Smith v Stevens
[2018] WASC 95
•29 MARCH 2018
[2018] WASC 95
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | SMITH -v- STEVENS [2018] WASC 95 |
| CORAM | : TOTTLE J | ||
| HEARD | : 10 APRIL 2017 | ||
| DELIVERED | : 29 MARCH 2018 | ||
| FILE NO/S |
| ||
| BETWEEN | : KENZIE SMITH |
Plaintiff
AND
WAYNE STEVENS
Defendant
| FILE NO/S | : | CIV 2685 of 2015 |
| BETWEEN | : GLEN CAMILLE |
Plaintiff
AND
WAYNE STEVENS
Defendant
[2018] WASC 95
Catchwords:
Defamation - Defences - Qualified privilege - Document published to directors of corporation - Whether publication actuated by malice - Whether improper motive dominant purpose of publication
Legislation:
Defamation Act 2005 (WA), s 30
Result:
Damages awarded to plaintiffs
Category: B
Representation:
CIV 2684 of 2015
Counsel:
| Plaintiff | : | Mr R I Viner QC |
| Defendant | : | Mr D M Ryan QC & Mr T Greenway |
Solicitors:
| Plaintiff | : GV Lawyers |
Defendant : Shayne Daley & Associates
CIV 2685 of 2015
Counsel:
| Plaintiff | : | Mr R I Viner QC |
| Defendant | : | Mr D M Ryan QC & Mr T Greenway |
Solicitors:
| Plaintiff | : GV Lawyers |
Defendant : Shayne Daley & Associates
[2018] WASC 95
Case(s) referred to in decision(s):
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004)
218 CLR 366
Broome v Cassell & Co Ltd [1972] AC 1027
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Habib v Nationwide News Pty Ltd [2010] NSWSC 924; (2010) 78 NSWLR 619
Horne v Milne (1881) 7 VLR 296
Horrocks v Lowe [1975] AC 135
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50
Marshall v Smith [2013] WASC 452
Megna v Marshall [2010] NSWSC 686
Papaconstuntinos v Holmes a Court [2012] HCA 53; (2012) 249 CLR 534
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Ratcliffe v Evans [1892] QB 524
Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Sungravure Pty Ltd v Middle East Airlines Airlban SAL [1975] HCA 6; (1975)
134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Toogood v Spyring (1834) 149 ER 1044
[2018] WASC 95
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TOTTLE J:
Introduction
In March 2015 Mr Glen Camille and Mr Kenzie Smith who are the plaintiffs in these actions, and the defendant, Mr Wayne Stevens, were directors of Wintawari Guruma Aboriginal Corporation RNTBC (the Corporation). Mr Camille was the Manager of the Corporation.
On 31 March 2015 the defendant sent an email to Mr Tony Bevan, another director of the Corporation, attaching a document entitled 'WGAC directors meeting Wednesday the 1st April 2015'.1 The email and attachment were also sent to Mr Camille, his sister Ms Celestine Camille, who was employed by the Corporation in an administrative capacity, Mr Smith, and six other people, all of whom were directors of the Corporation.
The attachment contained statements which Mr Camille and Mr Smith allege were defamatory of them. Their solicitors invited the defendant to make amends for the defamation by providing an apology in terms proposed by the plaintiffs' solicitors. No apology was provided and the plaintiffs commenced their actions on 22 October 2015 seeking damages for defamation and injunctions restraining the defendant from further publishing the statements. The actions were heard together.
The defendant does not argue that the statements were true.2 He contends he has a defence to the claim, namely that the statements were published on an occasion of qualified privilege and thus cannot found an action for damages for defamation. The defence of qualified privilege at common law requires that both the maker and the recipient of a defamatory statement have an interest in what is conveyed, often referred to as a 'community of interest'. The interest may be founded in a duty to speak and to listen to what is conveyed.3 The defendant contends that he and the recipients of the attachment had a common interest, namely the corporate governance of the Corporation. The defendant relies primarily on the common law defence of qualified privilege but he also relies on the defence of qualified privilege under s 30 of the Defamation Act 2005 (WA).
1 Ex D5.
2 Defences of contextual truth to some of the defamatory imputations were not pressed.
3 Papaconstuntinos v Holmes a Court [2012] HCA 53; (2012) 249 CLR 534 [8] (French CJ, Crennan, Kiefel
and Bell JJ).
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The plaintiffs deny that the statements were made in circumstances that attract the defence of qualified privilege but say that even if that was so, the defence of qualified privilege is not available to the defendant because when he made the statements he was actuated by express malice, that is, he made the statements for an improper purpose with the intent to injure the plaintiffs' reputations.
There are four issues:
(i) Were the statements made by the defendant in the document entitled 'WGAC directors meeting Wednesday the 1st April 2015' defamatory of the plaintiffs?
(ii) Were the statements made on an occasion which was privileged?
(iii) Does the defence of qualified privilege fail because the defendant was actuated by malice when making the statements?
(iv) If the defence of qualified privilege fails what damages should be awarded?
I have found that the statements were defamatory of the plaintiffs but that they were made on an occasion that was privileged. I have found, however, that in circulating (publishing) the document the defendant was actuated by malice in the form of an intention to injure Mr Camille's reputation. The defendant's qualified privilege defences fail. I have decided that Mr Camille should be awarded damages in the sum of $10,000 and that Mr Smith should be awarded damages in the sum of $3,000. I explain my reasons for arriving at these results in the paragraphs that follow.
The background
The background was not controversial. The following account is derived from admitted facts, contemporaneous documents and Mr Camille's evidence about the background that was largely undisputed.
The plaintiffs and the defendant are Aboriginal persons who by traditional law and custom identify as and are accepted as Eastern Guruma people. As Eastern Guruma people the parties are the holders at common law of native title rights and interests (the Eastern Guruma
[2018] WASC 95
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Native Title). The Corporation is a Registered Native Title Body Corporate incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and is registered under the provisions of the Native Title Act 1993 (Cth) to hold and manage the Eastern Guruma Native Title on trust for the Eastern Guruma people.
The Eastern Guruma people comprise members of four families.
Eastern Guruma Pty Ltd was incorporated in April 2005.4 Its shareholders are representatives of the four families. It is a trading company. Prior to 2012 it appears that Eastern Guruma Pty Ltd undertook heritage surveys on behalf of the Corporation. Expressed in neutral terms it appears that there was concern amongst at least some members of the Corporation that the trading activities of Eastern Guruma Pty Ltd should be undertaken by a company wholly owned by the Corporation and that the activities of such a subsidiary should be subject to oversight by the Corporation's board of directors.
Two charitable trusts have been established for the benefit of the Eastern Guruma people.5 The Eastern Guruma Charitable Trust No 2, sometimes referred to as the AET Trust or the Plan B Trust, was established in 2000 (AET Trust).6 The Eastern Guruma Charitable Trust, sometimes referred to as the Pascoe Trust, was established in 2012 (Pascoe Trust).7 Royalty payments from Rio Tinto are paid into the AET Trust. Royalty payments from other companies are paid into the Pascoe Trust. Distributions are made from both trusts to Eastern Guruma people.
In 2010 Mr Camille became a director of the Corporation.8
In late 2012 the directors of the Corporation received advice to the effect that the Corporation should set up a company to administer the day to day running of the Corporation and to conduct heritage surveys on its behalf.9 Before 2012 the Corporation had been dormant.10 Setting up an administration company was part of a process described by Mr Camille as getting the Corporation 'up and running'.11 Advice was provided by consultants as to what was required to get the
4 Ex P1 vol 4 tab 114.
5 Ex P1 par 50.
6 Ex P1 vol 1 tab 1.
7 Ex P1 vol 1 tab 9.
8 Ex P1 par 2.
9 Ex P1 par 104.
10 ts 83.4.
11 Ex P1 par 85 - 92.
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Corporation 'up and running'. It was contemplated that the AET Trust would provide funds for the administration company as part of the process of getting the Corporation up and running.12
In November 2012 Mr Camille was appointed to the position of Acting Manager of the Corporation.13
In March 2013 Eastern Guruma Administration Pty Ltd and Eastern Guruma Administrative Services Pty Ltd were incorporated. The incorporation of these companies was organised by Mr Geoffrey Dutton of the Corporation's accountants, Pascoes. Mr Camille was appointed a director of both companies.14 He was also issued with one ordinary share in the capital of each of the companies. Mr Smith and Ms Cynthia Dunn were also appointed directors of each company and both were issued with one share in each company. Documents lodged with the Australian Securities and Investment Commission record that the shares in the companies were held by the shareholders beneficially. It is not clear why two companies were incorporated.
Eastern Guruma Administration Pty Ltd provided administrative services to the Corporation. It opened a bank account. It organised heritage surveys on behalf of the Corporation and amounts due to it for the surveys and other activities were paid into its account.15 As will be explained below, from time to time payments due to Eastern Guruma Administration Pty Ltd were made into the Pascoe Trust, and payments for royalties that should have been paid into the Pascoe Trust were made into the account of Eastern Guruma Administration Pty Ltd. In the attachment to his email of 31 March 2015 the defendant focussed on two payments made in May 2014. The first was a payment of $10,000 from the Pascoe Trust to Eastern Guruma Administration Pty Ltd. The second was a payment of $40,927 from the Pascoe Trust to Eastern Guruma Administration Pty Ltd. In these actions it was accepted that the payments were made to correct mistakes.
On 21 March 2013 Mr Camille was appointed Manager of the Corporation for a term of two years.16
| 19 | At the Annual General Meeting of the Corporation held on 15 April 2013, Mr Camille, Mr Smith and the defendant were elected to |
12 ts 88.2.
13 Ex P1 par 113.
14 Ex P1 par 121.
15 Ex P1 par 172.
16 Ex P1 vol 2 tab 21.
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the board of directors of the Corporation. The defendant's brother, At a meeting of directors held later that day Mr Camille was elected chairperson of the Corporation (the defendant having moved the resolution that the plaintiff be so appointed) and the defendant was elected deputy chairperson. It was also resolved that directors be paid remuneration of $1,000 per day. 18
Under the heading 'Business Opportunities' in the minutes of the director's meeting held on 15 April 2013 various business opportunities were noted and it was recorded that:19
WGAC will be in competition with Eastern Guruma Pty Ltd, but there is plenty of space for this work.
Meetings of the board of directors of the Corporation were held on 31 July 2013, 18 February 2014, 15 May 2014, 4 July 2014, 11 August 2014, 10 November 2014, 12 January 2015, 11 February 2015 and 1 April 2015. The only meeting attended by the defendant was the meeting held on 18 February 2014.
Another entity, Wintawari Guruma Enterprises Pty Ltd, was incorporated in March 2014. Mr Camille, Mr Smith and Mr Damien Walker were appointed directors. Two ordinary shares in the capital of Wintawari Guruma Enterprises Pty Ltd were issued to the Corporation.20
The agenda for the meeting of directors of the Corporation held on 15 May 2014 included a reference to a presentation about Wintawari Guruma Enterprises Pty Ltd. The minutes for the meeting record that there was discussion about Wintawari Guruma Enterprises Pty Ltd and approval of an 'action list' listing the steps that had to be taken to establish Wintawari Guruma Enterprises Pty Ltd as a trading company.21 The action list also recorded that Mr Bevan and another person, Mr Phil Paul, were to be employed.22 The minutes recorded approval to seek funds for investment in Wintawari Guruma Enterprises Pty Ltd from the AET Trust.
| 24 | In late 2014 a controversy arose as to whether Mr Camille was permitted to chair meetings of the directors of the Corporation. The |
17 Ex P1 vol 2 tab 25. 18 Ex P1 vol 2 tab 27. 19 Ex P1 vol 2 tab 25. 20 Ex P3.
21 Ex P1 vol 2 tab 66. 22 Ex P1vol 2 tab 67.
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defendant maintained Mr Camille was not permitted to chair directors' meetings. It is unnecessary to detail the competing arguments on this issue.
On 6 January 2015 the defendant, his brother, Mr Guinness Stevens, and his sister, Ms Tania Stevens, commenced proceedings in the Federal Court of Australia against the plaintiffs.23 The statement of claim in those proceedings included allegations against the plaintiffs that:24
(i)
They procured the incorporation of Eastern Guruma Administration Pty Ltd and Eastern Guruma Adminstrative Services Pty Ltd without the knowledge or consent of the Corporation or the defendant, his brother and sister and without proper representation of each of the four families who comprised the Eastern Guruma people as required by traditional decision making processes.
(ii)
They caused the Pascoe Trust to pay moneys to Eastern Guruma Administration Pty Ltd without the knowledge or consent of the Corporation, the Eastern Guruma people or the defendant, his brother and sister. The payments alleged to have been made were a payment made on 1 May 2014 of $10,000 and a payment of $40,927 on 26 May 2014.
(iii)
They used the moneys paid by the Pascoe Trust to Eastern Guruma Administration Pty Ltd for their personal benefit or for the benefit of their associates without the knowledge or consent of the Corporation, the Eastern Guruma people or the defendant, his brother and sister.
(iv)
They represented to various mining companies and other participants in the mining industry that they or Eastern Guruma Administration Services Pty Ltd had been duly authorised to represent, act as agent of and exploit business opportunities on behalf of the Corporation or the Eastern Guruma People or both when they were not authorised to do so.
(v)
They procured the incorporation of Wintawari Guruma Enterprises Pty Ltd and Eastern Guruma Adminstrative Services Pty Ltd without the knowledge or consent of the Corporation or
23 Ex P8.
24 Ex P9 p 823 - 824.
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the defendant, his brother and sister and without proper representation of each of the four families who comprised the Eastern Guruma people as required by traditional decision making processes.
(vi) Without the authorisation of the Corporation they caused Wintawari Guruma Enterprises Pty Ltd to represent itself to mining companies and others involved in the mining industry as an agent and representative of the Corporation and the Eastern Guruma people and have sought to attract to Wintawari Guruma Enterprises Pty Ltd business opportunities available to the Corporation.
Two further allegations were made against Mr Camille. They
were as follows:25
(i) The plaintiff failed to give the defendant access to financial, operational and business records of the Corporation.
(ii) The plaintiff chaired meetings of directors of the Corporation whilst performing the role of chief executive officer in breach of rule 5.3 of the Corporation's Constitution.
The allegations made in the Federal Court proceedings were discussed at the meeting of directors of the Corporation held on 12 January 2015. The minutes record the discussion as follows:26
Federal Court Action
The remaining five Directors discussed the Federal Court action that had been brought by Wayne Stevens, Tania Stevens & Guiness [sic] Stevens against Glen Camille and Kenzie Smith for breach of Directors Duties.
The remaining Directors consider the claim by the three members of the Stevens family to be without foundation. In the opinion of the remaining Directors, both GC and KS have acted properly and at all times in the best interests of the Corporation.
The remaining Directors believe that there are personal agendas behind the claim and that it is important that they and the rest of the Eastern Guruma Community stand up for what is right. The Corporation and the Community as a whole also need to support the Directors that have been working to benefit the Community.
25 Ex P9 828 - 829.
26 Ex P1 vol 3 tab 87.
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In the remaining Directors opinion:
• The four companies mentioned in the claim were all established on the advice of the Corporations advisers and with the full knowledge of the Corporation Board; • GC and KS or their associates have not benefitted personally from the establishment of any of the four companies; • This Corporation has held annual general meetings in accordance with the CATSI Act; • There were no financial affairs of the Corporation to disclose at an AGM as the Corporation had no operations in its own right until around 1 August 2014. • At least two of the applicants would be aware of the above as they were Directors of the Board during this period. … Considering all of the above, the Board UNANIMOUSLY RESOLVED as follows:
That the Board fully supports the actions of Glen Camille and Kenzie Smith over the past two years as Directors of the Corporation and is satisfied they have at all times acted in the best interests of the Corporation.
That the Board would support a members' resolution being presented to the next annual general meeting seeking to cancel the membership of Wayne Stevens, Tania Stevens and Guiness [sic] Stevens while this Federal Court action against the directors continues. The cancellation of membership is on the grounds that their conduct is detrimental to the interests of the Corporation.
At a meeting of the board of directors of the Corporation held on 11 February 2015 Mr Bevan reported to the directors on Eastern Guruma Administration Pty Ltd and Eastern Guruma Administrative Services Pty Ltd. Mr Bevan's report and a resolution passed by the directors following the report are recorded in the minutes of that meeting as follows:27
TB reported on Eastern Guruma Administration Services Pty Ltd and Eastern Guruma Administration Pty Ltd. These companies were established in 2013 by the Board on the advice of the Corporation's advisors at the time to undertake heritage administration and pay administration salaries on behalf of the Corporation. The companies
27 Ex P1 vol 3 tab 88.
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have been administered and managed by Pascoe Partners Accountants. The Corporation has not been able to obtain necessary financial information on these companies and there are concerns with the administration and management of these companies by Pascoe Partners. It was noted that the companies are no longer operating as these activities are now conducted by the Corporation itself.
The Board RESOLVED that Tony Bevan on behalf of the Corporation and the individual directors of Eastern Guruma Administration Pty Ltd (EGAPL) and Eastern Guruma Administration Services (EGASPL):
• Obtain all of the books and records for the companies from Pascoe Partners; • Arrange for the companies to be wound up; and • Investigate the conduct of Pascoe Partners Accountants and report back to the Board.
On 26 March 2015 Ms Camille gave notice to the Corporation's directors of a directors' meeting to be held on 1 April 2015 at the Corporation's office in Karratha. The notice was given by an email from Ms Camille that attached the agenda for the meeting.28
The defendant responded to Ms Camille's email with an email of his own sent to all the directors. In his email the defendant said that 'due to the very short notice' and his commitments, in particular a Welcome to Country ceremony that he was due to perform, he was unable to attend the meeting in person but would like to participate in the meeting by telephone.29
Mr Bevan responded to the defendant's email and explained why the meeting had been scheduled on 1 April 2015 and that it was important for the defendant to attend the meeting in person or by telephone. He asked whether the defendant could find someone else to do the Welcome to Country ceremony but if he could not do so he could dial in to the meeting by calling one of the director's mobile phones.30
The defendant responded to Mr Bevan on 31 March 2015 by an email that read as follows:31
28 Ex P1 vol 3 tab 92. 29 Ex P1 vol 3 tab 92. 30 Ex P1 vol 3 tab 92. 31 Ex P1 vol 3 tab 92.
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33
Hi Tony,
please see attached further questions and points I'd like to table and discussed [sic] and questions answered please. Also please send your phone number so I can ring in tomorrow. cheers thanks
Wayne Stevens
As noted at the commencement of these reasons the email and its attachment were sent to all the directors of the Corporation and to Ms Camille. Mr Bevan is not an Eastern Guruma person but all of the other directors and Ms Camille are Eastern Guruma people.
The defendant's attempts to participate in the directors' meeting on 1 April 2015 were unsuccessful.
An Annual General Meeting of the members had been convened to take place on 2 April 2015. Before the meeting the defendant sent an email to the directors of the Corporation complaining that he had been excluded from participating in the directors meeting held on the previous day. In his email the defendant stated:
I will be tabling the document that I have sent to the WGAC board of directors yesterday at the AGM today. I will also be seriously considering to make public the documents informing the wider media conglomerates of this effective and expressive matter.32
At a meeting of the directors of the Corporation held on 27 May 2015 Mr Bevan provided a further report on Eastern Guruma Administration Pty Ltd. Mr Bevan's report is recorded in the minutes as follows:33
3) Eastern Guruma Administration Pty Ltd (EGPL)
GC & KS declared and interest in this matter and stated that they would not be voting on any resolutions proposed.
TB provided the following background information for the Board:
•
The Board have previously acknowledged the Corporation's responsibility for the establishment and activities of this company that was administered and managed by Pascoe Partners and Mr Jerome Frewen.
32 Ex P1 vol 3 tab 96.
33 Ex D1.
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• EGPL was established in March 2013 to undertake heritage survey administration and the payment of administration costs. The company had ceased trading in July 2014. TB advised the books and records for the company had finally been obtained from Pascoe Partners on 6 May 2015 and that these were currently being checked. • The winding-up order being sought by the ATO had been adjourned to 9 June 2015 to allow the Corporation time to consider the payment of the amount owing.
The Federal Court proceedings were dismissed by consent on 8 July 2016 and the defendant, his brother and sister were ordered to pay the costs of the proceedings.34
On about 31 October 2016 the defendant sent a letter to members of the Corporation in which he commented upon a number of matters. Some of the matters addressed in the letter were matters addressed in the attachment to his email of 31 March 2015. The defendant did not, however, repeat the more serious allegations made by him in the attachment.35
The attachment to the 31 March 2015 email
The attachment to the defendant's email was in the following
terms.
WGAC directors meeting Wednesday the 1st of April 2015.
Further points to be tabled and discussed.
• Chairing of the WGAC directors meeting:
•
Before the meeting commences I would like to know who will chair the meeting as Glen has already on two occasions declined to chair the pass [sic] two WGAC directors meeting [sic] due to his conflict re occupying both roles (chairperson and Manager of WGAC) which ORIC has agreed and confirmed that this conflict is legitimate and is of breach of [the] WGAC rule book.
•
Under the WGAC rule book clause 5.18 Chairing and conduct of directors' meetings.
34 Exhibit P2.
35 Ex P1vol 4 tab 113.
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(a)
The chairperson or deputy chairperson will chair directors' meetings. If they are not available, the directors can elect someone to chair the meeting. If they don't the members must elect someone.
(e)
Subject to these rules, the procedures and order of business to be followed at a directors' meeting shall be determined:
(i)
By a meeting protocol developed by the directors; or
(ii)
Otherwise by the directors present at that director's meeting.
•
Court proceedings against Glen Camille and Kenzie Smith on foot:
•
The WGAC directors need to be mae aware of this court case that [is] being brought by me, Tania Stevens and Guiness Stevens against Glen and Kenzie for mismanaging and inappropriate dealings of the WGAC and its resources.
• Court case on the conducts [sic] of Glen Camille:
•
The setting up of the Eastern Guruma Administration Pty Ltd.
•
This company was registered and [sic] 27 February 2013.
•
Its directors are Glenn Camille, Kenzie Smith, and Cynthia Dunn - each of these individuals own one of the three issued shares in this company.
•
This company was established without the knowledge of many WGAC members including many of the other directors of WGAC.
•
Additionally this company has been paid substantial sums of money from the Eastern Guruma Charitable Trust;
•
For example the Bank Register prepared by Pascoes for the Eastern Guruma Charitable Trust shows $10,000 was paid by the trust to this company on 1 May 2014 - why and what for?
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•
Further payments of $40,927 were paid on 26 May 2014 - why and what for?
•
The day before this payment was made to this company of Glen, Kenzie and Cynthia - API management Pty Ltd paid to the trust the sum of $40,927 - so why is the money that is being paid by mining companies to our PBC is being paid in to the company of three Gurrama individuals.
•
Additionally Geoff Dutton from Pascoes said that the regular payments of mining benefits from mining companies to the Eastern Guruma Charitable trust have fallen away from very significantly in recent times.
•
Despite this fact the mining companies are clearly still paying mining benefits...but to whom?
•
It would seem these mining companies are now paying PBC moneys to some other entity which may well be Eastern Guruma Administration Pty Ltd the company Glen, Kenzie and Cynthia are owner's of.
•
If the above information are [sic] correct, Glenn Camille and Kenzie Smith are likely to be in breach of their duties referred to above and under the rulebook, the provisions of the CATSI act and the laws relating to fiduciaries and trustees.
• Eastern Guruma Administration Services Pty Ltd;
• This company was registered on 19 March 2013. •
Its sole directors and shareholders are Glen Camille, Bevan Hicks and Cynthia Dunn.
•
Again company was established without your knowledge and apparently without the knowledge of many others including many of the other directors of WAGC.
•
We do not know what this company does although it is suspected that it has been invoicing parties for work purportedly done by it and various providers of heritage services.
•
If this is correct, Glenn Camille and Kenzie Smith are, again likely to be in breach of their duties as referred to above under the rulebook, the provisions of the CATSI act and the laws relating to fiduciaries and trustees.
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• Wintawari Guruma Enterprises Pty Ltd
• This Company was registered on 17 March 2014. • Its directors are Glen Camille, Kenzie Smith and Damien Walker and its secretary is Anthony Bevan. • Its two issued shares are said to be held by WGAC. Why is the WGAC setting up another company to compete with the Eastern Gurrama Pty Ltd (EGPL) - this is silly and stupid management of the WGAC.
The EGPL is owned by the 4 family group members - the
Stevens, Hicks, Hughes and Smith/Connors.The dividends paid by the EGPL are divided equally to these 4 family groups, as past history will prove.
• Conducts [sic] of Glen Camille and his supporters:
•
In our pursuit of our court case the conduct of Glenn Camille breaches almost all, if not all, of the various Rule Book provisions, CATSI Act provisions and Fiduciary and Trustee duties described above.
•
Our court case against Glen, are for the actions regarding the set-up of his companies and his management and chairperson duties which we believe are in breach of fudiciaries [sic] duty and as well of [sic] the WGAC rule book.
•
We also believe that his conducts are deceptive and misleading and they are calculated to deceive and mislead the WGAC directors and members into thinking that these individuals are at all times acting as the authorized agents and in the best interest of the WGAC.
•
This conduct may well be dishonest by Glen and Kenzie.
•
The setting up of these private companies with Glen Camille as the main director with other persons as directors and diverting moneys to those companies, which is actually dishonest and it raises the possibility of criminal charges.
•
Furthermore Glen and Kenzie failed to declare a conflict of interest.
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•
Glen and Kenzie not acting bona fide and in the best interests of WGAC while a director.
•
Glen and Kenzie improperly obtaining a benefit while a director.
•
Glen improperly obtaining a benefit and privately dealing with heritage matters this is a potential breach of his employment contract with WGAC.
• Who paying [sic] for the Court case of Glen and Kenzie
• Is the WGAC paying for Glen and Kenzie's court case? • If yes, why … • Satellite Springs
•
Table my response to the letter from Castledine Gregory Law & Mediation letter dated 3rd of March 2015 re Wintawari Guruma Aboriginal Corporation - Request for Meeting with Yindjibamdi (No. 1) Elders - Satellite Springs.
•
Please advice [sic] and provide further evidence to claim satellite springs.
• FMG Indigenous Land Use Agreement (ILUA)
• What is the ILUA compensation package worth? •
Can the WGAC confirm is the deal from FM is worth $3-million dollars a year caped?
•
Does this caped price of $3-million dollars a year for the whole of the Eastern Gurrama country?
•
Does this compensation of $3-million dollar a year locks the Eastern Gurrama forever and a day with no more negotiations on future mines on Eastern Gurrama country?
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Were the statements in the attachment defamatory?
Legal principles
The essential principles can be stated quite shortly. It is necessary to determine the meaning of the words that have been published and then, whether the meaning is defamatory.36
The meaning of the words is to be determined by the sense in which fair minded ordinary reasonable persons in the general community would understand the words. The tests for meaning and defamation were stated by McHugh J in John Fairfax Publications Pty Ltd v Rivkin as follows.37
The tests for meaning and defamation
Traditionally, courts have accepted that juries are more likely to find a publication defamatory than a judge. Lord Devlin famously said:
'[T]he layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.'
Consequently, for the purposes of a defamation action, the natural and ordinary meaning of words contains 'all such insinuations and innuendoes as could reasonably be read into them by the ordinary man'. Lord Reid said
'The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.'
A reader may be acting reasonably even though he or she engages in 'a certain amount of loose thinking'. This is because, as Lord Reid also pointed out:
'The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.'
36 Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, 506 (Brennan J, with
whose reasons Gibbs CJ and Stephen, Wilson JJ agreed and Murphy J agreed generally).
37 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 [23]-[27].
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However, although a reasonable reader may engage in some loose thinking, he or she is not a person 'avid for scandal'. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together'. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.
The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. (footnotes omitted)
The general test as to whether a meaning is defamatory is whether it is likely to lead an ordinary reasonable person to think less of a plaintiff.38
A plaintiff must set out in the statement of claim the meanings contended to arise from the words complained of in their natural and ordinary meaning. The plaintiff must plead 'the precise act or condition asserted of, or attributed to the plaintiff or with which he is charged'.39 This is referred to as the imputation.40 Ordinarily the imputation will be a distillation of the words used by a defendant and not a repetition of them.41 The imputation is not a statement of what the defendant intended to convey but the interpretation that an ordinary reasonable reader would place on the words used.
The defamatory imputations alleged by Mr Camille
Mr Camille pleads that the attachment to the defendant's email of 31 March 2015 conveys the following defamatory imputations about him:42
38 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 [5].
39 Taylor v Jecks (1993) 10 WAR 309, 314 (Anderson J with whose reasons Kennedy and Franklyn JJ
agreed).
40 Sungravure Pty Ltd v Middle East Airlines Airlban SAL [1975] HCA 6; (1975) 134 CLR 1, 10.
41 Marshall v Smith [2013] WASC 452 [8].
42 Statement of claim par 11.
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(i) He has acted, deliberately, contrary to the findings of the Office of the Registrar of Indigenous Corporations (ORIC).
(ii) He has mismanaged the affairs and resources of the Corporation.
(iii) He has inappropriately dealt with the affairs and resources of the Corporation.
(iv) He was deceitful in establishing Eastern Guruma Administration Pty Ltd.
(v) He has inappropriately caused the Pascoe Trust to pay substantial sums of money to Eastern Guruma Administration Pty Ltd.
(vi) He has inappropriately caused the Pascoe Trust to pay $10,000 to Eastern Guruma Administration Pty Ltd.
(vii) He has inappropriately caused the Pascoe Trust to pay $40,927 to Eastern Guruma Administration Pty Ltd.
(viii) He has breached the duties that he owes to the Corporation in his capacity as director of the Corporation.
(ix) He was deceitful in establishing Eastern Guruma Administration Services Pty Ltd.
(x) He is a stupid manager of the Corporation.
(xi) He was deceitful towards the Corporation, its directors and its members.
(xii) He is dishonest. (xiii) He is a criminal.
(xiv) He has a conflict of interest which he refuses to declare.
(xv) He has inappropriately obtained benefits by privately dealing with heritage matters.
(xvi) He has breached his employment contract with the Corporation.
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Defamatory imputations alleged by Mr Smith
Mr Smith pleads 11 defamatory imputations being those numbered (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xii), (xiii) and (xiv) above.
Defamatory imputations found to arise
The focus of the parties' written and oral submissions in this case was the issue of qualified privilege. Less attention was given to the factual issue of whether the words written by the defendant conveyed the pleaded imputations.
In the attachment to his email of 31 March 2015 the defendant commented first on the matters raised in the Federal Court proceedings and then, under the heading 'Conducts [sic] of Glen Camille and his supporters' he set out in nine paragraphs, each prefaced by a 'bullet stop', statements that were in the nature of conclusions that might be drawn from what he had written in the preceding section of the document. Some of the conclusions are conditioned by words such as 'we believe', 'may well be' and 'possibility'. It is in this section of the document that the most serious allegations are made against the plaintiffs.
Use of the word 'inappropriately'
Five of the imputations contain the adverb 'inappropriately'. The use of 'inappropriately' in an imputation pleaded in a defamation action masks the precise act or condition that is being alleged. This may be illustrated in this case by the reference to the imputation that the plaintiff has 'inappropriately dealt with the affairs' of the Corporation. In the context of this action 'inappropriately' may mean that the plaintiff dealt with the affairs of the Corporation in a way that involved a contravention of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) or it may mean that the plaintiff dealt with the affairs of the Corporation otherwise that in accordance with traditional decision making processes. A third possibility is that 'inappropriately' may mean that the plaintiff made unsound commercial judgments. It is not a satisfactory answer to this criticism to say that imputation adopts words used by the defendant in the attachment. It is for the plaintiffs to
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plead the precise act or condition that it is alleged is conveyed by the
words used.43
There is a degree of overlap between some of the imputations. Some imputations, including those containing the word 'inappropriately', are less serious variants of other imputations. With limited exceptions I have found that the more serious imputations were conveyed and it has thus been unnecessary for me to grapple further with the problem of what is meant by the use of the word 'inappropriately'.
I turn now to the imputations.
Acting contrary to the findings of ORIC (imputation (i)).
This imputation is not conveyed. The chairing of directors' meetings was dealt with at the start of the attachment. The defendant asks the question: who is to chair the meeting? And, states that the plaintiff has declined to chair the last two directors' meetings and that ORIC 'has agreed and confirmed' that the plaintiff has a conflict. The imputation is not conveyed expressly by the words used and the ordinary reasonable reader would not derive the imputation from those words.
Mismanagement of the Corporation's affairs and resources – stupid manager (imputation (ii))
The mismanagement imputation is conveyed by the sentence that appears under the heading 'Court proceedings against Glen Camille and Kenzie Smith on foot'. The sentence expressly asserts mismanagement of the Corporation's resources and an ordinary reasonable reader would interpret it as meaning that the plaintiffs had mismanaged the Corporation's affairs and resources. The defendant posed the question, '[w]hy is the WGAC setting up another company to compete with Eastern Guruma Pty Ltd (EGPL)' and in answer to it observed, 'this is silly and stupid management of the WGAC'. The plaintiffs are not referred to directly but it is plain from reading the attachment as a whole and the earlier reference to mismanagement by the plaintiffs that the words are intended to convey that the plaintiffs were responsible for the decision to set up another company and that it was a stupid
43 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 [119] – [131] (Hunt AJA with whom
Santow JA agreed)
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decision. This is how an ordinary reasonable reader would interpret this section of the attachment and he or she would conclude that, in context, the words meant that the plaintiffs were stupid managers.
Inappropriate dealings with the Corporation's affairs and resources - deceitful in establishing Eastern Guruma Administration Pty Ltd - inappropriately caused Eastern Guruma Charitable Trust to pay substantial sums to Eastern Guruma Administration Pty Ltd – inappropriate payments of $10,000 and $40,927 - deceit in establishing Eastern Guruma Administrative Services Pty Ltd - deceitful to Corporation, directors and members - and dishonest (imputations (iii), (iv), (v), (vi), (vii) (ix), (xi) and (xii))
Reading the attachment as a whole in my view it conveys that the plaintiffs were dishonest. This is conveyed by the third, fourth and fifth paragraphs under the heading 'Conducts [sic] of Glen Camille and his supporters'. The juxtaposition of the words 'may well be dishonest' in the fourth paragraph under the heading with the words 'which is actually dishonest' in the fifth paragraph emphasises that what is being said is that the plaintiffs have engaged in dishonest conduct. Whilst a distinction may be drawn between 'dishonest conduct' and the condition of 'dishonesty', reading these words in the context of the article as a whole the ordinary reasonable reader would take them to mean that the plaintiffs were dishonest. The deceit imputations and the inappropriate payment imputations are less serious variants of the 'dishonest' imputation and they are subsumed in the 'dishonest' imputation.
'… is a criminal' (imputation (xiii))
The question is whether the ordinary reasonable reader would take the words '…and it raises the possibility of criminal charges' immediately following the reference to conduct 'which is actually dishonest' and considered in the context of the article as a whole as meaning that the plaintiff was 'a criminal'. In view of the conditional nature of the statement 'raises the possibility', I consider that the ordinary reasonable reader would not read the words to mean that the plaintiff is a criminal.
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Breached duties - failed to declare a conflict of interest - inappropriately obtained benefits - breached his employment contract (imputations (viii)) (xiv) (xv), (xvi))
The imputation that the plaintiffs breached the duties they owed to the Corporation is conveyed by the first, sixth, seventh, eighth and ninth paragraphs under the heading 'Conducts [sic] of Glen Camille and his supporters'. There is a substantial overlap between the breach of duties imputation and other imputations. The breach of duties imputation subsumes the other imputations which allege specific breaches of duty but are not more serious than the breach of duties imputation. I do not consider, however, that the ordinary reasonable reader would interpret the words, 'this is a potential breach of his employment contract' as meaning that the Mr Camille had breached his employment contract.
In summary, I find that the following defamatory imputations are conveyed by the attachment:
(i)
The plaintiffs mismanaged the affairs and resources of the Corporation.
(ii) The plaintiffs are dishonest. (iii)
The plaintiffs breached the duties that they owed to the Corporation in their capacities as directors of the Corporation.
The common law defence of qualified privilege
In the introduction to these reasons I summarised the principle underlying the common law defence of qualified privilege. For a more complete exposition, frequent reference is made to Parke B's statement of the principle in Toogood v Spyring:44
In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a
Toogood v Spyring Bashford v
44 (1834) 149 ER 1044, 1049-1050, adopted by the High Court of Australia in and Heydon JJ)
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qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.
In Megna v Marshall, Simpson J outlined the proper approach to determining a defence of qualified privilege in the following terms: 45
I have come to the conclusion that the determination of a defence of qualified privilege at common law involves three strands of inquiry:
• identification of an occasion of qualified privilege by reference to all of the circumstances in which the communication is published, including, particularly, the subject matter of the communication: this involves the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and the identification of a reciprocal interest in the recipient in receiving a communication with respect to that subject matter; • determination whether the content of the communication was relevant, germane, or sufficiently connected to that occasion or subject matter; • (only if both occasion and relevance are established), determination whether, notwithstanding that there is an occasion of qualified privilege, and that the communication is sufficiently relevant or germane to that occasion, the occasion was misused, or used for an ulterior or extraneous purpose, such as to give rise to a finding that the publisher was actuated by express malice. The distinction between occasion and relevance on the one hand, and malice on the other, may be of considerable significance: the onus lies upon the defendant to establish privilege; the onus lies upon the plaintiff to establish malice. (emphasis added)
| 60 | In | Horne | v | Milne | Higginbotham J | recognised | that |
communications between directors of two companies engaged in complementary commercial activities might be privileged.46 His Honour said:47
The directors of two companies engaged respectively in raising, and crushing, the same quartz, had a common interest in the honest management of their several businesses, and had a right to discuss the present and future management of both companies. If one new of past
45 Megna v Marshall [2010] NSWSC 686 [50]-[51].
46 Horne v Milne (1881) 7 VLR 296.
47 Horne v Milne (300).
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mismanagement, that might fairly form the subject of a privileged communication with the other, as a basis for improving the management for the future.
An occasion of qualified privilege existed
The email sent by the defendant on 31 March 2015 and its attachment were sent by the defendant in his capacity as a director of the Corporation to the recipients (other than Ms Camille) in their capacities as directors and the subject matter of the attachment was the affairs of the Corporation, in particular governance issues. The defendant had an interest in communicating his concerns about the management of the Corporation to the other directors and they had an interest in being informed of his concerns. I find that the email and the attachment were published on an occasion of qualified privilege.
Was the defendant actuated by malice?
The legal principles
The starting point in any consideration of the principles applicable to malice in the context of the defence of qualified privilege is the leading English decision of Horrocks v Lowe.48 Lord Diplock, with whose judgment Lords Wilberforce, Hodson, and Kilbrandon agreed, said:49
The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has ... to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions ... the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he
48 Horrocks v Lowe [1975] AC 135.
49 Horrocks v Lowe (149).
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uses the occasion for some other reason he loses the protection of the
privilege.
…
Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, 'honest belief.' If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. … In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest,' that is, a positive belief that the conclusions they have reached are true. The law demands no more.
Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found.
In Roberts v Bass, Gaudron, McHugh and Gummow JJ stated the applicable principle as follows: 50
An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the
50 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 [75].
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statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term 'express malice' is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice ('malice') is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.
In Roberts v Bass Gaudron, McHugh and Gummow JJ drew attention to the importance of distinguishing between improper motive and other states of mind on the part of a defendant and said:51
Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication.
Gaudron, McHugh and Gummow JJ also considered the circumstances in which recklessness might justify a finding of malice and said:52
In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. 'When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth', said this Court in R v Crabbe, 'he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.' In less extreme cases, recklessness, when present with other factors,
51 Roberts v Bass [76].
52 Roberts v Bass [84] - [86].
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may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant. In Royal Aquarium and Summer and Winter Garden Society v Parkinson, Lord Esher MR said:
'If a person charged with the duty of dealing with other people's rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion.'
Fifteen years earlier, as Brett LJ, Lord Esher MR had said:
'[I]f it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive.'
In Lord Diplock's speech in Horrocks, there are passages that standing alone suggest mere recklessness or indifference to truth and falsity is sufficient to constitute malice. But we do not think that Lord Diplock was intending to change the law, as it was laid down by Lord Esher MR in the above quotations. In fact, in Horrocks Lord Diplock referred to Lord Esher MR's judgments in these cases as correctly stating the law. Furthermore, Lord Diplock introduced his discussion of 'recklessness' by saying that, if the defendant 'publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false' (emphasis added). This statement makes it clear that Lord Diplock was using the term 'reckless' in the sense of 'wilful blindness', as explained by this Court in Crabbe.
In a later passage their Honours added:53
Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice although in 'an extreme' case it may be evidence of it. And mere failure to make inquiries or apologise or correct the untruth when discovered is not evidence of malice.
53 Roberts v Bass [103].
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Gaudron, McHugh and Gummow JJ also said that it is necessary for a plaintiff not only to prove that an improper motive existed but that it was the dominant reason for the publication.54
In his judgment Gleeson CJ also considered whether lack of a positive belief in the truth of a statement was evidence of reckless indifference and said:55
It may be observed that mere absence of positive belief in the truth of what is published, if that be all there is to it, does not establish malice. However, lack of positive belief in the truth of a statement is a description that might be applied to different states of mind. Whether lack of belief is evidence of reckless indifference to truth or falsity, may depend upon the nature of what is said, and the occasion on which it is said. It may be, for example, that if a person publishes an allegation of serious impropriety or unfitness about another, in circumstances where community standards would recognise a moral obligation to make an attempt to ascertain the truth beforehand, and the person has no idea whether the allegation is true or false, it is open to conclude that the person is recklessly indifferent to the truth or falsity of the allegation, within the meaning of what was said in Horrocks v Lowe. That is a question of fact. But mere absence of a positive belief in the truth of what is said does not constitute malice.
The plaintiffs' senior counsel, Mr Viner QC, placed particular reliance on the dicta of Gleeson CJ quoted above.
The evidence
Before turning to how the parties advanced their respective cases on malice it is convenient to refer to the evidence.
Mr Camille's evidence
Mr Camille's evidence-in-chief consisted of his witness statement which referred to a number of documents that were also tendered. Mr Camille was cross-examined. Although occasionally argumentative in the course of cross-examination there was nothing in Mr Camille's cross-examination which caused me to doubt his evidence. No submission was made on the defendant's behalf that Mr Camille's evidence was unreliable.
54 Roberts v Bass [104].
55 Roberts v Bass [15].
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In his evidence Mr Camille explained the steps that were taken to get the Corporation 'up and running'. He said that he was not aware that two administration companies had been established. He only knew that there were two companies in 2015. He was also not aware that he was a shareholder of Eastern Guruma Administration Pty Ltd until late 2014 at the earliest.56 He accepted that it was understandable that as a 'part-time non-employee' the defendant would not know about the two companies.57 Mr Camille acknowledged that the 'admin entity' was not shown as a subsidiary of the Corporation in the Corporation's accounts.58 Mr Camille accepted that as far as the 'admin entity' was concerned the accounting was unsatisfactory.59
Mr Camille explained that he was involved in transferring funds which should have been paid into one of the charitable trusts out of the 'admin entity' and into the charitable trusts and vice-versa. These were not matters that were recorded in the minutes of meetings but Mr Camille said that he spoke to the directors about them many times. 60 Mr Camille was referred to Mr Bevan's report to the directors at the meeting held on 11 February 2015 and Mr Camille accepted that the Board was concerned that it was not getting accurate information from its accountants, Pascoe Partners.61 Mr Camille initiated the process of bringing the Corporation's accounting under 'its umbrella'.62
Mr Camille was also referred to the minutes of the directors' meeting held on 27 May 2015 and to the discussion about Eastern Guruma Administration Pty Ltd recorded in those minutes. He accepted, in effect, that it would be difficult for someone, even on the Board, to understand what was happening with Eastern Guruma Administration Pty Ltd.
It was put to Mr Camille that the position regarding the payments of $10,000 and $40,927 was not fully explained until Ms Camille explained what had occurred in an affidavit filed in the Federal Court proceedings. The substance of Mr Camille's response was that no-one had asked him for an explanation.63 It was not put directly to Mr Camille that the defendant had asked for information about the two
56 ts 96.8. 57 ts 97.5. 58 ts 106.7.
59 ts 126.8.
60 ts 95.
61 ts 111.8.
62 ts 117.4.
63 ts 118.6.
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payments, what was put to him was that, '[the defendant] raised these two matters of the $10,000 and $40,000'.64 Mr Camille said that the first time those matters were raised was when the Federal Court proceedings were commenced. Mr Camille said that all the information relating to the payments of $10,000 and $40,927 was available in the Corporation's Karratha office. Had the defendant attended the office and gone through the invoices he would have been 'completely illuminated'.65 Mr Camille said that the defendant had not asked him about the payments of $10,000 and $40,297.66 Mr Camille explained that the payments were initially made into the wrong accounts.67 He said that the mistake about the payment of $40,927 was not a matter he explained to the directors as it was not of 'anyone's concern' and 'wasn't really a matter to discuss'.68
Mr Smith's evidence
Mr Smith did not attend the trial. He did not give evidence. The evidence adduced on his behalf was limited to the documentary evidence adduced as part of Mr Camille's case.69
The defendant's evidence
The defendant's evidence-in-chief was adduced orally and was limited. He explained that he lived in Tom Price and that travelling to the Corporation's office in Karratha involved a journey of 350 kilometres on a 'dirt road'.70 The defendant gave evidence about an exchange of correspondence with Mr Camille in November 2014. The exchange comprised a letter from the plaintiff giving the defendant notice of a resolution on the part of the directors seeking to remove the defendant as a director of the Corporation and a letter from the defendant to the plaintiff giving notice that he objected to being removed as a director.71
64 ts 118.8.
65 ts 119 - 120.
66 ts 133.1.
67 ts 121.2, 129.5
68 ts 129.8.
69 ts 153.
70 ts 154.8.
71 ts 155.
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The defendant also gave evidence of unsuccessful attempts made by him to participate in the directors' meeting that was held on 1 April 2015.72
When cross-examined the defendant proved to be a difficult witness. The transcript is replete with examples of the defendant responding to questions with a question of his own, being evasive in his responses, and simply not responding to the question asked of him but making statements that he evidently thought would help him. Bizarrely, when taken to the copy of the attachment to his email of 31 March 2015 that appeared in trial bundle, he suggested that the document had been 'manipulated' by the Corporation.73
Having considered the evidence given by the defendant in cross-examination I find that I am unable to rely upon his evidence save to the extent to which it consisted of admissions or was corroborated by other evidence.
In cross-examination the defendant repeatedly gave evidence to the effect that he had not gone to directors' meetings because he considered that Mr Camille was hostile towards him and that Mr Camille was in a powerful position.74
The defendant was insistent that he had prepared the attachment to his email of 31 March 2015 himself and that he had not received assistance from his sister, Tania or his solicitor.75 He said he prepared the document, 'when [Mr Camille] came in to attack me, to expel me from the - the [Corporation]'.76
The defendant said that he found out about Eastern Guruma Administration Pty Ltd 'maybe a couple of months after [he] had been elected' as the deputy chair and that is when he raised questions about 'those companies'.77 He said he started questioning Mr Camille about the companies but received no answers.78 Nothing to this effect was put to Mr Camille when he was cross-examined.
| 84 | The defendant said that he did not ask Mr Camille about the payments by the Pascoe Trust to Eastern Guruma Administration Pty |
72 ts 157-158.
73 ts 165 - 166.
74 ts 161.9, 162.7, 168.2, 171.3, 172.4, 190.4, 194.4.
75 ts 165.
76 ts 163.3.
77 ts 175.3.
78 ts 176.1.
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Ltd. His evidence was to the effect that Mr Camille would not have told him what the position was.79 He gave the same explanation in answer to a question as to whether he approached Mr Camille for an explanation as to why he received a payroll advice for work done by him on behalf of the Corporation that identified Eastern Guruma Administration Pty Ltd as the paying party. The defendant did not ask for an explanation even though he gave the payroll advice to his solicitor.80
The defendant accepted that he had not tried to obtain documents from the Corporation in relation to the payment of $10,000 from the Pascoe Trust to Eastern Guruma Administration Pty Ltd.81 By way of explanation, the defendant pointed out that he lived 350 kilometres away from the office and that he had his own business to run.82 He said that Mr Dutton had told him that the $10,000 had been 'inappropriately misused'.83
The defendant accepted that he, his sister and his brother had met Mr Bevan, along with a Mr Mark Simpson and a Mr Allan Scott, who were consultants, and received a presentation on the restructuring of the Corporation.84
At several points in the course of cross-examination the defendant said he was still waiting for answers to the questions he had asked but he said that he had not read any of the documents attached to Mr Camille's witness statement.85
In the course of being questioned about why he had not repeated some of the defamatory allegations he made about the plaintiff in a letter sent to members of the Corporation on October 2016, the defendant gave the following evidence:86
Do you think he was dishonest?---I can't say.
Do you think he was likely guilty of criminal conduct?---Well, that's not for me to decide.
79 ts 173.
80 ts 180.5.
81 ts 196.5.
82 ts 197.8.
83 ts 177.4.
84 ts 194 - 195.
85 ts 169.4, 175.5, 176.1, 196.4, 197.4.
86 ts 199.
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But you wrote it back in March 2015, didn't you?---Well, if you have a look at some of the correspondence he sent me in the email too, they weren't - you know.
You wrote it then, didn't you?---Well, I need to retaliate somehow.
And - - - ?---Because - - -
So that was the way you retaliated?---No. It was because, well, look at the way he retaliates to me during the emails, 'Someone's really fitting for you, Mr Stevens.' It's in some of these emails that he wrote. People need to refer some of the emails that he writes to me too, and his family.
Well, now, you didn't make those allegations in this attachment to your letter to members in October 2016. Is that because you didn't then believe he was guilty of those things?---I was just doing - thinking what's right for me at the time.
The parties' cases on malice
The plaintiffs' pleaded case on express malice
The plaintiffs did not file and serve replies pleading express malice until the first day of the trial. Mr Viner explained that this was because the version of the defence that had been served upon the plaintiffs' solicitors did not plead a qualified privilege defence to the most serious imputations pleaded by the plaintiffs.87 In the light of that explanation, I gave the plaintiffs leave to file and serve replies pleading malice and replies were filed and served. To answer complaints made by the defendant's senior counsel about the replies, the plaintiffs filed and served amended replies on the second day of the trial.
Each amended reply alleged that the publication of the statements in the attachment to the defendant's email of 31 March 2015 was actuated by malice in that it was published for an improper purpose, that is, an intent to injure the reputation of Mr Camille or Mr Stevens respectively. Mr Camille pleaded:
[T]he defendant sought to so injure the plaintiff's reputation and standing within the Eastern Guruma and wider Pilbara community that he was removed as a director and chairperson of WGAC and replaced as chairperson by the defendant.
87 Imputations (xi) to (xvi) as listed earlier in these reasons.
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Mr Smith's amended reply included the paragraph set out above although it was clearly not entirely applicable to his circumstances - he was not the chair of the Corporation.
The plaintiffs also pleaded that:
(i) The defendant was 'recklessly indifferent to the truth or falsity of the defamatory allegations'.88
(ii) The defendant was wilfully blind to the truth of the matters in respect of which he made defamatory allegations by reason of the following:89
a) the defendant was elected a director and deputy chairperson of the [Corporation] on 15 April 2013; and b) thereafter attended only one directors' meeting on 18 February 2014; and c) did not attend eight director's meetings between 15 April 2013 and 31 March 2015, whereby, had the defendant attended those directors' meetings he could, and would, have ascertained and been informed by directors and the plaintiff of the truth concerning the matters of which he falsely accused the plaintiff.
(iii) The defendant threatened to publish 'the false accusations' to the wider public 'via the public media'.
The plaintiffs' malice pleas were supported by particulars of the minutes of meetings of directors and other business records that they say were available to the defendant as a director of the Corporation had he made an inquiry of the plaintiffs or the board of directors concerning the matters which were the subject of the defamatory allegations.
As noted earlier in these reasons, in the course of his evidence the defendant disclosed that he obtained information from Mr Dutton about the payments from the Pascoe Trust to East Guruma Administration Services Pty Ltd.90 In the course of his closing submissions senior counsel for the plaintiffs submitted that the defendant could have sought further information from Mr Dutton.91
88 Amended Reply par 2. 89 Amended Reply par 5. 90 ts 172.7.
91 ts 223.7.
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In closing submissions senior counsel for the plaintiffs, drawing upon the observations of Gleeson CJ in Roberts v Bass at [15] which I have cited above, contended that the test to be applied in determining whether there has been wilful blindness is what the ordinary member of public would expect the defendant to have done in the situation in which he found himself.92
The defendant's submissions on malice
The following submissions were advanced by the defendant's senior counsel, Mr Ryan QC, on the issue of malice.
(i) To establish malice the plaintiffs had to displace a heavy burden.
(ii) The vigour of an attack or the pungency of the defamatory statement will not, without more, be sufficient to establish malice.93
(iii) The bank register prepared by Pascoes showed the payments of $10,000 and $40,927 and there was no evidence of any other facts, which would have shined light on the true reasons for those transactions, as to which the defendant was recklessly indifferent or wilfully blind.
(iv) Whilst it was accepted that the payments of $10,000 and $40,927 were made to rectify mistakes, there was no evidence that information about the mistakes was provided to the directors so it could not be said that the defendant was recklessly indifferent or wilfully blind to such information.
(v) The defendant's purpose in preparing the attachment and asking the questions raised in it was to obtain reassurance that the transactions involving the payments of $10,000 and $40,927 did not involve the diversion of monies which should have gone to the Corporation.
92 ts 224.7.
93 Reliance was placed on the passages from the joint judgment of Gaudron J, McHugh and Gummow JJ in
Roberts v Bass and Lord Diplock's judgment in Horrocks v Lowe to which I have referred.
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(vi) The defendant's attendance at board meetings was precluded by distance and by the animosity that had developed between him and Mr Camille.
(vii) The accounting documents which might have provided an explanation of the two transactions were held by Pascoes and they were not retrieved from Pascoes until some time in May 2015.
Conclusions on malice
The starting point is that it is for the plaintiffs to prove not only that an improper motive for the publication of the defamatory statements existed but that the improper motive was the dominant reason for the publication.
A finding that the defendant did not make inquiries, which reasonable members of the community might consider a defendant should have made, and which, if made, would have revealed the true position, is not an adequate foundation for a conclusion that there was reckless indifference amounting to wilful blindness and thus malice. In this respect, in my view the plaintiffs' senior counsel tried to draw too much from the observations of Gleeson CJ at [15] in Roberts v Bass. At common law the factual inquiry into whether a publication was actuated by malice is determined subjectively.
To establish wilful blindness a plaintiff must establish that the defendant deliberately refrained from making inquiries because he prefers not to learn the truth.
In my judgment, the defendant made the defamatory statements contained in the attachment to his email dated 31 March 2015 for the dominant purpose of injuring Mr Camille. He was actuated by malice. The matters that lead me to this conclusion are as follows.
(i)
The defendant's evidence that he prepared the attachment when he considered that he was being attacked by Mr Camille and he needed to retaliate 'somehow'. This evidence provides compelling support for the conclusion that the defendant circulated the attachment for the purpose of injuring Mr Camille, and I so find. This finding erodes substantially the foundation for the submission that the defendant was seeking reassurance
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that the two payments, the $10,000 and the $40,927, did not
involve a diversion of the Corporation's funds.The fact that on 6 January 2015 the defendant, his brother and his sister had commenced the Federal Court proceedings in which they asserted that the payments had been used by Mr Camille and Mr Smith for their personal benefit does not sit comfortably with the submission that on 31 March 2015 the defendant was seeking reassurance that these payments did not involve a diversion of the Corporation's resources. It is evident that the defendant already possessed an opinion that the funds were used for Mr Camille's and Mr Smith's personal benefit. Against that background the suggestion that the defendant was seeking reassurance has a hollow ring to it.
(ii) The evidence establishes, and I find, that the defendant made no attempt to ask Mr Camille or Ms Camille about the two payments. I do not accept that he was precluded from doing so by the distance between his home and the Corporation's office in Karratha or by any animosity between him and Mr Camille. If the defendant had possessed a genuine desire to find out about these payments he could have sent an email to Mr Camille asking about them. It is ironical that he did not take this simple and obvious step given that he circulated the attachment by email. I accept Mr Camille's evidence that all of the documents relevant to these payments were to be found in the Karratha office and could have been made available to the defendant.
(iii) Substantially the same point may be made about the defendant's failure to make inquiries about the role played by Eastern Guruma Adminstration Pty Ltd. The defendant's evidence was that he knew about Eastern Guruma Adminstration Pty Ltd a couple of months after being appointed as a director yet he made no inquiry about it. If he possessed a genuine interest in obtaining information about the company and its role he could have asked about it by email if other methods of inquiry failed. That Mr Camille may not have been aware that he was a shareholder and that he was recorded as holding the share beneficially is not to the point. I am satisfied that if the defendant had asked questions about the role of Eastern Guruma Adminstration Pty Ltd it would have been explained to him and it would have been made clear that it was not a company
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operated for Mr Camille and Mr Smith's private purposes. Mr Camille did not know that Eastern Guruma Administrative Services Pty Ltd had been incorporated until 2015. Had the defendant asked questions about the company, however, Mr Camille was in a position to find out what the position was and respond to those questions and dispel any notion that it was a private company operated by him and Mr Smith for their private purposes. The failure by the defendant to make any earlier inquiry undermines the notion that he wrote the attachment for the purposes of asking questions to which he genuinely sought answers.
(iv) I am not persuaded by the defendant's explanations for not attending meetings of the board of the Corporation. The defendant's email and the attachment demonstrate that he is an articulate man well able to express his concerns. The absence of any contemporaneous expressions of concerns on his part about the alleged hostility shown towards him by Mr Camille leads me to conclude that this was not the reason why the defendant did not attend the directors' meetings. It was not the reason given by him for not attending the meeting on 1 April 2015. Nor was there any contemporaneous complaint or expression of concern about it being difficult for the defendant to attend meetings in Karratha. I note that in his October 2016 letter to members of the Corporation the defendant seemed to deny an allegation that he 'repeatedly did not attend directors meetings' stating 'how did the business operate if didn't turn up to meetings'.94
(v) The significance of the failure by the defendant to make the inquiries referred to in the preceding paragraphs is twofold. First, it is inconsistent with the defendant's sending the attachment for the purpose of obtaining answers to questions about the governance of the Corporation; had that been his interest, he would have sought answers earlier. Secondly, the failure to make inquiries earlier evidences a wilful blindness on the defendant's part. Considering the whole of the evidence and the defendant's answers to questions put to him in cross- examination the impression I have formed is that the defendant wanted to make a make a retaliatory and forceful attack on Mr Camille that was not constrained by the need to take account of the facts.
94 Ex P1 vol 4 tab 113.
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Accordingly, the common law qualified privilege defence raised by the defendant in respect of Mr Camille's claim fails. The defendant relied primarily on the common law defence although he pleaded the statutory qualified privilege defence.95 The statutory defence does not assist the defendant because it too is defeated by a finding of malice.96
Mr Smith was not the primary target of the defendant's retaliatory attack. He was, however, defamed by the same statements. The privilege that would have protected the defendant from being sued in respect of the statements has been lost because they were published with an intention to injure Mr Camille. Accordingly, the defence of qualified privilege in answer to Mr Smith's claim fails.
Damages
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.97
The purposes to be served by an award of damages for
defamation are:
(i) consolation for the personal distress and hurt caused to the appellant by the publication;
(ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and
(iii) the vindication of the appellant's reputation.
The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others.98
95 Defamation Act 2005 (WA) s 30
96 Defamation Act 2005 (WA) s 30(4)
97 Defamation Act 2005 (WA) s 34
98 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson
and Gaudron JJ).
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Damages are at large and cannot be determined by a purely objective computation.99 Damage to reputation is presumed to flow from the defamatory publication.100
In making an assessment of the damages to be awarded to Mr Camille I take into account that the publication upon which Mr Camille sues was sent to six people. It is apparent from the minutes of the directors' meeting held on 11 February 2015 that those directors who were present for the discussion about the allegations made in the Federal Court proceedings did not give the allegations any credence. I think it is unlikely that any of those to whom the attachment was sent considered that there was any substance in the allegations made by the defendant. That said, I consider that the defamatory statements were likely to have caused the plaintiff hurt and distress. Mr Camille gave evidence of the stress he says the defamatory allegations have caused him. In my judgment the appropriate award is $10,000.
Mr Camille did not make any claim for pecuniary loss.
As noted earlier, Mr Smith did not attend the trial. There was no evidence of the effect of the defamatory statement on him. In my judgment, the appropriate award in Mr Smith's favour is $3,000.
Injunction
I am not persuaded that an injunction should be granted to restrain the defendant from repeating the defamatory statements. I am not satisfied on the evidence that there is a material risk that the defamatory allegations will be repeated and I am concerned about the possibility that an injunction might have the effect of impeding lawful debate about the affairs of the Corporation.
Conclusion
Mr Camille is entitled to judgment in his favour in the sum of $10,000. Mr Smith is entitled to judgment in his favour of $3,000. I will hear the parties in relation to interest and costs.
99 Broome v Cassell & Co Ltd [1972] AC 1027, 1071.
100 Ratcliffe v Evans [1892] QB 524, 528; Habib v Nationwide News Pty Ltd [2010] NSWSC 924; (2010) 78
NSWLR 619 [9].
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I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
ASSOCIATE TO TOTTLE J
29 MARCH 2018
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