Sleeman v Tuloch Pty Ltd t/as Palms on Oxford (No 3)
[2013] NSWDC 92
•19 June 2013
District Court
New South Wales
Medium Neutral Citation: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford (No 3) [2013] NSWDC 92 Hearing dates: 5, 6, 7, 11, 12 June 2013 Decision date: 19 June 2013 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendants.
(2) Plaintiff pay defendants' costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.
Catchwords: TORT - defamation - security guard refuses the plaintiff entry into the Palms on Oxford nightclub - whether the matter complained of was published - extent of publication - grapevine effect - whether the defendants (the nightclub operator and licensee) were vicariously liable for statements made by a security guard not in their employ - defence of honest opinion - defences of qualified privilege at common law and pursuant to s 30 - whether publication made on a protected occasion - reasonableness (s 30) - whether malice established - whether the malice of one defendant was sufficient for a finding of malice against all defendants - whether the defendants were vicariously liable for any malice of the security guard - whether offer of amends (s 18) reasonable - whether defence of triviality made out (s 33) - damages appropriate for limited publications - judgment for the defendants Legislation Cited: Defamation Act 1974 (NSW), s 13
Defamation Act 2005 (NSW), ss 18, 20, 31, 30, 33 and 34
Liquor Act 2007 (NSW), ss 73 and 77
Uniform Civil Procedure Rules 2004 (NSW), r 14.30Cases Cited: Adam v Ward [1917] AC 309
Adeels Palace Pty Ltd v Moubarek (2009) 239 CLR 420
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Barach v University of New South Wales [2011] NSWSC 431
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251
Bennette v Cohen [2009] NSWCA 60
Bezant v Rausing [2007] EWHC 1118
Biffa Waste Services Ltd v Maschinenfabrik Ernest Hese GMBH & Ors [2008] EWCA Civ 1257
Bristow v Adams [2012] NSWCA 166
Bristow v Adams [2011] NSWDC 11
Bushara v Nobabananas Pty Ltd [2013] NSWSC 225
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Cornwall v Rowan (2004) 90 SASR 269
Costello v Allstaff Industrial personnel (SA) and Bridgestone TG Australia [2004] AIRComm 13
Cush v Dillon; Boland v Dillon (2011) 243 CLR 298
Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Deutz Pty Ltd v Skilled Engineering [2001] VSC 194
Dillon v Cush; Dillon v Boland [2010] NSWCA 165
Dougherty v Chandler (1946) 46 SR (NSW) 370
Egger v Viscount Chelmsford [1965] 1 QB 248
Ehiozee v EDO Nigerian Association of NSW Ltd [2013] NSWSC 239
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803
For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 807
Fraser v Holmes [2009] NSWCA 36
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
Guise v Kouvelis (1946) 46 SR (NSW) 419
Gulic v O'Neill [2011] NSWCA 361
Habib v Nationwide News Pty Ltd [2010] NSWCA 34
Haddon v Forsyth [2011] NSWSC 123
Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182
Hawley v Luminar Leisure Pty Ltd [2006] IRLR 817
Hay v Australasian Institute of Marine Engineers (1906) 3 CLR 1002
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Horrocks v Lowe [1975] AC 135
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1
Jeffrey v Giles [2013] VSC 268
Jennings v Buchanan [2005] 2 NZLR 577
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484
John Fairfax Publications Pty Ltd v O'Shane [2004] NSWCA 164
Jones v Sutton (2004) 61 NSWLR 614
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305
Lamb v West (1884) 15 LR (NSW) 120
Lang v Willis (1934) 52 CLR 637
Lloyd-Jones v Allen [2012] NSWCA 230
Longdon-Griffiths v Smith [1951] 1 KB 295
LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370
Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30
McLeod v Jones [1977] 1 NZLR 441
Mersey Docks & Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1
Morgan v Odham's Press Ltd [1971] 1 WLR 1239
Nail v News Group Newspapers Ltd [2004] EWCA Civ 1748
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 150 CLR 626
Orcher v Bowcliff Pty Ltd (No 4) [2011] NSWSC 862
Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088
Papaconstantinos v Holmes a Court (2012) 293 ALR 215
Perkins v Redmond Co Pty Ltd (2007) 5 DCLR (NSW) 21
Portelli v Tabriska Pty Ltd [2009] NSWCA 17
Quintano v B W Rose Pty Ltd [2009] NSWSC 446
R v Gutch (1829) Mood & M 432
Roberts v Bass (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Schellenberg v British Broadcasting Commission [2000] EMLR 296
Sims v Wran [1984] 1 NSWLR 317
Sinclair v Bjelke-Petersen [1984] 1 Qd R 484
Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43
Smith v Streatfeild [1913] 3 KB 764
Staff Aid Services v Bianchi (2004) 133 IR 29
Szanto v Melville [2011] VSC 574
Teskey v Toronto Transit Commission (2003) OJ No. 4545
The Producers' and Citizens' Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244
Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
Trad v Harbour Radio Pty Ltd [2011] NSWCA 61
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] ICR 327
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Watson v Foxman (1995) 49 NSWLR 315
Webb v Bloch (1928) 41 CLR 331
Zorom Enterprises v Zabow & Ors [2007] 71 NSWLR 354Texts Cited: Brown on Defamation, 2nd ed. (Carswell)
Faulks Committee (Recommendation 276)
Fleming's The Law of Torts, 8th ed, 1992
Gatley on Libel and Slander, 11th ed
Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis)Category: Principal judgment Parties: Plaintiff: Richard Sleeman
First Defendant: Tuloch Pty Ltd (ACN 086 654 140) t/as Palms on Oxford
Second Defendant: Peter Inwood
Third Defendant: Rodney InnesRepresentation: Plaintiff: Ms L Evans
Defendants: Ms S Chrysanthou / Ms B R Styles
Plaintiff: Camille E Dezarnaulds & Associates
Defendants: Sylvester & Browne Lawyers
File Number(s): 2012/225941 Publication restriction: None
Judgment
Introduction
The publication the subject of these defamation proceedings consists of three sentences spoken shortly before midnight on 23 December 2011 by a person identified in the statement of claim as the "defendants' security guard/doorman" ("the security guard"), outside the Palms on Oxford nightclub in Darlinghurst. The plaintiff, who had been waiting in a queue to get into this nightclub, alleges that the security guard said to him:
"You are way too drunk. Go and sober up somewhere else. You can't come in".
The relevant legislation is the Defamation Act 2005 (NSW) ("the Act").The imputations are:
(a) The plaintiff was excessively drunk in a public place;
(b) The plaintiff was so drunk that he needed to sober up somewhere else;
(c) The plaintiff was so drunk as to warrant him not being admitted to the nightclub.
The statement of claim also sets out that an additional imputation was conveyed to the three persons alleged to have heard the matter complained of. It is pleaded that each knew the plaintiff "strongly opposed drinking alcohol", giving rise to the imputation that the plaintiff was a hypocrite, in that he pretends to oppose drinking of alcohol when he himself consumes alcohol to such an excess that he becomes drunk.
The defendants against whom these proceedings have been brought are as follows:
(a) The first defendant is a corporation conducting the business of the Palms on Oxford, a licensed premises nightclub;
(b) The second defendant is the sole director and secretary of the first defendant; and
(c) The third defendant is the licensee of Palms on Oxford.
The defendants are not sued as the publishers of the matter complained of in the generally accepted way (Webb v Bloch (1928) 41 CLR 331), but on the basis of vicarious liability for the alleged publication by the security guard. In the defence they have jointly filed, each defendant:
(a) Does not admit publication of the matter complained of;
(b) Challenges capacity and denies that the imputations are defamatory;
(c) Claims that if the matter complained of was published, the defendants are not vicariously liable;
(d) Relies upon the defences of qualified privilege at common law and pursuant to s 30, honest opinion, triviality and offer to make amends; and
(e) Relies on the circumstances of the publication in mitigation of damages.
The Reply filed on 15 March 2013 pleads malice in reply to both of the qualified privilege defences. There is no defeasance of the defence of honest opinion.
The plaintiff also commenced proceedings in the Administrative Decisions Tribunal in relation to these events. That claim was brought on the basis of exclusion from the nightclub by reason of age discrimination. No claim was made that these proceedings had any relevance in relation to damages issues, despite some overlap in heads of damages, because the Tribunal proceedings are not proceedings for defamation, and because the Tribunal judgment has not been handed down.
Pre-trial applications and rulings
The procedural history of the claim is of relevance to the way the case was conducted at trial. The defendants challenged the vicarious liability pleadings in a hearing in the Defamation List on 30 November 2012, and the plaintiff was ordered to provide further particulars of the basis of the vicarious liability for each defendant. No judgment is available, but the orders made indicate that the plaintiff was not directed to plead liability for publication in accordance with Webb v Bloch principles. The plaintiff filed an amended statement of claim on 20 December 2012 providing these particulars and joining (without leave) two additional defendants, namely the security guard (Clint James Unwin) and his employer (ADCAS Pty Ltd).
These proceedings were then set down for hearing. The first problem was that Mr Unwin and ADCAS Pty Ltd were not told of the hearing date, or served, until after the statement of claim became stale. Proceedings against them were then discontinued as part of a series of case management rulings prior to the trial: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43. The second problem was that the claim against the defendants continued to be pleaded on vicarious liability principles applicable to other tortious claims rather than on the principles generally applicable in defamation law (Webb v Bloch, supra).
The issue of publication
Where the matter complained of is a slander, the court must first determine whether the matter of complained of was published as claimed. In The Producers' and Citizens' Co-operative Assurance Company ofAustralia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244 at 251, Murray CJ explained this procedure as follows:
"The actual words spoken by the defendant must, therefore, be given by the witnesses, so far as they can recollect them, and then the inquiry will be, first, whether their recollection and accuracy can be trusted, and secondly, whether the words deposed to and accepted as having been correctly reported bear the same, or practically the same defamatory meaning as the words set out in the statement of claim."
I shall first consider issues relevant to publication, namely:
(a) Whether the matter complained of was published;
(b) Whether those imputations which are conveyed are defamatory; and,
(c) Whether any of the defendants are vicariously liable.
Evidence of publication
The plaintiff is a sports journalist. He was born in 1951 and is currently 62 years old. On the night in question he arranged to meet three friends at the Oxford Hotel, a hotel in Oxford Street, Darlinghurst. They planned to have drinks at the Oxford Hotel and then to spend the evening at a nightclub, the Palms on Oxford. It was a pleasant Friday evening, the day before Christmas Eve, and the gay revellers thronged the streets.
Mr Everingham, who met the plaintiff at this hotel at 10 pm, was the first to arrive. He had been a friend of the plaintiff for over thirty years and they regularly met for a night out, often in Oxford Street. They remained in the Oxford Hotel, where they were joined at about 11 pm by Mr Kemp and Mr Clifford, Mr Everingham's partner. The plaintiff said that during this time he either did not have anything to drink, or had one drink. Mr Kemp and Mr Clifford both consumed one or two drinks after their arrival. The plaintiff said, and these witnesses confirmed, that the plaintiff's opposition to consumption of alcohol to excess was known by them to be a view of longstanding.
The plaintiff and his friends intended to go to the nearby "Palms on Oxford" nightclub at about 11.30 pm. The plaintiff had been to these premises once before. He was aware there was a security guard at the entrance, and that there was "always a queue" waiting to get in:
"Q. You'd been there the year before, hadn't you?
A. Yeah, once the year before, and I was in a queue and only gained entrance because one of the people I was with knew the security guard.
Q. Well you gained entrance didn't you, because you were waiting in the queue?
A. Waiting in the queue, yeah.
Q. And you jumped the queue, because someone knew one of the security guards?
A. Well, there was considerable doubt as to - I don't believe we would have got in at all. There was a - we were standing out there waiting for some time, and we got in - the only reason we got in was because one of the people we were with is an ex-policeman who knew the security guard.
Q. You didn't believe you'd get in because it was so busy?
A. At that stage I didn't know whether it was busy or not?
Q. Well there was a queue, wasn't there?
A. There was a queue. There's always a queue.
Q. There was other people waiting to get in?
A. Yes.
Q. They didn't get in and you got in?
A. I don't know whether they got in or not?
Q. And you only got in because you knew someone?
A. That's why I got in, yes - why we got in.
Q. And you're used to having that sort of preferential treatment are you, when you go out?
A. The preferential treatment wasn't for me, it was for the ex policeman I was with." (T 97-98)
All four walked 20 metres up the road to the Palms on Oxford nightclub. There was only one entrance, and there was a security guard standing at the door, as well as a queue waiting to get in.
Mr Unwin, who gave evidence for the defendants, said that he was that security guard. According to Mr Unwin's evidence, and the security log he said he completed later that night, the plaintiff and his friends attempted to walk into the nightclub without queuing. He claims he told them to join the queue. The plaintiff and his three friends deny this.
The plaintiff and his three friends waited in the queue for about ten minutes. According to the plaintiff, he was still five or six persons back from the head of the queue by this time. According to the plaintiff's three friends, Mr Kemp and Mr Clifford had now advanced to the front of the queue, and Mr Everingham and the plaintiff were directly behind them. Although the plaintiff said that Mr Kemp and Mr Clifford had moved to one side so that one of them could have a cigarette, he later agreed that Mr Kemp and Mr Clifford had already been told by the security guard that they could go into the nightclub, and were in the process of doing so (T 102) when the words the subject of this litigation were spoken.
The plaintiff described what happened as follows:
"Q. Now could you tell her Honour what happened in late 2011? Well, on the date - on December 23 2011, what happened?
A. On that day, I worked from home throughout the day. I was working on a book project, and I arranged to meet some friends in the city. I met - I drove in from my home around 9.30 at night, I guess, having been at my home throughout the day. I met one of my friends, Mr Everingham, at the Oxford Hotel around 10, 10.15 maybe. We were there for an hour to an hour and a half. We were joined at around 11 by Mr Everingham's partner, and a younger friend of Mr Everingham, whose name is Will Kemp. During that time, I had no alcohol. I drink very rarely. We decided around 11.30 to leave that venue and go to Palms nightclub, which is on the same side of the street, slightly downhill, only about 20 metres at most. There was a short queue there at the time, and we joined that queue--
Q. I'll stop you there. How many in the queue, would you say?
A. With us in the queue, there was probably a dozen, I guess. 12 to 15.
Q. Keep going.
A. It was reasonably early in the night by nightclub standards, 11.30 at night and I suppose I was fourth or fifth in the queue. The doorman was about from me to you away, 4 to 5 metres I guess, slightly uphill because it's a slope, and he pointed above the heads of the few people in front of me and pointed directly at me and quite loudly, above the traffic noise and the hubbub of the area, because it was very crowded, you can imagine, the Friday before Christmas. He said very loudly and very pointedly, you're way too drunk, you can't come in here, go away and sober up somewhere else. I was--
Q. Could I stop you there, please, sorry. While you were in the queue, and the fourth or fifth back from the queue as you say, where were your friends who you mentioned, Warwick Everingham, Adam Clifford?
A. Mr Everingham was directly behind me. The other two I'm uncertain of - I'm pretty sure they were either slightly to the right or in front of me. I know that Mr Everingham was directly behind me. To pinpoint exactly where the other two were, I'm not certain. They may have been having - one of them may have been having a cigarette, they may have been slightly to the side or in front of me.
Q. Now, just to clarify, the answer you've just given, or the description you've just given as to where people were located, where your friends were located - is that at the time that the words were spoken?
A. That's at the time the words were spoken, yes.
Q. Carry on, you were--
A. Well I was - my reaction was, I was shocked and bewildered. I was standing in the queue, not animated in any way, not talking to anyone, facing the front. I was well dressed in a collared shirt and reasonably stylish jeans and shoes. I was giving no impression that anybody - any reasonable person, anybody at all could draw that I was affected in any way by alcohol.
...
Q. Did the security guard approach you and perhaps see if there was alcohol on your breath, to your understanding?
A. Didn't move from his spot by the door.
Q. He remained the distance you've said, 4 or 5 metres away?
A. Didn't move from his spot, yes.
Q. And you certainly weren't drunk, if I haven't asked you? I'll ask you again.
A. I was not drunk, I had no alcohol at all.
Q. At the time the words were spoken, or immediately after, what was your reaction?
A. I was stunned and bewildered for a few seconds, because it was - completely at a loss to explain why I was being attacked so loudly, and because I was allegedly drunk and so drunk that I couldn't get in to mix with other people, and so drunk that I had to be banished elsewhere. It was bewildering. I very quickly came to the realisation that I was being excluded because I was too old, I just simply didn't fit into the queue or the sort of people that the doorman wanted in the club, and calling me drunk and so drunk that I couldn't go in and I had to go somewhere else was simply his way of excluding me.
Q. The words spoken by the security guard, was your impression that they were said to your group, or what was your impression?
A. It was said to me, pointedly, directly, aggressively and loudly.
Q. When you say pointedly, did he point at you?
A. He pointed at me directly, and the words were said loudly and aggressively.
Q. And he pointed to you as he was saying the words, did he?
A. Pointed to me as he was saying the words.
Q. You said your reaction to the words - was this something that happens to you, or used to happen to you when you - I withdraw that. You said something along the lines of being stunned and bewildered. Is this something that usually happened to you on a night out on Oxford Street?
A. No, it's not happened to me before." (T 6-9)
The other witnesses gave a slightly different version, namely that Mr Everingham called Mr Kemp and Mr Clifford back to stop them from continuing to enter the nightclub, and told them the plaintiff had been refused entry on the basis that he was too drunk (T 302, 311). Mr Everingham said at T 430:
"Q. Now, what happened next, when you were in the queue?
A. For some reason the - well, when we were just standing in the queue, chatting quietly, and for some reason the security guard decided - made a decision that we weren't getting in, and said that we weren't getting in because we were drunk. I don't think he used those words. He just said that, "You've had enough, you're not having any more here," words to that effect, which I was really dumbfounded by, because I wasn't - I hadn't had too much to drink. It was obvious to me I hadn't had too much to drink, and I think it was obvious to the security guard we hadn't had too much to drink either. There was obviously some other reason for him saying that. There had been a decision made that we weren't going to get in; simple as that.
Q. All right, and did he greet you, the security guard?
A. I don't remember him saying anything much other than that"
The plaintiff said that there were many other people in the vicinity within earshot:
"Q. You said that there were about a dozen people in the queue?
A. Around a dozen people in the queue.
Q. Were there passers by?
A. There were - it was a very busy area, the busiest night of the year, I suspect, the Friday night before Sunday Christmas in one of the largest entertainment areas of the city, so - I think within the immediate area there was - in addition to the dozen in the queue, another 20 or so in the immediate area. It could well have been within earshot and probably were. In, in the vicinity - that is within, within the radius of this room - it could well have been 50 to 100 people.
Q. Just to be clear, 12 in the people in the queue or thereabouts?
A. Yep.
Q. Twenty people or so in the immediate area, you say--
A. Yes.
Q. --would you call them the passers by or?
A. Yeah, yes.
Q. And then within what distance? I'm sorry if you've already said, within what distance were the 20?
A. Within the distance of this room, so I suppose in a--
Q. I'm sorry, I just - I think your evidence was "20 or so in the immediate area"?
A. Yes.
Q. And then you said, "In the vicinity there might've been 50"?
A. Fifty, correct.
Q. Just back to the 20--
A. Yes.
Q. --who you said were in the immediate area, would you say they were the passers by or?
A. They were passers by people within - people in the queue and passers by.
Q. You make a distinction, so the 20 is made of the 12 in the queue and then 8 or so passers by?
A. No, no, 12 in the queue and another 20 within in earshot in the, in the immediate vicinity.
Q. Overall, the size of this courtroom?
A. It could've been 50 to 100 people." (T 10-11)
The plaintiff's evidence differed from the evidence of Mr Clifford, Mr Everingham and Mr Kemp in a number of respects. This is to be expected where the events in question occur quickly, and witnesses see events from a different vantage point. However, the differences between the plaintiff's evidence and the evidence of these witnesses showed a pattern of exaggeration by the plaintiff on issues such as the loudness and aggressiveness of the security guard's voice, where they were in the queue, the ability of those present to hear him, and what was said. His evidence that the security guard was aggressive not only conflicted with the evidence of the other witnesses, but with statements he had previously made in the Administrative Decisions Tribunal (Exhibits B, D and F).
The plaintiff's evidence was that he was standing alone, 4 - 5 metres from the doorman, in the third, fourth, fifth or sixth position in the queue (T 7 - 8, 11, 102 - 3). He said the security guard looked at him from a distance of about 4 metres or even further. In addition, he said that Mr Clifford and Mr Kemp were another 5 metres away and had separated from him (T 103 - 105). Since Mr Kemp and Mr Clifford had, the plaintiff agreed, been told they could go inside (T 102), this suggests that they would have been on the other side of the security guard.
However, the plaintiff's description of where he was - isolated, further down in the queue and vulnerable - is contradicted not only by the evidence of the security guard but also by the three witnesses the plaintiff called. Mr Clifford said "I was standing at the front of the queue and Mr Sleeman and Mr Everingham were right behind me" (T 489). Mr Everingham said he was standing in the line with Mr Sleeman and was two metres at most from the nightclub door (Exhibit 13, p 41; T 459). Mr Kemp said he had walked past the door and started to go in, accompanied by Mr Clifford. Similarly, although the plaintiff said that he had become separated from his three companions (T 103 - 105) and that they were five metres or so away, Mr Clifford's evidence was that he and Mr Kemp were standing in front of the plaintiff and Mr Everingham for approximately 10 minutes while they waited in the queue (T 489). This was confirmed by Mr Everingham who said they were "in the queue, which is closed [sic], which is by the door" (T 432) for three to four minutes (T 458). Mr Kemp said that they were in the queue for 10 minutes, and that the plaintiff and Mr Everingham were "standing behind us" (T 311).
While he was in the queue the plaintiff said he did not talk to anybody (T 99 - 102). It was in these circumstances that the security guard spoke to him aggressively and loudly without prior warning (T 9, 103, 146, 148). Again, this differed from the evidence of his three friends, who described the group as having conversations. Mr Clifford said he was talking to Mr Kemp, while the plaintiff and Mr Everingham were talking to each other (T 489). Mr Everingham said he and the plaintiff were "chatting quietly" (T 430; 459). Mr Kemp observed the plaintiff and Mr Everingham chatting together (T 320). In addition, none of these witnesses mentioned shouting or loudness by the security guard. Mr Everingham (T 43) and Mr Kemp (T 303) described what the security guard said without any mention of his shouting, being aggressive or even speaking loudly.
Mr Kemp said he had his back turned to the plaintiff when he heard someone say, "You're way too drunk. You're not coming in" (T 303). He turned around and saw the security guard still "talking" to the plaintiff but did not say what further words were said. Mr Clifford, standing with Mr Kemp with his back to the guard, did not even hear this:
"Q. And then what happened then?
A. I got to the front of the queue. Me and Will were at the front, and we were told we were allowed to go in.
Q. Sorry, I missed that last
A. Me and Will, we were standing together.
Q. Yes.
A. And we were told we were allowed to go in, by the bouncer.
Q. Do you recall the words spoken by the bouncer to you, or not?
A. "You can go in."
Q. Did he greet you?
A. I think he nodded his head and said, "Hi." I can vaguely remember that.
Q. Did he say anything else? Was there any other
A. Not that I can recall.
Q. So you and Will pass through the door of the
A. Yeah.
Q. And what happened next?
A. We were walking - about to walk down the stairs, and I heard Warwick say - call my name.
Q. Yes.
A. And I turned around and he said, "We can't go in."
Q. Did he say anything else?
A. Sorry. I can't specifically remember, at that exact moment.
Q. Okay, sorry to interrupt you. So he said, "We can't go in."
A. Yeah.
Q. And then what happened next, or what was said next?
A. Then he said after that, "They said Richard's drunk."
Q. Okay. Did he say anything else?
A. Sorry. Not that I can remember, not in that
Q. Okay, and so Mr Everingham, "They say - or they said Richard's drunk"?
A. Yeah.
Q. Then what happened next?
A. We basically turned around and walked back out." (T 466-467)
According to Mr Kemp, Mr Everingham called him and Mr Clifford back "We can't go in. Richard's been told he's too drunk" (T 304). Mr Kemp's claim that he turned around after hearing the security guard saying that the plaintiff was too drunk, and saw him still speaking these words to the plaintiff, cannot be correct, as he turned around after hearing these words. Since he was with Mr Clifford, and in the process of entering the club, the likelihood is that he, like Mr Clifford, did not know about what had happened until Mr Everingham told them. That would mean that neither of them, and not only Mr Clifford, heard or saw what happened.
The plaintiff said that after he was told he could not enter, he said to the security guard, "quietly and deliberately", that "discrimination was disgraceful and any discrimination in a gay club was particularly disgraceful" (Exhibit 13, pp 17 and 35; see also T 9). None of the other witnesses heard this conversation or mentioned it.
The question of what the plaintiff said to the security guard is of significance. The nightclub's incident log (Exhibit 5) contains a note of the guard's version of what was said by both of them. That version does not refer to an age discrimination complaint, but to a threat to publicise the event in the media.
If there was any conversation between them, it was not noticed by the other witnesses (Mr Everingham, standing next to the plaintiff, said there were "no arguments" and they just left: T 435).
It is common ground that the security guard said nothing about the plaintiff's age. According to Mr Everingham, Mr Clifford suggested age discrimination as the explanation for his exclusion. Mr Everingham thought "another agenda" was being served, although he did not know what this agenda was:
"Q. So you've said that the plaintiff was dumbfounded?
A. Yes.
Q. Because he was clearly not drunk, and that there was another agenda at play, you said?
A. Yes.
HER HONOUR
Q. How did you know that?
A. Okay. Look, I just didn't think that the doorman was saying with any real conviction that we were really drunk. I don't believe that that doorman thought that we were drunk either. I believe that there was another agenda being served. I didn't know what it was. Right?
EVANS
Q. Yes.
A. I think it was Adam that said, "You're too old," and that started to make sense. That seemed an obvious suggestion. I come from a community that's - it's a gay community. We've been discriminated against all our lives. I've grown up with it, right. And here I am in a situation, a gay place run by gay people, who are deciding to discriminate against me because I'm too old, too fat, too ugly, whatever it happens to be. All right?
Q. Okay.
A. And that made me angry. I'm not angry about being called a drunk. I couldn't care less that someone calls me a drunk. But I really am angry about just being discriminated against by my own people, and that seems to have been lost in this whole - this whole scenario. No one seems to have said that at all.
Q. All right. So you said the doorman didn't - you don't believe the doorman--
A. I don't believe the doorman believed what he was saying, because it was so obviously untrue, we were not drunk and no one in their right minds could say that we were drunk. And if he's a security guard he should be able to see if someone's actually drunk if that's part of his job to do that. No one could have said that we were drunk. It was just impossible after one beer." (T 433-434)
It is unclear at what precise stage Mr Clifford suggested this. Mr Everingham said that when the security guard refused the plaintiff permission to enter the premises, they were all "dumbfounded". It was shortly after the incident occurred that Mr Clifford volunteered the suggestion that the plaintiff's age could have been the reason. Since Mr Clifford had not had the opportunity to see or hear the exchange, this was supposition.
The plaintiff said that someone in the immediately vicinity called him a "dinosaur" (T 155, 157). He was not sure where the "dinosaur" comment came from (T 9, 11, 70) but he thought it came either from someone in the queue or a passer-by (T 10-11).
Mr Kemp did not mention hearing the word "dinosaur". Mr Everingham said:
"Q. What I want to suggest to you was he was on one side of the security guard because he'd been let past--
A. Could've been, yeah, could've been.
Q. --and you were on the other side of the security guard on Oxford Street--
A. Yeah, that's sounds about right.
Q. --and you said to him, "Adam, come back, we're not being let in--
A. I, I just said that we're not, they're not letting us in.
Q. --they think we're too drunk."
A. Yeah.
Q. You didn't laugh, did you, at Mr Sleeman at that point?
A. Not at that point. Later, yeah.
Q. Well, did you think it was funny at some point?
A. Yeah, later on, yeah.
Q. Well, tell me about that, what did you think was funny about it?
A. Well, he's just, you know, the, you know, the idea of him being a dinosaur is funny, just a good natured dragging that you get, that you do with friends.
Q. But you didn't laugh at him until you got to the Taxi Club?
A. Maybe on my way up there.
Q. You thought it was funny, didn't you, because it was a silly situation?
A. Well, it wasn't a silly situation but just good natured dragging, "You're a dinosaur, you're too old ..(not transcribable).. you're too old, you can't go anywhere with you, you're too old."" (T 460-461)
Mr Clifford said:
"Q. All right. Well, on that night, apart from your knowledge of him generally over that 22 years, why do you say that night he didn't look drunk?
A. He looked perfectly normal. He was well dressed. He was in a pressed shirt, collared shirt, pants. He wasn't slurring. He wasn't anything other than he always looks or behaves.
Q. So then you were at the Palms and then at some point this happened, and then what happened after what you've already told us?
A. Well, there was a bit of a crowd and some comments were said in the crowd.
Q. Right, and what were they?
A. I didn't see who said it, but someone said something like to the effect of, "Ah, you old dinosaur," or something like that.
Q. When you say a bit of a crowd, how many people did
A. Probably 15 to 20 people, maybe. That was in the line behind us, but there were a few people on the street as well. It was a busy night.
Q. So you're saying there were 15 to 20 on the queue?
A. Yeah.
Q. And then a few people around.
A. Yeah." (T 468-469)
The plaintiff said that people were chuckling and laughing at him (T 11-12). It was put to the plaintiff that this was a recent invention, as this claim had not been raised in the Administrative Decisions Tribunal proceedings (T 164).
While there are inconsistencies and omissions between the accounts of what was said, the evidence of these witnesses is that the plaintiff was refused admittance to the Palms on Oxford because he was drunk. The evidence of the security guard who says he was on duty, and who made an entry into a security log about these events, differs in important respects.
Evidence of Mr Unwin
Mr Clint James Unwin gave evidence that he was working from 9:00pm to 3:00am that evening. He was a public servant who had worked in the evenings as a security guard for ADCAS Pty Ltd at the Palms on Oxford premises for approximately 12 years. On the night in question he was working with another security guard named Harry, a man of similar build and age, but of Indian origin. As Mr Unwin was the more experienced of the two, he remained on the door when he worked with Harry, who would go downstairs every 15 minutes to do a "sweep" of the premises (T 190).
Mr Unwin's description of what occurred is as follows:
"Q. what happened to lead you to write this incident report?
A. Okay, I was standing at the front door of Palms and I was the only person there, Harry was downstairs. By my recollection three males walked to the door. They approached from a southeasterly direction, from Bondi direction, the top of Oxford Street, and they went to go in. I stated to the males, "There's a line, can you please line up?" The males didn't want to line up and I stated, "Sir, everyone, we need to line up," so the males finally went to the line, the line was only short, by my memory.
When the males got to the front of the line I, I just each male, as I always do, "Gentlemen, where have you been today? How are we?" And I saw one male, I describe as being approximately 50 to 60 years of age, tall, which I now know to be Mr Sleeman, had reddish complexion, dark red complexion, so it's my, my experience and, and skill to be able to see that this person may have consumed some drinks. I do not know how many, and that's why I asked, "Excuse me, sir, how much have you had to drink tonight?"
He stated he had none. His two friends, I said, "How much have we had to drink?" His two friends then said, "We've been to dinner and we've consumed a couple with dinner," so now I had conflicting stories with his friends, so I said to each male, I said, "Excuse me, gents, which one is it? None, or one, or two? Can you help me out?" At that time Mr Sleeman immediately became irate and refused to be what I believe, to be questioned by me. I stated to the males, "I'm just doing my job. How many have we had to drink?" He became abusive and refused to answer my questions and said that I he should not be subject to the questions of me.
He then walked away in disgust, about 2 to 3 metres, and I continued to speak to his two friends. They were quite calm and in a patient demeanour, and I explained to them, "I'm just trying to do my job and ascertain how much we've had to drink." I struck a conversation with them for several minutes and explained to them that:
"Your friend has appeared to not want to come in, as he's objected to being questioned about his alcohol intake, but you two are welcome to go into the club."
At that time they state we continued a conversation about letting Mr Sleeman in, and I said, "He's, he's doesn't want to enter." He's 2 or 3 metres from the doorway now, he's several metres away near the footpath. The gutter. At this time I allowed them entry and ultimately in the end Mr Sleeman was over near the gutter and that's when he stated, "Do you know who I am? You'll regret refusing me entry." And at this time I heard his remarks. I did not know who he was, I was just doing my job, and in the end he, he that's when I said to his friends:
"Look, your, your, your friend is becoming a bit, you know, aggressive and, and abusive. I don't think it would be a good idea for him to come in but you two are still welcome to enter."
In the end they left with Mr Sleeman. That's when Mr Sleeman said, "I'm going to name and shame you to the media. You'll regret refusing me entry." So after they left, several minutes later, I went down and made contemporaneous notes of his entry, taking into effect that I deemed his threats to be serious.
Q. Now, did you ever shout at any of these men at any time?
A. At no time was there a reason to shout to anyone.
Q. Did you ever say to any of them words to the effect of, "You are way too drunk to come in. Go and sober up somewhere else"?
A. No, that's not true.
Q. Do you recall ever shouting at patrons outside the club?
A. No, that's not true. I, I didn't have a chance to ascertain Mr Sleeman's sobriety because he walked away and refused to enter. I was in the process of trying to and he objected to being questioned by me and that's when he moved away, and I continued the conversation with his two friends, and they were in close proximity to me, so there was no need to raise my voice at all.
Q. Now, you say it's Mr Sleeman, how do you know it's Mr Sleeman? When did you see him?
A. Apart from seeing Mr Sleeman on the night, several weeks later, I'm not sure exactly when, Rod Innis explained to me that a complaint had been made to the media about him being refused entry for age discrimination and being too drunk. That's when I realised the entry and I pointed the entry out to Rod, saying, "This is who I think the entry is."
Q. So you made a connection, did you, in your mind
A. Yes.
Q. between the allegation of well, the media interest
A. Yes.
Q. and what had happened
A. Yes, due to his
Q. and recorded in this entry?
A. Sorry, yes.
Q. When did you first know that it was a person called Mr Sleeman?
A. I went to the, the ADT a while ago, February, and I saw Mr Sleeman in court.
Q. Are you sure that he's the person that relates to this entry?
A. Yes, I am. I am.
Q. Or the incident log?
A. Yes, I am.
Q. Are you sure that he's the person that you just spoke about to her Honour that said certain things on 23 December 2011?
A. Yes, I am." (T 191-193)
Mr Unwin's evidence was that he remembered the plaintiff, whom he first noticed when he and his companions had attempted to enter the nightclub without queuing up. He made the point, a number of times during his evidence, that there were three men (he had no recollection of there being four men) who were big and strong, a matter of some concern to him since he weighed 75kgs and was of more slender build. From observation in the courtroom, this is an accurate description of the build of Mr Clifford, Mr Everingham and the plaintiff. Mr Everingham is a former champion athlete, and he and Mr Clifford, who are partners, are very actively involved in sports. The plaintiff is a sports journalist; his history is one of active participation in sport related activities. Mr Kemp, who is just into his twenties, looked his age or younger, and also looked to be fit and strong.
Mr Unwin denies speaking the words complained of (T 192) or being aggressive (T 195) or shouting (T 192). In particular, he said he did not refuse the plaintiff permission to enter because of his age:
"Q. So did you exclude him because he was mature age?
A. No." (T 193)
He went on to say in cross-examination that he had never refused any person because of their age as this would have been contrary to the purpose of the nightclub, which played "retro" music from the 1970s and 1980s, and had regular attendees of a mature age, including patrons in their fifties, sixties and even seventies (T 188).
Mr Unwin said that following these events he filled out the incident log (Exhibit 5). Mr Unwin said he filled out incident number 480265 (and also the second entry, 480266, in relation to another incident) on the night in question shortly after these events occurred. This entry reads:
"Refuse male. Refused to line-up. Lined up & then want [went] in. Male abused security & said he would publicly defame our names in newspaper."
The third defendant, Mr Innes, is the licensee of the nightclub. He described having a conversation with Mr Unwin that same night, in which Mr Unwin told him that he had had to refuse entry to someone. He thought he had this conversation early in the morning of 24 December:
"Q. I can put to you this though, I think. Do you agree that it would be most unlikely that you, the licensee of the premises, and the security guard, who was on duty at the time of this incident, would not have - I withdraw that. When was it again that you spoke to Clint Unwin on the night?
A. On the 23rd, 24th?
Q. 23rd.
A. Or 23rd/24th. Somewhere - it was 1, quarter past, half past 1 or somewhere around there.
Q. At the time you spoke to him he had already filled in the incident log?
A. Yes.
Q. Are you aware of what time he put in on the incident log?
A. To be honest, no. I can't remember.
Q. Well, have a go, putting it all together.
A. It would have been, it would have been about half an hour, 40 minutes beforehand, so 12.15, 12.30.
Q. Just one sec. Sorry, your Honour, I just wanted to clarify an answer. All right. So sitting there in the witness box, you were at first unsure of the time he might have put it in the incident book, but you gave an answer 12.15 or 12.30.
HER HONOUR: No. What he said was he couldn't remember and you asked him to have a guess.
EVANS: Right.
...
Q. Now, did you have cause to - I withdraw that. Did you do one of your visits to the door - I withdraw that. When did you first see the incident log, if at all?
A. When Clint come down and told me about it, about the incident.
Q. Now, he would have needed to be away from the door at that point?
A. Correct.
Q. What was the arrangement made for someone to be on the door while he was downstairs?
A. The other security - Harry was on the door.
Q. Is it your recollection that Clint Unwin spoke to you downstairs at the time, around the time that he entered the incident log?
A. Yes.
Q. And is the reason you say that be he was generally needed on the front - someone was needed on the front door and he needed to get back to the front door when he could?
A. I don't understand what you mean.
Q. Well, is it the case that Clint Unwin was the - you say he was regularly on Friday nights, don't you?
A. Yes.
Q. Now, could he, while on duty and whilst not undertaking a sweep of downstairs or other duties - first of all, how long would a sweep of downstairs take, do you say?
A. Anything from two minutes to 10, 15.
Q. Are you aware that he was doing a sweep around about the time he filled in the incident log or not, of whether he was?
A. That's what he was doing. He said to me, "I've just gone through the venue and I just wanted to fill in this incident book."
Q. He said, "I'm just going through the venue."
A. No, he's just been through.
Q. Just been through, sorry.
A. Because he had been through the venue to come out to the office.
Q. "Just been through the venue. Going to fill in this incident log", something like that. Okay.
Q. Did he tell you when he - go ahead. Have some water.
A. No, you're right.
Q. Sorry. Okay. So "just been through the venue", you understood to mean he had done a sweep of the venue?
A. Yes.
Q. A security sweep of the venue?
A. Yes.
Q. And what does that involve?
A. Just checking to see intoxication, smoking, open-toe shoes, anyone fighting and that the ladies are using the ladies' and the men are using the men's.
Q. A very elegant way of putting it, if I may say, Mr Innes. Now - unless I misunderstood, of course. Now, see the
CHRYSANTHOU: Even I understood that.
EVANS: Thank God for that. Right. Good.
Q. Did you have an idea? You've said generally it might take two to 10 minutes to do a sweep?
A. Generally.
Q. Do you have any reason to know how long that particular sweep had taken?
A. No, not at all.
Q. Well, as the regular security guard on the door, whether he was doing a sweep or something else for the venue or for his employer within the venue, it would have been important for him to get back on the door quickly, as quickly as he could, wouldn't it?
A. Yes.
Q. If I put to you that during the period we're talking about, this period from probably half an hour to 40 minutes before 1.15, if I put to you that Clint Unwin didn't make a security sweep during that period, what would you say to that?
A. That particular security sweep? I know he did.
Q. You know he did?
A. Yes.
Q. And how are you sure it was a security sweep?
A. Because I was in the office and we have cameras right above where I was standing.
Q. And what do the cameras show you with regards to--
A. The whole venue.
Q. But what did the cameras show him doing?
A. Walking through.
Q. But a security log is a important document, isn't it?
A. Security log? Incident report?
Q. Incident log.
A. Yes." (T 363-366)
Mr Innes went on to say:
"Q. You said he went downstairs. Originally your evidence was that he went downstairs to do a sweep and - I'll just see if I can get the words of the conversation from my note. Well, he referred to doing a sweep, didn't he, and that he was filling in the incident log, didn't he?
A. Yes.
Q. "Just been through the venue. I'm going to fill in this incident log."
A. That's when he told me what the, what it was about.
Q. Good. Now, your original was that he said he was about to, and now you say that he already had.
A. The incident log has got two parts to it.
Q. Yes.
A. The first part, which is a, a, a short summary of what happened, and the second part is the, well, it's the log part of it. That's what he was coming in to fill out, the log part. He'd already filled out the incident. That's why, and then that's when I said to him, "There's no point. There's nothing to, nothing to put, nothing to put in there."
Q. He'd already put the short summary--
A. Yeah, the--
Q. --of what had happened and he was putting in the log part?
A. He was about to put the log in.
Q. What do you mean by the log part?
A. That's if - each one is numbered and then there's a, at the end of the book there's another page that corresponds with that number which you can put a full report into it.
Q. So did he ever - right, I'll withdraw that. So he was telling you, "I've done the short bit."
A. Mm-hmm.
Q. "I'm about to fill in the long bit of the log book."?
A. Mm.
Q. And have you ever seen the long description of the--
A. No, because I told him not to both.
Q. You told him not to bother?
A. Yeah.
Q. Aren't you required to fill in that part of the log book?
A. No, because there was nothing really to report on there. It was that somebody was going to name and shame. I said, "Oh, don't worry about it. Just, you know, it'll, it'll - that's when he had, had - that's when we had a laugh about it. I said, "Oh, don't worry about it. It's someone just being smart."
Q. Now, what you've referred to as the longer description of the incident at the back of the book--
A. Yeah.
Q. --could that be what I've been referred to as the venue incident log?
A. That's all in one - it's all the security log. It's all the same book.
Q. Okay.
A. Yeah.
Q. But is there some kind - there's an obligation, you accept, to fill in the short description part with the sequential numbering?
A. The only, the only time you need to fill in the long is if there is a major incident. Someone's had a fight. They've cut themselves. They've thrown a glass at someone, if you need a more detailed description of a person or something like that.
Q. You didn't require him to fill in the long description at the back of the log book at that time. Did you ever require him to do so?
A. No.
Q. So as far as you know, Clint Unwin didn't create another document between the short entry here in the log book and then the longer log book entry at the back of the book?
A. No. No.
Q. You've never seen an account of this incident?
A. Only what's, only what's in the, the short version there.
Q. All right. Now, when he was telling you what it was about, he would have told you, wouldn't he, whether Mr Sleeman, who's the plaintiff in these proceedings - as I'm sure you know by now--
A. Yes.
Q. --whether he came in to the venue or not, whether he actually stepped in the doors of the venue?
A. No, his words were, "Oh, you might get a complaint about me later because I refused, refused this guy because he was drunk and he threatened to name and shame us," and that's when I just went, "Yeah, right," and that's my exact, that's - and then that was it; that was the end of it. And he, that's all he wrote down on there.
Q. When as the next time - I apologise if you've said this before. When was the next time or the first time you saw the entry in the incident log?
A. Well, that was then.
Q. So you did have a look at it?
A. Well, he just put it up in front of me; that was about it." (T 377-379)
Mr Unwin was not cross-examined about this conversation, about which he did not give evidence. His evidence was that he thought no more of these events until Mr Innes spoke to him later in January.
The plaintiff was asked about the accuracy of Incident Log 480265:
Q. And does it have an incident number?
A. Yes. 480265. It says location door, reported by Armen [Transcription error: Unwin].
Q. Could you read out the number again?
A. 480265.
Q. And if I told you that purported to be an incident log of the incident, what's your reaction to that?A. There's no resemblance to what happened at all. Completely unrelated to the incident involving me.
Q. Why do you say that?
A. Well, it says refused to line up. Well I never refused to line up, I just stood in the queue as per normal and wasn't animated in any way, so I stood as anyone would stand in a queue. So it says refused to line up, and it says lined up and then went in. Well, I never got near the entry to the club, because the doorman told me I couldn't go in. So it says then went in, and when - and then went in, well, I never went into the club. It says male abused security. At not point did I abuse security or say a word to security other than on the way out when I spoke quietly to him about the discrimination that had just occurred. Then it says - and said he would publicly defame our names in newspaper, and I never at any stage said that. And no mention of the fact that I'd been accused of being intoxicated. So there's a box here for intoxication, that's not ticked. There's a box here for refuse entry, that's not ticked. It just - it's - there's no resemblance whatever, it simply is unrelated to the incident involving me." (T 48-49)
The reference to "Armen" is the signature of Mr Unwin. The reference to the box for "refuse entry" and the box for "intoxication" not being ticked are, I consider, significant. They support the evidence of Mr Innes about the conversation he had with Mr Unwin, and Mr Unwin's evidence that he was still in the process of determining what to do when he spoke to the plaintiff.
Ms Evans submitted that I would reject this document as being a forgery or, alternatively, as being so obviously wrong that it was a hopelessly inaccurate record. She particularly relied upon the reference to the fact that the document said "then went in". The plaintiff did not in fact go in, although Mr Clifford and Mr Kemp had been told they could go in.
This was a document filled out in haste by a security guard who said he was at the time in a state of some anxiety. It was a very busy night, being the last night of trading before Christmas Eve. It was filled out in circumstances similar to hospital and emergency records, where the maker of the record has other concerns; in the present case, these were safety issues because of the possibility of inebriated or violent persons seeking entry to licensed premises, in circumstances where Mr Unwin was the security guard expected to keep them out.
Trial judges have repeatedly been warned against over-literal interpretations of the informalities in documents filled out in haste by persons processing information in busy situations, such as ambulance officers or hospital emergency admissions staff (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [55] - [57] and Gulic v O'Neill [2011] NSWCA 361 at [24]).
I am satisfied that this record, despite the alteration of the time and informal language, was filled out on the night in question by Mr Unwin, who signed his name at the end, and that the reference to the response of the person refused entry about media publicity is strongly indicative that this person was the plaintiff. Given his subsequent conduct in contacting the Star Observer newspaper about this incident, I am of the view that the plaintiff did in fact say words to this effect to the security guard. I am also satisfied that, as a contemporaneous document, this document is the best record of what in fact occurred. I also consider the evidence of Mr Innes about his conversation with Mr Unwin on the night in question to be a reliable account of the circumstances in which Mr Unwin drew these events to his attention.
The plaintiff challenges whether the security guard was Mr Unwin at all. He gave evidence that the security guard who stopped him entering was very different in appearance.
Description of the security guard's appearance
The plaintiff challenges that Mr Unwin was the security guard in question. He stated that the security guard was of Islander or Middle Eastern appearance, about 1.8 metres tall, and heavy-set. He thought he saw someone who looked like this sitting in the public area during the Administrative Decisions Tribunal hearing, but this person turned out to be a Mr Negaren (T 181), a director of the security company which employs Mr Unwin, who had attended the Administrative Decisions Tribunal in that capacity. There is no suggestion that Mr Negaren worked as a security guard or was present on the night in question.
Mr Everingham's description of the guard was closer to the appearance of Mr Unwin. He described the security guard as Mediterranean (Exhibit 13, p 44) but, when shown a photograph of Mr Unwin, he said that he "could be" the security guard they saw on the night (T 444). He thought the security guard was wearing a white shirt and black pants.
Mr Kemp said the security guard was "a big Islander guy" (T 302) and was neither Middle Eastern nor Mediterranean (T 303, 313, 319). He thought the security guard was wearing a black button-up shirt, black pants and boots, and an ID. He said the guard did not look anything like the photograph of Mr Unwin (T 319).
Mr Kemp's evidence of the events on the night in question is, I find, less reliable than the evidence of Mr Clifford and Mr Everingham. I am satisfied that Mr Kemp was with Mr Clifford, heading into the club entrance, and that neither of them saw or heard the security guard speak to the plaintiff, or knew what had happened, until Mr Everingham called them back.
Mr Clifford said that the security guard was of Middle Eastern appearance or "kind of Islander-ish" (T 468). These are two very distinct racial types. In addition, Mr Clifford could not give any other details of significance concerning this security guard's appearance or apparel. Mr Clifford, when shown the photograph of Mr Unwin and another security guard (Exhibit 3), said the guard in question had the build of the person standing on the right of Mr Unwin (T 483 line 23), whom Ms Chrysanthou identified as a Mr Arnold in her submissions. There is no suggestion that he was working with Mr Unwin that night. Contrary to the evidence of Mr Kemp, the gentleman identified in Exhibit 3 as looking like the security guard on the night in question could not be described as a big muscular Islander.
There was no challenge to Mr Innes' evidence that no guard of Islander appearance (whether 1.8 metre tall or otherwise) worked at the Palms on Oxford in December 2011 (T 348).
The security guard who was working with Mr Unwin on 23 December 2011 was a Mr Harpreet (Harry) Gill, who was considerably shorter than Mr Unwin, of Indian/Pakistani appearance, and not overweight (T 340, 189). Mr Gill did not report any incident to Mr Innes that night (T 341) and no notes of any incident appeared in the incident log under his hand (Exhibit 5), both of which confirm that Mr Unwin carried out the writing up of incidents. Mr Gill has not worked at the Palms on Oxford since approximately February or March 2012, when he was reallocated on the security guard roster (T 190, 340).
The plaintiff's complaint to the Star Observer
Mr Innes received a telephone call on Monday 9 January 2012 from the Melbourne editor of the Star Observer, Ms Noonan. According to Mr Innes' affidavit of 27 September 2012 (paragraph 5), Ms Noonan referred to an incident in which a male had been refused entry to the club "on Christmas Eve" (Exhibit 8) and claimed that age discrimination had been levelled at him by the security guard. Mr Innes asked Ms Noonan to send an email in relation to the issue, and said that he would respond after he had made further enquiries. He received an email inquiring about the events and responded that the club "does not and has not discriminated against persons for any reasons let alone someone's age" (Exhibit 9). He also stated that the club was closed on the date given, namely Christmas Eve (24 December). Following Ms Noonan's 10 January correction of the incident date to 23 December (Exhibit 8), he had a conversation with Mr Unwin, as indicated in Mr Innes's email in reply (Exhibit 8), and the incident book entry was located. This chain of emails confirms the existence of the incident book and the second conversation Mr Innes had with Mr Unwin.
I shall include some brief observations on the subject of quantum.
Quantum
While damage is presumed (Bristow v Adams, supra, at [20] - [31]), this is a limited publication to between one and three recipients (depending upon how many of the plaintiff's friends heard what was said) in circumstances where, as Mr Everingham stated, the allegation that the plaintiff was drunk was dumbfounding.
The defendants submit that this was a case that should never have been brought, as the costs far outweigh any benefit to the plaintiff. This is a familiar complaint in defamation litigation (Bristow v Adams [2011] NSWDC 11) but it is one with which appellate courts have little sympathy: Bristow v Adams at [41] per Basten JA. The summary procedure for dismissal of actions on the basis of disproportionate costs (Schellenberg v British Broadcasting Commission [2000] EMLR 296) has been decisively rejected by the New South Wales Court of Appeal.
Publications to one or more persons are a feature of Australian defamation actions. No judicial comment was made, in Cush v Dillon; Boland v Dillon, supra, or Jones v Sutton, supra, to the effect that publication of a few words, to one to three persons whose response was sceptical or disbelieving, was an action that should not have been brought. Accusations of public drunkenness to the extent that the plaintiff should be refused admission to licensed premises, although not as serious as allegations of adultery, or of improper conduct by an alderman, are not accusations warranting nominal damages.
The damages awarded in both Cush v Dillon; Boland v Dillon, supra, and Jones v Sutton, supra, were $5,000. Both those decisions were handed down prior to the imposition of a cap on damages in defamation, which was introduced to discourage inappropriately high verdicts. In Jones v Sutton, supra, there was evidence of the "grapevine effect", as there has been here; moreover there were three publications, and not merely one.
In Haddon v Forsyth, supra, at [369], a claim for damages brought under the current legislation, Simpson J stated she would have awarded $5,000 for a publication to 5 - 10 people accusing the plaintiff of sexual harassment. Claims for damages in defamation are now conducted on principles appropriate for a cap on damages. In Jeffrey v Giles [2013] VSC 268, where extensive evidence of grapevine effect and damage in a local community arising from website publications was led, damages of $8,000 and $12,000 were awarded to each of the plaintiffs.
I take into account the principles explained by the High Court in Rogers v Nationwide News Pty Ltd, supra, at 347 per Hayne J, and the provisions of s 34 regarding an appropriate relationship between the harm sustained and the amount awarded. Whether there was publication to one or three persons, or to a queue of more than a dozen, or to the many passers-by, I am satisfied that an appropriate sum to award would be $3,000. This amount would also take into account the "grapevine effect" of publications coming to the attention of the plaintiff's professional associates such as Mr McDermott. Many of these publications were, I find, made by the plaintiff himself, such as his conversation with Mr Tim Webster, and thus not compensable.
Aggravated compensatory damages should not be awarded. The particulars relied upon are knowledge of falsity and the allegation that the security guard knew the plaintiff was sober. Neither of these particulars would justify an award of aggravated compensatory damages: Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182 at [49] - [62]. Nor would the conduct of the trial by the defendants (about which submissions were made, but which was not particularised; see Gatley on Libel and Slander at [34.58]) warrant the award of such damages; see Jeffrey v Giles, supra, at [57].
Concluding remarks
I have found that the matter complained of was not published, but that if it were, none of the defendants is vicariously liable for the statements of the security guard, whether he was Mr Unwin or some other security guard employed by ADCAS Pty Ltd. I have also made alternative findings that if the matter complained of were published, the three imputations conveyed by the natural and ordinary meaning are defamatory, but published on occasions protected by qualified privilege at common law and pursuant to s 30 of the Act, and that the plaintiff has failed to prove any of the defendants were malicious. I have also held that the defences of triviality and offer of amends have been made out but that the defence of honest opinion would fail in relation to the imputations arising by way the natural and ordinary meaning. In the event that damages were to be awarded, I would have awarded $3,000. I would not have awarded aggravated compensatory damages.
Orders
(1) Judgment for the defendants.
(2) Plaintiff pay defendants' costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.
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Decision last updated: 19 June 2013
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