Tucker v Echo Publication Pty Ltd

[2005] NSWSC 865

CITATION:	Tucker v Echo Publication Pty Ltd & Anor [2005] NSWSC 865 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23,24,,25,26,27, May 2005 7,8,9,10,14,15,16,22,23 June 2005
JUDGMENT DATE :	1 September 2005
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph - 124

LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Jackson v John Fairfax & Sons (1981) 1 NSWLR 36 Turner v MGM Pictures (1950) 1 All ER 449 Leotta v Public Transport Commission (NSW) 50 ALJR 666 Bashford v Information Australia (Newletters) Pty Ltd (2004) 78 ALJR 346 Radio 2UE Pty Ltd & Anor v Parker (1992) 29 NSWLR 448 Adam v Ward (1917) ACR 309 Broome v Cassell (1972) AC 1027
PARTIES:	Ross Tucker - Plaintiff Echo Publication Pty Ltd - First Defendant Fast Buck$ (aka) John Anderson - Second Defendant.
FILE NUMBER(S):	SC 20472 of 2000
COUNSEL:	Mr T Hale SC with M. S. White -and Mr R Foreman - Plaintiff Mr B. A Connell - First Defendant Fast Buck$ (aka) Mr J. Anderson - Second Defendant
SOLICITORS:	Elliot & Sochachi - Plaintiff Banki, Haddock & Fiora - First Defendant Fast Buck$ (aka) J. Anderson (Self) - Second Defendant

LOWER COURT JURISDICTION:

- 124 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

PATTEN AJ
1 September 2005

No: 20472 of 2000

ROSS TUCKER v ECHO PUBLICATIONS PTY LTD
& FAST BUCK $ (aka JOHN ANDERSON)

JUDGMENT

INTRODUCTION:

1 His Honour: The Plaintiff (Mr Tucker) sues upon defamatory imputations contained in, what purports to be, an “advertisement” headed “The Ethics of Journalism” published in the newspaper Byron Shire Echo of 7 December 1999. A copy of the publication, hereinafter called “the subject article”, is attached to this judgment.

2 The First Defendant (Echo) was sued as the publisher of the defamatory imputations and the Second Defendant (Fast Buck$) as the author. Echo admitted publication and Mr Fast Buck$ admitted authorship.

3 At a hearing pursuant to s7 A of the Defamation Act (the Act), a jury found that the subject article contained the following two imputations defamatory of Mr Tucker:

1. That (Mr Tucker) acted dishonourably in his negotiations to settle a claim for compensation by a former employee in that he made an offer of settlement which, after it was accepted by the former employee, he refused to honour.
2. That (Mr Tucker) is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language.

4 A Mr Harold Ross (Mr Ross) was originally named as a plaintiff jointly with Mr Tucker, but the jury hearing the matter under s7A of the Act found that the subject article contained no imputation defamatory of him. Accordingly, he took no part, except as a witness, in the proceedings before me.

5 By its Amended Defence, Echo pleaded substantial truth under s15 of the Act; contextual truth under s16; qualified privilege under s22 and at common law; comment under ss32, 33 and 34; and matters in mitigation of damages. Although it will be necessary for me to return to the defences in greater detail, it is appropriate for present purposes that I list the contextual imputations as pleaded by Echo:-

“1. (in relation to imputation 1 above) only that Mr Tucker is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language;
2. that Mr Tucker behaved abusively to an employee by shouting at her, insulting her, making sexist remarks and using obscene language;
3. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so that it made under award payments to Leanne Potts;
4. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to fail to pay Leanne Potts compensation in excess of $7,000 as ordered by the Industrial Relations Court for under award payments;
5. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to apply pressure on Ms Potts in order to delay and avoid paying her entitlements as ordered by the Industrial Relation Court for under award payments;
6. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that the paper’s closure/reduced circumstances were due to Ms Potts and “the mad industrial laws”;
7. that Mr Tucker conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that Ms Potts was incompetent, disloyal and slack in her performance of her job;
8. that Mr Tucker as a proprietor of the Saturday Star Newspaper behaved in a ruthlessly unfair manner to Ms Potts.

6 The Amended Defence filed by Mr Buck$ by leave in the course of the trial was couched in informal terms and failed to identify the legal issues, which he wished to agitate. Later in the trial, he sought to file a Further Amended Defence in virtually the same form as the defence of Echo. I refused him leave to do so because, at least the defences of qualified privilege and fair comment, which he wished to raise were apt to cause prejudice to Mr Tucker, which could not be remedied except by an adjournment. Having regard to the history of the matter and previous orders made by judges of the court, I took the view that it was inappropriate for the matter to be further adjourned. In the result, I approach the claim against Mr Buck$ as if he pleaded defences of substantial truth and contextual truth and comment

THE EVIDENCE OF MR TUCKER:

7 Mr Tucker, who now lives in Mullumbimby and describes himself as a farmer, said that he has lived in the Byron Shire since February 1991 and has been a member of the Byron Shire Council since later that year.

8 For the most part, however, his previous career was in the military. After leaving school, he obtained, in 1966, a certificate in hotel and restaurant management from East Sydney Technical College and for about a year worked as a trainee manager at the Wentworth Hotel, Sydney. In 1967, he was called up for national service for a period of two years, during which he obtained a short service commission, converted to a long service commission at the end of his national service. He served in the Australian Army for about 24 years as an officer in the Catering Corps, rising to the rank of lieutenant colonel and achieving appointment in his last four years of service as Director of Army Catering, responsible for catering in the whole of the Australian Army. As such he was in charge of the posting, promotion, training and administration of approximately 1,600 personnel, male and female, throughout Australia and in some overseas postings. He himself served at various locations throughout Australia and in Vietnam, during the conflict there. He also served for periods in New Guinea, Singapore, the United Kingdom and New Zealand.

9 Questioned by Mr Hale SC who, with Mr White and Mr Foreman appeared for Mr Tucker, as to his management style and philosophy, particularly in dealing with subordinates, there was the following exchange:

“Q. You had to deal with members of the Army on a day to day basis?
A. Yes, I did. Also in that job I was dealing with outside specialists. I had to deal with commanders at all levels. I was responsible for the day to day control and in developing soldiers’ careers and their aspirations. You had to talk to commanding officers about their soldiers, how they were performing, so that meant dealing with commanders about their soldiers and what their plans were, and how they meshed with their commander’s plans for that soldier.

Q. Did you over that period of time develop a manner in dealing with, particularly, subordinates?
A. I believe I did. My view very much was that we were dealing with young men and women, and I had the view very fine Australians. At that stage I guess I saw myself somewhat in the role as a father in that I was starting to deal with soldiers who were very much the same age as my own son and daughter, for one reason, but they were coming to us as young people, well motivated with basic skills, but high potential.

Therefore, you need to work closely with them, be aware of what their aspirations are and how it might be possible to fulfil them and advise them as to how to progress their careers.

Q. Did you develop any particular techniques in dealing with members of the Army, particularly subordinates?
A. My fundamental approach that I took was to take young soldiers, particularly young soldiers as opposed to others with a bit more service, and always take them at face value. What they told me I accepted that as being the truth, and therefore if they had a particular wish or desire for a location, for a course, we would do our level best to provide that and give them solid information as to when that might occur.

Another technique I used to use, I travelled around Australia continually, and made a very concerted effort to visit every unit and formation at least once a year to make myself available for people to come and see me in an interview form, to let me know what their concerns, wishes and aspirations were. I also had responsibility for going to our overall personnel managers to recommend people for promotion, courses and the like.

I tried to act as the interface between them with that information that was going forward to the overall personnel managers, and what the soldiers were receiving. Finally, in managing soldiers, I used to take the worst case scenario. In essence, if a soldier, for example, wanted a posting to Brisbane, I would gauge what the possibility of that was likely to be, what the scope was and inevitably told them the least likely outcome in the hope that that was not the outcome and that a better outcome would occur.

Q. Did you have a view during this period of time about a superior officer abusing subordinates or belittling them or shouting at them?
A. I certainly did.

Q. What was that view?
A. (a) I wouldn’t do it and (b) it wouldn’t be tolerated in the Australian Army and has never been, in my experience.”

10 After telling Mr Hale that in the Catering Corps there was no limitation on the employment of women and that it relied heavily on recruiting women, Mr Tucker said that apart from being conscious of physical limitations, his approach was to treat women “very much the same as men”, and that he spoke civilly and treated all personnel under his command with respect.

11 He married his second wife, Jennifer, in 1987, she being an officer in the Australian Army with the rank of major. On his retirement from the army they moved to a property at Mullumbimby purchased some years previously. He was familiar with the area as his family had lived there since 1968 and he had spent most of his army leave with them. Presently, he raises beef cattle on 53 acres, very close to the main township of Mullumbimby.

12 He was first elected as a councillor of Byron Shire in September 1991 and was re-elected in 1995, 1999 and 2004. On three occasions, he has been a candidate for the popularly elected mayor. He said that while his views would be categorised as conservative, he is not, and never has been, a member of a political party.

13 He said that he became personally acquainted with Mr Buck$ whom he also knew by the name John Anderson and that for about a year they were fellow councillors, Mr Buck$ having been elected at a by-election in 1998 but not standing for re-election in 1999. He also became familiar with the Byron Shire Echo published by Echo. He said that he formed the view that it gave insufficient attention, or unduly unfavourable attention, to the conservative side of politics and that it provided an inadequate coverage of sporting issues within the Shire.

14 In the result, Mr Tucker, in conjunction with Mr Ross, incorporated a company, Comptran Pty Ltd (Comptran), secured premises at 16 Mill Street, Mullumbimby in a complex owned by Mr Ross, and commenced to publish a weekly newspaper. The first edition, on 18 January 1997, was called the Mullumbimby Star, a name which was changed to The Saturday Star on 24 January 1998. Hereafter, I will simply refer to it as “the Star”. The newspaper, which became available for distribution each Friday night or Saturday morning, was free to readers and earned its income solely from advertising.

15 The first editor of the Star was Ms Leanne Ellis, who was replaced in May 1997 by Ms Sue Gardiner. She remained as editor until the paper closed as a weekly publication, in September 1999. The shareholders of Comptran were Mr Tucker and Mr Ross and its activities were financed by loan funds. Initially, they contributed $15,000 each but, during 1998, the loan made by Mr Ross was reduced and Mr Tucker increased his loan to $46,000. In January 1999, his wife made a loan of $17,000 and, in May 1999, a loan of $80,000 was obtained from the Commonwealth Bank which, at least in part, was used to reduce shareholders loans.

16 From its commencement, the Star employed its editor on a full-time basis. There were other employees, a graphic artist, initially Ms Gardiner before she became editor, a sales manager, Ms Cheryl Lindsay, and several part-time employees. Of these, four or five were employed to sell advertising. Mr Tucker explained that they were employed part-time because the newspaper was small and the Byron Shire, which it covered, had a number of discreet urban areas some distance apart from each other, Mullumbimby, Brunswick Heads, Byron Bay and Ocean Shores, where the market for advertising was largely located. As the advertising for each weekly issue had to be gathered in a short space of time, mainly on Mondays and Tuesdays, it would be beyond the capacity of a smaller number of full-time employees. Moreover, he said that when the newspaper advertised for sales staff, interest was predominately displayed by people wishing to work part-time, in order to meet family and other responsibilities. He said there was flexibility allowed in the working hours of the part-time employees.

17 Mr Tucker said that his own role was to work with the editor in the actual production of the paper. This included making decisions as to the number of pages to be published and the allocation of space between editorial material and advertising. He also sought to accommodate particular requests of advertisers conveyed to him by the sales staff. He said that although he had contact with the staff in the course of these activities, he was not involved in directing them in relation to their duties.

18 As to the time he actually spent in the office, Mr Tucker said that it was irregular but he would usually be there on a Monday, on a Thursday afternoon when the paper was being put together and on a Friday. He would attend to Council duties on a Tuesday and would fit in other requirements of the newspaper with his farm responsibilities.

19 He said that Mr Ross was essentially concerned with accounts and staff management. His brother, Duncan, an accountant by profession, dealt with the payroll and otherwise assisted Mr Ross, whom, he said, lived within 50 metres of the office and could attend it daily for at least a short period. Neither Mr Tucker, nor Mr Ross drew a salary for their work and Mr Duncan Tucker, who has since died, performed his work on an honorary basis. He said that full-time employees were employed according to the relevant industrial award and this was the responsibility of his brother.

20 His wife, Jennifer, during 1997, when she had a full-time occupation elsewhere, performed small tasks at the newspaper, such as proof reading, banking etc. but, in January 1998, gave up her other position and devoted more of her time and attention to the newspaper.

21 The office of the Star was a single room which Mr Tucker said had dimensions of about 5 metres by 12 metres. It was furnished with a number of desks and chairs. There was also a small alcove kitchen and sink. Mr Tucker did not have a desk to himself, but shared one according to who was in the office at the time.

22 The normal deadline for receiving editorial material was midday, Wednesday, and for advertising material, close of business on Wednesday. The paper was set up on Thursday afternoon, into Thursday night, and taken to the printer between mid-night on Thursday and 6am Friday.

23 In July 1997, Mr Tucker first came into contact with Ms Leanne Potts, a woman of considerable significance to this case. According to Mr Tucker, she telephoned him, seeking employment as an advertising sales person. He invited her to submit a formal application and, according to his evidence, told her that at the time he was looking for someone to sell classified advertising material on a commission basis.

24 As a consequence of the telephone communication, it seems that Ms Potts furnished a curriculum vitae and, in addition, wrote to Mr Tucker, the letter exhibit E:

“Leanne Potts
9 Helen Street
South Golden Beach NSW 2438
21 July 1997
Mullumbimby Star
26 Mill Street
Mullumbimby NSW 2482


Dear Mr Tucker
In reference to our telephone conversation this morning, July 21st, I have taken the liberty of furnishing you with my current resume, please feel free to contact me if you require more information.

I am confident to accept a trial period of commission only.
I await to hear from you in favour and am looking forward to an interview with you at your convenience where you can view my portfolio.
Yours faithfully
LEANNE POTTS”

25 According to Mr Tucker, following receipt of the letter, he had a meeting with Ms Potts, during which he said that he was willing to employ her for 1 or 2 days per week, and pay her on a commission basis of 12 and a half percent. He said that she agreed to this proposition and commenced work on 28 July. The wage records of Comptran show that for the week ended 2 August 1997, she was paid the gross sum of $120, which included a motor vehicle allowance of $30.

26 Mr Tucker said that he was “very happy” with the amount of advertising secured by Ms Potts during her first week. He said that a commission of twelve and a half percent on that advertising would, however, have only produced commission of between $50 and $60. Recognising that as inadequate, he arranged that $120 be paid, as recorded in the wage records. During that first week, Ms Potts worked on 2 days.

27 According to the records, in her second week, Ms Potts was paid $200 of which $50 was attributed to a car allowance. $11 tax was deducted. Mr Tucker said that he explained this payment to Ms Potts by pointing out that the commission agreed upon did not provide an adequate income. Instead, he said that she would be paid $200, which he intended to increase to $250.

28 In each of the following 2 weeks, that is the weeks ending 16 August 1997 and 23 August 1997, according to the wage records, Ms Potts was paid $250. As to how many hours or days of work this represented, Mr Tucker said, “That varied and was very much up to Ms Potts as to the hours she worked and the days she worked, but it was not a full week, more inclined to be 2 or 3 days and a part day. It varied”. There was no system for recording the hours she actually worked.

29 In the week preceding 30 September 1997, Mr Tucker said that he had a further conversation with Ms Potts, which took place in the presence of Mr Ross. According to Mr Tucker, the thrust of the conversation was that the proprietors of the newspaper were very satisfied with Ms Potts’ performance and wished her to work full time. He said her response was, “No, no, I will not work full time. I have my family, my children to take care of and I cannot work full-time, but I will work for you for $70 per day”. He said that if she had agreed to work full-time, she would have been paid the award salary.

30 His evidence was to the effect that her proposal to work for $70 per day was accepted and the records show that for each of the weeks ending 30 August 1997, 6 September 1997, 13 September 1997, and 20 September 1997, she was paid $350.

31 For the week ending 27 September 1997, the records show that Ms Potts was paid $166. This came about, according to Mr Tucker, by virtue of the fact that at the beginning of that week, she rang the office to say that she was not able to come to work as she was suffering from a migraine headache. A similar message was received on each of the two succeeding days. On the Thursday of the week, Mr Tucker received a telephone call from a Dr James who told him that Ms Potts, his patient, had injured her foot and was in Mullumbimby Hospital.

32 The day following the conversation with Dr James, Mr Tucker, with Mr Ross, visited Ms Potts in the hospital. He said to her, “Don’t worry about not being at work, don’t worry about not being paid, we will organise some money to come to you. Concentrate on getting well and getting back to work”.

33 Mr Tucker said he left it to his brother to determine what should be paid to Ms Potts. Apart from the sum of $166 paid for the week of 27 September 1997, $160 was paid for the succeeding week, ending 4 October 1997. According to Mr Tucker, Ms Potts did not work at all during either week.

34 In respect of the week ending 18 October 1997, the wage records show she was paid $315. They contain a reference to her working half-day on 14 October. Asked about this, Mr Tucker replied, “Yes, I recall that she worked that week, but it was not for a full week and she indicated to the paper that she had a half day off and would not be there for half a day”.

35 There was then a reversion in the weeks ending October 25, 1997 and November 1, 1997 to the payment of $350 per week. The wage records indicate that this sum was paid to her for each of those weeks.

36 At about the end of October 1997, it seems that a proposition was put to all sales staff, whereby they would be paid wholly on commission and each would be allocated a particular town or district, exclusively. This proposal, as it seems, was unanimously rejected and not pursued further. It is not, I think, of any relevance to these proceedings.

37 For the week ending 8 November, 1997 and the 3 succeeding weeks, the wage records show that Ms Potts was paid $413. According to Mr Tucker, this arose from the fact that the offer of full-time employment to Ms Potts was repeated and, on this occasion, accepted. Mr Tucker said that it was his understanding that $413 represented the payment fixed by the award.

38 In the latter part of 1997, Comptran employed 2 Job Start employees, Graham Waters and Ceinwyn Ubrihien, whose salaries were subsidised. It seems plain that, for whatever reason, tension developed between Ms Potts and these new employees, particularly Mr Waters. She made it known about the office that, in her view, the work they performed did not justify the salaries paid. There was a particular incident on Friday, 28 November when Ms Potts verbally attacked both Ms Ubrihien and Mr Waters regarding the performance of their duties. Mr Tucker heard of the incident when he called at the office about 3pm. Ms Gardiner told him that both Ms Lindsay and Ms Potts were, at that time, discussing the situation with Mr Ross at his house, a short distance away. After speaking briefly to Mr Ross on the telephone, Mr Tucker proceeded to his house and, as he was let in, Ms Lindsay left. Ms Potts was sitting at a table and both Mr Ross and Mr Tucker sat down with her. In the presence of Ms Potts, Mr Ross said that there had been a dispute in the office that morning, that Ms Potts was very unhappy about the performance of Mr Waters and Ms Ubrihien and had demanded that they be sacked. Mr Tucker gave the following evidence as to what then transpired:

“I said to Harold and Leanne, “The episode that happened this morning down in the office is unsatisfactory and inappropriate and cannot be allowed to happen again and the two staff will not be sacked on the demand of another employee. That will not happen”.

Ms Potts was visibly unhappy with that and said, “I will not be dictated to, you will not tell me what to do, I will not work here if those two are working here”.

She then got up to leave. Harold Ross said “Go home, think about it, talk to your family about it, talk to your husband about it. I will come and visit you over the weekend and we will discuss this further”.

Ms Potts left. I spoke briefly to Mr Ross to say, “I will not be agreeing to sacking two staff on the demands of another employee”. Mr Ross agreed with me. I then left and went up to the paper. Mr Ross stayed at the house.”

39 On the following Monday, 1 December, Mr Ross reported to Mr Tucker that he had spoken to Ms Potts and that she did not intend to return to work, which is what in fact eventuated. She did, however, call at the office the following day and seek a reference from Mr Tucker, which he gave in the following form:

“Leanne Potts commenced employment with the Mullumbimby Star in July 1997 as an advertising salesperson.
She is a highly competitive salesperson who dramatically increased the advertising content of our newspaper.”

40 Asked in evidence about Ms Potts as an employee, Mr Tucker said that she was a good employee in some ways, “difficult in other ways”. He said that she was very good at getting advertising and selling advertising space but, in effect, there were problems in her working relationships with other members of staff. Asked about his contact with her during the course of her employment at the newspaper, Mr Tucker said that he would have spoken to her once or twice a week, about “daily pleasantries”, not substantive matters, and had never personally seen her behave inappropriately towards other staff members. He had never had cross words with her, including during the conversation at Mr Ross’ home on 28 November. He said that meeting was tense but there were no cross words. He specifically denied ever saying to Ms Potts words to the effect of, “You should be at home. I suppose you make your husband cook dinner. You would not last long with me”, or “ I could imagine what your house is like, it would be a pig sty”. He also denied swearing at, or in front of her; or being abusive to; or belittling her; or shouting at her; or using obscene language to her or in her presence. He further denied that when she called to ask for a reference and said, “Can we work something out. I don’t want to leave like this”, he “screamed” at her. He denied saying, “I don’t give a fuck” in response to her saying, “How can you do this? I have a family and it’s Christmas, you are not going to get away with this. You have picked the wrong person to do this to”. Mr Tucker said that as the whole of the office comprised a relatively small room, everyone present would not have been able to avoid hearing “a screaming match”.

41 Mr Tucker said that Ms Potts, subsequently, brought proceedings in the Industrial Relations Commission for unfair dismissal, but later abandoned them. She also commenced proceedings before the Chief Industrial Magistrate for alleged breach of the award in regard to her wages. He said that his understanding was that the Department of Labour and Industry asserted that there was no provision for Ms Potts to be employed on a part-time basis and, accordingly, that whatever the arrangements made for her employment, she was entitled to be paid as a full-time worker. He said that it was his understanding that Comptran dealt with Ms Potts in accordance with its legal obligations.

42 Mr Tucker said that he left it to Mr Ross to deal with the proceedings before the Chief Industrial Magistrate which, ultimately, led to a judgment on 27 August 1999 for $8,523.29 being entered against Comptran, comprising fine and court costs $552, witness expenses $629.40, professional costs $300, and underpaid wages $7,041.89. He said that his understanding was that the judgment was based on a finding by the Chief Industrial Magistrate that, for the whole of the period of her employment, Ms Potts was entitled to be paid the award and allowances appropriate to a full-time employee, irrespective of the days she actually worked.

43 He said that he then formed the view that, having regard to its other obligations, it would be difficult for Comptran to pay the amount ordered to be paid, immediately, and that, if possible, payment should be deferred until the end of the year or early 2000. He said that debts were owed to the company by advertisers who had been slow in paying, but by the end of the year he anticipated that Comptran would have sufficient cash resources to enable the debt to be paid.

44 Although Mr Tucker left the carriage of what occurred thereafter to Mr Ross, it is not in issue that solicitors Messrs Wroth Wall, acting for Ms Potts, registered the orders of the Chief Industrial Magistrate in the Local Court at Mullumbimby and, with a view to enforcing the order, issued a summons requiring Comptran Pty Ltd, or a director, to attend court and be examined as to the assets and liabilities of the company. It is also common ground that at Mullumbimby Court House on 23 November 1999, negotiations were conducted between Mr Ross and Ms Potts’ solicitor, Ms Melissa Begg, of Wroth Wall regarding payment of the amount due under the Chief Industrial Magistrate’s order. One proposal by Mr Ross was for a down payment of $1000 and the payment of the balance over a period of time, by instalments.

45 At one point, it seems clear, that Ms Potts, through Ms Begg, offered to accept $4,000 in full satisfaction of all outstanding money. There is an issue as to whether that offer, conveyed to Mr Ross, was accepted or not, a matter which is relevant to the first of the two imputations upon which Mr Tucker sues. His evidence on the subject of the debt due by Comptran was as follows:

Q. At the time did you have a view as to whether the company, Comptran, would be in a position to make that payment?
A. Yes, I was in the view - I was of the view that the company had, had to pay that amount but it would not be able to pay it at the time of the award, at the time of the decision but that later in the year or early in 2000 the company would be in a position to pay that amount.

Q. And from what resources would, in your view, the company have been able to make that payment?
A. From its own resources. We had outstanding moneys owed to us by advertisers who were slow in paying and Mr Ross was in the process, through the Local Court, of pursuing those potential bad debts and money was coming in and we were pledged that certain moneys would be coming in and be paid by that time.

Q. Now you have already touched on this, certain documents about the intention of Comptran was required to be provided to a court, is that correct?
A. That is correct.

Q. And what was your understanding of those proceedings themselves in 1999?
A. My understanding was that Mr Ross and my brother, Duncan, went to the Court, met with the solicitor for Mrs Potts and as a result of that there was negotiation that Comptran would pay a thousand dollars to cover court costs and that the residual amount would be paid off over a period of time.

Q. Now I think you subsequently became aware that there was a sum of $4,000 which would be accepted?
A. Yes.

Q. Is that correct?
A. Yes. My understanding was while our financial documents were being tendered to the Court it was agreed by Mrs Potts’ solicitor that we were not in a position at that stage to pay the full amount, therefore we would go to time payments and then an offer came from Mrs Potts, through her solicitor, for a payment of $4,000.

Q. To your understanding, to your knowledge, did that figure of $4,000 come from Mrs Potts’ solicitors or did it come from your side?
A. It definitely came from Mrs Potts and Mrs Potts’ solicitor.

Q. (Exhibit D shown) Can you remember seeing this letter? Did Mr Ross ever show you this particular letter?
A. I don’t believe so.

Q. It has been suggested in the matter complained of, the article, that there was a particular arrangement for the payment of the debt which had been agreed between Mr Ross and Ms Begg - this is the payment of the debt by Comptran. Are you aware of what I am talking about?
A. Yes.

Q. And that you were somehow involved in the welshing on the arrangement. I want to ask whether, at the time, you were aware of anything of that sort?
A. Not welshing on the arrangement.

Q. What was your understanding of what occurred?
A. My understanding, an offer was made on behalf of Mrs Potts by Melissa Begg for $4,000, that - I was aware of that offer. There was confusion with us at Comptran, at Saturday Star, whether that was the $1000 to cover the legal costs plus $4,000 or whether the $4000 was in complete retirement of the judgment. Mr Ross, as I understand it, spoke to Melissa Begg and the clarification that I became aware of, that $4000 was the global finalisation of the amount. We agreed to the payment of $4000. The problem we had was accessing that $4000 then and there but we knew we would have money later in the month, early in the next month. We went back or Harold Ross went back to agree to the $4000 and then a deed of agreement or some sort of agreement as to the amount in draft was put forward.

Q. That was to Mr Ross?
A. To Mr Ross.

Q. Did you see it?
A. No, I did not see that.

Q. Mr Ross told you about it?
A. Yes he did and there was a sticking point with it in that Mrs Potts stuck with the amount of $4000 but the amount was to be paid within seven days. That was not - I was told that was not what was agreed in the negotiations between Harold Ross and Melissa Begg at Melissa Begg’s office.

Q. And subsequently an agreement was in fact reached between Comptran and Ms Begg on behalf of Mrs Potts?
A. There was some to-ing and fro-ing up to, getting up to Christmas, some to-ing and fro-ing to just before Christmas and then early in January 2000 we were in a position to pay the $4000. That offer was made to Ms Begg. It was accepted and that finalised the matter.

46 Support for Mr Tucker’s contention that no concluded agreement was made with Ms Potts at the time of, or immediately following, the return of the examination summons in the Local Court, is to be found in Ms Begg's letter of 30 November 1999, which reads as follows:-

“Re: Leanne Potts v Comptran Pty Ltd
I refer to your letter of today concerning the recent negotiations to settle the above matter. Your letter recounts a sequence of events during the course of the negotiations with which we cannot concur. Our position of the current status of the negotiations is as follows:
1. On Tuesday 23 November 1999 I conducted a public examination of Comptran Pty Ltd (represented by Mr Harold Ross – director) at Mullumbimby Local Court in accordance with an examination summons issued by the Registrar on 12 October 1999.
2. During the course of the above examination, an offer was put by my client of the satisfaction of the judgement debt of $7,075.89 plus expenses to be made by Comptran Pty Ltd by the upfront payment of $1,000 (for out of pocket expenses associated with the hearing in the Industrial Court) and then monthly instalments of $250 per month up to the full amount of the judgment debt in response, Comptran Pty Ltd offered to make the payment of the $1,000 up front but was unwilling to pay more than $100 per month for the remainder of the amount of the debt. The parties left the Mullumbimby Court House on the 23 November with no agreement between them but with these offers on the table;
3. On Wednesday 24 November 1999, our client Ms Potts instructed us to communicate to Comptran Pty Ltd the additional offer that an upfront payment of $4,000 would satisfy the entire debt. Accordingly I communicated the offer to Mr Harold Ross by telephone at approximately 4.00pm on 24 November 1999. Mr Ross informed me at that time that he would “get back to me” with a response the next day;
4. At approximately 1.00pm on Thursday 25 November 1999, I received a telephone call from Mr Harold Ross during which he asked me (words to the effect of) “Does the $4,000 include the $1,000 from the previous offer?” I answered that it did, having interpreted the question as enquiring whether the global figure of $4,000 to be paid in satisfaction of the debt included the out of pocket expenses of $1,000, not that the method of payment for the $4,000 would be in accordance with the $1,000 up front and the $250 per month.
5. It was always the intention of our client during these negotiations to accept payment of the reduced amount of $4,000 in satisfaction of the total judgment debt on the condition that the whole amount was received up front.
6. During the telephone conversation between myself and Mr Ross on 25 November 1999, Mr Ross indicated that the offer could be accepted. This acceptance was communicated to our client and upon her instructions an agreement was prepared by us outlining the arrangement for payment by Comptran Pty Ltd of $4,000 within 7 days from the date of the agreement.
7. A copy of the Agreement was made available by us to be picked up by Comptran Pty Ltd from our office on the morning of Monday 29 November 1999. The agreement was subsequently picked up by Mr Ross on the morning of Tuesday 30 November 1999, who later telephoned this office at which time the discrepancy between the position of the parties became apparent.
The letter from Mr Ross today indicates that he interpreted our conversation of 25 November 1999 as an offer having been made which was not the intended position, it seems apparent that a miscommunication has occurred which is regrettable. We have been instructed that Ms Potts is unwilling to accept any payment of the judgment debt at the reduced amount of $4,000 in any other manner than the total amount upfront within 7 days from the date of the agreement. As a result, unless other arrangements can be agreed upon between the parties as to the payment of the judgment debt, our client will be immediately seeking to enforce the judgment debt at the full amount.”

47 According to Mr Tucker’s testimony, he first became aware of the suggestion that he “welched” on an agreement with Ms Potts, when he saw the subject article.

48 In the meantime, Mr Tucker said that he and Mr Ross decided to close the Star as a weekly newspaper and its last edition was published on 25 September 1999. However, commencing 30 October 1999, they published under the same name, a monthly newspaper and the first edition contained the following article by Mr Ross (exhibit K):

“The New Look Saturday Star:
For some weeks the closing of the Saturday Star as a tabloid has been the subject of all sorts of conjecture and reasoning especially by the Echo’s David Lovejoy.
The Echo’s reporting and editorials blamed Ross Tucker (how strange) and the lack of business support. Therefore the starting of the paper was a mistake. Even Max Eastcott was to blame.
The saviour of the Shire was out and about with large signs on his “bomb” during the election campaign. This had no influence on our decision to suspend activities.
A lot of people in this Shire will always believe any sort of garbage they read about us but I will attempt to set the record straight.
The Saturday Star ran for almost three years and would have battled on for a long time had it not been for the mad industrial laws in this country and one of our former employees.
The ex-employee was employed to sell advertising on a casual basis and could work any time or day that she wished. Our first mistake!!
She was in our employ for eighteen weeks in which she worked five days a week for 6 weeks, four days a week for 2 weeks, two days a week for 7 weeks and one week never worked at all.
This ex-employee fought with every person in the office and eventually insisted that I sack two of our other employees or she would leave. When I refused she quit.

She then took us to court for unfair dismissal, which was dismissed by the Magistrate of the Tweed Heads Court. Next we got a visit from a bureaucrat from the Department of Industrial Relations who insisted we pay this former employee full wages for every week she was in our employ plus a car allowance of $187 per week plus holiday pay for the full eighteen weeks, even though only six full weeks of the eighteen were worked and one week she never worked at all. He advised that at the time of her employment there was no provision in the advertising sales award for part time employees and whatever hours worked she was to be paid as a full time employee. We offered an alternative payment. It was rejected, and we were taken to the Chief Magistrates Industrial Court in Sydney and ordered to pay approximately $8500 for the days the ex-employee did not work.
As a direct consequence we decided to close down which resulted in five very faithful and excellent employees losing their jobs.
The Saturday Star is back in a new format and we will continue to keep residents informed of issues on a monthly basis. We will publish the new look Saturday Star at the end of each month, which means that we will be able to cover two Ordinary Meetings of council plus all the other meetings in between. This will no doubt upset any one whether a developer, greenie, staff or straight who may try to sneak something through! We’ll be watching!!

49 Mr Tucker said that the Star as a monthly newspaper was produced entirely by his wife, Mr Ross, and himself and had no paid employees. Asked by Mr Hale why he ceased weekly publication of the newspaper, he responded that, in effect, the size of the paper meant that it was not in a position, financially, to employ sale staff on a full time basis. He added that it was also his view at the time, that, in light of the Chief Industrial Magistrate’s decision, it was not possible to employ sales staff on a part-time basis.

50 Mr Tucker testified that he first read the subject article on Wednesday 8 December, but at that stage did no more than scan it, “It didn’t have a very deep impression upon me”. However, that evening when his wife came home, she seemed upset and said, “Have you read that article? What are you going to do about it?” He replied, “Don’t worry about it, there has been a lot of this stuff, don’t read too much into it”. She then demanded that he read it carefully, adding that she had felt “most uncomfortable” by the reaction about the town, of people whom she knew well.

51 Mr Tucker said that he became angry at the fact that what was in the article was upsetting his wife and sat down to read it closely. Asked as to his reaction after doing so, he answered:

“A. I was angry and frustrated. I felt that while there had been many attacks upon me by The Echo and by Fast Buck $ , they were generally in relation to my activities as a councillor and my work in local government and I guess I had grown used to just accepting that goes with the territory. It was about me as an individual, about my reputation, about how I conduct business, about how I treat money and how I handle money and how I handle debts and I was very, very angry that it was such, such, I think, a vicious attack, quite untrue.”

52 Mr Hale then asked Mr Tucker about the two imputations found by the jury and there was this exchange:

“Q. Firstly, if I can go to imputation 6E, the jury has found that this article conveyed the following imputation: that the plaintiff acted dishonourably in his negotiations to settle a pay claim for compensation by a former employee in that he made an offer of settlement which, after it was accepted by the former employee, he refused to honour. Now, firstly, is that imputation true?
A. Yes that is, that is --

Q. I am asking whether that is the case?
A. No, that is not the case. That is not true.

Q. Now, how does it make you feel, knowing that this imputation has been conveyed in this newspaper?
A. It is embarrassing and hurtful in that in the area where we live people who are dishonourable and do not honour their debts very quickly become outcasts. I, I, in that area, have credit virtually everywhere. Anything I do at the farm, any machinery breakdown, fuel, tyre repairs, anything I get on credit. It is booked up and that only happens because when you do get your accounts, you pay them promptly. You don’t debate them - if there is an obvious error, certainly, but you don’t go in disputing them and you preserve those relationships. This article is saying I am dishonourable and I welsh on deals, I cannot be trusted. That is very hurtful and hurtful not only to me but in the eyes of people that I know respect and I hope might enjoy some respect. That is something that attacks my character.

Q. How does it fit with your code of behaviour, somebody having the background you have both in the Army and since the Army?
A. It is a complete anathema and it is just something - had I behaved dishonourably, let’s say in the Army for 24 years, I would not have had what I consider to be a reasonably successful career as an officer. I would not have stayed there. I would not have enjoyed the Army the way I have. It is completely the antithesis of how I think and in the culture in which I have been brought up as a child, and as a soldier, in all of my dealings.

Q. And with your constituency (if I might call it that) of the older, more traditional people who live in Byron, how do you see issues of honour affecting them?
A. Very markedly. I think it is something that they hold very dear, older traditions or older values, their older behaviour, and an article such as this chips at my standing in the eyes of those people.

Q. As a councillor how have you sought to approach the discharge of your duties - and I am thinking in terms of whether you have approached it on the basis that they should be followed honourably?
A. Well I have, I have tried always to be open and very clear about where I stand on matters. I have always respected confidentialities when they have been put before me and I have tried - and I think succeeded - to be consistent in my behaviour so that people know when they approach me that’s how I will behave. I think I have succeeded that way and yet this would indicate to the contrary.

Q. And perhaps I should ask, had it not been for the suggestion of the payment of $4000 by Ms Begg, did you have a view as to what sum of money Comptran would pay in order to discharge the debt?
A. It would be the 7,000. It would pay the full amount. It would pay the full amount.

Q. And out of what would it be paid?
A. It was always hoped that it would be paid out of the funds coming into Comptran from the debtors. Should that fail, should that fail then the obligation would, we would take up, we would recognise - Harold Ross and myself would take up the obligation to honour that. It was always felt the debtors and the amount there was capable of sustaining that.

Q. If I can turn to the second of the imputations, which is 6G, again the jury has found that the article conveyed an imputation that you are a domineering employer in that you abused employees by belittling them and shouting at them, using obscene language. Now, that is what the jury has found has been conveyed. Are you such a person?
A. I am not.

Q. Do you, in the context of employment, amount to a domineering employer?
A. No.

Q. Do you abuse employees?
A. No.

Q. Do you belittle them and shout at them?
A. No.

Q. What about using obscene language?
A. Definitely not.

Q. And did you conduct yourself in that respect with regard to Ms Potts?
A. I did. (sic)

Q. And having regard to your long involvement in the Army and the role in personnel which you held, how does that affect, or having that background, what is the impact of the imputation?
A. The imputation indicates that I am a person that just would not last in the Australian Regular Army as an officer responsible for soldiers, would not be given command. If you cannot deal with your subordinates and cannot deal with your peers and your superiors, you just would not, you would not be given command. I would not be given the responsibility of soldiers. I would not have had a career in the Army for 24 years as an officer. You just don’t deal with soldiers like that.

Q. How does an allegation like that fit with the conduct of your professional career?
A. It does not fit. It does not fit at all. It is just - I have never conducted myself that way.

Q. Also having regard to your code of conduct, what do you say about the plaintiff dealing with employees in the manner described in this imputation which the jury has found conveyed?
A. Could I have that question again?

Q. Yes. How does this imputation fit with your code of conduct?
A. It does not fit. That is not the person I am.

Q. Did you have any concerns as to how your constituency might react to the article insofar as it relates to an imputation such as this second one?
A. Yes, I felt that many in the - my constituency or those that would generally support me would be very concerned about such, such allegations and they would, they would consider them and question what sort of person I am. That concerned me greatly.

Q. At the time of the publication did you have any concerns about the impact this might have on your political career, this is the publication of this newspaper?
A. Yes I did. Essentially we had only just come out of an election three months earlier in September. However, this, it is that type of article that chips away at a person’s reputation and their character and can do some lasting damage. I was concerned that it would erode my support.

53 Mr Tucker proceeded to give evidence about his feelings when relations, including his brother, Duncan, and friends, in the days following, spoke to him about the article. He said he was also angry that the article had been published without any reference to him as to its truth, particularly as, although they were in competition, he thought that he and Mr Ross had a civilised relationship with the proprietors of the Byron Shire Echo. He composed a letter demanding an apology, which he hand-delivered to the editor, Mr Lovejoy, on 10 December 1999 at approximately 4pm. No apology was printed or offered. He explained the effect upon him of the failure to apologise thus:

“The problem with not getting an apology is that you are unable to defend yourself in the eyes of people who read the article and question what sort of person you are. People ask me repeatedly, the question asked of me after the article was, “What are you doing about it”. I have asked for an apology in the next edition of the Echo and in many ways that in part indicates you are not taking this lying down and there has been an error made. With no apology the whole matter is left open as to whether it is true, whether it is partially true, whether it is false and you have to justify and defend yourself against everything in the article.”

54 After delivering the letter to Mr Lovejoy, he went, as was his custom on Friday afternoon, to the Ex-Services Club, which he said was one block away from the offices of the Echo. Asked by Mr Hale to describe what happened when he went into the RSL Club, he gave further evidence as follows:

“A. When I went in there, there was a group of about five or six men there that I normally drink with on a Friday afternoon. When I walked in they went quiet, they stopped conversation. One of that group, a Ray Tilgmer, he partially separated himself, stepped away from the group one step.

Q. How many were in this group approximately?
A. Five or six and it’s the same group each week.

Q. Before he spoke to you, when you observed what happened, did you form a view as to what was happening?
A. Yes, I formed a view for these blokes to stop talking, they were talking about me and the article. It takes a lot to stop these blokes talking so I was very confident what they were talking about.

Q. What was your reaction to that?
A. I felt a little uneasy but I know these people well but I still felt uneasy and Ray Tilgmer separated himself from the group and said, “What’s this about, the article in the Echo this week and what are you doing about it?” My answer was, “I have just this minute come from the Echo office where I have given them a letter asking for a retraction and apology in next week’s edition.” Things then started to free up with this group and there was restrained talk about the article and my response was that it was a bunch of allegations and they were all untrue.

Q. What was your overall response to this incident being the reaction of your normal Friday night drinking group as it were?
A. I thought about it and it made me feel very uncomfortable and essentially not immediately but within a week or two I ceased going to the Ex-Services Club and drinking with these people as a regular --

Q. Why was that?
A. I felt uncomfortable. There was no apology. A lot of the procedure had been my wife would drop me at the Ex-Services Club on Friday night around about five o'clock and then she would later come back six, 6.30 and we would go off and have a meal somewhere with some of these people and their wives. That was the procedure we would fall into. My wife felt uncomfortable with that arrangement and I felt uncomfortable and that I still had to defend myself with people who I was friends with.”

55 Over the following weeks, he said that he noticed a marked difference in the way people reacted to him, compared to previously. The article was raised with him by several fellow councillors and by members of the Council Management staff. The tenor of the enquiries to him was, “Is there truth in the article?”. He said that he could do no more than deny that there was any truth in the imputations, denials which were rendered more difficult by the fact that he had to concede that Comptran had been in dispute with Ms Potts. He said he thought his denials achieved varying degrees of acceptance – “I thought some people thought it had got to be true. I didn’t feel confident that I was convincing people that the allegations were false, but that followed through to people I knew”. He was unsettled by the somewhat forthright statement to him by a Mr Theodossiou, coach of the A-grade football side of the club with which he was involved, “Is this true? This better not be true”. He said that this statement made him feel that it was now severely in question whether he continued to be held as a man of integrity and entitled to trust and respect.

56 He said that it came as a shock when long time friends, Mr and Mrs Towers, proprietors of Ray Towers Carpets who had been advertisers in the Star, ceased advertising and, at the same time, their social relationship terminated, although not with any acrimony.

57 Initially, he said that his wife also was very upset with the article and that this hurt him and made him angry. Generally, he said that he felt that he was “always on the defensive for things I hadn’t done. It seemed terribly unfair”.

58 Asked by Mr Hale as to his reaction to the fact that imputations, which he knew to be untrue, were published of him, he replied:

“A. The reaction is anger because its wrong and there is no easy quick way to redress it or if there was that option wasn’t taken up, that they persisted that the allegations persisted, the imputations persisted is unsettling and it impacts on your general life and your state of mind and you think about it. I would have thought about this article and what was said in there numerous occasions rather than put it out of my mind and the times when you could put it out of your mind it only takes a small reaction from someone which you feel is conscious of it or says something to you, then it becomes a very live document in your head again so it is extremely unsettling.”

59 As to other matters contained in the subject article, Mr Tucker said that nobody connected with Comptran paid money to a Mr Wilson in settlement of a defamation claim as alleged; that he had never said, or implied, that Ms Potts was incompetent, disloyal or slack in her performance of the job; that he never tried to recover the reference that he gave her; and that he has not made any attempt to contact Ms Potts since the first week of December 1997. He also said that, so far as he was aware, Mr Ross never claimed that Mr Fast Buck$’ sign caused the paper a lot of damage; or that any threat was made to Ms Potts to, “do a further story in the November issue if she didn’t compromise”; or that the article headed The New Look Saturday Star was in any way intended to put any pressure on Ms Potts; or that he had done anything to stop her obtaining other employment; or that he had arranged for the hearing before the Industrial Magistrate to be held in Sydney rather than on the North Coast. He said that if Ms Potts had withdrawn her resignation in the days following 28 November 1999, he would have permitted her to recommence work immediately.

60 At the conclusion of Mr Tucker’s examination in chief, there was the following question and answer:

“Q. Just finally, the article was published in December 1999, proceedings have been on foot for some period of time, what effect have these proceedings and the article itself had upon you?
A. I think the effect of the article has been to by degrees it’s affected my confidence particularly in the public domain and meeting people. I have certainly become somewhat withdrawn from public activities and social contact, I suppose more than public activities, than I was prior to the article.
The duration of this case has been I think emotionally draining. It has been quite a stressful matter. I must say I am pleased to be at this position right here and now in the hope there might be some finality to it.”

61 Mr Tucker was closely cross-examined by Mr Connell, counsel for Echo, over a lengthy period. He conceded that, personally, he had the capacity in the latter half of 1999 to raise a loan in order to pay the amount ordered to be paid by Comptran, if he had been minded to do so. He also conceded that on occasions in the latter half of 1999, there were credit balances in the bank account of Comptran, which exceeded the amount due under the order. However, he denied, having regard to the obligations of Comptran in respect of the bank loan of $80,000 that, in reality, there were ever sufficient credit funds available.

62 He agreed that he approved for publication the article, written by Mr Ross, headed The New Look Saturday Star, on 30 October 1999, and at that time he was aware that the Industrial Registrar had refused the application by Comptran to pay the fine, court costs, and professional costs, totalling $852, by instalments of $100 per month. The letter conveying such information, exhibit 1D-7 dated 11 October 1999, also intimated that Ms Potts had rejected the application to pay the amount due to her by instalments.

63 However, Mr Tucker denied that the article published on 30 October 1999 was approved by him because of his anger towards Ms Potts and he also denied that it was designed to injure her. He said that he did not think Ms Potts would find the article offensive as it constituted a factual statement, in brief, of her working history and the outcome of the proceedings before the Chief Industrial Magistrate.

64 As to Mr Tucker’s understanding of the basis of the Chief Industrial Magistrate’s decision, there was this exchange with Mr Connell:

“Q. (Shown exhibit K) When you approved that article for publication, what I suggest to you was that, knowing that the Chief Industrial Magistrate had accepted Ms Pott’s version of events that she was full-time and had rejected Mr Ross’ version of events that she was part-time, that you were simply refusing to accept the umpire’s decision?

268 More significant, in this case, I think is Mr Tucker’s entitlement to damages for emotional and physical distress, which I assess as very considerable. Included in this are components for the anxiety and uncertainty which he has had to endure in relation to this litigation. He is also entitled to damages for his injured feelings; loss of self-esteem; sense of indignity and sense of outrage, all of which, on the evidence, he experienced as a consequence of the defendants’ publication.

269 Apart from damages for injury to reputation and distress, Mr Tucker is entitled to a sum of sufficient size to vindicate his position, namely, in the words of Lord Hailsham LC in Broome v Cassell & Co (1972) AC 1027, a sum “sufficient to convince a bystander of the baselessness of the charge”.

270 Mr Tucker’s claim to be entitled to aggravated damages should also, in my opinion, succeed. I identify his knowledge of the falsity of the allegations against him; the failure of Echo to publish a retraction and apology when given the opportunity to do so; the failure of the defendants to inquire of Mr Tucker before publication; and the conduct of the trial by both defendants, in so far as they maintained throughout, the truth of the two imputations, the truth of the contextual imputations, and, what I regard as a defence of qualified privilege lacking in bona fides. Not only did Echo call positive evidence with the intent of establishing the truth of the imputations but both its counsel and Mr Fast Buck$ cross-examined Mr Tucker in a hostile fashion. These matters, I accept, increased the hurt to Mr Tucker’s feelings, as was made clear by the evidence of his wife given in the case in reply. I infer also that the reporting of the case in the area of the Byron Council was likely to increase the hurt to his feelings. There was evidence of at least one report of the trial, albeit a fair report, published in the Byron Shire Echo, itself.

271 Taking all these matters into account, I assess damages at the sum of $125,000, which should be awarded against both defendants. Mr Tucker is also, in my view, entitled to interest, which I will award at 2% per annum from the date of publication. Interest should, in my opinion, be calculated on the whole amount of the damages. I assess it at $14,329.

272 Cost should follow the event.

273 I make these orders.

1. Verdict and judgment for Mr Tucker against both defendants in the sum of $139,329, inclusive of interest.
2. Order both defendants to pay Mr Tucker’s costs.

3. Exhibits may be returned.

I CERTIFY THAT THIS AND THE
PRECEDING 123 PAGES
CONSTITUTE A TRUE COPY OF
THE REASONS FOR JUDGMENT
OF ACTIING JUSTICE PATTEN

………………………..

ASSOCIATE

06/09/2005 - import to publish - Paragraph(s) 1 - 273