Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman

Issue 1 - Publication of the email material

1. Ms Chapman, who was the undisputed guiding mind and director of the first defendant company, conceded that she had published the matter complained of to two groups of recipients: T288.40 - T289.12. I find that she must be taken to have done so not only for herself, but also in her capacity as director of her company, the first defendant: T317.4 - T317.14. The publication was to the 32 persons identified in Exhibit "1", pp 61-62.
2. All of the persons to whom the matter complained of had been sent were parents who had children at the defendants' Haig Street Childcare Centre: T311.19 - T311.22. Mrs Tieu received the material of which the plaintiff complains, on or about 4 April 2016: T118.33; T119.31 - T119.33. I infer from the format of the emails, and from the fields within them, on the balance of probabilities, that the matter of which the plaintiff complains was also published to those other named recipients.
3. Ms Chapman confirmed that all recipients would have known at the time the emails were received by them, that the reference to "Matt" in the emails identified the plaintiff: T317.19 - T317.22. At that time there were no other persons of that name or a similar derivative name employed by the defendants.
4. Therefore, on the evidence cited above, I cannot accept the submission made on behalf of the defendants that the plaintiff has not discharged his onus of proving the material complained of had been relevantly published. In my opinion, the evidence is overwhelmingly to the contrary of that submission.
5. I therefore find that the material of which the plaintiff complains was relevantly published.

Issue 2 - Imputations

1. The next issue to be determined is the question of whether in each instance, the accusations or imputations pleaded by the plaintiff, are in fact conveyed.

Principles

1. The principles to be applied in determining the existence, capacity and defamatory meaning of imputations are well settled: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, at [60]; Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257, at [62]-[68].
2. Essentially, the test to be applied in this case is whether or not the ordinary reasonable reader of the emails complained of, would find that the pleaded imputations relating to the plaintiff were in fact conveyed. In addressing that question, the primary focus of attention must be to the ordinary natural meaning of the words of which the plaintiff complains, when considered within the context of the email when read as a whole.
3. In that regard, the relevant parts of the email content that must be read and considered in this case include the range, identity and connection of the addressees to the plaintiff, as well as the content cited at [4] above, under the heading "Staff Updates".
4. In that context it is plain from the terms and the structure of the emails that Ms Chapman sent the emails not only for herself, but also in the capacity of her role as the director of the company that employed the plaintiff.
5. I now turn to the consideration of each of the pleaded imputations as identified in [15] above

Imputation (a) - the plaintiff is dishonest

1. The defendants sought to describe imputation (a) in diminished terms as "an attribution of general character and hence not conveyed". It was submitted that such conclusion should prevail because the emails specify one instance of dishonesty and do not suggest a general attribute of dishonesty.
2. In my view, that submission should be rejected as the ordinary natural meaning of the words "Matt was not truthful with us regarding his studies and some other issues" conveys multiple acts or instances of the plaintiff not being truthful. I accept the plaintiff's submission that the allegation of a number of acts of untruthfulness conveys the condition of dishonesty. I therefore find that imputation (a) is sustained.

Imputation (b) - untruthful regarding studies and other issues

1. The plaintiff submitted that imputation (b), namely that he "was not truthful with Hubba Bubba Childcare regarding his studies and some other issues" was conveyed. The defendant ultimately conceded that imputation (b) is conveyed, and accordingly, I so find.

Imputation (c) - fired for disciplinary reasons

1. In respect of imputation (c), the defendants argued that since the word "fired" was not used by Ms Chapman in relation to her dealings with the plaintiff, and since other words carrying a similar degree of ignominy were not used by her, the compulsory aspect of the cessation of the plaintiff's employment at the Hubba Bubba Childcare Centre had been downplayed in Ms Chapman's email to parents.
2. The defendants further argued that the words chosen by Ms Chapman raise for the reader a number of possibilities, ranging from a constructive dismissal to a dismissal simpliciter, which, it was argued, also raised the possibility that Ms Chapman did not want the plaintiff presented to the readers of the emails as having incurred the most severe form of denouncement in his employment, namely dismissal or having been "fired".
3. In my view, those submissions should be rejected because they are based on a most selective and incomplete reading of Ms Chapman's emails whereas the content should be read as a whole. Furthermore, as was correctly pointed out in the plaintiff's submissions in reply, the defendants' submission appears to be an admission that the "fired" imputation was in fact conveyed.
4. I find that the ordinary natural meaning of the words: "Matt - is no longer with us due to disciplinary reasons", when considered in conjunction with the words: "I felt it was better for him to move on …", make it clear that it was Ms Chapman, and not the plaintiff, who chose to terminate the plaintiff's employment. Consequently, I find that the "fired" imputation is conveyed and I therefore find that imputation (c) is sustained.

Imputation (d) - conduct leading to termination of employment

1. The defendants submitted that imputation (d), namely that the plaintiff "conducted himself in such a manner that a childcare centre terminated his employment", is simply repetitive of imputation (c). The defendants also argued that imputation (d) has no context and, it was argued, says nothing of the plaintiff that is not said to be attributed to him by imputation (c).
2. In that regard, the defendants further argued that the only difference between imputation (d) compared to imputation (c) was the generality of the language employed, where the substance of imputation (d) is that the plaintiff was fired on account of his conduct at the childcare centre. The defendants argued this was subsumed in imputation (c), namely, that the plaintiff "was fired for disciplinary reasons".
3. I consider those submissions by the defendants should be rejected because of the ordinary natural meaning of the words used, where those words invoked unspecified disciplinary reasons arising from the nebulous, more ominous, yet opaque words: "some other issues".
4. I find that an ordinary reasonable reader of the matter complained of would take the meaning as was submitted by the plaintiff, namely that the plaintiff's conduct resulted in the termination of his employment. I therefore find that imputation (d) is sustained.

Imputation (e) - unfitness to work in childcare

1. The defendants submitted that imputation (e), namely that "the plaintiff is not a fit person to work in childcare" should not be sustained because it alleges an indefinite unfitness to work only in Ms Chapman's Hubba Bubba Childcare Centre, but also in "childcare" generally for an unspecified period, whereas the email is said not to foreclose future employment in childcare, but "by implication", only for a "finite" period after the plaintiff gains a bit more life experience. The "finite" implication does not arise because the words used were contingent on the plaintiff gaining more life experience.
2. Therefore, I consider the defendants' cited submissions should be rejected for that reason and because the vague reference in the matter complained of to "some other issues", and in particular, the suggestion that the plaintiff should "possibly gain a bit more life experience". That statement by Ms Chapman was expressed in the present tense. It plainly conveys the imputation that the plaintiff should not be working in childcare. I find that emphasis arose, particularly so, where it is widely understood in the community that the childcare profession demands of its workers a high standard of personal integrity and behaviour so as to qualify for a certificate of clearance for working with children.
3. Although not necessarily determinative, a convenient alternative means of testing the defendants' argued position on imputation (d), is the obvious point that in any future applications for employment in the childcare sector, the plaintiff would almost certainly be obliged to disclose his previous employment positions in that sector. In that regard, due to the required standards of probity demanded in that profession, there would almost inevitably be employment and reference checks. If Ms Chapman were to be called upon to answer enquiries from prospective employers about the plaintiff's suitability or his work history, I consider that, consistent with the content of Ms Chapman's cited email representing her views, a cloud of unsuitability would most likely emerge around the plaintiff from such a conversation. I find that imputation (e) is sustained.

Conclusions on imputations

1. For the above reasons I find that each of the claimed imputations as relied upon by the plaintiff, as cited at [15] above, arise as claimed.

Issue 3 - Whether imputations carried defamatory meanings

1. For the reasons that follow, I find that each of the pleaded imputations convey a meaning that was defamatory of the plaintiff.
2. In their amended statement of defence filed in Court on 14 May 2018 (MFI "11"), the defendants did not admit that any of the imputations claimed by the plaintiff were defamatory. That was so notwithstanding that the stings of the imputations included the characteristics of dishonesty, committing acts of dishonesty, committing acts of indiscipline which led to dismissal, and being a person not fit to work in childcare.
3. In light of those matters, the plaintiff submitted that an ordinary reasonable person reading the matter complained of, would think that each of the imputations would injure his reputation, and would attract opprobrium, disdain, ridicule and contempt from society, and that each imputation was clearly defamatory.
4. Ultimately, and belatedly in my view, in final submissions, on behalf of the defendants, it was "accepted that all imputations as set out in the statement of claim (a) to (e) are defamatory". In my view, that concession was appropriate.
5. In my view, an ordinary reasonable reader would fairly draw from the text complained of by the plaintiff in the emails, a general conclusion, impression and understanding that was adverse to, and injurious to, the plaintiff's otherwise good reputation: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, at pp 575-576, at [134].

Issue 4 - Claimed defence of truth

1. In its distilled effect, the defendants submitted that in the event that imputations (a) to (e) are found to be conveyed by the emails in question, each imputation is substantially true: Amended defence dated 14 May 2018; MFI "11", par 5. In that regard, the defendants argued that the plaintiff had deceived Ms Chapman in relation to three relevant categories, namely: 1. His academic qualifications; 2. His performance of additional paid work; 3. His availability to complete study.
2. The pleaded defence of substantial truth is gleaned from paragraph 5 of an almost incomprehensible pleading that meandered over 8 pages (pp 2-10) of labyrinthine detail in sub-paragraphs and sub-parts to those sub-paragraphs, some of which was internally inconsistent and the large bulk of which was not made good by acceptable evidence.
3. A justificatory defence of substantial truth is permitted by s 25 of the Defamation Act, as follows: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
4. By s 26 of that Act, a justificatory defence of contextual truth is permitted, as follows: 26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Alleged deceit about academic qualifications

1. As to the first category of claimed deception by the plaintiff, the defendants submitted that on 5 June 2015, the plaintiff had represented to Ms Chapman that he had completed a Certificate III in Early Childhood Education and Care: Amended Defence filed 14 May 2018, par 5.A(ii). The truth defence asserts that on 5 June 2015, the plaintiff had represented to Ms Chapman that he had completed a Certificate III in Early Childhood Education and Care. Ms Chapman maintained that position in her evidence in chief and in her answers given in cross-examination, as well as in final submissions made on her behalf (Defendants' written submissions, par 62), which were in response to the plaintiff's written submissions (at paragraphs 59 and 60).
2. In answer to questions in cross-examination Ms Chapman did not concede that for regulatory purposes she knew she could not count the plaintiff as an educator because of the state of his qualifications: T380.16 - T380.22. She acknowledged she had counted him as an educator for regulatory ratio purposes: T380.11. She acknowledged that she was concerned that she might get into trouble over non-compliance with those regulatory ratios and said she held that concern at all times the plaintiff was employed: T380.36. She denied that she had made a mistake in counting the plaintiff for staff ratio purposes (T380.21), and claimed the mistake only became apparent in retrospect (T380.26) due to an alleged earlier deception by the plaintiff as to his qualifications.
3. Ms Chapman denied that the major reason she sent the email accusing the plaintiff of lying was to manufacture a reason for her business not complying with regulated staff ratios, namely an alleged misrepresentation by the plaintiff rather than fault on her part thereby scapegoating the plaintiff for her problem as she needed someone to blame for her default in regulatory compliance: T380.44 - T381.16.
4. I do not accept Ms Chapman's cited denials. I consider that in the circumstances in which the plaintiff fell from favour in Ms Chapman's eyes, the above-cited assumptions put to her, and which she denied, were more probably than not, correct. I do not accept her evidence she had been given to understand the plaintiff had fulfilled the component requirements of his course.
5. Ultimately, the defendants did not assert that the plaintiff's signature on the contract of employment constituted a deception. Instead, it was argued that it was the plaintiff's positive response to Ms Chapman on 5 June 2015, and allegedly repeated on 8 July 2015, affirmatively suggesting that he had a Certificate III, constituted the relevant deception.
6. The defendants' submissions assert that the cited context reveals that the plaintiff made an intentional and substantive misrepresentation as to his level of qualification.
7. For the reasons already identified at [102] to [105], [109], [129] to [135] above, I do not accept that submission because I do not accept Ms Chapman's evidence on that issue. I reject the assertion that on 5 June 2015 or subsequently, the plaintiff claimed he had a Certificate III qualification, either intentionally, or otherwise.
8. Instead, I accept the submission made on the plaintiff's behalf to the effect that the plaintiff's contract of employment, stating the job was "in the position of Certificate III", was nothing more than an identification of the level at which the defendants expected the plaintiff would perform his duties. I do not accept that the plaintiff's signature on the defendants' documents, or that any words spoken by him, constituted a representation that he held a Certificate III qualification, or requisite components thereof.

Alleged deceit about additional paid work

1. As to the second category of claimed deception by the plaintiff, the defendants submitted that a factual finding ought to be made that the plaintiff had attempted to deceive the management of the childcare centre "in connection with his performance of additional pad (sic for paid) work".
2. Putting aside the matter of whether or not the plaintiff had been paid for any work he had undertaken for parents outside of his work at the centre, the evidence called by the defendants to seek to support this component of the truth defence fell far short of the detail set out in its pleaded defence at paragraphs 5.A(ix) to (xii) of the amended defence filed on 14 May 2018. Those particulars were as follows: "5.A… ix. At all material times, it was a policy of the First Defendant that employees were not permitted to enter into private arrangements with parents of children who attended the first defendant's centre ("the First Defendant's policy"). A document titled 'Staff Babysitting Children who Attend the Centre' not permitted to enter into private arrangements with parents of children who attended the first" defendant's centre ("the First Defendant's policy"), signed by the Plaintiff on 8 July 2015 provides, so far as is relevant: "The Centre prefers that its employees do not babysit children who attend the service. Staff who enter into these private arrangements with parents will be required to always maintain the integrity and confidentiality of their work at the centre. Each staff member must inform management of any arrangements made outside the centre regarding to this policy. Each staff member has to sign a Confidentiality policy." A copy of this document is attached. x. On 8 July 2015, prior to the Plaintiff commencing employment with the First Defendant, the Plaintiff signed an acknowledgement indicating that he was aware of, and agreed to be bound by, the First Defendant's policy. xi. In breach of the First Defendant's policy, without the First Defendant's knowledge or consent, the Plaintiff entered into a private arrangement with a parent of a child who attended the First Defendant's centre whereby he would provide babysitting services. This came to the second defendant's attention at the end of January 2016. xii. On 3 February 2016, the second defendant reminded the plaintiff of the relevant policy and issued him a first and final warning. That warning was issued verbally and in the presence of the nominated supervisor, Ms Amy Lee. The plaintiff confirmed that he would not perform any additional paid work for the relevant parent. The plaintiff made that representation verbally. The warning refferd (sic) tp (sic) at 5 A (xii) was issued verbally by the Second Defendnat (sic), and was in the terms: "You are definitely not permitted to do any more paid work for the Chia family or any other family at the centres"."
3. In that regard, the following noteworthy matters emerge from the evidence: 1. The assertion of employees being "not permitted to enter into private arrangements" is in my assessment an unreasonable overstatement to the meaning of the so-called policy of the defendants; 2. The evidence of Ms Lee did not support the defendants' claim that Ms Chapman had made it clear to the plaintiff, in her presence, that he was not to undertake any more babysitting. In a credit-based case, where I held concerns over the reliability of Ms Chapman's evidence on important matters of dispute, I consider this to be a very significant matter that weighs against acceptance of the evidence of Ms Chapman on this issue; 3. The assertion made in paragraph 5.A(xiii) of the amended defence, namely that Ms Amy Lee had warned the plaintiff that if he continued to perform the additional work this would result in the termination of his employment, was not supported by any evidence given by Ms Lee. She was not asked any questions on this topic; 4. The evidence of Ms Wilde did not support the claim that the plaintiff had told Ms Wilde he had carried out additional work, as was asserted in the particulars of paragraph 5.A(xiii) of the amended defence; 5. Ms Victoria Burke was not called by the defendants to give evidence and her absence as a witness was not explained.
4. I accept entirely the plaintiff's evidence on the topic of additional work which the defendants sought to characterise as babysitting. In my assessment, when he was asked about it by Ms Lee, his response of denial was an instinctive reaction of self-protection rather than dishonesty, as earlier explained. In my view, it was most probably driven out of his fear of what Ms Chapman's response might be, along the lines of angrily yelling at him as she had done before.
5. In my view, the plaintiff's answer to Ms Lee was not in the nature of a conscious or intentional deceit. It was a fear driven spontaneous reaction which was of transitory effect. Relevantly, he put Ms Lee straight on that topic a few hours later after he had a chance to give that exchange some rational consideration.
6. The actual evidence given by Ms Lee on the topic of her conversation with the plaintiff about babysitting was as follows: "Q. I'm now going to move to a separate date, and that is 10 March 2016. Did you have any discussion on that date with Mr Bowden? A. I had a lot of conversations with many staff, but can you remind me, is this a specific Q. Yes, did A. like Q. you have any discussions where it was just the two of you and concerning the issue of babysitting? A. Yes. I don't - I don't - I'm not sure if it's that day, but I do recall we had a conversation in the centre kitchen, because I was told by a child - a child came to me and say, "Ms Amy, I say Mr Matt at my place in the morning." And because we were told in the staff meeting that we shouldn't babysit - so because I was his supervisor that time, I - I was concerned about, "Is he still babysitting?" So I went to him, I say, "Matt, you need to be very honest with me. Are you still babysitting?" And he said to me, "No." And I was relieved. … Q. Ms Lee, can you go into any more detail as to what that child told you on that occasion? A. I remember that child came to me and said, "Ms Amy, I saw Mr Matt at my place this morning and I ask him why. He said because he's walking my sister to school." That's what I remembered. HIS HONOUR Q. Did you understand that to be babysitting work? A. Pardon? … Q. Well, say what you intend to say. A. Yeah. My intention is - to me, to my understanding as a early child teacher, if you look after a child, you look after a child. So I don't know if the definition of babysitting has a very specific meaning that you have two stay at a specific place. My understanding is - probably best way is he looked after the child that time. Q. You do understand that the centre had a document called "Staff babysitting children who attend the centre". You have to answer so it can be recorded. A. Yes. Q. Thank you. In the very first line of that document says, "The centre prefers that its employees do not babysit children who attend the service", meaning the centre. You understand that. A. I do. Q. Am I clear and correct that the child who Matt attended on that day to walk to school was not attending the centre? A. I do. ARMITAGE: Thank you, no further questions for this witness." [T452.9 - T454.24]
7. At this point it is appropriate to note that the evidence of Ms Lee did not support the particulars of a claimed defence of substantial truth as relied upon by the defendants in their amended defence.
8. This is irrespective of the question of whether the plaintiff thought he was speaking to Ms Lee in her capacity as his friend and confidante, and not as someone with whom he was having a formal conversation in her management position at the Hubba Bubba Childcare Centre.
9. In my assessment, this aspect of the defendants' claimed defence of substantial truth represents a strained misinterpretation and overstatement of a relatively trivial event where the plaintiff had quickly acted to correct any wrong impression after he had the opportunity to think about the relevant conversation, and where each participant in the conversation in question, namely the plaintiff and Ms Lee, had differing recollections, and significantly, where the person who claimed the plaintiff had been untruthful was not present when that conversation occurred.
10. When considered in the appropriate and correct context, the defendants' evidence does not provide any substantive support for the defence of substantial truth.

Alleged deceit about availability to complete studies

1. As to the third category of claimed deception by the plaintiff, the defendants relied on two claimed elements. The first was that he had incorrectly misrepresented the state of the options available to him whilst he completed his studies and to work at the defendant's childcare centre, and secondly, that the plaintiff ceased working for the defendants not because he had resigned, but because he was either dismissed, or because he had been constructively dismissed.
2. With regard to the plaintiff's study options, Ms Burdon had recommended to the plaintiff that in his best interest, he take classes on Wednesdays: T463.2 - T463.45. She informed Ms Chapman that this was her recommendation to the plaintiff: T463.10. Ultimately, it was the plaintiff's decision as to how to manage his course requirements and his enrolment according to what was beneficial and convenient to him, as was explained by the TAFE Faculty Director, Ms Webb: T435.45. Clearly this was something that had to be negotiated between the plaintiff and the defendants, especially in the context that his employment with the defendants was only part-time.
3. In early February 2016, there had been some discussion between Ms Chapman and the plaintiff about the plaintiff's continued traineeship at the childcare centre due to the "bumps" in the plaintiff's Certificate III course, which I take to mean his impeded progress in his course, which necessitated him seeking advice from his TAFE Head Teacher, Ms Burdon, as to his best options: Exhibit "B", pp 20-21.
4. On 10 February 2016 this resulted in the plaintiff giving Ms Burdon permission to speak with his employer on his course progress and his course results: Exhibit "B", p 23. The context for this was that he wanted to complete his Certificate III course as soon as possible and he had made this clear in an email to Ms Burdon on 4 March 2016: Exhibit "B", p 24. That permission was not an authority to negotiate and determine his work roster without further consultation with him. The context was that Ms Burdon was interested in moving the plaintiff through his course program and she had been collaborating with Ms Chapman to achieve that goal: T470.47. At that time, it must be remembered that Ms Chapman wanted the plaintiff to be completed within a month.
5. In the course of email exchanges, between TAFE staff and the plaintiff, and discussions with Ms Chapman, on 7 March 2016, Ms Burdon advised the plaintiff of his options and advised him that he could pursue his Wednesday TAFE option for completing his course: Exhibit "B", pp 25-30, p 27.
6. Consequently, at 7.14pm on Thursday 10 March 2016, the plaintiff sent Ms Chapman the following email in which he identified what he considered to be, and what he had been advised was, his best option: "Hi Karen As discussed today, I have been in contact with Cassie at TAFE and was told that the best option to complete my Certificate III was to commence TAFE next Wednesday for the remaining Semester (May 25) together with one Friday (April 1). As I have no choice I am no longer able to work Wednesday's until the end of Semester. I apologise if the above does cause you any inconvenience however I have no option this semester as I need to complete my Certificate III as soon as possible as we have previously discussed. Thank you. Matt" [Exhibit "B", p 31]
7. In this context, I construe the meaning of the plaintiff's words "no choice" to be his best choice in the interests of successfully progressing through his course. Either way, the choice was his to make. The plaintiff's email was consistent with Ms Chapman's desire that the plaintiff complete his course as soon as possible.
8. In response to the plaintiff's email cited above, at 10.46am on Friday 11 March 2016, Ms Chapman sent the plaintiff what I consider to be a combative reply. In that reply she referred to the two options Ms Burdon had given him, and in that context, she expressed her disappointment at his choice. Her disappointment plainly related to the plaintiff's choice in his own best interests, which clearly did not coincide with or suit her interests.
9. In that email, Ms Chapman argued that the plaintiff should work on Wednesdays and take annual leave on Thursdays, which she considered to be his best option that was an option the plaintiff was entitled to either accept or reject. He chose not to accept the idea of using his annual leave entitlements in that way. Nevertheless, she expressed an ultimatum that he was expected to work on the following Wednesday, as she had planned: Exhibit "B", p 32.
10. At 11.12am on Friday 11 March 2016, Ms Burdon emailed the plaintiff to follow up their earlier discussion, and to follow up another discussion Ms Burdon had with Ms Chapman. In that email, Ms Burdon stated: "… You elected to do the Wednesdays, but you did not inform me that you had prearranged work commitments. It is really important to communicate effectively with both Karen and myself. We have both invested a lot of energy and time in attempting to support your study, but we all must communicate honestly and effectively for this to happen. I think that you probably need to discuss the two options given to you with Karen and ensure that you come to an appropriate decision based upon your learning needs and work commitment." [Exhibit "B", pp 33-34]
11. That email exchange is relied upon by the defendants as evidence of the plaintiff's alleged untruthfulness regarding his studies and his dealings with the defendants. In my view, on the cited evidence as relied upon by the defendants, an argued shortcoming of adequate communication, which would not just apply to the plaintiff alone if accepted, does not amount to a deception as claimed by the defendants.
12. Unfortunately, the discussion that Ms Burdon had suggested take place between the plaintiff and Ms Chapman did not eventuate. Instead, Ms Chapman simply rostered the plaintiff to work a full 40.5 hour week, which necessarily meant he would not be able to attend to his TAFE commitments if he obliged Ms Chapman in that regard.
13. I do not accept that submission that the recited events revealed a relevant element of untruthfulness on the plaintiff's part because in the context of the circumstances, he was selecting his best course of study option in the context of his part-time employment with the defendants. I do not accept that the plaintiff was being untruthful to Ms Chapman when he identified and chose his best option. The plaintiff's options and Ms Chapman's roster were separate considerations, although one obviously had an impact on the other. A substantial truth defence does not reasonably arise from those circumstances.
14. The plaintiff considered the position in which he found himself. He recognised that his part-time job that was supposed to accommodate his TAFE studies became a rostered 40.5 hour week that conflicted with his advised best option for TAFE studies. In those circumstances, absent prior discussion or negotiation with Ms Chapman on that matter, he felt he had to resign his employment, as already described at [154] to [156] above. He did so by email at 5.14pm on Sunday 13 March 2016: Exhibit "B", pp 33-34.
15. Ms Chapman's response was to change the plaintiff's Wednesday roster by removing his name for that rostered time. By Ms Chapman's silence, the plaintiff was permitted to continue to serve out the notice that he had given by the terms of his email dated 13 March 2016, that is, to work until 15 April 2016.
16. That situation remained the position until the events of 24 March 2016 when the plaintiff was peremptorily dismissed. In that period nothing was said to the plaintiff by Ms Chapman, or someone on her behalf, either in terms of an invoked contractual Grievance Procedure, in writing or in conversation, to suggest that the plaintiff had been untruthful about his availability to do his studies, or with regard to his work roster.
17. On the afternoon of 24 March 2016, when Ms Chapman requested Ms Lee to walk the plaintiff off the premises during the period when the plaintiff was working out his notice, he had not been informed by Ms Chapman that this would happen. Nor was he informed of the reasons why this would occur. Ms Chapman had effectively peremptorily dismissed him whilst he was serving out the reasonable notice he had given the defendants.
18. The precipitant for the plaintiff's dismissal appears to have been Ms Chapman's ire at the plaintiff's outside activity of walking children to school, and possibly, his delayed progress through his course, as was affected by his illness. The former factor is confirmed by the second highlighted portion of Mrs Tieu's evidence cited at [168] above citing Ms Chapman's statement, which the defendants did not challenge in cross-examination of Mrs Tieu.
19. The plaintiff was peremptorily dismissed from his employment without the defendants having invoked their stated Grievance Procedure. The defendants did not put to the plaintiff that he had been untruthful, which was a basic requirement of procedural fairness in the workplace, especially where dismissal was being contemplated by the employer without the provision of particulars, or without having sought a fair discussion on the issue.
20. It was therefore misleading for Ms Chapman to say in her 4 April 2016 email, that the plaintiff was "no longer with us due to disciplinary reasons" in the context of an allegation of untruthfulness.

Conclusion concerning claimed defence of truth

1. I therefore find that none of the pleaded and particularised defences of substantial truth have been made good by the defendants. I therefore reject each element of that claimed defence of substantial truth.

Issue 5 - Claimed defence of actual or apparent interest

1. The defendants sought to maintain a defence of actual or apparent interest that, it was argued, justified the publication of the matter of which the plaintiff complains. That defence was mounted upon the following claimed elements: 1. Ms Chapman's interest was said to have arisen as a consequence of her role as a manager of the childcare centre and the corresponding interest of the recipients of the emails arose as a consequence of those persons having children at the centre at the relevant time; 2. Ms Chapman was subject to regulatory requirements concerning staff qualifications and staff-to-child ratios; 3. The plaintiff was "a very recent ex-employee", his employment having ended on or about 24 March 2016, the plaintiff's professional role at the centre was a current issue at the time the emails were sent (10 days later) on 4 April 2016, and the emails were sent for purposes that included business-related information to parents concerning the plaintiff; 4. The information was of a nature that was incapable of being communicated to parents prior to the occurrence of "the relevant events", which I take to mean before the termination of the plaintiff's employment. It was suggested that a temporal-based complaint might have had some force had the emails been sent say six months after the relevant events.
2. In my assessment, the defendants' arguments concerning actual or apparent interest have been overstated to the point of unreliability. Those arguments raise matters that stray well beyond the reasonable limits of the concepts of actual or apparent interest. In the paragraphs that immediately follow, I set out my reasons for that conclusion.
3. First, as to sub-paragraph (1) of [257] above, the reciprocity of interest was in my assessment simply limited to the need to tell parents that the plaintiff was no longer employed at the centre. The parents had a relevant interest in being told of that fact. Apart from the statement: "We wish him well with his future", the remainder of the email was both gratuitous and irrelevant to that purpose.
4. Secondly, as to sub-paragraph (2) of [257] above, the plaintiff's departure from the defendants' childcare centre had nothing to do with regulatory requirements concerning qualifications and staff-to-child ratios. The details of those requirements were not placed into evidence. Ms Chapman had not employed the plaintiff as a qualified person. As was understood in the limited evidence given on staff ratios, this only applied in relation to qualified persons. Therefore there was no relevant commonality of interest in the manner claimed.
5. Thirdly, as to sub-paragraph (3) of [257] above, other than noting the plaintiff's departure from his employment, I do not accept that the emails dated 4 April 2016 were sent for the purpose of business-related communications concerning the plaintiff. The language used went well beyond that stated purpose by adding gratuitous comments that impugned the plaintiff's character and reputation in an injurious way.
6. Fourthly, as to sub-paragraph (4) of [257] above, I do not accept the premise relating to the termination of the plaintiff's employment. In fact the plaintiff gave notice before his employment was peremptorily terminated by Ms Chapman. To assert the plaintiff's employment had been terminated for disciplinary reasons was misleading where the plaintiff had already resigned, and beforehand, there had been no reasonable disciplinary process. The compelling conclusion is that the plaintiff had not been relevantly disciplined, but instead, was peremptorily dismissed whilst serving the notice he had given eleven days earlier.
7. The authors T.K. Tobin, M.G. Sexton, Australian Defamation Law and Practice, Lexis Nexis Butterworths, 2003, observed at [11,005] that where justification has been pleaded as a defence, there is (truth being such a defence) very likely to be a tactical battle over the extent of the evidence that can be called by the defendant in support of that plea. In that regard, those authors observed that the principles which govern that type of conflict are far from settled. In my view, in this case, the defendants have failed completely in their efforts at seeking to establish the truth or the substantial truth of the claimed allegations of dishonesty.
8. The above analysis also relates to the claimed defence of common law qualified privilege, which is the subject of the consideration of Issue 6, which now follows.

Issue 6 - Claimed defence of common law qualified privilege

1. The defendants sought to rely upon a defence of qualified privilege at common law because, it was claimed, Ms Chapman had sent the emails on 4 April 2016 in furtherance of a duty in, or concerning an interest in, communicating the matters stated in the emails to the normal recipients who had either a corresponding duty or interest in receiving that information.

Principles concerning common law qualified privilege

1. "If a statement is made on an occasion of qualified privilege there is a defence at common law, but the privilege is defeated if the plaintiff can prove that the defendant was actuated by malice"; P George, Defamation Law in Australia (2nd Ed, Lexis Nexis Butterworths, 2012).
2. The test to be applied to determining whether common law qualified privilege arises, was stated in Adam v Ward [1917] AC 309, at [334] as follows: "A privilege occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."
3. The potential ambit for a defence based on common law qualified privilege is not capable of exhaustive definition. It is a flexible concept that is case and fact dependent to cater for unexpected combinations of circumstances across a variety of endeavours: M Gillooly, The Law of Defamation in Australia and New Zealand (The Federation Press, 1998), p 170.
4. At pp 171-175 of that text, the author has conveniently set out an analysis of the elements within the statement cited from the decision in Adam v Ward, and as distilled from a range of other cited authorities, as follows, with the citations omitted: 1. The element of duty need not be a legal duty but may be social or moral such that a great mass of people of ordinary intelligence and moral principle have considered it their duty to make or receive the subject communication; 2. There must be a real, definite or existing interest that founds the claimed duty, and the fact that the defamatory statement may be "interesting" is insufficient to constitute an interest for the purpose of defence; 3. In general, the question of whether the defendants honestly believe on reasonable grounds, that such a duty or interest exists is an irrelevant consideration at this stage of the inquiry, but such beliefs have relevance to the issue of malice; 4. There must be a reciprocity of duty or interest between the maker of the statement and its recipient; 5. Irrelevant inclusions are not covered by the privilege; 6. A defence of qualified privilege will be defeated if the defendants were motivated by express or actual malice, which may be presumed from the defamatory character of the material that was published; 7. Malice may be negatived if it is accepted that the defendants honestly believed in the truth of the defamatory statement; 8. If the defendants did not honestly believe in the truth of the defamatory matter, or if the defendants were recklessly indifferent to its truth or falsity, this is generally conclusive evidence of malice.
5. On the question of qualified principle at common law, I take guidance from well settled and conventionally applied authority, which conveniently states that the determination of the defence of qualified privilege at common law should proceed according to the answers to three questions, as identified in Megna v Marshall [2010] NSWSC 686, at [175], namely: 1. Were the circumstances in which the communication was published such as to give rise to the requisite duty or interest in the publisher and the reciprocal interest in the recipient of the publication so as to create an occasion of qualified privilege? 2. If the answer to the preceding question is in the affirmative, was the matter complained of made sufficiently relevant, germane or of sufficient connection to the occasion? (If the answer to both of the preceding questions is in the negative, then there is no defence of qualified privilege. It the answers are in the affirmative, the next question requires consideration) 3. If the answer to both preceding questions is in the affirmative, was the publisher actuated by express malice? (Malice defeats a claim of qualified privilege)

Submission by defendants on common law qualified privilege

1. The defendants sought to construct a basis for their submitted defence of common law qualified privilege by pointing to a series of ten asserted factual matters, the first two of which were not in dispute. Those matters are as follows: 1. Ms Chapman owned and managed a business in the form of two childcare centres. This element of the defendants' argument is not in dispute; 2. Ms Chapman was the subject of regulatory requirements concerning the minimum education requirements for staff and the permitted staff-to-student ratios. This element of the defendants' argument is also not in dispute; 3. It was argued that the plaintiff was a very recent employee who had ceased employment as at either 24 March 2016 or within the range of possible dates for his constructive dismissal; 4. It was argued that the recipients of the emails, as parents of children at the Haig Street Centre, had, on 4 April 2016, a legitimate interest in receiving factual information on various business matters pertaining to the management of the Haig Street Centre, which included whether or not the staff there were duly qualified; 5. It was argued that the ostensible and actual purpose of the emails was to provide parents with up to date information as to the number of staff at the Haig Street Centre, the identities of included staff and relevant business-related information about those staff; 6. It was argued that the parents must be taken to have developed business and social relationships with various staff members, and should be taken to want to know whether any staff had left and the reasons for leaving; 7. It was argued that the parts of the emails of 4 April 2016 that concerned the plaintiff, specify the facts of his recent departure from the centre, and the reasons for his departure; 8. It was argued Ms Chapman must be taken to have anticipated, on a reasonable basis, that parents might entertain concerns in relation to whether or not the staff to whom their young children were entrusted were appropriately qualified to look after them (in addition to any formal regulatory requirements that needed to be satisfied as to qualifications of employees); 9. It was argued Ms Chapman must be taken to have anticipated, on a reasonable basis, that she would receive enquiries from parents in the event that a member of staff disappeared without explanation; 10. It was argued Ms Chapman must be taken to have anticipated, on a reasonable basis, that the centre might be placed in jeopardy at the hands of the regulatory authority in the event that staff was not properly qualified and, if parents entertained any suspicion in this connection, they might have notified the regulatory authority.

Consideration of those arguments

1. There is no need to further analyse the elements of arguments (1) and (2) of [271] above as those matters are not the subject of dispute. However, in my opinion, for the reasons that follow, each of the other identified elements of argument numbered (3) to (10) of [271] above, both individually, and in combination, do not sustain the claimed defence of common law qualified privilege: 1. As to element (3) of [271], I do not accept there was a constructive dismissal as claimed by the defendants. In fact the plaintiff was actually and peremptorily dismissed by the defendants at a time when he was working out his notice pursuant to the terms of his contract of employment, at which time he was escorted off the premises. In my view, the notion of a constructive dismissal is raised spuriously in this case as he had already resigned from his employment; 2. As to elements (4), (8) and (10) of [271] above, there was no reliable evidence introduced by the defendants as to an argued requirement that only persons who are qualified in childcare may work in childcare centres. If that were so, the defendants should not have employed the plaintiff in the described position in the first place. The plaintiff had the required clearance certification for working with children. That was all that was required of the plaintiff. The defendants' regulatory obligation was to maintain a specific ratio of qualified staff to the number of children at its childcare centres. That is an independent question that has no relevance to the employment of the plaintiff. There was no evidence of a requirement that the plaintiff have a qualification in order to fill the position in which the defendants had employed him. 3. As to elements (5), (6), (7) and (9) of [271] above, whilst there may have been a legitimate interest in the defendants providing parents with children at their childcare centres with up to date business-related information as to the identity of staff working at their childcare centres, including the names of staff no longer working there, in my assessment each of the imputations that arise from the defendants' emails comprise irrelevant inclusions that are gratuitous, and outside the purposes of that interest. The cited imputations went well beyond any legitimate purpose by gratuitously raising the matters complained of by the plaintiff concerning his reputation and character.
2. In my assessment, those matters indicate that the argued claim for common law qualified privilege is not reasonably maintainable on the facts of this case.
3. In submissions in reply, the plaintiff argued that the matters identified at [271] above, should result in a finding that the defendants' imputations were so unreasonable that the defendants must have known the imputations were false. In my view, that submission should be accepted.
4. This is because Ms Chapman claimed the plaintiff had been dismissed for dishonesty, when the fact was that she knew the plaintiff had already resigned his employment and was working out his notice until she peremptorily ordered that he be escorted off the premises after he had completed his work obligations for that day without any apparent resort to the childcare centre's Grievance Procedures: Exhibit "B", p 16.
5. If the defendants had truly believed that the plaintiff should be dismissed for dishonesty, it was surprising he had been permitted to work to the end of the day before being escorted off the premises. Be that as it may, the compelling conclusion is that when Ms Chapman dismissed the plaintiff from the defendant's employ and directed that he be escorted from the premises, she must have known that beforehand, he had not been informed of his dismissal. A dismissal for alleged dishonesty called for a procedurally fair opportunity to address such an allegation. This did not occur. This suggests that Ms Chapman did not believe on reasonable grounds that the plaintiff had been dishonest.
6. The defendants' pleaded defence that the plaintiff had lied to parents of children at the centre remained an unsupported assertion. None of the witnesses called in the defendants' case supported that proposition. The plaintiff submitted, correctly, that the defendants' pleaded claims in that regard had completely collapsed. That element of the defence was completely without substance.
7. I therefore do not accept the defendants' claims concerning the existence of alleged valid disciplinary issues. I accept the plaintiff's submission that those claimed disciplinary issues were so fundamentally unreasonable, that they cannot be reasonably believed to be true.
8. In my view, those matters support the plaintiff's claim of malice. Ms Chapman said she had not intended any malice in sending the email in question: T393.20. Be that as it may, I do not accept that Ms Chapman had sincerely believed the truth of those matters raised in the defence to the plaintiff's claim. If I am wrong in that finding, I nevertheless also accept the plaintiff's alternative submission that the statements made in Ms Chapman's emails were so reckless that they were made with wilful blindness to the truth: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57, at [84]-[86].
9. In that regard, I accept the plaintiff's submissions in reply that identify relevant factors that support the proposition that the defendants' comments were reckless: 1. Ms Chapman's concern that the centre had not complied with regulations concerning staffing ratios was not reasonable. It was not supported by evidence. That concern on her part was not referenced to any identifiable or applicable regulatory provision. It appears that she has overstated the regulatory requirements. Ms Chapman's decision to employ the plaintiff was an issue that was distinct from her regulatory obligations concerning a particular (but unparticularised) qualified staff-to-child ratio; 2. On the issue of notice, Ms Chapman had a concern about what the plaintiff might say to parents about his resignation, thus making it desirable for the defendants to discredit him; 3. Ms Chapman's attitude to the plaintiff's activity of walking a former childcare attendee to a public school at the request of parents was unreasonable, especially when those children were no longer attending the defendants' childcare centre, also where such activity was not reasonably contemplated by the defendants' so called babysitting policy or statement of preference on babysitting; 4. Ms Chapman delivered a disproportionately angry response to the plaintiff on those issues when they arose; and 5. Ms Chapman's telephone call to Mrs Tieu to seek to prevent the plaintiff from continuing to work for Mrs Tieu after he had left his employment at the childcare centre was spiteful, as is evident from Mrs Tieu's unchallenged account of the terms of Ms Chapman's remarks about the plaintiff, as cited at [168] above.
10. In my assessment, those matters convincingly support the plaintiff's contention that in this case, the defendants' claim of common law qualified privilege is defeated by malice.
11. Finally, turning to the three questions posed in Megna v Marshall [2010] NSWSC 686, as identified at [270] above: 1. The circumstances did not give rise to the requisite duty or interest in the publisher and a reciprocal interest in the recipients of the emails; 2. Therefore, the question of whether the publication was sufficiently relevant or germane or connected to the occasion does not arise; 3. The plaintiff has established that the email publication complained of by the plaintiff was actuated by malice on the part of the defendants.

Concluded finding on claimed common law qualified privilege

1. Therefore, for the above reasons, I reject the claimed defence of qualified privilege at common law.

Issue 7 - Statutory qualified privilege: s 30 of the Defamation Act 2005

1. Pursuant to s 30 of the Defamation Act 2005 (NSW), the defendants claim a defence of qualified privilege: Paragraph 6D(viii) and the ensuing 10 sub-paragraphs of the amended defence dated 14 May 2018; MFI "11". In my view, for the reasons that follow, that defence does not apply to the facts of this case. That section provides no liability shelter to the defendants.
2. Section 30 of the Defamation Act 2005, as at 4 April 2016, was in the following terms: 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
3. A recipient will have an interest, or an apparent interest in having the information in question if the publisher believes, on reasonable grounds, that at the time, the recipient had a relevant interest or an apparent interest: s 30(1)(a) and s 30(2) of the Defamation Act 2005.
4. At paragraph 6D(viii), sub-paragraphs (i) and (ii) of the amended defence filed on 14 May 2018, the defendants pleaded that as a registered service provider, the matter complained of was of public interest. I do not accept that the interest of the recipients extended to having the matter complained of provided to them other than to simply inform them that the plaintiff was no longer employed by the defendants: s 30(1)(a) and (b) of the Defamation Act 2005.
5. I do not accept the recipients had interest to the extent claimed, and I do not accept that the defendants' conduct in publishing the material was reasonable in the circumstances because the defendants acted without affording the plaintiff the procedurally fair and reasonable opportunity to comment on the aspersions or allegations contained in the matter of which the plaintiff complains, and the fact that the publication 10 days after the plaintiff's dismissal was gratuitous and too distant in time to the time of the plaintiff's departure to call into question matters concerning his honesty and fitness for his work: s 30(1)(c) of the Defamation Act 2005. There was no good reason for publishing those imputations against him at that time.
6. The reasonableness of the conduct of the defendants in publishing the matter complained of may be assessed by taking into account the factors identified in s 30(3)(a) to (j) of the Defamation Act 2005.
7. The claimed interest is a broad one that must be more than a matter of gossip or curiosity. The issue of interest in the context of statutory qualified privilege requires that reasonableness be established, as distinct from qualified privilege at common law, where duty or interest must be established and the claimed interest must not be vague or insubstantial: Griffith v Australian Broadcasting Corporation [2010] NSWCA 257, at [103]-[104].
8. The question of whether the defendants' conduct was reasonable in the circumstances is determined according to broad discretionary considerations, as is evident from the terms of s 30(3)(j) of the Defamation Act 2005, which is additional to the non-exhaustive range of considerations permitted by s 30(3)(a) to (i) of that Act.
9. My conclusion that the defendants' conduct in publishing the material complained of was unreasonable is also based on the considerations identified in s 30(3) of that Act, as follows: 1. As to s 30(3)(a) and (b), the publication was to a defined and relatively small group of parents. There was no relevant public interest in those circumstances; 2. As to s 30(3)(c), the assertion of dishonesty was within the range of most serious allegations that might be levelled at a young man working with children at the outset of his chosen vocation. The effect of such an allegation serves to poison the minds of the recipients concerning the plaintiff's probity. The assertion of dishonesty as a disciplinary reason for termination of the plaintiff's employment was not reasonable in the circumstances of this case where the effect of the antecedent email correspondence between the plaintiff, TAFE and Ms Chapman as summarised at [236] to [255] above shows another point of view, that is the plaintiff's point of view, and where the allegation of dishonesty was not fairly put to the plaintiff beforehand, and he was not ever given the opportunity to invoke the defendants' Grievance Procedures as provided by his employment contract. The allegations did not represent a balanced point of view (s 30(3)(j)) and were unreasonably published in the circumstances: s 30(3)(c); 3. The allegation of dishonesty and the imputation of unfitness did not distinguish between suspicion, allegations, and proven facts, and instead, all of the imputations were presented as if they were proven facts: s 30(3)(d); 4. In the circumstances there was no public interest for the matter complained of to be published per se, or published expeditiously: s 30(3)(e). The plaintiff had already left the employ of the defendants 11 days earlier and there was no good reason at that time to besmirch his reputation; 5. Given the nature of the defendants' childcare business, and given that the plaintiff was well regarded by the children attending at the centre, and by their parents, it was reasonable for the defendants to inform the parents of those children that he was no longer in the employ of the defendants: s 30(3)(f). However, the additional information of a contentious nature, was gratuitous to any interest the parents might have had in knowing that the plaintiff was no longer employed by the defendants; 6. The contentious information in the defendants' email was an expression of opinion which was tendentious, to say the least. It was unbalanced and self-serving, without leaving scope for a positive view of the plaintiff's honesty and character. The opinion was unreasonably conveyed without an opportunity for the plaintiff to respond. He was not even given a contemporaneous copy: s 30(3)(g) and (j). 7. The matter published did not contain anything that could be seen to provide the plaintiff's side of the story, and as a consequence, it was not balanced because the defendants had apparently made no attempt to include such an account: s 30(3)(h) and (j); 8. Where a person such as the plaintiff was considered by an employer such as the defendants to have been dishonest about a specific matter, such as his studies, and other unspecified issues, the requirements of fairness dictate that those harboured suspicions be placed before the affected person for comment. The defendants did not do so in this case. The plaintiff was summarily dismissed by being ignominiously walked off the premises, in front of others, without explanation, either to him, or those other persons who were in a position to observe that event. What then followed 10 days later, was the despatch of the unbalanced defamatory emails of 4 April 2016. This was in circumstances where no attempt had been made by the defendants to verify with the plaintiff the alleged instances of asserted dishonesty. In those circumstances, the publication was manifestly unreasonable: s 30(3)(i) and (j).
10. I find that in publishing the matter complained of, Ms Chapman, the guiding mind of the second defendant, was actuated by malice. Accordingly, the claimed defence of qualified privilege pursuant to s 30 of the Defamation Act does not apply. The compelling inference to be drawn from the fact that the plaintiff was not given a reasonable pre-publication opportunity to respond to the assertions made against him, is that Ms Chapman knew the imputations that were conveyed were false. Knowledge of the falsity of the defamatory material on the part of the defendants is normally taken to be conclusive evidence as to the existence of a desire or motive to injure the plaintiff: T.K. Tobin, M.G. Sexton, Australian Defamation Law and Practice, Lexis Nexis Butterworths, 2003, at [18,010] citing Horrocks v Lowe [1975] AC 135, at p 149.
11. The claim of statutory qualified privilege as contemplated by s 30 of the Defamation Act 2005 is not maintainable. Even if it was, it is defeated by malice.

Issue 8 - Claimed defence of triviality

1. By paragraph 7.E of the amended defence filed on 14 May 2008, the defendants plead a defence of triviality in that it was asserted the publication was such that it was unlikely the plaintiff would suffer harm within the meaning of s 33 of the Defamation Act. That section provides as follows: 33 Defence of triviality It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
2. The plaintiff submitted that the triviality defence ought not be upheld because the matter complained of, although it had been sent to a limited number of recipients, was nevertheless aimed at the very group of people who knew the plaintiff and who had children in the geographic area where the plaintiff lived and worked.
3. The pleaded defence of triviality sought to suggest that the matter was somehow trivial in view of the plaintiff's age. If anything, the plaintiff's relatively young age accentuated his vulnerability to the sting of the defendant's carefully chosen words. The emailed matter complained of delivered an injurious blow not only to the plaintiff's reputation, but also to his self-esteem.
4. The plaintiff's submissions correctly pointed out that the effect or blow of the defamation the plaintiff has suffered also hindered his academic progress, it badly damaged his reputation amongst parents of children in the field in which he had chosen to work, and it took the plaintiff a year to be able to gain permanent part-time employment in his chosen field of endeavour. The plaintiff's submissions stated, correctly in my view, that the triviality defence was not established and should not be upheld.
5. Ultimately, on considering those matters, in final submissions, appropriately in my view, the defendants conceded and no longer pressed the claimed defence of triviality. Accordingly, I reject the pleaded defence of triviality. The timing of the abandonment of the defence of triviality has some relevance to the claim for aggravated damages.

Issue 9 - Cross-claim by the first defendant

1. The cross-claim brought by the first defendant is based upon the premise that the plaintiff had misrepresented his qualifications to the defendants. In my assessment, on the facts as I have found them, the cross-claim is unmeritorious. The defendants' written offer of employment was for the plaintiff to work in a Certificate III position and not on the basis of an assertion that he possessed that qualification.
2. As already explained at [218] to [225] above, at the outset, the second defendant must have known the plaintiff did not have Certificate III qualifications in childcare at the time: Exhibit "B", p 15. I therefore consider that the first defendant's cross-claim against the plaintiff on account of an alleged overpayment of wages to be spurious. That cross-claim should be dismissed. Consequently, the first defendant should pay the plaintiff's costs of that cross-claim.

Issue 10 - Assessment of damages

1. In the paragraphs that follow I set out my assessment of the plaintiff's entitlement to damages.

Compensatory and aggravated damages

1. The defendants submitted the appropriate assessment of compensatory damages should be $10,000: MFI "12". The defendants' damages submission was predicated on the premises that the plaintiff's young age, the limited nature or distribution of the publication and the fact that he has current employment, justify a limited assessment along those lines. In my view damages of that order would be manifestly inadequate.
2. In assessing the appropriate sum for the plaintiff's entitlement to compensatory damages for defamation, a number of relevant factors must be taken into account.
3. Foremost amongst those factors is the requirement that the amount of such damages must bear an appropriate and rational relationship to the harm suffered by the plaintiff: s 34 of the Defamation Act. In that regard, the current gazetted maximum statutory amount awardable for compensatory damages is $398,500: s 35(3) of the Defamation Act; Exhibit "P".
4. Another relevant factor to be taken into account is that, in this case, the defendants did not seek to mitigate the injurious effect of the defamatory matter by making an apology to the plaintiff or issuing a correction of the misleading impression created by the publication, as was twice requested on the plaintiff's behalf: s 38(1) of the Defamation Act.
5. The state of mind of the defendants is not generally relevant to an assessment of the amount of compensatory damages: s 36 of the Defamation Act. The relevance of a finding of malice is its effect of defeating any claim of qualified privilege, either at common law, or pursuant to statute, as already discussed.
6. In assessing the appropriate amount for the plaintiff's compensatory damages I consider the following matters provide the rationale in favour of a significant award of such damages: 1. The plaintiff has suffered the significant sting of the defendants' defamatory email. He felt ill on learning of the material of which he complains. He needed medical and psychological help to deal with those reactions and with his state of depression that ensued; 2. I accept the submission made on behalf of the plaintiff that the publication of the matter complained of was quite a callous defamation of a vulnerable young man; 3. The plaintiff's character was seriously impugned in the defendants' emails and his reputation suffered damage, both directly, in the eyes of the recipients, and by reason of the grapevine effect, which was evidenced by a child repeating the reputational slur that he was thought to be a liar. That damage to the plaintiff's reputation was not intended to come to his attention. It only came to his attention by chance because one of the recipients was troubled by the publication and decided to share it with him after some deliberation; 4. A direct grapevine effect of the defamation has been the fact that TAFE staff necessarily became involved in the case at the behest of the defendants, which has undoubtedly left a cloud over the plaintiff's presence in the early childhood education sector to an unknowable degree; 5. For the plaintiff, one of the untoward and disrupting effects of the email was that he felt the need to pull out of his TAFE course and to delay the further pursuit of his studies. It took him some considerable time to obtain another part-time position in the childcare sector. That said, he makes no claim for loss of earnings on account of that latter factor; 6. Although the initial audience of the defendants' publication was limited, the group to which the defendants chose to send the emails was vital to the plaintiff's advancement in his chosen career. They were in the locality where he lived, and the grapevine effect already had an adverse effect, as is evident from the comment made to the plaintiff by a child (who was not an intended recipient of the matter complained of, but who was nevertheless a number of a foreseeable audience) and some identified staff at TAFE, if not others. The plaintiff had to deal with those TAFE personnel who were aware of this litigation. It is important that the plaintiff not remain the subject of the injurious shadow cast over him by the original defamation.
7. On behalf of the plaintiff, in the aggregated circumstances described above, it was submitted that he should be armed with an award of compensatory damages of sufficient significance to clearly convey that: "This story was not right. Do not believe it": T519.15. I accept that submission as being apt to the circumstances described in the evidence in this case, and in my findings on the matters that were in issue.
8. In arriving at the appropriate sum for damages to vindicate the plaintiff and to assuage his hurt feelings and restore the damage to his reputation, the foregoing factors must be balanced against the matters identified by the defendant, as summarised at [304] to [309] above.
9. In undertaking that task I accept as apt, the submission made on behalf of the plaintiff, where it was submitted that a sizeable sum was required, having regard to the injury to the plaintiff's reputation, the injury to his feelings and health, including his initial sense of grievance and longer term hurt that persisted to the time of trial, with manifest and readily stirred signs of significant upset.
10. In my assessment, those matters have been aggravated by the defendants' knowledge of the falsity within the matter complained of, taken together with the repeated failures of the defendants (on or shortly after 28 November 2016 and 22 July 2017) to publish an apology (Exhibit "B", pp 51-52; pp 59-60), and where the defendants repeatedly continued to maintain at the trial that the plaintiff had lied and deceived the defendants about his qualifications, including mentioning in final submissions, when it was suggested that he was dishonest. In that latter regard, and of relevance to the assessment of aggravated damages, throughout the trial, the defendants attacked the plaintiff on multiple occasions both in evidence and in submissions with assertions as to alleged lies (T18.44; T19.33; T19.46; T27.6; T167.28; T221.11; T221.34; T223.25; T228.25; T228.43; T229.10; T233.35; T233.44; T249.15; T265.28; T348.15; T353.36; T380.45; T481.44; T487.30; T517.9; T545.41) and deceptions (T27.12; T233.43; T517.6; T545.43; T546.8). I have rejected those attacks as lacking in substance.
11. This not only warrants a significant award of compensatory damages but also a palpable amount for aggravated damages.
12. The plaintiff correctly pointed to the purpose of an award of damages for defamation as being "to nail the lie": Ainsworth v Burden [2005] NSWCA 174, at [89]. The plaintiff further submitted, also correctly, that in this case the size of the damages award should be sufficiently large to vindicate the plaintiff in the eyes of the community where the targeted audience for the matter complained of, although limited, was a significant feature of the plaintiff's life and chosen work endeavours at the time.
13. Initially, the plaintiff submitted that an appropriate award of compensatory damages would be an amount exceeding half of the maximum limit referred to in s 35(1) of the Defamation Act. Ultimately, the plaintiff submitted that compensatory damages should be assessed in the range $200,000 to $250,000, to which an element of $25,000 should be added for aggravated damages.
14. In my view, and not intending to convey the impression that the defamation complained of should be seen in diminished terms, I consider that the lower end of that range is appropriate, especially since there will be an award of a measure of aggravated damages.
15. I accept the force and quantum of submissions made on behalf of the plaintiff regarding the need for vindication of the plaintiff's hurt feelings and humiliation. I find the plaintiff has justified his claim for aggravated damages. In my assessment, the appropriate and proportionate aggregate sum should be $225,000, which includes an amount of $25,000 for aggravated damages.
16. I find that the above matters serve to justify the plaintiff's entitlement to aggravated compensatory damages as was ultimately submitted on his behalf.
17. I therefore assess the plaintiff's compensatory damages, including an element of aggravated damages, in the aggregated amount of $225,000.

Special damages

1. The plaintiff's special damages have been agreed: MFI "7": T519.40 - T519.47. I therefore assess the plaintiff's special damages at $915.30.

Interest

1. The plaintiff claims pre-judgment interest on his damages pursuant to s 100 of the Civil Procedure Act 2005. I consider that interest should be awarded on the compensatory damages of $200,000 calculated at 2 per cent over 3 years, which yields an amount of $12,000. I also assess interest on special damages of $915.30 at 2 per cent over 3 years, namely $54.92. Therefore I assess the combined claim for interest in the total amount of $12,054.92.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) Compensatory and aggravated damages $225,000 (b) Special damages $915.30 (c) Interest $12,054.92 Total $237,970.22

Disposition

1. The plaintiff has established his entitlement to a damages award including interest in the total amount of $237,970.22. He should therefore have a judgment entered in his favour for that amount. He should also have a judgment entered in his favour on the first defendant's unsuccessful cross-claim that was brought against him.

Costs

1. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendants should pay the plaintiff's costs of his own proceedings and the first defendant should pay the plaintiff's costs on its cross-claim. Those costs should be paid on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

1. I make the following orders: 1. Verdict and judgment for the plaintiff for compensatory, aggravated and special damages, including pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW), in the total amount of $237,970.22; 2. Judgment for the cross-defendant plaintiff on the first defendant's cross-claim; 3. The exhibits are to be returned; 4. The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to demonstrate a basis for some other costs order; 5. The first defendant is to pay the plaintiff's costs of its unsuccessful cross-claim against him, such costs to be paid on the ordinary basis unless a party is able to show the basis for some other costs order on that cross-claim; 6. Liberty to apply on 7 days notice if further or other orders, including as to costs, are required.

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