ACCOMMODATION WEST PTY LTD -v- AIKMAN [2017] WASC 157 (12 June 2017)

Mrs Aikman's six publications complained of as defamatory

1. For convenience, I attach as discrete schedules to these reasons each of the six publications at issue that are alleged to carry defamatory matter concerning each of the plaintiffs.
2. These publications were all uncontroversially tendered at trial as agreed documents - found within a large three-volume trial bundle (TB) of agreed exhibits.
3. The TB was tendered as exhibit 2. It comprises exhibits 2.1 through to 2.236. (References to an exhibit within the TB in these reasons will be to the exhibit number, tab number, and lastly to the TB's chronological page number.)
4. Schedules A through F respectively to these reasons are therefore as follows:

(a) First publication complained of: Mrs Aikman's email of 28 July 2014 to Mrs Lynn Orohoe (exhibit 2.179, TB page 860);

(b) Second publication complained of: Mrs Aikman's email of 17 October 2014 sent to Mr Jules Di Prinzio (and copied to Mrs Leanne Lazarus) (exhibit 2.189, TB page 920);

(c) Third publication complained of: Mrs Aikman's email of 2 April 2015 to 'Dear Owners' attaching an accountant's report, which is the next scheduled document mentioned (exhibit 2.195, TB pages 956 - 967);

(d) Fourth publication complained of: forensic accountant's report prepared by Ms Danae Coombs of Paramount Wealth Accountants (Coombs Report) under Ms Coombs' covering letter of 24 March 2015 to Mrs Orohoe, Mr James Orohoe and Mrs Sheila Ivankovich (exhibit 2.194, TB pages 940 955);

(e) Fifth publication complained of: Mrs Aikman's email of 17 April 2015, subject: Re: Owners' Correspondence, sent to Mr Hans Beyer (copied to Mr Rakich, Mrs Orohoe and Mrs Ivankovich) (exhibit 2.196 (part), TB pages 959 - 961); and

(f) Sixth publication complained of: the transcript of words it is accepted that Mrs Aikman spoke at the 10th AGM of the Seashells Mandurah strata company. The meeting was held at Floreat Library on Thursday, 4 June 2015 (the 2015 AGM). (As I will explain, there are three subcomponents to Schedule F.)

1. I should point out that, as pleaded by the plaintiffs, not all words of the publications described above are complained of as being defamatory. Rather, as pleaded under the last iteration of the plaintiffs' statement of claim (FASOC), only certain words within the five emailed publications are selected and identified by the plaintiffs as being defamatory. To that end, see:

(a) FASOC pars 11.1 to 11.3 for the email of 28 July 2014;

(b) FASOC pars 15.1 to 15.6 for the email of 17 October 2014;

(c) FASOC pars 19.1 to 19.13 for the email of 2 April 2015;

(d) FASOC pars 23.1 to 23.50 for the Coombs Report; and

(e) FASOC pars 27.1 to 27.13 for the email of 17 April 2015.

1. As a matter of convenience and context, I will highlight (by using bold typeface) the pleaded words in the FASOC that are specifically complained of from each written publication by each plaintiff in the schedules to these reasons. They can then be read and assessed there in an overall context, within each individual schedule.
2. As regards Mrs Aikman's spoken words at the 2015 AGM, being the sixth publication complained of, I have collected first (as Schedule F1) the content of par 31.1 of the FASOC concerning that alleged defamatory publication.
3. I then collect as Schedule F2 pages taken from a prepared transcript of that AGM. This was exhibit 2.209 (see TB pages 1012, and 1053 - 1066). Mrs Aikman's words alleged as being defamatory are highlighted in bold from TB page 1062 - noting an erroneous reference there to a 'Ms Hagman' that should be corrected to refer to Mrs Aikman. That correction was accepted at trial.
4. Thirdly, I have assembled as Schedule F3 the extracts from the prepared minutes of that AGM, see exhibits 2.208, TB pages 1000 - 1002 and 1007 - 1009.

Overview of the six publications complained of from a defamation perspective

1. As regards all six allegedly defamatory publications, there is no dispute in the litigation over the content of what was published by Mrs Aikman.
2. However, it is disputed whether the necessary levels of identification have been established for all three plaintiffs regarding each publication.
3. It is the basal defence of Mrs Aikman that she denies ever defaming anyone. But she says, further, that if she did defame any one of the plaintiffs, all her six communications are protected in any event against possible defamation exposures. That protection is sought from either or both common law or statutory qualified privilege. These privileges, Mrs Aikman argues, fully protect her six communications from any possible defamation exposure - given the circumstances applicable to her personal situation as a Seashells Mandurah strata lot owner on all occasions in question as regards her publications.
4. Each of the plaintiffs raises strong issue against Mrs Aikman's assertion as to holding a qualified privilege against defamation, howsoever derived. That clash delivers most of the factual issues in dispute in the trial. Considerations of reasonableness arise (objectively assessed) to be applied towards the circumstances of Mrs Aikman's six publications - in order to qualify for statutory qualified privilege via s 30(1)(c) and s 30(2) of the Defamation Act.
5. The plaintiffs also say that Mrs Aikman is to be disqualified, in any case, from enjoying any level of qualified immunity against her exposure to defamation regarding five of the six publications (at common law or by statute). (Malice is not being alleged in respect of the third publication.) They contend that even if Mrs Aikman otherwise meets the criteria to enjoy such qualified privilege(s) against defamation, her entitlement is lost in the prevailing circumstances. This is because, they say, Mrs Aikman was at all times motivated by her disqualifying levels of malice, as against all plaintiffs, as she made five of her six publications.
6. In practical terms for a defamation trial, the serious allegation of a defendant's malice, as is raised here by all plaintiffs, is the charge that when Mrs Aikman emailed the other Seashells Mandurah strata lot owners, or when she spoke from the floor at the 2015 AGM, that her true or dominant intention at those times was malevolent towards all plaintiffs. In other words, they say that she was intending to injure them by these publications and/or to advance her own rival commercial interests.
7. So it is that the plaintiffs contend, in effect, that Mrs Aikman was not just trying to literally convey what she wrote or said by her publications. Rather, they say, in effect, that Mrs Aikman's intent was to retaliate against the plaintiffs over past perceived wrongs against her and to hurt and injure each plaintiff's reputation by her communications.
8. Another aspect of Mrs Aikman's alleged malevolent motives, it is put, arises out of her allegedly wishing to advance the commercial interests of her own rival strata management business, Waters Edge Luxury, against AW Co. Mrs Aikman was a rival business competitor against AW Co at Mandurah, and was seeking to secure strata lot owner management patronage - as against AW Co's rival strata management business being conducted at Seashells Mandurah.
9. In response, Mrs Aikman strongly denies she held or was affected by any collateral or malevolent purposes as regards the plaintiffs. She refutes any intent to injure the plaintiffs when she emailed or spoke as she did on the occasions in question. Mrs Aikman says, in effect, she wrote as she did or spoke as she did only in order to convey information to the email recipients she contacted or to the 2015 AGM attendees - to tell them frankly what she thought, to make a response, or to pass on what she thought was relevant information other Seashells Mandurah strata lot owners were entitled to receive.
10. Given all that, it was no surprise that the cross-examination of Mrs Aikman at the trial was targeted heavily at establishing the plaintiffs' malice propositions - propositions Mrs Aikman always firmly rejected.
11. Two of the four emails Mrs Aikman sent were to Seashells Mandurah strata lot owners who were then sympathetically aligned with her concerns and whose Seashells Mandurah strata units Mrs Aikman managed at the time. These are the first and fifth publications, being the emails of 28 July 2014 and 17 April 2015, which Mrs Aikman had sent to Mrs Orohoe and to Mr Beyer respectively.
12. There is no factual dispute that Mrs Orohoe and Mr Beyer were then strata lot owners at Seashells Mandurah. At the time they essentially shared, along with Mrs Aikman, what were common and genuinely held underlying concerns about the management of the Seashells Mandurah resort as regards their properties. Rightly or wrongly, they all then held high levels of dissatisfaction - over how the overall Seashells Mandurah resort was being managed by the strata company responsible for Seashells Mandurah (and conduct by that strata company's agents, including by AW Co). These common concerns extended to how the strata company was being controlled.
13. A disaffected group of strata lot owners, broadly aligned with Mrs Aikman's concerns, was a lively but numerical minority of strata lot owners at Seashells Mandurah at the time. This action is largely grounded upon communications passing between that cohort and, by the sixth publication, what was said at the 2015 AGM.

1. The plaintiffs led evidence from the second and third plaintiffs, Messrs King and Rakich. Mr King provided three separate witness statements. These became exhibits 3, 4 and 18 by consent. Mr Rakich provided two witness statements. These became by consent exhibits 5 and 6. Neither Mr King nor Mr Rakich entered the witness box or were crossexamined upon their responsive witness statements. That is another somewhat unusual occurrence in a defamation trial.
2. More witness statement evidence was provided for the plaintiffs from independent witnesses. I received the witness statements of Mr Gareth Thomas (exhibit 7), Ms Susan Knowles (exhibit 8), Mr Bram Newbold (exhibit 9) and Ms Sue Peterson (exhibit 17). A small number of evidentiary objections were initially raised to some paragraphs within these statements. Excisions followed on that basis. However, as with the statements by Messrs King and Rakich, Mrs Aikman did not require any of the plaintiffs' witnesses to be cross-examined on their statements. They were consequently tendered and admitted to evidence as exhibits.
3. Mrs Aikman was the only witness for the defence. She provided four witness statements. Her primary statement of 13 October 2016 became exhibit 11. The plaintiffs objected to a number of paragraphs within Mrs Aikman's primary statement. But ultimately most of her statement came to be admitted on the basis that many paragraphs were received only on the limited basis of being directed either to show her state of knowledge at a particular time or to her state of mind at a particular time. Paragraphs admitted on this limited basis were collected in a schedule tendered at the trial, becoming exhibit 12. Consequently, Mrs Aikman's primary statement (exhibit 11) needs to be read carefully by reference to the limitations and qualifications accepted under exhibit 12.
4. Mrs Aikman relied upon three further supplementary witness statements. These became exhibit 13 (dated 11 November 2016), exhibit 14 (dated 18 November 2016). Her final supplementary statement (dated 28 October 2016) was made in response to Ms Knowles' statement. It became exhibit 15. That responsive witness statement addressed pars 8 - 16, 19, 20 and 24 of Ms Knowles' witness statement (exhibit 8).
5. Unlike for the plaintiffs' witnesses, Mrs Aikman was extensively crossexamined for just over a day upon her four statements by counsel for the plaintiffs.
6. As already mentioned, it is necessary to always keep firmly in mind that the witness statement trial evidence tendered on behalf of the plaintiffs was admitted without crossexamination. In the main, therefore, it is to be accepted as unchallenged evidence.

Seashells Mandurah: The interconnecting management structures

1. There are a number of Seashells Resorts operating around Western Australia, including at Scarborough, Broome, Busselton and Yallingup.
2. Seashells Resorts provide the general public with resort short stay style accommodation, usually close to beachfront locations and catering for holiday makers, tourists, weekenders etc. But it is the diverse underlying ownership of the multiple individual strata lots which, operating together, make up Seashells Mandurah that is important here. That is the context of the present somewhat complex business relationships.
3. A corporation connected to Mr King, Comet Bay Properties Pty Ltd (Comet Bay) had developed the land, created and then sold off 107 strata lots that form the location of the Seashells Mandurah apartment lots.
4. Mr King is the dominant personality and human hand behind Comet Bay and, indeed, the Seashells Resorts across Western Australia. However, Comet Bay was placed in receivership by its lenders in March 2009, after the effects of the global financial crisis struck in late 2008. Sales of individual Seashells Mandurah strata lots to diverse purchasers had enabled the developers to recover some of the capital outlays in building and developing the resort. As in any strata development of this kind, upon completion of the development there was a need for a dedicated corporate strata body entity which would manage the common property of the strata location and, generally, to discharge the multiple obligations arising around strata properties under the Strata Titles Act 1985 (WA) (as amended).
5. The dedicated strata company for Seashells Mandurah was the Owners of Strata Plan 48817. It is the strata body corporate required by s 32 of the Strata Titles Act.
6. Under the Strata Titles Act each strata lot owner enjoys a right to attend and vote at meetings of the strata company. There must be at least one annual meeting of lot owners, which is the AGM. There is a council of owners elected for a strata company each year. That council provides the daytoday executive decisionmaking function for the strata company. There is a chairperson of the council.
7. Some purchasers of the strata lots at Seashells Mandurah acquired their lots with the intention of residing there permanently. Others, like Mrs Aikman, resided elsewhere and had purchased, in effect, as investors. They would enjoy a share in pooled rental income returns received from visitors to Mandurah who rented and stayed in their strata lots as short stay accommodation.
8. In addition to a share of the rent return, strata lot owners at Seashells Mandurah could enjoy a level of personal access to their strata properties - so they could holiday at their apartment themselves by giving notice of that intended self use from time to time, as they desired.
9. The underlying Seashells ownership advantage then was to, in effect, try and get the best of both worlds, first by owning an investment strata property and, secondly, by being able to take a holiday personally at a seaside location when desired.
10. For such objectives to be achieved, there was a need for an efficient underlying management system for the Seashells Mandurah apartments as a whole, in order to run a short stay accommodation business using the pooled properties owned by a diverse array of aggregated strata lot owners. The apartments needed to be managed to be let out, then reliably cleaned and maintained, etc. Rental receipts were to be pooled, expenses paid out and net receipts fairly apportioned between the participant strata lot owners.
11. The system put in place at Seashells Mandurah from a management perspective was achieved by three pivotal contractual arrangements all entered in 2006 by the strata company with AW Co.
12. AW Co became what is called a 'strata manager', performing services for the strata company. Mr King, again, was the moving hand, as sole director of AW Co. Mr Rakich, as I mentioned, is said to be AW Co's sole employee.
13. Upon Comet Bay's completion of the Mandurah development, all three pivotal longterm five-year management contracts were in place, entered in 2006 between the strata company and AW Co. An option to renew these longterm management contracts for further terms of five years was left at the behest of AW Co (ie, not at the election of the strata company).
14. AW Co then moved to subcontract out all work in managing the short stay hotel-like resort operation at Seashells Mandurah. This work was contractually given to Seashells Hospitality Group Pty Ltd (SHG).
15. SHG, who was contractually responsible for running the Seashells Mandurah business, was another corporation associated with and, again, ultimately controlled by Mr Paul King.
16. Hence, it may be seen that Mr King had a 'finger in multiple corporate pies' at Mandurah. In addition, what appears to be Mr King's family company, Westco Investments Pty Ltd (Westco) owned at least one lot in the Seashells Mandurah development. Mr and Mrs Rakich also owned an apartment through their family company. Mr King was also elected to the Council of Owners for the strata company responsible for Seashells Mandurah.
17. A lot owner at Seashells Mandurah could choose to have AW Co arrange and manage the external letting of their unit - as part of an overall pool of Seashells Mandurah apartments made available to the general public for rent as short stay accommodation. Or they could manage their unit personally and privately let it out when they chose. That was what Mrs Aikman eventually decided to do with her apartment.
18. If an owner wished to have AW Co manage their strata lot for letting out to the general public as a part of the Seashells Mandurah resort, they needed to sign up to a management contract with AW Co or with SHG authorising all that. An invariable term of such a contract was that the lot owner needed to give their proxy vote for strata company meetings (upon most issues) to AW Co. Most of the 107 lot owners chose to do that. The end result was body corporate block voting control and from there, the control of the Council of Owners of the strata company via what might be seen as the AW Co or SHG aligned majority block voting interests.
19. Most, but not all, Seashells Mandurah lot owners were amenable to entering contractual management and letting arrangements with AW Co and SHG regarding their apartments. But some owners, like Mrs Lazarus, Mrs Orohoe, Mrs Ivankovich, Mr Beyer and others, preferred to have their apartment lots independently managed by someone other than AW Co, SHG or any entity affiliated with Mr King. Instead, they used Mrs Aikman's rival management services.
20. Mrs Aikman had managed her own lot at Seashells Mandurah from about 2009. She held some background in real estate management. Mrs Aikman subsequently offered her personal management services to lot owners at Seashells Mandurah, in effect, as an alternative management competitor to the services of AW Co and SHG. Some competitive tensions were almost inevitable in that Seashells Mandurah environment.
21. The underlying management structure that was used for Seashells Mandurah is more complex than the broad overview which I have now given. It was helpfully explained in the first four paragraphs of the Coombs Report: see pages 943 - 944, section 1.1 Background in Schedule D attached, which read:

1.1 Background

Strata Plan No. 48817 (the strata company) appointed Accommodation West Pty Ltd as the strata company manager under the Strata Management Agreement (SMA) dated 17 March 2006 to manage the affairs of the strata company. The strata company also appointed Accommodation West Pty Ltd as caretaker of the property under the Caretaking Agreement signed 17 March 2006 and as the on-site manager under the On-Site Managers Agreement dated 17 March 2006.

Comet Bay Properties Pty Ltd (Comet Bay) was the original developer of the property and was the sole owner of all of the strata lots and the only member of the strata company at the time it approved the agreements with its related company Accommodation West Pty Ltd. Comet Bay was required to arrange caretaking services and on-site letting services under the Management Rights Scheme which it was promoting at the time. Approximately half of the total number of lots under SP No. 48817 participate in the letting pool, known as Seashells Resort Mandurah.

The accounting and finance functions for the Mandurah property are performed by staff at Seashells Hospitality Group Pty Ltd ('SHG'), who also attend to the accounting duties for the other Seashells Group properties. SHG is directly related to Comet Bay and Accommodation West and the financial statements for the strata company are not prepared by an external accountant nor audited.

As Accommodation West is the strata manager and the on-site letting pool operator and the caretaker, it must clearly demonstrate that, in its capacity as strata manager, its decisions and actions are not affected by conflict of interest and are never to the detriment of the strata company. Further, the lack of independence within the accounting and reporting functions requires a very high level of transparency in reporting to the unit owners.

1. Mr King, according to his third witness statement of 28 November 2016 (exhibit 18), is the sole director of AW Co.
2. AW Co was once known as King & Rogers Real Estate Pty Ltd and was established in May 1986.
3. Mr King explains at par 12 of exhibit 3 that in 1994 he set up another corporation, Seashells Resorts (WA) Pty Ltd. That was with his then partner Ms Fiona Cox. The corporation was later renamed Seashells Hospitality Group Pty Ltd - which is referred to in Mr King's statements as SHG.
4. Mr King says at par 12 of exhibit 3:

Fiona and I were the only directors of SHG until Fiona ceased being a director of SHG in November 2016.

as a vehicle through which Fiona and I could provide dedicated hospitality services in order to operate the ongoing managements of short stay accommodation.

1. SHG and AW Co, through the common input of Mr King, worked closely together. For instance, see par 2.2 of the FASOC which describes the provision of services by AW Co in Western Australia as a 'strata manager and manager of an onsite short-stay accommodation letting pool for Seashells Mandurah' pursuant to three different 2006 contractual agreements. The third of those agreements is an onsite managers' agreement of 17 March 2006 pursuant to which AW Co operates through SHG in delivering that management function.
2. Mr King, at par 5 of exhibit 3, says he is the managing director of SHG. But very little further information about that significant managing entity, particularly its shareholding, is otherwise provided for the purposes of this trial. Clearly, there is a close working link between the boards of management of AW Co and SHG, through the common directorship of Mr King. Beyond that, however, the degree of interrelationship as between the two corporations is left somewhat obscure for trial purposes.
3. In his witness statement (exhibit 18), Mr King deposes at par 2 that the corporation Westco acquired all the issued shares in AW Co from the corporation Homestead Holdings Pty Ltd. He explains that Westco acquired all the AW Co issued shares in its capacity as the trustee of a trust. The trust is the Three Amigos Family Trust. The trust deed and deed of appointment are exhibit 16.
4. Mr King, by his witness statement (exhibit 18), appends a document prepared by AW Co's accounting practice. It shows that AW Co's issued share capital of 20,002 ordinary shares is beneficially owned by the Three Amigos Family Trust, not by the trustee, Westco. The same document was appended to a further statement tendered by the plaintiffs late in the trial, and which did not result in any required cross-examination of the deposing witness, Ms Peterson, an accountant.
5. Ms Peterson's evidence confirms (exhibit 17, par 10) there have been no changes to the information concerning the shareholdings in AW Co since October 2009. This must be accepted.
6. The trust deed (exhibit 16) indicates that the Three Amigos Family Trust is a discretionary trust, essentially established to provide capital or income benefits to Mr King and his family.
7. As regards AW Co's overall financial position, no financial details were provided at all at trial in respect of AW Co's assets or liabilities. There was no current balance sheet or profit and loss statement showing the performance of AW Co as a trading corporation.
8. From par 2 of the FASOC (read with Mrs Aikman's pleaded defence) it appears to be admitted that the strata management services provided by AW Co in respect of Seashells Mandurah had previously been provided by AW Co to another strata plan entity known as Seashells Yallingup until 1 December 2013. Additionally, similar strata management services which had been provided by AW Co to another strata title property known as Seashells Scarborough had ceased to be provided in approximately 2000.

1. AW Co contends that it may sue in defamation as it qualifies as an excluded corporation under the Defamation Act.
2. By s 9(2)(b) of the Defamation Act a corporation that is not a public body is an excluded corporation if it employs less than 10 persons and is not related to another corporation.
3. The evidence is that AW Co only had one employee, Mr Rakich. This was confirmed by Mr Rakich at par 8 of his responsive witness statement signed 16 November 2016 (exhibit 6). This fact was uncontradicated at trial. If AW Co is not 'related' to another corporation then AW Co can legitimately bring an action in defamation for injury to its business reputation.
4. At the commencement of the trial, there were some doubts initially raised over this threshold issue - on the basis that search material then available showed that all of AW Co's shares were owned by Westco (see exhibit 2.236, TB page 1180). On that basis, AW Co would have been a corporation that was 'related' to Westco - with Westco being its corporate parent. If AW Co's shares were beneficially owned by Westco as the initially provided search materials suggested, then AW Co could not meet the threshold set under s 9(2)(b) of the Defamation Act to be an excluded corporation, given a subsidiary/parent corporate relationship.
5. However, as the trial unfolded, closer examination of the search materials disclosed that Westco did not hold its shares in AW Co beneficially. So much is designated by the notation 'N' that may be seen in the search.
6. The evidence tendered during the trial from the plaintiffs showed Westco held its AW Co shares only as a trustee and not as the beneficial owner. It was the Three Amigos Family Trust that owned the 20,002 ordinary shares beneficially. Westco was trustee of that trust. But the trust beneficiaries were tied to Mr King and his family.
7. In those circumstances, s 9(4) of the Defamation Act invoking, by reference, s 50 of the Corporations Act 2001 (Cth) towards assessing whether or not a corporation is related to another, looks to be engaged to favour AW Co being an excluded corporation - and thus eligible to sue as a defamation plaintiff. Section 50 needs to be read in conjunction with s 48 of the Corporations Act. Section 48(2) excludes 'any shares held, or power exercisable, by the other body in a fiduciary capacity' which are then 'treated as not held or exercisable by it'.
8. Shares held on trust by a trustee meet the fiduciary capacity exclusion.
9. Essentially then, what was initially thought as a nonsuit problem for AW Co, on the basis of it having all its shares held by Westco, was alleviated by an outcome which saw a non-application of s 50 of the Corporations Act. Consequently, AW Co may bring this defamation action as an excluded corporation. I should observe that as a corporation plaintiff in defamation, AW Co does not have any personal feelings capable of being injured in defamation for the purposes of assessing a defamation damages award if AW Co is ultimately successful.

1. I have already mentioned Mr King's three witness statements provided as his evidence-in-chief and that Mr King was not required to be crossexamined upon his statements at the trial.
2. I note from par 3 of the FASOC that it is contended by Mr King (and is admitted by the defendant) that:

(a) Mr King is the natural person who controlled the corporation, Comet Bay. That corporation had undertaken the development of Seashells Mandurah. It is also admitted that Comet Bay was responsible for entering into the three pivotal management contracts of 17 March 2006, which are referred to in par 2.2 of the FASOC. Those three agreements set down the platform upon which AW Co came to act as a strata manager and manager of the onsite short stay accommodation letting pool established for Seashells Mandurah. It is a strata location comprising 107 strata lots which are used for various residential, commercial or short stay tourist accommodation purposes (see par 1 of the FASOC, which is also admitted).

(b) Mr King, at material times, was a member of the Council of Owners for Seashells Mandurah (or, in other words, Mr King was a member of the council for the strata company for Strata Plan 48817 that was established under the Strata Titles Act). That statutory corporate entity is a body that is wholly separate from AW Co - although the contractual arrangements perfected in 2006 see that AW Co provides its strata management services to the strata company.

1. Paragraph 3.2 (which is not admitted) of the FASOC contends Mr King was at all material times 'the natural person who controls Westco Investments Pty Ltd, which is and at all material times was, the proprietor of strata lot 16 within Seashells Mandurah'. Nevertheless, I accept that to be the case as a finding of fact.
2. It would appear, on the basis of the plea in par 3.2, that Westco is the trustee in respect of the 20,002 issued shares in AW Co. That trustee corporation is also the proprietor of strata lot 16 at Seashells Mandurah. It is controlled by Mr King.
3. One of the documents tendered at trial along with exhibit 16 is a deed of appointment and removal of trustee for the Three Amigos Family Trust. This shows a deed of variation of 10 March 2009. It records that (recital D) on 10 March 2009 receivers and managers were appointed to a former trustee of the trust, Homestead Holdings Pty Ltd, and that from 10 March 2009 a new trustee had been appointed. The new trustee was Westco.
4. Exhibit 2.227 is an Australian Securities and Investments Commission (ASIC) current and historical search for Westco. It shows the current directors are Messrs King and Gareth Edward Thomas (who was appointed on 16 September 2015). Mr King is also the company secretary, having been appointed on 1 July 1996 (the same day he was appointed director). There are only two issued ordinary shares in this corporation. One is held by Mr King, both legally and beneficially. The other is held by a corporate entity Ventnor One Pty Ltd - albeit the ASIC document notation is that this share is not beneficially owned by that corporation.
5. Mr King's witness statement (exhibit 3) recalls his establishment of SHG with Ms Cox in 1994. He discusses establishing stage 1 of Seashells Scarborough (13 apartments) in 1994. Stage 2 was opened in 1996. He relates that he received advice in the late 2000s to set up separate management companies for each of the Seashells resorts which he had established at Scarborough, Broome, Mandurah and Yallingup by then (par 16). He relates that Seashells Broome was officially opened in 1998 and AW Co was appointed by Blackpool Development Company Pty Ltd as strata manager for Seashells Broome (par 22).
6. Mr King then relates that Seashells Yallingup was completed in November 2007. He says that difficulties with the Western Australian Planning Commission held up the issue of titles for nine months, resulting in $9 million worth of sales being delayed. Again, AW Co was appointed the strata manager, presumably by Yallingup Ridge Pty Ltd, which had acquired the former Caves House Hotel and some surrounding heritage listed gardens in 2005. Mr King relates that AW Co resigned as strata manager of Seashells Yallingup in December 2013.
7. Concerning Seashells Mandurah, Mr King relates that development of a property at 16 Dolphin Drive, Mandurah was commenced by Comet Bay in 2003 towards development of a complex that later became known as Seashells Mandurah.
8. Seashells Mandurah was established under an ASIC Management Rights Scheme which required the three pivotal contractual management agreements of 17 March 2006, to which I have referred.
9. AW Co was appointed by the strata company as the strata manager, onsite manager, and caretaker. Mr King explains that SHG granted a conditional licence to Seashells Mandurah Pty Ltd to use the name 'Seashells' and 'Seashells Resort Mandurah' and to use registered trademarks which were the property of SHG for marketing and sale of lots and for the operation of the 'Resort'.
10. There were three stages in the development of Seashells Mandurah. At par 34 of exhibit 3 Mr King says:

Stage 1 was completed in about December 2005 and upon opening, Accommodation West held each of the Strata Management Agreement, the Caretaking Agreement and the On-Site Managers Agreement.

1. SHG was subsequently appointed in December 2005 as the onsite manager. Mr King says SHG subsequently appointed Seashells Resort Mandurah Pty Ltd as the onsite manager in approximately 2007.
2. Whilst stages one and three of the planned development were completed, stage two, involving a development of a further 108 apartments, has not commenced (par 33). Stage three was completed in November 2007. The global financial crisis of late 2008, Mr King says, resulted in the project financier, St George Bank, appointing receivers to Comet Bay and to Yallingup Ridge Pty Ltd in March 2009 (but, significantly, not to AW Co or to SHG).
3. Yet another corporation with which Mr King was associated, namely Project Marketing Australasia Pty Ltd, was established in 1989 (exhibit 3, par 7). It appears to have been involved with the Seashells Mandurah project at around June 2009 (par 45). Mr King says that the land which had been approved for stage two of the development at Seashells Mandurah came to be purchased by Doric Construction Pty Ltd from the receivers in March 2010 (par 47).
4. Mr King relates that from June 2003 the defendant, Mrs Aikman, had been employed as a property manager for AW Co. He personally had little direct contact with her during her employment. Mrs Aikman was then known under the name Susan Wagner, and in that name she purchased a strata lot at Seashells Mandurah under a sales contract of 5 September 2003. Mr King states that Mrs Aikman left AW Co's employment three to four months after the commencing of her employment.
5. Mr King relates his involvement in February 2008, concerning a letter which he wrote to owners of strata lots in Seashells Mandurah about Mrs Aikman's alleged contact with owners - over a requested convening of an owners' meeting (see exhibit 2.107, TB page 468).
6. Mr King next relates some of his interactions with Mrs Aikman through correspondence concerning what he says was her objectionable use of the trading name 'Shells By The Sea'. He recounts how Mrs Aikman had set up a competing strata management business in May 2011. That event led to SHG engaging lawyers as a result of a misuse of that business name by Mrs Aikman. SHG subsequently initiated Magistrates Court proceedings in October 2013 against her. Mr King says he attended the civil trial in March 2014, at which he says that SHG was ultimately successful (par 61).
7. Mr King next describes how he became aware of, and objected to, Mrs Aikman storing linen and cleaning products in a garage at lot 3 at Seashells Mandurah at around January 2013. He attended a mediation at SAT over that issue.
8. Mr King next recalls his attendance at what he refers to as the Seashells Mandurah's AGMs of 30 May 2011 (par 62), 4 June 2014 (par 66) and 4 June 2015 (par 67). More precisely, Mr King would appear to be referring to the AGM meetings of the strata body corporate in respect of the Strata Plan 48817, rather than at any meeting of the corporation Seashells Mandurah Pty Ltd (the corporation referred to in par 31) or of AW Co. Mr King personally confirms the correctness, according with his recollection, of each of those AGM minutes.
9. Finally, Mr King (at par 68) speaks of his involvement in events arising during September 2013, as regards his evaluating a potential offer for SHG to purchase Mrs Aikman's apartment at Seashells Mandurah and also to purchase her strata management business, Waters Edge Luxury. Mr King would appear to have been overseas through a period of September 2013. He says he was dealing with this matter from some distance away. At all events, despite a great deal of passing correspondence back and forth between SHG's solicitors, Summers Legal, and Mrs Aikman's solicitors at the time, Baldivis Law and Mediation, no final and binding agreement to acquire her unit or her business at Mandurah was ever reached.
10. Mr King's responsive witness statement (exhibit 4, dated 17 November 2016) provides details about his wider community involvements with organisations such as Floreat Rotaract and the Royal Perth Yacht Club since 1980. A significant component of this statement covers many industry related awards given to SHG and its receipt of national and state awards - none of which concerns AW Co and so is not particularly relevant.
11. Apart from relating (at par 67) his attendance at and confirmation of the minutes for the 2015 AGM, Mr King's witness statement does not seek to address any of the six allegedly defamatory publications that are the subject of these proceedings.
12. Mr King's statements do not assert any level of hurt, distress or repercussions associated with Mrs Aikman's allegedly defamatory publications from a personal perspective or, indeed, from the perspective of AW Co.

1. Paragraph 4 in the FASOC is a plea admitted by Mrs Aikman's defence pleading. It contends Mr Rakich is and was at all material times:

(a) employed by AW Co to act as the strata manager for Seashells Mandurah, and was the natural person who performed the strata manager's functions. (The plea in par 2.2 of the FASOC refers to AW Co as the strata manager and manager of the onsite short stay accommodation letting pool for Seashells Mandurah by reference to the three identified written agreements of 17 March 2006.)

Hence, I assess the plea at par 4 to essentially contend that AW acted through its sole employee, Mr Rakich, in discharging strata management functions for Seashells Mandurah.

(b) a natural person who controls TDS Investments Pty Ltd, which is, and at all material times was, a proprietor of strata lot 62 at Seashells Mandurah. The repercussion of this contention is that Mr Rakich is not just the sole employee of AW Co in performing all its functions as required, particularly as strata manager for Seashells Mandurah. Mr Rakich (with his wife) is also resident at Seashells Mandurah at lot 62, a property owned by TDS Investments Pty Ltd and controlled by Mr Rakich; and

(c) a member of the Council of Owners of Seashells Mandurah. In this respect, the plea, which is admitted, is that Mr Rakich, along with Mr King, is a member of the Council of Owners that was elected for the strata company.

1. Mr Rakich provided two witness statements for the purposes of the trial as his evidence-in-chief. His main witness statement of 7 October 2016 became exhibit 5. As said, Mr Rakich's shorter responsive witness statement, signed 16 November 2016 became exhibit 6. As mentioned, Mr Rakich was not required to be crossexamined at trial upon these two statements.
2. In summary, Mr Rakich, by exhibit 5, explains his longstanding business relationship with Mr King, extending back some 35 years. He also says that he has known Mrs Aikman since late 2003 or early 2004. He relates that AW Co has employed him as the strata manager since 2011.
3. Mr Rakich was a director of Comet Bay between 2002 and 2008. Since 2002 he has been a director of Project Marketing Australasia Pty Ltd, again with Mr King.
4. Between September 2011 and November 2013, Mr Rakich says that he was the strata manager for Seashells Yallingup - by which I understand him to be saying that he was the natural person implementing or causing to be performed all tasks and duties that needed to be performed by AW Co across that period in the strata manager role.
5. Commencing at par 8, Mr Rakich explains his association with Comet Bay and then the development of Seashells Mandurah in terms that align with Mr King's statement.
6. Mr Rakich relates how his corporation, TDS Investments Pty Ltd, purchased strata lot 62 off the plan in or about 2003 (par 21) and how since then he has been a longstanding member of the Council of Owners of the strata company. That has been the position since the first meeting of that company in March 2006, which he attended with Mr King.
7. Mr Rakich remained a member of the Council of Owners until June 2015.
8. Mr Rakich explains his role as strata manager of AW Co for Seashells Mandurah at par 35 of exhibit 5 in rather brief and generalised terms, explaining his duties as:

(a) acting as the secretary and treasurer of the strata company;

(b) exercising and performing the powers and duties specified in the Strata Titles Act; and

1. The observations above would appear to be more directed at the strata body corporate, rather than at AW Co.
2. Commencing at par 37, Mr Rakich relates his interactions with Mrs Aikman from late 2003 or early 2004, when she had been employed as a property manager by AW Co at Seashells Scarborough.
3. Mr Rakich relates (par 43) how Mr Thomas became SHG's Chief Operating Officer (COO) in about 2011. Mr Thomas had looked into the issue of why some proprietors at Seashells Mandurah had opted to leave the onsite letting pool arrangements. Mr Rakich reports becoming aware in 2007 that Mrs Aikman was then carrying on a rival strata management business, under the name 'Shells by the Sea', which managed several apartments in Seashells Mandurah.
4. Mr Rakich says SHG sought legal advice in relation to that unauthorised business name use, albeit he was not directly involved. He relates how Mrs Aikman's onsite letting business name subsequently changed to Waters Edge Luxury in about 2012.
5. Mr Rakich recounts various other matters, including the minor claim in the Magistrates Court against Waters Edge Luxury over claimed legal costs against Mrs Aikman and his attendance at various AGMs of the strata body corporate or at the Council of Owners' meetings between 2009 and 2012.
6. A component of Mr Rakich's statement at pars 58 to 66 is devoted to the events surrounding Mrs Aikman's business's use of the garage of strata lot 3 at Seashells Mandurah. This use was, he said, in alleged contravention of the strata company's by-laws and the onsite management agreement, culminating in a commencement of SAT proceedings. The proceedings are explained at some length at between pars 67 and 96 of Mr Rakich's statement. He covers events over a period of 30 July 2013 to December 2013, before orders resolving that action were made by SAT.
7. These SAT events precede the first of the six defamatory publications complained about in this litigation by some seven months. Their contended ultimate relevance goes to issues of qualified privilege and malice - if those issues do become relevant in due course as regards Mrs Aikman and her six publications which are complained about as being defamatory.
8. Between pars 105 and 122 Mr Rakich relates further events concerning another SAT matter, CC 565 of 2014. These were SAT proceedings commenced on 29 April 2014 by Mr and Mrs Orohoe and by Mrs Ivankovich in SAT against AW Co. As I have already mentioned, Mr and Mrs Orohoe and Mrs Ivankovich were owners at Seashells Mandurah. They came to be aligned with Mrs Aikman at the time over their critical assessments upon the management of Seashells Mandurah.
9. The events related by Mr Rakich provide background to the SAT consent orders on 27 August 2014. Those SAT orders resulted in the forensic accountant, Ms Coombs, being appointed and permitted to inspect some limited financial records of the strata company for financial years ending 2011, 2012 and 2013. (Presumably, to the extent AW Co acted as agent towards an implementation of strata management tasks on behalf of the strata company, the SAT consent order envisaged the forensic accountant's entitlement to inspect AW Co's records within that management field.)
10. Commencing at par 127 of exhibit 5, Mr Rakich relates his attendance at the 2015 AGM, but with him noting that the transcript of that meeting contains some diverting inaccuracies, including what is an incorrect reference to Mrs Aikman as 'Ms Hagman'.
11. Mr Rakich relates personally preparing a verbatim transcript of the remarks spoken by Mrs Aikman at the AGM meeting, including her discussion with Mr Ward, and which Mr Rakich deposes to as being accurate. (I note that is not in dispute at the trial.)
12. Between pars 131 and 138 of his witness statement, Mr Rakich relates some personal interactions with Mrs Aikman in his capacity as AW Co's strata manager across the period January 2013 to June 2015. This is essentially by reference to his communications with her in the nature of passing email correspondence.
13. Mr Rakich's responsive witness statement, exhibit 6, relates that he was awarded the Order of Australia for his service to cricket, business and commerce in 2005. He also relates an association with other non-business institutions.
14. Under pars 5 to 7 of exhibit 6 Mr Rakich provides further details concerning Mrs Aikman's acquisition of her Seashells Mandurah unit in 2003 and the 3% discount on sales commission time, as well as a stamp duty concession that he says she received at the time.
15. None of the above evidence is contradicted and may be accepted.
16. I note that, like Mr King, Mr Rakich does not relate experiencing any personal distress, inconvenience or aggravation arising, from his perspective, as a result of any of Mrs Aikman's six allegedly defamatory publications which are complained of in the litigation.

1. I have already mentioned four witness statements (exhibits 11, 13, 14 and 15) filed on Mrs Aikman's behalf towards her strongly resisting all the defamation allegations put against her (with exhibit 11 to be read, as I have mentioned, by reference to the limitations and qualifications accepted under exhibit 12).
2. In exhibit 11, Mrs Aikman recalls her purchase of her apartment, number 29, at Seashells Mandurah in September 2003 as being an off the plan purchase from Comet Bay.
3. She next relates various other matters, including the increasing disenchantment shortly after acquiring her property over the management of her unit and then her conversations with other owners upon that topic at around 2006 and 2007.
4. Mrs Aikman explains her withdrawal of her apartment from the letting pool arrangements in January 2008. From then she rented her apartment out herself. She found this a better financial option for her than staying within the Seashells Mandurah aggregated letting pool arrangements.
5. Mrs Aikman recalls her establishment of her own property management business at Mandurah around December 2008, conducted from late 2008 until November 2015. She says she managed in this period about 25 apartments at one time (out of the 107 apartments in total at Seashells Mandurah).
6. Mrs Aikman then describes some further management concerns of herself and of other owners across 2009 to 2011, leading up to the questions she asked at the strata company's AGM in May 2012 - concerning the relationship between AW Co as strata manager and SHG as resort manager.
7. Mrs Aikman describes events from 2013 onwards, relating to even more concerns she held about the management of the Seashells Mandurah resort and the AGM she attended of May 2013, which she describes as 'acrimonious'. She mentions another concerned owner, Mrs Orohoe, and a subsequent letter of 19 May 2013 that Mrs Orohoe sent to the owners.
8. Mrs Aikman relates further events between the strata company's AGMs occurring on 25 May 2013 and 4 June 2014.
9. From par 43 of her statement she explains her involvement in the SAT proceedings. She summarises her position at 28 July 2014, the date of the first defamatory publication complained of against her by the plaintiffs, in these terms (at par 47):

1. I personally had expressed a number of concerns and complaints about the management of the property, particularly in relation to conflicts of interest and voting rights. 2. Numerous other owners had expressed concerns and complaints, particularly about the management of the property and the conflicts of interest of the plaintiffs, about incompetence on the part of the first plaintiff, about its unwillingness to disclose financial information despite being requested by owners to do so, about the caretaker's apartment, about the accounts and budget and about the absence of proxies that were supposedly held.

1. Proceedings had been commenced by two (in effect) owners in the SAT in an attempt to compel disclosure by the first plaintiff of books and records that contained information of a financial nature and that at least some of the owners wanted to know about, or to compel an audit of those books and records.

1. Numerous allegations had been made against me by or on behalf of the plaintiffs and to which I had made counter-allegations. 2. There was considerable concern on my part and on the part of some other owners that the plaintiffs were simply trying to gag any owners from expressing concerns or criticisms and from seeing the financial records of the Strata Company. 3. The third plaintiff (ie Mr Rakich) had made clear that he wanted the owners to know, and that they were entitled to know, of everything that was going on, and why.
2. At par 48 of her witness statement Mrs Aikman says that the owners at Seashells Mandurah who expressed most concerns, as far as she was concerned, were:

1. So much can be accepted as a matter of fact well established by the trial evidence. It is borne out by many documents in the TB.
2. Mrs Aikman's witness statement then specifically addresses the first email that is complained of at pars 49 to 51, as regards its publication to Mrs Orohoe.
3. She then discusses the second publication complained of, being her email of 17 October 2014 sent to a Mr Di Prinzio and to Mrs Lazarus (pars 52 to 55). Mrs Aikman says she considered she had a duty to publish the information in the email because she says (par 55E) it was important for

Leanne Lazarus, as an owner, client of mine and the intending seller of the apartment, and her agent Mr Di Prinzio to be aware of such information as I was aware of.

1. The third and fourth publications complained of against her are discussed at between pars 56 and 64 of exhibit 11. This discussion culminates again in her assertions, in effect, as to a perception that she was under a duty to publish the Coombs Report more widely and that her recipients all had an interest in receiving the information from her. That was, she explains, because they were 'nearly all clients of mine and secondly, they were owners and, thirdly, they were entitled to know the results of the investigation undertaken by Ms Coombs' (par 61).
2. Paragraphs 65 to 72 of exhibit 11 significantly address a fifth matter complained of, namely, Mrs Aikman's email of 17 April 2015, sent to Mr Beyer and also copied to Mrs Orohoe and Mrs Ivankovich. At pars 69 and 70 Mrs Aikman again relates her beliefs concerning her duty to publish that information to Mr Beyer, who she describes as 'a fellow disgruntled owner'. Mrs Aikman says she believed Mr Beyer had an interest in receiving the information as a (fellow) owner of an apartment in the building, and also she says because he was particularly 'disillusioned with the management by the plaintiffs of the property'.
3. At pars 73 to 76 of exhibit 11 Mrs Aikman discusses the sixth (last) publication - being her spoken words at the 2015 AGM (but erroneously referred to there as the fifth matter complained of).
4. Mrs Aikman at par 74 accepts speaking the words that are attributed to her at that AGM - being a discussion concerning the Coombs Report which had by then been circulated to owners. Mrs Aikman renders some general observations at pars 77 and 78 of exhibit 11, part of which are as follows:

At times, I have used language, that in hindsight, I should probably not have used and which I now regret having used. However, I took the view that if I did not attempt to be forceful, then the plaintiffs would simply continue to 'ride all over me', as, in my opinion, they have done with other dissenting owners ... At all times, I have simply tried to respond to allegations made by the plaintiffs and the positions in which they put me and other dissenting owners.

1. I point out that the observations which I have taken from Mrs Aikman's statement concerning what she said at pars 47A to 47F and par 78 were only admitted as part of her evidence on the basis of being limited to her belief, understanding or state of mind at the time (as per the schedule to exhibit 12).
2. By her exhibit 13 Mrs Aikman corrects a matter in her initial witness statement as regards her circulation of the Coombs Report under her 2 April 2015 email. She adds four further persons as recipients whom she initially omitted to mention. She adds this:

At the time that I sent to those four persons the email dated 2 April 2015 and the Coombs Report, I was managing the apartments for all of them.

1. Under Mrs Aikman's third witness statement, exhibit 14, she clarifies par 56 of her primary witness statement (exhibit 11), this time by reference to Jo and Ed McAppian and their business Cape Bouvard as also being recipients of her 2 April 2015 email.
2. Under Mrs Aikman's fourth witness statement (exhibit 15), she takes specific issue over certain paragraphs from Ms Knowles' witness statement - which was filed on behalf of the plaintiffs (exhibit 8). Ms Knowles was also not required for crossexamination on her statement. Nevertheless, Mrs Aikman takes issue with pars 8 through 16, par 19, par 20 and par 24 of Ms Knowles' statement.
3. Events described in pars 8 through 16 of Ms Knowles' witness statement (par 9 having been excised after an objection and a further component of par 12 having also been excised after the objection taken on day one of the trial was upheld) all look to be directed at supporting the plaintiffs' contentions of malice in Mrs Aikman, thereby denying to her, if malice is proved (and if needed), the defences of common law and statutory qualified privilege against exposure to defamation and which Mrs Aikman invokes in her defence.
4. Ms Knowles relates a telephone call she received from Mrs Aikman after she became an owner at Seashells Mandurah around December 2007 (Ms Knowles having been an owner of an apartment at Seashells Broome for some years before that).
5. That conversation as related by Ms Knowles contends that Mrs Aikman said a number of derogatory things about Mr King, including that he was a crook, was developing and managing resorts without care for the owners, that he was in control of AW Co and was hiving off owner profits for himself, that the staff of AW Co were totally incompetent and finally that, essentially, if Ms Knowles wanted a return on her investment, she would get an outstanding return (guaranteed) by having her premises at Seashells Mandurah managed by Mrs Aikman's rival management business.
6. The conversation appears to have ended abruptly due to Ms Knowles hanging up.
7. Mrs Aikman's version of the same 2007 conversation is offered at pars 2 and 3 of exhibit 15. Mrs Aikman accepts that, in response to what she describes as an aggressive and accusatory tone of Ms Knowles towards her, she did make allegations against the plaintiffs 'including allegations as to their lack of honesty, lack of care, self interest and incompetence' (par 3 of exhibit 15).
8. To the extent that there is any clash of evidence as between Ms Knowles and Mrs Aikman about what happened in this telephone conversation, I must accept Ms Knowles' version as being more accurate, given that she was not required for crossexamination over her version. However, the more important question is whether any of that evidence of what Mrs Aikman then said bears relevantly upon the malice issue as regards much later in time publication events. My assessment is that it does not as regards the five publications complained of, as I explain in a later section of these reasons dealing with the malice challenges directed at Mrs Aikman.
9. At par 4 of exhibit 15 Mrs Aikman explains why she only attended one meeting during the year she was elected to the Council of Owners of the strata company, as Ms Knowles pointed out. By my assessment, nothing much relevantly arises from any of that although, from her own words, Mrs Aikman was plainly disgruntled then with the other council members as she says she thought them to be just rubber stamping everything the plaintiffs proposed and were not acting in the 'best interests of the proprietors' (par 4).
10. At par 5 of exhibit 15 Mrs Aikman responds to par 20 of what Ms Knowles had said in exhibit 8, where she relates statements by Mrs Aikman at the strata company's AGM concerning Messrs King and Rakich and AW Co as to them lining their own pockets at the expense of the owners and not acting in the best interests of the owners, and as to saying that Messrs King and Rakich had conflicts of interest and were corrupt.
11. No such statements as related by Ms Knowles are actually sued upon in these proceedings. So Ms Knowles' statement is again to be viewed from a perspective of providing more evidence to advance a malice challenge directed at Mrs Aikman as regards five of the six publications.
12. By exhibit 15 Mrs Aikman accepts she has said the words as Ms Knowles contends at some stage between 2008 to 2016, save for her disputing the assertion as regards having said that Messrs King and Rackich were corrupt. Mrs Aikman says at par 5:

I have always believed, and continue to believe, that the plaintiffs are lining their own pockets at the expense of owners, that they have not acted in the best interests of owners and that they have had conflicts of interest. I deny having used the word 'corrupt' as that is not a word that I associate with the plaintiffs, despite the many other adjectives that I have used about them.

1. The last of the responses by Mrs Aikman in par 6 addresses par 24 in Ms Knowles' statement. This concerns a directions hearing before SAT in August 2014 and a contention that Ms Knowles overheard (in the course of that SAT hearing) Mrs Aikman making more adverse comments about Messrs King and Rakich and AW Co and their (mis)management of Seashells Mandurah. As related by Ms Knowles:

Mrs Aikman's comments were littered with obscenities. I do not believe the Tribunal member could hear those comments as those comments were, whilst incessant, made quietly.

1. In her response, Mrs Aikman accepts that she did say some words to her husband at the August 2014 hearing which 'denigrated the plaintiffs'. As she related matters:

The words that I used were in response to words used by [Mr Rakich] who bent down towards his briefcase and threatened me with legal action. What I said was to Jim and in response to the comments made by [Mr Rakich]. Ms Knowles has not identified the words used and which she describes as obscenities such that I am not in a position to respond as to whether or not I consider them to so be.

1. It is true that Ms Knowles' allegation about 'obscenities' is quite nonspecific. Again the objective of the evidence is presumably to try and lay even further foundation to show Mrs Aikman's personal state of malice at this time towards the plaintiffs, which is shortly after the first of the allegedly defamatory emails complained of (28 July 2014). The generality of the reference to 'obscenities' in Ms Knowles' statement is so vague as to be unhelpful. Again, I have no doubt that Mrs Aikman's very negative views about the plaintiffs at that time were strongly held. They had intensified over time, through numerous incidents canvassed by Mr Rakich and by herself under their witness statements. But as is well established as a principle of defamation law, ill will, by itself, does not prove malice. An evaluation as to malice needs to be holistically conducted, where necessary, by reference to what has been written or said in overall context. The allegedly defamatory publications need to be looked at and considered first, before embarking upon any assessment as to whether the words published or articulated were written or spoken for a malevolent collateral purpose. I will conduct a discrete malice evaluation separately, later in these reasons, subsequent to assessing each of the six publications at issue.

Other trial evidence relied upon by the plaintiffs: Messrs Thomas and Newbold

1. There were two further witness statements relied upon by the plaintiffs. These were exhibits 7 and 9, being the witness statement of Mr Thomas dated 22 November 2016 and a statement of Mr Newbold dated 13 October 2016.
2. Mr Thomas' statement was once again provided in circumstances where he was not required for crossexamination by Mrs Aikman. He relates his position as the COO of SHG since 2008. He was initially Operations Manager and became COO in 2011, after he returned to the organisation.
3. Mr Thomas relates various matters concerning Magistrates Court proceedings taken against Mrs Aikman which were seeking $4,694 in legal costs and also in relation to Mrs Aikman's alleged illicit use of a garage at strata lot 3 for cleaning and linen storage purposes around January 2013 to facilitate her rival strata management business at Seashells Mandurah.
4. This evidence adds very little to the evidence already provided in respect of these events, which once again are presumably raised from a perspective of seeking to show historical ill will by Mrs Aikman, rising later to a level causing Mrs Aikman to act with a malicious intent in her publications.
5. At par 71 of his statement, Mr Thomas (exhibit 7) relates matters he says Mrs Aikman said to him at various times, although he does not recall precisely when the events happened, as regards Seashells Scarborough or Seashells Yallingup or, indeed, Seashells Resorts generally. He also relates comments he says Mrs Aikman made concerning Messrs King and Rakich at par 71.3 through 71.5. Again, none of those alleged verbal remarks by Mrs Aikman are the subject of separate defamation proceedings brought in their own right. Presumably, again, they are related towards showing malice.
6. However, this evidence of Mr Thomas is ultimately unhelpful given its lack of specificity as to when and to the surrounding circumstances in which such remarks were made.
7. Presumably, Mr Thomas' observations found in par 73, by reference to a document in exhibit 2.212, TB pages 1085 - 1086 directed to a lot owner at Seashells Yallingup, is an attempt to paint Mrs Aikman's conduct as illustrative of her acting in her own business interests at the time - to illegitimately further her own competitive business at AW Co's expense, again from a malice perspective. Again, I will evaluate the malevolent collateral purpose challenge in a discrete malice related section.
8. The witness statement of Mr Newbold (exhibit 9) describes his employment as General Manager for the Seashells Mandurah group as an employee of SHG from October 2011. Mr Newbold provides greater details about the nature of cleaning materials that were stored in a Seashells Mandurah storeroom when used by Mrs Aikman. This included some toilet paper, tissues, room amenities (soap etc) and linen.
9. At par 12 Mr Newbold relates his observations upon so-called regular deliveries by a linen truck and his communication of these matters to Mr Rakich in or around 2012 (par 13).
10. Mr Newbold left SHG in late December 2015. His inconsequential evidence adds nothing more to the substantial bodies of documentary and other evidence bearing upon malice related issues as regards Mrs Aikman.

Practical consequences of Mrs Aikman's alleged malice

1. The forensic consequence of the plaintiffs' malice allegations against Mrs Aikman was to substantially expand the duration and scope of enquiry of this defamation trial which, in the end, ran for four full days.
2. For this trial, the malice allegations directed by all plaintiffs at Mrs Aikman are tied to the following expansive features of the trial, namely:

(a) the plaintiffs' reply pleading, which raises 37 (par 2.3.3, particulars A to KK) separate factual averments as to conduct, incidents or matters against Mrs Aikman as being either, alone or in aggregate, suggestive of her collateral ill motivations towards the plaintiffs;

(b) an extensive discovery process heavily probing the allegation as to Mrs Aikman's malice. This translated, at trial, into a tendering of a threevolume lever arch TB (exhibit 2) and then a supplementary TB, with the vast majority of the documents (given all six alleged defamatory publications were otherwise admitted) adduced to either advance or diminish the plaintiffs' arguments over Mrs Aikman's alleged malevolent intent towards the plaintiffs;

(c) a full day's cross-examination of Mrs Aikman, mostly, as I assessed it, from the perspective of attempting to show her malevolent intent towards the plaintiffs. That arose in circumstances where none of the plaintiffs' witnesses, including Messrs King and Rakich, were required to be crossexamined. Their respective witness statements were simply tendered. Mrs Aikman was the only witness to give viva voce evidence under crossexamination at the trial; and

(d) overall, on my assessment, a defamation trial that ought not to have exceeded two hearing days at most (given all of what was otherwise agreed or was uncontroversial) occupied four trial days.

1. It is apparent that the Seashells Mandurah relationships in 2014 - 2015 as between Mrs Aikman and Messrs King and Rakich had become tense, strained and difficult. But that was so on both sides of the relationship. There were, as will be seen, incidents of pettiness on both sides. The resultant levels of distrust and ill will within these relationships are not sufficient by themselves to prove malice. Mrs Aikman's ill will towards the plaintiffs may be at the start of that enquiry. But it is by no means the finish.

Sources of evidence at trial: Documentary evidence

1. For a trial where the six defamatory publications complained of were all admitted, the level of documentary evidence in the case was extraordinary, spanning as it did across the course of the agreed three-volume TB comprising three lever arch files. There later emerged a supplementary TB of more documents.
2. As already noted, all volumes of the TB were accepted without controversy. The contents became exhibit 2. The TB indexes were tendered as well and became exhibits 1.1 and 1.2 respectively.
3. Beyond the four volumes of TB documents and the tendered witness statements there were some more ad hoc documents. These included, significantly, the Three Amigos Family Trust deed and the deed of appointment under that trust which became exhibit 16. That comprises the documentary evidence relied upon at the trial.
4. I should say something about the key issues at the trial and also isolate what was not in issue.

1. The essential trial issues which emerged, in broad terms, were these:

(a) whether AW Co is an excluded corporation that is permitted to bring this suit in defamation. I have already resolved that issue in the affirmative.

(b) do the six publications carry any or all of the (multiple meanings) imputations that the plaintiffs contend arise from the natural and ordinary meaning of the words complained about in each publication, ie, as 'popular' or 'false' innuendo meanings arising;

(c) if any such meanings do arise, then do they carry a meaning that is to be assessed as a matter of law as being defamatory of one or more of the plaintiffs;

(d) as a further aspect of the exercise under (b) and (c) just mentioned, do the publications sufficiently identify one or more or all of the plaintiffs upon their natural and ordinary meaning, so as to render one or more of the plaintiffs as being the subject of a defamatory imputation;

(e) if a publication by itself is assessed as not identifying any plaintiff, can additional extrinsic facts (that the plaintiffs pleaded and particularised at trial) assist and complete the identification of one or more of the otherwise unnamed or unidentified plaintiffs, and has that extrinsic knowledge been proven as being held by one or more of the (usually limited) recipients of Mrs Aikman's six communications complained of;

(f) if 'yes' to (d) or (e) above, are Mrs Aikman's communications (subject to (g) below) legally shielded against exposure to defamation liability by a common law or statutory qualified privilege, favouring Mrs Aikman;

(g) if 'yes' to (f), was Mrs Aikman as an issue of fact actuated by a malicious intent or motive towards one or all of the plaintiffs on one or more of the five publication occasions that are the subject of the plaintiffs' complaints;

(h) assuming success for one or other of the plaintiffs to this point, what is the level of an appropriate award of compensatory damages for each plaintiff, particularly bearing in mind that s 34 of the Defamation Act requires there to be a rational relationship between any defamation damages award and the harm actually sustained by a plaintiff as a result of a defamatory publication. As will be seen, this is a significant consideration for the second and fifth publications towards AW Co and Mr Rakich. A mitigation of damages plea, sometimes referred to as the 'Burstein' principle, is also in play, if required, by reason of Mrs Aikman's pleaded defence (par 41): see Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579, which was recently considered in this state by Coxon v Wilson [2016] WASCA 48.

1. It is of assistance to formally record that the following matters were never live considerations in this defamation trial.
2. First, Mrs Aikman has not sought to defend any of the imputations raised against her on the basis of a plea of justification or of substantial truth. Nor has there been any attempt by her to raise 'Lucas-Box' or 'Polly Peck' defences towards her proving the truth of alternate and less serious imputations. The absence of such pleas narrows the scope of the defamation controversy.
3. Second, no defence of common law fair comment or of statutory honest opinion under s 31 of the Defamation Act was pressed at the trial. Whilst Mrs Aikman's pleaded defence did display such pleas, by the time of the trial it was made explicitly clear by the parties' written opening submissions, and confirmed by counsel for Mrs Aikman at the trial, that such defences were not being pressed. That is so notwithstanding that, upon examination, quite a number of Mrs Aikman's remarks seen in the words complained of may look to be capable of being classed as in the genre of a comment or an opinion expressed by her.
4. Third, the statutory defence of triviality under s 33 of the Defamation Act, although pleaded, was ultimately not pressed on behalf of Mrs Aikman at the trial.
5. Before turning to scrutinise each of the six allegedly defamatory publications complained about more closely, it is necessary to briefly address the principles of defamation law arising in reference to the privilege defences raised by Mrs Aikman and the allied malice principles. As regards general principles of defamation law applicable to identification and imputations, I would simply incorporate by reference what I said about those matters in Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117, commencing at [115] of these reasons.

Principles of law: Common law and statutory qualified privilege as a defence to defamation Common law qualified privilege

1. Principles of law regarding the enjoyment of qualified privilege by a defamation defendant are to be stated at necessarily high levels of abstraction and generality.
2. In Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366, the plurality (Gleeson CJ, Hayne & Heydon JJ) observed in these terms:

When it is recognised, as it must be, that 'the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact' (referring to London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22 per Lord Buckmaster LC), it is clear that in order to apply the principles, a court must 'make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication' [10]

1. (referring to earlier observations by Sir Owen Dixon in Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 (116)).
2. A subaspect of common law qualified privilege has factually manifested in an area sometimes described as the situation of 'reply to an attack': see Gatley on Libel and Slander (12th ed) at page 596, par 14.51. To enjoy the protection of common law privilege, the defendant's reply must be limited to no more than a proportional response: for instance, see Harding v Essey [2005] WASCA 30; (2005) 30 WAR 1 [10] (Steytler J) and [61] - [63] (McLure J); Harbour Radio v Trad [2012] HCA 44; (2012) 247 CLR 31, 33 - 35 (Gummow, Hayne & Bell JJ); and Loveday v Sun Newspapers Ltd [1938] HCA 53; (1938) 59 CLR 503, 516 (Starke J).

1. I refer to and incorporate but do not repeat what I said about s 30 of the Defamation Act in Kingsfield Holdings Pty Ltd, commencing at [350] of those reasons. Like common law qualified privilege, the statutory protection of s 30 is equally vulnerable to being defeated by the proof of malice in the maker of the defamatory statement.
2. From the terms of s 30(1) of the Defamation Act, the statutory provision substitutes a criterion of reasonableness in the circumstances for the duty or interest that is necessary to be proved, applying common law principles. A reasonableness inquiry under s 30 is largely focussed at the publisher. Section 30(1)(a) and s 30(1)(b) then focus upon a recipient holding an interest or apparent interest in receiving information on a subject. But critically, s 30(1)(c) focuses upon the defendant's conduct in publishing such material being objectively evaluated as reasonable in all the circumstances.
3. Statutory qualified privilege would become potentially relevant in the present case if, say, common law privilege was not shown because any recipients of the six publications did not hold a reciprocal interest in receiving the content of the impugned communication - or if, to use the words of Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534, the maker of the statement and the recipient were not in the same 'community of interest'. But because it is my end conclusion that each of the six publications at issue was circulated within a common 'community of interest' for the purposes of establishing that element of a common law qualified defence privilege, if needed, I do not dwell upon this particular statutory privilege defence as raised by the defendant - in the alternative to common law privilege.

1. As regards the showing of malice in a defendant sufficient to debar the privilege, in Atkas v Westpac Banking Corporation [2010] HCA 25; (2010) 241 CLR 79, French CJ, Gummow and Hayne JJ said [17]:

'[A]ctual malice' and 'express malice' identify a purpose or motive that is foreign to a privileged occasion and actuates the defamatory publication, so as to destroy what otherwise would be a defence of qualified privilege: Robert v Bass [2002] HCA 57; (2002) 212 CLR 1 [75] - [76].

1. The leading malice authority in Australia is Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1. There the plurality (Gaudron, McHugh & Gummow JJ) explained:

[M]alice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive for purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter [79].

1. At [76] of those reasons, after discussing Horrocks v Lowe [1975] AC 135; [1974] 1 All ER 662, 149 and Lord Diplock's wellknown speech, their Honours said:

Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privilege occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive ... Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication. (footnotes omitted)

1. I also note the observations of Gleeson CJ in Roberts v Bass [10].
2. In Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298 the plurality (French CJ, Crennan & Kiefel JJ) observed:

Reciprocity of duty and interest, as giving rise to a privileged occasion, is not a feature of the statutory defence, but it is the hallmark of the common law defence of a qualified privilege. As Parke B explained in Toogood v Spyring [1834] EngR 363; (1834) 1 C M & R 181 at 193; [149] ER 1044, 1049 - 1050 the law regards the publication of a false statement which is injurious to the reputation of a person as malicious:

unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice.

The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light [11] - [12].

1. In his reasons in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, White J provided the following helpful observations concerning the application of malice principles in the area of defamation law. His Honour said:

In his reasons in Roberts v Bass, Gleeson CJ referred at [10] to the statement of Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149 that 'express malice' is the term of art by which the law describes the motive of a person who 'uses the occasion for some other reason', and means malice in the popular sense of a desire to injure the person who is defamed. Earlier, at [8] Gleeson CJ had said that the kind of malice which defeats a defence of qualified privilege at common law is bound up with the nature of the occasion which gives rise to the privilege.

As already noted, the occasion of qualified privilege in this case arises from the interest of the Australian community in disseminating and receiving information, opinions and arguments concerning government and political matters affecting the people of Australia.

A belief in the truth of what is published will not be sufficient to save the defence of qualified privilege if a respondent misuses the occasion for a purpose other than that for which the privilege is given - for example, if this respondent publishes the matter complained of in order to injure the applicant or some other person, or to vent spite or ill-will towards the applicant, or to obtain some private advantage unconnected with the privileged occasion upon which the publication is made: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51.

In Spautz v Williams [1983] 2 NSWLR 506 at 520 - 521, Hunt J summarised many of the principles relating to the defeat of a defence of qualified privilege by malice. It is not necessary to repeat that summary presently, apart from noting that qualified privilege 'should not be nullified by a readiness to treat as evidence or express malice anything which does not definitely, and as a matter of common sense, point to the actual existence of some express malice really operative in the making of the statement'.

In short, a respondent will be held to have been actuated by malice for the purposes of the defence of qualified privilege if the applicant establishes that it published a statement for some dominant purpose or motive other than that for which the privilege is given. The purpose or motive must be both foreign to the occasion of the privilege and actuate the making of the statement [379] - [383].

1. Like White J, I would also note without repeating Hunt AJA's summary of malice principles in Gross v Weston [2007] NSWCA 1; (2007) 69 NSWLR 279, 283 [15] - [16] and observations in Gatley on Libel and Slander (12th ed) at par 17.7 at the section, 'Mixed Motives'.

The publications complained of: Three emails with a small range of circulation The first and fifth publications complained of

1. I propose first to address three of the six publications that were sent to only a very limited number of recipients. A narrow recipient distribution range is relevant to potential defamation damages consequences, the issues relating to the qualified privilege and the allegation of malice (see s 30 and s 31 of the Defamation Act).
2. Mrs Aikman's email of 28 July 2014 (the first publication complained of) was only sent to Mrs Orohoe.
3. The narrowest scope of circulation (ie, to one person) means that the capacity of this email to injure reputations (if it was, indeed, defamatory) of any of the plaintiffs, in reality, was negligible. So much was, in effect, conceded by counsel for the plaintiffs at the trial as regards the first publication (see ts 36).
4. As a matter of fact, Mrs Orohoe had been sympathetically aligned with Mrs Aikman and a group of other similarly disaffected Seashells Mandurah strata lot owners as at 28 July 2014. Hence, from a rationality of damages perspective, this email from Mrs Aikman to Mrs Orohoe was never going to cause the plaintiffs' reputations to be (further) lowered in the eyes of Mrs Orohoe.
5. Another of the allegedly defamatory emails (the fifth publication complained of) is Mrs Aikman's email to Mr Beyer of 17 April 2015.
6. This was actually Mrs Aikman's response back to an email she received an hour earlier from Mr Beyer. He, like Mrs Orohoe, was a similarly disaffected and commonly aligned Seashells Mandurah strata lot owner with Mrs Aikman.
7. Responding to Mr Beyer, Mrs Aikman's email copied in Mrs Orohoe, Mrs Ivankovich but, significantly, also Mr Rakich.
8. A defamatory publication that is made only to a plaintiff claiming to be defamed may be personally offensive. It is not, however, enough to externally injure that plaintiff's reputation as a publication sent to a plaintiff alone. A publication, in order to injure a plaintiff in defamation, needs to be published more broadly - ie, to reach third party recipients.
9. From a defamation injury and damages perspective there were only three external recipients of the fifth email, namely, Mr Beyer, the initiator of this chain, plus Mrs Orohoe and Mrs Ivankovich. They were all then persons sympathetically aligned with Mrs Aikman as disgruntled coowners over management related issues arising at Seashells Mandurah.
10. The propensity to injure character and reputation by this email communication (again, for the moment, assuming it is ultimately assessed as defamatory) to just three commonly aligned and disaffected Seashells Mandurah strata lot owners was also negligible on my assessment.
11. As mentioned, Mr Beyer initiated that email contact with Mrs Aikman. That had been after Mr Beyer's receipt of an email he received from Mr Rakich. The email from Mr Rakich had been, in effect, highly critical of strata lot owners sympathetic to Mrs Aikman's expressed management concerns over Seashells Mandurah, including Mrs Orohoe, Mrs Ivankovich and Mr Beyer himself.
12. Another key point to note about these two emails (the first and fifth publications), apart from a very limited scope of external recipients, manifests in the malice evaluation context. As has been said, Mrs Aikman's email was a swift response back to Mr Beyer's email, which she received about an hour earlier. It was not an email chain of communication that was initiated by Mrs Aikman. It was a relatively spontaneous reply in a temporal sense to Mr Beyer. Its overall spontaneously responsive character to Mr Beyer suggests against it being assessed as any sort of premeditated communication that was improperly conceived by Mrs Aikman for an alleged purpose of advancing her own collateral agenda of spreading reputational 'poison' as a form of retaliation, or to advance her own rival management business.
13. Moreover, by Mrs Aikman openly copying Mr Rakich into her email response to Mr Beyer, Mrs Aikman made him directly privy to what she said back to Mr Beyer. That is a feature of transparency in her response that is hard to reconcile with the communication supposedly being driven by her underlying malevolent intent towards Messrs King or Rakich.

1. Mrs Aikman sent what is the second email communication complained of to a real estate agent, Mr Di Prinzio, with whom she had had previous business dealings in Mandurah. She copied the email to his client, Mrs Lazarus. Mrs Aikman was aware that Mr Di Prinzio was an 'associate' of Mr King when she sent her email of 17 October 2014 to him.
2. At the time, Mrs Aikman managed Mrs Lazarus' strata lot at Seashells Mandurah through her rival management business. Mrs Lazarus at the time wished to sell her apartment. She engaged Mr Di Prinzio as her selling agent. Mrs Aikman was aware of these facts when she sent her 17 October 2014 email to them both.
3. To facilitate the marketing and the ultimate end sale of Mrs Lazarus' strata property at Seashells Mandurah, either Mr Di Prinzio or Mrs Lazarus had asked Mrs Aikman (whoever actually made the request to Mrs Aikman is ultimately immaterial) to provide Mr Di Prinzio with a copy of the minutes of Seashells Mandurah strata company's 2014 AGM. Mrs Aikman attempted to do that by emailing the 2014 AGM's minutes to Mr Di Prinzio under a covering email, all of which Mrs Lazarus was copied into.
4. Mrs Aikman wrote some comments in her covering email to Mr Di Prinzio about the content of the 2014 AGM's minutes. Her comments are complained of as being defamatory.
5. Again, the range of circulation of this publication from a possible damage to reputation perspective was confined to only two people. Mrs Lazarus, a wouldbe vendor whose strata lot property at Seashells Mandurah Mrs Aikman then managed, personally attended the 2014 AGM. Mrs Aikman commented on that fact in her email. Propensity for damage to the reputation of a plaintiff from the publication to Mrs Lazarus was, once again, always negligible.
6. The direct recipient, however, was Mr Di Prinzio. Mr Di Prinzio had a past business connection to Mr King, as Mrs Aikman had noted in her email.
7. So, from a malice allegation perspective against Mrs Aikman, this was hardly a covert communication to be kept from Mr King, if indeed the contents are ultimately assessed as defamatory against Mr King's reputation (which is denied).
8. Likewise, towards the evaluation of malice in Mrs Aikman as sender of this communication, the email ostensibly manifests as a legitimate dispatch of requested information (the minutes of the 2014 AGM) to the selling agent of Mrs Lazarus. The 2014 AGM's minutes for the strata company would be needed for, or at least reasonably required for, the sales agent to show to a prospective purchaser, in viably effecting an attempted sale of Mrs Lazarus' apartment.

The first, second and fifth publications: Limited damages

1. Possible damage to the plaintiffs' reputations from a very narrow and confined circulation of these email communications (ie, the first, second and fifth publications) is necessarily small. As a result, my consideration towards them should be proportionate, as regards underlying issues concerning (multiple) contended defamatory imputations that the plaintiffs argue arises from the publications.

The first publication: Mrs Aikman's email of 28 July 2014 to Mrs Orohoe (Schedule A) Preliminary observations

1. Before evaluating the pejorative imputations sought to be shown by the plaintiffs on a natural and ordinary meaning out of the words of this email (or alternatively, derived by reference to 'true innuendo' meanings perfecting an identification of Mr King as a subject of one or more of the same six imputations which are found at par 12 of the FASOC), I need to render some further preliminary observations concerning the publication.
2. First, as already noted, the email from Mrs Aikman was sent only to Mrs Orohoe. The limited recipient distribution to only one person, being, as well, a person with whom Mrs Aikman was sympathetically aligned over management grievances about Seashells Mandurah at the time (as another coowner at Seashells Mandurah) suggests the conclusion that the level of possible reputational damage that the plaintiffs might have sustained in consequence is negligible.
3. Second, it needs to be noted contextually, as regards this email, that the heading to this communication is 'Response to formal complaint SAT section 100 contempt'.
4. Mrs Aikman, as may be seen from the entire content of exhibit 2.179, TB page 860, was responding to a complaint by Mr Rakich to SAT. The complaint to SAT was over an asserted contempt of SAT's processes. That context bears upon considerations relating to a possible existence of a qualified privilege for this communication, either at common law or by statute. As mentioned, a well-known circumstance at common law where qualified privilege can be open to protect a communication is a situation of a reply to an attack against a defendant. Mr Rakich's correspondence of 16 July 2014 displays that he had been highly critical of Mrs Aikman's correspondence to SAT. He made a strong attack against her (see exhibit 2.179, TB pages 862 - 863) alleging contemptuous behaviour. On my assessment, Mr Rakich's complaint to SAT was petty and misplaced. There had been no 'contempt' of SAT as a tribunal, as he had alleged, by Mrs Aikman. That was a wholly misconceived allegation.
5. Third, as may be seen from Schedule A to these reasons, the 28 July 2014 correspondence expressly names Mr Rakich and AW Co so as to identify the first and third plaintiffs (see first full paragraph). Mr Rakich is referred to as the 'Strata Manager for Accommodation West'. Subsequent reference in par 2 to correspondence being 'distributed by the Strata Manager on behalf of AW and the Council of Owners' must be read as a reference, read in the overall context of that email, to Mr Rakich.
6. Fourth, Mr King is not expressly identified. The only basis for his identification (to Mrs Orohoe) would be under a true innuendo. The plaintiffs contend Mrs Orohoe (sole recipient of the email) would have known that Mr King was a member of the Council of Owners for Seashells Mandurah. That is because Mrs Orohoe and her husband owned lot 91 at Seashells Mandurah (par 3.3 and par 6 of the FASOC). (This matter is said to have been discussed at the strata company's AGMs held on 25 May 2013 and 4 June 2014, which Mrs Orohoe attended.)
7. Fifth, reference in the first email to the strata company's AGM (in the first paragraph of the email) as being held on 4 August 2014 is a demonstrable error. The email itself is dated 28 July 2014. It would hardly be making reference to correspondence distributed at a meeting not yet held. The correct date for the meeting of 4 June 2014 is later identified at the fourth paragraph of the email.
8. Sixth, par 1 of the email refers to attached correspondence written by Mr Rakich. Paragraph 6 of the email refers to attached copies of letters. The attachments are presumably the ensuing correspondence found in the balance of exhibit 2.179, TB pages 861 - 885. However, the contents of those attachments are not relied upon to establish the natural and ordinary meanings in this email that the plaintiffs contend arises and are defamatory of them.
9. Seventh, the words highlighted in bold at Schedule A are the words complained of under pars 11.1 to 11.3 of the FASOC. They specifically identify 'the Strata Manager' (par 2). In overall context, that must be taken to be a reference to Mr Rakich (and not to AW Co) engaging in an act of distribution of 'information' under correspondence as is referred to in par 1 and which Mr Rakich is there said to have 'written'.
10. In the circumstances, the words complained of, as extracted from the second and third paragraphs of this email, by my assessment, are directed at Mr Rakich and to noone else. Even if it was possible to identify Mr King by way of the alleged extrinsic (ownership) facts known to Mrs Orohoe, her knowledge would not assist in her reasonably apprehending that the content of the second and third paragraphs of the email are to be read (in their natural and ordinary meaning) as being directed at Mr King. Applying the required objective defamation legal standard of the ordinary reasonable reader, those words are seen to be directed only at the 'Strata Manager' which, in the context of this email, must mean Mr Rakich.
11. As regards the last line of the fourth paragraph of the email concerning a witnessing 'animosity from some owners and the Strata Company using their compulsory votes to overrule any objections', I do not assess that sentence as suggesting the strata company or its representatives (ie, AW Co, Messrs King or Rakich) were exhibiting animosity. The sentence, read reasonably and rationally, on my assessment, deals with two different matters. First, the demonstration of animosity by some owners. Second is the strata company's conduct by it using compulsory votes to overrule objections at the meeting.
12. I now turn to six distinct imputations sought to be derived from the words in bold identified in Schedule A.
13. I should note that there was no attempt made prior to the trial to strike out any of these imputations as embarrassing or as unarguable. Thus, my following evaluations of them are on a final basis - in terms of whether or not, on the balance of probabilities, they arise and, if they do arise, whether they are defamatory of the three plaintiffs.

Evaluation of the imputations in the first publication

1. The first publication, as I mentioned, can be found as Schedule A at the end of these reasons - with the words complained of within this publication (see FASOC par 11) highlighted in bold.
2. Most of the contended imputations, as formulated, present as unclear, compound or complex rolled up contentions. They frequently fail to capture the essence of a single 'defamatory sting'. Some are clearly untenable. As an example, imputation 12.3 (and its 13.3 true innuendo counterpart) clearly does not raise any matter that might arguably be said to be defamatory.
3. Imputation 12.6 (and 13.6) also can be seen to present as more of a prolix narrative ramble, rather than as crisply capturing a clear defamatory sting against the reputation or character of the plaintiff(s). Furthermore, it is obviously misconceived as the meeting at issue in the email is the strata company's 2014 AGM, not a meeting of AW Co. Paragraph 4 of the email refers to 'owners and the Strata Company' using their compulsory votes to overrule any objections. The use of compulsory votes referred to is conduct by the strata company for Seashells Mandurah, not the conduct of AW Co as this imputation wrongly suggests in its overall confusion.
4. By my assessment, the only contended imputations that warrant serious consideration are 12.1 as regards Mr Rakich only, and 12.4, which I elaborate upon in due course.
5. As a matter of convenience, given their magnitude, I shall set out all the imputations and the alternative true innuendo meanings in tabular form, working largely from the structure of the defendant's helpful closing written submissions. (At points I have added my discrete determinations or have made my own annotations in bold.)

Whether imputations conveyed and, if so, whether defamatory of each plaintiff

The plaintiffs and each of them, deliberately provided inaccurate information to proprietors of strata lots in Seashells Mandurah

Both Accommodation West (AW) and Mr Rakich are named (obviously a fact which applies to all imputations pleaded for MCO 1 and set out below).

Not conveyed - The words do not convey an intention to provide inaccurate information. It states that 'this information was not accurate and was ... ' etc in effect was designed [to] divert any reader of the letter from the real issue that the Strata Manager was continuing to deny access to the relevant requested documents concerning its financial management. There is a disjunct between the fact that it was not accurate and the purpose of the information.

Mr King is not named. As there is only one recipient, Mrs Orohoe, it is accepted by inference that she would know fact 3.3, that Mr King was on the [Council of Owners], but he was not an officer of AW and there is no extrinsic fact relied upon that Mr King either owned or controlled AW. He is neither identified nor defamed by this imputation.

Judge's determination: Mr King was in fact the sole director of AW Co since 19 May 1987. But the plaintiffs do not plead that as an extrinsic fact known to Mrs Orohoe in support of an innuendo based identification of him as regards this publication to only Mrs Orohoe: see FASOC par 13 Particulars of Knowledge and the company search of AW Co (exhibit 2.235, TB page 1177).

The provision of inaccurate information was done in order to cover up the fact that the plaintiffs, and each of them, would not allow an audit of the books and records of Seashells Mandurah

The imputation is vague and inexact and fails to capture any defamatory sting. The imputation also assumes deliberate provision of inaccurate information and then specifies the reason for it. Further it does not (if it has any real sting) differ in substance from 12.1.

The plaintiffs, and each of them, would not produce documents requested of them

This imputation fails to distil any defamatory sting. The defendant's opening submissions set out the test for what is defamatory ([12] to [13]) and in that sense (set out at Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 [36] - [40] their standing in the community would not be lowered by such a meaning. There could for example, be legitimate reasons for nonproduction.

The plaintiffs and each of them, had something to hide from proprietors of strata lots in Seashells Mandurah

The imputation is so vague and imprecise that it is difficult to discern any act or condition which is defamatory of the plaintiffs.

It does not make clear whether that 'something' is pejorative or simply private information not wished to be disseminated.

Again, properly distilled, it would not add anything to 12.2.

The plaintiffs, and each of them, conducted a general meeting for Seashells Mandurah with animosity

The email states that owners witnessed a lot of animosity from some owners and the strata company using their compulsory votes etc. In other words, there was animosity in the meeting from all sides and it was not therefore conducted by AW and Mr Rakich with animosity.

Also an allegation that a particular meeting was conducted with animosity without more (ie towards who and in what way) is not defamatory in the sense of lowering their reputation under general community standards - many company meetings are fiery for various commercial reasons.

Accommodation West used proxies given to it by the proprietors of strata lots who participated in the onsite letting pool for the purpose of overruling any objections of the proprietors at a general meeting for Seashells Mandurah

This imputation (natural and ordinary meaning) was withdrawn (see ts 45) and should have been deleted from the FASOC.

If now pressed again, it suffers from the problem of a company carrying out a physical act and secondly, the imputation fails to distil a defamatory act or condition of the plaintiffs. Use of majority votes or proxies may well be a legitimate action and this requires more to render it defamatory.

It appears from ts 45 that this is still pressed for the other two plaintiffs. Firstly, there is no extrinsic fact connecting Mr King with AW and the imputation at 13.6 still attributes the act to AW and not the [Council of Owners] or any other person.

As Mrs Orohoe knows the role of Mr Rakich, he is identified as synonymous with AW as strata manager and the submission for 12.6 above is repeated.

1. The multiple challenges raised against these imputations by the defendant's submissions seen above must, in the main, be accepted. Serious controversy is really confined to imputations 12.1 and 12.4 (and their counterparts) - and then, only as regards Mr Rakich.
2. I turn then to the first imputation, 12.1. I am assessing it particularly as regards Mr Rakich as the 'Strata Manager'.
3. The defendant's basal criticism, in the table above, is that a deliberate or intentional provision of inaccurate information (if that happened) is not established as a meaning.
4. At the end, this argument falls back to the third paragraph of the email. In particular, the phrase '[t]his information was not accurate and was designed to cover up the fact that they will not allow an audit of the books' falls into focus.
5. By my assessment, a fair reading of that sentence, applying the objective legal defamation standard, is that any 'design' was in a provision of information to achieve an objective of not allowing an audit, or of not producing documents. That is not the 12.1 (and 13.1) pleaded meaning. That objective was, I assess, where any intent was directed, not as contended towards showing the intention to deliberately provide information that was inaccurate - which is the imputation complained of under 12.1 (and 13.1).
6. In the end, I would accept the defendant's submission as to par 12.1 and 13.1. The pleaded imputation fails as it does not arise from the email.
7. I have already dealt with and dismissed imputations 12.3 and 12.6 (and their true innuendo counterparts 13.3 and 13.6).
8. As to imputation 12.2 (and 13.2) I accept the defendant's submission that it essentially replicates and therefore fails for the same reasons as imputation 12.5 (and 13.5) as regards 'animosity' from some owners at the 2014 AGM. I accept that this meaning does not arise as regards any plaintiff and, further, that such meaning, even if it did arise, would not be defamatory of anyone.
9. In relation to imputation 12.4 (and 13.4), the contended meaning of 'something to hide', on my assessment, does not arise here as a natural and ordinary meaning. True, there is reference in the email to inaccurate information 'designed to cover up the fact that they will not allow an audit of the books and will not produce the documents requested'. However, when those words are assessed overall by reference to the objective legal standard of an ordinary reasonable reader under defamation law, the email in context does not, I conclude, mean that Mr Rakich had 'something to hide'. The email, by using the phrase 'designed to cover up the fact', when fairly read, actually goes on to give an identified reason for the inaccurately provided information - namely, to not allow an audit of the books. That is something different.
10. The phrase 'something to hide' in terms of being classed as a defamatory meaning is itself problematic. In Fierravanti-Wells v Nationwide News Pty Ltd [2010] NSWSC 648, Simpson J (see [58] - [59]) allowed a similar imputation to stand against a strikeout application against the phrase. However, the imputation was 'the plaintiff refused to answer the Sunday Telegraph's questions about her overseas trip to Italy because she had something to hide' [57]. Thus, a subject matter for what was said to be hidden was identifiable - by reference to the identified subject matter, namely the overseas trip to Italy.
11. For the present case, a potential subject matter towards what is being hidden is left as a mystery by 12.4 (and 13.4). This is too vague and speculative. That being so, there is no basis established to argue that this imputation, even if it can be derived, is defamatory without a necessary clarification as to an underlying subject matter which is fatally absent.
12. There is, of course, a range of difference between wishing to keep legitimately confidential matters confidential, as opposed to seeking to cover up or to hide a fact or conduct that might, if revealed, then support a taint of illegality or unlawfulness. Without a greater semblance of direction as regards an underlying topic or subject matter that is said to have been covered up, imputation 12.4 (and 13.4) is not assessable as defamatory.
13. Therefore, none of the alleged defamatory imputations as regards the 28 July 2014 email have been established as regards Mr Rakich or, indeed, any other plaintiff. This aspect of the action as regards the first publication, therefore, falls at that early threshold.
14. But I next conclude as well, if necessary, that Mrs Aikman's email of 28 July 2014, bearing a heading 'Response to formal complaint SAT section 100 contempt', was sent to Mrs Orohoe on an occasion that was protected by a common law qualified privilege - as a reply to an attack.
15. Mrs Orohoe was one of the parties to SAT proceedings CC 565 of 2014 then being brought against AW Co. Therefore, Mrs Orohoe, a fellow strata lot owner at Seashells Mandurah, was a person well within the same 'community of interest' in receiving this communication from Mrs Aikman.
16. That is particularly so, given what I would assess as a severe attack over an alleged contempt of SAT that had been unfairly mounted by Mr Rakich against Mrs Aikman and, indeed, against Mrs Orohoe and Mrs Ivankovich. That attack is to be found in AW Co's letter to Senior Member Spillane of SAT of 16 July 2014: see exhibit 2.179, TB pages 862 - 863.
17. That letter by Mr Rakich on behalf of AW Co, directed a strong (but I would assess, wholly misconceived) attack at Mrs Aikman's correspondence. The letter asked SAT to exercise powers under s 100 for contempt, asserting a breach of the confidentiality provisions of s 62 of the SAT Act 2004 (WA). Mr Rakich had alleged that Mrs Aikman's correspondence was slanderous and defamatory towards himself and AW Co. He accused her of misleading and deceptive conduct in her dealings with SAT and others.
18. Mr Rakich concluded on behalf of AW Co to SAT:

It is our view that given the seriousness of what the Orohoes, Ms Ivankovich and Ms Aikman are now doing, that SAT should dismiss the above Application and further the SAT should take action against the Applicants for contempt, due to their substantial breach of confidentiality.

1. By my assessment, there was a clear reciprocity or a community of interest in Mrs Orohoe receiving the information she did from Mrs Aikman under the first email communication, applying the principles discussed in Papaconstuntinos at [38].
2. In the circumstances, it is not necessary to go on to also resolve whether Mrs Aikman's conduct in publishing that email to Mrs Orohoe was reasonable in all the circumstances for the purposes of statutory qualified privilege protection under s 30(1)(c) of the Defamation Act . If it was necessary, I would assess that brief communication to Mrs Orohoe as reasonable, given the nature of the strong attack made against her by Mr Rakich and AW Co as regards a contempt of SAT.
3. The only residual question is whether an occasion of qualified privilege, which I find would be applicable and is made out, is negated by reason of a finding of malice in Mrs Aikman at the time she sent the email to Mrs Orohoe. As I explain later in these reasons when I render my findings on malice generally, I do not reach that conclusion for this email.
4. Consequently, the plaintiffs' action grounded upon the first email publication of 28 July 2014 fails completely.

The second publication: Mrs Aikman's email of 17 October 2014 at 9.26 am to Mr Di Prinzio copied to Mrs Lazarus (Schedule B) Preliminary observations

1. As seen from Schedule B (first paragraph) this communication by Mrs Aikman enclosed the 'last minutes' electronically for Mr Di Prinzio.
2. At trial, it was accepted that this was a reference to the 2014 AGM's minutes found under exhibit 2.177, TB pages 847 - 857, being 'Minutes of the 9th annual general meeting of Owners of Strata Plan 48817, 16 Dolphin Drive, Mandurah, held in the White Room, Wembley Hotel and Cambridge Conference Centre ... on Wednesday, 4 June 2014 at 6.00 pm'.
3. The second line of Mrs Aikman's email at 9.26 am said as a comment on these minutes 'they are not great to show a perspective [sic] investor'. Obviously, the sentence should be read as 'prospective' investor.
4. It is also accepted that Mrs Lazarus was at the time a client of Mrs Aikman. She used Mrs Aikman's rival management service for her apartment at Seashells Mandurah. Mrs Lazarus was seeking to sell her strata lot at this time. To that end, she was using Mr Di Prinzio's sales agency services. This was all accepted at trial.
5. Likewise, Mr Di Prinzio's position as a licensed real estate agent in the Mandurah area is also admitted.
6. The FASOC pleads at par 8.2 that Mr Di Prinzio had (obviously earlier in time) been appointed by Comet Bay as one of three exclusive agents to sell strata lots in Seashells Mandurah when it was being developed. That averment is not admitted by Mrs Aikman's defence, although that non-admission is on the basis of her asserted lack of knowledge of that fact. I would find there is no reason to doubt the factual correctness of the plaintiffs' as regards Mr Di Prinzio's prior working relationship with Comet Bay - and thereby with Comet Bay's management, including Mr King. That earlier business connection between Mr King and Mr Di Prinzio would seem to align with the penultimate paragraph of Mrs Aikman's email, which states:

I realise you have been an associate with Paul King and he would have a different story.

1. On another ancillary matter, Mrs Aikman sent a subsequent email to Mr Di Prinzio at 6.16 pm on the same day, reading '[m]inutes attached Jules'. It appears that the 2014 AGM's minutes were omitted under Mrs Aikman's first communication at 9.26 am and was later attended to by her at 6.16 pm.

Evaluation of imputations in the second publication

1. The plaintiffs, under par 15 of the FASOC, identify the specific words complained of as being defamatory of each of them from this email. Again for convenience I have highlighted them in bold in Schedule B.
2. Six tranches of words are identified under pars 15.1 - 15.6.
3. I repeat that there were only ever two recipients of this email, namely, Mr Di Prinzio and Mrs Lazarus. Therefore, from a possible damages perspective, the very narrow recipient distribution of the second email (double the publication range of the first email which was sent to Mrs Orohoe only) means that any possible reputational damage is necessarily limited in any event.
4. As with the first email, Mrs Lazarus was aligned as an owner at Seashells Mandurah with Mrs Aikman, in terms of Mrs Aikman's business management of Mrs Lazarus' strata lot (FASOC pars 5.2 and 7).
5. According to the 2014 AGM's minutes, Mrs Lazarus and her husband had personally attended the AGM referred to in this email (see exhibit 2.177, TB page 849 under 'Preliminary Matters In Attendance Owners' for lot 102) to see and hear for themselves what was said and done there. What Mrs Aikman said in her email to Mr Di Prinzio (who was not in attendance) about the AGM has that context of his clients, Mr and Mrs Lazarus, having some potential direct knowledge from their attendances.
6. Again it is convenient to set out the imputations contended by the plaintiffs and the defendant's submissions in the tabular format prepared by the defendant. On this occasion, however, I will render my determinations after the tabulated information.
7. There are 10 natural and ordinary meanings contended for by FASOC par 16. That number is doubled when the alternative true innuendo meanings as to plaintiff identification under par 17 are taken account of. Those 20 meanings need to be assessed for each of the three plaintiffs. This is well 'over the top' and oppressively prolix towards what was just a short email.
8. The same meanings are contended for alternatively under par 17 on the basis of particulars of knowledge of identification at par 17A - F, as regards asserted knowledge held by Mrs Lazarus and Mr Di Prinzio at the time.
9. As regards the objects of the email itself, it is to be noted that AW Co, Messrs King and Rakich are all expressly identified by name within this email.
10. As one further general observation, it will be seen that the contended imputations assembled below are again, generally speaking, overlapping in concept, prolix and very poorly formulated. Most of the criticisms rendered of them by the defendant's submissions must be accepted.
11. At the end, I find myself chiefly concerned with evaluating contended imputations 16.7, 16.8 and 16.9 as regards AW Co and then imputation 16.10 as regards Mr King.

Whether imputations conveyed and, if so, whether defamatory of each plaintiff

Accommodation West had refused to provide copies of accounts for Seashells Mandurah to the owners of strata lots in Seashells Mandurah

All three plaintiffs are named in this email but the meanings/imputations must still be 'of and concerning' each and also convey a sting about each individual plaintiff as well as the company.

So far as AW is concerned, this was conceded as not being able to be made out (ts 48) (as it attributes a physical act to a company).

Firstly, there is no extrinsic fact connecting Mr King with AW and the imputation at 17.1 is about AW. So far as Mr Rakich is concerned, there is an accepted inference that both recipients know of his position with AW.

The imputation fails to distil any defamatory act or condition - for example that AW was in breach of its statutory or contractual obligation as strata manager by its refusal. There may have been legitimate reasons for refusal, but the fact alone of refusal does not distil a defamatory imputation without more.

The State Administrative Tribunal had ordered that owners of strata lots in Seashells Mandurah could have a forensic accountant inspect financial documents for Seashells Mandurah

At ts 48 Mr Williams stated that 16.2 is now a narrative for 16.3, but it remains unamended, so if still relied upon as a stand-alone meaning, then the imputation fails to distil any defamatory act or condition concerning any of the plaintiffs and simply recites the fact that the SAT made an order.

The SAT had made such orders despite opposition by Mr King and Mr Rakich over a period of 12 months

Assuming 16.2 as narrative for 16.3 as stated above, then the imputation fails to distil any defamatory act or condition of any of the plaintiffs. The fact that Mr King and Mr Rakich opposed court proceedings is not a fact which is defamatory of either of them, it is common to every contested trial.

Acting properly, Accommodation West ought to have provided proprietors of strata lots in Seashells Mandurah with the accounts and documents sought

The imputation fails to distil any defamatory act or condition but only states what the pleader says Accommodation West ought to have done. It does not for example state that AW (or other plaintiff) was in breach of any statutory provision or other pejorative sting.

Firstly, there is no extrinsic fact connecting Mr King with AW and the imputation at 17.4 is about AW. So far as Mr Rakich is concerned, there is an accepted inference that both recipients know of his position with AW and the submission at 16.4 is repeated.

Acting properly, Mr King and Mr Rakich ought not to have opposed the application made to SAT

So far as Mr King and Mr Rakich are concerned, the imputation fails to distil any defamatory act or condition and only states what the pleader says Mr King and Mr Rakich ought to have done. The words complained of do not convey such a meaning in any event it simply says their pleas were overruled.

The submission in 16.5 is repeated - both Mr King and Mr Rakich are named in the email in any event and the imputation does not refer to AW.

The plaintiffs had something to hide from the proprietors of strata lots in Seashells Mandurah

The imputation is so vague and imprecise that it is difficult to see what act or condition (which is defamatory of the plaintiffs) is distilled from this imputation. Having 'something to hide' without more is so vague that it does not rise to a meaning where these plaintiffs are defamed when applying general community standards as per Chesterton.

Accommodation West had been dismissed as strata manager for Seashells Scarborough and Seashells Yallingup

The imputation fails to distil a defamatory act or condition attributed to AW, only that it was dismissed as strata manager without any description of whether this was for a pejorative reasons or whether for example their terms were not competitive or their contract had expired (ie a non-pejorative reason).

Firstly, there is no extrinsic fact connecting Mr King with AW and the imputation at 17.7 is about AW.

So far as Mr Rakich is concerned, the extrinsic fact at 4.1 is limited to his role at Seashells Mandurah and there is no extrinsic fact linking him with the operations of AW at either Seashells Scarborough or Seashells Yallingup. To the extent that the plaintiffs have recently added additional words to paragraph 4.1 in the FASOC when amending on the issue of adding identification facts, these words do not state that Mr Rakich performed the functions of strata manager at Seashells Scarborough or Seashells Yallingup nor is that an admitted fact in the defence. Nor is there any evidence of any such knowledge on the part of either recipient.

Otherwise the same submission for 16.7 is repeated.

There had been some incompetence or other impropriety in the management of Seashells Yallingup by Accommodation West

Firstly, (at ts 59) Mr Williams agreed to delete the last three words 'by Accommodation West' as the imputation describes physical actions or events. However, these words remain in the FASOC so it is assumed they should be deleted.

Although both Mr King and Mr Rakich are named in the email, it states that AW was sacked and there are now issues with Yallingup onsite management. On a natural and ordinary meaning, it is neither defamatory of Mr King or Mr Rakich.

The words used are 'I believe there are now issues with Seashells Yallingup on-site management'. This was after the termination of AW as strata manager and refers to a different entity who is on site therefore these words do not convey an imputation of incompetence of AW as strata manager.

The submission at 17.7 above is repeated - there is no extrinsic fact linking Mr King to AW and no fact (or evidence of knowledge) linking Mr Rakich with Yallingup.

Accommodation West was not fit to be a strata manager

At ts 59 Mr Williams conceded that this imputation had to go, (linking a personal quality with a company) yet it remains in the FASOC. It is assumed that it is withdrawn.

If not, then the imputation is imprecise in that it provides no explanatory reason why the statement of unfitness is made. The words in the email provide facts concerning the conduct of Accommodation West and this is not a situation where the words do not permit any further clarification of the imputation (as was the example in Drummoyne v ABC (1990) 21 NSWLR 135 at 137 where Gleeson CJ stated that a sign stating that 'X is disgusting' could only give rise to that simple imputation as there was no more detail available.

Firstly, there is no extrinsic fact connecting Mr King with AW and the imputation at 17.9 is about AW (not Mr King personally).

Secondly so far as Mr Rakich is concerned, the references to Yallingup and Scarborough do not include Mr Rakich for the reasons set out above. The only other possible pejorative reference is the overruling of Mr Rakich's pleas by SAT for the provision of financial information but cannot convey an imputation of being unfit.

Mr King could not be relied upon to give an accurate account of the affairs of Seashells Mandurah

Firstly, the imputation distils no defamatory act or condition of Mr King. Not being relied upon to give an accurate account of the affairs of the company is not defamatory of Mr King in accordance with the application of general community standards.

Secondly, it is not conveyed by the words. At ts 61 Mr Williams placed reliance on the word 'However' in the final paragraph, to convert the penultimate paragraph into a pejorative meaning. In fact the last paragraph is no more than saying that Mr Di Prinzio might want to get an objective opinion from someone else ie Mrs Lazarus who was at the last meeting.

The imputation is only about Mr King (who is also expressly named) so cannot be about AW or Mr Rakich.

Concluding determinations on the second publication

1. As regards imputation 16.1 (and its true innuendo counterpart 17.1), the plaintiffs' concession at trial that this cannot be made out as against AW Co was rightly made.
2. The sixth paragraph of the email commences 'Seashells Mandurah have refused to give any copies of the Strata accounts which we needed'. Nothing suggests that reference to Seashells Mandurah could or should be understood under the natural and ordinary meaning of those words as being a reference to AW Co. Quite the contrary.
3. Moreover, this imputation, if it can be derived against AW Co, is not defamatory. Refusal to provide copies of accounts to owners would only be defamatory if it were established as being known that there was some legal obligation bearing upon AW Co to actually provide copies of accounts. The refusal of a request for a copy of accounts is neither here nor there - as regards establishing some genre of act or condition that could bear adversely against the character or reputation of one or more of the plaintiffs from a defamation perspective. That necessary ingredient is terminally lacking here.
4. Likewise, the largely narrative nature of the contended imputation under par 16.2, concerning what SAT had ordered is neither here nor there, as regards displaying some sort of permissible defamatory imputation vis-à-vis any of the plaintiffs.
5. Imputation 16.3 is likewise bad. It does not convey a defamatory imputation merely by reason of the SAT orders made over the opposition of Messrs King or Rakich. Courts and tribunals routinely issue orders against opposing parties, even parties who have been entrenched in their opposition for some time. Nothing arguably defamatory is seen to be established.
6. A similar deficiency taints imputation 16.4, as regards AW Co. A murky and obscure preface, namely 'acting properly', only serves to confuse. The same observation is applicable as regards imputation 16.5.
7. Likewise, the contended imputation concerning 'something to hide' under par 16.6 is unacceptably vague and imprecise. It suffers the same fate as the attempted imputation in the first email publication, which was equally unsustainable.
8. The preceding imputations and their par 17 true innuendo counterparts all fail at the outset.
9. Imputation 16.7 requires deeper consideration. It appears to be tied to the fifth paragraph of the email, that reads:

Accom West have been sacked as Strata Managers for Seashells Scarborough years ago and recently Seashells in Yallingup. I believe there are now issues with Seashells Yallingup onsite management.

1. Imputation 16.7 looks to focus on the word 'sacked' (as regards Seashells Scarborough) and then to build upon it and convert it to:

Accommodation West had been dismissed as strata manager for Seashells Scarborough and Seashells Yallingup.

1. As the defendant correctly submits, imputation 16.7 fails to distil a defamatory act or condition vis-à-vis AW Co. It is one thing to be sacked for, say, dishonesty, incompetence, or for some other potentially pejorative conduct. However, an event of a mere dismissal of AW Co with no stated basis for that event goes nowhere in terms of establishing without more, some pejorative imputation or sting against AW Co or anyone. That conclusion follows as regards all plaintiffs.
2. Next, imputation 16.8, by my assessment, also looks to be built around the word 'sacked', as regards AW Co in its capacity as strata manager of Seashells Scarborough (years ago) and more recently of Seashells Yallingup.
3. The question arising is whether the word 'sacked' is enough to suggest incompetence 'or other impropriety in the management of Seashells Yallingup' when applying the objective legal test in defamation law of an ordinary reasonable reader who is not avid for scandal.
4. The phrase 'or other impropriety', by my assessment, is unacceptably imprecise, vague and speculative as well.
5. The contention of 'incompetence', on my assessment, is also speculative and problematic for an ordinary reasonable reader. There is simply nothing in the email to elaborate in context upon the word 'sacked' - which sits alone and without any reference to 'incompetence' or 'impropriety'. This is not a situation of 'smoke' suggesting a 'fire', to invoke the words of Lord Devlin from Lewis v Daily Telegraph [1964] AC 234. Rather, it is a case of no smoke at all, only a dim haze on the distant horizon that could be anything like fog or vapour.
6. I am prepared to accept that this terminology used vis-à-vis AW Co is arguably pejorative. But I am not satisfied on a final basis that it can convey to the ordinary reasonable reader any underlying sentiment as to incompetence or impropriety of AW Co. It would be wholly speculative to take that next step. AW Co might, for instance, have been contractually terminated or sacked, hypothetically, for multiple possible reasons, including economic reasons - eg, a failure to turn a sufficient profit or merely terminated on notice without cause. Knowing the underlying facts is pivotal to making any assessment about AW Co's so called 'sacking'. Using the word 'sacking' by itself is not enough.
7. In the end, I must also accept the defendant's submission that reference to issues with Seashells Yallingup's onsite management, chronologically speaking, should fairly be assessed as a remark directed to a time period that is after a sacking event for AW Co at Scarborough, as stated in the preceding sentence. The terminology used, namely 'onsite', is also significant to a rejection of this imputation, as the defendant submits.
8. I pass over imputation 16.9 for the moment.
9. Imputation 16.10 as formulated concerns only Mr King as regards 'an accurate account of the affairs of Seashells Mandurah'. This contended imputation appears to be tied in its attempted derivation to the last two paragraphs of the email.
10. I must also reject this imputation as untenable on the natural and ordinary meaning of the email and, in particular, the last two paragraphs, to an ordinary reasonable reader when read in the overall context of the email. As I assess the last two paragraphs, Mrs Aikman is making a point to Mr Di Prinzio that she recognises that he had a past association with Mr King (which appears to be correct vis-à-vis the Comet Bay association plea in the FASOC). She then points out in her last paragraph that Mr Di Prinzio's current client, Mrs Lazarus, attended the last (2014) AGM and so could reliably be in a position to inform and discuss with Mr Di Prinzio what had happened there. This is a communication made in the context of Mrs Aikman's (attempted) provision of the 2014 AGM's minutes, which she observed were, in her view, 'not great to show to a perspective [sic] investor'.
11. In the overall context, the ordinary reasonable reader would not read this email as suggesting pejoratively that Mr King could not be relied upon to give an accurate account of what happened - assuming the imputation were redirected at the goingson at the strata company's AGM, rather than the 'affairs of Seashells Mandurah', which is an unacceptable conflation of entities.
12. The last two paragraphs of the email should be read more benignly, in my view, on a basis that Mrs Aikman was merely accepting the obvious - namely, that there could be different perspectives towards the matters minuted at the 2014 AGM - at which meeting both Mrs Lazarus and Mr King were attendees (see exhibit 2.177, TB page 849).
13. The evaluation to date leaves only imputation 16.9 as a surviving potential defamatory imputation out of the second email, to the effect that 'Accommodation West was not fit to be a strata manager'. The defendant submits that there had been a concession that this imputation was to be excised. But my understanding of the passage referred to (ts 59) is that that remark was made by counsel for the plaintiffs in the context of what was some early uncertainty at the commencement of the trial over whether or not the plaintiff corporation, AW Co, could qualify as an excluded corporation under the Defamation Act in order to sue.
14. As I have now determined, AW Co is an excluded corporation under s 9(2)(6) of the Defamation Act and, therefore, can legitimately bring this defamation action. Consequently, I do not assess the plaintiffs' counsel, Mr Williams, to have abandoned imputation 16.9 - as regards AW Co not being fit to be a strata manager.
15. The defendant's written submissions challenge this imputation as imprecise, referring to Drummoyne Municipal Council (137). In the end, however, I do not accept that submission. By my assessment, the word 'sacked' as regards AW Co in its capacity as strata manager for Seashells Scarborough and Seashells Yallingup can convey something pejorative to an ordinary reasonable reader, applying the defamation standard. The actual nature of the slight to AW Co is not elaborated upon beyond what is pejoratively conveyed from the use of the word 'sacked'. Hence, this defamatory imputation, as is proved, is not severe, as regards AW Co. However, I am persuaded then that the email does carry the meaning, in light of AW Co's double 'sacking', first at Seashells Scarborough some years ago and then, more recently, at Seashells Yallingup, that the dual terminations as strata manager (sackings) were both noteworthy and presumably would be justifiable by the terminating party, once all underlying facts were known.
16. This email, on my assessment, does convey that one defamatory imputation - that AW Co was not fit to be a strata manager because that is why AW Co had been sacked twice, first at Seashells Scarborough and more recently at Seashells Yallingup.
17. Consequently, I find imputation 16.9 established as regards AW Co. But given the scant publication range of the email to just two recipients (one of whom, Mrs Lazarus, was already sympathetically aligned with Mrs Aikman) and so, its low level of adverse reputational impact, I would struggle to award more than a nominal amount of damages of, say, $100 to AW Co - essentially on the basis of the publication to Mr Di Prinzio.
18. The next question then is whether imputation 16.9, which I have now found to be defamatory of AW Co (albeit not, I would find, of Mr King or of Mr Rakich), is protected by there arising, at the time, an occasion of common law qualified privilege for Mrs Aikman.
19. By my assessment, it is so protected, given that the occasion was an attempted provision of the requested strata company's 2014 AGM's minutes by email.
20. The context was the attempted sale of Mrs Lazarus' strata lot and, therefore, it was legitimate for Mrs Aikman to provide a copy of the minutes, after they were requested either by Mr Di Prinzio or by Mrs Lazarus. Mrs Aikman added some comments in her covering email. That is the problem. But in the end, only imputation 16.9, as regards AW Co, has been established as arising and as being defamatory of AW Co.
21. I would, in the circumstances, assess there to be a reciprocity of interest here and a community of interest in this communication, as between Mrs Aikman and the two recipients of this email, particularly with Mr Di Prinzio, given his sales task which Mrs Lazarus had entrusted him with and his need for the 2014 AGM's minutes as a part of processing that task for Mrs Lazarus.
22. I find, therefore, that Mrs Aikman has defamed AW Co by a sole imputation 16.9 arising chiefly out of her use of the word 'sacked' vis-à-vis AW Co and linked to Seashells Scarborough and Seashells Yallingup.
23. But in the end, on my assessment, this email communication to only two persons, defamatory as it was in that one respect as against AW Co, is also to be assessed as being protected by an occasion of common law qualified privilege, given the community of interest arising as between the sender and the recipients at the time.
24. Given that assessment, it is not necessary to discuss statutory qualified privilege.
25. The residual question then is whether or not the common law qualified privilege that subsists to otherwise protect this email communication has been lost by the establishment of malice in Mrs Aikman against AW Co at this time. In the end, I would not find that proved for the reasons which I will explain later in these reasons in dealing with the malice attacks put against Mrs Aikman.
26. I will next proceed, somewhat out of chronological order, to address the fourth publication complained of, before the third publication. The fourth publication is the Coombs Report. It was attached to the third publication, being Mrs Aikman's 2 April 2015 email which she sent to about 20 people. The content of Mrs Aikman's subsequent in time email of 2 April 2015 in referring to the Coombs Report should hopefully be easier to follow if I address the implications of that report beforehand.

The fourth publication: The Coombs Report attachment sent by Mrs Aikman (Schedule D) General observations

1. The plaintiffs, in effect, complain that Ms Aikman personally republished the Coombs Report as a defamatory publication when she sent the report to the persons that she emailed it to on 2 April 2015.
2. Some preliminary observations need to be made about the two documents. The first arises from the pleadings. The FASOC at par 23 shows that not all the words of the Coombs Report are complained of as being defamatory. The FASOC oppressively identifies 50 discrete sections of quoted subparagraphs from the Coombs Report being the actual words complained of as defamatory. I have highlighted these 50 subparagraph extracts within the Coombs Report complained about in bold within Schedule D as a whole.
3. Next it may be seen that par 24 of the FASOC complains that the chosen words from the Coombs Report are alleged (after amendments) to contain 19 defamatory imputations a good number of which are attributed only to AW Co: see for instance pars 24.4, 24.5 and 24.12 - 24.19. Some meanings are said to be imputations against Mr King only: see for instance pars 24.6 24.10.
4. None of the remaining 19 natural and ordinary meanings under FASOC par 24 imputations appear to be complained of by Mr Rakich, other than by global imputation 24.2 - which, in wholly misconceived fashion, needs to be read (so it is put) with the rambling narratives seen under imputations 24.3.1, 24.3.2 and 24.3.4.
5. Paragraph 25.2 of the FASOC, as regards the Coombs Report, is unique as the sole remaining true innuendo plea (following the amendment deletion to par 25 allowed by me on 25 November 2016). It invokes the limited extrinsic facts alleged under FASOC par 4.1 to support this meaning in the alternative towards the identification of Mr Rakich.
6. Paragraph 25.2 relies upon these extrinsic facts (pleaded in par 4.1 of the FASOC). The extrinsic facts alleged are that Mr Rakich at all material times was

4.1 employed by Accommodation West to act as the strata manager for Seashells Mandurah, and the natural person who performed the functions of the strata manager.

1. Additional particulars to support par 25.2 under a heading 'Particulars of Knowledge' contend at the end of par 25 in these terms:

The recipients of the Coombs Report were the proprietors of strata lots in Seashells Mandurah (or the natural person(s) who control corporations which were proprietors), and their knowledge of the facts pleaded in subparagraph 4.1 above can be inferred from the receipt of correspondence on Accommodation West letterhead and signed by Mr Rakich as strata manager, including letters dated 30 July 2014.

1. Paragraph 25.2 of the FASOC (the only surviving true innuendo plea as to identification) therefore appears to be directed at establishing that one of the 19 natural meanings under FASOC par 24 can be found as a true innuendo as regards Mr Rakich, by reason of the asserted knowledge of his employment with AW Co.
2. Beyond that, however, there are no further pleas by way of an alleged identification of extra fact based innuendo contended above and beyond the 19 surviving natural and ordinary meanings under FASOC par 24.
3. In attempting to evaluate whether the natural and ordinary meanings contended for can be extracted from the Coombs Report, there is no further assistance to be obtained from FASOC par 24, as regards where that meaning might be assisted in its derivations within the full content of a long document (Schedule D). That was always something of a problem.
4. To that derivation end, the plaintiffs provided at the trial an aide memoire document concerning FASOC pars 23 and 24. This document seeks to link the par 23 extracts to the par 24 meanings, as contended for. However, the consequence was to render what is an oppressive and tedious task yet more difficult.
5. Under the leave to amend the FASOC, which I granted on day three of the trial (25 November 2016), the initial par 25.1 imputation on behalf of all plaintiffs was abandoned. This was an imputation that 'the plaintiffs deliberately withheld some of the documents production of which was required pursuant to orders made by the SAT'. Likewise, a former plea under FASOC par 24.3.3 was abandoned. So too were attempts to prove identification by facts as true innuendo meanings in respect of all of the par 25 imputations, save only for imputation 25.2.
6. In short, there are 19 live natural and ordinary meaning imputations which are pressed under pars 24.2 through 24.20 plus the one true innuendo identification plea concerning only Mr Rakich, under par 25.2 (which mirrors imputation 24.2).

1. In terms of the Coombs Report itself (Schedule D), I can render the following preliminary observations.
2. First, the tone of its content would present to the ordinary reasonable reader (who is not avid for scandal) as being provisional, not final in its conclusions. See, for instance, exhibit 2.194, TB page 940:

As stated in the report, we reserve the right to amend this report upon the receipt of additional information. Due to restricted documentation we were able to review, our inferences and conclusions may be altered if, in the future, additional information is presented to us that contradicts our findings.

We reserve the right to amend this report upon the receipt of additional information.

1.2 Purpose and Scope of Review

The purpose of the review was to inspect, analyse and report on the documentation listed in the submission filed 20 August 2014 ('the relevant documentation') ...

As this review was limited to the relevant documentation we were not able to review the whole general ledger and details of all transactions. Consequently we did not have enough information to address all of the concerns and report thereon.

We have relied on the information and explanations provided to us by the Applicants and by Accommodation West staff and have not verified the reliability of the information, however we have not become aware of any reason not to accept the information as being reliable and truthful.

3.0 Conclusions and Recommendations

3.1 Conflict of Interest

The fact that related companies are responsible for custodial, purchasing and management decisions (Accommodation West) and for the recording and accounting of transactions (SHG) creates an appearance of subjectivity. An annual independent audit, albeit at considerable expense, would provide some comfort to owners that transactions are accurate and valid.

3.5 Voting Proxies affected Minority Owners Rights.

Some owners of the strata company are concerned that under the Management Rights Agreement they entered into with Accommodation West they are required by clause 8 to vote in accordance with Accommodation West on all issues apart from the raising of special levies and increases in the reserve funds. Furthermore, they must appoint Accommodation West as their proxy and are precluded from Owner's Income in the absence of a valid proxy.

This has resulted in Accommodation West having ultimate control of the voting power at the strata company meetings, determining matters and transactions in which they, in one of their roles, have a direct and/or beneficial interest. We recommend the relevant owners seek legal advice about their concerns and whether section 39A of the STA (Strata Titles Act) is applicable if the Management Rights Agreement is determined to be unfair to some of the owners.

1. An objective and non-legalistic reading of the Coombs Report, taking some account of the passages which I have just set out, would necessarily lead to a view that Ms Coombs had reached some provisional conclusions predicated upon the documentation she obtained for the strata company that was limited to the financial years ending 2011, 2012 and 2013. These were the documents that were produced for inspection following consent orders in SAT allowing an inspection of documents and, thereby, ending those SAT proceedings.
2. Second, it is also clear from the content of the Coombs Report that it is heavily linked in consequence to what is said to be SAT's orders of 26 August 2014. See, for instance, exhibit 2.194, TB page 940:

Strata Plan 48817 Review and Analysis of Financial Records under State Administrative Tribunal Order 26 August 2014 March 2011 and March 2013.

By order of the State Administrative Tribunal (SAT) on 26 August 2014 the Applicants were allowed, together with a practising accountant, to access and inspect all of the documents referred to in their submission filed 20 August 2014, but limited to the financial years ended 2011 to 2013, held at the offices of Accommodation West in Jolimont Western Australia.

The SAT order stated that the Applicants were to instruct the appointed accountant to prepare a report setting out their findings and the basis thereof, in relation to the inspection of such documents, and that the report be provided to The Owners of 16 Dolphin Drive, Mandurah SP 48817, within seven days of receiving it.

The applicants provided us with the SAT pamphlet:

'A guide for experts giving evidence in the State Administrative Tribunal and a copy of the orders made by the Tribunal dated 26 August 2014. We have acknowledge [sic] that our paramount duty is to the Tribunal and not to the Applicants and that we have reported on an impartial basis.'

1. Chronologically, there was a hiatus between the emergence of the Coombs Report on 24 March 2015 and SAT's earlier orders of 26 August 2014 to which it refers (almost seven months). That interval can be explained in Mr Rakich's memorandum prepared on AW Co's letterhead of 11 March 2015, concerning events following Senior Sessional Member Raymond's orders of 27 August 2014 in SAT matter CC 565 of 2014 (see exhibit 2.193, TB page 937). The transcript for the SAT proceedings before Senior Sessional Member Raymond may be found at exhibit 2.186, TB page 901 and Senior Sessional Member Raymond's orders at exhibit 2.187, TB page 917. Paragraph 3 of those orders shows that by consent and by way of final order in those SAT proceedings, orders 3a(i), 3a(ii) and 3b were issued, thereby putting an end to those proceedings.
2. Order 3a(ii) provided for an accountant's report, following inspection of documents, to be provided to the SAT respondent (being the strata company, ie, the Owners of Strata Plan 48817) within seven days of the report being provided to the applicants. There is nothing in the SAT orders about the accountant's report being kept confidential. Nor is there anything as to the accountant's report not being circulated to anyone else beyond the three named applicants in those SAT proceedings (namely, Mr and Mrs Orohoe and Mrs Ivankovich).
3. None of that context bears upon ascertaining the natural and ordinary meanings of words within the Coombs Report itself. But the subsequent evaluation of the qualified privilege issues and a possible loss, by malice in Mrs Aikman being proven, requires the wider evaluation of all relevant underlying facts and circumstances. It is convenient to deal with such matters chronologically.
4. Thirdly, the terms of the Coombs Report itself do make reference to it being 'strictly confidential'. See Schedule D (exhibit 2.194 TB page 940):

The report is strictly confidential and may not be circulated without our written consent.

This report is for discussion purposes only, may only be used by yourselves and your legal representatives in the disciplinary or criminal action against the persons implicated therein and may not be used or distributed for any other purpose without prior written consent from us.

1. But the nature of any confidentiality regime attaching to the Coombs Report once it was provided by Ms Coombs to Mr and Mrs Orohoe and Mrs Ivankovich, was essentially a contractual matter, arising purely as between those recipients and Ms Coombs. Mr King, Mr Rakich and AW Co were not privy to those contractual arrangements. Any contractual confidentiality attaching to the Coombs Report once prepared and published to Mrs Orohoe did not arise in consequence of any order or requirement by SAT. It arose contractually.
2. Next, as is apparent from Schedule D, the Coombs Report is dated 24 March 2015. It is seen to be addressed to Mrs L and Mr J Orohoe and to Ms S Ivankovich.
3. It is finally possible to turn to the 19 alleged imputations complained about under par 24 and the one true innuendo plea under par 25.2.
4. Again, purely for convenience, I use the tabular format I have extracted from the defendant's closing submissions. On this occasion, I have inserted more observations of my own along the way in bold typeface, using the aide memoire of the plaintiffs to identify precise paragraphs which came to be more specifically identified by the plaintiffs towards supporting each of their contended imputations as regards Mrs Aikman's alleged defamatory republication of the Coombs Report. Ms Coombs herself is not pursued in defamation by the plaintiffs.

Evaluations of imputations in the fourth publication

1. Within the table below I address severally the surviving 19 natural and ordinary meaning imputations and the one identification plea under par 25.2 by extrinsic fact meaning.

Whether imputations conveyed and, if so, whether defamatory of each plaintiff

Each of the plaintiffs acts and the roles pleaded in paragraphs 2 to 4 above despite having conflicts of interest

Crossreferencing an imputation with wording external to the publication itself renders the imputation highly imprecise and confusing. The matters in paras 2 - 4 of the FASOC are not words which appear in the Coombs Report in those terms and cannot therefore convey this meaning/imputation in a natural and ordinary reading of it.

The report itself is clear and specific in its wording concerning the role of AW - at section 1.1 where the conflict is the three roles undertaken by AW pursuant to the three agreements and in its conclusion at 3.1 as to the opinion that there exists a conflict of interest by the various roles undertaken by AW.

The report neither describes nor alleges any conflict of interest in relation to Mr Rakich (there is only one mention of his name in what appears to be an addition by Mrs Orohoe to the report at section 2.3 (levies)).

At 2.6 it states that Mr King signed an agreement for Comet Bay and also signed it on behalf of the strata company and that, combined with references to Comet Bay being the original developer at section 1.1, may be enough to infer he was controller of Comet Bay and put into effect the agreements which gave rise to a conflict of interest between the role of AW in the three agreements - but this is not what the imputation pleads.

Judge's determination: This highest level Chase level 1 imputation (Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772) is not made out as regards any of the plaintiffs as regards conflicts of interest. The imputation is unacceptably imprecise or vague.

The attempted incorporation by reference of pleaded roles for each of the plaintiffs out of pars 2 to 4 of the FASOC is misconceived in the extreme. It renders this imputation both complex and prolix. It fails by a very considerable distance to identify a precise 'sting', being complained about severally, in respect of all plaintiffs. The contended meaning is not made out against any plaintiff.

(Judge's notes: This is the only surviving alternative 'plea'. It seeks to establish Mr Rakich's identification by the Coombs Report on the basis of the extrinsic fact found in par 4.1 of the FASOC plus the amended particulars found at the end of par 25 - to which I have referred.)

The only extrinsic fact relied upon for this imputation is at para 25 of the FASOC and refers to the fact at 4.1 (Rakich was employed by AW to act as strata manager) therefore there is no meaning available for Mr King (apart from the natural and ordinary meaning referred to above).

So far as Mr Rakich is concerned, the extrinsic fact makes him synonymous with mentions of AW and if this is inferred by the court to be known by all recipients, then the reference to AW having a conflict of interest at 3.1 would include Mr Rakich.

Judge's determination: The defendant's submission must be accepted even assuming the knowledge contended for in the recipients under the particulars to par 25. The Coombs Report in its observations is manifestly dealing with the position of the strata company, not the position of Mr Rakich personally.

24.3.1 (the plaintiffs have such conflicts of interest because): Mr King caused each of the Strata Management Agreement, the Caretaking Agreement and The OnSite Managers Agreement to be executed at a time when Comet Bay owned all of the strata lots in Seashells Mandurah, with the result that the execution of each of those agreements was brought about by the unilateral conduct of Mr King:

24.3.2 (the plaintiffs have such conflicts of interest because): Accommodation West has proxies granted to it from the owners of the strata lots to participate in the onsite letting pool operated by Accommodation West, which Accommodation West can vote at meetings of the strata company;

24.3.4 (the plaintiffs have such conflicts of interest because): Accommodation West acts in different roles and represents different interests

24.3.1 - If the real sting here is that Mr King bore responsibility as controller of Comet Bay for the creation of a conflict of interest when he signed agreements on its behalf appointing AW as strata manager, caretaker and on site letting manager of Seashells Mandurah, then this would be conveyed from the Report, but the pleaded imputation is not separated and all three plaintiffs are grouped together.

24.3.2 - This is an imputation concerning AW only and no true innuendo is pleaded for this imputation so it is only conveyed about AW. The imputation does not in fact capture the sting which appears to be that AW gave itself control over the voting power at strata company meetings by compelling letting pool owners to give AW their proxy which created a conflict of interest between its role as strata manager and as controller of the votes of the strata company. This is not what the pleaded meaning/imputation states.

24.3.4 - The imputation is vague and unspecific when the report is completely specific about the precise roles of AW which are said to constitute a conflict of interest. This is too imprecise to convey a conflict imputation concerning AW.

(There is [no] true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: Once again these contended imputations as formulated fall a considerable distance short of the mark in terms of crisply identifying the nature of a pejorative sting complained about. The pleas under pars 24.3 as regards AW Co and Mr King manifest as only a rambling narrative of facts, see 'The plaintiffs have such conflicts of interest because' - followed by pars 24.3.1. through 24.3.4. This is unacceptably vague and convoluted.

An attempted interaction with the previous plea under par 24.2 is also misconceived - in that it betrays on examination the very antithesis of a standalone defamatory imputation that can be evaluated on its separate merits.

I would not have allowed imprecise and confusing imputations in this form to have been left to a jury had a civil jury been chosen for this trial. They do not arise.

Accommodation West has acted other than in the best interests of the proprietors of strata lots in Seashells Mandurah

This imputation is vague and imprecise when the report is specific in relation to the areas it examined and reported upon concerning AW. If it relates to conflicts of interest [then] it does not differ in substance from those above.

(There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: I have now identified that the overall tenor of the Coombs Report to the ordinary reasonable reader is that, read fairly as a whole, it is provisional in its conclusions and observations. It does not express any finally concluded determinations about conduct or misconduct. It simply renders some observations by this forensic accountant based on the limited documentary materials provided to her and examined. Consequently, the Chase level 1 imputation seen under par 24.5 as regards AW Co is unsustainable and does not arise.

Accommodation West does not act in the best interests of the proprietors of strata lots in Seashells Mandurah

This imputation does not differ in substance from 24.4 and adds nothing to it and the same submission is repeated.

Judge's determination: The defendant's submissions must be accepted.

Mr King was involved in improperly profiting from causing each of the Strata Management Agreement, the Caretaking Agreement and the OnSite Managers Agreement to be executed at a time when Comet Bay ow[n]ed all of the strata lots in Seashells Mandurah

Firstly, the phrase 'improperly profiting' is vague and imprecise where there is no description of the facts within the pleaded meaning constituting the use of the term 'improperly' (Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 per Hunt J at 403 where it was held that the word 'improper' is so obscure as to cover a steep gradation of activities).

Also the use of the weasel word 'involved' is vague and uncertain (Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 per Nicholas J at [29] (leave to appeal refused)).

Secondly, there is no reference to Mr King improperly profiting personally in the report (only Comet Bay which is said to have profited at section 2.6).

Judge's determination: As now seen, an extract at par 23.9 from the Coombs Report is relied upon for this imputation concerning Mr King. This extract reads: 'The agreements and bylaws entered into by the developer when it was the sole owner of all the lots created a benefit for the developer at the detriment of the strata company owners and was possibly a breach of fiduciary duty'. In context reference to the developer would be read as a reference to Mr King's corporation Comet Bay. The detriment is referred to on the basis of a reference to 'strata company owners'. There is also the reference to 'possibly a breach of fiduciary duty' by Ms Coombs.

The submissions of the defendant in relation to imprecise and vague phrases 'improperly profiting' and the use of a 'weasel' word 'involved' must be upheld. Nevertheless, in my view it is open to link Mr King with Comet Bay. Hence, I would not accept the defendant's further submission that the extracted words could not encompass him as well. However, the force of the qualifying word 'possibly' has been overlooked as regards the Chase level 1 nature of this imputation - which proceeds on the basis of establishing a charge of Mr King being involved in improperly profiting - when the overall provisional character of the Coombs Report coupled here with the explicit use of the word 'possibly' must surely suggest otherwise to the ordinary reasonable reader that is prepared to invest the time and energy in reading the Coombs Report as a whole. Imputation 24.6 does not arise.

Mr King was involved in a breach of fiduciary duties and the derivation of a benefit from such breach

Again, the use of the weasel word 'involved' is vague and uncertain.

Secondly, the imputation fails to describe how Mr King was allegedly involved in a breach of any fiduciary duty, let alone what that fiduciary duty was and why it was owed by him and to whom it was owed. The imputation is so vague and imprecise to be embarrassing.

Further it is not conveyed by the words of the report.

Judge's determination: Again the defendant's submissions must be upheld. This imputation is indeed unacceptably vague. A problematic use of the word 'involved' obscures any precise meaning emerging as regards the pejorative conduct on Mr King's part. Nor is the nature of the benefit allegedly derived made clear. Again the Chase level 1 character of this imputation is out of alignment with the overall provisional tone of the conclusions in the Coombs Report read as a whole. The imputation as contended does not arise.

Mr King was involved in the sale of an apartment the benefit of which was obtained at the expense of the proprietors of strata lots in Seashells Mandurah due to arrangements that Mr King was involved in implementing

Firstly, the submission for 'involved' is repeated for both uses of the work in this imputation. Secondly, the whole imputation is so vague and imprecise to be incapable of any specific defamatory meaning concerning Mr King. To whom was the benefit given and how was the benefit obtained at the expense of the owners?

In this form it cannot be conveyed from the words of the report.

Judge's determination: Again, a use of the word 'involved' is problematic. The defendant's submissions in this respect as to the consequent vagueness of the imputation must be accepted.

Yet again there is a failure to capture precisely the essence of a 'wound' said to have been inflicted against Mr King's reputation. Even upon close scrutiny of pars 24.8 and 24.10.2 of the Coombs Report, a double use of the word 'involved' only exacerbates difficulties. Again, the Chase level 1 nature of this imputation is out of alignment with the overall provisional tenor of the Coombs Report's conclusions when read fairly and does not arise.

Mr King was involved in an arrangement whereby an associate of his has obtained a lucrative investment at the expense of the strata company for Seashells Mandurah and/or those owners of strata lots who participate in the on-site letting pool operated by Accommodation West

Firstly, the submission for 'involved' is repeated.

Here there is no defamatory sting against Mr King save that he was 'involved' in an arrangement where someone else has obtained a lucrative investment at the cost of the owners.

Again, the imputation is so vague and imprecise to be not conveyed.

Judge's determination: This attempted imputation suffers the same fate as preceding imputations 24.7, 24.8 and 24.9. Vague references to being 'involved' in an 'arrangement' and the 'and/or' structuring of this imputation result in unacceptable obscurity. The contended imputation is not made out.

24.10.1 (Mr King was involved in a sale of a strata lot) for less than market value

24.10.2 (Mr King was involved in a sale of a strata lot) which involved concealed monetary and nonmonetary gains to Comet Bay

24.10.3 (Mr King was involved in a sale of a strata lot) which should have been, but was not, disclosed to the strata company for Seashells Mandurah

24.10.1 - First, the submission for 'involved' is repeated. Being somehow 'involved' in a sale for less than market value is not defamatory without more. It could be for a perfectly legitimate reason that he sold below market value. Secondly, the report makes clear that at section 2.6 the writer of the report does not know the sale price of lot 17.

24.10.2 - There is no reference to it having 'involved concealed monetary and nonmonetary gains' - there may be a Chase level 3 imputation available that this transaction should be investigated at its highest which is not pleaded.

24.10.3 - Again the vague reference to being 'involved' in a sale transaction which should have been reported to the owners is too vague and imprecise to be able to distil a defamatory act or condition concerning Mr King. It is also at such a low level as not to meet the test of being defamatory.

Judge's determination: Again the defendant's submissions on the use of the word 'involved' being problematic must be accepted as regards the resulting unacceptable imprecision and vagueness of this contended imputation. The defendant's further submission that there is no reference to Mr King being involved in concealing monetary and nonmonetary gains must also be accepted. When regard is had fairly to the terms of pars 24.8 and 24.10.2 of the Coombs Report, again the wholly provisional nature of the observations by Ms Coombs is explicit. Her reference is to the development by Comet Bay primarily. Referring to a decision, Arrow Management, she notes possible profit made on the sale of lot 17. She says 'it may have been sold at lower than market value'. Ms Coombs finally refers to disclosure and pricing information being 'further investigated'. Given all that, there is no basis for a Chase level 1 imputation to be made by Mr King from such limited words, particularly when read in the context of the Coombs Report as a whole which as I have already observed is explicitly provisional in its conclusions and observations.

Alternatively there is a reasonable basis for suspecting that Mr King was involved in a sale of a strata lot:

24.11.2 which involved concealed monetary and nonmonetary gains to, Comet Bay

24.11.3 which should have been, but was not, disclosed to the strata company for Seashells Mandurah

The same submissions are repeated as above in respect of the alternative fallbacks of reasonable suspicion.

Judge's determination: My preceding remarks above are repeated. This imputation is alternatively framed as a (lesser) Chase level 2 imputation but is still not capable of being fairly extracted by an ordinary reasonable reader from the terms of the Coombs Report as a whole. As the defendant accepts, there might have been a basis for a Chase level 3 imputation (ie, grounds for this transaction to be investigated). However, that is not the imputation.

Consequently all the contended imputations as regards Mr King under par 24.11 have failed to be shown as arising from the Coombs Report.

Accommodation West has failed to properly manage Seashells Mandurah on behalf of the strata company for Seashells Mandurah to the disadvantage of the owners of strata lots within Seashells Mandurah

The use of the word 'properly' is another word of many different shades of meaning and 'to the disadvantage of owners' is general as to lack any precise meaning.

(There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: This imputation only concerns AW Co. For this contended imputation that AW Co failed to properly manage Seashells Mandurah to the disadvantage of the strata lot owners, once again the provisional nature of the Coombs Report read in overall context fairly by an ordinary reasonable reader leads to my conclusion that this imputation is pitched both too high and too vaguely. It does not arise.

Accommodation West has failed to competently fulfil its functions pleaded in paragraph 2 above

The use of external references in an imputation mean that it is necessarily imprecise and confusing.

Also failing to 'competently fulfil its functions' is vague and imprecise when there are specific instances of conduct available from the report.

(There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: Again a reference to AW Co's functions sought to be incorporated by reference to par 2 of the FASOC results in a prolix and oppressively complicated attempted imputation. The heart of the grievance appears to be an assertion of incompetence by omission, ie, a failure to act. Reference to par 2 of the FASOC in a search for the 'functions pleaded' only leads to more speculation as to whether this is an attempted reference to the services identified under the three contracts in par 2.2. The plea is hopelessly misconceived. I would not have allowed it to go to a civil jury.

Accommodation West is not capable of competently fulfilling its functions pleaded in paragraph 2 above

The same objections [24.13] are repeated for 24.14 as well as that this does not differ in substance. (There is no true innuendo concerning Mr King and Mr Rakich)

Judge's determination: Like observations apply in respect of imputation 24.14 as regards AW Co which the defendant contends does not differ in substance from imputation 24.13. I accept that submission.

Accommodation West caused the strata company for Seashells Mandurah to be overcharged between $25,000 and $45,000 and the owners of strata lots who participate in the letting pool operated by Accommodation West to be overcharged in excess of $100,000 in relation to the fitting out with furniture and equipment of the onsite manager's office

The imputation consists of two separate and distinct charges rolled up into one imputation.

The use of the word 'caused' is impermissibly imprecise where its use is not clear and unmistakable (Rambal v Cahill [2012] WASC 353). The result is a meaning which conveys no more than the occurrence of an accounting error. There is no pejorative sting which renders the accounting anomaly defamatory.

(There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: I accept the defendant's submission that at best the Coombs Report suggests some level of accounting error, rather than carrying a pejorative meaning towards AW Co, as regards some causative contribution by AW Co to an overcharging outcome - which can only be guessed at. Again there is a basic failure here in a prolix imputation to capture the essence of a defamatory sting as regards AW Co. As formulated there is nothing capable of being stigmatised as defamatory under imputation 24.15 assuming the meaning was ever capable of being derived.

Accommodation West caused the strata company for Seashells Mandurah to be subjected to a charge which was either unwarranted or inflated in relation to the lease or purchase of software equipment

The use of the word 'caused' is impermissibly imprecise where its use is not clear and unmistakable (Rambal v Cahill [2012] WASC 353 per Kenneth Martin J at [27]).

The result is a meaning which conveys no more than the occurrence of an accounting error. There is no pejorative sting which renders the accounting anomaly defamatory. The words at section do not convey that the charge was unwarranted but at its highest a Chase level 3 imputation that investigation was recommended of the relevant documents (which could not be inspected prior to the report date).

(There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: Again I accept that the high Chase level 1 character of the attempted imputation as regards AW Co and the subjecting of the strata company to a 'charge' which was unwarranted or inflated as regards the lease or purchase of software equipment, is not sustainable. I accept the defendant's submission that at highest it might be argued the Coombs Report suggests that there was a matter to be investigated. But as framed the imputation pitches matters at far too high a level and at that level this imputation cannot be derived from the Coombs Report.

Accommodation West has failed to competently or diligently collect strata levies from proprietors of strata lots in Seashells Mandurah

The sting of section 2.1 is imputation 24.18, ie not that they failed to collect levies at all but that AW permitted arrears to mount up and only in some cases charged interest.

(There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: As the defendant submits, I accept that as regards AW Co, considering pars 23.1 and 23.10 through 23.17 of the Coombs Report, the correct meaning that arises in relation to AW Co and the collection of strata levies is not an assertion of incompetence or lack of diligence in the collection of strata levies. Rather it is that arrears have mounted up and that in some cases interest was not being charged. That other meaning is better captured under imputation 24.18. In all events, imputation 24.17 would be assessed as overlapping with, or repetitious with the next imputation. I do not find imputation 24.17 established but I would, as I will relate next, find imputation 24.18 established.

Accommodation West has failed to collect interest or arrears of strata levies due by proprietors of strata lots in Seashells Mandurah

This is conveyed but not actually defamatory to the extent of lowering their reputation in the eyes of reasonable members of the community.

(There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: This imputation is conveyed, as the defendant, in effect, accepts in its submissions, as regards AW Co only.

The next significant question is whether it is defamatory of AW Co.

That assessment needs to be made in the context of the provisional nature of the observations in the Coombs Report. In my conclusion the imputation is not defamatory - in the absence of some pejorative explanation for that preliminary observation of fact about not collecting interest or arrears. The non-collection observation is essentially identified as a matter to be addressed. But the Coombs Report does not suggest fault in AW Co on the basis of a lack of competence or diligence on its part as strata manager as regards the interest or the arrears. They are matters to be followed up. Therefore, this imputation is not defamatory applying the objective defamation standard of an ordinary reasonable reader.

Accommodation West has exposed proprietors of strata lots in Seashells Mandurah to a liability to pay arrears of tax and penalties as a result of Accommodation West having failed to lodge income tax returns.

There are no submissions made about this paragraph. The paragraphs of 23 relied upon are 23.3, 23.19 to 23.21 and 23.32 (extracts from the Coombs Report.

Judge's determination: This imputation is pitched as a Chase level 1 imputation as to AW Co having exposed proprietors to a liability to pay arrears of tax and penalties by reason of a failure to lodge income tax returns. That level 1 charge is pitched too high. The overall tenor of the Coombs Report is provisional as I have mentioned. The attempt to extract a meaning at this higher level of a conclusion concerning exposures to arrears of tax and penalties is not supportable. There is no Chase level 3 (grounds for investigation) plea made in the alternative.

Accommodation West has, over a period of years, lodged business activity statements in which there are discrepancies

The term 'discrepancies' is so vague as to have many gradations of possible meanings from immaterial to very serious. Section 2.5 states that there existed 'incorrect completion' of BAS statements.

Discrepancies in BAS statements is so low level it is not to be defamatory of Accommodation West - it must be a common occurrence that businesses are not always 100% accurate with their BAS returns. (There is no true innuendo concerning Mr King and Mr Rakich.)

Judge's determination: I accept the defendant's submission that the imputation contended, even if it is capable of being derived as a meaning in the Coombs Report (which it is not) does not carry any defamatory meaning. Use of the bland term 'discrepancies' carries a multitude of potential meanings. It allows for multiple possible underlying reasons of a wholly benign nature explaining why there is a discrepancy in a business activity statement. This meaning is too innocuous to go anywhere from a defamatory perspective.

1. So it is that all contended defamatory imputations by the plaintiffs have in the end failed to be shown.
2. Having now evaluated and rejected all the contended imputations argued for as to the fourth publication, I turn to the covering email that sent out the Coombs Report as its attachment.

The third publication: Mrs Aikman's email of 2 April 2015 at 2.29 pm sent to 20 people (Schedule C) Preliminary observations

1. On 1 April 2015 (see exhibit 2.194, TB page 938) Mrs Orohoe circulated by email copies of the Coombs Report under a subject heading 'Accountant's Report CONFIDENTIAL PLEASE'.
2. The persons to whom Mrs Orohoe emailed the Coombs Report at that time were Mr Hans Beyer, 'Susan A' (undoubtedly a reference to Mrs Aikman) and to five other persons, namely to Messrs Quay, Brackenridge, Murphy, Blackburn and a 'George H'.
3. Mrs Orohoe wrote:

Hi the report is attached and we now have permission to send out to a few of you who have contributed support and knowledge apart from some money. Marjorie Sharp, an original owner (tower penthouse), was an originator of the queries and I am sad to say she passed away in recent months.

Approx 30 persons were interested parties and 18 of us have contributed money between $150 $300. Orohoe/Ivankovich as Applicants and S Aikman have contributed considerably more of course. I only have emails of the 30 owners and therefore they will have to be mailed the reports (or a summary plus our comments) ... Regarding the shortfall - we are unsure how to manage this. We will firstly (perhaps) send the full report to the other interested parties and request a contribution and/or send a summary by mail to other owners and advise that we will email the full report for a fee we need help on this. Thanks.

1. Then followed Mrs Aikman's email of the next day, 2 April 2015 (Schedule C).
2. Mrs Aikman's 2 April 2015 email was sent to approximately 20 other Seashells Mandurah strata lot owners, whose properties she then managed and that she perceived were sympathetic to her ventilated criticisms of the current Seashells Mandurah management regime at the time.
3. Mrs Aikman, by her email, is seen to be both soliciting support from other owners and also seeking to raise money from these addressees to help pay for the Coombs Report.
4. I have mentioned that Mrs Aikman's email (exhibit 2.195, TB page 956) was preceded by Mrs Orohoe's email to Mrs Aikman and Messrs Beyer, Quay, Brackenridge, Murphy, Blackburn and George H of 1 April 2015. Mrs Orohoe's covering email had mentioned the permission obtained (from Ms Coombs) to send it out 'to a few of you who have contributed support and knowledge apart from some money'.
5. Mrs Aikman's email of the next day is then sent to further Seashells Mandurah strata lot owners. As she says in her witness statement, exhibit 11, par 56:

Apart from Neil Irvine, Alfred Quay, Jo and Ed McAppian and Sheila Ivankovich, I was, at the time, managing the apartments for each of the addressees of my email. In addition they were supporters of and/or contributors to the SAT proceedings and/or the costs of the Coombs Report.

1. I will accept that evidence from her.
2. By their FASOC the plaintiffs, under par 19, do not complain of the entire content of this email communication. Instead, they extract 13 subcomponents, which they identify as words complained of.
3. For convenience, I have highlighted in bold in Schedule C the extracts which comprise the words complained of and identified under FASOC par 19 (which, as seen, amounts to most of the communication, although I note, for instance, not the words 'Subject: FW: Accountant's report confidential', or the email's preface 'Dear Owners').
4. Out of those words complained of via par 20 of the FASOC, the plaintiffs then contend for eight natural and ordinary meanings by way of pejorative innuendos which they argue arise from the words alone of this email publication complained of.
5. As regards attempted identification of the plaintiffs, FASOC par 21 then repeats the very same eight imputations - but now, in the alternative, on the basis of the extrinsic facts to support plaintiff identification under par 21 and the particulars of knowledge in the recipients identified at the end of par 21.
6. The essence of this FASOC par 21 true innuendo plea, purely as regards externally establishing identification of a subject person said to be defamed, appears to relate chiefly to Mr Rakich as the subject of at least five of the eight alleged meanings under par 20.
7. I repeat that the third publication complained of was sent out by Mrs Aikman one day after she had received the Coombs Report electronically herself from Mrs Orohoe (see exhibit 2.194, TB page 938).
8. I note that in her email Mrs Aikman says:

I will below copy/paste a few other comments so far from owners who have already read this information.

Once you have read this information and the comments from others we now really need you to contribute whatever you can to Lynn Orohoe to cover our costs so far.

1. But the necessary conclusion appears to be that, in fact, no comments from other owners were copied and pasted by Mrs Aikman to this email. Counsel approached the email on that basis, as do I.
2. Next, I do note an explicit reference to AW Co in par 1 of Mrs Aikman's email (in the context of receiving the report last week). I would assess, upon the ordinary meaning of the words, that the ensuing reference in the next paragraph to a strata manager, being the entity towards whom the report is in relation to, is a reference to the corporation AW Co. It is not, as I assess it, to be read as a reference to Mr Rakich, who is AW Co's employee.
3. Likewise, I assess the reference in par 19.5 to the strata manager to be a reference to AW Co, not to Mr Rakich.
4. I can now proceed to evaluate the eight imputations complained about under par 20 of the FASOC (and also complained about under FASOC par 21 in the alternative as true innuendos identifying either Mr King or Mr Rakich). Again, I will adopt the tabular format extracted from the defendant's written submissions.

Whether imputations conveyed and, if so, whether defamatory of each plaintiff

Acting properly, Accommodation West ought to have provided the owners with a copy of the report but had not done so because it revealed its incompetence and/or impropriety.

At ts 65 - 66, Mr Williams invited the court to 'put to the side' imputation 20.1. It is not clear whether that was because of the yet unresolved excluded corporation issue or because the imputation attributes a physical act to a company.

If the former, then the latter objection is made. Further, the imputation fails to distil any defamatory act or condition but only states what the pleader says AW 'ought' to have done.

The imputation is vague and imprecise as it contains alternative meanings within the same imputation.

Further the meaning contended for is not available from the words of the email. The words state that AW had received the report the previous week - those words do not convey any sting that they had failed to provide it to owners because it revealed incompetency on their part.

Judge's determination: I accept the defendant's submission that the meaning contended for as regards AW Co, being that AW Co acting properly ought to have provided the owners with a copy of the report but had not done so as it revealed its incompetence or impropriety, is an untenable meaning from the words of Mrs Aikman's email of 2 April 2015. That attempted imputation is simply fanciful upon the words of this email.

It is convenient to recall factually that the Coombs Report was prepared as an outcome of the SAT proceedings. It was then provided initially to the three people who commissioned it. They were the applicants before SAT, namely Mr and Mrs Orohoe and Mrs Ivankovich. Consent was then given by Ms Coombs for its wider release beyond those parties. That was communicated to Mrs Aikman by Mrs Orohoe on 1 April 2015.

Whilst none of that can be taken account of in respect of the asserted natural and ordinary meaning, it is convenient to collect these facts at this point.

But I accept there is nothing in Mrs Aikman's email to suggest that AW Co carried any obligation to send a copy of the Coombs Report to owners. Imputation 20.1 does not arise.

However, there is no extrinsic fact connecting Mr King with AW and the imputation at 21.1 is about AW (not Mr King personally).

Mr Rakich is not named in the email (but is named once in the Coombs Report) however, there is no particularised reliance on extrinsic fact 4.1 in the FASOC at paragraph 21.

Judge's determination: My remarks in respect of imputation 20.1 are repeated. Even if Mr Rakich was expressly identified, there is nothing to suggest that he had a responsibility to make, on behalf of AW Co, a copy of the Coombs Report available to the strata lot owners generally. The contention is still not made out.

The plaintiffs were not transparent in their dealings with Seashells Mandurah

Only AW is named in the email (including the words relied upon at paragraph 19 FASOC to convey the meanings) so a natural and ordinary meaning is not available for Mr King and Mr Rakich.

Failing to be transparent is not defamatory of AW in accordance with the application of general community standards. It is such a low level in the context of the words used that it is not defamatory.

Judge's determination: I agree. This attempted imputation is vague and imprecise. Even if it does arise, it is not, on my assessment, defamatory. Vagueness and imprecision arise from the reference to 'dealings with Seashells Mandurah'. If the plea were as to 'dealings' with the strata company or with individual owners in respect of the strata development, then it would carry more certainty. But as formulated, the reference to 'dealings' and Seashells Mandurah is elliptical. The term 'dealings' is unacceptably imprecise. It creates confusion and uncertainty in terms of what is being driven at here. The charge as regards the plaintiffs not meeting the fashionable, yet usually unspecific threshold of being 'transparent' adds more 'fog' ultimately to an unsuccessful quest to finally pin down what specifically is said to taint the reputations of all of the plaintiffs. This imputation fails.

The email states that the report (which reveals non-transparency) is in relation to the strata manager (second par) and there is no extrinsic fact connecting Mr King with the operations of the strata manager (AW).

So far as Mr Rakich is concerned, there is no particularised reliance on extrinsic fact 4.1 in the FASOC at paragraph 21.

Judge's determination: My remarks in respect of imputation 20.2 are repeated.

The plaintiffs had for a considerable period of time not been transparent in their dealings with Seashells Mandurah so they had something to hide

Only AW is named in the email (including the words relied upon at paragraph 19 FASOC to convey the meanings (so a natural and ordinary meaning is not available for Mr King and Mr Rakich.

Otherwise the submission at 20.2 about transparency is repeated and at 16.6 concerning 'something to hide' is repeated.

Further something to hide is not conveyed from lack of transparency alone.

Judge's determination: The remarks under par 20.2 are repeated as regards the bland invocation of a lack of transparency being problematic. The addition under 20.3 of a tail in terms of adding 'as they had something to hide' only injects further elements of uncertainty to what is being complained about. This meaning does not arise.

The email states that the report (which reveals nontransparency) is in relation to the strata manager (second para) and there is no extrinsic fact connecting Mr King with the strata manager AW.

So far as Mr Rakich is concerned, there is no particularised reliance on extrinsic fact 4.1 in the FASOC at paragraph 21.

Judge's determination: The remarks as regards imputation 20.3 are repeated.

Brian Rakich was incompetent and had caused payments to be made from incorrect accounts to the detriment of proprietors of lots within Seashells Mandurah

The email does not name Mr Rakich so is only available with the addition of extrinsic facts.

Judge's determination: An adverse meaning as regards Mr Rakich cannot arise as a natural and ordinary meaning of the content of Mrs Aikman's email of 2 April 2015. As regards Mr Rakich, this imputation could only arise potentially as a true innuendo meaning by reference to his identification. Hence, I will evaluate it under that alternate plea made under imputation 21.4.

So far as Mr Rakich is concerned, there is no particularised reliance on extrinsic fact 4.1 in the FASOC at paragraph 21.

Otherwise, the words in context do not allege that Mr Rakich is personally incompetent they refer to concepts of failing to differentiate between companies and record keeping anomalies.

Judge's determination: The defendant's submissions must be accepted. Extrinsic fact 4.1 in the FASOC, sometimes relied upon as regards other publications, is not invoked here concerning Mr Rakich. The extrinsic fact under par 2.2 only concerns the services provided by AW Co under the three 2006 contractual agreements. Reference to the attached Coombs Report does not advance the merits of this imputation.

Mr Rakich is only referred to briefly in passing upon one occasion in the Coombs Report at s 2.3 concerning levies. Strained efforts to extract a meaning as regards Mr Rakich's personal incompetence by causing payments to be made from incorrect accounts - is not capable of being fairly or sensibly derived from this email even with the extra facts injected into that evaluation.

As a result of the plaintiffs' impropriety and lack of transparency, they ought to be removed from the management of Seashells Mandurah

Only AW is named in the email (including the words relied upon at paragraph 19 FASOC to convey meanings) so a natural and ordinary meaning is not available for Mr King and Mr Rakich.

The imputation is vague by use of the word 'impropriety'.

The email does not state that they ought to be removed, it states that they only had twelve more months to run on the current term. In the absence of these express words, the email is therefore 'rhetorical' in the sense that it achieves no more than to assert the consequence of its actions rather than distilling a defamatory act or condition (Hansen-Young v Bauer Media Ltd [2013] NSWSC 1306 per McCallum J at [18] to [19]).

Secondly, there is no reference to impropriety. The references to 'get them to repay the money they owe us' is clearly a reference to bookkeeping anomalies and incorrect allocations and not impropriety.

Judge's determination: A natural and ordinary meaning is only potentially capable of being derived as regards the only identified plaintiff, namely AW Co. I accept the defendant's submission that this meaning is not available as regards Mr King or Mr Rakich on the natural and ordinary meaning of the words (and nor, for that matter, even with the added further extrinsic facts would I find this meaning arising as regards those two natural person plaintiffs).

Mrs Aikman's email does not mention impropriety or, for that matter, lack of transparency (an impermissible blurring of two negative concepts in any event for an imputation).

As regards impropriety as a basis for removal from management, I put aside Mrs Aikman's rhetoric about the report on her personal observation as being 'very damning!'. In context, Mrs Aikman's attachment of the Coombs Report for these 'Owners' was clearly enough on the basis of providing it for them to read, assess and draw their conclusions from it. She says then, after the attempt to raise from them funds to cover the cost of preparing the report, 'We now have enough information to call an Extraordinary General Meeting (EGM) and demand answers from the strata company and vote for a show of no confidence. They only have 12 more months to run on their current term. This should see us with a way now to get them to repay us the money they owe us and enable us to get an independent strata manager, probably at less cost.' Those remarks in context are innocuous.

There is a reference to answers being demanded from the strata company. But the corporation is not AW Co, it is the body corporate for Seashells Mandurah.

The correct meaning for the reasonable reader of these emailed words would seem to be that AW Co has 12 months to run on its term and that there should be a vote as to whether an independent strata manager should be engaged in lieu of AW Co. None of that suggests or conveys AW Co's impropriety or a Chase level 1 determination as to AW Co's impropriety. That suggestion also seems incompatible with a proposal for the convening of an extraordinary meeting and demanding 'answers'. The contended imputation does not arise from this email.

The email states that the report (which reveals nontransparency) is in relation to the strata manager (second para) and there is no extrinsic fact connecting Mr King with the strata manager AW.

So far as Mr Rakich is concerned, there is no particularised reliance on extrinsic fact 4.1 in the FASOC at paragraph 21. Otherwise the submission in 20.5 is repeated.

Judge's determination: The observations for imputation 20.5 above are repeated. Provision of the Coombs Report is not sufficient to indicate that Mrs Aikman's email ought to be reasonably read as referring to an impropriety or lack of transparency on Mr Rakich's part. That is a wholly unsupportable 'stretch'.

Accommodation West overcharged for its services in relation to Seashells Mandurah

If getting them to 'repay the money they owe us' is the basis for overcharging, then this is not defamatory as they are essentially accounts errors and it is not defamatory unless there is some knowledge or intention behind it ie deliberately overcharging. Here there is no such inference so without more, it is not defamatory of AW.

Judge's determination: I accept the defendant's submission that the imputation contended for as regards AW Co having overcharged for its services is not defamatory. If the contended imputation were, for instance, that AW Co had deliberately overcharged, that might be assessed as defamatory. But that meaning does not arise from the terms of Mrs Aikman's email of 2 April 2015. Moreover, a reasonable reading of her email is that money is owed to the owners by the strata company, not by AW Co, as the relevant potential debtor on a reasonable assessment of the terms of this email.

There is no extrinsic fact connecting Mr King with AW and the imputation at 21.6 is about AW (not Mr King personally).

So far as Mr Rakich is concerned, there is no particularised reliance on extrinsic fact 4.1 in the FASOC at paragraph 21.

Judge's determination: The observations in respect of imputation 20.6 in rejecting that meaning are repeated. No added extrinsic fact supports a departure from that conclusion.

Accommodation West had misappropriated funds which rightfully belong to the proprietors of lots within Seashells Mandurah

The words of the email do not convey an imputation that AW misappropriated funds belonging to the owners - this is simply not available as a meaning from the words in the email.

Judge's determination: The contention in respect of a meaning that AW Co had misappropriated funds rightfully belonging to proprietors of lots arising out of Mrs Aikman's email of 2 April 2015 is also untenable. If the key words relied upon are the content of the extract in FASOC par 19.7, with a final sentence concluding 'This should see us with a way now to get them to repay us the money they owe us and enable us to get an independent strata manager, probably at less cost', those words simply will not support a Chase level 1 imputation of a misappropriation of funds by AW Co. Again, the reference seems to be to the strata company, not AW Co as its agent. This imputation fails.

There is no extrinsic fact connecting Mr King with AW and the imputation at 21.6 is directed at AW (not Mr King personally).

So far as Mr Rakich is concerned, there is no particularised reliance on extrinsic fact 4.1 in the FASOC at paragraph 21.

Judge's determination: The observations in respect of imputation 20.7 are repeated.

The activities of the plaintiffs in operating the on-site letting business were required to be investigated because the plaintiffs were dishonest and failed to be transparent in relation to the activities of Seashells Mandurah

Only AW is named in the email (including the words relied upon at paragraph 19 FASOC to convey the meanings) so a natural and ordinary meaning is not available for Mr King and Mr Rakich.

The email does not say that the onsite letting business was run by the strata manager (AW) and that is only available with the knowledge of the extrinsic fact that AW operated if (pursuant to an agreement dated 17 March 2006) through SHG.

The words of the email do not convey this imputation. The relevant words are 'I do believe that after you have read this report you might think as I do - that the owners in the on-site letting business will be conducting their own investigation' the words might give rise to a chase level 3 imputation at its highest and not actual guilt of dishonesty.

Judge's determination: This imputation, vague and convoluted as it presents, does not arise. First, only AW Co could be the subject of such an imputation on a natural and ordinary meaning of the words of the 2 April 2015 email. This imputation seems to be an attempt to plead a Chase level 3 lesser gradation in seriousness of meaning, ie, a basis for investigation. However, that is then muddied with the augmentation of asserted dishonesty and failure to be transparent in relation to the activities of Seashells Mandurah. The defendant's observation that the email does not say that the on-site letting business is run by AW Co as strata manager is correct. There would need to be extra knowledge in the reader of the extrinsic fact that the letting business was operated by AW Co through SHG under the contractual agreement of 17 March 2006 by the FASOC par 2.2.3. That knowledge might be established via the Coombs Report as a true innuendo plea (see exhibit 2.194, TB page 944 first paragraph): 'The accounting and finance functions for the Mandurah property are performed by staff at Seashells Hospitality Group Pty Ltd (SHG), who also attend to the accounting duties for the other Seashells Group properties. SHG is directly related to Comet Bay and Accommodation West and the financial statements for the strata company are not prepared by an external accountant or audited.' However, this would not be a natural and ordinary meaning - it would be a meaning derived on a true innuendo basis of extra knowledge in the reader and so a meaning to be pursued under par 21.8, if at all.

Mrs Aikman's email concerning the owners of the on-site letting business conducting their own investigation, on the face of it, looks to be a reference to SHG, rather than to AW Co, even with extrinsic knowledge from the paragraph of the Coombs Report I mention above. What par 19.8 of the words complained of seems to convey is something of a juxtaposition between steps Mrs Aikman believes ought be taken at an EGM of the strata company and a path towards having an independent strata manager appointed, as a less cost owners' strategy. She then appears to juxtapose what she has just described as a course of conduct for the owners to what the owners of the on-site letting business might do by way of investigation.

Had the range of this imputation been pruned and reformulated as a true innuendo, by excision of the references to the plaintiffs' dishonesty and the plaintiffs' failure to be transparent, then the remainder of imputation 20.8, namely as to 'the activities of (AW Co) in operating the onsite letting business were required to be investigated', might have been open. But such an imputation is ruined with the unsustainable tail beginning with the word 'because' and following after that as regards wholly unsustainable Chase level 1 extra charges as to dishonesty and absence of transparency.

The imputation as formulated fails both in its natural and ordinary meaning and even (theoretically) as a true innuendo meaning.

There is no extrinsic fact pleaded or relied upon to the effect that Mr King operated or had any involvement in the operation of the on-site letting business.

With regard to Mr Rakich, the email does not say that the onsite letting business was run by the strata manager (AW) and that fact is only referred to (as pleaded at paragraph 21 FASOC referring to paragraph 2.2 of the FASOC) as a fact known those with knowledge of the extrinsic facts that AW operated it pursuant to an agreement dated 17 March 2006 and then through SHG. Also, the fact that Mr Rakich worked for the strata manager, does not connect him with SHG.

Secondly, there is no direct evidence that any of the recipients knew of the content of the agreement of 17 March 2006 and that AW had subcontracted the work to SHG, let alone that those recipients then reasonably identified Mr Rakich as the person who was required to be investigated. This is not something easily inferred from the probability that they were given a copy of the agreements in 2.2 FASOC (also it must assume that they were handed these agreements by vendors if they were not original purchasers).

Finally, no extrinsic fact is pleaded that the Coombs Report states that AW has any connection with the on-site letting business. Otherwise the submission in 20.8 is repeated.

Judge's determination: See the observations above concerning imputation 20.8. The imputation fails in the alternative as well.

Concluding determinations for the third publication

1. In consequence then, I have concluded that all eight (16 when evaluated in the alternative by way of the identification innuendos) imputations contended for arising out of the third publication complained of, Mrs Aikman's email of 2 April 2015, have failed as against all three plaintiffs.

The fifth publication: Mrs Aikman's email of 17 April 2015 to Mr Hans Beyer copied to Mr Rakich, Mrs Orohoe and Mrs Ivankovich (Schedule E) Preliminary observations

1. The fifth publication complained about is Mrs Aikman's email of 17 April 2015. It can be found as Schedule E to these reasons. Once again, as a matter of convenience, the words specifically complained of as defamatory from this email as identified in the plaintiffs' FASOC at pars 27.1 - 27.13 have been highlighted in bold within Schedule E.
2. First, it is apparent that Mrs Aikman's email is seen to be her reply to Mr Beyer's email to her of an hour earlier at 5.38 pm (see exhibit 2.196, TB pages 959 - 960).
3. Mr Beyer's email to Mrs Aikman was in turn a copy of his response sent by email to Mr Rakich, commenting on Mr Rakich's preceding email to the Owners of Strata Plan 48817 sent out at 4.59 pm that same day (see exhibit 2.196, TB pages 960 - 961).
4. Mr Rakich's email referred to the circulation of the Coombs Report to some owners at Seashells Mandurah under correspondence from Mr and Mrs Orohoe and Mrs Ivankovich in his communication. Mr Rakich had written in part (see page 960):

This matter is, in our view, a witch hunt by a small number of disgruntled people who have not been able to get their way, despite the exhaustive State Administration Tribunal (SAT) process that was ongoing between April 2014 and 30 March 2015. We attach herewith a copy of the letter issued by SAT on 30 March 2015 which declares 'this matter is regarded as finalised and the tribunal's file is closed' ... As a consequence of their inability to read or understand the information provided, SAT directed them to engage an accountant capable of doing so. However, to our dismay, we now find the accountant's report canvasses a range of issues outside the specific directions of SAT, which again demonstrates the lengths that these people will go, to make wild and unsubstantiated allegations to damage individuals and the product Seashells Mandurah.

1. Mr Beyer had responded to Mr Rakich's criticisms seen above, in these terms (and copied to Mrs Aikman):

From my personal point of view, the owners need to be informed of the facts and then by vote of the owners take the next step if deemed appropriate.

It is my firm belief that the owners must be fully informed and make up their own mind on the facts to be presented.

I do not believe that you have the right to attempt to deprive the owners of the whole facts. This has been an issue for a long time and now is the time to bring it to a head. Therefore as an owner with an independent right, I ask you to respect all the other owner like me, that want to call an urgent Extraordinary AGM. I believe that a failure to do so will result in the owners calling such a meeting.

1. In response to her receipt of Mr Beyer's email to Mr Rakich containing Mr Beyer's response to Mr Rakich's 4.59 pm email, Mrs Aikman then responded to Mr Beyer by email. Notably, Mrs Aikman's response was copied to Mr Rakich - so there was nothing covert about Mrs Aikman's communication back to Mr Beyer. She also copied in Mrs Orohoe and Mrs Ivankovich.
2. If Mr Rakich's broadcast email communication of 4.59 pm had been sent to all Seashells Mandurah owners, it ought to have been independently received by Mrs Aikman as an owner.
3. Mrs Aikman's email response can be seen in full at Schedule E. Interestingly (if it is ever required from a damages assessment perspective only as regards any reputational harm possibly suffered by Mr Rakich beyond nominal damage) it is to be noted that Mr Rakich at 9.54 am on 20 April 2015 had later responded to Mrs Aikman (as well as to Mr Beyer), copying in Mrs Orohoe and Mrs Ivankovich (see exhibit 2.196, TB page 958). He said this to Mrs Aikman:

Hi Susan

Further to your email below, I confirm that our records verify that my email was delivered to the following email address at 5 pm on Friday last 17 April 2013.

'susan@watersedgeluxury.com.au'.

Once again you have shown in this email your penchant for twisting the truth. I suggest you acquaint yourself more fully with the SAT proceedings before declaring yourself expert in them [sic].

1. As seen from pars 28 and 29 of the FASOC, all three plaintiffs complain of nine distinct defamatory imputations said to arise out of the terms of Mrs Aikman's email (resulting in multiplied required evaluations). The FASOC par 28 meanings contended for are said to arise in the natural and ordinary meaning of the words of this email assessed alone. Yet again this is an extravagant and oppressively prolix challenge by reference to such a short communication.
2. A now typical alternatively styled plea under par 29 of the FASOC seeks to establish exactly the same FASOC par 28 meanings, by an augmentation of the limited extrinsic facts identified as the knowledge particulars A - E found at the end of par 29 of the FASOC, requiring thereby more evaluations.
3. In the end, I am satisfied that subject to what I say in respect of imputation 29.5 in due course, that there is no difficulty in respect of an identification of Mr Rakich. He is referred to explicitly enough as 'Brian' in the email. However, Mr King is not explicitly identified. I conclude that the extra extrinsic facts relied upon in the FASOC do not assist in the reasonable identification of Mr King.
4. AW Co is attempted to be identified by true innuendo under FASOC par 29 for all but the par 29.8 meaning. But imputations as to bullying seen under pars 28.5 and 29.5, by a proper assessment of the email's words, extend only to embrace Mr Rakich as their subject on my assessment, applying the objective defamation standard of the ordinary reasonable reader.
5. Key words to note in respect of the attempted bullying imputations are these:

I suggest we all receive their formal reply then have an owners only meeting - less the strata representative Brian Rakich and the current Council of Owners.

Then we can discuss without being bullied or talked over as is usual.

1. As a matter of convenience I will use the tabular format of setting out each of the imputations complained of - contrasted with the defendant's written closing submissions about the demerits of each imputation in the defendant's tabular format. I will render my determinations after the tabulated information.

Evaluations of imputations in the fifth publication

Whether imputations conveyed and, if so, whether defamatory of each plaintiff

Accommodation West, further or alternatively Mr Rakich, has been incompetent in the management of Seashells Mandurah

AW is not named in any of the three emails - Mr Rakich is named as an email recipient and then as 'Brian'. Although the email states: 'so much could be done at the resort if it was properly managed and someone had some innovative ideas' the sting is so low level that it is not defamatory of Mr Rakich in accordance with the application of general community standards.

With the extrinsic fact pleaded that AW was strata manager (which is in fact at 2.2) it refers also to AW otherwise the same submission is made as 28.1.

Accommodation West, further or alternatively Mr Rakich has deliberately failed to disclose all the relevant facts to the proprietors of strata lots in Seashells Mandurah

As with 28.1, AW is not named in any of the three emails - Mr Rakich is named as an email recipient and then as 'Brian'.

It is impermissibly vague - relevant facts about what?

The imputation is not defamatory in the sense of right thinking members of the community thinking less of Mr Rakich.

With the extrinsic fact pleaded that AW was strata manager (which is in fact at 2.2) it refers also to AW otherwise the same submission is made as 28.2.

Accommodation West, further or alternatively Mr Rakich has deliberately deprived the proprietors of strata lots in Seashells Mandurah from being fully informed of the whole facts

Accommodation West, further or alternatively Mr Rakich has concealed pertinent facts from proprietors of strata lots in Seashells Mandurah

The plaintiffs bully the proprietors of strata lots in Seashells Mandurah

With the extrinsic fact pleaded that AW was strata manager (which is in fact at 2.2) it refers also to AW.

The plaintiffs' conduct has resulted in the loss of money for proprietors of strata lots in Seashells Mandurah

This imputation is hopelessly vague by the use of the word 'conduct' without any description of the nature of that conduct. Without more it is not defamatory.

With the extrinsic fact pleaded that AW was strata manager (which is in fact at 2.2) it refers also to AW - otherwise the same submission is made for 28.6.

The plaintiffs have not acted in the best interest of the proprietors of strata lots in Seashells Mandurah

Simply not acting in another's best interests is not defamatory.

With the extrinsic fact pleaded that AW was strata manager (which is in fact at 2.2) it refers also to AW - otherwise the same submission is made for 28.7.

Mr Rakich deliberately failed to send to the defendant an email which he had sent to all other proprietors of strata lots in Seashells Mandurah

This is so low level as not to be defamatory in the sense required by the objective test.

It only relates to Mr Rakich so the true innuendo is not applicable.

The plaintiffs have deliberately acted inappropriately or with impropriety

This imputation is impermissibly vague by use of the words inappropriate and impropriety and contains two alternative levels of seriousness.

Inappropriately is not defamatory in the sense required by the objective test and it does not convey impropriety.

With the extrinsic fact pleaded that AW was strata manager (which is in fact at 2.2) it refers also to AW - otherwise the same submission is made for 28.9.

1. I must accept, once again, almost all the defendant's criticisms put against the multiple imputations said to arise out of what was a short email. Generally speaking, the unfocussed prolixity of the overall attack is wholly unacceptable. It should at the end carry adverse costs consequences for the plaintiffs - irrespective of the trial outcome.
2. From the written submissions it is seen that the defendant accepts that imputation 28.5, in respect of Mr Rakich bullying the proprietors of strata lots in Seashells Mandurah, was conveyed. That is my independent assessment. It is, as the defendant observes (again correctly), conveyed only in respect of Mr Rakich. The notion of AW Co, a management services corporation, engaging in bullying of owners at an AGM of owners (a meeting which it would not be expected to attend as it is not an owner corporation) is not sensible, even for the casual ordinary reader.
3. Otherwise, however, I conclude, as the defendant submits, that none of the other asserted imputations are found to be conveyed against any plaintiff.
4. In particular, I do not accept that the natural and ordinary meaning of the words of Mrs Aikman's email carries the pejorative meaning of 'incompetence' (imputations 28.1 and 29.1) against anyone. Further, a contention (imputations 28.2 and 29.2) about a deliberate failure to disclose all relevant facts or 'the whole facts' lacks a sufficient underlying subject matter. As the defendant understandably asks, 'relevant facts about what?' This, in the end, goes nowhere given that fatal deficiency. The same deficiency problem arises as to the asserted concealment of 'pertinent facts' (imputations 28.4 and 29.4) by the plaintiffs.
5. Mere conduct resulting in a loss of money (imputations 28.6 and 29.6) would not convey a sufficiently defamatory imputation. Much legitimate conduct over the course of time has unfortunately carried monetary loss consequences, especially after the late 2008 global financial crisis. An ordinary reader would know that. That plea is not defamatory.
6. A contention of not acting in the best interests of the proprietors of the strata lots (imputations 28.7 and 29.7) is also not established. I agree that, as formulated, it is not defamatory. The contended meaning assumes there is an obligation to act in the best interests of proprietors as regards all plaintiffs. No reasonable basis for that blanket contention as regards the few casual readers of this email is established.
7. The imputation seen under par 28.8 (and par 29.8) concerning the deliberate failure to send Mrs Aikman the email she received via Mr Beyer is not, on my assessment, possibly defamatory. There looks to have been an attempt at sarcasm here by Mrs Aikman's use of the word 'missed' in the second paragraph of the email to Mr Beyer. But that is, on my assessment, only a very low level sarcastic attempted insult only. The complaint about it is assuredly just petty by Mr Rakich - I will not use the word 'trivial' given its otherwise statutory significance as a defence. The low level attempted insult is not defamatory.
8. Imputation 28.9 (and 29.9) as regards all plaintiffs having acted deliberately inappropriately or with impropriety is not established as arising from this email when read by an ordinary reasonable reader on my assessment of the email or any further extrinsic facts as to identification.
9. Therefore, in the end, as regards the fifth publication, only the bullying imputation at 28.5 is established, but just as regards Mr Rakich. That indeed was accepted by the defendant. The defendant says that it is not, read overall, defamatory. However, on this occasion, I must disagree - albeit I do agree with this being a low level sting at worst.
10. As mentioned, Mrs Aikman's email was not widely published - it was sent to Mr Beyer and was copied to two other sympathetically aligned Seashells Mandurah owners, namely Mrs Orohoe and Mrs Ivankovich. There is no evidence of wider publication from there.
11. The copy of this publication sent to Mr Rakich, the only subject of the bullying imputation, can be put to one side from a damage perspective. Mr Rakich cannot be defamed just by a mere communication to himself. Hence, the range of relevant recipients is just the publication to the three other persons.
12. On my assessment, beyond nominal damage, imputation 28.5 carried no capacity at all to lower Mr Rakich's character or reputation in the eyes of those three recipients, given all the underlying facts in play at the time.
13. Of contextual importance as regards a qualified privilege defence for Mrs Aikman is the severe tone of the earlier criticisms, which Mr Rakich had himself earlier circulated, directed at Mr and Mrs Orohoe and Mrs Ivankovich under the communication at 4.59 pm the same day, to which I have referred.
14. In those attacking circumstances initiated by Mr Rakich, any contention that Mr Rakich might have been lowered in the eyes of those three owners by this reply to an attack communication of Mrs Aikman, is essentially ridiculous. Whilst a defamatory publication is presumed to damage reputation, s 34 of the Defamation Act requires an appropriate and rational relationship between any harm caused by a publication and the damages awarded. That is a significant damages consideration here.
15. In any event, I find that the overall character of Mrs Aikman's response on 17 April 2015 to Mr Beyer and copied to two other supporters is protected by an occasion of a common law qualified privilege (absent a disqualifying proof of malice on her part) for this communication.
16. Effectively, Mrs Aikman's response to Mr Beyer, copied to Mrs Orohoe and Mrs Ivankovich, constituted her own reply to Mr Rakich's earlier emailed robust attack against this aligned group of minority Seashells Mandurah strata lot owners by his reference to a 'witch hunt by a small number of disgruntled people who have not been able to get their way'.
17. On my assessment, there was a reciprocity and proportionality in Mrs Aikman's response to Mr Beyer - in the context of their community of interest in the circulated information being shared as between four of the aligned minority Seashells Mandurah owners. Mr Rakich was copied into that reply.
18. Even if in the end malice were to be established to disqualify Mrs Aikman of the protection of common law qualified privilege, I would only then award Mr Rakich the nominal amount of damages of $3 ($1 each for the three recipients of this email) arising out of imputation 28.5 being proved.
19. I now turn finally to the last publication complained of, being Mrs Aikman's words spoken by way of an interjection by her from the floor at the 2015 AGM of the strata company.

The sixth publication: 2015 AGM of the 'Owners of Strata Plan 48817, 16 Dolphin Drive, Mandurah' (Schedule F) Preliminary observations

1. The final publication complained of is not a written publication. It is the brief words spoken by Mrs Aikman about the Coombs Report at the 2015 AGM of the strata company. The AGM's transcript was tendered as exhibit 2.209.
2. Approximately 40 people, mostly the other strata lot owners, attended the 2015 AGM. Of approximately 100 Seashells Mandurah strata lot owners, most did not attend the AGM in person. The majority gave a proxy vote to a representative for the AGM.
3. The two key sentences complained of in respect of words spoken by Mrs Aikman at the 2015 AGM (see Schedule F2) were these:

[I]t's in several sections of the reports and it's well over $100,000.

It's not lacking in fact ... you gave the lady the paperwork.

1. Paragraph 31.1 of the FASOC sets out some context for the AGM remarks in a wider sense, by reference to the words of other persons spoken at the AGM, first by a Mr Ward. He was speaking at the 2015 AGM against a motion to appoint an auditor. That motion was moved by Mr King earlier. That was despite the fact that he said he saw nothing of concern in the Coombs Report.
2. From the floor of the 2015 AGM, Mr Ward, another owner, is seen to be questioning, in effect, whether it was worth the outlay that would need to be paid out by the strata company (funded at base by Seashells Mandurah strata lot owners' contributions) for the cost of engaging such an auditor. There are further words relied upon out of this exchange, by reference to a statement made by that AGM's chairperson (Ms Knowles) in terms:

[T]hat's what is being contested, it's lacking in fact.

1. Mrs Aikman at that point had interjected from the floor. She responded directly to Mr Ward, rather than through the AGM's chairperson, Ms Knowles.
2. Mrs Aikman's interjecting remarks were brief. They were to the effect that it was worth the strata company outlaying money for the auditor. She had mentioned a disbursement of an amount in the order of $100,000 that had been queried by the Coombs Report (as indeed it had: see Schedule D, s 20 titled 'Summary of Findings').
3. Mrs Aikman, by her interjecting remarks at the 2015 AGM, was, somewhat ironically, supporting Mr King's motion to appoint an auditor.
4. Mrs Aikman's words complained of are found at page 51 of the transcript (exhibit 2.209, TB page 1062). (The transcript wrongly refers to Mrs Aikman as 'Ms Hagman'.)
5. The transcript indicates other words spoken by Mrs Aikman at line 45, which have been ignored. On the following page (at TB page 1063) line 1, Mrs Aikman is recorded as saying '[i]t's not lacking in fact.' There is then a reference to a Mr Warne at line 4, who utters the words 'Madam Chair'.
6. Mrs Aikman at line 5 resumes 'You gave us - you gave them - you gave the lady the paperwork.' The transcript at line 7 then reverts to Mr Warne.
7. Mrs Aikman's reference to several sections of 'the report' are her first words complained of. That was clearly a reference to the Coombs Report.
8. As already seen, the Coombs Report is independently complained about as a defamatory republication by Mrs Aikman (the fourth publication complained of). It forms part of exhibit 2.194 (see Schedule D).
9. In a 'Summary of Findings' within the Coombs Report at s 2.0 (exhibit 2.194, TB page 945) - the fourth bullet point contains her statement:

The letting pool owners appear to have been overcharged in excess of $100,000 over the term of the lease.

1. The Coombs Report had been sent to Seashells Mandurah strata lot owners, as Mr Rakich noted in his email of 17 April 2015 at 4.59 pm (first paragraph).
2. The debate continued at the AGM meeting. Mr King later withdrew his motion seeking to appoint the auditor (TB pages 1063 - 1064).
3. The sixth defamation publication complaint is that all three plaintiffs (ie, including Mr King as proponent of the motion being supported by Mrs Aikman at the time) were defamed by the content of Mrs Aikman's interjecting remarks at the AGM (see exhibit 2.209, TB pages 1062 - 1063) which they also allege were motivated by her malicious intent at the time.
4. I now turn to what is the one defamatory imputation sought to be extracted from Mrs Aikman's words spoken at the 2015 AGM via FASOC par 32 (or alternatively by par 33 as a true innuendo alleged identification of all plaintiffs).
5. As par 33 would suggest, the extra extrinsic knowledge relied upon is the content of the AGM discussion, particularly the discussion about the Coombs Report, which preceded the exchange involving Mr Ward and Mrs Aikman.
6. The AGM's minutes (Schedule F-3, see exhibit 2.208, TB page 1,000) indicate that the exchange complained of occurred about three-quarters of the way through what was a long meeting. It commenced at 6.00 pm that evening. It concluded at 9.40 pm (exhibit 2.208, TB pages 1,000 and 1,011).
7. At page 1,008 the AGM's minutes note, in reference to Mr King's motion that an audit of the strata company's financial statements for the 2011/2012 year be commissioned by the Council of Owners, as follows:

Considerable discussion then took place regarding the Coombs Report and the potential audit of the strata.

1. The single adverse imputation advocated for by all plaintiffs arising out of Mrs Aikman's words at the meeting (to be evaluated in the overall context of the remarks of Mr Ward and by the AGM's chairperson) is 'the plaintiffs had engaged in conduct which caused the proprietors of strata lots in Seashells Mandurah to lose well over $100,000' (see FASOC, par 33).
2. On my assessment, even if Mr Rakich and AW Co are to be identified as the subject of Mrs Aikman's remarks, this attempted imputation is vague. The nature of the (mis)conduct supposedly engaged in is not clearly identified.
3. Likewise, the notion of causation embedded in this attempted imputation as to a loss, objectively evaluated in the casual and non-legalistic environment of the ordinary reasonable reader, is unacceptably loose and unclear.
4. More specifically, however, this imputation objectively assessed does not carry a pejorative (ie, defamatory) meaning as framed. Many entities or corporations engage in conduct that results in financial losses which would dwarf the magnitude of a $100,000 loss. Without more, the imputation is not defamatory. I reject it.
5. In consequence, therefore, as regards the sixth publication, the meaning contended for is not established. Even if it was, the meaning is not established as being defamatory of any plaintiff. Nor would it potentially identify Mr King, who at the time was the proponent of the motion that was actually being supported by Mrs Aikman by her brief interjecting remarks from the floor of the meeting.
6. Beyond that finding, were it necessary, I would in any event also assess Mrs Aikman's interjecting remarks as being protected by common law qualified privilege, given the unique prevailing circumstances of the 2015 AGM attended by Seashells Mandurah owners, of which she was one.
7. Mrs Aikman from the transcript is seen to be expressing spontaneously, by way of interjection, her views about the merits of Mr King's motion to appoint an auditor. In that clearly spontaneous context, a suggestion that malice was a motivation behind her remarks, which supported Mr King's motion, looks highly questionable as well.
8. In any event, all causes of action in defamation predicated upon the sixth matter complained of must fail.

Summary as regards the six publications now evaluated

1. I have now evaluated all six publications complained of. It is convenient to pause and summarise the outcomes reached to this point.
2. I have evaluated in the first publication six imputations as regards all three plaintiffs under the publication of 28 June 2014 - all of which I assessed must fail against all three plaintiffs.
3. For the second publication complained of, being Mrs Aikman's email of 17 October 2014, I have now evaluated a further 10 imputations, all of which failed, save for imputation 16.9, which I found proved, but as regards AW Co only.
4. As regards the fourth publication (the Coombs Report), I evaluated 19 imputations, all of which failed.
5. As regards the third publication (the email of 2 April 2015 that attached the Coombs Report) I have evaluated eight core imputations, all of which I rejected.
6. As regards the fifth publication, I have evaluated nine core imputations. Only one of these succeeded. That was imputation 28.5, but only as regards Mr Rakich upon the bullying imputation.
7. As regards the sixth publication complained of relating to words spoken at the 2015 AGM of the Seashells Mandurah strata company, I have now rejected the one imputation that was advanced.
8. As now seen, the evaluation process required dual assessments put in the alternative for most imputations, in the context of incorporating the extrinsic facts relied upon by each plaintiff for their contended identifications in the alternative. Hence, a multiplication of the evaluation process across the identified positions of the three different plaintiffs was necessary.
9. To this point, only two rather overall inconsequential imputations, namely imputation 16.9 (as regards AW Co) in the second publication and imputation 28.5 (as regards Mr Rakich) in the fifth publication have been established - out of all the multiple imputations across the six publications by the plaintiffs.
10. In respect of the proved imputations, namely, AW Co not being fit to be a strata manager (16.9) and Mr Rakich bullying strata lot owners (28.5), I have, in the process, assessed both those email publication occasions from a potential damages perspective (to Mr Di Prinzio and Mrs Lazarus on 17 October 2014 and then Mrs Aikman's reply email to Mr Beyer of 17 April 2015). I concluded that they carry no tangible damages repercussions for AW Co or for Mr Rakich. That is largely a consequence of what was the highly isolated range of the few recipients (two in respect of imputation 16.9, being Mr Di Prinzio and Mrs Lazarus, and then only three (Mr Beyer, Mrs Orohoe and Mrs Ivankovich) in respect of imputation 28.5 as regards Mr Rakich bullying strata lot owners).
11. Had each of those occasions not been assessed by me as the subject of the protection of occasions of common law qualified privilege for Mrs Aikman, I would have ordered only the nominal amounts damages of $100 to AW Co and then $3 to Mr Rakich, a grand total of $103 so far.
12. But because my view is also that qualified privilege at common law would apply on those occasions, then the two publications are indeed (subject to the reservation as to malice) protected and the causes of action grounded upon them must in the end fail. That is the outcome if malice is not proven against Mrs Aikman for these occasions.
13. It could be argued that Mrs Aikman was being gratuitously nasty by the remarks to Mr Di Prinzio about AW Co being sacked at other Seashells locations. But it might equally be said that she was pointing out something about the management arrangements at Seashells Mandurah that should be disclosed to a prospective purchaser by Mr Di Prinzio on behalf of his client. I defer a final determination on that publication for the present.
14. However, the suggestions of malice in Mrs Aikman as regards her email back to Mr Beyer are untenable. That occasion on 17 April 2015 was a spontaneous, proportionate communication aligning her position to Mr Beyer's. Her response was even copied to Mr Rakich, which shows it was an openly made reply - in effect, to his earlier email which was critical of her group.
15. I must deal with the malice evaluations in the context of the overall existing facts and circumstances, including 36 different incidents raised towards malice as contended for in the plaintiffs' reply pleading.

Qualified privilege and malice: Relevant observations to this case

1. I have already said that the law as regards an assertion of an occasion of qualified privilege requires a court to make a 'close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned, and of the events leading up to and surrounding the publication'. See McHugh J's observations in Bashford, where his Honour said:

In determining whether the occasion was privileged, the court examines all the circumstances of the case. They include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest that they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it. Evaluating these questions of duty and interest usually involves questions of public policy (386).

1. Therefore, I need to examine more of the underlying facts and circumstances. The matters canvassed below are also relevant to the wide ranging plea of malice directed against Mrs Aikman by the plaintiffs, if an occasion of qualified privilege does arise - as I have found. It is also necessary, as a part of these evaluations, to ascertain whether any defamatory statements made by Mrs Aikman were made relevantly to the actual occasion, as was explained by Campbell JA in Bennette v Cohen [2009] NSWCA 60 [207]. Hence, part of the scrutiny will be directed at the type of statement made and the prevailing circumstances in which the particular statement at issue was made. I refer to [209] from Bennette.

Introductory observations upon malice allegations against Mrs Aikman as regards five of the six publications

1. Case authorities referred to establish that proof of ill will in a defendant making a defamatory publication is insufficient to prove malice, but is nevertheless important evidence from which inferences may be drawn. Ill will is an evidencing factor or something of a pointer. But it alone is not enough.
2. For present circumstances, an existence of ill will in Mrs Aikman against Messrs King and Rakich was fully accepted under her Rejoinder (see pars 8A as regards a denigration of the property management, ie, Seashells Mandurah). However, the ultimate question in each of the five publications under review is whether she is to be assessed as making those five publications for some ulterior purpose - ie, a purpose beyond what was manifesting by her words on each occasion.
3. I begin from the now established position that each of the six publications enjoys, unless defeated by malice, the protection by common law qualified privilege.
4. As regards the first and fifth communications to Mrs Orohoe and Mr Beyer and Mrs Aikman's spontaneous interjection at the 2015 AGM (the sixth communication) - the plaintiffs' contention of an ulterior hurtful or commercial motive or purpose, beyond Mrs Aikman sending out what she wrote or her saying what she said for the ostensible purpose of each communication, is untenable. There was no evident level of pre-meditation in those communications.
5. A malice assessment is just slightly more arguable in respect of the second publication email to Mr Di Prinzio. However, my assessment of it is that overall the covering email attempting to enclose the 2014 AGM's minutes to Mr Di Prinzio did not exceed the bounds of that privileged communication. The only problematic issue possibly emerging from a malice perspective was reference to AW Co being 'sacked' as the strata manager of Seashells Scarborough and Seashells Yallingup. That was not, I find, an occasion of just passing on gossip: see Kingsfield Holdings Pty Ltd [344] - [345].
6. It was not sought to prove this was a factually false, or deliberately false, statement by Mrs Aikman as to AW Co's terminated management roles at the other resorts. She was conveying that information to Mr Di Prinzio, who she knew had had a past relationship with Mr King and could therefore verify for himself if he chose to agree with Mr King. That does not suggest to me a finding of malign intent in Mrs Aikman.
7. In none of the instances of communications under scrutiny am I dealing with a situation of a deliberate and falsely made statement, or a statement that has been proven to be factually wrong and was made knowing of its factual falsity, or even the contention of a degree of recklessness by Mrs Aikman in the making of her statements. The position here is therefore quite narrow as regards malice. The plaintiffs' contention was ultimately summarised in their written closing submissions of 28 November 2016 at par 29.
8. The essence of the malice contention falls to be assessed by reference to Mrs Aikman's circulation (and publication) of the Coombs Report on 2 April 2015. But it is significant that malice is not contended for by the plaintiffs in respect of Mrs Aikman's covering email that sent out the attached Coombs Report to about 20 persons (mostly owners). Yet malice is contended for in respect of Mrs Aikman's defamatory republication of the Coombs Report.
9. If attention is given to the actual terms of Mrs Aikman's covering email, there is no reason not to take the statements it contains at face value. Nothing in the cross-examination of Mrs Aikman undermined that position on my assessment.
10. I would find that Mrs Aikman's dominant purpose in circulating the Coombs Report was essentially to seek financial and moral support from likeminded strata lot owners at Seashells Mandurah, who she thought might assist the efforts of herself and others, such as Mr and Mrs Orohoe, Mrs Ivankovich and Mr Beyer, in the future to advance steps to have the matters, particularly the conflict of interest observations made by Ms Coombs, taken up and acted on in the future.
11. Allied to that was Mrs Aikman's efforts to try to get more Seashells Mandurah owners involved. Hence her observation that 'us girls have done enough'. She was also seeking to raise money to meet the cost of having the Coombs Report prepared. None of that was illegitimate. None of it, I would find, was done for the improper purpose of intending to injure the plaintiffs or in a retaliation for multiple past instances of bullying and harassment. Nor was it done to advance her own rival management business interests against AW Co, I would find.
12. There may have been some perception in Mrs Aikman that she was pursuing a very righteous cause as against Messrs King and Rakich, who she held in low regard. But that is not the point. Notwithstanding an existence of a level of ill will, which may well have been justified in her mind based upon adverse prior experiences and encounters, malice has not been proven to my satisfaction in respect of this communication or, indeed, any of the five communications at issue.
13. As I have already observed, the email communications to Mrs Orohoe on 28 July 2014 (first publication) and to Mr Beyer on 17 April 2015 (fifth publication), were very limited communications in terms of their recipients. There is no reason to assess those communications as anything other than relatively spontaneous communicative email responses sent back to sympathetically aligned persons at Seashells Mandurah with whom Mrs Aikman was in close and regular association.
14. Likewise, the communication to Mr Di Prinzio and Mrs Lazarus (second publication) presents to me as being clear enough for a purpose of providing Mr Di Prinzio with the requested minutes of the strata company's 2014 AGM - in order for him to facilitate a sale of Mrs Lazarus' strata property at Seashells Mandurah. That Mrs Aikman went a step further in her communication and added extra observations about AW Co being 'sacked' as manager for Seashells Scarborough and Seashells Yanchep does not show an improper motive or purpose in sending the email.
15. Likewise, Mrs Aikman's verbal remarks by interjection at the 2015 AGM (the sixth publication) present to me as being made for a purpose of responding to Mr Ward, who was speaking at the time. To suggest that her spontaneous communication from the floor of the meeting was anything other than her attempt to make her point to Mr Ward and to the meeting (out of order as it was), is not tenable.
16. There is no contention of malice in respect of Mrs Aikman's email of 2 April 2015, which sent out the attached Coombs Report. The essence of the attack alleged her predominant purpose for circulating (republishing) the Coombs Report was to injure by way of her retaliation. This was allegedly borne out of her ill will accumulated over time, or to unfairly advance her own rival management business interests to the detriment of AW Co.
17. On my assessment, that is also not a tenable argument. This is evident once the circumstances in which the Coombs Report was commissioned and obtained is understood (ie, as a culmination of the SAT proceedings and Mrs Orohoe's conduct in sending out the report once received).
18. By my assessment, the terms of Mrs Aikman's email of 2 April 2015 should be taken at face value - as to what she said in it to other strata lot owners. I assess it as an attempt by Mrs Aikman to solicit support and money from other sympathetic owners at Seashells Mandurah and to gather support for them as a group to take further steps as regards convening an EGM of the strata company at which the other owners and herself would all be participants. Mrs Aikman wished other owners to be fully informed and to have access to the Coombs Report, as had Mrs Orohoe in her communication to Mrs Aikman, sent on the previous day, 1 April 2015. That does not suggest malice.
19. On its face, the Coombs Report at places lent some provisional support, on my assessment, to expressed management conflict of interest concerns held by Mrs Aikman and other owners aligned with her at the time.
20. Mrs Aikman was perfectly entitled to communicate the content of the Coombs Report to persons with the same Seashells ownership interest as herself. The occasion of common law qualified privilege was not lost. The Coombs Report as an attachment was a professionally drawn report by a forensic accountant. It essentially spoke for itself. It is prepared on a professional basis for persons interested enough to wade through its rather dense content.
21. In a later section of these reasons I shall render some further observations concerning Mrs Aikman's evidence under crossexamination.

The plaintiffs' reply pleading: Underlying facts and circumstances concerning the defendant's alleged malice in this action

1. The plaintiffs' amended reply (filed 4 October 2016) ('the Reply') under par 2.3 contends that five of the six publications complained of were 'each actuated by malice' (see par 2.3.3). The third publication complained of, namely, Mrs Aikman's covering email communication of 2 April 2015 sending out the Coombs Report, is not pleaded to have been a publication actuated by her malice. However, the Coombs Report attachment, which she circulated by that email, is said to have been a republication that was actuated by Mrs Aikman's malice (see par 2.3.3).
2. In the Reply there are 37 paragraphs of particulars to par 2.3.3, all of which are asserted to be particulars of Mrs Aikman's malice. On analysis, they read like an unfocussed and rambling narrative, rather than properly crystallising why it is said Mrs Aikman made the five communications by acting with an improper motive or an improper intention at those times. Only the plaintiffs' written closing submissions at trial of 28 November 2016 finally clarified what ought to have been made explicit much earlier by the Reply. Paragraph 29 of those closing submissions says:

The inference can be drawn that the dominant purpose(s) for the defendant making the impugned publications was a desire to injure the plaintiffs and/or retaliation for what the defendant perceived to be bullying and harassment of her and her business.

1. Paragraph 30 of the written closing submissions identifies 15 different matters which are said to be 'matters of importance'. They represent, in effect, an attempted distillation of the 37 particulars of malice contained within the Reply.
2. Exceptionally, but under my leave in this action, the defendant then filed a rejoinder plea ('the Rejoinder') in the action. Paragraphs 2 through 38 of the Rejoinder responded on a seriatim basis to the plaintiffs' malice particulars - found under subpars A through KK of the Reply.
3. Within the framework of that Rejoinder by Mrs Aikman, it can be seen that the overwhelming majority of facts as are contended for by the plaintiffs' lengthy particulars of malice were actually admitted before trial as facts by the defendant. However, she nevertheless still explicitly denies that she was ever actuated by malice on any occasion against any plaintiff.
4. Almost all of the documents to which reference is made by the plaintiffs' malice particulars were tendered into evidence at the trial in the threevolume TB (exhibit 2). They were not controversial documents as to their proof or admissibility. They are essentially documents that speak for themselves.
5. Given the malice controversy, it is necessary for me to collect the facts together and then render my assessment concerning an end challenge which is put against the defendant that she was actuated by malice. I undertake that assessment on the basis that the onus of proof to make out that serious allegation, albeit at the civil standard, is an onus which the plaintiffs must discharge by sound evidence and respecting the Briginshaw standard: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 366 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449.
6. I also proceed on the basis that the plaintiffs must do more than show that Mrs Aikman bore a level of ill will towards them, was biased, or even lacked a belief in the truth of what she stated. Proving such matters can allow a basis upon which the inference of an improper purpose or an improper motive might be drawn. But the end assessment is one of fact - to be undertaken on a bespoken basis in each presenting case on each occasion at issue.
7. I have already mentioned Mrs Aikman was cross-examined extensively for over a day at the trial, essentially, I thought, to establish that she was actuated by malice on each of the five occasions pleaded under par 2.3 of the Reply - in her predominantly seeking to harm or injure the plaintiffs, rather than by intending only to communicate to the persons that she did on a privileged occasion (assuming occasions of qualified privilege are now taken to be established).
8. To facilitate the orderly collection of the facts evaluated in my assessment of the malice contentions, I set out below in seriatim fashion particulars A through to KK of the plaintiffs' Reply. Underneath each particular, I will also collect and then highlight in bold the response by Mrs Aikman's Rejoinder which, as seen, on the majority of instances, admits the facts asserted. For those occasions where the facts are not admitted or Mrs Aikman adds further qualifying pleas, then that response of Mrs Aikman can also be read.
   1. In or about 2003 or 2004, the defendant was employed, for a period of several months, as a property manager by one or more companies that were controlled by Mr King, and known as the Seashells group, and was directly responsible to Mr King.

1. The defendant commuted daily from her residence in Mandurah to a Seashells office in Scarborough.

1. Whilst employed as a property manager, the defendant took advantage of a staff discount and purchased a strata lot in Seashells Mandurah off the plan.

1. After a period of 3 to 4 months, the defendant resigned from her employment as a property manager and cited concerns with her health and commuting daily to Scarborough.

1. In or about October 2007, the defendant gave the required 90 day notice to remove her apartment from the on-site letting pool pleaded in paragraph 2.2 of the FASOC, and commenced carrying on the business pleaded in paragraph 5.2 of the FASOC.

1. The defendant knew, or ought to have known, from having purchased a strata lot in Seashells Mandurah, that the on-site manager could only be removed by a resolution passed by a majority of owners of strata lots in Seashells Mandurah.

1. Since commencing the business pleaded in paragraph 5.2 of the FASOC, the defendant has been involved in denigrating the management of Seashells Mandurah to owners of strata lots in Seashells Mandurah, prospective purchasers of strata lots in Seashells Mandurah and real estate agents representing prospective purchasers of strata lots in Seashells Mandurah, with a view to increasing the number of strata lots the owners of which utilise the defendant's services provided as part of the business.

1. In or about mid January 2008, the defendant telephoned Sue Knowles, who had in December 2007 purchased a lot in Seashells Mandurah, and engaged Ms Knowles in a conversation. During that telephone conversation, the defendant said words to the effect that:

(i) she was managing many units in the resort due to so many illegalities that were part of the ownership, development and strata management;

(ii) Paul King was a crook;

(iii) Paul King was developing and managing resorts without any care for the owners;

(iv) Paul King was in control of Accommodation West and hiving off owner profits for himself;

(v) the staff of Accommodation West were incompetent;

(vi) if Ms Knowles wanted to protect her investment, she would guarantee an outstanding return that Accommodation West could not hope to match;

(vii) everything Paul King touched was crooked; and

(viii) in response to Ms Knowles expressing disagreement with the defendant about the statements she was making, you're not Sue Knowles are you? Of course you'd be a friend of Paul King because you're both crooks together.

1. Prior to the 2009 Annual General Meeting of the Strata Company for Seashells Mandurah ('AGM'), the defendant wrote to the owners of strata lots in Seashells Mandurah regarding the receivership of Comet Bay and asserted that SHG and Mr King were involved in the demise of Comet Bay.

1. At the 2009 AGM, the defendant questioned the ownership and lease arrangements of Lot 17, the caretaker's apartment, and the Strata Management Agreement and whether it was open for consideration by other entities.

1. At the 2009 AGM, the defendant questioned whether strata funds had been used to pay for legal fees incurred by SHG, as a result of SHG's lawyers writing to her regarding the unauthorised use of the Seashells name when advertising her apartment.

1. In or about 2010, the defendant wrote to all owners of strata lots in Seashells Mandurah who were part of the on-site letting pool pleaded in paragraph 2.2 of the FASOC and offered her services to manage their apartments, in lieu of SHG. The defendant offered owners the ability to enjoy the use of their own apartment for as long as they wanted if their property was managed by the defendant notwithstanding that the City of Mandurah Town Planning Scheme No. 3 restricted owner use to a maximum of 3 months per calendar year.

1. Since commencing the business pleaded in paragraph 5.2 of the FASOC, the defendant has, on at least two separate occasions between 2007 and 2013, sent letters to owners of strata lots in Seashells Mandurah advertising her business and offering to manage their apartment.

1. In or about 2008, the defendant registered the business name 'Shells by the Sea' and carried on the business pleaded in paragraph 5.2 of the FASOC under that name.

1. In or about 2010, lawyers engaged by SHG sent a letter of demand to the defendant alleging infringement by the defendant of SHG's intellectual property rights. On or about 2 June 2010, following further correspondence between SHG's lawyers and the defendant, a settlement was reached, without Court proceedings being commenced. Pursuant to settlement the defendant gave a [sic] undertaking to immediately cease and desist and irrevocably and unconditionally indemnified for any and all loss, including legal fees.

1. On or about 18 May 2011, the defendant sent a letter to owners in Seashells Mandurah advertising the services of the business pleaded in paragraph 5.2 of the FASOC, then carried on under the name Shells by the Sea, which letter made reference to the growth of the defendant's business and that the defendant was actively looking for more apartments to manage. The letter also referred to the defendant offering the best personal service and an honest and transparent accounting process.

1. In or about June 2011, the defendant again used Seashells imagery and branding in a brochure and on a website. Lawyers engaged by SHG again wrote to the defendant regarding he conduct. In or about July 2011, prior to Court proceedings being commenced, the defendant agreed to, and did, change the name of the business she was carrying on to 'Waters Edge Luxury'.

1. On 17 June 2011, the defendant sent an email to Adam Levitan of Summers Legal, the solicitors for SHG, and Gareth Thomas of SHG, which was copied to her owners, in which the defendant stated that 'some of my owners have suggested that we take group action against Seashells Hospitality Group'.

1. On or about 22 June 2011, the defendant sent an email to Adam Levitan of Summers Legal, the solicitors for SHG, in which the defendant made an effort to sell strata lot 23 in Seashells Mandurah and the business pleaded in para 5.2 of the FASOC to SHG for a price of $425,000. Included as a term of that offer was the ability for SHG to elect to exclude the defendant from managing property in the future except for the defendant's own personal properties outside of the Seashells Mandurah building.

1. In or about 2012, the defendant commenced using a storage unit located within Seashells Mandurah for storing linen, keys and cleaning equipment for use by her in the business pleaded in paragraph 5.2 of the FASOC. On or about 30 April 2012, a formal complaint was made to the Council of Owners of Seashells Mandurah by Lynn Orohoe, who was at that time a member of the Council of Owners.

1. In or about January 2013, the defendant commenced managing a residential zoned villa in Seashells Mandurah which included a garage. The defendant used the garage for the purposes of the business pleaded in paragraph 5.2 of the FASOC. Repeated requests were made by the Strata Manager to the defendant, at the direction of the Council of Owners of Seashells Mandurah, and to the proprietor of the villa, to cease all operations from the garage, which requests were not complied with. In or about July 2013, the Strata Company for Seashells Mandurah commenced proceedings against the defendant in the SAT, being matter number SAT 984/2013.

1. In or about June 2013, the defendant uploaded to the website 'www.watersedgeluxury.com.au' images the copyright in which was owned by a photographer who had been engaged by SHG to provide images for use by SHG. In addition, the website referred to 'Seashells' in bold text without identifying any address. Lawyers engaged by SHG wrote to the defendant alleging passing off, breach of copyright and breach of the undertaking signed by the defendant in June 2010. SHG subsequently commenced proceedings Seashells Hospitality Group Pty Ltd v Aikman PER/MINOR/12130/2013 in the Magistrates Court of Western Australia. On 4 March 2014, the matter proceeded to trial and judgment was given in SHG's favour. The defendant was ordered to, and did pay, SHG damages of $4,827.01.

1. On 2 July 2013, the defendant sent an email to Taylor Woodworth of Summers Legal, the solicitors for SHG, in relation to PER/MINOR/12130/2013 in which the defendant wrote:

(i) 'Please advise your client that if they try and take me to the Supreme Court over this I will be forced to take my own action which will involve a class action';

(ii) 'Your client should reconsider these bullying tactics and perhaps cast their minds back to the last Strata meeting';

(iii) 'There are many people angry and very disturbed over their bullying tactics';

(iv) 'I will not be bullied and I have already had people offer to help me fund a class action and work with me on this';

(v) 'The ACCC have been speaking with owners of late. There is another owner going to SAT;

(vi) 'I am entitled to write to the owners about these bullying tactics and further bullying will only add to the current problems';

(vii) 'Can Seashells afford further bad press?';

(viii) 'If your client does not want me leasing apartments in the complex well I can understand that - perhaps it's time to have a meeting'; and

(ix) 'If I do not get a reply within 24 hours to dismiss your intended actions I will proceed with my own and then Seashells will be dealing with more than one angry owner'.

1. On 25 July 2013, the defendant sent an email to Taylor Woodworth of Summers Legal, the solicitors for SHG, in relation to PER/MINOR/12130/2013, in which the defendant requested that Summers Legal 'advise today if this account is going to be withdrawn - if it is not I will go into print tomorrow and will take my own actions to sue Seashells for loss of business thru their varied actions against my business'.

1. In or about August 2013, in SAT matter 984/2013, the defendant wrote to the SAT and submitted that 'there is a trend to leave the onsite manager and instead just having my own apartment to manage I now have many apartments in the complex to manage. This did not start out as a business enterprise but as an assistance to other fellow owners in the resort who wanted a way out. Thru the dissatisfaction of owners and the incompetence any bullying of this management group I now have a business that requires an office, fulltime staff and a lot of dedication from myself'.

1. On 13 September 2013, by a letter from Baldivis Law and Mediation, solicitors for the defendant, to Gareth Thomas of SHG, the defendant made an offer to sell strata lot 23 in Seashells Mandurah and the business pleaded in paragraph 5.2 of the FASOC to SHG or its nominee for a price of $330,000.00 plus GST. At that time, the market value of strata lot 23 was in the order of $180,000. The terms of the offer included a term that the defendant would forthwith close down the business completely, enter into a restraint of trade to not compete with SHG and vacate the garage at Seashells Mandurah which was the subject of SAT matter 984/2013.

1. In September 2013, the defendant complained to the Australian Competition and Consumer Commission ('ACCC') and the Australian Security and Investments Commission ('ASIC') about Accommodation West and SHG.

1. On 18 September 2013, in Magistrates Court matter PER/MINOR/12130/2013, the defendant sent an email to the Perth registry of the Magistrates Court and submitted that:

(i) 'this is just a matter of "sour grapes" against this owner and myself as I have 18 other apartments which I privately manage in the building';

(ii) 'at the moment I am defending other matters for other owns in the State Administrative Tribunal - which is ongoing. There has been some further two complaints lodged against this Company Seashells Hospitality and their sister Company Accommodation West. One with ASIC and the other with the ACCC';

(iii) 'we are currently awaiting advise [sic] from both these Government Bodies and will probably be going to trial in the ensuing months as a form of class action by a group of owners of this Strata Company'; and

(iv) 'the owner and I want this matter to be dismissed totally'.

1. On 18 September 2013, in SAT matter 984/2013, the defendant wrote to the SAT and submitted that:

(i) mediation should be deferred until after the ACCC and ASIC had contacted Accommodation West and SHG and provided the defendant with their findings; and

(ii) Accommodation West 'has had several problems in their other resorts as well with their Strata Management to the extent that Scarborough Resort was taken to the Supreme Court and then removed.'

1. On or about 10 September 2013, in SAT matter 984/2013, the defendant sent a facsimile to the SAT and submitted that:

(i) 'Mr Rakich has been presenting himself at SAT as a professional and as an expert in his field of Strata Management. Myself and other owners have been searching but have not found any proof of any such qualifications and I now suggest that Mr Rakich MAY not be qualified to hold this position. He has no accreditation and we have been unable to find any other qualifications';

(ii) 'BRIAN RAKICH - is an owner and also the Strata Manager of Accommodation West who lodged this SAT application. He is also an employee of Accommodation West and a business partner of PAUL KING who is the Managing Director of the Seashells Hospitality Group (The onsite Manager). PAUL KING is also a business partner with Brian Rakich in PROJECT MARKETING AUSTRALASIA. They are both directors. This is a conflict of interest as they both have vested financial interest in the productivity of the Onsite Manager business'.

(iii) 'Conclusion - with this knowledge at hand it would seem quite clear there is a huge conflict of interest happening here between the onsite manager and the Strata Company and that would appear to be the reason that the Council of Owners did not call an EGM with invitations to all owners to agree to the action put forward and the cost involved'.

(iv) 'It has also come to my attention that BRIAN RAKICH and ACCOMMODATION WEST have just this month been terminated from the Strata Management role at Seashells Yallingup as they were many years ago by the Owners of the Seashells Scarborough. I have not seen any legal documents on this but I have been told by several it was because of mismanagement and Brian Rakich's general attitude toward the owners'.

(v) 'This application is all about bullying and collusion'.

1. In or about November 2013, during mediation in SAT matter 984/2013, the defendant stated to Mr King that, if he purchased from her the business pleaded in paragraph 5.2 of the FASOC and strata lot 23 in Seashells Mandurah, she would retire. Mr King told the defendant that he would only consider purchasing the business and strata lot 23 on the basis of a valuation, which proposal was rejected by the defendant.

1. At the 2013 AGM, the defendant requested that all telephone internet and Foxtel provided to the apartments which were managed by SHG, should be made available to all apartments in Seashells Mandurah. At the AGM, it was noted that the building was smart wired which facility can be accessed by all owners and all residential owners make their own arrangements with telephone providers. The telephone system was installed by the on-site manager and when owners leave the on-site rental pool, the on-site manager disconnects the rented phones. The owner is then required to re-connect the phone with their own supplier. The AGM also referred the Foxtel package to the Council of Owners for further consideration and that consideration be given to providing WiFi provided that it did not exceed a cost of $10,000. Following the AGM, the Council of Owners determined that the Strata Company for Seashells Mandurah should not consider installing Foxtel for all owners; and as quotes for WiFi exceeded the cost of $10,000.00, the Council of Owners decided to not proceed further.

1. The Coombs Report expressly stated that it was not to be distributed without prior written consent of Paramount Wealth Accountants.

1. At the 2015 AGM, the defendant again requested that Mr King purchase from her the business pleaded in paragraph 5.2 of the FASOC and strata lot 23 in Seashells Mandurah.

1. On or about 29 June 2015, the defendant sent an email to owners in an on-site letting pool for Seashells Yallingup advertising the business pleaded in paragraph 5.2 of the FASOC, which email made reference to the defendant currently managing 18 apartments in Seashells Mandurah.

1. In or about May 2015, the defendant, at a clothing boutique in Mandurah engaged in conversation with a Rachel McLachlan, who said to the defendant that she was looking for an investment property in Mandurah. The defendant said to Ms McLachlan words to the effect that:

(i) the defendant was the leading holiday management company in Mandurah;

(ii) the defendant currently managed 18 apartments in Seashells Mandurah but that by Christmas she would have the lot;

(iii) the Seashells Mandurah strata was going broke;

(iv) there were numerous complaints from owners;

(v) it was poorly managed and run;

(vi) Paul King and his crew were going bankrupt;

(vii) Paul King had been bankrupt before; and

(viii) that they have the worst reputation in Mandurah, ask anybody.

1. It is to be inferred from paragraphs 14(c), 18(c), 22(c), 26(c) and 30(c) of the Defence, and the particulars thereof, that the defendant believed that all persons to whom the publications pleaded in the FASOC were made had such fixed views about the plaintiffs, or each of them, that the publications would not change those views.

Mrs Aikman's cross-examination: Privilege and malice related issues

1. Mrs Aikman was intensively and extensively cross-examined at the trial upon her witness statements. As I have already said, this was, on my assessment, largely an attempt to show that Mrs Aikman was actuated by malice as regards five of the six publications complained of and thereby defeating any defence of qualified privilege which would have otherwise protected her from a defamation exposure.
2. The plaintiffs bear the onus of proving that Mrs Aikman was actuated by malice on the civil standard at the times she made the five publications.
3. At the end of the trial Mrs Aikman's evidence and her overall credibility was strongly criticised by the plaintiffs' counsel in his closing submissions. I do not repeat all of those many criticisms.
4. It was generally put on behalf of the plaintiffs that Mrs Aikman was a highly unsatisfactory witness whose evidence should not be accepted in any respect. The criticisms included that Mrs Aikman gave long, rambling and unresponsive answers to questions put to her, that she gave answers that gratuitously volunteered non-responsive extra information, and that her answers were often inconsistent. This was all said to be designed to advance her position (at least to her mind).
5. It was said that Mrs Aikman in the past had made baseless threats to report the plaintiffs to statutory authorities including to ASIC or to the Australian Competition and Consumer Commission. It was submitted that Mrs Aikman's responses to questions were, generally speaking, shaky and that she had exhibited overt hostility against the plaintiffs, thereby betraying a deep seated resentment against them which had been nurtured over the years.
6. The day-long cross-examination of Mrs Aikman traversed over a history of numerous past incidents, transactions or clashes as between her and the plaintiffs or plaintiff-related entities (such as SHG). Much of that happened years prior to the five publications in issue as regards evaluating malice allegations.
7. A traversal of numerous incidents and the multiple (mostly admitted) documents surrounding them, being generally documents either emanating from Mrs Aikman, or sent to her by the plaintiffs or by plaintiffrelated entities and their agents, or by lawyers acting on the part of the plaintiffs at the time. They were canvassed at considerable length during the crossexamination of Mrs Aikman. Materials relating to Magistrates Court proceedings taken against Mrs Aikman over costs or proceedings before SAT were particularly trawled over. The many documents and incidents traversed with Mrs Aikman in crossexamination included all the incidents which are the subject of the particulars of malice found in the plaintiffs' Reply to which I have referred - the great majority of which were admitted under Mrs Aikman's Rejoinder, as has been seen.
8. The scale of this traversal of ancient history across three lever arch volumes of TB documentation (all submitted into evidence uncontroversially), was overwhelming in magnitude. It extended chronologically back to shortly after the commencement of Mrs Aikman's purchase of her unit at Seashells Mandurah as an investment in 2003. As discussed earlier, this apartment was not her primary residence. Mrs Aikman resided somewhere else in the general Mandurah locality. But she would, from time to time, stay at her Seashells Mandurah unit when it was not otherwise rented out to third party short stay visitors.
9. I do not recount all past incidents canvassed in the crossexamination process of Mrs Aikman. They included significantly:

(a) Mrs Aikman's commencement of a rival management business at Seashells Mandurah (then later at other locations) under the trading name of 'Shells by the Sea' - that trading name being swiftly objected to by the plaintiffs or the Seashells Mandurah operators, in effect, on the basis that the name chosen by Mrs Aikman was too close to that of 'Seashells', thereby carrying consequences as to Mrs Aikman's commission of the tort of passing off or of statutory misleading and deceptive conduct by using that misleading trading name for her business;

(b) Mrs Aikman's alleged misuse of Seashells' intellectual property in her business's advertising brochures used in promoting her short stay accommodation management business, including the unauthorised use of copyright protected photographs sent to her by another owner to use, but which were actually the licensed intellectual property of Seashells Mandurah (as regards a photograph of the Seashells Mandurah building, or its surrounds and its facilities). There was also a complaint made over Mrs Aikman's use of the name 'Seashells Mandurah' in her promotional brochure, used to identify the geographical location of the available short stay premises in her advertising material to direct potential customers to that location;

(c) a use by Mrs Aikman's rival management business of some garage premises at Seashells Mandurah (under the consent of the lot owner whose garage and property was then being managed by Mrs Aikman's business) for storing cleaning materials - in circumstances where it was said that her use of the garage to store cleaning materials was a breach either of local by-laws or of strata by-laws, resulting in threatened SAT action over that; and

(d) alleged violations of SAT's procedures or SAT's confidentiality orders through Mrs Aikman's communications to third persons by telling them what had happened at SAT in relation to the applications involving either the plaintiffs or the owners of Seashells Mandurah - to third persons who at the time shared Mrs Aikman's position of some dissatisfaction over the overall management of the Seashells Mandurah resort.

1. Given the serious character and implications for this action of the assertions of malicious intent put against Mrs Aikman raised by the plaintiffs, I have given especially close attention to her cross-examination, both at the time and subsequently by reviewing the transcript of her evidence. But having seen and heard Mrs Aikman crossexamined at great length, I have not at the end been satisfied as to a position of concluding on the balance of probabilities that she was actuated by a malevolent intent on any of the five occasions at issue (for all publications except the third - where malice is not alleged). I have approached malice in the sense of evaluating whether her dominant motive on each of the five occasions was either advancing her own rival business interests, or of wilfully attempting to inflict retaliatory harm upon one or other of the plaintiffs by sending any of the five communications in respect of which this charge of a dominant improper motive is alleged against her.
2. I have approached and have reassessed all of Mrs Aikman's evidence at the trial with caution. I certainly do not accept everything she has said at trial unreservedly. But, at the end, my assessment of Mrs Aikman's evidence as a witness, across the course of what was for her an obviously gruelling process, was that it was overall satisfactory enough upon the core issue of her intentions as regards the five relevant publications.
3. Whilst Mrs Aikman was not a perfect witness, my general assessment is that she did not provide knowingly false responses to questions put to her in crossexamination. By my assessment, she attempted, across a long period of questioning where she obviously became tired and found herself provoked on occasions by the nature of the questions asked, to answer questions to the best of her ability.
4. I formed an impression from her evidence that events over a number of years prior to the publications complained about had accumulated and led to her holding multiple grievances against the Seashells Mandurah management. She may have been wrong about some things but I was quite satisfied that she was genuine about all these matters. Moreover, on my assessment, she was on the receiving end over time of some unnecessary pettiness from the conduct of Mr Rakich towards her and her supporters.
5. Overall, I consider that Mrs Aikman had not become so bitter or twisted that she had lost all reasonable perspective, or simply loathed the plaintiffs on some irrational or malevolent basis.
6. It may be accepted that, in general, Mrs Aikman thought very poorly of Messrs King and Rakich especially by 2014 to 2015. That was based on an unhappy catalogue of prior commercial experiences assembled over some years.
7. It is neither feasible nor appropriate to conduct mini-trials upon the ultimate merits or demerits of the too many past disputes or clashes which erupted over time involving Mrs Aikman and Seashells Mandurah's management or its related corporations. It is enough for me to generally assess, as I look across the three lever arch files of documents assembled around the Seashells Mandurah events, that in some of these disputes Mrs Aikman was not the only strata lot owner then dissatisfied with Seashells Mandurah's management. There was a minority cohort of strata lot owners who held a not unreasonable perspective that was then aligned with Mrs Aikman's dissatisfactions over policies, practices and positions taken by the plaintiffs as regards the running and the management of Seashells Mandurah for its then over 100 different strata lot owners.
8. Viewing a number of these incidents by reference to the contemporaneous documentation which was generated at the time (and through which I was helpfully taken by defence counsel, Mr Potter, in opening), my assessment is that Mrs Aikman was not the 'villain' that she was portrayed to be by the plaintiffs. To the contrary, my overall impression, admittedly at some distance now from these past events, is that at times the tone of the communications Mrs Aikman received, either by Mr Rakich, or plaintiff related entities and agents, or from their appointed legal representatives was heavyhanded and came uncomfortably close to being overbearing in nature, seeking, in effect, to crush an opposing minority of irritating dissenters. This may be seen in several communications that passed from Mr Rakich, preceding the fifth publication of Mrs Aikman to Mr Beyer. This was Mr Rakich's rather nasty communication - in respect of which Mrs Aikman made, in effect, by reply what I assess as her sarcastic observation concerning her not getting a copy of what Mr Rakich had sent to all other owners.
9. By my assessment, what Mr Rakich wrote earlier about strata lot owners, such as Mrs Orohoe and Mr Beyer, who were then aligned in their positions of dissatisfaction with Mrs Aikman, was unacceptably insulting in tone. It is no real surprise then that Mrs Aikman reacted to it as she did. But she copied in Mr Rakich to her response, putting, in effect, her reply 'cards on the table' to him. I have already mentioned that a subcomponent of the law applicable to qualified privilege is the situation of a proportionate reply by a person to an attack against them. Other exchanges to the same ilk could easily be collected. However, that collection exercise is disproportionate to the overall rather petty and trifling nature of a number of these defamation claims by the plaintiffs and is unwarranted.
10. I have no doubt Mrs Aikman held Messrs King and Rakich in poor regard at the time she made her five communications complained about as being malicious. But that alone does not establish malice in terms of showing that they were sent by her for some improper collateral purpose such as advancing her own rival business interests or for the dominant purpose of spitefully 'tipping a bucket' on them to damage their reputations.
11. When suggestions of her malice were put directly to Mrs Aikman during crossexamination, she always rejected that proposition. I would accept her denial evidence in that respect. My assessment is that when Mrs Aikman spoke or wrote as she did in the five communications at issue, she was speaking or writing spontaneously and for a proper purpose of communicating her genuinely held and not unreasonable views to the usually very limited number of recipients, or the owners who had assembled in person at the strata company's AGM, where she was, of course, perfectly entitled to express her views. I find no underlying improper or sinister purpose in any of her five communications at issue on my assessment. As I have indicated, some of the communications received from the plaintiffs or their legal advisers or related entities put to Mrs Aikman had been very strongly worded and rendered strong criticisms about her.
12. It is also clear from the trial documents that Seashells Mandurah's management over time formed an adverse view of Mrs Aikman and of those dissentients who supported her in her rival management business. My assessment is that some persons in Mr Rakich's sphere of influence at Seashells Mandurah unduly went out of their way to make things as difficult for Mrs Aikman as possible. To that end, see particularly what I assess as the high levels of pettiness exhibited over Mrs Aikman storing some cleaning materials in a garage at Seashells Mandurah. By my assessment, this provides considerable insights into the combative approach Mr Rakich adopted against her over time.
13. Overall, I do not assess the position concerning Mrs Aikman over time to establish a picture of a spiteful or bitter woman determined to inflict damage to the plaintiffs' reputations at convenient opportunities as they arose. Rather, Mrs Aikman, by my assessment, presented as a strong-minded woman who, when challenged, would stand up for herself - making her even more of an irritant to Mr Rakich who, in the end, sought to crush her as an individual by the present oppressively collected (and expensive to fight) defamation charges.
14. Mrs Aikman was not a perfect or faultless participant in her interactions over the years with Seashells Mandurah's management. But that is rarely seen in life. The fact a determined woman was prepared to stand up for herself in the face of provocations directed at her over many years looks to have irked Mr Rakich and some of his surrounding management team at Seashells Mandurah. This underlies, in my view, a number of the communications which passed between the parties over the years. There is little to be proud of from the plaintiffs' perspective over such past petty incidents. But I certainly do not find or infer malice as against Mrs Aikman in respect of the five publications now canvassed.

1. Irrespective of the ultimate rights and wrongs over a clash of perspectives concerning conflicts of interest and management related issues at Seashells Mandurah, Mrs Aikman was legitimately aggrieved, as were others, about the management of the strata company by AW Co through its employee, Mr Rakich. She and those aligned with her were entitled to freely speak about and discuss their concerns and, indeed, to circulate the Coombs Report which gave at least some level of provisional support for those concerns. The malice challenge against Mrs Aikman in respect of her circulation (republication) of the Coombs Report on 2 April 2015 fails.
2. Consequently, all the plaintiffs' claims against Mrs Aikman fail. Their action is dismissed with costs following that event in Mrs Aikman's favour.
3. I will hear from the parties as to further orders, including as to Mrs Aikman's costs.

From: Susan Aikman [mailto:susan@watersedgeluxury.com.au]

From: Susan Aikman [mailto:susan@wateisedgeluxuiV.com.au]

Please note - they are not great to show a perspective investor

I spent most of last year in the State Administrative Tribunal with an owner of mine fighting certain

At the moment there are also several other owners involved in a SAT matter and the SAT awarded the owner's rights to have a forensic accountant go thru Accom Wests Strata financials for Mandurah

Accom West have been sacked as Strata Managers for Seashells Scarborough years ago and recently

Seashells in Yallingup. I believe there are now issues with Seashells Yallingup onsite management.

Seashells Mandurah have refused to give any copies of the Strata accounts which we needed and after twelve months at SAT the SAT people overruled Brian Rakich and Paul King pleas.

It will be a few weeks before we get the outcome from the Forensic accountant.

I realise you have been an associate with Paul King and he would have a different story.

However, Leanne Lazarus was at the last meeting and would be happy to discuss any of these issues with you I am sure.

From: Brian Rakich [rnailto:brakid1@accommodalionwest.com.au]