in the “Bcc” note, the email address [email protected], which is the email address for the defendant’s partner, Mr Curby. However, the defendant emphatically denied sending any copy of this email to anyone by blind copy, despite discovering this document in this form (T 48), which merely adds to the confusion.

27. Which document was sent? The best evidence of the form in which the matter complained of was sent is, as Mr Potter noted at the time, the form in which it appears in the affidavit of Mr Gauld affirmed on 25 January 2019, but previously served, as I understand it, in unsworn form. The email which Mr Gauld received and replied to is the email with the cut and paste attachments (Exhibit B). That is the document which the defendant sent.

28. However, that is not the answer to the problem before me. Publication issues in electronic publications are not always clear-cut, parties are generally bound by the admissions in their pleadings, and there is the additional problem of the defendant’s legal representatives only belatedly realising this problem at the trial.

29. Ms Chrysanthou said that the defendant did not know that the matter complained of was only the email text without the cut and paste attachments, and neither did the defendant’s legal advisers, to which Mr Potter replied:

“POTTER: Well, how could they not know, because their client sent the email.

CHRYSANTHOU: My client doesn’t know what's relevant and what's not relevant. I'm the one that determines what's relevant and what's not relevant, and I never thought to ask until I saw this tender bundle that a plaintiff would hide half an email. I mean, my friend's position is pretty unbelievable, how can the Court possibly proceed on half a document?” (T 20)

30. I have set out these submissions partly to demonstrate the difficulties I now have in determining capacity issues (as well as liability issues) and partly to illustrate the care that needs to be taken in relation to electronically-based publications, whether these are emails, website publications, social media, text messages and the like. This is not a new phenomenon; the same problems have occurred in past decades in relation to statements made on television (Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413 – 5), radio (Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 at [2]), where more than one publication about a plaintiff appears in the same newspaper (Hayson at [9]), or where a covering letter attaching documents does not include the attached documents (Robinson v Brighton [2007] NSWSC 1125).

31. Not only should care be taken to ensure the parameters of the publication are clearly identified (Neesham v 6PR Southern Cross Radio Pty Ltd & Ors [2006] WASC 266 at [14]), but appropriate steps should be taken to bring applications in the Defamation List when it appears that problems arise.

32. In the present case, there has clearly been a misunderstanding, most probably due to lack of understanding of technology by at least some of the defendant’s legal representatives. However, the correct course to take was to make a formal application for the striking in of the material, which requires satisfaction of the two-step test set out by Tobias JA in Australian Broadcasting Corporation v Obeid at [69] and to provide the court with a copy of the matter complained of in its asserted full form at the earliest possible opportunity.

33. Neither of these steps has been taken. It has been left to myself, as the trial judge, not only to decide the issue without a formal application or reference to the relevant authorities, but also to cobble together the matter complained of as put forward by the defendant, by cutting and pasting those portions of the previous emails which are claimed to have been added to it.

34. The relevant principles of law for the striking in of material are set out at some length in Hayson at [9]. In Hayson, applications were brought to strike in a fourth newspaper publication, which the defendants argued should be read together with the other three sued upon, including a similar application in relation to material accessible by a hyperlink (hyperlinks are another problem area in relation to the parameters of publication). That application was unsuccessful. One of the reasons for this was the lateness of the application, although it was made at an interlocutory level and not belatedly put forward at the hearing.

35. There may well be an argument that the ordinary reasonable reader, reading an email signed off as “Please Stop!” by a person leaving a space for a signature, naming themselves as “Trish Murray” and then leaving a space of about nine lines of space before the attachments. In addition, the defendant does not refer to any attachments anywhere in her email, and their inclusion at the end is unexplained. It may be that in those circumstances the question is whether, like a hyperlink, the ordinary reasonable reader was encouraged to keep reading, or whether, like an internet publication, actual evidence of a reader having gone on to read the rest of the publication is required to be proved. These arguments, coupled with the lateness of the application, would have told heavily against the defendant, as would any application to set aside the admission of publication of the matter complained of in the form pleaded.

36. However, none of these arguments or issues were raised before me. Mr Potter conceded, in relation to the defences, that it was appropriate to have regard to the defendant’s email of 25 May 2017 in context, and argued at best only faintly in support of his assertion that the form of the matter complained of was that which was pleaded to by the plaintiff and admitted to by the defendant. No resolution of this issue was sought before the hearing commenced and the hearing proceeded on the basis that it would be something I would have to rule on in my judgment.

37. The parties to these proceedings have limited finances. It is in the interests of both parties that there be finality to this litigation rather than the raising of difficult issues of law by reason of the oversights of both parties. In those circumstances, I have determined to treat the matter complained of in the form in which it has been argued for by the defendant rather than as set out in the pleadings. The decisive factor is that the form of the email as attached to Mr Gauld’s affidavit clearly includes the additions.

38. However, in the event that I have erred, I have made alternative findings on all issues in relation to the matter complained of as pleaded in the statement of claim and as admitted in the defence.

Submissions and findings in relation to the imputations

39. Having noted the problems set out above, I set out the submissions and findings in relation to each of the imputations.

40. Both counsel have set out the relevant principles of law in their submissions which are, as McCallum J noted in Templar v Britton (No 3) at [9], both well-established and not in dispute, and I have applied those principles to the determination of these issues.

Imputation (a) – The plaintiff unreasonably harassed the defendant by consistently threatening her by email.

41. Ms Chrysanthou submits that there is no suggestion that the plaintiff was “consistently” or repeatedly threatening the defendant by email; the allegation is that the emails were persistent, not consistent (written submissions, paragraphs 43 – 44).

42. The matter complained of refers, in line 68 - 70, to the plaintiff “consistently choosing the public email option” of sending his “threatening” requests and, at line 73, to the plaintiff’s “consistent attempt to shame me publicly” which is also “offensive, harassing and menacing”. This conduct is persistent in the form of being repeated conduct, namely repeatedly using the public email option in order to threaten and menace her, in circumstances that are unreasonable (in that it is offensive, harassing and menacing to “threaten” (line 74) her in this way). Lines 68 – 74 clearly convey this imputation, which is defamatory of the plaintiff.

43. Ms Chrysanthou’s additional argument is that the emails themselves form part of the matter complained of and it is clear that there is only one threat, in that only the email of 24 May 2017 contains a threat (written submissions, paragraph 46). Therefore, Ms Chrysanthou argues, no reader would understand that there are “consistent threats”.

44. The opening sentence of the matter complained of complains that the plaintiff has sent the defendant “many emails” and that “letterboxes” are his “latest topic”. It goes on to refer to the plaintiff as having a “fixation” about this issue which includes “months of campaigning” and asks him if this fixation has led him to open the mailboxes himself, the clear inference being that his obsession has led him to open residents’ mailboxes and stage not one but two break-ins.

45. The ordinary reasonable reader, reading such a claim and seeing a series of emails attached (as well as four addresses at the end in confusing circumstances that hint at more emails), is going to see these as only part (not the whole) of the plaintiff’s “months of campaigning” on this issue in the context of sending the defendant “many emails” of which this is only his “latest topic”. The additional material, far from assisting the defendant, makes things worse. The deletion of the recipient address line from all the prior emails, in an email which replies to an email purportedly sent by the plaintiff using the public option, creates the illusion that some or all of these prior emails were also sent to more persons than just the defendant.

46. As to whether these emails constituted unreasonable harassment, Mr Potter also drew to my attention the contextual background known to the recipients, namely that the defendant is a relatively young woman who is the subject of a “fixation” by a much older man who has spent “months of campaigning” while “threatening her”. However, it is not necessary for me to descend to this level of particularity in order to determine the capacity of this imputation. The matter complained of states openly that this conduct is harassing and ends with the unambiguous request “Please stop!”

47. Imputation (a) is clearly conveyed and is defamatory of the plaintiff.

48. I note, as an alternative finding, that if the matter complained of were restricted in terms to the email of 25 May 2017, the same portions the 25 May 2017 email as set out above would still convey the imputation in question.

Imputation (b) – The plaintiff acted menacingly towards the defendant by consistently threatening her by email.

49. Ms Chrysanthou again submits that there is no suggestion of “consistent” or repeated threats, and that the plaintiff’s emails “speak for themselves”, although without referring to bane and antidote principles.

50. This imputation differs in substance from imputation (a) in that it relates to “menacing” conduct by the plaintiff. This conduct is submitted to be more serious in that it has dark undertones of menacing behaviour towards a comparatively young woman by a much older man.

51. The depiction of the plaintiff as having a “fixation” with the defendant and spending “months of campaigning” in circumstances where she complains his conduct is “menacing” would be vivid and disturbing to the ordinary reasonable reader. The deletion of the recipient addresses and inclusion of what appear to be some of those emails (noting again the curious four email addresses for the plaintiff at the end) is not antidote to the bane; it merely adds to the sting.

52. Imputation (b) is clearly conveyed and is defamatory of the plaintiff.

53. I note, as an alternative finding, that if the matter complained of were restricted in terms to the email of 25 May 2017, the same portions of that email would still convey the imputation in question.

Imputation (c) – The plaintiff is a malicious person who sent threatening emails to the defendant and copied in other residents of the Watermark building for the express purpose of publicly humiliating the defendant.

54. Ms Chrysanthou starts her submissions in relation to this imputation (paragraph 49) by submitting that this imputation is “confusing” because of the multiple acts said to amount to malice. If that is an attack on the form of the imputation (presumably on the basis of being a rolled-up plea), it should be argued as such. I formally note that I am satisfied that the imputation does not set out multiple acts; what is described is a person on a campaign of publicly humiliating the defendant by sending threatening emails to her, which emails are copied to all the other residents.

55. Ms Chrysanthou submits that “idiocy” rather than malice is conveyed. Given the seriousness of the conduct described – months of campaigning including many emails on many topics, followed by two faked break-ins and “offensive, harassing and menacing” conduct, all of which is expressly portrayed as deliberate – this is not idiocy, but conduct which the ordinary reasonable reader would view as malicious, the more so since the defendant has spent months enduring it.

56. Nor do the attached emails prevent the forming of such a view by the ordinary reasonable reader or outweigh on the bane of conduct so vividly and repeatedly described as to convey an imputation of malicious conduct by a thwarted man against a woman resident.

57. The additional emails attached to the 25 May email merely underline this. The removal of the addressees’ email addresses infers that these emails could have been sent to anybody or everybody. The inclusion of the four addresses at the end for the plaintiff hints at other emails being sent as well.

58. This imputation is clearly capable of being conveyed and is defamatory of the plaintiff.

59. I note, as an alternative finding, that if the matter complained of were restricted in terms to the email of 25 May 2017, the same portions of that email as set out above would still convey the imputation in question.

Imputation (d) – The plaintiff is a small minded busybody who wastes the time of fellow residents on petty items concerning the running of the Watermark building.

60. Ms Chrysanthou submits that there is no suggestion that the plaintiff is either small-minded or a busybody, and merely suggests that his overreaction to mailbox thefts is misguided (written submissions, paragraphs 53 – 54). She does not refer to the additional emails in these submissions.

61. The sneering tenor of this email portrays the plaintiff as a pathetic figure with fixations, requiring careful explanations of such simple things as how to get bank statements by email instead of embarking on “Mission Impossible” style fantasies about thieves attacking the Watermark building. A picture is painted of everyone else in the building being “delightful” while he is, by inference, harassing not only the defendant but also the other residents by copying them in on emails about something as trivial as mailbox break-ins.

62. This imputation is clearly capable of being conveyed and is defamatory of the plaintiff.

63. I note, as an alternative finding, that if the matter complained of were restricted in terms to the email of 25 May 2017, the same portions of that email would still convey the imputation in question.

Conclusions concerning the imputations

64. To summarise, in relation to the alternative form of the matter complained of, in relation to each imputation, the inclusion of the added material in the emails makes things worse for the defendant, because it paints a stronger picture of the defendant’s conduct. However, the matter complained of in its pleaded and defended form is also capable of giving rise to each of the four imputations.

The evidence: the witnesses

65. The plaintiff gave evidence and was cross-examined and his daughter gave evidence in relation to hurt to feelings.

66. Three affidavits were tendered on his behalf by three of the Watermark residents, namely:

1. Affidavit of Mr Ron Gauld (Exhibit B);

2. Affidavit of Bronwyn Tuckerman (Exhibit C); and

3. Affidavit of Wendy Gelhard (Exhibit D).

67. These witnesses, two of whom were residents of the Watermark building and one of whom had family living there, were not required for cross-examination. The plaintiff tendered emails from other residents thanking them for their “kind words” (Exhibit A, Tab 18) of support following the sending of the matter complained of. Although most of their evidence went to hurt to feelings, the emails attached to these affidavits, as well as other emails tendered on behalf of the plaintiff in relation to exchanges with six members of the executive committee (persons other than those named above) paint a vivid picture of concern by the residents about the two mailbox break-ins, discussion of steps that the residents were taking to check their boxes and notify each other and debate about appropriate measures to prevent further break-ins, including the plaintiff obtaining advice from Barrenjoey Locksmiths. They also refer to the ongoing issue of the defendant leaving her mailbox unlocked. These emails included plans for other executive committee members to keep an eye on these issues while the plaintiff was away on holidays. It is clear that the other owners were sympathetic to the plaintiff’s difficulties.

68. The other residents were also supportive of the plaintiff’s position in relation to locking the mailboxes. Only the representatives of the landlord for the defendant’s unit appear to have expressed any resistance to the plaintiff’s requests, and that resistance appears to be confined to resisting any financial liability for rekeying the box and whether it was necessary to make amendments to the Owners Corporation rules to require mailboxes to be locked, with fines for failure to comply. Their correspondence indicated their appreciation of the plaintiff’s general performance of his duties concerning the management of the building by the Owners Corporation.

69. The defendant and her partner, Mr Curby, gave evidence and were cross-examined. In the course of his evidence Mr Curby, who was a police officer until 1996 and since then has held an unidentified position in the security industry, volunteered some evidence of an expert nature in relation to the cause of mailbox break-ins. That evidence was neither provided in accordance with the relevant provisions of s 79 Evidence Act 1995 (NSW) nor particularised, and I have accepted Mr Potter’s objections to its use. Similarly, statements were made in the course of the hearing about statutory requirements for Owners Corporations, although regrettably without any reference to the relevant provisions of the legislation, and I have treated such submissions with caution.

70. Much of the relevant evidence consisted of the emails which were exchanged, including the emails omitted by the defendant from the “cut and paste” emails attached to the matter complained of. Exchanges of emails after the matter complained of, and the circumstances in which the owners corporation commenced proceedings in the NCAT to require the defendant to lock her mailbox, would be relevant to the defence of justification, if they had been particularised (which they were not); however, this did not stop the defendant putting such submissions. These later emails are also relevant to qualified privilege at common law, malice and damages.

The omitted emails

71. The emails the defendant attached to the defendant’s email to the plaintiff of 25 May 2017 email do not tell the full story, so it is necessary to set out the emails that have been omitted in order to put those attached into context.

72. The plaintiff, who told the court he conducted as much as possible of his activities for the Committee by email, sent the defendant a standard “welcome” email on her arrival, including information about the building. The defendant makes much of the fact that that email did not contain any information about obligations to lock mailboxes.

73. It is not in dispute that the defendant’s mailbox (for unit 9) was left unlocked from the time she moved in, namely July 2016. Nor is it in dispute that the defendant never answered the plaintiff’s email on 31 August 2016 (the one-liner asking “I noticed your mailbox has been left unlocked for quite a while?”) or to the follow-up email of 10 April 2017, the text of both of which emails were attached to the matter complained of.

74. During this period, the plaintiff did send an email to the defendant which was critical of her conduct. Apart from the “welcome” email sent in July 2016, this is the only email tendered by either party in relation to any claims that the plaintiff sent “many” emails using the “public option”.

75. The email in question was sent on 13 December 2016 (Exhibit A, Tab 3). While this email was not sent to the other residents, it is likely that they had some input into the situation, as the email reports their complaints about the defendant. (I also note that this was sent to the defendant’s real estate agent, a step the defendant objected to when this occurred during the letterbox dispute.) The text sets out that residents had complained to the plaintiff and the strata managers (and that two complaints had been made from occupants of adjoining apartment blocks to police) about a noisy late-night party in the defendant’s flat and the adjoining lobby. The defendant was asked to give her assurance that this would not happen again.

76. The defendant replied saying she was sorry, but adding that “not one neighbour knocked on our door, nor rang our buzzer and not once did the police attend or contact us at all”, followed by a request to forward her email on to the complainers (Exhibit A, Tab 4).

77. The “welcome” email and the “noisy party” email are the only evidence before me of the plaintiff sending “many emails” to the defendant, copied to other persons, of which mailboxes is only “the latest topic”. There was no cross-examination of the plaintiff to the effect that either of these was sent to inappropriate parties, or harassing or menacing in any way, or threatened the defendant, or that his sending it was the conduct of a small-minded busybody, or even that these were some of many.

78. At one point in her evidence the defendant volunteered the statement that she had received “over 31 emails” from the plaintiff concerning Watermark building matters (T 169). The plaintiff was not cross-examined about the nature or number of these emails, nor were any of them tendered.

79. During the Christmas 2016-2017, period there were media reports that mailbox break-ins by organised crime syndicates (known to the police as “boxers”) were occurring. Some time during this period the plaintiff read a 20 December 2016 article by John Morcomb of the Manly Daily (although it was published on the Telegraph website). It was headed “Manly: Stealing mail from mailboxes for identity theft and for Bankcards”.

80. The text of this newspaper report is as follows:

“Police are urging residents to secure their letterboxes after a spate of mail thefts in Manly and Dee Why in recent weeks.

Thieves have targeted credit cards and information that could be used for stealing identities in the thefts between November 13 and December 15.

In early November, thieves his Narrabeen and Queenscliff letterboxes.

Fraud and cybercrime squad Superintendent Arthur Katsogiannis said at the time, on the surface, mail theft might seem like a petty crime.

However, local criminals, known as “boxers”, were selling documents to international syndicates while keeping bank cards for their own use.

“Information from documents such as bank statements and utility bills in then used by the overseas criminals to apply for large loans in the names of their unwitting victims, thereby defrauding financial institutions,” Supt Katsogiannis said.

“the low-level thieves tend to keep any credit cards they find to fraudulently purchase goods for later resale, while the identity documents are provided to the international identity theft operations for the larger frauds.”

Northern Beaches crime manager Inspector Justin Hadley said the recent theft of mail at Manly and Dee Why fell into the same pattern – the thieves were after bank cards and information that could be used to steal the identity of the victims.

It was yet to be determined where the information for identity theft was ending up, Insp Hadley said.

He urged residents to use padlocks on their letterboxes or install improved locks and, where possible, to clear mail regularly or to use post office boxes.

Insp Hadley said residents should also redirect mail or have their friends collect it if they go away on holidays, while strata managers should consider the secure placement and design of letter boxes, and the installation of quality CCTV systems to catch and deter mail thieves.

Have you been the victim of fraud? Email [email protected]”

81. The reference in the defendant’s email of 10 April 2017 (which is one of the emails in the attachments to the matter complained of) to “a number of incidents in Manly of thieves searching through mailbox looking for mail and identity papers” should be seen in the context of this article.

82. This, then, is the full set of emails between the parties concerning the mailboxes (and, for that matter, any other disputes involving the defendant) as at 10 April 2017, namely a one-sentence inquiry in August 2016 and follow-up eight months later in the context of mailbox break-ins and police advice, both of which were sent to the defendant personally and to neither of which she replied. As is set out below, the defendant considered both these emails harassing and threatening and said that this was why she refused to answer them.

83. What occurred next, and brought the matter to a head, was that the two mailbox break-ins to the letterboxes outside the Watermark building, the first of which was on 20-21 April 2017 and the second on 1 - 2 May 2017.

The emails concerning the first mailbox break-in

84. On the night of 20-21 April 2017 about 10 of the building’s 15 mailboxes were opened by an unknown person. The plaintiff sent a circular email to all owners and tenants advising of the break-ins, noting that at least 10 boxes were still open in the morning, attaching a link to the Manly Daily article of 20 December 2016, and adding:

“As you would be aware from many articles in the local press, this is a common problem in Manly and potentially serious as the “boxers” are after documents that allow them to steal your identity and obtain credit cards etc in your name.

Accordingly would you please:

•   Make sure your mailbox is closed and locked ASAP (a number are still open this evening).

•   Keep it locked so as not to encourage opportunists to try the boxes or check on our lock type.

•   Check to see if you may have had important documents in the box last night that could be used in identity theft.

We will check to see if there is something we can do to improve the security of the boxes but in the interim – in your own interests – please follow the advice in this article.”

85. A link to the Manly Daily article was attached. As is set out in more detail below, the defendant told the court she opened the link to the article referred to in the last line of the email but did not read the contents.

86. Although this was in fact an email to all residents including the plaintiff and dealt with letterboxes, the defendant did not include this email in the “cut and paste” attachments in the matter complained of. Nor did she include the similar letter the plaintiff wrote after the second break-in shortly afterwards. She did, however, include the reminder that the plaintiff sent her personally on 27 April 2017 (although she deleted the address line which demonstrates that this email was only sent personally). More importantly, she also failed to include her derisive reply to the plaintiff on 27 April 2017, the text of which is as follows:

“Hi Gary

Wow! What’s your take on this? “…and your open box may have contributed to the ease with which they apparently obtained a master key to open the other boxes.”“ (Exhibit A, Tab 10)

87. The defendant also omitted the plaintiff’s reply, again to her personally and not to the other residents, which was sent the next day (28 April 2017):

“Hi Trish

It is possible.

At least 10 boxes were opened with no damage to the locks or boxes so it is obvious that they had a master key. (They may have been interrupted – or had opened all the boxes and just didn’t bother closing them at all).

The locksmiths tell me that by checking the barrel on the lock they can determine the lock type and have what is effectively a master key cut for the locks. It is apparently the most common way they gain access to corporate boxes.

In this case we have no way of knowing whether they did that by previously checking your open box, or already had a collection of master keys they could try as part of their kit.

In any case you will have to keep your box closed and locked in future.

Rgds

Gary” (Exhibit A, Tab 11)

88. The defendant continued to keep her mailbox unlocked for at least part of the time between the first and second mailbox break-ins. However, as is set out in the plaintiff’s email to Patricia Chua dated 3 May 2016 (Exhibit A tab 14), the defendant was noted by him to have been locking her box for several days after the first break-in. It was because she stopped locking her box once again that he sent his email of 24 May 2017 to which the defendant responded by sending the matter complained of.

The emails concerning the second mailbox break-in

89. On the night of 1 – 2 May 2017 there was a second incident where an unknown person or persons again opened about five of the mailboxes outside the building. Mr and Mrs Miller, other owners in the building, emailed the plaintiff at 11.28am on 2 May 2017 to say:

“Don’t know if you are aware that the mailboxes were opened again last night. I phoned the Manly Police and they gave me another number to call...” (Exhibit A, Tab 13)

90. The plaintiff forwarded this email to Mr Morgan of unit 12 and replied to Mr and Mrs Miller:

“I will pass it on to Ron [Morgan] who is scheduling the inspections. Terry called to tell me that 3 mailboxes were open when he came back (units 8, 11 and 15). He thought they may have been opened late this AM? Do you have any idea when they were opened? I will try to report it through the online police report site (although my past efforts to do this didn’t work as the site seems to have a limited list of categories that does not include mailbox tampering).” (Exhibit A, Tab 13)

91. I note that the defendant’s mailbox, number 9, is not on this list, which corroborates the plaintiff’s observation in his email to Mrs Chua of 3 May 2017 that the defendant had started locking her mailbox.

92. Mr Miller sent a follow-up email at 1.17 pm on 2 May 2017 noting that he had closed two of the five boxes for which he had keys and that “I have been checking the mailbox around 5 pm, as I think the culprits are coming late at night or early hours of the morning” (Exhibit A, Tab 13). It was in these circumstances that the plaintiff sent a brief email to all residents stating “Unfortunately at least 5 of our mailboxes were again opened on the night of 1-2 May 17”, attaching once again his email of 21 April 2017 and the article written by the Manly Daily journalist.

93. At 1.17pm that day, Mr and Mrs Miller advised the plaintiff that, to their observation, five mailboxes had been opened when they went downstairs, and that they closed their mailbox and that of a neighbour to which they had a key. They were checking the mailboxes at around 5.00pm, as they thought the culprits were coming late at night or in the early hours.

94. Another unit owner, Mrs Chua, emailed the plaintiff on 2 May 2017 at 9.09pm asking if he knew which mailboxes had been opened about both times, apart from her own. His reply listed the boxes that had been opened but noted that the defendant’s box for number 9 had been locked:

“Hi Patricia

This time they opened (at least) 4, 6, 8, 11, and 15.

Previously it was, I believe (at least) 3, 4, 5, 6, 7, 8, 10, 11, 12 and 15.

(I say “at least” because some of the early risers may have relocked their boxes without saying anything).

Some commonality but not sure we can read much into it unless some boxes are easier to open than others.

According to Barrenjoey Locksmiths, by examining the barrel of the lock they can obtain a four digit number for the lock type that enables them to have a quasi skeleton key cut. (I cannot see a number on the barrel of my lock but that may be my poor vision and the difficulty in photographing it. Certainly seeing the barrel does make easier to identify the lock type).

As it hasn’t happened before in 22 years (to the best of my knowledge) I suspect it could well be the result of having the unit 9 box open since August last year. They would have made it easy to check the lock type.

After many requests unit 9 have now closed their box but if these “boxers” have some form of master key we can only expect they will try again if they are finding anything of interest.

Rgds

Gary” (Exhibit A, Tab 14)

95. Ms Chua replied:

“Hi Gary,

Thanks for the info.

I’ve something to share as well:

1. Other than the unlocked mailbox, actually Watermark was featured prominently in a TV news piece just the night before the 1st mail theft - - Channel 9 nightly news, on strata and short-term stay etc. Someone was interviewed right in front of Watermark, and it went on for some minutes.

2. About 2-3 months ago, ABC news did a special report on the seriousness of mail theft in Sydney. One of the person [sic] being interviewed was a young woman whose identity being stolen during a long holiday, and she was living in Manly as well. So it’s quite certain that there are gangs stealing mails regularly in our area.

3. That some ABC report went into some details about mail theft (method, structure of criminals, and etc). And it mentioned that some mailboxes would be hit again and again until criminals have enough information to form fake identities. These thieves would hand over mails to gang leaders, and these leaders/dealers are connected to criminal groups whose operation would include identity theft.

I’m not certain whether what’s described in #3 was what’s happened in the 2nd theft, but it’s a possibility. That’s why I asked the question about which mailboxes were being broken into more than once.

Regards,

Patricia”

96. The plaintiff replied as follows:

“Hi Patricia.

Yes, I remember seeing that item on the ABC news.

Apparently the problem exists right across the city but is worse in the Northern Beaches area and Manly gets a frequent mention.

I did try to register the “crime” on the NSW Police database (as they won’t accept verbal reports on this sort of thing now) but gave up after wasting 30 minutes trying to contend with a very poor webform that doesn’t seem to offer much flexibility.

As we can’t really install CCTV our only option may be to look at changing the locks for something more secure.

I am reluctant to do that right now as – apart from the cost – it will require a lot of organizing because of the multiple key problem. (I think the OC is only obliged to provide tow keys but many unit owners and agents etc., will have as many as four and some of the more secure locks do not allow users to have them cut without ‘permission’ – a nightmare I don’t want to get into).

I suggest we leave it at the moment to see if there is another breach and, if so, consider it again.”

97. The defendant’s mailbox, although closed at some earlier time according to the plaintiff’s email to Ms Chua, became open again, and the plaintiff wrote to the defendant (and no other person) on 5 May 2017 (this email is contained in the attachments in the matter complained of).

98. There was no reply. It was in these circumstances that the plaintiff sent the email of 24 May 2017, with a copy to the defendant’s real estate agent, to which the matter complained of dated 25 May 2017, to which the defendant replied by sending the matter complained of. However, that reply was not sent to all recipients of the email concerning the break-ins sent by the plaintiff, but to only 16 of the residents, namely persons who had been identified by the defendant as owners of units in the Watermark building.

The plaintiff’s provision of prior emails to the Strata Committee during his absence on holidays

99. Before the plaintiff received the matter complained of, he was about to go overseas on holiday, so he sent an email to the Strata Committee attaching the email which had provoked it (namely the plaintiff’s email of 24 May 2017) and the previous chain of emails, stating:

“Strata Committee

FYI in case the issue is raised again while I am away.

I have attached a PDF of some of the many emails sent to the tenant for your info.

Hopefully she – or the agent – will ensure that the box is now kept closed.

I haven’t got time to do anything about re-keying etc so suggest we leave it to see what happens and I will get your thoughts again in mid-July.

Regards

Gary” (Exhibit A, Tab 16)

100. This email clearly explains the circumstances in which the plaintiff felt it necessary to share the defendant’s emails with his fellow members of the executive committee, namely in case of difficulty while he was away overseas and difficult to contact.

101. The next email in the chain is the matter complained of.

102. The plaintiff sent a polite reply to the matter complained of at 4.02 pm the same day, with a copy to the agent:

“Hi Trish

Thanks for your reply.

Open Letterboxes

Although I am here most of the time – and have lived here for 17 years – your mailbox is the only one I have ever seen left open for any period of time.

Who opened the boxes

I will not make further comment on your remark about “Did you open the front panel” etc., as I suspect you wrote it in haste without thinking about its absurdity or the implications.

Locking the box

Without wasting more time on debating the cause of the breach I must still insist that you lock your mailbox. I believe that not doing so has – and could continue to – put at risk other residents mail security.

Email Distribution

The only emails that are sent to all residents and owners are those that concern them.

All my prior emails on the unit 9 mailbox were sent just to you.

The email of 24/5/17 was copied to the lot agent – and subsequently to the members of the Strata Committee – as it concerned financial responsibility that could affect the lot owner in the fact of your failure to lock the box.

It was NOT sent to other residents and owners.

It appears it was only your reply that was sent to the full mailing list “Residents and Owners”.

I will copy this reply to the lot agent – and our Strata Managers – as they have become involved.

But I see no point in copying it to all and sundry – unless you wish me to?

Rgds

Gary”

103. Two other residents responded to the defendant. Although the plaintiff did not press the “reply all” to the defendant’s email, Mr Gauld, the son of the owner of unit 14, did. He compared the contents of the defendant’s complaints to the anti-vaccination movement (from which I infer that he considered her claims ridiculous) and said he wanted to “publicly acknowledge” the plaintiff’s “tireless and effective efforts for the general benefit of Watermark”, suggesting that the defendant take any personal grievance with the plaintiff “offline” (Exhibit A tab 19).

104. Wendy Gelhard, in unit 5, emailed a reply only to the plaintiff personally, saying “you have all my support and hope you can ride through this attack” because if not for the plaintiff’s work, the building would not have run as smoothly as it had (Exhibit A tab 20).

105. The plaintiff and the defendant’s real estate agent exchanged correspondence, with the agent pointing out that there was nothing in the by-laws requiring owners to lock their mailbox. The plaintiff’s reply pointed out that if a negligent act caused loss to others, that loss was compensable, whether there was a by-law or not (Exhibit A tab 21). The job of the owners corporation was to remind the residents of their obligations which had been done by drawing their attention to police advice about keeping boxes locked. The plaintiff also repeated the advice he had received from the locksmith (Exhibit A tab 21). He added:

“I notice that unit 9’s box was closed this morning but unfortunately based on past correspondence I cannot be sure that the importance of this basic bit of security is fully appreciated. So it is important to emphasise that tenants can put the [owners corporation] and Lot Owner at risk of incurring considerable liability for costs incurred by both other owners and the [owners corporation] itself.” (Exhibit A tab 21)

106. The following day (26 May 2017) the plaintiff encountered Mr Curby in the foyer and they had a brief conversation. There is no evidence that the plaintiff’s statement in his email of 25 May 2017 to the real estate agent (Exhibit A tab 21) to the effect that the defendant’s mailbox was now closed was incorrect. The text of this conversation was not particularised in the pleadings. The versions of this conversation given by the plaintiff and Mr Curby are set out in more detail below.

107. The plaintiff had, but did not give to, Mr Curby a letter he went on to put into the defendant’s locked mailbox seeking an “unequivocal and unqualified apology” be sent to all the recipients for alleging that he had in fact been the perpetrator of the mailbox break-ins. There was no reply to this or to his subsequent email of 30 May 2017, in which he noted that she had blocked his emails.

108. As set out above, the plaintiff left the conduct of the issue to the managing agent and the executive of the owners corporation while he travelled overseas in June 2017 (Exhibit A tab 24 – 26). The strata manager, Mr Amoroso, took the issue further by emailing the owners (rather than to the real estate agent managing the property) on 31 May 2017, saying:

“The Committee have liaised with the Tenant directly, she blasted the Committee and has now blocked all emails. The Committee then liaised with the property manager Jason Hitchman to which [he] had responded but seemed to dismiss the matter and not have been taken [sic] seriously. In fact, he is now not responding to any emails nor is the Tenant.” (Exhibit A tab

109. It is clear from the emails following the matter complained of that the plaintiff largely left the resolution of the dispute concerning the defendant’s mailbox to the strata manager, Mr Amoroso, and the executive committee. On 31 May 2017 the owners replied to Mr Amoroso’s email, saying they appreciated the vigilant efforts of the plaintiff to maintain a secure and well-managed building but “gently suggest that a more cooperative and neighbourly style within the building” may have prevented escalation, that threats of litigation were not motivating the defendant to resolve the issue and complaining that, by writing to them rather than the real estate agent, Mr Amoroso was escalating the matter (Exhibit A tab 27).

110. The defendant’s lease was up for renewal at about this time and this lease was renewed.

111. The plaintiff’s solicitor sent a notice of concerns on 25 July 2017 which was not responded to. Defamation proceedings were then commenced.

112. The matter remained unresolved until the Annual General Meeting, held in the foyer of the building on 11 December 2017. There was no representation on behalf of unit 9 on this issue and there was no representative for unit 9 at the meeting. It would appear, from the minutes of the meeting, that although the defendant had on occasion locked her box at around the time of the thefts, according to the observations noted by the plaintiff in the emails set out above, she had returned to her previous practice of leaving her mailbox open and unlocked.

113. There were two meetings on 11 December 2017. At the first, the plaintiff and the other seven members of the Committee were re-elected. One of the resolutions was for a review of the by-laws (Item 11). The strata meeting minutes confirmed that the plaintiff was re-appointed chairman and noted at paragraph 5.3:

“Mailbox Security

The meeting noted that a Resident continues to leave the mailbox open, which exposes all other mailboxes at risk of being broken into. The Strata Committee will consider new locks to be installed and further action to those who keep the mailbox unlocked.”

(Exhibit A tab 31)

114. There is no note of any opposition to this resolution.

115. The plaintiff sought advice from the strata manager as to the best way forward to deal with the issue, given “the spectacular lack of success” he himself had had. He noted the defendant was still leaving her mailbox open “about half the time”, and wanted to know whether a further request to close it should be made, as he did not think the defendant would agree to mediation if NCAT proceedings were commenced. This request for advice included the issue of whether rekeying was appropriate and whether he was in fact correct in his concerns about whether the open mailbox could assist mail thieves (Exhibit A tab 29).

116. Mr Amoroso replied that he hoped the locksmiths could ensure their proposed lock/key will prevent any other mail theft” and that mediation through the NCAT was “the best way forward” (Exhibit A tab 29). This was in fact correct, as the NCAT process commenced in 2018 resulted in a mediation in which there was an agreed confidential result. The defendant’s lease was not, however, renewed in July 2018, which meant that the problem no longer existed.

117. There is no evidence that the new tenant of unit 9 (or anyone else, for that matter) had a practice of not locking their mailbox, although the defendant at times in her evidence asserted that this was in fact the case. It was put to the plaintiff (T 92) that other residents were not only unconcerned about open mailboxes but left their own boxes open, which he denied. There is nothing in the documentary evidence to support this and there was no particularisation of such a practice in the particulars of justification.

Was a conversation on 11 April 2017 part of this chronology?

118. The principal disputed event in this chronology is whether, despite the claims in the matter complained of that the plaintiff had failed to “speak to [the defendant] face to face” and “never asked why we keep the letterbox open”, there was in fact a conversation between the defendant and Mr Curby, which the defendant and Mr Curby assert occurred on 11 April 2017.

119. All that the particulars of justification in the Defence (paragraph 14(i)) reveal is that it is asserted that the plaintiff and defendant’s partner, Mr Curby, had a conversation “on or around 11 April 2017”. The subject matter was not identified. According to the defendant’s outline of submissions, during this conversation, the plaintiff “was informed that they had made a decision to leave their mailbox open from time to time to allow for parcels to be delivered”.

120. The plaintiff, in cross-examination, denied that such a conversation had taken place. Mr Curby said it did. Whose evidence should be accepted?

121. The best indicator is the content of the matter complained of itself. The defendant complains (at lines 66 and following) that:

“…rather than simple [sic] knock on my door for a chat in person, or speak to me face-to-face when we have exchanged pleasantries in the foyer, or while I’m putting the building bins out on the street, you have consistently chosen the public email option; copy in all residents and/or my real estate agent, sundry [sic] alleging that responsibility for the threat and safety to our home at Watermark is our doing and threatening to hold us financially responsible. You have never asked why we keep the mailbox open.”

122. This paragraph is difficult to reconcile with evidence from the defendant and her partner Mr Curby that Mr Curby did in fact explain to the plaintiff why it was that they left the mailbox open and told the defendant about this conversation.

123. The plaintiff was asked about this conversation in cross-examination:

Q. What I want to suggest to you is that you bumped into each other shortly after this email had been sent to my client, and Mr Kirby told you that the reason they left the letterbox unlocked from time to time was so that bigger parcels could be delivered. Do you remember that?

A. That's untrue.

Q. Without the need for them to have to go and pick up parcels from the—

A. That is untrue.

Q. --post office. You know they had - my client had two children?

A. I do.

Q. And she worked?

A. I believe she did.

Q. She was busy, and Mr—

A. I believe - I believe she worked. I really don't know anything about her her—

Q. And Mr Kirby told you that it was quite inconvenient for them to have to keep going to the mailbox to pick up parcels that didn't fit in the letterbox?

A. I had no conversation with Mr Kirby prior to 26 May about mailboxes.

Q. About anything?

A. I - I can't remember other conversations - if there were other conversations. There were - they were en passant.

Q. You then - if you look behind tab 6, you sent an email on 21 April?

A. Okay. Just one minute. Tab 6? Email is on 21 April, yes (T 93)

124. That email does not refer to any such conversation either.

125. Mr Curby’s evidence was that he and the defendant had a conversation after the 10 April 2017 email and that as a result he decided to mention this issue of locked mailboxes to the plaintiff:

”Q. Did you have a discussion with Ms Murray about it?

A. I did.

Q. Can you just tell us what that was?

A. The discussion was that we thought that since August 2016 and after the Christmas holidays that he wasn't concerned anymore, then all of a sudden it had been raised a second time, and he seemed to have an issue.

Q. Did you do anything about that when you saw him?

A. Yeah. So I did see him shortly after this email, the second email, and I thought it was appropriate to mention it to him.

Q. Did you have a conversation?

A. I did.

Q. Can you just tell her Honour as best you can what the conversation was, what you said and what he said?

A. Yes, your Honour it—

HER HONOUR Q. No, no, look at her. Don't say tell her Honour. It always has that result. Just tell her, forget about me.

A. I, I asked him, I said I saw Mr Raynor, I think it was in the lobby down on the ground floor, and I said to him, I said "I notice that you've sent a second email about our letterbox. What's the issue?". He said, "It's about security in the building." I said, "Well we've chosen to leave our letterbox open because it suits us with parcels that we get delivered." He said, "Well it's a security issue" and that was it. I left it at that.

CHRYSANTHOU Q. Did you tell Ms Murray about that conversation at some point?

A. I did.

Q. When was that?

A. Shortly after the event, either on the day or that evening.” (T 266)

126. There are two troubling aspects to this evidence. The first is that the two emails to all residents clearly refer to police warnings (set out in the linked article) as being the reason to lock mailboxes, not to the defendant’s failure to do so; the defendant is not mentioned at all. The second is that the matter complained of does not refer at all to the conversation Mr Curby says he had; to the contrary, it is critical of the plaintiff for not seeking an explanation.

127. The defendant asserted she knew about this conversation asserted to have occurred on 10 or 11 April. She was asked why, in those circumstances, she had put in the matter complained of that the defendant has never sought her out by knocking at her door or asking in the course of conversation about the mailbox:

“Q. Now at line 70 it says “You’ve never asked why we keep the mailbox open”, do you see that?

A. Yes.

Q. But according to your evidence you had a conversation with Mr Curby where Mr Curby told you that he’d told Mr Raynor exactly why we keep the mailbox open, correct?

A. Yes but he’d never asked me. We’d never had a conversation with it face to face. In fact it was quite the opposite. It was quite friendly and a hello and, so every time I would seem him I’d think we should talk about the mailbox. He wouldn’t bring it up so I’d think maybe he’s over the whole mailbox thing. Then an email would arrive, as soon as I opened up my mailbox.

297. The particulars of malice pleaded are as follows:

“Particulars of Malice

Knowledge of falsity

A. The defendant knew that statements made by her in the matter complained of were false, in that she knew that:

(i) The plaintiff had not consistently chosen the public email option.

(ii) He had not copied in all residents and the defendant’s real (estate) agent and (all and) sundry alleging that responsibility for the threat and safety to her home at Watermark was her doing and holding her financially responsible.

(iii) The plaintiff had not consistently attempted to shame her publicly.

B. Alternatively to A above, the defendant was recklessly indifferent to the truth or otherwise of the statements referred to in A above.

The proportionality of the matter complained of

C. The matter complained of was not commensurate with and was disproportionate to the emails from the plaintiff to the defendant, which:

(i) did not include any personal attacks upon the defendant’s character.

(ii) were polite, succinct and concerned solely with the locking by the defendant of her mailbox/mailbox.

(iii) were concerned with the security of the Watermark building,

Whereas the matter complained of contained statements by the defendant that:

(iv) were offensive in nature.

(v) amounted to a personal attack on the plaintiff’s character.

(vi) attacked the plaintiff’s integrity, both as an owner and as Chairperson of the Strata Committee.

(vii) were vituperative;

(viii) were not based on facts, including the suggestion that the plaintiff, an owner and Chairperson of the Strata Committee, who was encouraging all residents to lock their mailboxes/mailboxes, had actually opened them.

(ix) were patronising when the plaintiff was merely acting in the discharge of his responsibilities as Chairperson of the Strata Committee.

(x) were argumentative when argument was not invited, nor was it appropriate.

D. Despite the matter complained of being significantly disproportionate in size to any communications from the plaintiff to the defendant, it failed to include any agreement or assurance from the defendant that she would lock her mailbox pursuant to the various justified requests from the plaintiff, thereby evidencing an improper purpose on her part.

E. The defendant was actuated in the publication of the matter complained of by personal spite or ill-will towards the plaintiff.

Risk assessment of the defendant’s requirements

F. To the extent that the defendant, in deciding to leave unopened the mailbox for unit 9, relied upon a risk assessment of her requirements:

(i) Any such risk assessment was inappropriate and/or unnecessary; and

(ii) Any assessment of the defendant’s requirements failed to have reasonable or proper regard to the requirements of the other residents of the building,

Thereby evidencing an improper purpose on the part of the defendant.

The extent of the defendant’s publication

G. None of the emails sent by the plaintiff that concerned the defendant personally was sent to anyone other than the defendant save that, on one occasion, an email was sent to the real estate agent for the owner of the unit in which the defendant resided, yet the defendant published the matter complained of to a variety of individuals as pleaded in paragraph 1B of the amended statement of claim, thereby evidencing an improper purpose on her part.”

298. The defendant’s answer to these particulars of malice, as set out in Ms Chrysanthou’s submissions (paragraphs 116 – 119), are as follows:

1. The defendant received “many emails over a period of a year concerning the mailboxes” and “some” were to a group, so the defendant “believed that the plaintiff had made the allegations about her to the entire group”.

2. “Proportionate” response “is not a proper malice plea” and where there is a reply to attack “the response need not be proportionate”.

3. Spite and ill-will have “not been made out” and the defendant “was merely defending herself and seeking to stop the plaintiff from further harassing her”.

4. “No improper purpose has been proved”.

299. Ms Chrysanthou in her oral submissions noted that language was irrelevant both to the occasion of privilege and to malice. I have accepted these submissions, although the language of the matter complained of is well outside the usual parameters.

300. I am satisfied that the defendant was well aware of the falsity of her allegations. She knew that the plaintiff had not consistently chosen the public option, and that he had not copied in all residents or the defendant’s real estate agent into the prior emails about which she complained. She knew his emails were not harassing in nature and that she was not being harassed by him.

301. Mr Potter puts to me, as an alternative, that the defendant was reckless indifferent to the truth or falsity. I consider her actual knowledge is demonstrated by the selective nature of the “cut and paste” action and the deletion of the “recipients” portion of the emails. However, her recklessness included not reading the attachments to the two emails from the plaintiff (after each break-in) referring to police advice to keep mailboxes locked.

302. The third particular raised in relation to malice is the disproportionate nature of the response to any previous email correspondence, which was not only polite information about the security of the Watermark building, but did not descend into the kind of personal attacks on the defendant’s character that the defendant was now making about the plaintiff.

303. A significant matter in the list of particulars of malice is prior hostility, personal spite and ill-will towards the plaintiff. I am satisfied that the defendant was angry and resentful at being told to keep her mailbox closed and the fact that two mailbox break-ins occurred, instead of being regarded by her as being an opportunity to reconsider her position, simply made her angrier. She published the matter complained of to humiliate and insult the plaintiff in the eyes of all the other residents in the building and she was motivated by her hostility and ill-will towards him in doing so.

304. I was not addressed by either party in relation to the plaintiff’s particularisation of a “risk assessment” that was inappropriate or necessary. There are other grounds upon which malice can be made out (notably knowledge of the falsity and prior hostility and ill-will).

305. The final basis upon which malice is particularised is the extent of publication. None of the emails sent by the plaintiff concerning the defendant personally had been sent to anyone other than to her (apart from the final email which was sent also to the real estate agent, a person who clearly had interest in receiving such an email, as the exchange about the noisy party demonstrates). Mr Potter submits, and I accept, that the extent of publication to other persons with no prior knowledge of those emails, particularly in circumstances where one or more of those recipients would assume that others had received them as well, went far beyond what was proper, thereby evidencing an improper purpose on her part.

306. I am satisfied that the plaintiff has discharged the onus of establishing malice. I acknowledge that the court must be slow to come to a finding of malice for the reasons explained by Mahoney JA in McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42. However, in the present case, the evidence of knowledge of falsity, prior hostility and ill-will and the total disproportion between the matter complained of and the extent of publication are each individually sufficient to amount to evidence of malice.

307. Accordingly, if I have erred in finding that the matter complained of was not published on a protected occasion, the defence of qualified privilege at common law is defeated by reason of the defendant’s malice.

Conclusions concerning liability

308. All of the defences have failed. The remaining issue is the question of damages.

Damages

309. The three purposes of defamation damages awards have always been consolation of hurt to feelings, recompense for damage to reputation and vindication of the plaintiff’s reputation (Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] per Hayne J (Gleeson CJ and Gummow J agreeing)). These principles underpin s 34 Defamation Act 2005 (NSW), which provides that:

“34 Damages to bear rational relationship to harm

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.”

310. Section 35 Defamation Act 2005 (NSW) caps the damages at $398,500 (Gazette No 66 of 29.6.2018, p 3970).

311. Judicial interpretations of the principles for the awarding of damages have undergone a significant change since the uniform legislation was enacted, resulting in inconsistencies in the method of assessment and size of judgments. These changes have arisen from differing approaches to the legislation and the willingness (or lack thereof) of courts to consider other awards of damages as relevant. The following are the main areas of difficulty:

1. Whether the cap on damages is a ceiling (Attrill v Christie [2007] NSWSC 1386) or a mere cut-off (Cripps v Vakras [2015] VSC 193 per Kyrou J at [603]-[608]; Carolan v Fairfax Media Publications Pty Ltd (No 6) per McCallum J at [127]; Sheales v The Age Co Ltd [2017] VSC 380 per John Dixon J at [70]). Most judges now regard the cap as a cut-off, but awards are still being made on the basis that the gazetted figure is a “maximum”: Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98 at [305] and [315].

2. Whether the gazetted figure is a cap or a ceiling, should damages in excess of the cap be awarded only if they are aggravated in nature (Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [18]-[20]; Al Muderis v Duncan (No 3) [2017] NSWSC 726; Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman (at [304] – [319])), or dispensed with altogether where the damages to be awarded include an award of aggravated damages (Wilson v Bauer Media Pty Ltd [2017] VSC 521)?

3. An additional problem, in relation to consideration of other awards, is whether there is, or should be, any relationship between defamation damages awards and personal injury awards, an issue long the subject of judicial concern (Groom v Crocker [1939] 1 KB 194 at 231 per McKinnon J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 58 – 9 per Mason CJ, Deane, Dawson and Gaudron JJ). One of the reasons for difficulty is that, unlike defamation damages awards, there is a degree of recognition of awards in other damages cases, because “the law has long since recognised that this cannot be achieved by a money award, and so the amount is assessed as well as that can be done by comparison with other awards” (BDT v BDG [2019] QDC 74 at [25]). Calculation of damages for assault claims similarly demonstrate a regard for other awards, as the assessment process demonstrated in BDT v BDG, which was for psychiatric injury following years of incest-based sexual assault, is but one example. Disdain for the assessments of damages by other judges is a feature not seen in other areas of damages assessment.

4. To what degree should the reasoning behind the assessment of damages be set out? While some judgments make a careful analysis of the evidence (Cerutti v Crestside Pty Ltd), most simply state the amount awarded in a single paragraph. Where there are multiple publications, a series of such amounts may be given, followed by a “holistic” approach to the sum to be awarded: Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 at [45]).

312. The above methods set out the accepted way to approach damages. The task before me is the application of principles set out in these judgments.

Issues relevant to the award of general damages

313. Mr Potter drew my attention to the evidence hurt to feelings, which the plaintiff gave evidence of, and more especially his daughter. The plaintiff felt the problem was compounded as he could not respond to the owners, as that would only make it worse, and so he kept quiet, but that caused more hurt because he wondered what people were thinking. Secondly, the mode and extent of publication to all the owners of Watermark meant that this defamatory publication, although limited, affected him in the very place where he lived. There was also the unexpectedness of the libel, in circumstances where the plaintiff was endeavouring, as chairman of the owners corporation, to deal with two mailbox break-ins, which should not be regarded as petty matters but as acts of a criminal nature which required prompt response for the security of the Watermark building residents.

314. Other issues include the bringing of a defence of justification (and other aspects of the conduct of the trial) and the failure of the defendant to respond to the two letters seeking an apology written to her by the plaintiff, or to the notice of concerns. Care needs to be taken in regard to these issues in order to ensure that these are not double-counted in relation to factors warranting the award of aggravated damages.

315. As to the conduct of the proceedings, pleading and persisting in a defence of justification may increase the harm, thereby tending to increase the damages awarded (Herald & Weekly Times v McGregor (1928) 41 CLR 254 at 263), as “compensation for continuing harm is a component of normal compensatory damages” (Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 238 per Toohey J).

316. As to failure to apologise, the position is that, in claims for defamation and false imprisonment, a failure to apologise may be relevant to the assessment of ordinary compensatory damages, rather than aggravated damages: Clark v Ainsworth (1996) 40 NSWLR 463: Schmidt v Argent [2003] QCA 507. Mere failure to apologise does not result in an award of aggravated damages (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66) unless that failure is shown to be, in the circumstances of the case, improper, unjustifiable or lacking in bona fides (Cerutti v Crestside Pty Ltd at [38]).

317. The defendant’s written submissions state only that the publication was limited and the imputations not very serious; “if any award of damages is to be made, it should be nominal” (written submissions, paragraph 150). This was because the plaintiff harassed the defendant for over a year about the letterboxes, even to the point of seeking to commence NCAT proceedings. His complaints about the unlocked letterbox are described as “silly and a waste of time” (written submissions, paragraph 151). No additional matters on general damages were put in oral submissions (T 314)

318. Although the plaintiff appeared to be trying not to show emotion, he was at times clearly distressed when asked how he felt. He was asked:

“Q. "For the purpose of shaming and humiliating the defendant", how did you feel when you read that?

A. That, that is untrue. That is - that is a horrible thing to say. It, it - yeah, it made me - clearly, as the email itself - it, it put me in the position of, of being accused of, of attempting to humiliate, to, to harass, to, to make unnecessary difficulties for someone in the building and whether that be, be the defendant or be anyone else, that is not something I do. It is not something I would ever do and, and none of those accusations - I have never, in my life, in my personal life, in my professional life, in my business life, have I ever been accused of harassing, humiliating or doing any such thing.

Q. So, did that upset you or not?

A. Yes, yes, it did.” (T 78)

319. His description of his feelings was at times disjointed because of this distress:

“A. Likewise, the - likewise, the, the idea, again, that I would go out of my way to try and (a) interfere in the relationship between a, a tenant and the lot agent but more, more to the point, to, to attempt to have someone evicted from the building is appalling. It - it's just - it's, it's an egregious, over the top accusation. It, it really has no basis. It could never have any basis, it would make no sense. And, yes, it made me feel, feel horrible, to be quite honest.” (T 79)

320. The plaintiff was similarly distressed when explaining that he had consulted his daughter, whose opinion he trusted, as to what was in the email, and as to why he wrote to the defendant seeking an apology:

“Q. Did you send her a copy?

A. I did, either - I can't remember whether I sent her a copy immediately or whether I'd sent her a copy after a phone conversation. I really - my daughter is my confidant, okay, and I really, I wasn't looking for someone to say to me this is ridiculous; I knew that. I was looking for someone to give me a check explanation, cause they - what, what - what could, what could inspire this, what could motivate this, and I, I trust my daughter's judgment.

Q. What did she say?

A. I can't remember the details of the conversation, other than she might've used harsher words than I've used. I'm not sure, but—

Q. What action did you take, vis a vis, responding to that email on 25 May?

A. Well, I, I couldn't respond directly to the email for the reasons that I've outlined. The, the - to my mind it was defamatory. I'm not obviously an expert on that field, but I, I thought it was clearly defamatory. It was over the top, it was abusive, it was - it was horrible, and I, I did the following day actually write a private letter to, to Ms Murray and—” (T 63)

321. The plaintiff’s daughter gave some revealing insights into his distress. This is a case where there is strong evidence of hurt to feelings.

322. Ms Chrysanthou submitted that all the evidence pointed to the recipients of the email regarding the defendant’s allegations as without merit (Mr Gauld, for example, in his email in reply, compared her complaints to the complaints of the anti-vaccination lobby). However, the affidavit evidence demonstrates that at least one recipient wondered what had really happened.

323. The extent of publication was limited to the 16 recipients. However, it was clearly discussed by them with other members of their family (which resulted in Mr Gauld’s email, as he was not a resident).

324. All the above factors warrant a substantial award of damages, having regard to the legislation and to the cap. The next question is whether the cap should apply if circumstances warranting an award of aggravated damages can be made out.

Aggravated damages

325. The plaintiff brings a claim for aggravated damages, setting out the following particulars in the statement of claim:

“Particulars of aggravated damages

A. The defendant’s failure to apologise.

B. The plaintiff’s knowledge that the defendant believed that the words giving rise to the imputations set out herein were false.

C. The plaintiff’s knowledge that the defendant was recklessly indifferent as to the truth or otherwise of the words giving rise to the imputations set out herein.

D. The plaintiff’s knowledge that the defendant published the matter complained of for an improper purpose in that she published it in order to punish and/or humiliate the plaintiff because, in his capacity as Chairman of the Strata Committee of a strata property, in which both the plaintiff and the defendant reside, the plaintiff had cause, including as a result of concerns expressed by some residents, to write to the defendant about her leaving her mailbox unlocked, and the defendant was indignant at receiving such e-mails and she decide to punish and/or humiliate the plaintiff by sending the matter complained of.

E. The plaintiff’s knowledge that the defendant published the matter complained [sic] by making statements and using language that were non-responsive or disproportionate to the content and language used by the plaintiff in his publications to the defendant, and which were concerned with safety issues arising out of unlocked mailboxes.

F. The plaintiff’s knowledge that the defendant published the matter complained of for an improper purpose in that she published it to cause as much harm as possible to the plaintiff and she sought to do that by publishing the matter complained of to:

(i) A number of people who had not been copied in on the correspondence from the plaintiff to the defendant.

(ii) A number of people who were not aware of the communications from the plaintiff to the defendant re her unlocked mailbox.

(iii) A number of people who had no interest in private communications between the plaintiff, in his capacity as Chairman of the Strata Committee, and the defendant.”

326. Section 35(2) Defamation Act 2005 (NSW) provides:

“(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.”

327. Section 36 provides:

“36 State of mind of defendant generally not relevant to awarding damages

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.”

328. In Rookes v Barnard [1964] AC 1129, Devlin J explained the nature of the award of aggravated damages where the injury done to the plaintiff has been exacerbated by the conduct of the defendant, thereby attracting higher compensatory damages. These principles underlay the provision of such damages under ss 35 and 36 of the uniform legislation.

329. The calculation of this larger sum of damages should disregard malice or other state of mind of the defendant at the time of publication or at any other time, except to the extent that it affects the harm sustained by the plaintiff (s 36 Defamation Act 2005 (NSW)); however, where it does affect the harm, the proceedings may warrant greater compensation.

Interaction between general and aggravated damages

330. In Davis v Nationwide News Pty Ltd [2008] NSWSC 693, McClellan CJ at CL used the “if, and only if” formula for the cap to be exceeded if a claim for aggravated damages was to be made (at [18]-[20]). This was effectively confirmed in the next decision in which the interaction between general and aggravated damages, Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, where Applegarth J explained the interaction between general damages and the cap on damages as follows (at [41]-[42]).

“[41] An award of damages in excess of the statutory cap is permitted if the circumstances of publication are such as to warrant an award of aggravated damages. But this does not compel a judge to separately assess aggravated damages. In 1997 this court remarked in the context of a jury’s assessment of damages that there was no reason why the jury should have been obliged to answer a distinct question about aggravated damages. Circumstances of aggravation may justify “the court in assessing compensatory damages at a figure higher than that which would have been appropriate without those circumstances; but this does not mean that the increase is a separate category of damages.” The court observed: “The jury is not to be invited to perform the difficult intellectual task of first considering the defamation in an abstract way, disregarding the circumstances in which it was published and the extent of publication, and then separately considering how much should be awarded for those matters”. (Footnotes omitted)

331. Following Cerutti v Crestside Pty Ltd, awards continued to be made on the basis that the cap on general damages remained in place where an award of aggravated damages was made and that the cap remained in place (see for example Al Muderis v Duncan (No 3) [2017] NSWSC 726; Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman (at [304] – [319])). However, in Wilson v Bauer Media Pty Ltd [2017] VSC 521, Dixon J held that the awarding of aggravated damages would take the cap out of contention altogether where an award of aggravated damages is to be made. That interpretation was accepted on appeal.

332. The degree to which this position ran contrary to accepted principles of damages assessment in New South Wales is clear from the position the parties took in Gayle v Fairfax Media Publications Pty Ltd (No 2) Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838, where McCallum J noted at [42]:

“In the absence of any established basis for awarding aggravated damages, it is not necessary to resolve a dispute between the parties as to the proper construction of s 35(2) of the Defamation Act. The dispute arises from the decisions in the Rebel Wilson litigation. In that case, at first instance, Dixon J upheld a submission by the plaintiff that the statutory maximum damages amount has no role to play when an award of aggravated damages is warranted by the circumstances of the publication: Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [76]. At the hearing before me, the plaintiff disavowed reliance on that decision. However, after I reserved my decision, the Victorian Court of Appeal affirmed that aspect of Dixon J's decision: Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [249]. The plaintiff embraced that development and submitted that there is "no cap" applicable in any of the three proceedings before me.”

333. McCallum J ultimately did not award aggravated damages, so the issue did not arise. However, other judges in New South Wales have continued to award damages on the basis that the cap still applies: Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman at [303] – [319].

334. There would appear to be conflicting authorities at first instance and appellate level on this issue. Having regard to the observations of McCallum J in Gayle v Fairfax Media Publications Pty Ltd (No 2) Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2), notwithstanding my reservations as to the correctness of the approach, I propose to consider myself bound to follow Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154.

Factors relevant to the award of aggravated damages

335. Ms Chrysanthou’s submissions were that “no matter has been proved warranting an award of aggravated damages” (written submissions, paragraph 149).

336. Mr Potter submitted that the gravity of the libel, the conduct of the trial (especially the pleading of the defence of justification) and the wrongful failure to apologise constituted grounds for the award of aggravated damages (T 337).

337. Aggravated damages may be awarded where the circumstances in which the defendant has defamed the plaintiff increased the hurt or humiliation to the plaintiff. The focus is on the subjective experience of the plaintiff as the victim of the tort: Gray v Motor Accident Commission (1998) 196 CLR 1 at 7 per Gleeson CJ, McHugh, Gummow and Hayne JJ; see also Cerutti v Crestside Pty Ltd at [37]. In the present case, there is strong evidence as to the subjective experience of the plaintiff and also that the defendant’s conduct was improper, unjustifiable and lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; see also Clark v Ainsworth (1996) 40 NSWLR 463 at 466 per Sheller JA.

338. I note the observation in a number of decisions that tone of voice and giving unreasonable prominence to an allegation may be factors which are relevant to the award of aggravated damages; see for example, Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 79. However, given Ms Chrysanthou’s submission about the asserted incorrectness of decisions such as Assaf v Skalkos on this issue, I propose to exercise caution in this regard.

339. The defendant’s conduct at trial may afford grounds for awarding aggravated damages. This is not merely the pleading of a baseless defence (see Cerutti v Crestside Pty Ltd at [38]) but the actual conduct of the trial itself (Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237 per Toohey J). There must be something improper or unjustifiable in the conduct of the litigation that warrants an aggravation of the damages that are awarded (Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284). This may include unduly unfair cross-examination (Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 at [30] per Beazley JA), although that was not the case here.

340. The damage to the plaintiff has been aggravated by the defendant’s knowledge of the falsity contained within the matter complained of, as is made clear in his request for apology, where he drew those falsities to the attention of the defendant. The defendant’s repeated failure to apologise is wrongful; her explanation that she could not bring herself to even read the letters that were delivered to her mailbox by the defendant was reckless in the extreme. It is unclear whether she read the letter from Goldsmith Lawyers, which was the third request for an apology, but that request was not answered either.

341. I am satisfied that an award of aggravated damages should be made out as part of the damages to be awarded to the plaintiff. Before determining the amount, I should also have regard to the defendant’s submissions that there are mitigating factors which should be taken into account in relation to the award of damages.

Mitigation of damages

342. The defendant submits that if the plaintiff succeeds on liability, “any award of damages should be minimal given the matters pleaded and proved by the defendant” in relation to “the plea of justification or honest opinion” (written submissions, paragraphs 32 and 33).

343. This is an overstatement of the principles of mitigation. First, merely pleading an issue does not permit a party to claim mitigation. Second, the fact that one or more “matter” is proved does not mean, for example, that a claim for aggravated damages cannot be made if aggravating circumstances are made out. Third, evidence before the court which is in support of a failed defence of justification will only be relevant in the circumstances set out in Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96.

344. Ms Chrysanthou relied on the plaintiff’s “terrible” email of 24 May 2017, which indicated that she could be financially liable for the costs of rekeying the box, as this was “a shocking allegation” when there was no by-law requiring residents to lock their mailboxes (T 315); this email was harassing, menacing and threatening and, even if I did not make findings that this was sufficient to amount to justification of one or more of the imputations, I should accept her word for it that it was so harassing, menacing and threatening that only nominal damages should be awarded (T 315 – 317).

345. Ms Chrysanthou referred to Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 as providing support for her position. However, Wigney J’s explanation (at [32] – [46]) of the limited application of the principles in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 (as applied in Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at [262]-[265]; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; Coxon v Wilson [2016] WASCA 48; and Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2017] NSWCA 77) does not assist the defendant, for two reasons. The first is that there are no particulars as such, and the exercise of determining whether the particulars are proper Burstein particulars is difficult to determine. The second is that if such particulars can be gleaned from Ms Chrysanthou’s oral or written submissions, they are presented at the heel of the hunt, namely during the trial, whereas Wigney J struck out particulars for delay in circumstances where the trial was six months away.

346. I was not addressed on mitigation of damages by Mr Potter (see T 337). However, he referred more than once to the prejudice caused by the raising of unparticularised issues at the trial and I see no reason why that complaint should not be heard here.

347. The defendant’s submission that these are mitigation factors should be rejected.

Conclusions concerning damages

348. It would be fair to say that every sentence of the defendant’s email in reply struck a blow at the plaintiff, and was intended to ridicule and humiliate him in every way. Taking into account the range of relevant factors (Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 and 1073 by Lord Hailsham of St Marylebone LC), a substantial award is called for. Using the generalised approach to the assessment of damages generally employed in defamation claims, I consider that, having regard to those factors, general damages of $90,000 would be an appropriate sum.

349. A substantial award of aggravated damages should be made by reason of the strong evidence that the defendant’s conduct was improper, unjustifiable and lacking in bona fides. The falsity of the imputations (Rigby v Associated Newspapers Pty Ltd [1969] 1 NSWLR 729 at 738 per Walsh JA), the conduct of the defendant at trial (Singleton v Ffrench (1986) 5 NSWLR 425 at 439 per McHugh JA), namely the knowing bringing of a baseless defence in that the defendant’s “cut and paste” exercise misrepresented the prior correspondence (see Cerutti v Crestside Pty Ltd at [38] per Applegarth J) and the recklessness of the publication (as well as of the defendant’s refusal even to read, let alone answer, the plaintiff’s requests for an apology) as set out in the particulars would each, individually, warrant the award of aggravated damages.

350. Collectively, these factors present a strong basis for such an award, which I assess at $30,000, resulting in judgment for the plaintiff in the sum of $120,000.

Interest and costs

351. I have reserved the issues of interests and costs with liberty to apply.

Orders

1. Judgment for the plaintiff for $120,000.

2. Liberty to apply in relation to interest and costs.

3. Exhibits retained until further order.

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List of amendments (62.5 KB, doc)

Amendments

02 October 2019 - See "List of amendments" attached.

Decision last updated: 02 October 2019