Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd
[2009] NSWDC 4
•28 April 2009
CITATION: Webster v Coles Myer Limited; Thompson v Coles Myer Limited [2009] NSWDC 4 HEARING DATE(S): 27-30 January 2009 and 6 February 2009 (for further submissions to 1 March 2009)
JUDGMENT DATE:
28 April 2009JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Judgment for Karl Webster in the sum of $80,267.00.
(2) Judgment for Steward James Thompson in the sum of $253,949.16
(3) Liberty to apply in relation to interest and costs.
(4) Exhibits retained for 28 days.CATCHWORDS: Tort – false imprisonment – plaintiffs apprehended by police following allegations by store managers in two stores in shopping mall - whether false imprisonment an intentional tort – whether physical restraint necessary – whether “but for” the defendant’s servant’s actions restraint would have occurred – whether the defendant was vicariously liable for its servant’s acts – defamation – whether defendant’s servant published the three matters complained of – whether defendant vicariously liable - whether plaintiffs identified – whether imputations conveyed and defamatory – whether publication made on an occasion protected by qualified privilege – malice – damages – whether there is overlap between the heads of damage for defamation and false imprisonment – aggravated compensatory damages – special damages – claim of exemplary damages for false imprisonment LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Defamation Act 1974 (NSW), ss 7A, 9, 22, 46A, 48A
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21
Police and Criminal Evidence Act 1984 (UK), s 24(6)CASES CITED: Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138
Ainsworth v Burden [2005] NSWCA 174
Aitken v Bedwell (1827) Mood. & M 68; 173 ER 1084
Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9
Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544
Allen v Tobias (1957-58) 98 CLR 367
Archer v Channel Seven Perth Pty Ltd [2002] WASC 160
Austin v Dowling (1870) LR 5 CP 534
Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 65
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Bauer v NSW (District Court of New South Wales, Robison DCJ, 24 May 2005, unreported)
Bennette v Cohen [2009] NSWCA 60
Bogusz v Thomson (1989) 95 FLR 167
Bonette v Woolworths Ltd (1937) 37 SR NSW 142
Boychuk Construction Corp. v O’Lain (1997) 161 Sask R 206 (QB)
Bridges v Pelly [2001] NSWCA 31
Briginshaw v Briginshaw (1938) 60 CLR 336
Brown v Hirley (1838) 5 UCQB (OS) 734 (CA)
Bugge v Brown (1919) 26 CLR 10
Calwell v Ipec Australia Ltd (1975) 135 CLR 321
Clark v State of New South Wales [2006] NSWSC 673
David Syme & Co v Lloyd [1984] 3 NSWLR 346
Davidson v Chief Constable of North Wales [1994] 2 All ER 59
Dickenson v Waters Ltd (1931) 31 SR (NSW) 593
Donald v McKeown [2004] NSWCA 285
Evatt v Nationwide News Pty Ltd t/as Cumberland Newspapers [1999] NSWCA 99
Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118
Feria v Lange [2009] PGNC 4
Foord v John Fairfax & Sons Ltd (Supreme Court of NSW, 27 February 1987, unreported)
Fraser v Holmes [2009] NSWCA 36
Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Gray v Motor Accident Commission [1998] HCA 70
Grinham v Willey (1859) 4H&N 496
Gross v Weston (2007) 69 NSWLR 279
Grundeman v Georgeson (Supreme Court of Queensland, Fryberg J, 19 May 1995, unreported)
Guise v Kouvelis (1947) 74 CLR 102
Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376
Hayward v Thompson [1982] 1 QB 47
Healy v Askin [1974] 1 NSWLR 436
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Hutchins v Maughan [1947] VLR 131
Jones v E Hulton & Co [1909] 2 KB 444
Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181
Khodaparast v Shad [2000] 1 All ER 545
King v McKenzie (1991) Aust Torts Reports 81-118
Kolokol v Amburuapi [2009] PGNC 1
Komba v Peke [1994] PNGLR 572
Lamb v Cotogno (1987) 164 CLR 1
Lee v Wilson (1934) 51 CLR 276
Lindholdt v Hyer [2008] NSWCA 264
Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638
Martin v Watson [1996] AC 74
Maxwell-Smith v Warren & Anor [2007] NSWCA 270
McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692
McHale v Watson (1964) 111 CLR 384
McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42
Morgan v Odhams Ltd [1971] 1 WLR 1239
Myers Stores Ltd v Soo [1991] 2 VR 597
Nixon v Slater & Gordon (2000) 175 ALR 15
Noye v Robbins; Noye v Crimmins [2007] WASC 98
Orpwood v Barkes (1827) 4 Bing 261 at 263; 130 ER 767
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Photi v Target [2007] NSWDC 265
Pike v Waldrum and Peninsular & Oriental Steam Navigation Co [1952] 1 Lloyd's Rep 431
Platt v Nutt (1988) 12 NSWLR 2
Rabay v Bristow [2005] NSWCA 199
Roberts v Bass (2002) 212 CLR 1
Roberts v Buster’s Auto owing Service Ltd (1976) 70 DLR (3d) 716
Robb v Morrison (1920) 20 SR (NSW) 163
Rogers v Nationwide News Pty Ltd (2003–4) 216 CLR 327
Ruddock v Taylor (2003) 58 NSWLR 269
Ryan v Ann St Holdings Pty Ltd [2006] QCA 217
Sadler & State of Victoria v Madigan [1998] VSCA 53
Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525
Sewell v The National Telephone Co Ltd [1907] 1 KB 557
Skalkos v Assaf [2002] NSWCA 14
Stanley v Powell [1891] 1 QB 86
State of New South Wales v Delly [2007] NSWCA 303
State of New South Wales v Ibbett (2006) 229 CLR 638
State of New South Wales v Ibbett (2005) 65 NSWLR 168
State of New South Wales v Lepore (2003) 212 CLR 511
State of New South Wales v Riley [2003] NSWCA 208
Steele v Mirror Newspapers Ltd [1972] 2 NSWLR 348
Symes v Mahon [1922] SASR 447
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Turner v MGM Pictures Ltd [1950] 1 All ER 449
Vignoli v Sydney Harbour Casino [1999] NSWSC 1113
Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052
Watson v Marshall & Anor (1971) 124 CLR 621
Webb v Bloch (1928) 41 CLR 331
Williams v Milotin (1957) 97 CLR 465
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448
Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354TEXTS CITED: Duncan & Neill on Defamation (2nd ed.)
Justice David Ipp, “Problems with Fact-finding” (2 September 2006) Lawlink, Supreme Court of New South Wales ( Law of Defamation in Canada (2nd ed.)PARTIES: Plaintiff in 1842 of 2006: Karl Webster
Plaintiff in 2538 of 2006: Stewart James Thompson
Defendant: Coles Myer LimitedFILE NUMBER(S): 1842 of 2006; 2538 of 2006 COUNSEL: Plaintiffs: Mr R Weaver / Mr S Ahmed
Defendant: Mr G ParkerSOLICITORS: Plaintiffs: Konstan Lawyers
Defendant: McCulloch and Buggy
Judgment
[1] This action for damages for defamation and wrongful imprisonment has an unfortunate procedural history. The problems are:
(a) Pleading problems : The plaintiffs filed separate Statements of Claim in May and June 2006 seeking damages for false imprisonment and negligence. The pleadings set out that on 25 October 2004 each of the plaintiffs was stopped, searched and interrogated by police officers following information alleged to be provided by the defendant’s employee. The claim in negligence was misconceived but not abandoned until closing submissions, and the claim for false imprisonment was misconceived as a claim which should be brought under the Civil Liability Act 2002 (NSW). The plaintiffs did not bring claims for defamation until after expiry of the limitation period; on 1 August 2007 Armitage DCJ granted leave to commence proceedings out of time and made costs orders personally against the solicitor for the plaintiffs. The defence filed was a mere traverse, which did not properly particularise defamation defences.
(b) Case management problems : The matter was not conducted in the Defamation List and came before me only on 21 May 2008 to vacate the hearing date of 26 May 2008, when the parties realised the statutory requirement for a s 7A jury trial and the plaintiffs wanted to add a further publication. It was also necessary for a defence pleading qualified privilege and a Reply by the plaintiffs to be filed. When the parties came before me they decided to consent to waive the requirement for a jury trial; the plaintiffs abandoned the further publication (which was time-barred). At the request of the parties, who were anxious for a hearing date, I gave the matter a 3-day hearing fixture as a non-jury trial. I made an order for costs against the plaintiffs for the vacated hearing date.
(c) Problems with discovery: The plaintiffs never sought discovery of the CCTV tape or other relevant material from the defendant. By the time they issued a subpoena some months before the trial, the defendant said it had no documents to produce.
(e) Other problems with interrogatories: In addition, the defendant’s answers to interrogatories (Exhibit E) show the defendant refused to answer interrogatories concerning the accuracy of the statements in the COPS report on the basis that it was not a document created by the defendant. The plaintiffs never complained about these answers. Effectively, both the plaintiffs and defendant were in the wrong here. The plaintiffs should have administered the usual interrogatories seeking admissions as to publication and as to the information in the defendant’s possession when the imputations were published. The defendant was not entitled to object to being interrogated about the accuracy of statements made to police officers and recorded in police records. As neither party sought rulings on this issue before the trial, these interrogatories do not provide the assistance they would ordinarily give.(d) Problems with interrogatories as to the defence of qualified privilege: In addition, the plaintiffs sought leave from Armitage DCJ to administer interrogatories seeking admissions necessary for the qualified privilege defence. Armitage DCJ refused to permit the plaintiffs to administer interrogatories as to the state of mind of the store manager who was alleged to have published the information to the police. The plaintiffs sought leave on the basis that any belief held by the store manager was relevant to qualified privilege and malice. However Armitage DCJ was persuaded by counsel for the defendant that such interrogatories were a fishing expedition.
[2] As a result of this procedural history, significant problems arose during the trial. These problems include:
(a) Contemporaneous documents (the defendant’s reports of the incident, the CCTV footage and the police statement prepared for the store manager) could not be located;
(b) Due to the lapse of time between the incident, the commencing of proceedings and the hearing, the store manager said she could not really remember the events;
(c) There were problems with the way the parties approached the issue of publication and identification;
(d) There were problems with the way the parties approached the defences of qualified privilege at common law and pursuant to s 22 Defamation Act 1974 (NSW) (“the Act”). For example, neither counsel referred me to relevant authority such as Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 and it was necessary for me to relist the matter to ask counsel for the defendant to address me on this issue;
(e) The plaintiff abandoned the claim for negligence in closing addresses, but then expressed concerns that the false imprisonment claim should have been brought under the Civil Liability Act ;
(g) The case took longer than the time estimated, and the parties’ decision not to provide lists of authorities to each other (or to the court) at the commencement of the trial meant that issues of law took them both by surprise. A further week (extended to a fortnight due to failure to comply) was set for written submissions.(f) The parties’ submissions on damages failed to deal with a number of issues, such as overlap between heads of damages for the causes of action and whether the claim for special damages related to both the defamation and false imprisonment claim;
[3] When the matter came before me on 6 February, I identified issues not covered in the further submissions as including:
(a) Issues of publication. The parties did not deal with issues about the relationship between the first publication and Miss Hart’s subsequent identification of the plaintiffs in the second publication. The defendant dealt with all three publications as if they were one;
(b) Issues of identification, including problems arising from the conflicting descriptions in the first publications and identification of Mr Webster;
(c) Whether the Civil Liability Act applied to the false imprisonment claim in light of Court of Appeal authority to the contrary;
(d) Vicarious liability;
(f) Damages issues.(e) Statutory qualified privilege (which the defendant conflated with the common law defence), particulars of malice as set out in the Reply and the impact of Aktas ;
[4] I have since received limited submissions on Aktas, vicarious liability, exemplary damages and the Civil Liability Act. I am grateful to Mr Weaver, counsel for the plaintiff, for his assistance in this regard. The defendant in the most recent submissions states the store manager, Miss Hart, believed in the truth of the imputations. The defendant’s previous position had been that this was irrelevant, and that Miss Hart could not remember. Miss Hart’s answers in cross-examination were ambiguous but tended to suggest she did not believe in the truth. These changes have complicated the hearing.
[5] It has consequently been necessary for me to set out the evidence in detail and to look at each issue the parties raised, even where the parties’ submissions are either conflicting or non-existent. I shall start by setting out each of the matters complained of and the imputations alleged to arise from them.
The first matter complained of
[6] The statement of claim sets out that on or about 5:30pm on 25 October 2004 either Miss Hart and/or another employee of the defendant acting as servant or agent of the defendant spoke the following words to Constable Polley, an officer of the New South Wales Police Force:
“There are two males about 18-20 years old, Lebanese in appearance who have attempted to buy gift vouchers in K-mart and Target with possible stolen credit cards. The men are currently in Coles. Please send police to investigate.”
[7] The imputations alleged to arise in relation to each of the plaintiffs from this publication are the following:
(b) The plaintiff had attempted to obtain gift vouchers from K-mart by means of deception.(a) The plaintiff was a dishonest person;
The second matter complained of
[8] This is a publication made shortly afterwards. Following the arrival of Constables Turnbull and Cozis at Ashfield Mall, Miss Hart, acting as servant or agent of the defendant, spoke words to the following effect to Constables Turnbull and Cozis:
“There are two male people who tried to obtain gift vouchers using fraudulent credit cards. They are in the centre.”
[9] The imputations alleged to arise in relation to each of the plaintiffs is as follows:
(b) The plaintiff had attempted to obtain gift vouchers from K-mart by means of deception.(a) The plaintiff was a dishonest person;
The third matter complained of
[10] Following publication of the second matter complained of, Miss Hart went into the mall where she identified the plaintiffs and at the time or shortly afterwards said words to the following effect:
“These are the blokes who attempted to obtain $500.00 worth of gift vouchers from K-mart and earlier attempted to obtain $1,500.00 worth of gift vouchers from Target using fraudulent credit cards. They are definitely the men who attempted the fraud at K-mart.”
[11] Each of the plaintiffs pleads that the third publication conveys the following imputations:
(a) The plaintiff fraudulently attempted to obtain $500 worth of gift vouchers from K-mart.
(c) The plaintiff was dishonestly in possession of a fraudulent credit card, which he used with the intention of dishonestly attempting to obtain a financial advantage.(b) The plaintiff fraudulently attempted to obtain $1,500 worth of gift vouchers from Target.
Section 7A issues
[12] The defamation actions fall within the ambit of the Defamation Act 1974. As to publication, it is necessary for me to have regard to the evidence of each of the plaintiffs, Constable Turnbull, Miss Hart and other store employees and also the summary of information contained in the COPS report to determine what was said on the day in question. It will then be necessary for me to determine in accordance with the provisions of s 7A Defamation Act whether what was said conveyed the imputations pleaded and whether those imputations are defamatory.
[13] The principle issue in contention is exactly what was said on the day. Mr Parker appears to concede that the imputations pleaded by the plaintiffs would arise if I find the matter complained of to be as asserted by the plaintiffs and that the imputations were defamatory. However to err on the side of caution, I have made findings in this regard in any event.
[14] I shall first give careful consideration to the accounts of each of the persons present as to what occurred on the day in question. The delay since the events, the fact that so many documents were unavailable due to non-discovery and late subpoenae and the poor recollections of so many of the defendant’s witnesses means there is no alternative other than to set out the relevant extracts from the transcript of their evidence.
The evidence of Mr Webster
[15] Mr Webster and Mr Thompson went to the K-mart shop on 25 October 2004 to return a Seinfeld DVD that Mr Thompson had purchased there. Mr Thompson had his receipt with him. It is important to note that both Mr Thompson and Mr Webster had previously worked in department stores, and were familiar with department store procedure. For the previous nine years, Mr Thompson was a middle-management store employee at Myer with about 60 persons in his department reporting to him. For the period 2001 to May 2003 Mr Webster had been a fragrance salesman for Trimex Pty Ltd and had sold fragrances as their representative in the Grace Bros Sydney store. As well as having this background of familiarity with store procedure, they were middle-aged men with a cultivated appearance and manner. They gave their evidence in this fashion, and the description of them given by the defendant’s medical witnesses (set out in greater detail below) confirms my observations that their demeanour and presentation is that of sensible, responsible members of the community.
[16] The timing of these events is also very important. They arrived at Ashfield Mall at about 4.30 to 4.35 pm, and went straight to K-mart to return the Seinfeld DVDs (T-14). They then went to Danoz Direct and to the Food Court, which is where Mr Webster was stopped and searched by the police, who at 5.27pm processed the call they received concerning the plaintiffs and then came to the Food Court, which is where they were told the plaintiffs were.
[17] Mr Webster still had a very clear recollection of the events of the day in question. He described how he and Mr Thompson went into the K-mart shop to find the service counter. He did not participate in the discussion with the store employees, but was present the whole time that Mr Thompson was at the counter and was able to hear what was said by Mr Thompson and the K-mart staff (T-14).
[18] Mr Webster described how Mr Thompson said, “I want to return these DVDs” to the checkout lady on the service counter. She said “That’s fine” but had to obtain authorisation from her manager because the sum involved was more than $100 (T-15). She did not leave the counter to do so (T-15 line 16). Another lady came “from the side out of nowhere really, out of the wings” (T-15). The whole of the conversation took a couple of minutes and consisted of conversation between Mr Thompson and the person who the plaintiffs later came to know as Miss Hart. Mr Thompson again said “I want to return these DVDs” and the conversation then went as follows:
“A. I heard Stewart [Mr Thompson] say to this - can I mention the person’s name?
HER HONOUR
Q. Yes sure.
A. To Miss Hart, that he wanted to return -“I want to return these DVDs” and then Miss Hart said, “Well you know that they’re not the complete collection. What’s wrong with them? There’s nothing wrong with them? It’s only, you know it’s only 1 and 2.” And Stewart said, “No I thought it was the complete collection”. Kelly Hart said, “No, no, no, no, you know that”, it was the same line of wording, it’s like you know that this is not the complete collection and it’s only series 1 and 2. This went on for about five minutes.WEAVER
Q. Did she say at any stage anything in relation to Mr Thompson’s eligibility to obtain a refund?
A. No.Q. When you say this conversation took place over five minutes, did you join in the conversation?Q. But she refused him a refund, is that what you say?
A. Refused.
A. No, I was about ten feet behind because it wasn’t my transaction. But as it got hotter I moved in. But I can still hear it.”
[19] Mr Webster went on to describe what he meant by saying that the conversation got hotter as follows:
“Okay. Kelly Hart said “You know this is not the complete collection, it’s series 1 and 2, you know that.” Kelly Hart said that several times. Kelly Hart said that loud enough for me to hear it and I’m behind Stewart. Kelly Hart would not listen to Stewart.”
[20] Mr Webster said that Miss Hart “kept the same line of questioning up” and that Mr Thompson was “unable to communicate because of the level of questioning” (T-17). Eventually Miss Hart took the video, put it on the counter and said, “Give him a credit note” and after Mr Thompson obtained the credit note they went inside the store. However, before they left, Mr Webster was sufficiently upset to ask the young sales assistant for Miss Hart’s name, according to paragraph 13 of Exhibit D. However, I heard nothing about this in the evidence. It is evidence that, if led, would have assisted the plaintiffs but I must disregard it.
[21] The plaintiffs both looked around inside the store but Mr Webster felt uneasy because he noticed security guards in the vicinity. He described these as follows:
“Well, there was a tall man in a white shirt and pair of grey pants and a big belly and there was another gentleman that came next to me who I assumed was a sort of detective because he was very, very fit and he had - you know he was a - looked to me that he went to the gym a lot.”
[22] He said that these gentlemen “hovered” within ten feet (T-18) for about a minute. Consequently they stayed at the store only about fifteen minutes after which they went to Danoz Direct, where they spent approximately five or six minutes making a purchase (T-19). According to paragraph 20 of Mr Webster’s statement (Exhibit D) Mr Thompson “purchased the Ab King Pro with his credit card”. If Mr Thompson had a valid credit card in his own name, and had used it to make a purchase of the Ab King Pro, this is evidence of significance. Mr Thompson in fact identified this credit card in his evidence as a Coles Myer Source Mastercard. They left the Ab King Pro at Danoz Direct because it was too heavy to carry with them on the understanding that they would return for it. Mr Thompson, who smokes, wanted to have a cigarette, so they went to the Food Court area. He then sat down in the Food Court area while Mr Thompson went into Franklins to make some purchases. It was at this stage that Constable Cozis approached Mr Webster and said:
“She said “You’ve been trying to commit credit card fraud mate,” and I’m like sorting through my mail, I went, “No,” in my bag. And she said, “Yes you have, I’ve seen you in the video.” And I went, “No, I think you’ve got the wrong person.” And she - “We’ve seen you in Coles and Target,” and I went “I didn’t shop in Coles or Target,” and then she said, “Where’s your mate?” And I said “Stewart’s inside Franklins,” and then the other constable came from behind, well, approached. At that time Constable Turnbull went into Franklins to get Stewart and Cozis asked me the same questions again and I said, “Look, you’ve got the wrong person, I’ve seen the video,” and then she - and I just kept on arguing because we didn’t shop in Coles and Target, in fact I don’t even know where it is. So that’s what happened.”
[23] The next thing that happened was:
“Stewart came out with Turnbull. I said, “What’s happening?” And he went “I don’t know.” Stewart said, “I don’t know.” And they - Turnbull started to search Stewart’s stuff. He took his wallet and he made him take off his shoes and socks and did all that kind of - searched him, you know what I mean, very meticulously, through every piece - saying that we had tried to commit credit card fraud and we tried to obtain a $1500 transaction on the card and that we couldn’t get it and snatched the card back. And so that was - this is very hard to explain because it was - we - I was terrified. But I remember, I remember what was happening.”
[24] Although Mr Webster repeated that he did not have a credit card with St George, he was searched in front of people in the Food Court at that time where he was sitting (T-21.50). His bag was searched by an officer who first asked if there was anything in the bag that could be dangerous. It was approximately 5.30pm by this time and there were about twenty to thirty people in the Food Court crowding around watching. In particular, he saw Kelly Hart come from behind where he was sitting at a table with an A4 piece of paper and observed her say to Constable Cozis “Not him” pointing to Mr Webster but “it’s him” pointing to Mr Thompson. She remained with the police for about three or four minutes, but he could not hear their conversation.
[25] Constable Cozis then said, “Let’s take all of this downstairs” (T-23). Constable Cozis took Mr Webster down to the loading bay to be searched. Mr Thompson was not in earshot. There was a security guard dressed in white and grey whom he recognised as being the person whom he had seen earlier in K-mart. This was a man in a shirt with a big stomach and grey pants which looked like a security uniform (T-24). There was a body search after they were informed they were going to be searched and, in particular, he was asked to take his shoes and socks off, although the floor area was dirty and his shirt was lifted so that his chest was exposed (T-25). His bag was then searched for a second time and the police officer who searched, Constable Turnbull, proceeded to read the plaintiff’s diary and asked if Mr Webster had a problem with drugs (T-25). At the end of the search, the police officers offered Mr Webster and Mr Thompson a lift home. They refused and Mr Webster said, “Who is the manager?” because he wanted to know who was making this claim. Constable Cozis said “You can’t see her” and he replied “Right”, got dressed and left (T-26).
[26] Mr Webster was cross-examined at length about his account of the events in question. He showed a good memory for events, and was not caught out in any errors or inconsistencies. In particular, he made concessions where appropriate (see for example T-40 to 42). He gave the same account of Miss Hart’s statements in cross-examination as he did in examination-in-chief (T-45 to 46).
[27] In cross-examination significant emphasis was placed on his statements to his doctor, Dr Workman on 27 October 2004 that the events in question were a case of mistaken identity. He was convinced that the police had got the wrong people (T-52). However, this did not relieve his mind.
The evidence of Mr Thompson
[28] Mr Thompson also had a good recollection of events. He gave evidence as follows:
“I entered the Kmart store, both myself and Karl Webster went to the service desk. I actually had a Seinfeld DVD that I wanted to return. I approached the service desk and saw the service assistant there. I said to her, you know, I’d like to return this Seinfeld DVD. She said that she’d have to get a manager because it was of more value than $100. I said that’s fine. She proceeded to bring her over - to get her manager and bring her manager over to me. The manager said to me “Why do you want to return them?” I said I wanted to return them because I thought I was actually purchasing the whole series, but I realised that it wasn’t, it wasn’t the complete series. She said that you know you should have realised that. And I said look I was under the assumption that it was the complete series from woe to go and that I wanted to return them.
This interaction went on for about four to five minutes. It just kept on going backwards and forwards and she was getting hostile. I was just saying you know I didn’t realise that it wasn’t the complete series. At that time it was when TV series were coming onto DVD, but she said it wasn’t the company’s policy to return DVDs. There was nothing wrong with the DVD. I had the sales receipt. I just thought it would have been a straightforward transaction, I thought it would have been fine. During that time, you know, it was going backwards and forwards; I began to feel real embarrassed because it was at the front of the store. Anyway in the end she reluctantly said to the sales assistant that was at the service desk, “Just return it,” and she handed the DVD back to the service assistant and then walked off. I looked at the service assistant. She you know then proceeded to do the return for me. I provided ID for the transaction ... A learner’s driver’s licence. I provided that ID. In turn, the service assistant gave me a returns voucher for around about $115. I just couldn’t believe that that conversation with that manager from Kmart had just escalated like that and I said to the service assistant - the assistant - would you mind telling me what your manager’s name is, and she told me it was Kelly Hart, and I remembered that name.
The service assistant provided me the returns voucher. She explained to me the returns voucher had to be purchased in one transaction and - all in one go. I thought, okay. I proceeded with Karl Webster into the store. We went towards the back of the store to where the DVDs are and I had the intention of purchasing something for that full amount because that full amount had to be used in the one transaction. I was standing there and I could see an older security guard—
WEAVER
Q. What made you say he’s a security guard?
A. He had - he was wearing a yellow short sleeved shirt and it was embroidered with some type of security firm and he was standing off to my left and he was looking at a monitor that was monitoring that department and I immediately felt even more uncomfortable. He was looking at that monitor and then he was looking at me and it was - I thought it was quite obvious and I felt very uncomfortable and I thought, I’m not going to be able to make a decision about what I’d like to purchase so I said to Karl, Karl there’s something up here, let’s - I just want to get out of this store. Myself and Karl left the store where we then proceeded to Danoz Direct. I went into Danoz Direct - we both went into Danoz Direct. We actually tried out the equipment. I decided to purchase, I used my credit card.Q. What sort of a credit card?
A. At that time I had a Coles Myer Source Mastercard so I used that. I believe that the Ab King Pro was around $199. I purchased it, said to the sales assistant, you know, there’s a few other things I have to do in the shopping centre and of course I didn’t want to lug the box around, can I come back to collect it, and he said sure, that’s fine. Myself and Karl left the Danoz Direct store. We then proceeded to the Food Court of Ashfield Mall. I wanted to go outside and have a cigarette. There’s a back entrance to the Mall, I went out and had a cigarette and I said to Karl, there’s a few things - I have to get a few groceries from Franklins. Karl said, okay, you wait for me in the Food Court, he took a seat. I went into Franklins, I had a shopping basket, there was [sic] a few things I had to get. It was getting late in the afternoon. I was walking through the aisles, I had a few things in the basket. When a male police officer approached me—Q. What did he say to you?
A. That he wanted me to go with him.HER HONOUR
Q. No, he didn’t say that, he said “I want you to come with me”—
A. Sorry.Q. Yes, so try and put that - so he said I want you to come with me - whatever?
A. “I want you to come with me.”Q. Did you say anything in response?
A. I did.Q. What did you say?
A. I don’t know why I said - I said “Can’t I just get these few things?” and he said “No you have to come with me.” So I was walking with me, I just - I had no idea - no idea what was going on. I hadn’t had any - you know, I have never been in trouble with the police previously. I didn’t know what was going on, when I was walking out of the supermarket I noticed there were people in the aisle, there were people at the front of the store going through the checkouts. I noticed they were looking at me.Q. How did you feel when you noticed that?
A. I felt like embarrassment, humiliated - so much so that I started to wet myself. I - the police officer - the male police officer took me out to the Food Court. I was - even more people around there - I was feeling - feeling humiliated and shocked and I could see different people - people watching me. I saw Karl. Karl asked me “What’s going on, Stewart what’s going on”. I said “I don’t know.” The police officer took me to one of the tables in the Food Court. Again I noticed more and more people were looking. I - it was like turning into like a circus. I noticed the security guard from Kmart there because he had the yellow shirt on, another type of security guard, whether it was from Ashfield Mall or not—PARKER: Your Honour, I don’t—
WEAVER: I don’t press that your Honour.
HER HONOUR
Q. Look would you mind describing this person who you just referred to. What was this person wearing?
A. They had a blue - a blue shirt - they were, I assume, a part of the Ashfield Mall Security. I just remember the Kmart distinctly had the - he had a yellow shirt on, short sleeved shirt, and I remember seeing him in the Food Court again.Q. When you noticed this were you required to do anything further by either of the constables that were there?
A. Yes, I was.Q. What did you have to do?
A. The police officers asked me - I had a shoulder bag on, they asked me is there anything that you should be concerned about in your bag. And I answered “no”.Q. Did they tell you the reason why they’d brought you out to the Food Court by this stage?
A. They were - yes they said, they were asking me where my St George credit card was, and I said “I don’t bank with St George”. But they kept on saying “Where is the credit card. We’ve seen you at Coles and we’ve seen you at Target.” And I said, “I haven’t been into any of those stores today”. I - again, I was just feeling humiliated that all these people around and it was drawing such attention. They were just at me about where this credit card was, and at that time I didn’t bank with St George. The male police officer asked me to take my shoes off. I had like black slide shoes on, as if I was concealing something under the sole of my feet. I took them off. They went through my bag paying particular attention to my wallet and other credit cards that I had. They seemed to pay great detail on everything that I had in my bag, like even pieces of paper. I remember - I took my shoes off, there was nothing there, I put my shoes back on and they continued to go through the contents of my bag.Q. Did they ask you anything further in relation to your credit card, or anything related to that matter?
A. They asked me, they again asked me where the St George credit card was, I said I didn’t bank with them. I said that I had a Police Credit Union credit card, but I didn’t have it on me. And they were just adamant that I had a St George credit card, and they just kept on asking me, and they just - they were just hostile that - and they were adamant that I had a St George credit card. And I just kept on saying that I didn’t have it. And you know they could look through my - there was nothing for me - I didn’t hide anything - there was nothing - I hadn’t hidden anything in my bag.Q. During the course of this discussion with the police, did anyone else arrive and talk to the police?
A. Yes. Kelly Hart who - by that stage I knew her name because they’d asked the service assistant in Kmart. She came into the Food Court waving a piece of paper saying “Here it is” and she looked and pointed at me. She handed the piece of paper to the police.Q. Did you hear her say anything else to the police?
A. No I didn’t.Q. How long did she stay there in the vicinity of where you were being questioned by the police?
A. I’m not sure of the time.Q. Would it have been a matter of a few minutes, or would it have been longer?
A. I think it would have been longer.Q. Did you see her talk to the police again after that at any time?
A. I don’t recall, I don’t think so.Q. But you say that she stayed there for a while longer?
A. Yes she did, she certainly did.Q. I think you were saying that the police conducted a search of your bag, is that correct?
A. Yes they went through my bag.Q. When they’d finished doing that and they asked you to remove your shoes?
A. Yes.Q. Did they ask you to go anywhere else?
A. Yes they did. They’d been through my bag, I took my shoes off, and so forth, they said to come out to the back, to the loading zone. So myself and Carl accompanied them to the loading zone. On the way there I started to cry, I just didn’t know what was going on. I said, I actually work for Coles Myer, you know, am I being arrested, I just, I didn’t understand what was going on. All I know is that it was turning - with all the people it was turning into a circus.Q. When you were taken to the loading dock were you immediately behind or were you some way behind Mr Webster and the policeman who was with him?
A. They were both in the vicinity. I was - sorry, what was the question sorry.Q. Did you go down with Mr Webster—
A. Yes.Q. And what happened when you got down to the loading dock?Q. In other words did four of your all proceed at once or was there a break between the two groups, you and one police officer and Mr Webster and the other?
A. I believe we all went at roughly the same time.
A. Got down to the loading dock. I was asked to lift my shirt, was patted down.”
[29] Mr Thompson went on to say:
“The male police officer patted me right down, you know, inner thighs, up under my shirt. I remember what I was wearing. To lift my shirt to see if I was concealing anything maybe under armpits or what have you, and I remember the female police officer saying to me - she said to me, she said you know this is where the law sucks, you know, we have to act upon these things. At the end of it they gave me a police records card and by that time the whole - I was just a mess, I didn’t know really what had happened. They patted us down and they said to us “Would you like a lift home” and I just said no thank you, I’d had enough of the police.”
[30] Mr Thompson added that he heard Constable Cozis say to Mr Webster:
“I heard something to the effect that they were acting upon information given to them and as I said yesterday she said that in her work this is where the law sucks. We have to act on these – on this information.”
[31] He went on to say that Constable Cozis said that they would both be charged but that to be arrested they would have to be in the police station.
[32] Mr Thompson’s unchallenged evidence is that he produced his driver’s licence and also had a Coles Myer Source Mastercard (used to purchase the Ab King Pro) which, combined with his occupation as a Myer employee, lack of prior criminal record, obvious respectability, age and high level of distress, are strong indicia of innocence or error. Some of this must have been said to Miss Hart for her to have made the statements set out in the third matter complained of. This is relevant to the issue of malice.
The evidence of Senior Constable Turnbull
[33] The plaintiffs called Constable Turnbull, now a senior constable of police and the officer who attended on the day. Despite making many arrests in the course of his police career, he had a degree of recollection of this incident which was impressive. In fact, his ability to recall the incident was much better than that of the store manager Miss Hart.
[34] Senior Constable Turnbull recalled receiving a radio call. He was now unable to recall to whom he spoke, but on checking with the COPS entry he noted that it referred to “Peter” and had his contact details, so he assumed he had spoken with him. He recalled being directed from the Coles at Ashfield Mall to the K-mart store where he spoke with Kelly Hart, whom he understood was the manager. He set out his best recollection of the first matter complained of as follows:
Q. So he had received a call from K-mart and he redirected you, is that right?“Q. When you first saw someone in Coles at Ashfield Mall did they indicate that they had made the telephone call?
A. To be honest with you, like I said I can’t really recall too much about the specifics of the incident. I can’t recall if I asked him he made the call or not. I think we may have gone there and asked him what the situation was because we were responding to a call we had received and then I believe that he re-directed us because he had in fact received the call from K-mart saying that people had tried to do a fraud...
A. To the best of my memory that’s how it happened, a person at K-mart contacted - I’m probably getting ahead of myself he - but contacted Coles and Target to let them know that someone was in that area trying to pass off a fake credit card.”
[35] Senior Constable Turnbull then attended K-mart and had “a conversation with Kelly Hart in relation to two males attempting to use a fake – well not a fake credit card but a credit card to obtain some gift vouchers from K-mart”. He was unable to recall if he viewed video footage at that time (T-130). He said that:
“From what I can recall I either obtained a description of the people involved or I asked her to accompany myself and Constable Cozis to point out these individuals because she - from memory. She said something about them being at the Food Court which is on the, I don’t know Ashfield Mall has sort of got two levels. Where the K-mart is - if the K-mart is here you just—
Q. Well, we can’t pick that up on the transcript. But it’s on two levels?
A. It’s on two levels, but at K-mart you can see the escalators from the front of the K-mart store there’s like a - now there’s a Gloria Jeans there, I don’t know if it was the same back then, but there’s a Gloria Jeans and then pretty much escalators and from the front of the K-mart store you can see these escalators which lead directly to the Food Court at the top of the escalators.Q. Now did you attend the Food Court with Constable Cozis and observe a person sitting there?
A. Yes I recall, obviously before I recall the taller, Mr Webster, the taller gentleman sitting in the Food Court and to the best of my recollection he was wearing a trench coat which I think helped me identify him.Q. Do you see Mr Webster in the court today?
A. Yes.Q. The taller of the two gentlemen behind me?
A. That’s correct.Q. Did you approach him or did Constable Cozis approach, do you recall?
A. To the best of my memory we both would have approached him.Q. Do you recall what you said to him?
A. Again specifically I can’t tell you directly what I said to him but it would have been, we would have approached him, introduced ourselves to let him know why we were speaking with him and either then myself or Constable Cozis would have asked him at that point in time where his friend was.Q. Did you question him then about the issue of the credit cards or did you wait until you went and found the other person?
A. I don’t know if I would’ve asked him one or two questions about it, but I’m pretty sure what I would’ve done is probably gone and got the other gentleman and brought him back and asked them together.Q. I don’t think it’s in dispute, and if I could just lead this. But it’s the case that Mr Webster indicated that Mr Thompson was in the Franklins nearby, is that correct?
A. Yes to the best of my knowledge.Q. Did he give a description or did Kelly Hart give a description?
A. I’d don’t - again as you can appreciate it happened four years ago and doing this everyday this sort of thing sorry. I can’t recall, I probably got a description off Kelly and gone up the top, seen Mr Webster and then asked him where his friend was. He said Franklins, gone in, and I think he was saying before he was wearing a hat and that. There was identifiable features of how I came across him. I probably would have asked him who he was and if his friend was out there and then brought him back.Q. When you had the two of the gentlemen with you and Constable Cozis at the Food Court—
A. Yes.Q. Did you then raise with him the issue of use of a credit card or fraudulent use of a credit card?
A. I would’ve spoken about the use of the credit card.Q. Do you recall mentioning the type of credit card it was?
A. No. No I remember just before someone saying something about St George card—Q. But you have no independent recollection?
A. No I can’t remember what sort of card it was.Q. It’s the case that you conducted a search of both Mr Webster and Mr Thompson’s personal items?
A. I’m pretty sure before we searched them we probably would have conducted checks on the radio, generally that’s the common practice to know who we’re dealing with. Before we search people we want to know if they’re drug users and stuff like that so we don’t get injured ourselves, so we generally do checks before we search people.Q. Now when you came back with Mr Thompson to where Mr Webster was in the Food Court—
A. Yes.Q. Do you recall her at any stage being with you and Constable Cozis at that time in the Food Court?Q. Do you recall whether or not Kelly Hart was there at the same time?
A. I can’t recall if she was there or not.
A. At the Food Court, again to be perfectly honest I couldn’t tell you if she was there or not.”
[36] After refreshing his memory from the COPS report he was taken through and he recalled the information provided to Constable Polley and added that “All I can say is that I spoke to someone in Coles” (T-133 lines 46-47).
[37] In the first matter complained of the wrongdoers were identified as men of Lebanese appearance. He could not recall there ever being a discussion about men of Lebanese appearance, nor could he recall having a discussion with anyone about it (T-134). He received the information given to Constable Polley that the persons of interest were in the Food Court on level 4 of the shopping centre (T-134) but could not recall where he was when he received that message. He agreed that the person reporting it was Kelly Hart (T-134). He agreed that he had effectively determined that Kelly Hart was the person reporting. The person reporting was not the person reporting on the telephone when they first telephoned, but the person reporting the incident, which had been categorised by the police as a fraud (T-134). This is important because it establishes a repetition of the initial telephone call to police from the person known as “Peter”.
[38] At T-135 counsel for the plaintiff said:
“Q. Thank you for clearing that up. And as you’ve already given evidence this afternoon you’ve attended the Food Court and seen Mr Webster there and then you’ve gone and attended Franklins and asked Mr Thompson to accompany him back to the Food Court as well. And you can see that reference there, “A manager from K-mart has then stated to police that the same persons of interest had attempted to obtain $500 worth of gift vouchers from K-mart”. When you say “a manager from K-mart” who are you referring to?
A. Most likely that would have been Kelly, Kelly Hart.Q. Do you recall talking to any other manager from K-mart that afternoon?
A. No. No from my memory I spoke to Kelly Hart and the girl at the service desk.Q. It says there and they have earlier attempted to obtain $1,500 worth of vouchers from Target?
A. Yes.Q. Did you make any inquiries of staff from Target as to whether an attempt had been made?
A. I did speak with Target after I dealt with people from K-mart and asked them to give us some footage and other things like that but they seemed a little bit uninterested—HER HONOUR
Q. What does that mean, uninterested? What they didn’t know what you were talking about or—
A. No they knew I - they didn’t come forward with any information. They didn’t provide me with any footage after I requested it. They didn’t really want—WEAVER
Q. Where you say they have earlier attempted to obtain $1,500 in gift vouchers from Target, were you informed of that by the manager from K-mart or by someone from Target?
A. Again I couldn’t tell you who I first heard it off because I remember speaking to someone from Target who said that it did happen. But I just can’t recall who I heard it off first, if it was the case that when Kelly Hart rung Target, if they said oh yeah they were up here before, and then Kelly’s told me about that, or if Kelly’s told me that she’s spoken to someone from Target and we should go up there and they’ve told us about $1,500 I’m not sure.Q. Now you say that the manager has then pointed out person of interest number 2 which would be Mr Webster is that correct?
A. That would be ..(not transcribable)..Q. And of course again as manager—
A. No no no, PI2 is Stewart Thompson.Q. Well when did that happen do you recall?
A. I think what I mean in that - and I haven’t written it very well to be honest with you, what I mean by that is the manager’s pointed out PI2 is the person that had the card at K-mart not that she pointed him out shopping in Franklins but rather she - or he was the one that had the card at K-mart.Q. Do you recall how that actually physically happened, was she standing there with him right in front of you and gestured to him directly or—
A. I can’t recall to be honest with you, I don’t remember. I can’t remember - I remember speaking, like I said I remember a trench coat, like speaking with him I can’t tell you what we spoke about. I can’t - I don’t remember anyone coming up ..(not transcribable).. I don’t remember anyone coming up.Q. You recall attending the loading dock with Constable Cozis and Mr Webster and Mr Thompson?
A. Yes.Q. And you conducted a search of their person down there?
A. That’s correct.Q. When you went down to the loading dock did you go as effectively a group of four or do you recall being separated in some way?
A. I can’t remember, to be honest with you I didn’t until I spoke with you earlier, I didn’t even remember going to the loading dock and searching them further. I don’t remember if we walked as a group or if Constable Cozis was in front of me or behind me or if we had one each, or I can’t really recall.Q. Do you recall at any stage either Mr Thompson or Mr Webster asking you, “Are we going to be arrested?”?
A. I remember receiving a number of phone calls after the matter. One of them was worried about being arrested and I informed him that I was still making inquiries, that as soon as I knew what happened I would get back to him.Q. Do you recall being asked at any time while they were in the Food Court or down at the loading dock?
A. No, I can't recall that.Q. Do you have any recollection of Constable Cozis saying at any stage, “This is where the law sucks?”?
A. No, I cannot recall that.Q. Do you recall how long Mr Webster and Mr Thompson were with you and Constable Cozis?
A. Again I’d be speculating but I wouldn’t think it would have been any longer than half an hour. There’s actually a way you might be able to tell because generally we call back on after the job in the ..(not transcribable).. message but I don’t know—Q. If you are able to determine that would be of some assistance thank you.
A. So all up we were there from 5.32 to 6.32. So speaking to Coles first and then going to K-mart and getting the details, that wouldn’t have taken more then 10, 15 minute I would have thought. So on the outside 40 minutes or so approximately that I would have—Q. Did you, after they’ve gone on their way did you go back and see Kelly Hart do you recall?
A. Yeah I didn't factor that in either so that was even less again that time because we did - we went back because that’s when I did get that VHS tape of Mr Webster and Mr Thompson being just served at the counter.Q. Can you tell her Honour what you can recall the videotape show?
A. All I can really recall from watching the video tape is just watching what you would generally see at someone going through a K-mart store the return desk, just having a conversation with her, the shop attendant. I can’t really recall much else.Q. Of course that would ordinarily have found its way into the subpoenaed material, did you undertake a search to see if you could find that statement?Q. Now did you obtain a statement at any time from Kelly Hart?
A. I did obtain a statement from Kelly Hart in the following days.
A. I did. What generally happens is the case file is created and all the items are put in an envelope pretty similar to this. And it’s put in like an archive room. I’ve done that and made numerous attempts to locate it and unfortunately it wasn’t there when I went to find it.”
[39] Senior Constable Turnbull noted that he must have taken a copy of the CCTV footage and looked at it (T-142). He was not sure if he did this before he stopped the plaintiffs, or afterwards. He knew he was looking for two persons and that the taller one was wearing a trench coat. Mr Webster’s trench coat (T-121) helped Senior Constable Turnbull identify him, as did the fact that he was in the Food Court, which he was told by Miss Hart (T-131). He had obtained a description of Mr Thompson “off Kelly [Hart]” but he thought that it was Mr Webster who told him Mr Thompson was wearing a hat (T-131).
[40] Senior Constable Turnbull was quite sure he spoke to “the girl” at the service desk (T-135). She and Kelly Hart were the only persons he spoke to. This confirms he did not speak to Miss McDonald or Miss Patel. His description of what this “young girl” (T-139) said is very illuminating:
“Q. When you say the facts you had in front of you what you were talking about was merely what you’d been told by Kelly Hart wasn’t it?
A. And the lady at the service desk.Q. What did the lady at the service desk say to you?
A. Well again at the time I’m just saying I had two people saying the same sort of thing that from what I can remember summarised there was – was they returned a Seinfeld DVD set where they had to sign either a refund or an exchange voucher. Whilst they were still there they’ve attempted to use a credit card to purchase an amount of gift vouchers. And the girl behind the desk from what I can remember has looked at the signature at the back of the card and compared it to the signature on the refund voucher and they did not compare, they weren’t accurate which is when she’s contacted her superior, her manager or something like that and it’s gone from there. From what I remember.Q. Do you remember the name of the employee who was behind the service desk?
A. No I don’tQ. Do you have any description of her?
A. I remember she was a young girl but that’s pretty much it, I couldn’t really tell you much else.Q. When did you interview her, do you recall, before or after you spoke to Thompson –
A. Well I just spoke to them – or sort of spoke to Kelly and the service desk girl at similar times. Together. At the time.Q. You’d spoken to Kelly Hart even before you’ve seen Mr Thompson and Mr Webster and then you’ve spoken to Kelly Hart after Mr Thompson –
A. That’s what I’m saying, when I was speaking to Kelly Hart that’s when I think I remember speaking with the service desk girl as well, because she – like Kelly –Q. Yes, but what time when you were speaking to Kelly Hart?
A. Before I spoke to Mr Thompson and Mr Webster, yeah.Q. Did you see the documents, the signatures that were different?Q. Did you take a statement from the girl behind the counter?
A. No, she was hard to get hold of and I don’t remember taking a statement from her.
A. Well no, because I never saw the card. I think I saw a signature on the back of the refund voucher but I never recovered the credit card.” (T 139 – 140)
[41] In other words, both the defendant’s employees told him about the Seinfeld DVD return and showed him the voucher Mr Thompson signed. This was a very specific allegation about a person returning a Seinfeld DVD and attempting a fraudulent credit card transaction at the same time. There is no suggestion either of the plaintiffs ever attempted to purchase a gift voucher; no such claim was put to them in cross-examination, nor was Mr Thompson’s claim that he showed his driver’s licence in order to obtain the refund challenged.
[42] Senior Constable Turnbull confirmed that in addition to speaking to someone at Target he spoke to Miss Hart about the Target allegations. His sole uncertainty was “I just can’t recall who I heard it off first” [emphasis added] (T-135). He said that:
“Again I couldn’t tell you who I first heard it off because I remember speaking to someone from Target who said that it did happen. But I just can’t recall who I heard it off first, if it was the case that when Kelly Hart rung Target, if they said oh yeah they were up here before, and then Kelly’s told me about that, or if Kelly’s told me that she’s spoken to someone from Target and we should go us there and they’ve told us about the $1500, I’m not sure.”
[43] At T-144 to 145 Senior Constable Turnbull agreed that he was conducting an investigation on behalf of the Police Service based on the information given to him, and he was acting in discharge of what he perceived to be his police duty. He was not acting at the direction of any other person who had received information, and he was not being directed by them. The actions he took were actions taken by him having regard to his perception of his requirements of the investigation and the authority vested in him. He was not reliant upon K-mart or any other civilian for those actions. He was given information by those persons and he was responding to that information and he was exercising what he regarded as his duty as a police officer to investigate those matters. He was not responding to any direction from a civilian person when he determined that he should search Mr Webster and Mr Thompson and this was part of perceived police protocol. He agreed that s 21 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) applied. However, the specific police power he referred to was the power to stop, search and detain (T-145 line 27).
The evidence of store employees of K-mart (Miss McDonald and Miss Patel)
[44] The defendant called two store employees who described a transaction at cash register nine on 25 October where two men asked for gift cards for $500. Cash register nine is in a different location to the service desk. Miss McDonald said the younger, shorter man could not produce his driver’s licence for verification because it was in his car and she said she would not process the transaction without ID. After they left the store she rang Miss Patel and later that day she had a conversation with the store manager Miss Hart. I shall set out the evidence of both these employees in full.
Miss McDonald
[45] Miss McDonald was a checkout operator on cash register nine in the afternoon when two male customers came to her to ask for two $500 vouchers. She described the transaction as follows:
“Yes, I had two male customers come to me and ask for two $500 vouchers and on that occasion I said to them, “That’s a very generous gift you are giving.” And they said, “That’s right.” And I said, “Well as company policy through our store manager we need a form of ID which is your driver’s licence.” And at that time the younger, shorter man said that his driver’s licence was in his car. I did not process the purchase at the time because I insisted that they had the ID. I don’t recollect them coming back to the store and after that I rang Rina the front end controller who then informed our store manager Kelly Hart and after that I don’t recollect much at all.”
[46] Miss McDonald did not leave her station to report the matter to Miss Patel. She rang her at the service desk. It is not permitted for her to leave the register.
[47] On Miss McDonald’s version of events, she was the only person to see these two men. She rang Miss Patel only after they had left. Miss Hart came about half an hour later and “discussed things” but did not see them either. Miss McDonald did not have occasion to speak to any police officers (T-159). Senior Constable Turnbull said in his evidence that he attempted to speak to the Service Desk staff member who had first served the plaintiffs but although he had seen her on the CCTV, and thought he spoke to her in the store, she had never been available to be interviewed. He was quite sure she was a young woman. Miss McDonald, in addition to being a cash register operator and not a service desk attendant, is a woman in her senior years.
Miss Patel
[48] Miss Patel was the front-end controller. She described this job as follows:
“I had to look after for the registers and at the service desk and if they got any trouble they call me and if I can serve them or I have to ask my store manager what can I do for them.”
[49] For gift vouchers for more than $50 photo ID is necessary and if there is no photo ID the approval of the store manager is required (T-161). Her recollection was that on the afternoon of 25 October Miss McDonald approached her (T-161 lines 36-38) to say that she was serving “the customer” and “the customer” wanted “the $500 gift card from the credit card”. The customer did not have photo ID so Miss McDonald called and asked what should be done. She said that this transaction could not be authorised. Miss Patel said that Miss McDonald said she had the customer in front of her when she called so Miss Patel went (erroneously transcribed as “sent”) to her register and “I said – I answered the same thing that we can’t issue the gift voucher because customer doesn’t have the photo ID”.
[50] Miss Patel said that there were two male persons but she was unable to describe them. She did not look at the credit card and she did not have any discussion with the two men who then left the store. She then went to call the store manager to tell her what happened. She did not remember what happened after this but “[i]t was my lunch break and after that I know what happened that the police came” (T-163) but the police did not come to speak to her. After the late lunchtime she saw the police and Kelly Hart together (T-163).
[51] Miss Patel’s evidence contradicts Miss McDonald’s assertion that she rang Miss Patel only after the men had gone. Miss McDonald’s version does not include any reference to Miss Patel being present while the men were there. In addition, Miss Patel places these events as occurring before lunch. Although this was a late lunch break, there is no suggestion that lunch occurred some time after 4.30pm. However, it is quite clear from Miss Patel’s version that the two men she served had left the store (T-162) before she contacted Miss Hart. The police never interviewed Miss Patel. She is a middle-aged lady of Asian appearance, and does not fit the description given by Constable Turnbull or the plaintiffs of any person who served them. However, she was available for interview in the store when the police were talking to Miss Hart (T-163 to 164) and was not interviewed by him, nor did Kelly Hart speak to her about having called the police.
The evidence of the store manager of K-mart (Miss Kelly Hart)
[52] Miss Hart’s recollection of events was as follows:
“Q. Did something happen on 25 October 2004?
A. I was called to the front due to an incident with a customer wanting to purchase a gift card for $500.Q. Can you slow down so that we can all —
A. Sorry. They had no proof of ID and that was the problem. There was no driver’s licence that we could verify the person was who they were. And during the conversation it was then that the gentleman said to me it wasn’t his card.Q. And you were dealing with one person —
A. Yeah.Q. – but was he accompanied by someone or was he on his own?
A. He was standing at the service desk on his own.Q. Was there anyone within proximity to him is what I’m asking?
A. Not really. Other customers were coming to the side and like the girls were serving them, but not close.Q. What happened after you had that conversation where he wasn’t able to produce the identification?
A. It got heated.Q. Pardon?
A. It got heated. He became abusive and threatening.Q. And then what did you do?
A. Told him that I wasn’t going to do the transaction. He had to get the proper ID or bring the person who owned the credit card for it to go through. He was abusive. And then I just got to the point where I said, “If you keep going this way, I’ll call the police.”Q. And what happened then?
A. Well that’s pretty much all I remember at that point. The next thing I remember was the police asking me - I remember a male and a female police officer asking me was that the gentleman, which I indicated it was but as to in between that, I can’t really remember.Q. Where were you when you indicated, is that the gentleman?
A. In the foyer, the Food Court area, the foyer of the Food Court area.Q. Do you recall making a telephone call yourself to the police?
A. No.Q. For about how long were you in the Food Court area with the police officers?
A. I’d say a couple of minutes, it wasn’t very long.Q. And was there a video machine at Kmart on 24 October 20-04?
A. Yes.Q. And what areas did it observe?
A. It recorded the service desk entry where the customers walk into the main entry, the front-end controllers booth and sound and vision. I can’t remember - they were the basic cameras, I can’t remember how many cameras we had in total.Q. And did it take a video of the area where this conversation occurred?
A. Yes.Q. Now can you tell me, if you can recollect, who it was that called you to come and intervene in this transaction, which of your staff it was?Q. Do you know what became of the videotape?
A. No.
A. Not which person and their name, no, it was a member from the front area but I can’t remember who.”
[53] Miss Hart explained the refund vouchers as consisting of a red voucher where the customer does not have proof of purchase whereas with a green voucher they have proof of purchase. It was the uncontradicted evidence of Mr Thompson that he was given a red voucher not a green voucher, because with a green voucher the customer could get their money back, whereas a red voucher had to be spent in the store to the value of that red voucher and no change was given because there was no proof of purchase. It was never explained why he was given this voucher if he had in fact provided proof of purchase.
[54] At T-184 Miss Hart said that on average they would fill out one book of red vouchers and one book of green vouchers each day, and each had 100 vouchers in it. She had no recollection of issuing a red voucher for any Seinfeld DVDs. She described the usual procedure when the police were called as being to “write down everything that’s happened, as to if there were staff members involved or what the situation was. If there was an incident where you needed – like there was video footage, you would put your notes attached to the video tape and then lock it in a separate cupboard in the loss prevention office and notify loss prevention” (T-185). She had no recollection of the day in question, but “that’s what we did” (T-185).
[55] All she could remember of the person asking for the voucher was that he was “a fair skinned, white Australian, my height or a little bit taller”, “a bit smaller a bit slender than me, and I’d say, like I said fair skin, young”. She thought he was “somewhere around 20, mid-20s” and repeated this several times (T-186). She was unable to remember there being a second person. She recalled the police coming on this day but did not remember them arriving or at what time or what she said to the police (T-186). She said that when the police are called “You have to write a report, you have to notify the relevant people such as loss prevention, and depending on the seriousness or the nature it could even go up higher, and yeah, there’s a lot of paperwork and stuff off the floor, there’s a lot that is involved” (T-186 to 187).
[56] The circumstances in which it was necessary to call the police were if they “couldn’t deal with the situation or if we felt uncomfortable, like threatened” (T-187). This is because “you’ve got to have a witness, you’ve got to get statements, there’s just – it’s something you don’t do on a whim, there’s just a lot that’s involved” (T-187).
[57] She did remember talking to the police but could not remember providing a statement or signing a statement.
[58] In cross-examination Miss Hart was asked:
“Q. When you were first asked about this case and told there were legal proceedings on foot, how strong was your recollection of what had occurred on that day?
A. Only just exactly what I said, just those key things that I remember, that’s it. If you were - I don't know what you mean, like, just what I remember to the - same as today, but I suppose - it was a long time ago.Q. When you say that you can recall being called to the counter in relation to someone seeking to obtain a $500 gift card, did you have that recollection independently when you came to court today or is it something someone had reminded you about in the last couple of years?
A. The only time I was reminded was when I was asked - like do you mean when I was asked about the incident?Q. Were you provided with any information that would help you remember that incident?Q. Yes.
A. I said, this is the incident I remember, that’s it.
A. I was asked do I remember one and I said, “Well, this is the one that sticks in my mind.” And that’s out of credit card fraud, that and an Asian man are the only two that I had an issue with where I was threatened, that’s why I remember.”
[59] Miss Hart agreed that she could have telephoned other shops to say there were suspicious persons around the mall (T-199) because credit fraud was “a big thing”, “serious” and something that would stick in the memory, particularly if the person in question became abusive and threatening.
[60] All that Miss Hart could remember was that the person who could not provide ID was abusive and threatening and that, in failing to provide ID, he was attempting credit card fraud. She said, however, that he did show a credit card and said that it was “on the glass top, that was sitting on there, because the girls couldn’t do the transaction because they had no proof of ID. So it was a Visa or a Mastercard or that I can’t recall” (T-200).
[61] The following cross-examination occurred at T-200:
“Q. And indeed there have been occasions when the store issues $500 gift cards aren’t there?
A. Yes, yes.Q. The fact that there was no ID did not mean that it was an attempt to commit credit card fraud was it?
A. But it wasn’t his card.Q. How did you know?
A. Because when they asked him for ID and this is what - because the girls were asked for ID and if you have a look at ..(not transcribable).. now it’ll say over a certain amount in this problem area stores you need to have proof of ID. So they will ask for ID and if a customer says, no, I don’t have any ID and you go okay and you look at the name, like, there’s lots of other things they have to do and take into account.Q. But you don’t know at what time of day this attempted fraud was?
A. No, I can’t remember what time it was, no.Q. And I use ‘attempted fraud’ in inverted commas?
A. I don’t remember.Q. Can I put to you quite squarely Miss Hart that the police came to Kmart at about 5.30 on the afternoon of 25 October and saw you and you told them that you believed there was someone around who they should go and interview, isn’t that correct?
A. Well, if you say so, I don’t remember them coming to say those words to me, no.Q. And that approximately 20 minutes before the police arrived you had made a phone call to both Target and Coles in the centre to say that there were two men acting suspiciously?
A. I don’t recall that.Q. And that you had made that phone call because you had had a heated discussion with a man who wanted a refund on a series of DVD’s, Seinfeld DVD’s?
A. I don’t remember that, I don’t remember the Seinfeld DVD’s.Q. And after you had between three and five minutes argued with the man that he should’ve known what he was buying and shouldn’t be entitled to a refund you gave him the refund isn’t that correct?
A. No, I don’t know.Q. You can’t remember?
A. Well, you’re telling me this happened. I don’t remember it.Q. But you can’t tell me that it’s absolutely not correct?
A. It doesn’t seem to make sense to me but —Q. When the police came you described what that man was wearing and told them that he was in the Food Court because you’d had your security guards follow him there, isn’t that correct?Q. And then after this heated discussion with this man who wanted a refund on his DVD’s you told the girl provide him with a voucher and you left that desk didn’t you?
A. I don’t recall.
A. I don’t recall that.”
[62] Miss Hart was unable to remember if they in fact employed any security guards that day (T-202 lines 12-13).
[63] Miss Hart repeated the explanation about someone else’s credit card at T-204:
“A. He was trying to make a purchase of a gift card for $500. The girl’s asked him for ID which he didn’t have. During the course of the conversation he said it wasn’t his card. Straightaway —
Q. Can I stop you there. Did he say that to you?
A. When I was called up there I asked him because the girl’s had told me that and I said, “You cannot use someone else’s card” that’s why I remember it. Because you don’t - the girl’s know they’re not allowed to get anyone to sign for anybody else’s credit card and when I had the conversation with him and he said he was getting it for a friend, I said, well go get your friend or you’ve got to use your own credit card but you cannot use anybody else’s credit card, because if we did that, then it comes back and the owner says, no I didn’t make that purchase, then we’re responsible.Q. What I mean is that what actually happened - you say happened between you and this man you pointed out to the police. Because of the abusive or threatening nature as you saw it of that conversation, that’s why you pointed him out to the police isn’t it?Q. Miss Hart can I suggest to you that when you pointed out to the police the individual you say was abusive towards you, that you were - your actions were coloured by the fact that you’d had the heated conversation with him, weren’t they?
A. When you say coloured because I was threatened. Is that what you mean?
A. Not sure how to answer this because the only reason I called them was because it became threatening. So does that colour it?”
[64] Miss Hart said (at T-205) that she would not have bothered to telephone the police if he had walked away and not becoming threatening because it would not have bothered her but went on to say that the customer “became threatening” (T-205). It was a waste of time if the transaction did not go through to call the police and the reason she did so was his demeanour and what she perceived as a threat on his part because “he wouldn’t” (T-205). She went on to say (at T-206): “Well if the gentleman said yeah, I’ll just go and get my dad who’s the owner of the card and walk away and go and do that, then that’s fine, I’ve got no dramas with that”. She described his conduct towards her as “upsetting” and “pretty colourful” and said that she was upset adding “Well what am I meant to do when he’s standing there carrying on, like”. She went on to say, however, she did not recall calling the police or other shopkeepers (T-206). She denied that she was angry and upset and that this was the reason for her telephone call. She denied that she rang the police “to spite someone” (T-206) and said she did not recall ringing the police. She was asked at T-207:
“Q. But you weren’t surprise when the police arrived, having been referred there by someone else?
A. I can’t – I wouldn’t say I was – I don’t remember. But when you say was I surprised. I don’t think I would have been anything.”
[65] She had the following explanation for pointing out the plaintiff:
“Q. And it was only when the police arrived that you were effectively revisiting the heated conversation you had with this gentleman, isn’t that the case?
A. No I don’t think that that would be. It’d be they would ask me questions and I would answer them. You’re not going to lie to the police.Q. No but when you went down to point out this gentleman, that was something you would have let pass if the police hadn’t arrived, is that the case?
A. Well the only reason I’d pointed him out was because of the credit card.Q. You pointed him out because you were angry that he’d become aggressive and threatening in your eyes?
A. I wasn’t angry, I was upset if anything.Q. Well it was that upset that caused you to go down and point him out and take the police there wasn’t it?
A. Well not if the police had asked me to – is this the person you had the problem with, well yes I’m going to answer the police.Q. Did you tell the police that you hadn’t looked at the credit card?
A. No I don’t recall.Q. Did the police ask you on what you based your complaint?
A. Not that I recall.Q. You just told them that there was a person who’d been attempting credit card fraud, is that what you said?
A. Yeah but do you mean - well when you said did I ask them based on my complaint. I didn’t call them. I don’t recall calling them.Q. But when they came to the store, did they ask you details of why this person was now a person of interest?
A. Well I would assume they would have asked me why and I would have told them what happened.Q. Well you assumed that, do you have a recollection of it?
A. Well not really but I - well to me that’s what I think would have happened. They would have come and asked me what had happened and I would have answered them.Q. Is it possible Miss Hart that when you identified the person in the Food Court, you identified the wrong person. Not the person you’d had the discussion with before?
A. I don’t think so, I don’t.Q. Can I suggest to you that you may have had a heated discussion with a gentleman and then a subsequent discussion with another gentleman in relation to the return of DVD videos, and had become confused as to which was the correct one?
A. I don’t - yeah I don’t think so.Q. Why not?Q. You don’t think so or you’re not sure?
A. I’m not sure. It would be better to say for - because you wouldn’t do that.
A. Because that’s just wrong, it’s not right, yeah and I wouldn’t do that.”
[66] Miss Hart was shown the police COPS report and was asked if she made the statement to the police which was contained in the paragraph which says “A manager from K-mart has then stated to police that the same persons of interest had attempted to obtain $500 worth of gift vouchers from K-mart and as they earlier attempted to obtain $1,500 worth of gift vouchers from Target”. Her response at T-211 was:
“A. Sorry. It says, “The manager from Kmart has stated to police that the same POIs had attempted to obtain $500 work of gift vouchers from Kmart,” that’s fine. “And as they earlier attempted to obtain $1,500 worth of gift vouchers from Target.” Now, if that’s there and I told the police that, then that’s probably - that’s what would have happened on the day. But do I remember that right now sitting here? No.
Q. So you don’t have an independent recollection of having –
A. $1,500 in my mind, no.Q. Of having heard from someone from Target that someone had tried to get $1,500 worth of gift vouchers from them? You didn’t —
[350] Having determined the comparatively straightforward issue of economic loss, I now turn to a consideration of the quantum of damages for the defamation and false imprisonment claims as well as issues of overlap of heads of damages and whether aggravated and exemplary damages should be awarded.
Principles relevant to damages for false imprisonment
[351] Each of the plaintiffs claims general damages for the harm caused to him by the wrongful acts of the defendant in causing his false imprisonment. Such damages are to compensate each of the plaintiffs for the injury to liberty, being the loss of time considered from a non-pecuniary viewpoint, as well as the injury to feelings, namely the indignity, mental suffering, disgrace and humiliation caused by the false imprisonment. It is in relation to this latter category that there is an overlap with defamation damages which is discussed more particularly below.
[352] It is always important to establish the circumstances in which compensatory damages are general in nature and when they may be increased by the conduct of the defendant in circumstances which would justify an award of aggravated or exemplary damages.
[353] I shall first consider the issue of general or compensatory damages. It is appropriate to take into account the whole of the conduct of the defendant from the time of the incident up until the time of the verdict: Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [89]. I note the warning Bergin J gives concerning the correct method of comparison of awards of damages in false imprisonment cases and respectfully adopt her Honour’s statements at [93] that there should be an appropriate and rational relationship between the award of damages and the harm suffered by the plaintiff. Although it is not mandatory, I may have regard to awards of damages which have been approved by the Court of Appeal. Some of those decisions, however, are ten or more years old (see, for example, McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692, where the Court of Appeal found that $12,500 damages was not “significant” and increased the damages award to $27,000).
[354] It is not uncommon for damages awards for false imprisonment to include sums for aggravated and exemplary damages, as the cases referred to above demonstrate.
Principles relevant to damages for defamation
[355] As set out above, I have had regard to the many statements of principle set out by the Court of Appeal and the High Court concerning the principles for assessment in actions for damages for defamation. The facts in this case are very unusual. This is not a case where the allegation has been made by one feuding neighbour about another, or in the context of a business dispute. The three matters complained of are reports to the police of serious criminal conduct. In determining the damages bear a rational relationship to the hurt caused, as required by s 46A Defamation Act 1974, it is appropriate to have regard to other cases where a claim is brought for a false allegation made to the police out of malice.
[356] A case with similar facts, where the claim was brought as injurious falsehood, is Noye v Robbins; Noye v Crimmins, a long-running claim for compensation for injurious falsehood and malicious prosecution; the damages assessment by the trial judge can be found at [2007] WASC 98. Miss Crimmins made false allegations against a police officer that he fraudulently compiled a false inventory of goods stolen at her home, assisted her in making a false insurance claim and then demanded and received $1,000 from the proceeds. The plaintiff was charged with the offences but the prosecution withdrawn. The trial judge was satisfied the allegations were made out of the malice Miss Crimmins had towards the plaintiff and were made in an attempt to get a better deal on unrelated criminal matters with which she had been charged, and proceeded to assess damages.
[357] While actions for injurious falsehood and defamation are very different to actions for defamation and wrongful arrest, the special nature of false allegations made to the police, and the very serious consequences that can follow, means that some assistance, albeit slight, can be gained when considering issues on damages. In Noye, in determining whether the plaintiff should be awarded damages for malicious prosecution and injurious falsehood the trial judge noted statements by Kirby J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 419, that there was a considerable overlap in heads of damage between defamation and injurious falsehood and took into account the hurt to feelings caused by the plaintiff being shunned and avoided by fellow police officers. The trial judge awarded damages for non-pecuniary loss, noting that this had been permissible in England (Khodaparast v Shad [2000] 1 All ER 545). The trial judge awarded the plaintiff $35,000 for damage to reputation, $187,676 for pecuniary loss and $50,000 for non-pecuniary loss.
[358] When awarding damages for defamation at the same time as a cause of action for which exemplary damages are available, it is important to remember that exemplary damages are not available for defamation actions.
Problems in the approach to the award of damages where heads of damage overlap
[359] The factual basis for each claim arises out of the same events. I note the following issues concerning damages:
(a) Overlap between heads of damage : There are references in passing, in judgments on claims for multiple claims including defamation and false imprisonment as to overlap between heads of damage: Komba v Peke [1994] PNGLR 572 (defamation and malicious prosecution); Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 (defamation and injurious falsehood); Gray v Motor Accident Commission [1998] HCA 70 (aggravated and exemplary damages). In State of New South Wales v Riley [2003] NSWCA 208 at [119] the Court of Appeal noted the trial judge’s findings as to possible areas of overlap between a number of claims for damages including false imprisonment and in particular to overlap between compensatory and aggravated compensatory damages. However, there is no discussion in these cases as to the method of determining or applying any discount or adjustment made in order to avoid double counting for heads of damage that overlap.
(c) Whether the claim for special damages arose from the false imprisonment claim only: Counsel for the defendant submitted that the structure of the statement of claim meant that the claim for special damages was only brought in relation to the false imprisonment claim. That is clearly wrong, as is his submission that the claim for exemplary damages related only to the defamation claim (and should be struck out as impermissible by reason of s 47 Defamation Act ). While the statement of claim could perhaps have said so more clearly, it is evident that the claim for exemplary damages was restricted to the false imprisonment claim and the claim for special damages was pleaded in relation to both claims.(b) Whether to award separate damages for each tort or a global figure : The general approach is to award a separate sum for each cause of action, although this approach has been questioned in some jurisdictions. In Feria v Lange [2009] PGNC 4, where the plaintiff sought damages for defamation, breach of constitutional rights and other claims, Cannings J noted inconsistent prior decisions in his court as to whether a global figure or an amount for each cause of action should be awarded in such circumstances (see also Feria and Kolokol v Amburuapi [2009] PGNC 1 ).
[360] As to (a) and (b) above, Mr Weaver, counsel for the plaintiffs, indicated that he was aware of the decision in Photi v Target Australia Pty Ltd [2007] NSWDC 265 and indicated acceptance of assessment of damages along similar lines. Counsel for the defendant did not address me on the issue although invited to provide further written submissions on this issue.
[361] I have taken these issues into account when assessing damages for each of the claims brought by the plaintiffs.
Aggravated damages
[362] I set out in full the defendant’s submissions on both aggravated and exemplary damages:
“It is submitted that there is no basis upon which an awards [sic] of exemplary or aggravated damages in favour of either plaintiff.
The matters of aggravation particularised in paragraph 11(c) of the Statement of Claim are not made out. Miss Hart [sic] evidence is to the effect that she believed she was reporting to police the actions of the man concerning the gift voucher/credit card incident. It is plain she believed that man to be Mr Thompson. It is also the case that she was mistaken. The evidence is not sufficient to establish that her actions were malicious or spiteful. The defendant has not persisted in harbouring, much less publicising, any suspicion as to the integrity of either plaintiff.
The defendant’s conduct through Miss Hart, was mistake as to the identity of Mr Thompson. There is no basis upon which to submit the defendant’s conduct was high-handed or in contumelious disregard of either plaintiff’s rights. Miss Hart did what she believed was correct. The defendant did not exhibit conduct worthy of punishment. The Court ought not punish for mistakes as distinct from a contumelious disregard of the plaintiffs’ rights.
It is submitted that neither plaintiff should be awarded exemplary damages against the defendant. It is not shown that the defendant has been guilty of conscious wrongdoing in contumelious disregard of the plaintiffs’ rights. Nor has it been shown that the defendant has committed a particularly flagrant violation of the plaintiffs’ rights. Furthermore, the defendant’s conduct subsequent to the events of 25 October 2004 does not demonstrate a cruel or reckless disregard for the plaintiffs.
It is submitted that no award should be made for aggravated damages.”The claim in relation to aggravated damages is compensatory in nature. There is no basis upon which to award aggravated damages, bearing in mind that the gravamen of the defendant’s conduct is in the nature of a mistake. There is no conduct by the defendant after 25 October 2004 of any relevance. The false imprisonment and, for that matter, the defamation were not of such a nature as to be inflicted in aggravated circumstances.
(Defendant’s submissions, paragraphs 33-38, numbering excluded).
[363] I have set out the defendant’s written submission on these issues in full partly to demonstrate the issues considered relevant by the defendant, and partly to illustrate the degree of lack of information provided to me by the defendant on these issues. As is the case with the defendant’s submissions on other issues, the defendant simply states that “there is no evidence” and therefore no basis to make an award.
[364] However, the consideration of the claims made by the plaintiffs for damages, including aggravated compensatory damages and exemplary damages, needs to be considered in a full and careful fashion.
[365] I note that in Vignoli Bergin J took into account a failure to apologise (at paragraphs [114]-[115]). There has been no plea of failure to apologise here and I do not consider that I should have regard to this issue.
[366] Clarke JA in McDonald v Coles-Myer Limited had regard to the hurtful experience of the trial, the persistence of false and hurtful allegations, and the damage to the plaintiff’s reputation. In the present case, I can have regard, as Bergin J did in Vignoli at [121], to the circumstances of the plaintiffs’ evidence and the presentation of each of them in the witness box, in which they showed the distress that each experienced.
[367] The cross-examination was unusual in that their accounts of the events on the day in question was not challenged, but instead each was submitted to a searing cross-examination about their personal lives and in particular their alcohol consumption. A significant portion of the case was taken up with assertions that the plaintiffs both had drinking problems prior to the events in question. In the case of Mr Webster, who was a recovering alcoholic, who took great pride in his lengthy abstinence, this must have been particularly hurtful and I had the opportunity to observe him in the witness box looking upset as these matters were put to him. These allegations were equally distressing to Mr Thompson and as I have already indicated, I prefer the evidence of Dr Jacobson concerning Mr Thompson’s pre-incident drinking history. I am satisfied that since Mr Thompson was able to hold down a busy and demanding job and where none of the likely indicia of alcohol abuse (such as absences from work, drink-driving offences, brushes with the law or health problems) were evident. I am satisfied that the occasion when he had a blackout and had unprotected sex was the exception that proved the rule, rather than proof of regular chronic drinking.
[368] Mr Parker’s cross-examination of Mr Thompson did not pull any punches. Mr Thompson has a prior history of suicide attempts, which his doctors relate not only these events but the stress of the litigation flowing from them. Plaintiffs in defamation action often give evidence that the stress of litigation is a matter of concern to them. Watching Mr Thompson’s demeanour in the witness box, I could see he was visibly affected by Mr Parker putting to him that he was already a chronic drinker and had an unstable personality prior to the accident. Conduct of litigation is a factor that can be taken into account when considering issues of aggravated compensatory damages; conduct of a much lesser kind was taken into account by the trial judge in Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 at [19], [40] – [41].
[369] The defendant submits there is no basis upon which to award aggravated damages because the defendant’s conduct “is in the nature of a mistake”. However, I do not accept that this is what the evidence shows. The evidence of Senior Constable Turnbull is quite clear. He was told, both by Miss Hart and by the unnamed young lady shop assistant at the service counter about the return of the Seinfeld DVDs by Mr Thompson in circumstances where it was asserted that in addition to returning the Seinfeld DVDs, an attempt was made to purchase a $500 gift voucher using a credit card with a signature that did not match the signature of Mr Thompson on the credit voucher records.
[370] I accept the evidence of the plaintiffs that they were followed by security guards; in a busy place such as a shopping mall, this is the only way the police could have known that the plaintiffs had gone to the Food Court. A telephone call was made to the police less than an hour after the transaction was completed, in circumstances where Miss Hart must have had the events in question fresh in her memory, and in circumstances where she had CCTV tape of the transaction, which she had taken out of the machine for the purpose of giving it to the police, either during this period of time or shortly thereafter. Where such a short time frame is involved, in circumstances where it is clear beyond doubt that the plaintiffs were served by Miss Hart and a young shop assistant, not Miss McDonald on cash register nine, it is beyond belief that Miss Hart could make such a mistake, or that she would have confused a transaction in which she herself, with a young assistant, served the plaintiffs at the service counter with a transaction at cash register nine, with Miss McDonald. It is significant that Senior Constable Turnbull did not interview Miss McDonald. In other words, there was no mistake. Miss Hart reported Mr Thompson and his companion to the police because she felt “threatened”, to use her own words, although even on her version of events, taken at its highest, Mr Thompson was no more than an insistent customer wanting his rights.
[371] Accordingly, I am of the view that there is conduct by the defendant after 25 October 2004 which is of relevance and this conduct includes the manner of conduct of the hearing. The defendant’s conduct on the day in question was not a mistake but a deliberate and malicious reporting of innocent members of the public as potential criminals simply because they had annoyed a bad-tempered store manager.
[372] The imputations are of great seriousness. The plaintiffs were searched in front of a number of members of the public and the details of the event recorded on the COPS computer records. Both plaintiffs felt compelled to tell their employers what had occurred, and in the case of Mr Thompson the consequences of being investigated for credit card fraud in another branch of the corporation he worked for could have been very serious indeed. Nevertheless, the extent of publication was extremely limited, and I need to have regard to the warnings of the Court of Appeal, in a number of recent cases, as to the need to exercise restraint in the award of damages in cases of limited publication.
[373] Taking into account not only Miss Hart’s conduct but also the matters set out above, I am of the view that aggravated compensatory damages should be awarded to each of the plaintiffs. This means that the damages award should be at the upper end of the scale.
[374] Taking all of the above factors into account, I am of the view that the sum to award to Mr Webster should be $50,000 for the defamation claims and $20,000 for the false imprisonment claim. Interest should run on both these sums and I grant liberty to apply.
[375] The damage to Mr Thompson was much greater. The evidence demonstrates that his hurt to feelings is of an exceptional degree. I am of the view that I should award him $70,000 for the defamation claims and $20,000 for the false imprisonment claim. Interest should run on both these sums and I grant liberty to apply.
Exemplary Damages
[376] The parties agree that the claim for exemplary damages relates only to the claim for false imprisonment, as exemplary damages are not available for defamation.
[377] Exemplary damages are not compensatory in nature but punitive: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 471. They are “to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace” and “to mark the court's condemnation of the defendant's behaviour” (Lamb v Cotogno (1987) 164 CLR 1 at [9] and [10]). They are an exceptional remedy, rarely awarded. They are not awarded in defamation actions and I must take care to ensure any exemplary damages relate to the false imprisonment claim.
[378] The conduct of the defendant’s servants demonstrating contempt for the plaintiffs’ rights was to telephone the police and claim the plaintiffs had attempted a fraudulent transaction when this was not the case. Miss Hart’s motive was revenge, because she felt “threatened” by the conduct of the plaintiffs when they asked for a refund for some DVDs purchased from the store. It is common ground Miss Hart never even spoke to Mr Webster, and I have found that Mr Thompson spoke to her in a courteous way. I have found that Miss Hart was actuated by malice.
[379] In State of New South Wales v Delly [2007] NSWCA 303 the Court of Appeal awarded $10,000 exemplary damages for the failure of the police to inform the plaintiff the reasons for arrest and the circumstances in which they kept her at the police station for one and a half hours after they knew she was no longer a suspect. The Court (by majority) set aside the trial judge’s assessment of $25,000, which had been awarded on the three bases set out by the Court of Appeal at [85].
[380] In the present case, the basis for the award of exemplary damages is the making of allegations of criminality known to be false which resulted in the plaintiffs undergoing the humiliation of being questioned and searched. This is conduct of a much worst kind than that described in Delly. However, there is clearly an overlap with the defamation claim here, and I must be careful to avoid awarding punitive damages for what was said. Nevertheless, the making of a false accusation for reasons of malice resulting in police questioning and searches is conduct warranting the severest condemnation by a court. Miss Hart must have known or suspected that if she alleged there was a false credit card the plaintiffs would be searched. The police are busy people whose time should not be wasted by fanciful or untruthful complaints. Such conduct brings the criminal justice system into disrepute. But for the sensible conduct of the police officers, and in particular Senior Constable Turnbull’s supervisor, the plaintiffs could have been charged and face criminal prosecutions in court.
[381] Taking all of the above into account, I am of the view that each of the plaintiffs should be awarded the sum of $10,000 exemplary damages. This is not a case where the exemplary damages should be a sum appropriate to warn public officials in the manner described by the Court of Appeal in Ibbett at [226]. This was an isolated act of spite by a store manager; this is not a case where the policies of the store were to blame.
Summary of Damages awarded
Mr Webster
General damages – defamation
General damages – false imprisonment
$20,000.00Past and Future Economic Loss Past and Future Out-of-Pocket Expenses Exemplary Damages Total
Mr Thompson
General damages – defamation
General damages – false imprisonment
$20,000.00Past Economic Loss Future Economic Loss (cushion) Past Out-of-Pocket Expenses Future Out-of-Pocket Expenses (cushion) Exemplary Damages Total
Interest and Costs
[382] I was not addressed on interest and grant liberty to apply.
[383] As to costs, I drew the attention of both parties to the provisions of s 48A Defamation Act 1974 (NSW). The difficulties referred to in [1]-[3] of this judgment are also relevant to costs.
Concluding remarks and orders
[384] Long judgments can suffer from lack of comprehensibility and cogency. The role of the trial judge should be to make clear findings on all-important matters by setting out succinct summaries of the facts and the law. This is difficult to achieve where one or both of the parties have not turned their minds to the causes of action pleaded or sought case management in a specialist list, especially in complex actions such as defamation.
[385] I have set out the orders below, including a liberty to apply. I have noted in my judgment that the parties will need to exercise this right in relation to any claim for past and future superannuation, interest and costs issues but I have granted a general liberty in case there are other issues that have been overlooked.
Orders
(1) Judgment for Karl Webster in the sum of $80,267.00.
(2) Judgment for Steward James Thompson in the sum of $253,949.16
(3) Liberty to apply in relation to interest and costs.
(4) Exhibits retained for 28 days.
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