Vaa v Barakat

[2017] NSWDC 300

District Court

New South Wales

Medium Neutral Citation:	Vaa v Barakat [2017] NSWDC 300
Hearing dates:	17 August 2017; 6 and 7 September 2017; 17 October 2017
Date of orders:	02 November 2017
Decision date:	02 November 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Costs reserved. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – defamation – plaintiff brings proceedings for publication of a poster on shop premises with her photograph and the word “thief” and for a conversation with a shop worker – whether each of the matters complained of was published – whether the second matter complained of was published to a third party – defences of justification, qualified privilege at common law and honest opinion – damages – method of assessment of claims where aggravated damages are sought – mitigation of damages
Legislation Cited:	Defamation Act 2005 (NSW), ss 25, 31, 34, 35, 36 and 41 Evidence Act 1995 (NSW), ss 135 and 140
Cases Cited:	Ainsworth v Burden [2005] NSWCA 174 Al Muderis v Duncan (No 3) [2017] NSWSC 726 Angel v Hawkesbury City Council [2008] NSWCA 130 Attrill v Christie [2007] NSWSC 1386 Beaven v Fink [2009] NSWDC 218 Bennette v Cohen [2009] NSWCA 60 Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956 Bristow v Adams [2012] NSWCA 166 Byrne v Deane [1937] 1 KB 818 Cao v Liu [2013] NSWDC 172 Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272 Cripps v Vakras [2015] VSC 193 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 Dillon v Boland; Dillon v Cush [2012] NSWCA 364 Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 Google Inc v Duffy [2017] SASCFC 130 Hamilton v State of New South Wales (No 3) [2014] NSWSC 1915 Henry v Minett (1910) 13 GLR (NZ) 138 Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 Jones v Dunkel (1959) 101 CLR 298 Lower Murray Urban and Rural Water Corp v Di Masi; Lower Murray Urban and Rural Water Corp v Belbin; Lower Murray Urban and Rural Water Corp v Marciano (2014) 43 VR 348 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McGlen-McLeod v Galloway [2012] NSWCA 368 Miller v R [2015] NSWCCA 206 Nichols v J J Newberry Co, 150 F.2d 15 (9th Cir. 1945) Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 Photi v Target Australia Pty Ltd [2006] NSWDC 265 Pleau v Simpson-Sears (1977) 15 OR (2d) 436 (CA) QBE Insurance (Australia) Limited v Orcher [2013] NSWCA 478 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rookes v Barnard [1964] AC 1129 Sheales v The Age Co Ltd [2017] VSC 380 Skalkos v Assaf (2002) Aust Torts Reports 81-644 TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Umeyor v Ibe [2016] EWHC 862 Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035 Wade v R (2014) 41 VR 13 Webb v Bloch (1928) 41 CLR 331 Wilson v Bauer Media Pty Ltd [2017] VSC 521
Texts Cited:	Professor R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (Carswell) J P Cashen “Defamation Cap Rising Well Above Inflation” (Gazette of Law and Journalism, 10 December 2014) New South Wales Government Gazette No. 56, 26 May 2017, p 1782 R. Parkes QC, A. Mullis, G. Busuttil, A. Speker & A. Scot, Gatley on Libel and Slander (Sweet & Maxwell, United Kingdom, 12th ed. B Shuhyta, “Supermarkets take to posting CCTV images to help identify shoplifters, lawyer warns of defamation risk”, ABC News, 20 January 2016 Tobin QC, T. K., Aspects of the Law of Defamation in New South Wales (Law Society of NSW, Sydney 1990) Justice Young, P.W., “Disclosure of Evidentiary Video Tapes in Personal Injury Litigation” (2001) 75(6) ALJ 353
Category:	Principal judgment
Parties:	Plaintiff: Lei Vaa Defendant: Tony Barakat
Representation:	Counsel: Plaintiff: Mr C J Dibb Defendant: Ms S Chrysanthou   Solicitors: Plaintiff: Edwards Kirby Lawyers Defendant: Slater & Gordon
File Number(s):	2016/239218
Publication restriction:	None

Judgment

The plaintiff’s claims for defamation

1. These are proceedings for defamation for two publications, one of which is asserted to be a poster in a shop window and the other a conversation behind the plaintiff and the person behind the counter in the shop.

2. The first matter complained of is pleaded to be a sign placed on a shop window in July 2016, consisting of the photograph of an unidentified woman (the plaintiff, according to identification evidence), and with the word “THIEF!” in capital letters above and below (“the poster publication”). This poster is claimed to have remained on the shop window from an unknown date in early July (the statement of claim refers to 6 July 2016) up until at least 13 July 2016 (when the plaintiff visited the shop), and for an unspecified time thereafter.

3. The second matter complained of is an oral publication (“the oral publication”), between the plaintiff and defendant on or about 13 July 2016 as follows (paragraph 5 of the Amended Statement of Claim):

Plaintiff: “I am the person in the picture in the window. Can you take the picture down please. I did not steal anything.”

Defendant: “No. I am not taking it down. I have spoken to my solicitor and I am allowed to hang it up there. It is my property and it is not coming down. I will show you on the footage what you have done.”

Defendant (showing some video footage): “See, see you take your hands in and out of your pockets five times. That is five items you have stolen. Who takes their hands in an [sic] out of their pockets that isn’t stealing. This footage says it all?”

Plaintiff: “I didn’t. I swear I didn’t. I didn’t know I was taking my hands in and out. I do this without thinking. I didn’t steal anything. Take it to the part in the footage where I put all my stuff on the counter and paid for it.”

Defendant: “No. I am not going through this anymore. You are a thief.”

Plaintiff: “Please, I didn’t do it. I promise. Take it down.”

Defendant: “No, you’re a thief. The cameras say it all.”

Plaintiff: “I am going to call the police.”

Defendant: “Go ahead. I work very closely with the police. I wasn’t going to take this any further but now that you won’t let this go I am not taking the picture down. How much money do you have in the bank?”

Plaintiff: “I have some.”

Defendant: “I have plenty. I have more money in the bank than you. Do you think I am an idiot. I have put the note up with my solicitor’s advice. I have a right to hang this up because you were stealing.”

4. The particulars of publication for each of the issues are identified in the Amended Statement of Claim as follows:

1. As to the poster affixed to the window of the shop, this notice was seen, read and understood by persons who knew the plaintiff and recognised her from the photograph, including the three named persons in paragraph 3(ii) of the Amended Statement of Claim and witnesses called at the hearing;

2. As to the conversation in the shop, the words spoken was spoken in the presence and hearing of “a number of shoppers and one of the plaintiff’s staff”.

5. The imputation pleaded as arising from the poster publication is that:

1. The plaintiff is a thief (the matter complained of as a whole).

6. The imputations pleaded to arise from the oral publication are that:

1. The plaintiff is a thief;

2. The plaintiff stole five items from the defendant’s shop.

7. The defendant is described in paragraphs 1 and 2 of the statement of claim as “the operator of a shop known as One Stop Bargains” at 12 Mount Druitt Road, Mount Druitt, a location “less than 500m from the plaintiff’s home”. He is asserted to have published the poster “by affixing it to the window of his shop, where it was visible to anyone passing on the street and was seen and understood by an unknown number of persons” (paragraph 3 of the statement of claim. Three persons who saw it are named. One of these persons, Mr Taimi Pougia, gave evidence about what he saw, which is set out in more detail below.

The defences

8. The defences originally pleaded were:

1. Justification pursuant to s 25 Defamation Act 2005 (NSW); and

2. Honest opinion pursuant to s 31 Defamation Act 2005 (NSW).

9. The defendant also denied that he was the owner or operator of the shop or that he had affixed the poster to the window.

10. There were conflicting documents on this issue, most or all of which appear to have been in the possession of the plaintiff’s solicitors prior to the hearing. One of these was a retail lease was entered into by Ms Taylah Barakat as lessee on 6 March 2016 for use of these premises as a two-dollar shop called “Our Bargain Hut” (Exhibit 9). In addition, there were public records available, such as an ASIC Business Names Extract which described the business at 12 Mount Druitt Road, Mount Druitt as “Our Bargain Hut” and a Ms Taylah Barakat, the defendant’s daughter, as having been an individual business name holder since 24 August 2015 (Exhibit F). However, in paragraph 3 of a statement to police which the plaintiff obtained in the course of criminal charges laid against her, the defendant identified himself as a former owner of the shop and said he was “still an employee” (at paragraph 4). He also said that he printed off the photograph of the plaintiff and that he put this behind the counter “for staff to see so that they would be able to identify her when she came back in” (paragraph 13).

11. As a result of the apparent inconsistency between these documents requiring an amendment to the pleading, the plaintiff sought, and was granted, an adjournment on the first day of the hearing.

The plaintiff seeks leave to amend her pleadings

12. On the first day of the hearing, 17 August 2017, the plaintiff sought leave to amend to bring an alternative pleading that the defendant:

1. Signified his approval of the publication in his statements to the plaintiff on 13 July 2016 and in his police statement dated 2 November 2016;

2. Alternatively, had the authority to remove the poster and did not do so, thereby assuming responsibility for the publication.

13. The defendant could not meet that alternative pleading and the parties agreed that an adjournment was necessary.

14. I granted leave to the plaintiff to amend the pleading, granted leave to the defendant to amend the defence to plead qualified privilege at common law and granted leave to the plaintiff to file a Reply.

15. The granting of an adjournment on the first day of any hearing is not a course to be encouraged. In the District Court, such applications must generally be made to the List Judge, not the trial judge, and it was necessary for me to consult the List Judge as to whether or not I should hear the application or refer it to him.

16. My reasons for hearing and granting the adjournment included the desirability of all issues being dealt with expeditiously in circumstances where, by readjustment of the court’s listed hearings, a gap could be found to enable the adjournment of the hearing. However the principal reason was the likelihood of a refusal to grant leave to amend in a case of this nature in circumstances where there are decisions to the contrary in the New South Wales Court of Appeal, particularly in defamation proceedings (as to which see Dillon v Boland; Dillon v Cush [2012] NSWCA 364; Ainsworth v Burden [2005] NSWCA 174; TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682; see also the observations of Mr Tobin QC as to the frequency of adjournments on the first day of the trial at p. 49 of Aspects of the Law of Defamation in New South Wales (Law Society of NSW, Sydney 1990), but also in proceedings for damages in tort generally (as to which see Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309). In Photi v Target Australia Pty Ltd [2006] NSWDC 265 at [16], Mr Evatt, one of the most experienced barristers in this field, consented to the addition of a defence of qualified privilege during the hearing on the basis that the appellate courts would be likely to set any judgment aside if consent were not given. Decisions such as Dillon v Boland; Dillon v Cush, where the amendments of particulars of malice made in 2012 were permitted at the second hearing of the plaintiffs’ claim for a slander spoken 7 years beforehand, in 2005, suggest that such a course is a wise one.

17. In relation to the defence of common law qualified privilege, a Reply has now been filed, pleading that the occasion of privilege was exceeded, or alternatively that the defendant was actuated by malice, in relation to the first matter complained of, by reason of the following:

1. The fact the matter complained of was displayed in a position from which it was visible to passing members of the public;

2. The fact the first matter complained of was not readily visible to persons working in the shop;

3. It is to be inferred from the above that the publication of the first matter complained of was intended to assert to the public at large that the plaintiff was a thief in order to embarrass and humiliate the plaintiff and that that was its dominant purpose;

4. The defendant continued to display the first matter complained of for some weeks even after being made aware of the plaintiff’s adamant denial that she had stolen from the plaintiff’s shop.

18. As to the second matter complained of, the following particulars of malice are provided:

1. The fact the defendant took no steps to restrict the persons to whom the publication was made, even though those persons clearly included members of the public with no interest in the matter under discussion;

2. The manner of the defendant in the course of publication of the second matter complained of;

3. The malice of the defendant in respect of the publication of the first matter complained of.

19. A defence of honest opinion is also pleaded. As counsel for the defendant notes in her submissions, there is no plea in the Reply in defeasance of the defence of honest opinion pursuant to s 31 Defamation Act 2005 (NSW).

20. The following issues arise in relation to damages:

1. The plaintiff seeks aggravated damages and argues that if such damages are awarded, the cap does not apply (Wilson v Bauer Media Pty Ltd [2017] VSC 521);

2. The defendant raises matters in relation to mitigation of damage.

21. The issues in dispute are largely matters of factual evidence. These were difficult to resolve for the following reasons:

1. Neither party complied with the Standard Orders for Hearing by providing a chronology or statement of issues.

2. The parties did not have discovery or seek case management in the Defamation List.

3. The parties chose not to order a transcript and could not agree upon what evidence had been given by certain witnesses. This created problems as there were substantial challenges to the credibility of both the plaintiff and defendant as well as to certain of the witnesses.

4. The application by the plaintiff on the first day of the hearing (17 August 2017) to adjourn the hearing and the repleading of their respective cases by both parties added to the confusion.

The circumstances giving rise to these proceedings

22. The events in question all took place in the shop the plaintiff calls the “one Stop Bargain Shop” and the defendant calls “Our Bargain Hut” (“the shop”), in July 2016. I will first set out the events of 1 July 2016.

The plaintiff visits the shop on 1 July 2016

23. The plaintiff’s evidence was that she lived three to five minutes’ walk away from the shop and that she went there “every day”. On 1 July 2016, accompanied by two of her seven children, she visited the shop to make some purchases.

24. The plaintiff said she recognised the defendant as someone who worked at the shop twice a week. She also knew Taylah Barakat by sight as someone who, she said, worked at the shop about three to four times a week (which tends to confirm that the plaintiff must be a regular shopper in order to make these observations). However, on 1 July 2016 the only person serving was a young man, whom she described as another person who worked at the shop one to two days a week.

25. On 1 July 2016, Jackson Barakat, who is the defendant’s son and the brother of Taylah, was working in the shop by himself. Jackson Barakat, who is 21 years old, gave evidence that he had worked in the shop for about two years. He was paid a wage by his sister, Taylah Barakat, whom he described as the shop owner. He was familiar with the shop’s CCTV system, which consisted of 8 CCTV cameras which could zoom in and out. Recorded footage was retained until the memory filled up (which took about 12 months).

26. All the evidence confirms that neither Ms Barakat nor the defendant were at the shop at the relevant time of the plaintiff’s visit. The only other member of the Barakat family who came to the shop was Jackson Barakat’s grandmother, who can be seen on the CCTV having a 10-second conversation with him at the time the plaintiff was on the shop premises.

27. The plaintiff indicated that she was just doing her shopping in the usual way. Jackson Barakat said that the plaintiff drew his attention because she was acting in a manner that he considered to be suspicious. He observed her standing in front of the lipsticks display picking up and holding lipsticks and then putting her hand in her pocket with something in it. While she was doing this, she was glancing furtively at him. He told the court that on the CCTV “You can see her looking over her left shoulder”. His observations of the plaintiff’s darting glances at him while putting her hands in her pocket made him suspect that she was inserting items (lipsticks from the make-up section) into her pocket and he operated the camera to zoom in and to follow her as she walked around the shop.

28. When the plaintiff came to the counter, she did not purchase any lipsticks, Jackson Barakat claimed, although the plaintiff had been standing in front of a lipstick counter for some time. Instead, she purchased two ice-blocks for the two children who accompanied her. He thought she was in the shop for seven minutes.

29. The plaintiff’s evidence is to the contrary. She said she bought two lollipops for $1.50 each, 2 ice-blocks at 50 cents each and a $4 lipstick, making a total of $8. She had looked at the $8 lipstick before choosing a $4 lipstick. She has since thrown away both the receipt and the lipstick.

30. The plaintiff denied in her oral evidence that she had put anything in her pocket. She was shown her answers to interrogatories (Exhibit 1):

“Q. While you were at the Shop on or about 1 July 2016 did you place any lipstick in your pocket?

A. I can’t recall. I initially was looking at a more expensive lipstick for about $8. I then noticed a less expensive lipsticks range. I can’t recall if I put the $8.00 lipstick in my pocket or not. I put the $8.00 lipstick back on the display when I saw a $4.00 lipstick that I liked and ultimately purchased.”

31. The plaintiff’s evidence contained a number of inconsistencies, of which this is only one.

The CCTV footage

32. The CCTV footage was shown in court to the plaintiff. The images are clear. The plaintiff is seen picking up and holding items in the makeup display. The long, furtive glance when she looks towards Jackson Barakat (which starts at 37 seconds in the first CCTV extract) is clearly demonstrated.

33. I was only generally addressed about the CCTV contents, but I specifically note:

1. The CCTV is incomplete. The first film, which is 3 minutes and 37 seconds, is taken after Jackson Barakat has zoomed in on the plaintiff, after he said he was alerted by her previous behaviour. She is seen looking at items in the make-up section, picking up small cylindrical items which look like lipsticks. She places one in her pocket while giving a very long and furtive stare from 37 – 55 seconds in the direction of Jackson Barakat, whose head can briefly be glimpsed.

1. It is just after this that Jackson Barakat’s grandmother comes in smiling in recognition of him (at 55 seconds), addressing a quick question to him and giving him a hug. She is gone by 1 minute and 5 seconds.

2. The plaintiff continues to pick up items with her right hand while keeping her left hand in her pocket, apparently clutching something or making a fist, until the 3 minutes and 37 seconds break in the film.

3. It is clear from the second film, which is 2 minutes and 8 seconds long, that Jackson Barakat is watching the plaintiff move around the store and zooming in on her. When she is at the ice-blocks section, she takes her left hand out of her pocket at 59 seconds but puts it back in at 1 minute and 20 seconds, where it remains for the rest of the time until she is shown paying at 2 minutes and 8 seconds. Once again, it looks as though an item has been secreted in her pocket.

4. It is not possible to see what was bought on the film, although both the plaintiff’s hands can be seen at this stage. The angle of the camera does not include her hands.

34. Mr Dibb challenged the admissibility of the CCTV as lacking authenticity, being unclear and lacking probative value pursuant to s 135 Evidence Act 1995 (NSW).

The admissibility of the CCTV footage

35. CCTV footage is ubiquitous in shop premises, as well as in many public areas. The tender of CCTV evidence is increasingly common in civil cases (QBE Insurance (Australia) Limited v Orcher [2013] NSWCA 478) and in criminal proceedings (Miller v R [2015] NSWCCA 206). It is not footage prepared for the specific purpose of surveillance of a particular individual (as to which, see Justice Young, P.W., “Disclosure of Evidentiary Video Tapes in Personal Injury Litigation” (2001) 75(6) ALJ 353) but for purposes of security or, in the case of shop premises, to obtain evidence of shoplifting and, as such, is generally regarded as reliable evidence. Although its use to detect crime is suggestive of collection of evidence for investigation of a crime, CCTV footage has nevertheless been considered to amount to a business record (Hamilton v State of New South Wales (No 3) [2014] NSWSC 1915). (I note that the same challenges to CCTV authenticity (at [4] ff) and pursuant to s 135 (at [22]) as those made by Mr Dibb in these proceedings were made to the tender of CCTV in Hamilton v State of New South Wales (No 3), and I have adopted the reasoning of Campbell J in relation to both issues.)

36. The Court of Appeal warned, in QBE Insurance (Australia) Limited v Orcher, as I stressed when making my ruling, that judges must exercise the greatest of caution when interpreting CCTV, and that the quality and clarity of the images is important. However, CCTV is not a one-dimensional photograph and the higher level of caution necessary in relation to photographs (as to which see QBE Insurance (Australia) Limited v Orcher at [21] – [24]) needs to be seen in that light. Where judges do interpret what is on CCTV film, the approach to adopt is the same careful analysis as that made by the Court of Appeal in QBE Insurance (Australia) Limited v Orcher at [59] – [77] and [136] – [138].

37. This is not a case where the identity of the plaintiff is challenged, or the film blurry. However this film was put together, and from which cameras (and I received no submissions from Mr Dibb as to this), the plaintiff is shown in sufficiently long periods of time to be engaging of conduct for the film to be regarded as reflecting what was occurring.

38. Mr Dibb sought to challenge the admissibility of the material on the basis that the original CCTV was the best evidence and not the copy made by Mr Jackson Barakat on his phone. He complained that his client had been seeking that CCTV since the proceedings were commenced. The plaintiff did not give any evidence of the CCTV she saw in the store being any different to that which was shown to her on 13 July 2016, or draw attention to any error or discrepancy in the CCTV. The attack was simply made on the “best evidence” basis and on the basis that exculpatory material may have therefore not been included.

39. The evidence in this case was that the CCTV was given to the police and formed part of the police brief in criminal proceedings against the plaintiff which were dropped on the day of hearing. The CCTV tendered by the defendant was recorded by Jackson Barakat on his phone from the CCTV screen. I was not told if the CCTV the police took was the one tendered or, if the criminal proceedings went as far as the hearing, whether the police CCTV was given to the plaintiff, or her lawyers at any time.

40. If the tendered CCTV is different, I noted that it sometimes occurs that CCTV film is lost or unavailable and that, in those circumstances, secondary evidence of CCTV film may be given, for the reasons explained in Wade v R (2014) 41 VR 13. In the present case, there are compelling reasons for doing so, as Jackson Barakat actually saw the plaintiff performing the acts shown on the CCTV, made a recording that day and showed it to his sister and the defendant, and provided either the original CCTV or a copy from his phone (it was unclear which) to the police on the following day. As noted in Wade v R, his personal observation and role in the creation of the CCTV are of relevance in accepting it into evidence.

41. Accordingly, for these reasons, the CCTV footage copied by Jackson Barakat onto his phone is admissible.

The CCTV is copied and shown

42. After the plaintiff left the premises, Jackson Barakat immediately checked the CCTV footage. He saw the plaintiff appearing to put items in her pocket from the shelves in the makeup display. He telephoned his sister Taylah, who told him to make a copy of the footage on his phone. He had to record it in two parts because his phone battery was used up and his phone stopped recording.

43. Jackson Barakat also reported the matter to the police, whom he said came the next day and “took the footage”. He did not know who the plaintiff was when the police came. He did not hear from the police again and he did not know until afterwards that the plaintiff had come into the store about two weeks later and denied stealing anything.

44. None of this evidence was challenged, including Jackson’s statement that the police came to the shop the following day and he showed them the CCTV. In particular, there was no challenge to the defendant or his children that evidence they did not know who the plaintiff was. Nor was there any challenge to Taylah Barakat’s description of being told about these events and shown the footage her brother copied onto his phone from the CCTV.

45. Taylah Barakat did a stocktake the next day and noticed, when she checked the lipstick inventory against the shelves, that there were items missing. She was not cross-examined about making this discovery, although it was put to her that “shrinkage” of this kind was inevitable.

46. Jackson and Taylah Barakat both asked their father, the defendant (who told the court his name was in fact Tony Elwedde and not Tony Barakat, but nothing turns on this) what to do. The defendant said that he told them to copy the CCTV and subsequently looked at the recorded footage on his daughter’s phone. When he looked at the footage, the defendant was satisfied that the person he was observing had stolen some lipsticks by putting them in her pocket, and said so. He said his daughter asked him what to do and he said he told her to ask the lady not to come back into the shop.

Who prepared the poster?

47. Contrary to what appears in his own police statement, the defendant said he was not able to take a still photograph from the footage on the phone as he was “old school” and not very good with computers or CCTVs. He played no part, he said, in printing off any portion of the phone to create the poster, which is the first matter complained of. The evidence of Taylah Barakat is that she did this, and that the handwriting on the poster was hers, which she demonstrated by writing the word “THIEF!” on a sheet of paper.

48. The first question is what to make of the defendant’s statement to police that he saw the plaintiff stealing, he prepared the poster and that he, not his daughter, was responsible for this poster being in the shop.

49. The defendant provided a statement to the police on 2 November 2016, The relevant portions are as follows:

“1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.

2. I am 46 years of age.

3. I am currently the owner of a retail store “Our Bargain Hut” located at shop 12a Mount Druitt Road, Mt Druitt. My daughter recently became the owner of the store about 2-3 months ago.

4. I am still an employee at the store, stocking shelves and assisting with sales.

5. On Friday the 15th of July 2016, I was working in the store attending to my duties. About 11:00am that day, I noticed a woman in the store with kids; I think there were about 2 of them. She was hanging around the makeup section. She was a large islander female, medium height, her hair was tied back and she had a big coat on. I recognised her because she was a regular customer.

6. I noticed that she was there for quite a while, maybe 7 to 8 minutes. She kept looking over her should towards me and my son. My son was standing near the register which is at the front of the shop.

7. I saw the female holding something from the makeup section then she moved her hand down and placed it in her pocket. She kept that hand there inside the pocket and looked around and stared at me and my son.

8. She then started looking at things with her other hand. I noticed her again with the opposite hand place something in her other coat pocket and continued shopping.

9. The two children with her came to her and lead her to the freezer section. I watched the kids grab an item each and walk towards the register.

10. The lady paid my son for the items and then left the store. The total cost for the items is about $20 to $25 dollars.

11. About closing time, around 5:15pm, my son and I reviewed the stores CCTV system and watched footage of the female in the store.

12. I again saw the lady stealing make up and placing it in her coat.

13. The next week I printed off an image of the lady and placed it behind the counter for staff to see so that they would be able to identify her when she came back in.

50. This is untrue. It was Jackson Barakat who was in the store and the defendant never saw the plaintiff. Nor did he, according to his evidence, print off the photograph and make the poster. Nor was he the owner or operator of the store, according to the documentary evidence tendered.

51. For the reasons set out in more detail below, I accept that this poster was created by Taylah Barakat and not by the defendant. She owned the shop and showed her knowledgeability concerning the lease contents, the business and day to day shop activities. She said she wrote the word “THIEF!” in her own handwriting and wrote the word again on a piece of paper. While judges must be cautious about making assumptions as to handwriting without the benefit of expert evidence (Angel v Hawkesbury City Council [2008] NSWCA 130; Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956), the similarities between her handwriting (Exhibit 10) and the writing at the top and bottom of the poster are strong.

52. The next question is where the poster Ms Barakat prepared was kept.

Where was the poster put?

53. Ms Barakat’s evidence, and that of the other witnesses for the defence, is that she never put it on the window and never saw it on the window. The poster remained behind the counter where it was visible to staff and persons attending the counter, for the period up until 13 July 2016.

54. Was the poster visible from the street? The plan of the shop which was tendered and the photograph of the premises (Exhibit 5 and Exhibit E) showed clearly that the counter is an L-shaped desk which is directly beside the window at the front of the shop. Everything is glass. However, there is no evidence that the poster, if it was behind the counter, could be seen from the street.

55. It is unclear how many customers came and went in the shop between the period when the poster was put up (which the plaintiff asserts in the Amended Statement of Claim occurred on 6 July 2016, but which could have gone up a day or two earlier on the defendant’s account) until the plaintiff’s visit on 13 July 2016.

56. Given the regularity with which the plaintiff and her family visited the shopping centre (on a daily basis, according to her evidence), it is more likely than not that the plaintiff and members of her family were not merely walking past the shop but going into it. In the case of the plaintiff, she said in her evidence that she attended the shop “every day”.

57. While Mr Dibb sought to argue in his oral submissions that this was in fact a reference to “the shops”, I am satisfied that the plaintiff and her family members were such regular attenders at the shop premises that at least one, or indeed all of them, must have attended these premises at least one or two times in the intervening week to ten days before the plaintiff’s visit on 13 July 2016. In addition, if they were visiting other shops, it is likely that they would have walked past this shop, as Mr Pougia and Mr Fou Vaa said they did on the way home from work. If this poster was on the window visible for all to see, it would have been difficult to miss.

58. One of the principal difficulties for the plaintiff in this case is that if the poster in question was in fact in the shop window in a visible location, it is impossible to explain how she and the members of her family who gave evidence on her behalf never noticed this publication over this period. The question of where this publication was affixed, rather than its contents, is the central issue concerning publication.

The events of 13 July 2016

59. The poster came to the attention of the plaintiff when she received a text message from Lena Olamoe, whom she identified as “a friend” but who was later described as her sister-in-law. The plaintiff said that she received a text message on 13 July 2016 from this person saying there was a photograph of her “on the shop window”. She conceded in cross-examination, however, that this text message does not use the word “window” but says in the Samoan language that the photograph was “at the front of the shop”.

60. A photograph of the front of the shop (taken from the inside) was tendered. The whole shop front is glass, and the shop counter (where the defendant’s witnesses and Mr Pougia say the poster was) is right beside the glass front windows and glass front door. Given the location of the counter at the front of the shop, the description of the poster being “at the front of the shop” is more consistent with the version of events given by the defendant’s witnesses than that given by the plaintiff and her witnesses.

61. The plaintiff went to the shop at about 11:45am on 13 July 2016. The person who was serving behind the counter on that occasion was the defendant. They had a conversation (asserted to be the second matter complained of) and she was shown the CCTV footage. The plaintiff then went outside while she attempted to call the police. She remained there, according to her evidence, until approximately 2:00pm that day.

62. Taylah Barakat was in the shop on the occasion of the plaintiff’s visit, but said she was working in another part of the premises and did not come over to take part in the conversation between the defendant and the plaintiff on any version of the events in question. No version of the conversation given by the plaintiff suggests that she made any contribution to it. The evidence of the defendant and Ms Barakat is that she came over to set up the CCTV when called by the defendant, as he wanted to play the CCTV but did not know how to do this.

63. There is a dispute about whether the first matter complained of was taken down at the end of that conversation (the oral evidence of the defendant and Ms Barakat), or at some later time (the evidence of the defendant in his police statement). The only witness for the plaintiff giving evidence about the sign being there for any length of time is Mr Fou Vaa, who said the poster was there for “a few weeks”, but in such general terms that his evidence is of little assistance.

64. Whilst the plaintiff was in the shop talking to the defendant, the plaintiff’s brother, Mr Pougia, came into the shop but did not participate in any of the activities or hear the words of the matter complained of. He did, however, give evidence of seeing the first matter complained of during his visit to the shop. He saw it on the plywood wall inside the shop behind the shop counter and not on the window as claimed by the plaintiff.

65. The plaintiff told the court that she telephoned her solicitor that day. Whether she telephoned her solicitor on the same day or the following day, the solicitor for the plaintiff, Mr Neil Kirby, gave evidence about a conversation he had with the defendant, which is discussed in more detail below.

Other family members see the poster on 13 July

66. The plaintiff said she made several telephone calls to the police to ask them to attend and waited at the shop until approximately 2:00pm. She then went home and went to her room, too distressed to speak to her children, when they came home from school or work.

67. The plaintiff’s daughter, Melinda Vaa, came home between 3:00 and 4:00pm that day. She spoke to her uncle, Mr Pougia, who told her that her mother was in her room but he did not refer to the incident at the shop despite having just been there himself.

68. Melinda took her younger sister to the shop to make some food purchases and while she was there she saw the first matter complained of “in the window”.

69. At an unknown time but apparently after Melinda’s visit, the plaintiff’s son, Mr Fou Vaa, walked past the window of the shop on the way home from work. I infer from his evidence that he routinely walked past the shop in this fashion as part of his trip home. He saw the first matter complained of on the window of the shop, according to his evidence, but was uncertain of the date.

70. Another son of the plaintiff, Sakaro Vaa, also went to the shop and saw the poster in the window of the shop. This is described in the chronology provided with closing submissions as occurring “on or shortly after 13 July 2016” but Mr Sakaro Vaa was unable to identify the date. It is more likely than not that he saw it on 13 July 2016, because he described going home to speak to his mother who said she had already seen the poster.

The solicitor’s call to the defendant

71. The plaintiff’s case is that the defendant admitted, both to the plaintiff and to Mr Kirby, that the shop was under his control, which is consistent with his statement dated 2 November 2016. Mr Kirby was called to give this evidence.

72. Mr Kirby appears not to have been cognizant of the possibility that he would be giving evidence, in that he sat in court and did not disclose that he would be a potential witness until the second day of the hearing. He was doubly disadvantaged being called at such short notice, in that he acknowledged he had made no telephone note of the conversation he had with the defendant on or about 14 July 2016.

73. Mr Kirby’s evidence was that he identified himself on the telephone to the defendant as the plaintiff’s solicitor and said he was calling in relation to a photograph of the plaintiff in the window of the shop. He said that the defendant admitted to putting the notice in the window and to being the owner and said “Do you think I am an idiot? I have spoken to my lawyer and I am allowed to put it there. The footage is clear”. Mr Kirby replied that it would be in the defendant’s interests to take it down. The conversation became heated and the defendant told Mr Kirby to “put it in writing”, or words to that effect.

71. Mr Kirby was not a convincing witness. He only generally recalled the conversation as occurring “around 12 or 13 July”. He thought he prepared a concerns notice or some other form of letter to the defendant, but was unable to recall if the letter had been sent. He acknowledged in cross-examination he had only known he would give evidence “this morning” and his demeanour in the witness box was that of a person struggling to remember what was said.

72. Mr Kirby gave his evidence after the defendant. Ms Chrysanthou submitted that this was a relevant factor to take into account when determining the weight to put on Mr Kirby’s evidence.

73. Although Mr Kirby said he had “a strong recollection of a conversation because of the nature of it” and that he “couldn’t believe” how the defendant had ignored his “simple request” to take the poster down, his inability to recollect whether or not he sent a letter of demand or the precise date of the conversation, and the absence of contemporary notes, means that I place little weight upon his recollection of the events in question.

Publication

77. The plaintiff must demonstrate that each of the matters complained of was published as pleaded and to a third party.

Publication of the first matter complained of

78. The plaintiff’s case on publication in relation to the first matter complained of changed when it became apparent that Taylah Barakat was indeed the owner of the premises and had put up the notice in question. The amendment in question takes into account the broad definition of publication in Webb v Bloch (1928) 41 CLR 331 for those who are in any degree accessory to publication, including by lending assistance to the existence of the publication or “by any means whatever conduce to the publication” (at 364), such as suggesting the course of conduct or otherwise endorsing it, or refusal to take down the matter complained of. I have considered both bases of liability, although the plaintiff’s submissions are principally aimed at the amended ground of publication, in that documentary evidence confirms that Taylah Barakat, not the defendant, is the leaseholder and operator of the shop and the evidence clearly points to her creating and putting up the poster.

Publication of the second matter complained of

79. In relation to the second publication, the plaintiff must establish that the defendant spoke either the words complained of or some reasonably similar version (see the reference to “fatal variance” in R. Parkes QC, A. Mullis, G. Busuttil, A. Speker & A. Scot, Gatley on Libel and Slander (Sweet & Maxwell, United Kingdom, 12th ed. (“Gatley”)) at [32.15]). It must also be demonstrated that the conversation in question was heard by a third person.

80. The defendant challenges whether the second matter complained of was published as pleaded or heard by a third party.

Matters incidental to publication

81. The capacity and defamatory meaning of the imputations is not in dispute. Nor, in relation to the first matter complained of, is the issue of identification.

The credit of the witnesses

82. The contested issue of fact between the parties on publication included a strong attack in relation to the credit of the plaintiff and the defendant (and, in the case of the defendant, to the plaintiff’s witnesses).

83. In McGlen-McLeod v Galloway [2012] NSWCA 368 Tobias A-JA cited with approval the observations of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]–[74] concerning findings of credit of witnesses:

““[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not:

(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness’s evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness.

[74] Lord Bingham then added these observations:

“In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented … so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.””

84. The defendant’s statement to police is full of statements which must have been known by him to be false. I have set out my reasons for considering that he lied to the police but I have had regard to the nature of those lies in the manner considered appropriate in the decisions discussed in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510. I do not regard him as a reliable or honest witness. However, I do not consider he is lying about saying that the plaintiff was stealing when he knew she was not. His were lies to protect his family.

85. This can also be seen in relation to his version of the conversation he had with the plaintiff, which is set out in his statement to police as follows:

“14. About a week later, the same woman came back into the store and approached me.

She said: “You have a photo of me on your window?”

I said: “Are you the lady in that picture?”

She said: “Yes.”

I said: “Well you were here on Friday and we have you on camera stealing.”

15. The lady denied stealing the makeup. I showed her the CCTV footage and she said “That’s not me”.

16. In the weeks that followed, there were other people I believe to be relatives of the lady. They kept on coming into the store and threatening me and other employees to take the photo of her down.

17. I spoke to the lady again and agreed to take the photo down if she and her family stop coming into the store, to which she agreed.”

86. This is not an accurate version of what was said, but it does not “verbal” the plaintiff, or assert she made admissions of guilt.

87. The defendant’s lies in his police statement must detract substantially from his credit. His explanation that he was worried for the health of his wife, who was having a difficult pregnancy, is implausible.

88. The nature of his lies is, however, revealing, and should be considered in light of the many judicial observations as to the interpretation of lies by witnesses discussed in Marsden v Amalgamated Television Services Pty Ltd, where Mr Marsden gave a false name to police to avoid being arrested for homosexual conduct, an offence at the time, where a conviction would have destroyed his legal career.

89. In the present case, the defendant claimed in the witness statement to be the owner of the shop, to have seen the plaintiff stealing and to have made the poster when his children had in fact carried out these steps. At that time, he had already been sued for defamation.

90. The defendant did not make up fresh evidence against the plaintiff, but gave the evidence in his statement that his children should have. The most likely explanation is that he sought to protect his children from being sued for defamation as well. That is conduct which must very substantially damage his credit, but, contrary to Mr Dibb’s submissions, it does not amount to making up evidence to convict the plaintiff when she was innocent.

91. The first difficulty for the plaintiff (and, for that matter, all of her family members) is the unlikelihood that she and her family walked past or into this shop on a daily basis without ever noticing a poster with her photograph and the word “thief” prominently displayed to all passers-by through the glass panelling. The second is that, as Ms Chrysanthou points out in her written submissions (at paragraph 20) the plaintiff’s evidence is inconsistent with contemporaneous evidence (such as the CCTV and her sister-in-law’s text message), her answers to interrogatories and the form and content of both the matters complained of.

92. The particular difficulties with her evidence are as follows:

1. There is nothing on “Exhibit A” indicative of it being affixed to anything, let alone the inside front window of the shop, and the explanation for the cropped photograph attached to the matter complained of, which masks the top of the photograph in a way that prevents the lack of Sellotape or Bluetack being evident.

2. Her answers to interrogatories and evidence concerning her sister-in-law’s text message were inconsistent with what was acknowledged to be the correct translation, namely that there was no reference to the photograph being in the “window” and the reference to it being at the front of the shop was, if anything, supportive of the defendant’s version of where this poster was located.

3. Her answers to interrogatories (Exhibit 1) and conduct as seen on the CCTV are inconsistent with her denial in the witness box that she had not put anything in her pocket. In cross-examination she admitted that there was no honest reason for her to have placed an item such as a lipstick in her pocket.

4. Her description of looking at Jackson Barakat because of his conversation with his grandmother is inconsistent with what is seen on the CCTV; she is looking at him from 37 second onwards whereas the grandmother does not come into the picture until 55 seconds. Mr Dibb’s subsequent explanation that she was looking at her children is also not borne out by the CCTV.

5. When faced with inconsistencies in her evidence, she said she could not remember. For example, when asked how she could have failed to notice the poster in the window in the week to ten days prior to her sister-in-law contacting her, she said she could not remember if she had attended the shop over this period, although she said in evidence in chief that she effectively shopped there daily.

93. I am satisfied, in relation to both the plaintiff and defendant, that I should not rely upon any part of their respective evidence unless it was corroborated by a witness of credit. In the case of the plaintiff, this creates real difficulties, because the evidence of Mr Pougia, the only witness she called whom I regard as a witness of credit, contradicted her evidence. The evidence of the plaintiff’s children concerning the manner in which the notice was asserted to be fixed to the window was so inconsistent that I can give it little or no weight.

94. As noted above, the plaintiff’s solicitor, Mr Kirby, was called at very short notice, in circumstances where he did not have a file note and could not remember essential information such as the date of the call or whether he had sent a letter of demand. His general recollection of events appeared sketchy and his evidence is of little assistance.

95. While the defendant is not a witness whose evidence I would accept without corroboration, Taylah Barakat and Jackson Barakat are, I consider, witnesses of truth. As noted above, Taylah Barakat’s careful and detailed answers to questions about how she ran the shop satisfied me she is in fact in charge of the shop, as the lease documents and ASIC documents confirm. Jackson Barakat’s evidence was challenged in the most cursory fashion and no submission is made that he is not a witness of truth.

96. I next set out a consideration of the evidence in relation to the disputed issues concerning publication and the defences.

Publication

97. Each of the publications must be considered separately.

The first publication

98. The Amended Statement of Claim describes the poster as having been affixed by the defendant “inside the window of his shop, where it was visible to anyone passing on the street” (paragraph 3). Annexure A to the Amended Statement of Claim shows a photograph which appears to be behind glass; there is a reflection of what appears to be the opposite side of the street, including trees. There is also a shadow of indeterminate nature behind the poster. The whole of the poster is not shown; the top left hand corner is cut off and the bottom right hand corner is not tethered to the window but appears to be flapping away slightly. The top right hand corner is also obscured.

99. The plaintiff produced another copy of the poster to the court (Exhibit A). It looks as though it is the same photograph, in that the material at the bottom looks the same; if it is not the same photograph it was certainly taken at the same time. The portion at the top which is obscured is now visible, but the left hand side of the poster is still cut off.

100. Both photographs show the poster on the inside of the shop window, facing outwards. In neither photograph is there any indication of the method of affixing the poster to the glass behind which it is shown. The manner in which the poster is curled away on the bottom left hand side in both photographs suggests that any form of affixing of the photograph to the window would have to be rudimentary. There is no evidence of any line of Sellotape in the window, or any other form of adhesive.

101. In addition, there is no photograph of the shop window from a distance showing where this poster was attached. The logical manner in which to take a photograph of the poster would be to take a picture of the front of the shop showing where the poster was located.

102. The defendant’s position is that given that the whole of the poster is not displayed in either of the photographs, and there is no photograph of the shop window from a distance, it can be surmised that a person is holding the poster up to the window for the purpose of the photograph being taken. It is submitted that the poster could have been momentarily grabbed and held up to the window. The plaintiff’s evidence was that she took the photograph of the poster.

103. It was put to the plaintiff by Ms Chrysanthou that the photograph tendered was not the photograph that the plaintiff had in fact taken. The plaintiff replied, “whatever photo is in my phone is the one I took”. It was also put to her that someone was holding the poster up for the purpose of the photograph, and she did not accept that proposition.

104. The plaintiff was cross-examined about the contents of the text message she received from her sister-in-law. She conceded in cross-examination that the text message did not say “window” and that it said “at the front” of the store.

105. The plaintiff’s solicitor, Mr Kirby, gave evidence of telephoning the defendant and of the defendant admitting to him to being the owner and to putting the poster in the window. For reasons set out elsewhere, I am reluctant to accept this evidence.

106. The plaintiff’s daughter, Melinda Vaa, gave evidence that she saw the poster in the window and that it was held up with four short pieces of tape. The plaintiff’s son, Fou Vaa, gave evidence that he saw the poster in the window but was unable to say how it was affixed. The plaintiff’s son, Sakaro Vaa, also said that the poster was in the window and that it was affixed with one piece of tape.

107. Mr Dibb relies upon what is called “a revealing slip” in the defendant’s evidence when the plaintiff says that “it was her picture in the window”. I note that he said this in his police statement as well (Exhibit D, paragraph 14).

108. However, I regard all of the defendant’s evidence as unreliable, including these parts. Even if I were to construe this part of his evidence against him, it is not “a revealing slip” but a description of what the plaintiff said.

109. I am satisfied that the handwriting in question was that of Taylah Barakat. Her evidence was that she created the poster, wrote the words (see Exhibit 10) and put the poster behind the counter of her own volition. She said she also created another document with just the photograph of the plaintiff and put it on the wall behind the register. The defendant and Mr Pougia both described seeing this photograph behind the register in their evidence.

110. The evidence of Taylah Barakat and Jackson Barakat that the poster was behind the counter is supported by the evidence of Mr Pougia, the plaintiff’s brother, and by the contents of the plaintiff’s sister-in-law’s text message, which set out that the poster was “at the front of the shop”.

111. Ms Chrysanthou asks me to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) from the plaintiff’s failure to call her sister-in-law.

112. As the person who saw the matter complained of and alerted the plaintiff, and who sent the plaintiff a text message saying where the poster was, the plaintiff’s sister-in-law’s evidence was relevant to the contested issue of publication in this case. As the plaintiff’s sister-in-law, and as someone who had been sufficiently motivated to send a text message to the plaintiff, the plaintiff’s sister-in-law was clearly a witness who would be found in the plaintiff’s camp. In the circumstances, I draw an inference that her evidence, if given, would not have assisted the plaintiff.

113. I am satisfied, on the balance of probabilities, that the poster was indeed at the front of the shop, namely at the counter directly in front of the glass windows, most probably in the spot marked on Exhibit 4.

Was the defendant the owner of the shop?

114. I am satisfied that the poster was not placed on the window as claimed. However, I must also set out my findings of fact in relation to whether the defendant was in fact the owner of the shop or in some other ways authorised the putting up of the poster. The material relied upon by Mr Dibb is set out below.

115. During the hearing Mr Dibb provided a statement of issues on publication in which he identified the issues going to the defendant’s liability as being:

1. Whether he posted it on the window of the shop or directed someone else to do it, or otherwise agreed to it being removed from the shop;

2. Whether he failed to remove it from the window of the shop “when he could have done so in circumstances that indicate he assumed responsibility for its continued display”. I interpret this to mean his refusal to take it down when the plaintiff came into the shop.

116. Although not included in the statement of issues, Mr Dibb made a submission that the plaintiff was liable for publication on the basis that he subsequently signified his approval of the poster by his statements to police.

117. I shall deal with each of these in turn.

118. As to whether the defendant was in fact the owner of the shop, Mr Dibb points to the following evidence. The defendant, who owns several discount or “two dollar shops”, has always owned the “One Stop Bargains” name. It would appear from the Facebook page that these shops traded at a number of addresses at various times, including two shops in the ShopSmart Centre, another in Elmerton and this shop itself. Mr Dibb submits that as there is no distinction made between these various branches of the shop on the shop’s Facebook page, I should assume that they all are owned by the defendant.

119. Exhibit 9, the real estate lease, is however to the contrary. It is a retail lease in favour of premises described as “Our Bargain Hut”, not “One Stop Bargains”. Just as importantly, it is dated 6 March 2016, which is well before the events the subject of this litigation.

120. Mr Dibb also submitted that I should not accept the evidence of Taylah Barakat as being the owner, because of the vagueness of her evidence. It is submitted, for example, she was “vague about the rent”, although her evidence clearly identified the correct sum of rent at the beginning of the rental lease as being $530. It was also put that she was wrong about the lease in believing it to be three years, when the lease tendered was only one. However, that lease terminated on 6 March 2017 and the shop is still operating from the same premises. Ms Barakat’s evidence needs to be seen in this context.

116. As I have noted elsewhere, Ms Barakat gave evidence confidently about turnover, supplies, ordering and selling, stocktaking and shrinkage. She was an impressive witness who made no errors on these topics. I am satisfied that she was the owner of the shop.

117. Mr Dibb also relies upon the fact that Taylah Barakat and Jackson Barakat both asked the defendant what to do. Given that Ms Barakat and her brother were at 20 and 21 years respectively and Ms Barakat said she started her working life working for her father, I consider this to be understandable in terms of family dynamics rather than proof of ownership. Their evidence was not that the defendant told them to put up a poster, but that he told them to stop the plaintiff coming back into the shop. The poster was then created by Taylah Barakat for this purpose.

118. I am satisfied that the putting up of a poster was Ms Barakat’s idea, that she did so and that she did so in the context of being the person in charge of the store.

The alternative Webb v Bloch argument

124. Mr Dibb also relies upon the principles set out in Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035 and Byrne v Deane [1937] 1 KB 818 to submit that the defendant failed or refused to remove the poster in circumstances in which he assumed responsibility for its publication.

125. There are considerable difficulties of law in terms of the liability of third parties for material published by other persons even where that is done with the knowledge or consent of the third party involved. In Cao v Liu [2013] NSWDC 172 the defendant claimed not to know anything about how emails worked, but was aware her husband had set up an email account in her own name, and had taken no steps to prevent him from doing so. This was insufficient to amount to liability when her husband used the email account in her name to publish defamatory material.

126. The principles for liability set out in Urbanchich v Drummoyne Municipal Council were recently considered by the Full Court of the South Australian Supreme Court in Google Inc v Duffy [2017] SASCFC 130 at [131] where the court noted the formulation for liability in accordance with the principles in Urbanchich v Drummoyne Municipal Council requires that there be a failure to take advantage of an opportunity to remove defamatory material where that failure shows consent, approval, adoption or promotion of the presence of that statement on the defendant’s property. It is approval of the presence of the material, not its message, that is required. The question is, however, one of what amounts to reasonably practicable steps (at [134]).

127. What Mr Dibb submits a defendant must do is to respond instantly and uncritically to the plaintiff’s complaint. This is a great deal to expect from a person who is not the original publisher, in circumstances where it would be reasonable for him to raise this with the publisher first (it should be recalled that the matter complained of in Urbanchich v Drummoyne Municipal Council was anonymous graffiti, and the decision may accordingly be distinguished).

128. What the defendant in fact did was consistent with his obligations, in that he showed the plaintiff the CCTV and asked for her comments. When she said she was going to call the police, he waited while she called the police, who did not come. He later responded to a phone call from the solicitor for the plaintiff by telling that solicitor to put this in writing.

129. Whether or not my finding as to publication in the window is accurately reflected on the evidence, these responses of the defendant were entirely reasonable in the circumstances. Whether or not he was the owner, it was entirely proper for him to wait until the police and/or the plaintiff’s solicitor set out the issues so that the appropriate steps could be taken. He was not obliged to rip down the poster immediately in the manner suggested by Mr Dibb. Accordingly, if my findings in relation to where the poster was affixed, and the identity of the owner of the shop, are individually or collectively wrong, the defendant would still not be liable under Webb v Bloch principles.

130. I remain troubled by the apparent admission of liability in the defendant’s statement to police, which Ms Chrysanthou submits is “incorrect as a matter of law” (written submissions, paragraph 63), although without setting out why. If a person assumes liability for the purpose of protecting a third party (such as a family member), it is difficult to see how that does not amount to an assumption of liability for the publication in question. I was not, however, addressed as to authority on this issue by either party (beyond Ms Chrysanthou’s statement that the law was to the contrary).

131. If a person accepts liability for a publication in a police statement, in circumstances where the limitation period then elapses without the correct person being joined, it is hard to see why that person should be allowed to withdraw that admission. If the poster had been attached to the shop window as claimed, the defendant’s admission of placing it there, for the purpose of protecting the true publisher from liability up until the trial, is one which he should not be entitled to withdraw.

The second publication

132. The plaintiff’s version in her evidence in chief was that after she received a text message she went straight to the shop where she saw a male person and a lady. It was the man she spoke to. She asked about the poster (although not identifying precisely where she had seen it). She claimed that the defendant said, “That wasn’t you darling, I know you well”. The plaintiff said she replied, “That’s me, that’s my photo in the window” and asked him to take it down. She said the defendant replied, “I can’t take it down because someone stole from the shop”.

133. The plaintiff said she spent “about half an hour” talking to the defendant and was not able to set out “everything that was said”. She kept asking him to take it down and he said he could not because he has authority from his lawyer to hang the photo up. She said that he went through his “computer” to find the “photograph”. She thought there were two other shoppers in the shop “when he went through [the CCTV]” and said “he showed me everything in the computer”. He told her “whatever it says in here says it all”. He said that the way she was stealing the makeup “was clear as day”. She was “pretty sure” the two shoppers who were standing there heard this portion of the conversation as well. The plaintiff then said, “I am going to the police”, to which the defendant replied, “Go outside and ring the police because you’re disturbing the customers”. She went outside and telephoned the police. She was sitting on a seat nearby. She tried to contact the police “so many times” and then spent “a few hours” waiting for the police. She thought she was there for two to three hours. She also took a photo of the poster. She was asked where it was displayed and she said “up on the front of the window of the shop” indicating it was “on the left”. She said she took the photograph “from outside”. She said that the photograph was “above eye level”.

134. The plaintiff was told that the police would be there “shortly”, but after waiting three hours outside the shop when the police had not arrived, she went home.

135. The plaintiff said that later that afternoon she spoke to her sister-in-law. She also mentioned her daughter, Melinda, her son and her brother, but it was unclear whether she was claiming to have spoken to them that day about the matter complained of. The plaintiff’s evidence on these issues was at times discursive and hard to follow.

136. I have drawn this summary from my own notes. Neither counsel summarised the plaintiff’s evidence in chief of the second matter complained of. Mr Dibb’s submissions (at paragraph 54) merely stated:

“The Plaintiff gave evidence of this conversation. The Defendant gave evidence that was different from the Plaintiff’s version.”

Was Taylah Barakat present?

137. Mr Dibb went on to add that (paragraph 55, written submissions):

“Extraordinarily, the Defendant’s daughter, Taylah Barakat, gave no evidence of this conversation at all, despite the fact that she was there. The Defendant says he asked Taylah to play the video footage, so (assuming that even this is not an invention) she was clearly involved. She must have known what it was all about because she took the Notice and screwed it up and threw it away. It had been put to the Plaintiff in cross-examination that she was making so much fuss and noise that she had to be asked to leave the shop. Had that been true, Taylah Barakat could not have been unaware of it. Nevertheless, Ms Barakat’s evidence about this conversation ran to saying: “They were talking. I didn’t pay any attention.””

138. Taylah Barakat was present in the shop when the plaintiff came in, according to the plaintiff’s evidence, but the plaintiff’s evidence was that the defendant was, at all relevant times, the person she spoke to, who discussed the footage and who played it for her on his computer.

139. In cross-examination, it was put to the plaintiff that she had a poor recollection of the events in question and in particular of this conversation. She had difficulty recollecting what was said and said as much in her answers. This applies not only to this conversation but generally. I am satisfied that Taylah Barakat was not present during the conversation prior to or after the CCTV footage was shown and that her presence during the CCTV portion was to set up the film only.

140. Taylah Barakat says that she was out of earshot in another part of the shop until called over by her father to help with playing the CCTV, which was after the conversation in question. She had to locate the tape and play it. She played no part in the subsequent conversation and her whereabouts are unknown. She was not asked what part of the conversation she heard while the tape was playing.

141. If the plaintiff sought to prove that Ms Barakat was there, the onus lay on the plaintiff to put it to her that she was present during the period of time that the oral publication took place. It was not put to her that she heard her father say words to the effect that the plaintiff was a thief or that the plaintiff had stolen five items from the shop. The only part she was asked about was whether she heard her father say he had his solicitor’s authorisation of the poster, which she denied hearing.

What was said?

142. The version that is put to the plaintiff in cross-examination was that when she initially raised the issue with the defendant, he said, “That’s not you?”, to which she replied, “Yes it is”, and the defendant said, “how did you even see that photo?”, to which the plaintiff replied, “Never mind, I’ve seen it”. The defendant then said “We’ve got footage of you” and played it. The plaintiff said the footage he played was “the one we saw [in court]” and not a different footage, to which the plaintiff said, “that’s not me”. The defendant replied, “Five minutes ago you said that it was you”. It was then put to her that she said she was not leaving until the poster was taken down and that she would call the police. It was then put to her that the defendant said, “Fine, do it outside”, following which she went outside. She was asked if other people came to the store that she knew during this conversation and she said the only person who came was her brother, Mr Pougia. She was asked how he knew to come there, and she replied, “He just walked in by coincidence on the way home from work. He did not know I had this problem”. She could not recalled if he came in before or after the footage in question was shown, but she was certain he had not seen the footage.

143. It was put to her that the defendant said, “Please move outside, you are blocking the shop”, to which the plaintiff replied, “How long before the police arrive?”, whereupon the defendant replied, “Well, you call them”. The plaintiff then said, “I can’t wait. I will leave my name and my phone number, please ring me when the police arrive”.

144. The version of the conversation given by the plaintiff in examination in chief was not put to the defendant in cross-examination as Ms Chrysanthou notes in her written submissions (at paragraph 77). That makes any consideration of the defendant’s version of the conversation rather difficult.

145. One issue is, however, clear. In none of the versions of the matter complained of, either from the plaintiff or the defendant, was there any reference to the plaintiff having taken her hands in and out of her pockets five times, or stealing five items.

146. This is a significant omission, as this is the second pleaded imputation in relation to this publication. Its absence must cast doubt upon the version of the conversation given by the plaintiff in the statement of claim.

147. Clearly, some allegation of being a “thief” was made, but it is a publication very different in terms to that which is pleaded. The question is whether this difference amounts to “fatal variance”.

148. The onus of establishing publication lies on the plaintiff. Something was said, but the conflicting versions given make it impossible to determine what was said.

149. Gatley deals at paragraphs 32.14 and 32.15 with the issue of “variance between words alleged and words proved”:

“The requirement to prove the actual words spoken does not mean that there must be complete correspondence between the words pleaded and the words proved. As long as the words proved are a material and defamatory part of the words alleged, or words which are substantially to the same effect, the claimant is entitled to have it decided, whether the words alleged or words to the like effect have been proved, or of course he could seek leave to amend his particulars of claim.

32.15 Fatal variance However if the words proved materially alter or qualify the sense of those set out in the particulars of claim, the variance will be fatal to the claimant, unless he can persuade the judge to grant him permission to amend the particulars of the claim.”

150. In Umeyor v Ibe [2016] EWHC 862 at [1], Warby J notes the difficulties of proof of actions for slander and explains the need for precision as follows:

“[39] These are not mere technicalities. Liability for defamation depends on meaning, which is a subtle and nuanced thing. Quite small differences in wording can lead to significantly different meanings. In order to avoid the wrongful imposition of liability, precision is necessary. A feature of slander cases is that there can often be much room for dispute about what precisely was said”.

151. In the present case, there is no evidence that the portions of the matter complained of giving rise to the second imputation were spoken at all. There is evidence that allegations of theft were put and denied, but there is no definitive account of what was said or what role (if any) the playing of the CCTV had (in circumstances where this is clearly referred to in the text of the matter complained of in the statement of claim).

152. The plaintiff bears the onus of proof in relation to publication of the matter complained of.  On the balance of probabilities, the plaintiff cannot satisfy me that the second matter complained of was spoken as pleaded or as asserted by the plaintiff in her oral evidence, let alone heard by another person present in the shop.

Publication to a third party?

153. On any version, the second matter complained of was a conversation before and after the showing of the CCTV which, in the version I have, is 5 minutes and 45 seconds. As noted above, the plaintiff’s estimate of the time taken by this conversation was half an hour.

154. It is not in dispute that Mr Pougia, the plaintiff’s brother, came in while the conversation was taking place, but did not remain and did not hear any of the matter complained of.

155. The plaintiff says that there were three women shoppers in the shop at the time and asks me to accept that the shop was so small that they must have heard every word of the conversation before, during and after the playing of the CCTV footage which, given the length of the footage and the time taken to locate it, must have taken more than ten minutes, if not the “half an hour” the plaintiff said was taken up.

156. As Ms Chrysanthou points out in her written submissions (at paragraphs 78 – 82), the plaintiff must prove that a third person heard the whole of the matter complained of, and not merely a part. Ms Chrysanthou submitted that there was no evidence any shopper had been able to hear any, let alone all, of the matter complained of, which would have required any such person to wait around while the CCTV was located and played, as well as to hear what was said afterwards.

157. I raised with Mr Dibb whether, given the reference to the CCTV footage being played, it formed part of the matter complained of to the persons hearing the words spoken, since these words consisted of a commentary upon the CCTV footage. He said that the footage did not form part of the matter complained of. If it did, the plaintiff would have to prove that the other shoppers saw it as well as heard the words spoken, which would require these other shoppers to be standing in viewing range of the CCTV screen, which did not form part of the plaintiff’s evidence. I will assume, for the purposes of this judgment, that Mr Dibb is correct in this regard, because if he is wrong, in that his client gave no evidence of other persons watching the CCTV, then that would be the end of the claim that a third party heard this oral publication.

158. I do not accept Mr Dibb’s claim that the shop was so small that any shopper could hear every word spoken. Ms Barakat’s evidence was that she was at the back of the shop and did not know what was going on until she was called over by her father. The CCTV of the shop shows a series of narrow corridors of shelving with shoppers passing by each other in the course of making purchases and absorbed in their own activities. There is no suggestion that either the plaintiff or defendant was shouting or angry.

159. A similar problem arose in Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272, where the sole witness called by the plaintiff in relation to a claim by store staff of stealing did not hear the matter complained of. This issue of publication to a third party was not directly addressed in the appeal but it would appear that the plaintiff in those proceedings was shouting and drawing attention to himself, as well as surrounded by several store staff, and the matter complained of was very short. None of those redeeming features is present here.

160. This means that neither publication, nor publication to a third party, has been established.

Conclusions concerning publication

161. The first matter complained of was not placed in the shop window. As no action has been brought in relation to publication of the poster elsewhere in the shop, this claim fails.

162. The plaintiff has failed to establish that the oral publication occurred as pleaded and as given in evidence, or that it was published to a third party.

163. The plaintiff has therefore failed to establish publication in relation to both matters complained of.

164. In the event that I have erred in this finding, I have considered the defences as set out below.

The defences

165. The defences pleaded are as follows:

1. The defence of common law qualified privilege –

1. The first matter complained of is pleaded in relation to a poster which was placed in the window of the shop. Mr Dibb concedes that if the poster was placed behind the counter as claimed by the defendant and his witnesses, he would not have made out his case.

2. The submissions of both parties in relation to qualified privilege concerning the second publication depend upon whether the statements the defendant is asserted to have made were relevant to the occasion.

3. If either of the publications was made on a protected occasion, the question of whether the defence is defeated by proof of malice must be determined.

207. The first matter complained of consists of a photograph of the plaintiff and the word “THIEF!” being used twice. That is a statement of fact.

208. As to the second matter complained of, the second imputation is clearly a statement of fact. While the imputation that the plaintiff is a thief may appear to be a conclusion in that it is in the nature of a deduction, inference or conclusion from seeing the CCTV, I am satisfied that it, too, is a statement of fact, rather than of opinion.

209. The defence of honest opinion would fail for this reason. I am however satisfied that the opinions relate to a matter of public interest and relate to CCTV footage. I note that the plaintiff has not pleaded any defeasance to the honest opinion defences. In those circumstances, if I have erred in holding that the imputations are statements of fact rather than opinion, the defence would succeed.

Conclusions as to liability

212. The plaintiff has failed to establish that the defendant published the first matter complained of (on both bases pleaded), and that the second publication was published, or that the second publication was made to a third party.

213. If I have erred in these findings, the defences of justification and qualified privilege at common law would succeed in relation to both publications.

214. The plaintiff sought substantial damages for these publications, while the defendant sought an order for nominal (or indeed zero) damages. I set out below my observations as to the damages which I would have awarded.

The relevant principles of law concerning damages

215. Section 34 Defamation Act 2005 (NSW) provides that:

“34 Damages to bear rational relationship to harm

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

216. Section 35 Defamation Act 2005 (NSW) caps the damages at $250,000. The maximum damages award has been increased from 1 July 2007 to the sum of $389,500 (New South Wales Government Gazette No. 56, 26 May 2017, p 1782). The significant increase in the statutory cap, which increased 46% over the first ten years: see J P Cashen “Defamation Cap Rising Well Above Inflation” (Gazette of Law and Journalism, 10 December 2014), should be noted. As Mr Cashen points out, the consumer price index in Victoria over the first decade, after the uniform legislation was passed, increased only 25%, and if the cap had kept place, it would have been only $314,000.

217. The three purposes of defamation damages awards are consolation of hurt to feelings, recompense for damage to reputation and vindication of the plaintiff’s reputation (Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] per Hayne J (Gleeson CJ and Gummow J agreeing)).

218. Three factors have led to a recent increase in the award of defamation damages. These are:

1. The increase in the cap in excess of the consumer price index referred to above;

2. Changes in the judicial interpretation of the role of the cap as set out below; and

3. Changes in the judicial approach to the impact of an award of aggravated damages as to whether there should be a cap at all, as a result of the recent decision in Wilson v Bauer Media Pty Ltd [2017] VSC 521.

219. When the uniform defamation legislation was enacted, judicial interpretation of the interaction between s 34 and the cap was that the cap was not merely a ceiling but a range in which general damages should be awarded: Attrill v Christie [2007] NSWSC 1386. Since that time, the cap has come to be interpreted as a simple cut off and does not impose a scaling exercise on lower awards: Cripps v Vakras [2015] VSC 193 per Kyrou J at [603]-[608]; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 per McCallum J at [127]; Sheales v The Age Co Ltd [2017] VSC 380 per John Dixon J at [70]. Both counsel urge me not to follow Bell J in Attrill v Christie, although this appears to be contrary to the language of s 34, which by inference took into account similar damages regimes for personal injury.

220. In addition, contrary to the explanation of the function of s 41 in relation to aggravated damages by Applegarth J in Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 and Rothman J in Al Muderis v Duncan (No 3) [2017] NSWSC 726. Section 41 has now been interpreted as taking the cap out of contention all together where an award of aggravated damages is to be made. The relevant decision is Wilson v Bauer Media Pty Ltd.

Relevant damages issues in these proceedings

221. Each of the publications made in these proceedings is of a very limited nature. It is uncertain when the first publication was made; in oral submissions, Mr Dibb suggested it could have been put up a day or so before the plaintiff came to the shop on 13 July.

222. The only reliable evidence as to when the publication was put up on behalf of the plaintiff is the text message from the plaintiff’s sister-in-law stating that she saw it at the front of the shop the day before the plaintiff’s visit.

223. There is no reliable evidence as to when it was taken down, on the part of the plaintiff, beyond Mr Fou Vaa’s statement that the publication was in the window for “some weeks”, which, given the generality of his evidence, is of little or no evidentiary weight. The evidence of Taylah Barakat is that it was taken down that day. The defendant’s evidence on this is in conflict with his police statement, and I give his evidence no weight.

224. The extent of publication in relation to the second matter complained of is even more limited. All that the plaintiff can point to is that there were a couple of other persons in the shop at the time and the defendant’s daughter, Taylah Barakat, may also have heard what was said. The plaintiff’s case does not include a claim that the plaintiff’s brother, who entered the shop briefly, heard the matter complained of being spoken.

225. As to the extent of publication, there are similar difficulties. The plaintiff only called or relied upon evidence from members of her family to identify her. I note the names of two other persons in the Amended Statement of Claim in relation to the first matter complained of, but there is no evidence as to who these persons were, or as to how they recognised the plaintiff. However, some allowance would need to be made for the possibility of other persons passing the shop seeing the notice and identifying the plaintiff during the limited period that the notice was in the window.

226. As to the second publication, there is no evidence that the unknown shoppers knew who the plaintiff was. Taylah Barakat did not know who the plaintiff was either.

227. Given the very limited nature and extent of the publication of each of the matters complained of, the defendant submits that the damages should be at the bottom of the range. Mr Dibb submits that an award of aggravated damages should be made, because of the “high-handed and contemptuous treatment of the Plaintiff by the Defendant when she complained about the display of the Notice and because of the quite improper making by the Defendant of a statement to police after these proceedings had been commenced when that statement consisted largely of barefaced lies” (plaintiff’s written submissions, paragraph 88).

228. Mr Dibb submits that, once aggravated damages come into consideration, the cap on the damages ceases to exist entirely and that damages in the range of $70,000 to $90,000 would be an appropriate award.

The interaction between general damages and aggravated damages

229. The distinction between various categories of damages has been clarified by Devlin LJ in Rookes v Barnard [1964] AC 1129. Where the injury done to the plaintiff has been exacerbated by the conduct of the defendant, thereby attracting higher compensatory damages, a largely sum may be awarded. That larger sum should disregard malice or other state of mind of the defendant at the time of publication or at any other time, except to the extent that it affects the harm sustained by the plaintiff (s 36 Defamation Act 2005 (NSW)) but, where it does affect the harm, the proceedings may warrant greater compensation. Section 35(2) Defamation Act 2005 (NSW) provides:

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

230. Prior to Wilson v Bauer Media Pty Ltd, these issues were first considered in Davis v Nationwide News Pty Ltd [2008] NSWSC 693, where McLellan CJ at CL noted the difficulties in relation to a cap where there was more than one publication and a claim for aggravated damages was made, adding (at [18]-[20]):

“[18]Section 35(2) provides that damages for non-economic loss may exceed the statutory cap. However, the exceedence is permissible “if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.” The plaintiff contends (inter alia) that by reason of the conduct of the defence during the course of the trial she is entitled to an award of aggravated damages. I shall relate the relevant facts below. If not excluded by the statute, an award of aggravated damages is available at general law. I discussed the principles relevant to aggravated damages in Jarratt v John Fairfax Publications Pty Ltd [2001] NSWSC 739 where I said:

113 The law recognises two elements of compensatory damages: ordinary and aggravated damages. In Bickel v John Fairfax & Sons Limited & Anor [1981] 2 NSWLR 474 at 496, Hunt J said:

Compensatory damages are given to compensate the plaintiff for the harm done to him by the publication of the matter complained of; aggravated compensatory damages (which are also known as merely 'aggravated damages') are given to compensate him when that harm has been aggravated by the defendant's conduct in publishing that matter or by his subsequent conduct.

114 It has also been stated that aggravated compensatory damages may be awarded if the defendant's conduct is "improper, unjustifiable or lacking in bona fides" (Vacik at [17]; Triggell v Pheeney (1951) 82 CLR 497 at 514).

115 The correct approach to aggravated damages was explained by Higgins J in Costello and Abbott v Random House Pty Limited(1999) 137 ACTR 1 at 46 where his Honour said:

The concept of 'aggravated damages' is not, whether calculated separately or not, a different 'head' of damage. It focuses on the circumstances of the wrong doing which had made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant.

116 The difference between ordinary and aggravated damages was examined by Levine J in Marsden (para 4732 and following) where he pointed out that factors sometimes thought relevant only to aggravated damages are in fact relevant to ordinary compensatory damages: See Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 considered by Clarke JA in Australian Consolidated Press Ltd v Ettinghausen (Court of Appeal, unreported, 13 October 1993 at p 25).

117 As the High Court noted in Gray at 4; in Uren v John Fairfax & Sons Pty Ltd (1965-66) 117 CLR 118 at 149, Windeyer J observed that the distinction between aggravated and exemplary damages is "not easy to make in defamation, either historically or analytically; and in practice is hard to preserve." The concept of aggravated damages serves as a reminder that there are different elements to the award of damages and the conduct of the defendant, when publishing or defending the publication, may, if unjustifiable, improper, or lacking in bona fides, be reflected in the award of damages if damage is by reason of that conduct suffered by the plaintiff: see Bickel at 497.

[19]It was submitted by the defendant that s 35(2) had the consequence that unless the entitlement to aggravated damages arises from “the circumstances of the publication of the defamatory matter”, they could not be awarded. The conduct of the trial is not such a circumstance and accordingly could not justify an award of aggravated damages.

[20]I do not accept the submission. Subsection (2) does not purport to deal in any general sense with a plaintiff’s entitlement to aggravated damages. The subsection is only concerned with the circumstances in which an award of damages for non-economic loss may exceed the statutory cap. Provided the award, including any component for aggravated damages by reason of the conduct of the defence or for other relevant reasons, does not exceed the statutory maximum, I am satisfied that an award of aggravated damages is available.”

231. The first reference to the interaction between the award of aggravated damages and the possible exceeding of the cap is the decision of Applegarth J in Cerutti v Crestside Pty Ltd, where his Honour explained the interaction between general damages and the cap on damages as follows (at [41]-[42]).

“[41]An award of damages in excess of the statutory cap is permitted if the circumstances of publication are such as to warrant an award of aggravated damages. But this does not compel a judge to separately assess aggravated damages. In 1997 this court remarked in the context of a jury’s assessment of damages that there was no reason why the jury should have been obliged to answer a distinct question about aggravated damages. Circumstances of aggravation may justify “the court in assessing compensatory damages at a figure higher than that which would have been appropriate without those circumstances; but this does not mean that the increase is a separate category of damages.” The court observed:

“The jury is not to be invited to perform the difficult intellectual task of first considering the defamation in an abstract way, disregarding the circumstances in which it was published and the extent of publication, and then separately considering how much should be awarded for those matters”.

[42]A judge may be better-suited than a jury to perform such a task, and, in giving reasons, is able to explain the extent to which damages are increased on account of conduct which warrants an award of aggravated damages. The separate assessment of aggravated damages may enable an appeal court to isolate that part of an award that is attributed to aggravated damages, and to adjust an award of damages if the defendant’s conduct did not warrant an award of aggravated damages. However, the task of a trial judge should not be made more onerous than is necessary. A judge may assess a single amount which is appropriate to compensate for harm caused by the publication, and the additional harm to reputation or injured feelings caused by conduct which is improper, unjustifiable or lacking in bona fides.” (Footnotes omitted)

232. However, as noted above, this was not the approach taken by John Dixon J in Wilson v Bauer Media Pty Ltd.

233. One of the difficulties with the approach advocated by Mr Dibb is that, if aggravated damages remove the cap, then I must deal first with the question of whether aggravated damages should be awarded, rather than assessing general damages in the light of the cap and then having to revisit the topic of general damages on the basis that the cap no longer applies. This means that I must consider the issue of aggravated damages before considering general damages.

Should aggravated damages be awarded?

234. The plaintiff submits that aggravated damages are appropriate because of the “high-handed and contemptuous treatment of the Plaintiff by the Defendant” when she complained and because of the making by the defendant of a statement to police which “consisted largely of barefaced lies” (paragraph 88, plaintiff’s written submissions).

235. I do not consider any aspect of the defendant’s treatment of the plaintiff, whom he considered to be a shoplifter based on CCTV evidence, to warrant the awarding of aggravated damages. This is not a case where there is “malevolence or spite” (Rookes v Barnard [1964] AC 1129 at 1221 per Lord Devlin). These were not reckless publications; to the contrary, the defendant showed the plaintiff the CCTV in question and invited her to give an explanation. Nor is the extent and mode of publication unreasonable in the circumstances, having regard to the nature of CCTV and its role in the detection of crime, including the need to identify persons seen on CCTV committing crime such as shoplifting.

236. Taking all of the above into account, I am satisfied that aggravated damages should not be awarded. This would mean, even if Mr Dibb’s submissions concerning the cap were accepted, that the cap would apply.

General damages

237. All of the factors in this case point to two publications of an extremely limited nature where the sole witnesses were the plaintiff and her children or the one to three strangers who did not know the plaintiff.

238. The most significant aspect is hurt to feelings. The two witnesses called by the plaintiff as reputation witnesses had not seen the publication but attested to her hurt to feelings. However, Bishop Karaka has only known the plaintiff for the last 14 months, and all that he could say was that her reputation was good. Meryl Betham, a former member of the same Mormon church as the plaintiff, did give such evidence, but it was of a limited nature.

239. If I were to award damages, I would not accept Ms Chrysanthou’s submissions that any amount should be nominal. Nor would I award zero dollars in damages (Dank v Nationwide News Pty Ltd [2016] NSWSC 295) as proposed in her schedule of damages. I must have regard to the relevant features of judicial awards which are pushing damages upwards, including the judicial interpretation of the cap and the disproportionate rise of the gazetted cap. I can only disregard decisions such as Wilson v Bauer Media Pty Ltd because I consider aggravated damages should not be awarded.

240. The authorities are divided as to whether other awards of damages should be taken into account. Although this information is readily available, most judgments arrive at an assessment of damages in a few sentences without any reference to comparable verdicts.

241. Where courts have given details, those judgments are, however, particularly helpful. I particularly note the New South Wales Court of Appeal decision in Bristow v Adams [2012] NSWCA 166; although this included a component for aggravated damages, the reasoning involved is not only helpful but a useful measuring stick, although the extent of publication in this case would be very much smaller.

242. Appropriate awards would be $7,500 for the first publication and $2,500 for the second publication (see Beaven v Fink [2009] NSWDC 218 for a comparable verdict, a slander to a neighbour), making a total of $10,000.

Mitigation of damages

243. The defendant submits that, if the plaintiff succeeds on liability, any damages should be minimal given the matters pleaded and proved in mitigation by the defendant, even if, in some respects, the plea of justification fails, the evidence put forward in support of that defence can still be relied upon: Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 at 120; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [32].

244. One example would be if the defendant was unable to establish the truth of imputation (b), namely that the plaintiff put five items in her pocket, as opposed to only putting two in her pocket. There are a number of possibilities depending upon the findings of fact in the relevant case.

245. It is an exercise which, given my findings in these proceedings, is really not possible to do. Accordingly, I do not propose to determine this issue.

Costs

246. Each of the parties asks to be heard in relation to the issue of costs after this judgment is delivered. One of the applications that is made by the defendant is for a personal costs order in relation to the circumstances of the adjournment of the hearing on the first day, the assertion being that the plaintiff’s solicitor was responsible. I consider that all costs issues should be dealt with at the same time and, accordingly, I have reserved all issues of costs for further determination.

Orders

1. Judgment for the defendant.

2. Costs reserved.

3. Liberty to restore in relation to costs.

4. Exhibits retained for 28 days.

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Decision last updated: 02 November 2017