A-S v Statewide Roads Limited

LEGISLATION CITED : Defamation Act 1974 Partnership Act 1982

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549 Byrne v Deane [1937] 1 KB 818 Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 CASES CITED : Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 Mirror Newspapers Limited v World Hosts Pty Limited (1979) 141 CLR 632 Mundey v Askin [1982] 2 NSWLR 369 Singleton v Ffrench [1986] 5 NSWLR 425 Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 Webb v Bloch (1928) 41 CLR 331

A A-S (Plaintiff) PARTIES : Statewide Roads Limited (First Defendant) Bill Woodcock (Second Defendant)

COUNSEL : Plaintiff appeared in person M S White (Defendants)

SOLICITORS : Plaintiff appeared in person Deacons (Defendants)

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

JUDGMENT (Ex tempore) 1 HIS HONOUR: This is a hearing under Section 7A of the Defamation Act 1974. By order made on 12 November 2007 the trial was ordered to be by judge alone. The plaintiff appeared for himself. Mr M S White appeared for both defendants. 2 There are four questions for me to decide:

(a) Is the matter complained of of and concerning the plaintiff?

(b) If, yes, did either of the first defendant and the second defendant and, if so, which of them, publish the material complained of?

(c) Do any, and, if so, which, of the six imputations pleaded in paragraph 13(a) to (f) inclusive of the amended statement of claim arise from the matter complained of?

(d) If yes to any part of (c), are any, and, if so, which of those imputations defamatory of the plaintiff? 3 The plaintiff between 1989 and 2000 was employed by the [B] Council as an engineer and he holds a number of engineering qualifications including at postgraduate level. In the course of his work for the council he inter alia assessed and processed engineering aspects of developments, especially drainage plans and relevant conditions. 4 In 1999 the council commissioned a report from a company called Statewide Roads Technical Management Ltd ("Technical"). The report concerned three development applications whose engineering aspects had been assessed by the plaintiff. 5 The second defendant, Mr Woodcock, was an engineer employed by, but not a director of, Technical. He prepared a report about those development applications. It was mailed to the council on about 9 July 1999. The plaintiff later obtained access to it. He says aspects of that report are defamatory of him. He says it damaged his reputation as an engineer and led to his dismissal, carrying with it a very substantial financial loss. 6 The matter complained of was tendered at trial and is as follows: " A. INTRODUCTION This report assesses the validity of a series of conditions placed on 3 development applications by a member of staff of [B] Civic Services, Civic Approvals Group, at the following locations: 1. [Property 1] 2. [Property 2] 3. [Property 3] Each issue listed in the brief has been dealt with, maintaining strict factual analysis of the engineering principles involved, and within the context of Council's policies and standard conditions of consent for development and building applications. Comments are also provided as to the appropriateness or otherwise of the conditions placed on the application. Attention has also been given to the consistency of approach between an initial set of conditions placed compared with a subsequent set of conditions placed involving one of the properties in question. The report does not make any direct assessment of the technical competence or otherwise of the member of staff involved. Sufficient information is provided however, in the form of a purely technical analysis to allow Council to measure the technical competence of the staff member. I confirm that I have had access to the Council files for each of the three properties involved, along with supporting documentation detailing Council's standard conditions of development consent, policies and delegated authorities. I have also had access to the [B] City Council Position Description for the position of the staff member involved. As a Fellow of the Institution of Engineers I am acutely aware of a professional Engineer's ethical obligation and I quote some tenets of the underlying foundation of the professional Engineer's ethical obligations as a basis of this assessment. CODE OF ETHICS Engineering is a creative process of synthesising and implementing the knowledge and experience of humanity to enhance the welfare, health and safety of all members of the community, with due regard to the environment in which they live and the sustainability of the resources employed. It involves a diversity of related functions ranging from the development and application of engineering science through to the management of engineering works. The members of the Institution of Engineers, Australia are bound by common commitment to promote engineering and facilitate its practice for the common good based upon shared values of: · ethical behaviour; · competent performance; · innovative practice; · engineering excellence; · equality of opportunity; · social justice; · unity of purpose; and · sustainable development. The community places its trust in the judgement and integrity of members to pursue the above values and to conduct their activities in a manner that places the best interests of the community above those of personal or sectional interests. The Code of Ethics provides a statement of principles which has been adopted by the Council of the Institution as the basis upon which members shall conduct their activities in order to merit community trust. It is also the framework from which rules of conduct may be developed. The Tenets of the Code of Ethics embrace principles which are immutable. I also take the opportunity of quoting out in full some particular elements of the code that bear on this particular situation: 1. members shall at all times place their responsibility for the welfare, health and safety of the community before their responsibility to sectional or private interests, or to other members; 2. members shall act in order to merit the trust of the community and membership in the honour, integrity and dignity of the members and the profession; 3. members shall offer services, or advise on or undertake engineering assignments, only in areas of their competence and shall practice in a careful and diligent manner; 4. members shall act with fairness, honesty and in good faith towards all in the community, including clients, employers and colleagues; 7. members shall express opinions, make statements or give evidence with fairness and honesty and on the basis of adequate knowledge. It is noted that tertiary qualifications in Civil Engineering or appropriate related field are a pre-requisite for the position. It is understood that the staff member was formerly a member of the Institution of Engineers. B. [B] CITY COUNCIL'S CONDITIONS OF DEVELOPMENT CONSENT I have reviewed the standard conditions of consent for development in [B] City Council. I find that the conditions are comprehensive, appropriate and fair in my experience which covers service at a number of Councils over some 25 years in the industry. (Some areas of the Standard Conditions do however, need updating, ie Public Risk Insurance Cover. These areas do not however, impact on this issue.) The assessment of the following issues was rated with the above information being used as a benchmark of appropriate performance and engineering ability. C. [Property 1] Issues: (i) Assessment of the process of application as to whether it progressed in accordance with policies, and further confirm with the builder as to whether an application to amend consent was lodged. The process of engineering assessments did not follow an appropriate path. Following lodgement of the original site and stormwater drainage plan details on 16 June 1998 and approval with amendments on 9th July 1998 a subsequent plan of variation was lodged with a different retaining wall detail on 18th March 1999 and approved with different stormwater conditions on 25th March 1999. Three issues arise: 1. The amended plans sought probably prior to March 1999 were not lodged in accordance with Council's procedures details in a memo to staff dated 11th February 1998 from the Manager, Civic Approvals. I have confirmed that the builder lodged them himself at the request of the staff member in question. The amended plan was lodged in a way that did not follow the required procedure. 2. The request for amendment was inappropriate and would have lead to an over engineered, and inappropriate outcome. 3. New, different and some inappropriate stormwater conditions were marked on this plan that was lodged to amend a retaining wall. CONCLUSION: The process and policies were not followed. The amendment was not lodged and dealt with in accordance with Council's procedures. (ii) The necessity of an above ground stormwater detention system. An on site inspection on 24/06/99, review of contour plans and review of the catchment reveals that an on-site detention storage is not necessary as the site affectively drains directly to Little Salt Pan Creek. The objective of on-site detention is to minimise the effect of new impervious areas of development placing greater stormwater loads on the existing stormwater infrastructure and to reduce the potential for down stream flooding. Neither of these two criteria are at issue for this property and its stormwater discharge. CONCLUSION: Above ground stormwater detention is unnecessary. (iii) Whether such above ground stormwater system complies with Council's codes. The approval dated 25th March 1999 (and the previous approval) were conditioned in contravention of Council's policies dated November 1992 which states that above ground stormwater open storage areas are not to be located in privately controlled residential areas (eg villa courtyards). CONCLUSION: The above ground stormwater open storage area as originally required contravenes Council's own codes. (iv) The removal of an internal kerb and its replacement with a landscaped dish drain. The plans approved and conditioned on 9th July 1998 required a 150mm high, edge kerb to be placed along the full length of the southern side of the access driveway into the property. As the driveway was designed by the designing Engineer, Clements, to be "dished 50mm along centreline", it is assumed that the kerb was required as a condition to provide edge constraint. This is not absolutely necessary as there is a buffer from the edge of the driveway to the side fence of ≈700mm. The subsequent conditioned approval (25th March 1999) by the same officer in question ignored the original integral kerb condition and required an open grass swale drain along side the driveway (built as a wide shallow drain) to collect water and discharge it to the above ground stormwater open storage area. It would have negligible purpose as the grated drains in the driveway would pick up most of the overland flow such that it is. CONCLUSION: Great inconsistency is shown by this amended condition and the amendment would have negligible merit. (v) The Suitability and purpose of a chicken wire fence 1.5 metres high. The current trend to improve the quality of stormwater reaching the natural water courses is a very important initiative of the State Government. To provide a "chicken wire" trash fence for a small back yard however, is totally unnecessary. The stormwater flows and likelihood of trash reaching this particular point is negligible. (The slope of the bank is listed as 1:4 which may have required some top edge restraint safety. However, this is also questionable.) CONCLUSION: The "chicken wire" trash fence is not necessary. (vi) The need for an additional pit at the front of unit 1. An additional surface inlet pit has been placed on the second conditioned approval dated 25th March 1999 in front of unit 1. The pit was not shown or added on the 9th July 1998 approved plans. This is a further example of an unnecessary inconsistency. The drainage pit that has been added would serve no purpose as stormwater reaching the site from up stream as sheet flow would be either directed by the driveway crossfall into the grated drain in front of the unit 1 garage or would travel along the garage wall to the same grated drain. Volumes would also be minimal due to a limited catchment. CONCLUSION: The additional surface pit is unnecessary and shows further inconsistency in approach. (vii) The replacement of a double dished drain overland flow path in a landscaped strip. The proposed double dished drain could not serve any realistic function. The majority of the land to the north of this side boundary is lower than the placement of the drain. The catchment is very small as a result. A single grass swale would be adequate and easily maintained by the eventual owner. It would appear that the staff member in question has exceeded his role as an approving and checking Engineer by providing inappropriate conditions for negligible gain. CONCLUSION: The double dished drain overland flow path has negligible if any function and is an unnecessary condition. (viii) The requirement for a spillway in a narrow section of wall as against full width overflow. The weir in this position would create a concentration of overtopping stormwater which is an undesirable situation as energy is concentrated that may create scour and turbulence down stream. Full width overflow would distribute the overflow energy and create a sheet flow situation which is much more desirable in this situation. CONCLUSION: This is an undesirable condition which would create an unsuitable outcome. (ix) The necessity for a 170mm x 200mm weir in a retaining wall. This condition would provide no physical benefit to the hydraulics of the system nor would it achieve any benefits in improving the quality of the stormwater outlet from the property. The reason is that it is above the inlet of the primary outlet and would block and be ineffectual in a 1:100 event related to the secondary and higher outlet. CONCLUSION: This is an unnecessary condition and shows in this instance poor understanding of basic hydraulics. (x) The need for a 200 x 200 drainage channel in the base of a concrete retaining wall. The need for this channel was based on an incorrect interpretation of Council requirements which state that grated drains (usually located perpendicular to the direction of flow) collecting surface stormwater shall have a minimum dimension of 200mm x 200mm. The drain along the retaining wall is a longitudinal drain collecting some stormwater, in what is in effect a larger "drain". A 100mm x 100mm longitudinal collection drain would be adequate. (A shallow dish drain would be a better alternative to facilitate easier cleaning.) A secondary issue is the geometric limitations of the condition. A 200mm x 200mm drain would not physically fit in the base of the retaining wall especially related to reinforcement placement. CONCLUSION: This shows a basic misunderstanding or incorrect application of Council's requirements. Also, a basic inability to understand geometry is exhibited. (xi) Any other engineering issues of significance at this site. It is understood that a condition was placed on the subsequent amended application requiring the outlet pipe be carried through to [neighbouring] Road which is far in excess of the original approval. I am most concerned that although the approach is conscientious and detailed, basic engineering principles have been ignored or inappropriately applied to the great disadvantage to the developer who in good faith has tried to comply with the conditions imposed. I am also concerned at the inconsistency of approach from a professional Engineer. D. [Property 2] Issues: (i) Whether amendments to stormwater plans were justifiable. Upon inspection of the stormwater design plans with conditions marked in red and approved on 26th August 1998 as well as an on site inspection made on 24th June 1999, I make the following comments. a) Although the amendments appear thorough, close scrutiny shows that some original amendments are unnecessary (ie additional pit in north west corner) and some are obviously quite wrong (ie "overland flow path to basin" on street frontage near the western side of the building, which is blocked by 3 masonry brick walls.) b) The amendment (re-design) of the Rh 3030 galvanised steel mesh to cover both the upper and lower outlet orifice points is however quite a valid and appropriate original amendment condition. c) On balance, the appropriate amendments equal the number of inappropriate amendments. CONCLUSION: This is of concern, in that approximately 50% of conditional amendments are not only difficult to justify but a number are obviously incorrect. (ii) The necessity for the requirements for a 700mm x 100mm grass lined dish drain along the northern boundary and 100mm clearance under the respective fence. This condition is not absolutely necessary as the catchment is very small due to the developed nature of the adjacent property. The condition however could have had some merit to ensure water is not directed to the building foundations or directed such water that would build up along the boundary and discharge into the neighbouring property. The 100mm clearance under the fence is not however necessary, as the water landing on the adjacent black would fall toward the road causing no difficulty to either property. CONCLUSION: Although this first condition is not absolutely necessary it does have some value. The 100mm clearance under the fence would however serve no purpose. (iii) The necessity for the requirement for an additional overland flow path across the front setback area, in relation to architectural plans. As mentioned above, this condition is blatantly incorrect suggesting that the staff member involved failed to conceptualise the 3 dimensional site constraints, a skill which is essential for a Council officer operating in this position. CONCLUSION: This condition is clearly wrong and represents a serious breach of the staff member's obligations to provide proper engineering conditions of development consent. (iv) The need for a drainage line across the front setback area at the north-west corner. This condition is unnecessary and would have been wasteful if it had been implemented. Virtually no upstream stormwater could enter this pit. The condition also contravenes a Council requirement that the property stormwater shall be discharged into Council's drainage pipeline by a suitably designed single pipeline (cl. 3.4.6.4). The fact that an on site detention system is employed should not invalidate the intent to minimise the total number of discharge points to Council's system. CONCLUSION: This condition was wrong and would have been wasteful and unnecessary. (v) Whether final amendments made to plans by a subsequent Engineer were in accordance with sound engineering practice. The final amendments made by the subsequent Engineer are entirely appropriate (with only one very minor exception). The satisfactory nature of the end result is born out by a site inspection of the property carried out on the 24th June 1999. The only marginal amendment is the grass swale drain along the northern boundary. CONCLUSION: It is concluded that not only were the final amendments made by the subsequent Engineer in accordance with sound engineering practice, they were necessary to save waste and to correct errors of judgement made by the Engineer in question. (vi) Any other engineering issues of significance at this site. I commend the Council officer that interceded and authorised the amendment of the original conditional approval. E. [Property 3] Issues: (i) Overland flow exacerbated onto a garage at [neighbouring property]. The previously dedicated 1.83m wide drainage easement along the north-eastern boundary is slightly higher at ground level than the adjacent low point. No clear flow path is evident. The condition requires the re-shaping of the footpath at the eastern corner adjacent to Council's road inlet pit to attempt to concentrate flow along the north-eastern boundary. This would tend to exacerbate the situation at the north-western end of the property where a light framed clad garage is built over the easement in the adjacent property. CONCLUSION: Other action should have been taken in the form of an alternative condition or "no action" could have been taken to retain the status quo as related to the potential for local nuisance flooding. (ii) The need for retaining walls along the rear and side boundaries. The difference in height from one property to the next, does not exceed 400mm, the majority of the perimeter is much less. It is assumed that the need for a change in level of this order (ie the backyard was filled, thus resulting in a change of level at the boundary) was to fill a local undrained low point. This same outcome could have been achieved with a soft engineering approach by providing for a short batter and a rationalisation of the regrading. CONCLUSION: The need for a hard engineering solution to a minor regrading problem could have been achieved by a cheaper, yet just as effective soft engineering approach. The imposition of a condition that requires retaining walls in this location represents a level or rigour that exceeds the role of an approving and checking Engineer. (iii) The requirement to cover the easement area with 100mm reinforced concrete. This again represents unnecessary over engineering and serves no justifiable purpose. The stormwater flow velocities at this location would be low and scour is not likely to occur. Conditions have already been placed on the development consent limiting the use of the area over the easement. These are self explanatory and would be conveyed to each new owner via the conveyancing reporting process. CONCLUSION: The concrete slab over the easement is not warranted and should not have been required. (iv) The requirement for bollards Having attended a recent Stormwater Industry Association Conference where risk associated with stormwater flow at velocity was discussed, I can see the need for some form of restraint in certain circumstances. As alluded to above the nature of the topography at this location would not warrant such protection and again represents over engineering and is unnecessary. CONCLUSION: This condition is unnecessary. (v) Integral kerb locations and their links to car parking spaces. The inability to read plans and conceptualise the necessary geometry to allow vehicles to negotiate into and out of the two side parking bays focuses attention on an inability to properly assess applications. Due diligence was not followed and a very basic error was made. The integral kerb would block access to the adjacent parking bays completely. CONCLUSION: This amendment was made with no attention nor understanding of the intent and nature of the application as detailed on the design drawings. (vi) A chicken wire fence for the 300mm infill panel. The reasonable life of such a fence in this situation would be negligible. It would also fail in practice and catch the debris it would be hoped to remove from the stormwater causing a blockage that would in turn create an undesirable damming effect. The proposal is too simplistic and the engineering process has not been thought through properly. CONCLUSION: Although the theory is admirable the practical application is flawed. The condition is inappropriate. (vii) Any other engineering issues of significance at this site. The unnecessary and inappropriate conditions imposed would have caused unnecessary costs and problems in the future if they had been pursued. F. CONCLUSION SUMMATION The item by item analysis of all of the issues sums up to a series of mistakes and errors underlined by poor engineering judgement. The analysis has been strictly based on this sample set of 3 Development and Building Consents and addresses only the technical nature of the original application as presented and the engineering response by the staff member involved on behalf of Council . I conclude that a great deal of unnecessary time and energy has had to be spent correcting inappropriate and incorrect conditions. In a time of ecologically sustainable development we, as professional Engineers, cannot afford to waste resources by proposing over engineered solutions when a softer engineering approach is much more appropriate nor can we condone an obvious lack of basic due diligence. In final conclusion I consider that some very silly mistakes were made, and some over zealous solutions were proposed all of which had the effect of tending to give our profession a somewhat bad name. I have found it extremely difficult if not impossible to defend the actions of a fellow Engineer, when presented with the information before me. The above independent technical analysis is now provided to Council to allow an assessment to be made of the competence of the staff member involved." 7 In paragraph 13 of the Amended Statement of Claim the plaintiff pleaded relevantly the contents of the defamatory report including the abovementioned words: "In their natural and ordinary meaning meant and understood that: (a) the plaintiff is an incompetent engineer; (b) the plaintiff by reason of his lack of knowledge and ability as an engineer does not deserve to remain as an employee of the council; (c) the plaintiff is a silly engineer; (d) the plaintiff's work and actions as an engineer tend to bring a bad name to all professional engineers; (e) the plaintiff is useless for any employment as an engineer; (f) the plaintiff, who claims to have obtained numerous engineering qualifications and to have long postgraduate engineering experience, does not know even relevant basic engineering knowledge and concepts and their proper application in practice." 8 In their defence to that amended statement of claim the defendants put in issue whether the defendants published the matter complained of and whether the matter complained of in fact identifies the plaintiff. The main issue on "publication" was whether the first defendant could be said to have published the matter complained of given the author was employed by Technical, a wholly owned subsidiary of the first defendant. 9 The plaintiff called in his case Mr Woodcock, the second defendant. Mr Woodcock gave evidence of Technical's having received its commission from the council and of the work being allocated to him. He gave evidence to the effect that he later learned that the work he examined was work which had been done by the plaintiff. I took him to say that he learned the plaintiff's name, and that it was his work he was examining, as a result of consultations with the council. 10 The plaintiff also called Ms Anne Woodward, a former company secretary to the first defendant. She was also a secretary of Technical. She worked for the various companies in the group. She worked out of only one office. She used only one lot of office equipment. She confirmed, as did a number of company searches tendered by the plaintiff, that a number of companies in the group had common officers, a common office, a common fax number and similar matters. Mr White conceded in the course of her evidence that the first defendant and Technical both used the same address and both used the same fax number. 11 The plaintiff also called Mr Jones, a former director of companies in the group. He was asked about a registered business name called Statewide Roads. He said it was registered to protect the name "Statewide Roads" and was used by companies in the group from time to time. He said that until 2002 all companies in the group put in separate tax returns and then, by reason of changes to the tax law, a consolidated tax return was permitted to be filed at the Tax Office. This, he explained, was for administrative convenience and simplicity. 12 In the company accounts, to which he was taken, there was use made in various places of an expression "economic entity". This, Mr Jones explained, was an accounting term from accounting standards at the relevant time and is an expression which he said is used to define a group of entities which report in a consolidated form. Reporting in consolidated form was something done in compliance with the then requirements of the Corporations Act. 13 The plaintiff also called Mr Young, a former non-executive director of the group of companies including the first defendant and Technical. He said that the businesses run, in particular, by the first defendant and Technical, were managed separately and operated separately. Indeed, he said that Technical was a specialist firm of three or four highly qualified engineers and that Technical was used from time to time by other companies in the group for, in effect, independent engineering advice. 14 The plaintiff put to me various ways in which he submitted the first defendant was the publisher of the matter complained of. He relied heavily on the common office used by companies in the group, common equipment, a common fax number, common office holders and the like. He asked me to infer that the first defendant knew that Technical had prepared the matter complained of and had stored it and that it was stored in a common computer data system and put to me that by permitting it to remain in the system, the first defendant was as responsible for the publication as either Technical or Mr Woodcock or both. 15 Mr White referred me on that issue to Webb v Bloch (1928) 41 CLR 331 at 364 where Isaacs J, dealing, with the concept that only persons instrumental in the publication can be liable for it, said this: "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: So that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide." 16 The plaintiff referred me to, and relied on, subsequent authorities to similar effect including Byrne v Deane [1937] 1 KB 818 and Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127. 17 In Urbanchich, Hunt J at 69,193 said more than mere knowledge of the publication must be established for a party to be responsible for it to have been found to have been a publisher: there must be some positive acceptance of responsibility for the publication. 18 Mr White submitted that there is no evidence that any person who held a position in the first defendant had knowledge of the preparation or issue of the report and that, though it and Technical had common directors, the plaintiff had not proved that any of the Technical directors had any knowledge of the report, much less approved its contents and despatch to the council. As I have noted, the plaintiff submitted that I ought infer knowledge from the closeness of the association between the various companies in the group and the close geographical location of all companies in the one office and the commonality of staff, officers and equipment. 19 I am not persuaded that the first defendant had the relevant knowledge, let alone that it engaged in any positive acceptance of responsibility for the publication. There is simply no evidence of these issues. 20 The plaintiff alternatively submitted that there was a partnership involving the first defendant and Technical since inter alia they shared profits, one of the usual and obvious signs of partnership. In that respect, he adopted as a definition of partnership the relation subsisting between persons carrying on a business in common with a view to profit: Section 1, Partnership Act 1982. 21 I am not persuaded there was any sharing of profits. The plaintiff's submission that there was, is, I think, based on a misunderstanding of the consolidated balance sheet which involves necessarily setting out the figures which show the losses and profits of the various companies in the group, but does not of itself show any sharing of profits. 22 Nor am I persuaded that the use of the expression "economic entity" in the various accounting documents assists the argument that there was a partnership, as the plaintiff submitted. That, it seems to me, is merely a label put on a group of companies required to report as a group by the relevant corporations law. It does not have the significance that the plaintiff submits it does. 23 The plaintiff also relied for this argument on the registered name Statewide Roads. I accept Mr White's submission that the evidence of Mr Young made clear, if nothing else did, that the intention of the first defendant was to maintain the independence of Technical's business. I do not accept the significance put forward for the business name by the plaintiff. Its use as proved does not indicate any partnership between the first defendant and Technical. There were companies in the group with the word Statewide" in them, and the desire to protect the name by registration is understandable. 24 Nor am I persuaded, contrary to the plaintiff's argument, that there was any agency so as to fix the first defendant with publication. The first defendant owned all the shares in Technical, and the two companies had the common factors I have outlined. But that does not create an agency. 25 To establish an agency relationship the plaintiff bears the onus of proving an express agreement by weighty facts establishing an intention that Technical carried on the business on behalf of the first defendant: Dal Pont, Law of Agency (2001) at [2.21]. 26 In Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549 there were issues raised about companies in a group and lifting the corporate veil. In response to a similar argument Meagher JA at 555 to 6 set out the implications of such an argument. He said there would need to be evidence that an apparently independent entity was a cipher which, as he said, was a question of fact. At page 556 he dealt with an agency argument which was not dissimilar to the argument here and said at D: "The notion of agency is a well established legal concept, and in the present case would involve the proposition that all contracts entered into by the alleged agent were entered into not on its own behalf but on behalf of its parent or parents, and that any assets it acquired were in law the assets of its parent or parents. Not only was the applicant unable to point to any evidence which would require such an inference to be drawn, but many of the documents to which he referred effectively negatived such a conclusion."

I would say as to that, so too here. 27 In his submissions in a document called "Reply of the Defendant's Defence for the Trial under section 7A of the Defamation Act 1974", the plaintiff listed a number of arguments in support of the proposition that the first defendant was publisher. Some of his arguments I have already dealt with. However, he referred there to the concept of vicarious liability and to the notion of lifting the corporate veil, the latter because of an allegation of an abuse by Technical in transferring away its assets. 28 I am not persuaded that there are any issues of vicarious liability which assist the claim. No basis to show the first defendant is vicariously liable for Technical has been shown. Nor do I see the "corporate veil" argument as relevant insofar as it was relied on. 29 I am not persuaded that the plaintiff has proved, despite his many and interesting arguments, that the first defendant was a publisher of the material complained of and accordingly there will be a verdict in favour of the first defendant. 30 As to the question of identification, there were no extrinsic facts particularised by the plaintiff, but when he sought to adduce evidence on that issue Mr White, I think very fairly, did not take the point that the matter had not been particularised. There was, as I have noted, the evidence of Mr Woodcock as to his learning the plaintiff was the person about whom his report was written. 31 I infer that the plaintiff was the person the subject of the material complained of. I took Mr White to concede that that was a finding open to me although he, of course, did not concede it. I find the matter complained of was of, and concerning, the plaintiff. 32 As to the second defendant, I am quite satisfied he did publish the matter complained of. Again, it is a finding which I took Mr White to concede was open to me although, as with identification, he did not concede the point. 33 The evidence suggests that Mr Woodcock sent a copy of the matter complained of to Mr Bullock at the council. There was no evidence that it was ever sent back. It appears, however, that in 2006 a council officer sent a copy of the matter complained of to solicitors then acting for the defendants. I infer that the matter complained of arrived at the [B] Council office shortly after it was sent by officers in the office of Technical, in about July 1999. I find the issue of publication in favour of the plaintiff. 34 I turn to the imputations. A pleaded imputation is to be examined in the context of the publication that it is said to come from. It is often something implied: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 172. 35 Each pleaded imputation is "The statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand": Singleton v Ffrench [1986] 5 NSWLR 425 at 428. 36 In performing the function of the jury, I am entitled to consider the whole of the publication in its form and context to decide whether any of the imputations pleaded arose from it to the ordinary reasonable recipient. I shall deal in turn with imputations (a) to (f). I note that in the pleading which was before me there was an imputation (g), but that was struck out by Nicholas J on 10 July 2007 and the document had not been amended to reflect the strike-out. 37 As Mr White submitted to me, in looking at the imputations, the test is an objective one applied to each of them separately. There are two parts to the enquiry: one, whether the ordinary reasonable reader of the publication would have reasonably understood the report to convey the imputations pleaded; and, two, whether the meaning so conveyed was defamatory of the plaintiff. 38 The court must take into account the characteristics of the ordinary reasonable reader, the nature of the publication, its form and content: see generally Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 to 167. 39 The test generally used to decide whether an imputation is defamatory comes from Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 at 172 and Mirror Newspapers Limited v World Hosts Pty Limited (1979) 141 CLR 632 at 638. The test is this, that an imputation is defamatory if ordinary decent people in the community of reasonable intelligence would be likely to think less of the plaintiff if the imputation were conveyed to them and they understood it to be about the plaintiff. 40 In the course of submissions Mr White submitted to me that at least one of the imputations could not be said to be anything more than an insult. He referred me to Mundey v Askin [1982] 2 NSWLR 369 at 371 and 372. He also referred me to Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 to this effect, that in order to disparage the reputation of the plaintiff the imputations must attribute an act or condition to the plaintiff for which he bears personal fault or responsibility. That has particular relevance, Mr White put to me, when it comes to imputation (c), namely, "the plaintiff is a silly engineer". 41 It is to be recalled that in the matter complained of the author of the report began by saying that the report did not make any direct assessment of the technical competence or otherwise of the member of staff which it related to, but concluded: "Sufficient information is provided, however, in the form of a purely technical analysis to allow council to measure the technical competence of the staff member." 42 The author then proceeded to note that the staff member to whom it related was formerly a member of the Institution of Engineers. Part of the code of ethics of the Institution of Engineers was there set out. The author noted that the assessment which he was about to give was rated bearing in mind a benchmark for quality on the part of an engineer. 43 Throughout the document the author used words such as "inappropriate", "not necessary", "unnecessary", "negligible merit", "inconsistency", "exceeded his role as an approving and checking engineer", "unsuitable outcome", "poor understanding of basic hydraulics", "basic misunderstanding or incorrect application of council's requirements", "also a basic inability to understand geometry is exhibited", "failed to conceptualise the three dimensional site constraints", "serious breach of the staff member's obligation to provide proper engineering conditions", "due diligence was not followed", "the engineering process has not been thought through properly", "the practical application is flawed", "I have found it extremely difficult, if not impossible, to defend the actions of a fellow engineer". I have chosen merely some of the expressions and words used throughout. 44 I deal with the first imputation, namely, "The plaintiff was an incompetent engineer". By reason of the contents of the matter complained of and dealt with as a whole, I am satisfied that that imputation is made out. I took Mr White to concede that if it were made out it was defamatory. Without that concession I would have made that finding in any event. 45 I turn next to (b), "The plaintiff by reason of his lack of knowledge and ability as an engineer does not deserve to remain an employee of the council." I am satisfied this imputation was conveyed. I think this appears sufficiently from a reading of the document itself and the references to the professional body of engineers. I am also persuaded that it is defamatory to say that the plaintiff, by reason of his lack of knowledge and ability as an engineer, does not deserve to remain as an employee of the council. 46 I turn to (c), namely, "The plaintiff is a silly engineer." First of all, I should say that I am satisfied that the imputation is conveyed. The question is I think whether it is defamatory or not. I take account of Mr White's submission that this does not really cast blame and I bear in mind his submission that such an imputation in relation to other occupations may not normally be defamatory. I think to say this of an engineer in the context in which it appears is defamatory. 47 Turning to (d) "The plaintiff's work and actions as an engineer tend to bring a bad name to all professional engineers", I am satisfied that this was conveyed and I also am satisfied that this was defamatory. As to its being conveyed, it is clear enough by reference to what it is that the author is examining that he is examining the actions of an engineer. It is by reference to that he refers to the professional body. Then his conclusion, as I have observed, is that he finds it extremely difficult, if not impossible, to defend the actions of a fellow engineer. I am satisfied it is defamatory in the sense to which I have earlier referred. Mr White I think conceded that if I found it was carried, it was a defamatory imputation. 48 I will go to (e), namely, "The plaintiff is useless for any employer as an engineer." Again, Mr White referred me to Boyd. From various references to the plaintiff's being an employed engineer and what are said to be the many shortcomings of the work, I consider this does arise. Mr White submits that it does not impute a blameworthy condition. I have wavered about this issue, but, having done so, I am persuaded that it does. I find that it was defamatory. 49 As to (f), which is as follows, "The plaintiff who claims to have obtained numerous engineering qualifications and to have long postgraduate engineering experience, does not even have relevant basic engineering knowledge about concepts and their proper application and practice", I find that this was not conveyed. There is nothing in the matter complained of on which to base the first part of this imputation, namely, "who claims to have obtained numerous engineering qualifications". 50 In the course of the hearing the plaintiff tendered a document (MFI 5) which I took ultimately to be for the purpose of making good an evidentiary deficiency. It became apparent at that time that he was relying on a true innuendo. 51 The defendants objected on the basis that there had been no particulars given that the plaintiff was relying on a true innuendo. It is apparent from the suggested form of statement of claim at page 1103 of the 10th edition of Gatley on Libel and Slander, that where a pleader proposes to rely on a true innuendo, the formula of words usually used, apart from particulars, is something along the following lines, "Further, or alternatively, by way of innuendo the said words meant and were understood to mean", and then there is set out the innuendo meaning of the words complained of. 52 For the usual form of assertion in a libel statement of claim where there is no true innuendo relied on the pleader usually uses this formula, "In their natural and ordinary meaning the words meant and were understood to mean that", and then one sets out the natural and ordinary meaning of the words complained of. 53 The latter is the formula of words which was used by the plaintiff in his statement of claim. Further, as I have noted, there were no particulars given of the fact that a true innuendo was to be relied on. There was nothing about the statement of claim, with the possible exception of paragraph 6, to alert the reader that a true innuendo was relied on. 54 I took account of paragraph 6, but by reason of the plaintiff's use of the formula of words traditionally used where a true innuendo is not relied on, and absent particulars, the statement of claim did not give notice a true innuendo was to be relied on. Accordingly, I rejected the tender of material by the plaintiff to make good the allegations in paragraph 6 and to provide information which, together with the matter complained of, might have formed the basis for the imputation which appears as (f). Accordingly, in respect of imputation (f), there will be a verdict for the second defendant. 55 It follows I think that there should be a verdict for the plaintiff against the second defendant in respect of imputations 13(a), (b), (c), (d) and (e). 56 I order the plaintiff to pay the first defendant's costs. I reserve the question of the plaintiff's costs otherwise. I order that the matter be placed in the first directions list in the defamation list for 2008. **********

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