Supreme Court of WA|2001-04-20|Before: Owen J

Brown v Marron & Anor [2001] WASC 100 (20 April 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BROWN -v- MARRON & ANOR [2001] WASC 100

Defamation - Actions for defamation - Letter opposing plaintiff's application for membership of golf club - Where contents of letter defamatory - Defence of justification - Qualified privilege - Club rules requiring new membership applications to be posted on noticeboard - Members permitted to object - Whether letter of objection a privileged occasion - Whether requisite reciprocity of duty and interest - Irrelevant and exaggerated material in letter - Whether an excess of privilege - Presence of malice - Otherwise turns on own facts

Beach v Freeson [1972] 1 QB 14

Caulfield v Whitworth (1868) 18 LT (NS) 527

Cotogno v Lamb (No 3) (1986) 5 NSWLR 559

Edmondson v Birch & Co [1907] 1 KB 371

Exel Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448

Hoare v Jessop [1965] EA 218

Lemaire v Smith's Newspapers Ltd (1927) 28 SR (NSW) 161

London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15

Pamplin v Express Newspapers [1988] 1 WLR 116

Prager v Times Newspapers Ltd [1988] 1 WLR 77

Roff v British and French Chemical Manufacturing Company [1918] 2 KB 677

Smyth v Mackinnon (1897) 34 SLR 762

Sutherland v Stopes [1925] AC 47

Watts v Times Newspapers Ltd [1995] EWCA Civ 45; (1996) 2 WLR 427

Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271

1 OWEN J: In this action the plaintiff seeks damages from the defendants for defamation arising from a letter that the first defendant sent to the Cottesloe Golf Club (Inc) ("the Club") concerning an application that the plaintiff had made for membership of the Club.

2 The first defendant is the managing director of the second defendant, which is a private company operated for the benefit of the first defendant's family. The plaintiff's complaint in these proceedings lies primarily in the conduct of the first defendant. The second defendant is said to be involved because of the capacity in which the first defendant acted when engaged in that conduct. I will refer to the first defendant as "the defendant" and to the second defendant as "the Company". Where necessary, I will refer to the first and second defendants together as "the defendants".

3 The plaintiff and the defendant became acquainted in the early 1970's through their involvement in the real estate industry. In the mid-1970's the plaintiff operated a business from an office building which was partly owned by the defendant and in which the defendant also had an office. At that time the relationship between the two of them was described as that of "friendly acquaintances".

4 In July 1975 Richard Adams, an estate agent, had for sale a small block of flats in South Perth. The plaintiff and the defendant were each (independently) interested in acquiring the flats and made inquiries of Adams in that regard. The defendant made an offer to purchase the flats. The offer was accepted and settlement was effected. The plaintiff apparently took the view that there was something untoward in the way that the defendant acquired the property. This transaction seems to have been the genesis of the problems that have existed between the plaintiff and the defendant since then. Since 1976 they have had minimal contact. In due course I will describe some of the incidents that have occurred when they have seen one another. It is sufficient to say that what contact they have had has not been particularly friendly.

5 In 1989 the defendant joined the Club and now enjoys unrestricted membership. He plays golf at the Club on a regular basis. In November 1994 the plaintiff applied for membership of the Club and the application was placed on the waiting list. In mid-1997 the application came up for active consideration and, in accordance with the rules or practices of the Club, it was advertised on a noticeboard in the Club premises. On 1 July 1997 the defendant wrote a letter on the letterhead of the Company. It was addressed to David Baumgartel, the Manager of the Club, and it was signed by the defendant over the description "Managing Director". The letter is in these terms:

"In connection with an application form that is currently on display for Michael Francis Brown for membership of the Cottesloe Golf Club.

This is the first time that I have written a letter of dissent against any new application, I do so reluctantly and only after careful consideration. I believe that this applicant is not a fit and proper person to be a member of the Club and provide the following information to assist the committee in arriving at the same conclusion.

The intention of this information is to explain his character, the type of person he associates with and may introduce to the club, and his manner which is extremely rude and arrogant. I am not aware of all his activities only what is published.

During the seventies he had a real estate business trading as Brown & Brajkovich, most in the industry were cautious about dealing with him because of the unethical manner in which he operated. I read in the press that Mr Brajkovich was warned off all race tracks in the State.

He later formed a partnership with Mr Robert Martin who was one of the four big defaulting borrowers from the Teachers Credit Society ($28m). Mr Martin was also charged with bribing Mr Len Brush and I believed was jailed for some time.

Around 1983/4 Mr Brown was placed into Bankruptcy. I understand that at this time he was brutal to his creditors and his former partners.

He then got involved in the night club business and had a number of complaints against him, including sexual discrimination, that resulted in convictions against him. One was for refusing entry to a girl because she was ugly. I am sure that the associate members of the club would find this quite insulting.

Paper cuttings relating to two of these incidents are enclosed and it is interesting to note that the judge, in his summary, stated that Mr Brown was not a credible witness.

More recently I understand that he was one of the "Mr Bigs" of the Concorde Airline Club which is a pyramid selling organisation. This involved people investing money at a steward level and upon introducing other investors and more money, promotions were given to pilot, captain etc. Thousands lost money, the Ministry of Fair Trading made public statements about the legality of the scheme and are still looking to lay charges against the organisers.

I believe a Mr Nichevich, (unsure of correct spelling) recently had his application for membership at Cottesloe Golf Club declined. Mr Brown has a close friend fitting this name description.

I am sure that there are other matters relating to his indiscretions that have been brought to the attention of the authorities over the years, ie Land Agents Supervisory Committee, Reiwa, Liquor & Gaming etc but because of the confidentially restrictions placed on the various departments, they will not disclose any information about individuals whatsoever.

Over the past few years I know of three members of our club that have been charged with various types of criminal offences, two have been jailed. This reflects badly upon all members, most who have professional backgrounds and or high standing in the community.

We have a long waiting list of people wanting to join the club, therefore for the betterment of all members please reject this application and choose any other on your list."

6 The letter had attached to it photocopies of parts of pages from newspapers in which reference is made to cases before the Equal Opportunities Commission or Tribunal concerning the activities of a nightclub in which the plaintiff had an interest. I will call the letter and the accompanying photocopies "the Objection Letter". On 3 July 1997 the defendant handed the letter to Colin Howard who passed it on to Baumgartel. Howard and Baumgartel then invited the defendant into the office and discussed the Objection Letter with him. On 5 July 1997 a further meeting was convened. Kevin Johnson, the Club President, was in attendance along with Howard, Baumgartel and the defendant. The letter was discussed.

7 Two other letters were received by the Club opposing the plaintiff's application. Neither of the other letters went into any detail. On 15 July 1997 there was a meeting of the General Committee of the Club at which the application of the plaintiff (among others) for membership was considered. Under the rules of the Club if there are two adverse votes the application is declined. A secret ballot was held and the committee rejected the plaintiff's application. On 16 July 1997 Baumgartel wrote to the plaintiff advising him of the rejection. The plaintiff contacted Howard seeking a meeting to discuss the issue. Howard declined to meet him. The plaintiff then wrote to each committee member seeking "advice as to the precise reasons the Committee rejected [his] application for membership". One committee member telephoned the plaintiff and told him that the problem was a written objection from the defendant. This was the first indication the plaintiff had of the existence of the Objection Letter.

8 As a result of this information the plaintiff took legal advice. His solicitors obtained a copy of the Objection Letter from the Club and showed it to the plaintiff. These proceedings were commenced a short time later.

9 The plaintiff's cause of action arises from the Objection Letter. Paragraph 3 of the statement of claim sets out the text of the Objection Letter (without referring to the newspaper articles) and says, in effect, that it was published to Baumgartel. It is also pleaded that the letter was signed by the defendant in his capacity as managing director of the Company or alternatively in his own capacity. In par 4 reference is made to the natural and ordinary meaning of the words and there is then set out 15 separate imputations. There is no point at this stage in setting out the individual imputations. I will have to deal with them one by one in the course of these reasons. The conventional plea to support a defamatory meaning is contained in par 5. A republication by Baumgartel to the members of the committee is pleaded in par 6, although the republication is said to go only to the question of damages and not to constitute a separate cause of action. There is an alternative plea of publication, said to be constituted by the delivery of the letter to Howard in the knowledge that it would be given to Baumgartel.

10 Paragraph 10 of the statement of claim refers to the meeting held between Howard, Baumgartel and the defendant on 3 July 1997 and pleads that the defendant said certain words which are described as "the first qualification". In the time honoured fashion of defamation litigation these pleadings have gone through amendment after amendment after amendment. In fact, they were still being amended during closing addresses. There is no other reference to qualifications later in the pleading so the use of the word "first" in conjunction with the word "qualification" is probably an historical accident. It will be convenient for me to refer in these reasons to what was said by the defendant at the meetings of 3 July 1997 and 5 July 1997 simply as "the qualifications".

11 In par 11 the plaintiff repeats the imputations pleaded in par 5 as arising from the natural and ordinary meaning of the Objection Letter "when published in the context pleaded at par 10". In par 16 these pleas are effectively repeated in relation to the meeting held on 5 July 1997. The plaintiff also claims aggravated and exemplary damages.

12 In the defence the defendants admit that the defendant wrote and signed the Objection Letter but denies that it was in his capacity as managing director of the Company. They then plead the content of the newspaper articles that were attached as part of the Objection Letter. The defendants then refer to the meeting of 3 July 1997 at which the letter was read by Howard and Baumgartel and say that the defendant "contemporaneously explained and qualified certain parts of the letter as pleaded in par 10 of the statement of claim". A similar plea is made in relation to the meeting of 5 July 1997.

13 Paragraph 4 of the defence is, with three exceptions, a Polly Peck defence. The defendants deny that the meanings contended for by the plaintiff arise and set up alternative meanings which they then say are justified. Again, there is no point in me setting out the alternative meanings for which the defendants contend as I will have to deal with them individually when I discuss the defence of justification. The three exceptions that I mentioned can be dealt with when I discuss the defamatory imputations contended for by the plaintiff.

14 Paragraph 6 contains a plea that the words were published on an occasion of qualified privilege. It is said that the defendant, as a member of the Club, and Howard, as the Club Captain (and by extension Baumgartel and Johnson) had a corresponding interest or duty in providing and receiving information concerning the plaintiff. It is also said that the defendants had reasonable grounds for honestly believing what was written in the letter as explained and qualified by the qualifications. Those pleas are repeated in opposition to the matters said to arise from the 3 July 1997 and 5 July 1997 meetings. The defendants deny the matters raised in support of the claim for aggravated and exemplary damages. They also set up a claim for mitigation of the damages should the need arise.

15 I heard evidence from Howard, Baumgartel and Johnson as to what occurred before the plaintiff's application for membership came before the General Committee. I also heard evidence from Peter Stewart and Alistair Hope who were members of the General Committee and who attended the meeting on 15 July 1997. In my view they were credible witnesses and I have no hesitation in accepting what they told me.

16 Counsel for the plaintiff cross-examined each of them as to the way in which their witness statements were prepared and signed and the level of discussion between the various witnesses (and the defendant) about their statements or the events referred to in them. Baumgartel said that he had discussed some issues with Howard to refresh his memory. However, I am satisfied that there was nothing disclosed in cross-examination that indicated collusion between the witnesses or anything else that would cause me to taken an adverse view of their credibility or to ascribe less weight to their testimony. There were some differences in the respective accounts but I do not believe that they were material. They are differences which, I think, I am able to resolve in a manner that does not call into question the credibility of the witnesses concerned.

17 I cannot say the same about the evidence of either the plaintiff or the defendant. Given the peculiar nature of the relationship between the plaintiff and the defendant I have endeavoured, where possible, to look for and rely on independent evidence rather than on the testimony of the parties. That is not to say that I have rejected their respective testimonies entirely. This will emerge as the reasons develop.

Events Concerning the Club Prior to 3 July 1997

18 Before I consider what imputations arise from the Objection Letter and whether the words complained of are defamatory I need to describe in more detail what happened before and at the meetings on 3 July 1997 and 5 July 1997 and at the meeting of the General Committee on 15 July 1997.

19 The Rules of the Cottesloe Golf Club provide for a Committee that is responsible for the management of the Club and which has absolute authority regarding the conduct of all of the affairs and business of the Club unless otherwise specified: r 18. The president and Captain are ex-officio members of the Committee and the Captain is the chairman of the Committee. Rule 19 provides for sub-committees, including a membership committee, with members appointed by the Committee. The powers and duties of the sub-committees are not otherwise specified or set out in the Rules. The Captain is an ex-officio member of all sub-committees. Rule 17 provides for the appointment of a paid Manager. He or she is not a member of the Committee. The duties of the position include keeping minutes of all proceedings of all committee meetings and dealing with correspondence. The provisions governing applications for membership are, relevantly, as follows:

"34. Every applicant for admission as a Member of the Club ... shall be duly proposed and seconded in writing by two Members, both of whom shall be answerable for the eligibility of such applicant and each of whom shall have been a Member for a period of not less than five years. The proposer must submit the names of three Members of the Club who have personal knowledge of the applicant and who are willing to support the applicant's candidature.

35. The nomination paper of every applicant for membership shall be displayed on the noticeboard of the Club for at least fourteen days before the day of election, and such nomination paper shall contain the applicant's full name, address and occupation and be signed by the applicant, the proposer, and the seconder.

36. All .. Members, ... shall be elected by the Committee on a day to be notified. Each election shall be by ballot and two adverse votes shall exclude the applicant from membership."

20 No documentary evidence (for example a minutes of a Committee meeting) was led to establish that in 1997 a membership committee had been formally appointed or was acting as such. It can therefore be ignored for formal purposes although it is apparent from the evidence of some of the witnesses that they thought the body existed and was active. Counsel for the plaintiff was particularly sensitive to evidence being led on this issue. In the end, I think it was relevant primarily to the qualified privilege question and I think it is possible to deal with that defence in a broader way.

21 On 24 November 1994 the plaintiff's application for membership of the Club was lodged. It was supported by letters from Thomas Morley, the proposer and Charles Clifford, the seconder. Shortly before the application came up for formal consideration Clifford took the plaintiff to the Club and introduced him to Howard as a prospective member. I will deal with Howard's response in the next paragraph. By the time the application came to the "top of the pile" Morley had died. The Committee decided that the application was invalid. On 14 September 1996 the then manager wrote to the plaintiff advising him accordingly and returning his deposit. He was told that a fresh application could be lodged. On 25 September 1996 Brent Sunderland, a member, proposed the plaintiff for membership. Clifford continued as seconder.

22 Howard's evidence was that after he had been introduced to the plaintiff he checked the application. He was not impressed by the level of detail which Morley and Clifford had provided concerning their knowledge of the plaintiff. In Howard's view the proposer and seconder had taken a rather casual approach to the requirements for applications. Howard was cross-examined at some length about the letters written by the proposer and seconder and why he thought they were deficient (T 445-448). I am satisfied with his explanation. He also said that around this time there was enormous demand for memberships and the Club was subjecting applications to considerable scrutiny. Johnson gave evidence to similar effect. Howard said that he had taken a decision not to support the application. He also said that shortly after the meeting with the plaintiff he had been approached by the defendant. The defendant had asked him what the plaintiff had been doing at the Club that night and Howard responded that the plaintiff was an applicant for membership. According to Howard, the defendant expressed reservations about the plaintiff being a member of the Club but did not expand on them. Howard was aware that a letter of objection would be provided. Howard also testified that the letter from Sunderland did not influence (in the sense of change) his decision to vote against the application.

23 I accept the evidence of Howard and Johnson that I have just outlined.

24 On 3 July 1997 the defendant handed the Objection Letter to Howard and was invited to the manager's office to discuss it. The only persons present at that meeting were the defendant, Howard and Baumgartel. The evidence of Howard and Baumgartel was that the meeting lasted about 30 minutes.

25 Howard's evidence was that he read the letter and handed it to Baumgartel. He then asked the defendant to go through the letter and explain its contents. The defendant said that it was the first time he had made an objection. He had not enjoyed it but felt under an obligation to the Club to do so. He said that what was in the letter was largely based on what other people had told him. Howard reassured him that what he had written would be treated as confidential. The defendant made comments on individual aspects, which I will detail later. Howard agreed in cross-examination that apart from the paragraph on the second page of the letter referring to Mr Nichevich, the defendant did not say, in relation to any part of the letter, "you should ignore that paragraph". Howard denied that at the end of the meeting the defendant insisted that the application be rejected there and then. He said that he told the defendant that the Club intended to follow its normal procedure and that it would go up to the Committee. Howard then asked Baumgartel to arrange a further meeting at which the Club President could be present.

26 Baumgartel confirmed that he did not take notes of the meetings of 3 and 5 July and, so far as he could recall, nor did anyone else. Baumgartel's evidence as to the course which the meeting took is materially the same as that of Howard.

27 On 5 July 1997 the defendant attended a further meeting in the manager's office with Howard, Baumgartel and Johnson. It lasted about 30 minutes. Baumgartel testified that he showed the letter to the persons present and that the defendant went through it again. Howard said that the meeting followed much the same course as had the earlier discussion. Johnson testified that Howard invited the defendant to explain the letter of objection that he had written. Johnson said that he was not particularly interested in the contents of the letter. What was more significant to him was the fact that a member had an objection to the plaintiff's application. The defendant had expressed concern at having to write the letter but that he thought it was in the best interests of the Club. Johnson read the letter but could not remember the details. The defendant then proceeded to explain the contents. Johnson's recollection was that there was little or no comment by anyone other than the defendant at the second meeting.

28 There are no material differences in these versions and I accept the evidence that I have outlined.

29 I turn now to consider the evidence as to what the defendant said by way of explanation of the contents of the Objection Letter. The defendant gave evidence of these discussions. However, consistent with the general approach that I have mentioned, I have preferred to rely on the evidence of Howard, Baumgartel and Johnson as to what was said. I say this in the full knowledge that none of those witnesses pretended to be reciting what had been said word for word. Each was making a best endeavour to give the gist of what had been said according to his recollection.

30 I have set out as Table "A" to these reasons a schedule which takes each paragraph of the Objection Letter and then compares the evidence of the defendant, Howard, Baumgartel and Johnson in this respect. Leaving to one side the evidence of the defendant, there was little in the cross-examination to cause me to doubt the reliability of that testimony.

31 I should, however, mention a couple of points. Although it was not mentioned in his witness statement, Howard gave viva-voce evidence-in-chief and in cross-examination that when discussing the eleventh paragraph of the Objection Letter the defendant had said of the plaintiff: "He's not a criminal". It was not in his statement of evidence but in cross-examination Baumgartel said that during the course of the meeting the defendant told those present that he had reported the plaintiff to the police after the plaintiff had taken some documents from his office. However, the defendant had also said that the police report was not the reason why he had written the letter and he did not want it taken into account.

32 In cross-examination Johnson said he could not recall the defendant making mention of a report to police. Johnson also said, in relation to the tenth paragraph of the Objection Letter, that he had said to the defendant: "There has been media coverage on previous [Club] members". The defendant had responded with words to the effect: "These people are not in his league". Howard made no mention of the defendant having said he had reported the plaintiff to the police. Nonetheless, I have no reason not to accept Baumgartel's recollection of the exchange.

33 In relation to the imputation concerning the plaintiff's participation in the pyramid selling scheme, I specifically accept Baumgartel's evidence that the "defendant simply read that part of the letter". Neither he nor Howard testified that the defendant had in any way qualified the words in the Objection Letter: "he was one of the 'Mr Bigs' in the Concorde Airline Club" (my emphasis). As will appear shortly, this is an important finding in relation to the content of the imputation that the defendant has to justify.

34 I make these findings. The Objection Letter came into the possession of, and was read by, Howard, Baumgartel and Johnson in the way that I have described. On 3 July 1997 and 5 July 1997 meetings occurred between the defendant and Howard and Baumgartel or Howard, Baumgartel and Johnson in the terms that I have described. The defendant explained parts of the letter to them. I find that the explanations that I have listed below (in each case corresponding to a paragraph number in the Objection Letter) were given.

The defendant said he believed the plaintiff was not a fit and proper person to be a member of the Club. The defendant also said that he had reported the plaintiff to the police when the plaintiff had taken some documents from his office.

The defendant did little more than read from the letter. He said that he had not been able to ascertain whether Brajkovich had been warned off all race tracks in the State but he understood that he (Brajkovich) had been involved in some dispute with the WA Turf Club.

Some reference was made to Mr Martin but no detail was given as to what was said and the paragraph therefore stands on its own.

Howard told the defendant that it was not particularly relevant that the plaintiff had been made bankrupt because that was no bar to membership under the Rules. The defendant agreed but said that was not the point he was trying to make. Although he did not give specific details the defendant said that the plaintiff had been very hard on his creditors.

The defendant referred to the newspaper clippings which reported that the plaintiff had been found to have sexually discriminated against a man in not allowing him entry to the Racquet Club nightclub. The defendant said that the plaintiff was an owner-manager of the Racquet Club and referred to another newspaper clipping which stated that a girl had been barred for being ugly. When it was pointed out to him that the text of the article was not included in the Objection Letter the defendant said that he had not done so because the incident related to a bouncer and did not directly involve the plaintiff. He said that the clipping was relevant because the plaintiff was the owner-manager of the Racquet Club. The defendant also mentioned that overcrowding convictions had been recorded in relation to the Racquet Club that were either against the nightclub or against the plaintiff.

The defendant referred to one of the newspaper clippings in which it had been reported that the plaintiff had been found not to be a credible witness.

The defendant simply read that part of the letter. He said he had heard the plaintiff being involved in the Concorde Airline Club from a number of people but that he had no personal knowledge of the plaintiff's involvement in the schemes. He was relying on what he had been told by the plaintiff's former solicitor and partners.

The defendant as told by those present at the meeting that it was a Mr Starcevich (not a Mr Nichevich) who had made an unsuccessful application for membership of the Club. He then told those present to disregard that paragraph.

The defendant said that he tried to obtain information as to other matters in which the plaintiff may have been involved but had been unable to do so because of confidentiality restrictions imposed by some agencies.

The defendant said that he did not associate the plaintiff with the comments or the persons referred to in the second-last paragraph. He added words to the effect that "these people are not in his league" and "he's not a criminal".

45 The next relevant event was the Committee meeting of 15 July 1997. By that time a second letter of objection had been received although it was confined to the fact of opposition without going into detail.

46 Howard testified that he was not concerned with the content of the Objection Letter but rather with the fact that an objection had been lodged. It was the policy of the Club not to table objection letters. When the subject came up for discussion at the Committee meeting on 15 July 1997 Howard reported that there were two letters opposing the plaintiff's application, one was short and the other long. The letters were not tabled and nor were their contents discussed. Howard voted against the application.

47 Hope was also present at the meeting. He had not read or seen the Objection Letter and nor was it tabled at the meeting. Howard had identified the authors of the two letters of objection but had not gone further. Hope had decided to vote against the plaintiff's application and he did so. His reason for so doing appears from this exchange in his cross-examination:

"Is the reason you voted no that you wanted to avoid a conflict between Mr Brown and a member of the club?---I wanted to avoid a conflict between Mr Brown and members of the club. I had understood that there wasn't only one member who had expressed reservations about Mr Brown.

There were two objections before the meeting, were there not, that you were advised of?---I think Mr Howard told the meeting that he had received letters from two members expressing reservations and I have a recollection that I had been advised that other people had expressed concerns as well."

48 In the days leading up to the meeting Hope had overheard conversations at the Club between two or three other members (not the defendant but probably including Howard) that a number of people had reservations. This explains the last part of that exchange. It would be trite to say that this is not evidence that other members were opposed to the plaintiff's admission but simply as to Hope's state of mind.

49 Stewart was also present at the Committee meeting of 15 July. He supported Howard's evidence that the Objection Letter was not tabled and nor were its contents discussed. He never saw the letter and nor did he discuss it with the defendant or with any other person. He too voted against the plaintiff's application. He did so on the basis that objections had been made and without any knowledge of the contents of the objections.

50 Johnson also testified to having voted against the plaintiff's application. He, of course, had been at the meeting on 5 July 1997 and was aware of the contents of the letter. However, he said that he was more concerned with the fact that an objection had been lodged than with the contents of the letter.

51 I accept all of the evidence of Howard, Hope, Stewart and Johnson that I have just outlined. In particular, I accept that Howard, Hope, Stewart and Johnson voted against the plaintiff's application because of the fact that objections had been lodged and were not influenced by the content of the letter. Howard was also influenced by his concern about what he described as the casual manner in which the proposers had presented information. Of course, neither Hope nor Stewart were aware of the contents of the Objection Letter.

52 It is a critical part of the defendant's case that the Objection Letter is not to be viewed in isolation. Rather it is to be considered in the light of what was said at the meetings of 3 July 1997 and 5 July 1997. The plaintiff challenged that contention, both as a matter of law and on the facts. It is necessary to resolve the issue before going on to consider the substance of the plaintiff's claim and of the matters raised by way of defence.

53 It is trite law that words complained of have to be viewed in their context. The point was raised when the defendant sought leave to amend the defence during the interlocutory stages of these proceedings. In Brown v Marron, unreported, SCt of WA (Steytler J); Library No 980686; 1 December 1998 Steytler J said, at 6 - 7:

"There is no doubt that in considering whether or not defamatory imputations arise it is necessary to take into consideration, not only the actual words used, but their context (see Nevill v Fine Arts & General Insurance Co Ltd [1897] AC 68 at 72, per Lord Halsbury LC). Gatley on Libel and Slander, 9th ed, para 3.28, suggests that it follows from the fact that the context and circumstances of the publication must be taken into account that the plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. There can, I think, be little doubt as to the correctness of that proposition (see Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65 and Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410). Thus, where a newspaper article refers to another report in the same issue either party is entitled to have that other report read as part of the context in which the meaning of the words complained of is to be determined (see Thornton v Stephen [1837] 2 M & Rov 45 and Gatley, supra, para 3.30). It may, in an appropriate case, even be necessary to go outside the document in which the words complained of are contained in order to obtain the necessary context (see Smyth v MacKinnon [1897] 34 SLR 1086).

That being so, it seems to me to be plain that a defendant should be entitled to raise contextual material in the defence where that contextual material has not been pleaded by the plaintiff and where it might affect the meaning put upon the words complained of by the ordinary reasonable reader.

It seems to me also to be plain that contextual material of that kind might include, as it is said to do in this case, newspaper cuttings attached to the letter the subject of the plaintiff's complaint. Moreover, it seems to me that an oral explanation or qualification of written material made simultaneously with the reading of that material might also comprise relevant contextual material. There is, I think, no relevant distinction between that situation and one of the kind which occurred in Thornton v Stephen, supra, in which one newspaper article referred to another in the same issue or in Smyth v MacKinnon, supra, in which a letter was required to be read in its context in the whole of the correspondence of which it formed a part. The fact that the contextual material is oral rather than in writing seems to me to be of no significance if, in truth, it qualifies the meaning of the written material at the time at which that material is read.

It consequently seems to me that it is open to a defendant to plead contextual material of that kind."

54 I acknowledge that Steytler J was dealing with a pleading point, not with an issue of substance. Nonetheless, what his Honour said seems to me to follow as a matter of principle and logic beyond the pleadings and into the substance of the action. I have no hesitation in adopting this dicta.

55 Of course, this does not provide the complete answer. The problem is that, generally speaking, the tort is complete at the moment of publication: Gorton v The Australian Broadcasting Commission (1973) 22 FLR 181 at 183; Grapelli v Derek Block Holdings [1981] 1 WLR 823 at 831. So it is, for example, that a defamatory publication followed by a retraction, perhaps the next day or even an hour or so later, does not destroy the cause of action arising from the original publication. But it still begs the question, what is "the publication"? In Gatley on Libel and Slander, 9th Ed (to which I will refer from time to time simply as "Gatley") at par 3.30 the authors give a number of examples of instances where context is important. One is where an apparently innocuous statement is made on p 100 of a book but when the reader moves to p 110 there is another piece of information from which the true meaning emerges. The statement on p 100 is defamatory. Similarly where a book is published in serial form, with parts appearing perhaps a week apart, the situation may necessitate the entire series being considered in order to decide how the ordinary reasonable reader would understand one particular passage.

56 Each case must depend on its own facts. There must be an intimate connection between the primary source of the alleged defamation and the other material which is said to form part of the context. The primary and secondary sources must be so closely connected, interwoven or enmeshed that it is necessary to take them effectively as one transaction in order to arrive at the true import and meaning of what was written and said. The requisite degree of intimacy will usually (although not always, for example in the serialisation situation) demand contemporaniety. It will be necessary to consider all of the surrounding circumstances to decide whether the secondary materials are so intimately connected with the primary sources that they are to be taken to be a part of the context which might affect the way in which the ordinary reasonable reader would understand the words complained of.

57 In this case there was a very close temporal proximity between the delivery of the letter to Howard, the reading of the letter by Howard and Baumgartel and the verbal presentation by the defendant. I think it emerges from the evidence that the defendant was physically present when Howard and Baumgartel read the letter. The same can be said of Johnson's involvement. The defendant was present when Johnson read the letter and he moved straight on to explain its contents. Accordingly, to the extent that par 16 of the statement of claim founds a separate cause of action, the same considerations apply.

58 In my view, in the circumstances of this case, it is appropriate to regard what was said at the meetings on 3 July 1997 and 5 July 1997 as part of the context against which the words complained of in the Objection Letter are to be assessed.

The Defence of Justification - A Preliminary Comment

59 Logically, the next step is to consider whether the words complained of bear all or any of the imputations contended for by the plaintiff in pars 4 and 11 of the statement of claim and whether they are defamatory. It will be convenient to consider, at the same time, the alternative imputations or meanings contended for by the defendant in par 4 of the defence. I should explain why.

60 Once an imputation is shown to be defamatory it is presumed to be false: Belt v Lawes (1882) 51 LJQB 359 at 361. In the common law jurisdictions (of which Western Australia is one) truth, or justification as it is technically known, is a complete defence. The onus is on the publisher to prove that the imputations arising from the words complained of are substantially true: West Australian Newspapers Ltd v Bridge [1979] HCA 10; (1978-79) 141 CLR 535 at 544; Gobbart v West Australian Newspapers Ltd [1968] WAR 113 at 118.

61 Where more than one imputation is conveyed by the words complained of the publisher may seek to justify some but not all of them. But if it does so, the publisher will be liable in damages on the imputations that have not been justified unless some other defence applies: Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 627. In other words, in Western Australia there is no defence of partial justification as there is in some jurisdictions where the common law has been modified by statute. Alternatively, if there is a "common sting" to the imputations they are not to be regarded as separate and distinct defamatory statements and the publisher is entitled to justify the sting rather than the individual allegations: Polly Peck (Holdings) Ltd v Trelford [1986] 1 QB 1000 at 1032.

62 With the defence of truth it is only the meanings that the words complained of actually bear that the publisher is required to justify: Gatley at par 11.4. A publisher is entitled to contend that the words complained of, in their context, bear a different meaning or imputation from that alleged by the plaintiff. This is the essence of the Polly Peck doctrine as it has been approved and applied in this jurisdiction: Gumina v Williams (No 2) (1990) 3 WAR 351 ; Cash v Morris (1993) 10 WAR 518 . Notwithstanding criticism of the Polly Peck doctrine by some members of the court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, it remains good law in this State.

63 I did not understand the defendant to argue that the various imputations bore a common sting. Accordingly, that aspect of the Polly Peck doctrine can be ignored. However, the defendant set up, and sought to justify, alternative meanings or imputations to or from those contended for by the plaintiff. It is, therefore, necessary for me to decide what imputations the Objection Letter bear.

64 As the authors of Gatley remark, at par 1.5, there is no wholly satisfactory definition of a defamatory imputation. Three formulae have been particularly influential. First, an imputation that tends to "lower the plaintiff in the estimation of right thinking members of society generally": Sim v Stretch (1936) 52 TLR 669 at 671. However, the phrase "right thinking members of society" was criticised by Griffiths CJ in Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7. His Honour preferred the phrase "a [person] of fair average intelligence". Secondly, an imputation that tends to cause others to "shun or avoid the plaintiff": Yousoupoff v MGM Pictures (1934) 50 TLR 581 at 587. Thirdly, an imputation that tends to expose the plaintiff to "hatred, contempt or ridicule": Capital and Counties Bank Ltd v Henry (1882) 7 App Cas 741 at 771.

65 I think it is probably sufficient for the purposes of this case if I were to say that an imputation is defamatory if it is likely to lead the recipient, as an ordinary person, to think less of the person to whom it relates: Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 638.

66 What I have said to date is more concerned with the essential character of the words complained of as conveying a defamatory meaning than it is with the categorisation of the "ordinary person". I think the tests in relation to the latter (usually referred to as "the ordinary reasonable reader") are equally well known. They arise from cases such as Jones v Skelton [1963] 1 WLR 1362, particularly at 1370 - 1371, Lewis v Daily Telegraph Ltd [1964] AC 234, particularly at 258 - 259 and Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245, 1254. In this respect I cannot add much to what I said in Smith v Littlemore (1996) 15 WAR 289 at 294 - 295.

67 The first imputation contended for by the plaintiff is that the plaintiff was a rude, arrogant and ill-mannered person. The defendant's version omits the words "ill mannered". I do not think there is much difference between the two versions. The words used in the third paragraph of the Objection Letter are that the plaintiff has a "manner which is extremely rude and arrogant". The imputation (whether it be in the form contended for by the plaintiff or the defendant does not matter) clearly arises from the words complained of. The Shorter Oxford Dictionary defines the word "rude" to mean, among other things: "ill-mannered, impolite; offensive or discourteous". The word "arrogant" is defined to mean, among other things: "aggressively conceited or presumptuous". Reading the Objection Letter as a whole, even taking into account the qualifications, I think the imputation has been made out and it is defamatory in the sense that it would tend to cause the ordinary reasonable reader to think less of the plaintiff.

68 The plaintiff's second imputation is that the plaintiff was an unethical real estate agent. The defendant says that the meaning which arises is this: "the plaintiff had acted unethically in a real estate business dealing in the 1970's". In the particulars to par 4.3 of the defence the defendant cites two instances. The first is that the plaintiff complained to the Real Estate Institute of Western Australia (Inc) and to the Land Agents Supervisory Board about the sale of the South Perth flats to the defendant when there was no grounds for making the complaint. The second was an instance when the plaintiff had made an approach to a vendor notwithstanding that a "for sale" sign indicated that the vendor was represented by another agent.

69 The critical words appearing in the Objection Letter are these: "During the seventies he had a real estate business trading as Brown & Brajkovich, most in the industry were cautious about dealing with him because of the unethical manner in which he operated". In accordance with the findings that I have set out above there was no relevant qualification of this aspect of the Objection Letter. It cannot reasonably read as being confined to "a real estate business dealing in the 1970's" (my emphasis) or to two incidents as contained in the particulars to par 4.3 of the defence. In fact evidence was led of a third incident, involving John Malloch. To say that people in the industry were cautious about dealing with the plaintiff "because of the unethical manner in which he operated" does give rise to the imputation that he was "an unethical real estate agent". On this point I therefore find in favour of the imputation as formulated by the plaintiff and not in the terms contended for by the defendant. I also think it is defamatory to say of anyone in commerce that they have, in an industry which is governed by a statutory licensing regime, acted in an unethical manner.

70 The third imputation in the statement of claim is that the plaintiff associated with undesirable people. This comes from various parts of the Objection Letter. In the third paragraph the defendant says that his intention in writing the letter was to "explain ... the type of person [the plaintiff] associated with and may introduce to the club". In the fourth paragraph he refers to Brajkovich and says that he had read in the press that Brajkovich had been warned off all race tracks in the State. He then refers to Robert Martin as a former partner of the plaintiff who was a large defaulting borrower of Teachers Credit Society and who had been gaoled for bribery. The ninth paragraph contains a reference to a Mr Nichevich, a person who had recently had his application for membership at Cottesloe Golf Club declined and to the plaintiff having a close friend "fitting this name description".

71 There is no relevant qualification of the first part of that statement. In relation to Brajkovich the qualification is that the defendant had been unable to ascertain whether he had been warned off but the defendant understood that he was in dispute with the WA Turf Club. As I have said, there was no relevant qualification of the statements concerning Martin. When told that Nichevich was not the person who had suffered a rejection of a membership application the defendant said that the persons at the meeting should disregard that paragraph.

72 In par 4.4 of the defence the defendant denies that the meaning is as contended for by the plaintiff and says that the words complained of mean that the plaintiff had associated with people who were not fit and proper persons to be members of the Club.

73 The defendant's contention seems to be that he was simply drawing attention to the type of person the plaintiff "may introduce to the club" in the sense of proposing them for membership. That seems to be the import of the reference to persons who are not fit and proper to be members of the Club. If that is the case, it begs the rhetorical question: so what? There is a mechanism within the Club rules by which undesirable elements of society can be identified and sent away to take their recreation on public golf courses or at some other club with lesser standards. I think that the defendant's contentions involve an understanding of the entire publication that is too narrow. It relates to the "character" of the plaintiff and to the type of person he "associates with". It is not confined to those he may introduce to the Club in the sense that I have outlined.

74 In my view the sting of the words complained of (even taking into account the qualification concerning the Brajkovich comment and, taking the best view for the defendant, ignoring completely the reference to Nichevich) is that the plaintiff's character is suspect because he associates with undesirable people. Again, on this point I find that the imputation is as contended for in par 4.3 of the statement of claim and it is defamatory.

75 The fourth imputation in the statement of claim is that the plaintiff had been adjudged bankrupt. The words are: "around 1983/84 [the plaintiff] was placed into Bankruptcy". In my view this was appropriately qualified at the meeting and does not, of itself, give rise to a separate defamatory imputation. I do not need to deal with par 4.5 of the defence.

76 The fact of the bankruptcy, or more accurately an arrangement under Part X of the Bankruptcy Act 1966 (C'th), is relevant to the fifth and sixth imputations in the statement of claim. It is said that the plaintiff acted brutally with his creditors and former partners. That is pretty well what the words in the sixth paragraph say. The qualification was that the plaintiff was hard (not brutal) on his creditors. I would have been tempted to say that this was not defamatory. I think the ordinary reasonable reader would know that insolvency arrangements often leave significant deficiencies. It is always "hard" on creditors to suffer a loss. I am not sure that that imputation, without more, is defamatory. However, the plea in pars 4.6 and 4.7 seems to assume the defamatory character of the imputations and I should deal with it in accordance with the pleadings. In other words, I will approach it on the basis that the meaning is "hard" rather than "brutal".

77 As the case developed, I think the allegation concerning "former partners" was confined to Robert Martin. I will deal with it in that way. When the plaintiff underwent the Part X arrangement, Martin was left to deal with the creditors of the failed venture.

78 The next imputation is that the plaintiff had a number of convictions. Despite the apparently broad wording of the seventh paragraph of the Objection Letter, counsel for the plaintiff seemed to accept in closing (T 665) that the imputation was as pleaded in par 4.8 of the defence, namely, that the plaintiff had a conviction for overcrowding at the Racquet Club. This seems to render irrelevant (at least for the purposes of this imputation) the evidence about the sexual discrimination incident concerning Daniel King. The qualification made at the meeting is that a conviction had been recorded either against the nightclub or against the plaintiff. In my view (and this is in accordance with the pleading) that still leaves open the possibility that the plaintiff himself had suffered the conviction. In my view it is defamatory to say of a person involved in the entertainment industry that he has been convicted of an offence in relation to that industry.

79 In the statement of claim it is also said that the words complained of meant that the plaintiff had acted improperly by refusing entry to a night club to a girl because she was ugly. The qualification was to the effect that the incident related to a bouncer at the club and did not directly involve the plaintiff. However, the plaintiff was the owner-manager of the club. Paragraph 4.9 of the defence sets up an alternative meaning. It is that a bouncer at the plaintiff's nightclub had acted improperly by refusing entry to a girl for the stated reason that she was "too ugly". It is also said that the operation and conduct of the night club was the plaintiff's responsibility. In light of the qualification I accept that the imputation is as contended for by the defendant in par 4.9 of the defence.

80 It is convenient to deal with the ninth and tenth imputations together. They are that the plaintiff contravened the law by being a major promoter in a pyramid selling organisation and that he had caused loss to others by engaging in pyramid selling. In pars 4.10 and 4.11 of the defence the defendant says that the only imputation to arise from the words complained of is that the plaintiff had been involved in a pyramid selling game. The words complained of in the eighth paragraph of the Objection Letter refer to the defendant's understanding that the plaintiff was one of the 'Mr Bigs' of the Concorde Airline Club, a pyramid selling organisation. It is also said that "thousands lost money, the Ministry of Fair Trading made public statements about the legality of the scheme and are still looking to lay charges against the organisers". The qualification was that the defendant had heard the 'Mr Bigs' allegation from a number of people but that he had no personal knowledge of the plaintiff's involvement in the schemes. He was relying on what he had been told by the plaintiff's former solicitor and partners.

81 In this instance I am not sure that the qualification assists the defendant at all. It is trite law that "for the purposes of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it": Lewis v Daily Telegraph Ltd at 284, cited with apparent approval in Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1993-94) 182 CLR 211 at 246. To add the rider that he had no personal knowledge of the plaintiff's involvement is not sufficient to remove an otherwise defamatory character from the statement. Even if the rider were to go so far as the defendant expressing a doubt as to the truth of the allegation (which this one did not), the defendant would not be relieved of liability: see Gatley at par 6.29. The rider may be relevant to other defences but it does mean that the imputation does not arise or that it is not defamatory.

82 The letter refers to the plaintiff as a "Mr Big" of the Concorde Airline Club, a pyramid selling organisation, that thousands lost money in the scheme, that the Ministry of Fair Trading had made statements about the legality of the scheme and was looking to lay charges against the organisers. In my opinion the ordinary reasonable reader would regard a "Mr Big" as an "organiser" or "major promoter" of the scheme. The reader would understand the reference to statements made by a regulatory authority concerning the legality of the scheme as carrying the implication that involvement in the scheme was contrary to law. However, I am not sure that the statement "thousands lost money in the scheme" carries with it the implication that the plaintiff "caused" losses to others by engaging in the scheme. I am satisfied that the ninth imputation arises but not the tenth.

83 The next question is whether it is defamatory. There are always difficulties in deciding between allegations of guilt and suspicion of guilt: see Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 23 October 1997. In this case I think the ordinary reasonable reader would glean from the words complained of the meaning that the plaintiff had contravened the law by being a major promoter of a pyramid selling scheme. That is defamatory.

84 The eleventh imputation contended for by the plaintiff is that the plaintiff acted improperly as a real estate agent. Once again, an allegation in defamation litigation that a person acted "improperly" is destined to cause problems. It is apparent from par 4.12 of the defence that those advising the defendant thought this imputation was no different from the second imputation in the statement of claim. I take the same view.

85 The bald assertion in the twelfth imputation that the plaintiff acted improperly as a licensee is unhelpful. In par 4.13 of the defence the defendant sets up an alternative meaning, namely that the plaintiff acted improperly during his involvement in the nightclub business. It then gives a number of particulars. One is the sexual discrimination allegation concerning Daniel King. Another is that the Equal Opportunities Tribunal had, in a judgment, found that the plaintiff was not a credible witness. Thirdly, the allegation about the bouncer and "the ugly girl". Fourthly, the conviction for overcrowding. I am prepared to proceed on the basis that the imputations as contended for by the defendant arise from the words complained of. That having been said, the allegations concerned are all covered elsewhere and simply repeat meanings that have already been pleaded. I do not think they add to the claim or the defence.

86 In par 4.13 of the statement of claim it is pleaded, as an imputation, that the plaintiff had committed many indiscretions. This is, once again, unhelpful. The qualification was that the defendant had tried to obtain information as to other matters in which the plaintiff may have been involved but had been unable to do so because of confidentiality restrictions imposed by some agencies. That is the import of par 4.14 of the defence. In my view, the meaning is as contended for by the defendant and it is not defamatory.

87 The fourteenth imputation contended for by the plaintiff is that the plaintiff was so unsuitable for membership of the Club that any other person on the waiting list would be a better choice. I presume that this comes from the final paragraph of the Objection Letter. The defendant admits that this is the meaning that arises from the words complained of. The defendant does not seek to justify that imputation. The defence contains a denial that the words were published maliciously and a denial that because of the publication the plaintiff has been injured in his character and reputation. It is implied in par 4.15 that the imputation is not defamatory. I think the ordinary reasonable reader would understand the words complained of as meaning that the plaintiff was so lacking in character that any other person who had made an application for membership would be a better prospect. That, it seems to me, goes further than saying the plaintiff was not a fit and proper person to be a member. It is defamatory.

88 The final imputation is that the plaintiff had so conducted himself as to give rise to a reasonable concern that he would be convicted of criminal offences and imprisoned. The qualification was to the effect that the defendant did not associate the plaintiff with, or put the plaintiff in the same league as, other Club members who had been convicted and gaoled and he was not saying the plaintiff was a criminal. This is the effect of par 4.16 of the defence. In my view the meaning is as contended for by the defendant and it is not defamatory.

89 I find that the following defamatory meanings or imputations arise from the Objection Letter as qualified.

2. The plaintiff was an unethical real estate agent.

3. The plaintiff associated with undesirable people.

4. The plaintiff had been hard on his creditors and on Martin, a former partner.

5. The plaintiff had a conviction for overcrowding in the nightclub.

6. The plaintiff, being responsible for the operation and conduct of the nightclub, was responsible for the actions of a bouncer who had improperly refused to admit a girl to the nightclub because she was "too ugly".

7. The plaintiff had contravened the law by being a major promoter in a pyramid selling organisation.

8. The plaintiff was so unsuitable for membership of the Club that any other person on the waiting list would be a better choice.

90 The imputations numbered 1, 4, and 6 in that list are the subject of a plea by the defendant that they are true in substance and in fact. They can be dealt with on the merits without further comment.

91 If I were to take a strict approach the defendant may have some difficulty with the defence of justification on the imputations numbered 2 and 7 in the list. This is because he has failed to convince me that the meanings for which he contends, and which he seeks to justify, are the meanings which arise from the words complained of. However, I propose to take a broad view of the pleadings. I do not think that the meanings pleaded for by the defendant are so dissimilar to those contended for by the plaintiff that serious prejudice would arise if I were to afford the defendant the chance to establish the defence on the merits. All of the issues in this case were comprehensively dealt with both in evidence and in submissions. If, in relation to the second imputation, emphasis is placed on the word "business" rather than "transaction" the true sense emerges. As regards the seventh imputation, the concentration should be on whether the plaintiff was involved in pyramid selling schemes and, if so, to what extent.

92 I do not, however, take the same view of the third imputation. The allegation that the plaintiff associated with undesirable people is so different from the meaning contended for by the defendant that the two simply do not meet.

93 The fifth imputation presents a problem. It is dealt with in par 4.8 of the defence and there is no plea that it is true in substance and in fact. However, the case seems to have proceeded on the basis (see for example T 620) that it, too, was subject to the defence of justification. That is how I will approach the matter.

94 In relation to the final imputation on the list, the defendant admitted that the meaning set out in the statement of claim arose from the words complained of. The defendant did not plead, and nor did I understand him to contend, that it was subject to a defence of truth. Logically it could not have been in the absence of evidence identifying the other persons on the waiting list.

95 Accordingly, there are two imputations that have been found to be defamatory and to which the defence of justification does not extend. It will be necessary to consider whether the defence of justification has been made out in relation to all or any of the other six imputations. Of course the entirety of the publication is said to have occurred on an occasion of qualified privilege. That is a separate defence. I will deal with the defence of justification and then with the qualified privilege question.

96 Before I turn to the substantive defences, it will be convenient to deal with the cause of action against the Company. It proceeds on the basis that the letter was written on the letterhead of the Company and signed by the defendant in his capacity as its managing director. The defence is that the letter was written by the defendant solely in his personal capacity.

"Although the business name Marron Property Group was deregistered several years ago, I continue to use one or two letterheads for personal reasons. It was never intended that the letter was to be written on behalf of [the Company]. I wrote the letter in my own right and as a member of the club. I can see that I have signed my name above the words 'Managing Director' but I did so without the authority of the Company and without at any time intending that my letter be written on behalf of the Company. The use of the words 'Managing Director' when signing correspondence of this kind was done by me as a matter of course to identify my occupation rather than to suggest that I was writing on behalf of my company."

98 Some of that is self serving and expresses conclusions. Nonetheless, its general thrust is clear and acceptable. The reference to "one or two letterheads" goes, I think, to explain how the paper on which the Objection Letter was written contains the ACN of the Company. The defendant said in cross-examination that some of the letterhead had the number on it and some of it did not. The defendant explained that the phrase "Managing Director" was a computer generated block that appeared on his correspondence. He was referred, in his evidence, to other examples where he had written letters to the Club using the same letterhead and signing over the block "Managing Director". One such letter was to advise the Club that he had broken a toe and would not be playing golf for a while. That could hardly be described as company business. It seems to me to support the contention that the use of the letterhead was indiscriminate and did not necessarily signal a communication on behalf of the Company. Evidence was also given of correspondence from the Club to the defendant on matters that could only be described as personal to the defendant but which were addressed to him as the managing director of the Marron Property Group.

99 The question of authority was raised but not pursued with much vigour. The defendant said that he and his wife were the directors of the Company. On some occasions he sought formal authority to act on behalf of the Company and on other occasions he did not. I have no reason to reject the defendant's evidence that on this occasion he was not acting on behalf of the Company and that he did not have its authority to write the letter on its behalf.

100 I am satisfied with the defendant's explanation as to how the writing of the Objection Letter and the use of the Marron Property Group letterhead came about. The cause of action against the Company has not been made out. Accordingly, it is not necessary to go to the alternative defence of qualified privilege arising from some sponsorship arrangements between the Company and the Club.

101 The defendant says that the plaintiff is generally a rude and arrogant person. This, of itself, is unhelpful. However, the defendant goes on to refer to a number of incidents or events which, he says, goes to establish the general description of the plaintiff by that phrase. I will deal with each of them in turn. Before doing so, I wish to make one comment. Counsel for the plaintiff pressed on me the need for slavish and meticulous attention to the way that the defence was pleaded. I indicated at the time that I was minded to take a broader view of the matter and look at the alleged conduct rather than at the minutiae of the pleading. I say, unashamedly, that this is the approach I have taken.

102 King gave evidence that he made a group booking to go to the Racquet Club on 25 April 1992 as part of a work social function. The party went to a restaurant and towards the end of the evening seven men decided to go on to the nightclub. King spoke to the doorman to gain entry. The plaintiff came over while King was talking to the doorman. The plaintiff told King that he would not let a group of men into his club. He refused King's invitation for him to check the group to satisfy himself they were well dressed and not drunk. King said that while he was talking to the plaintiff two groups of women were permitted to enter the club. This exchange occurred during his evidence in chief:

"How did Mr Brown deal with you when you were trying to get into the nightclub?---He was very abrupt. He didn't want to listen to any reason.

What caused you to believe that he didn't want to listen to you? What happened?---Well, he started making accusations about us trying to get into the club under false pretences and things. We had made arrangements earlier in the week and I had spoken to Mr Brown on the telephone and made a booking.

And he made those accusations. What did you do when he made the accusations?---I said - invited him to view the rest of the people that were with me so he could see first hand that his allegations and accusations were unfounded, that we were all neatly dressed and that we were all in a sober condition. He refused to even look at us."

103 King said that he did not want to cause trouble and the group left. He had felt humiliated by the plaintiff's decision and attitude. On 12 May 1992 he lodged a complaint with the Equal Opportunities Commission for sexual discrimination. The plaintiff and Franquin Pty Ltd trading as The Racquet Club were named as respondents.

104 On 20 December 1994 the Tribunal handed down a decision on the complaint and the reasons for decision were adduced in evidence. The Tribunal concluded the complaint had been established. In the course of the reasons for decision the Tribunal had cause to remark that the members "did not regard [the plaintiff] as a credible witness".

105 I see no reason not to accept King's evidence that the plaintiff was abrupt, did not listen to reason, accused him of trying to gain entry by false pretences and refused to make his own assessment of the group's sobriety and state of dress. The findings of sexual discrimination against the plaintiff and the club have been established through the tender of the Tribunal's judgment. However, the finding that the plaintiff was not a credible witness is not something upon which I would act. No doubt the members of the Tribunal felt entirely comfortable with that finding. But I was not there and in any event the proceedings before the Tribunal were of a different character from the cause that I have had to try.

106 The plaintiff's son, Craig Brown, and an acquaintance, John Quilty owned a block of land in North Fremantle. It was the subject of a "purple title" in a housing development constructed according to that type of ownership. They intended to construct a strata title unit development on the part of the site to which their title related. The plaintiff, who had expertise in strata title developments that the owners did not have, was to do most of the work to obtain the strata titles. A meeting of nearby residents was held to explain the development as it would affect the other titles. Sarah Woolett, a resident, attended the meeting. Her evidence was that the plaintiff told those present that he could apply for a sale by auction of the whole of the land or they could apply to the court for an order for the land to be sold by auction unless one or more of the co-owners undertook to purchase their shares. Woolett said that she felt shaken and was in disbelief at what the plaintiff had said during the meeting. After the meeting further discussions were held with individual residents. There was disagreement among the residents as to whether, and if so how, to proceed. Negotiations went on over a period of about six months.

107 In April 1989 the plaintiff had the land surveyed. There was a fence between lot 1 (the lot owned by Brown and Quilty) and the adjoining lot 2. A question arose as to whether the fence was on the boundary line or whether it encroached onto lot 1. Over a period of about six months the plaintiff negotiated with the owner of lot 2 to remove the fence but to no avail. The plaintiff says that in December 1989 he intended to make a development application to the Council. Before doing so he thought the site should be cleared of rubbish and shrubs. He, his son and Quilty arranged for a bobcat to be taken to site to do the clearing work

108 Woolett testified that on 4 December 1989 the plaintiff arrived at the site without warning and started clearing work. The fence was knocked down and left on the ground. Some of the residents (including her) re-erected the fence.

109 On 6 December 1989 the Fremantle Council wrote to Quilty and Brown saying it had come to their attention that the owners had commenced development on the property without first obtaining the consent of Council. The letter went on to say that the matter was viewed seriously and that the owners should not proceed until all approvals had been obtained.

110 Woolett also testified that on 3 January 1990 the plaintiff, his son and Quilty returned to the site and demolished the fence again. This time the remains of the fence were loaded on a truck and removed. Woolett says that she physically placed herself in front of the bobcat in an attempt to stop the demolition. At one stage she had to jump clear of the bobcat to avoid injury. She asked the plaintiff to stop the work but he ignored her. Police were called but declined to intervene.

111 On 10 January 1990 the residents took out a restraining order against the plaintiff, his son and Quilty. A certified copy of the restraining order went into evidence. It prohibits the plaintiff, his son and Quilty from entering or interfering with the applicant's quiet enjoyment of the portion of the property in dispute between the parties. They then gave a written undertaking in the same terms as the restraining order. The order then lapsed. In his evidence Brown said that in 1992, when further attempts to negotiate an arrangement with the owners failed, they sold the site.

112 Peter Webb is a planning consultant who does, or did, a lot of work with and for the plaintiff. He attended the meeting of residents about which Woolett spoke. He did not consider that the plaintiff was rude or inappropriate in the way he conducted the meeting or presented the proposal. He did, however, present it "in a direct and determined way". Webb says, although he was not the author of the survey diagram, that the disputed fence was about two metres inside the boundary of lot 1.

113 On 5 January 1990 the plaintiff wrote to the Council complaining about the activities of the co-owners but not referring to the letter of 6 December 1989. On 8 January 1990 the Council wrote to Brown and Quilty again. They referred to the letter of 6 December and to the fact that the fence had been demolished and removed again on 3 January 1990. Council asserted that the fence was a structure and its demolition required planning consent. In cross-examination the plaintiff acknowledged having seen both letters from the Council. He said that he did not think the first letter (6 December 1989) was in relation to the demolition of the fence. I found this explanation difficult to follow and I do not accept it.

114 I accept Woolett's testimony as to what occurred at the resident's meeting and as to the events of 4 December 1989 and 3 January 1990. I also find that the demolition of the fence was an unlawful act. The demolition of a structure is included within the definition of "development" in the Town Planning and Development Act 1928 (WA). The City of Fremantle Town Planning Scheme No 3 (which applied at the time) imports the statutory definition of "development". A fence is a "structure". It is contrary to the Scheme to commence development without approval. No approval was obtained. The plaintiff was therefore a party to an unlawful act in demolishing the fence, on two occasions. His explanation that he was unaware of the requirements, at least on the second occasion, is disingenuous.

115 The plaintiff may well have thought he had right on his side in the property dispute. The fence may have been 2.26 metres inside the boundary and it may have been impeding development. But that is not the point. The plaintiff conducted a residents meeting in a way that placed before them a proposal in a "direct and determined manner", terminology which, in my view, makes it not surprising that at least one of the residents was left "shaken and disbelieving". His conduct in demolishing the fence twice bordered on being brazen. The use of the bobcat when a resident was physically trying to prevent the work was unwise. His conduct was such as to cause a Magistrate to conclude, at least on prima facie grounds, that a restraining order ought to issue.

116 It is convenient to deal with the allegations in par 4.2(e) and (f) of the defence together. They relate to an alleged assault by the plaintiff on the defendant and to the unauthorised removal by the plaintiff of documents from the defendant's office.

117 In the mid 1970's the defendant had an office at 91 Hay Street Subiaco. It was a two-storey building. It was owned jointly by the defendant and an entity called M & M Nominees Pty Ltd. The defendant occupied the first floor and M & M operated from the ground floor. They had agreed to convert the building to strata title ownership on the expiration of a mortgage that existed at the time. M & M agreed to sell its interest in the building and its occupancy rights to the plaintiff and Brajkovich. At some time between September and November 1996 the plaintiff and Brajkovich moved in to the ground floor offices.

118 The defendant testified that he attended a meeting with the plaintiff, Brajkovich and representatives of M & M, at a solicitor's office. He told them he would only consent to the deal if he held all relevant documents, including the application for registration of the strata plan, the transfer of land and the discharge of mortgage. He says that in November 1996 after the plaintiff had moved into the building the plaintiff asked him for the documents. The defendant described the plaintiff's request as forceful, short and abrupt. The defendant refused the request. He says that the next day the plaintiff and another man stopped him in the building foyer and demanded the documents. The plaintiff pushed him and the other man made a physical threat. The defendant reported the incident to the police. There is no evidence that the police took any action.

119 According to the defendant, about a week later Susan Westlake, his secretary, reported to the defendant an incident that had occurred and which involved the plaintiff. Westlake gave evidence. She had commenced working for the defendant in 1996 (she could not recall the month) and she thought the plaintiff moved into the building a couple of months after that. She thought the incident occurred shortly after the plaintiff moved in. One day, when the defendant was not in the office, the plaintiff arrived and said he was going to pick up some documents. The plaintiff walked briskly past her into the defendant's office. She thought he had the defendant's authority to take the material. The plaintiff went to the defendant's office , took some papers and left. When the defendant returned she told him about the incident. He appeared to be very concerned. Later the police attended at the office but she could not recall what they did.

120 The defendant told me that after Westlake had reported the incident to him he went to the plaintiff's office and demanded return of the documents. The plaintiff had refused. He reported the matter to the police. In his evidence the plaintiff simply denied that either incident had taken place. He said that he had never been questioned by police about any such alleged incident.

121 Westlake was cross-examined on the basis that it was not the plaintiff who had entered the office that day. She said that although she had not been formally introduced to the plaintiff she had seen him around the building and had known him to be Mr Brown. She was also questioned about her contact with the defendant concerning the preparation of her witness statement. I have taken all of that into account. The plaintiff called evidence from Jan Kulynyncz. She was his secretary from July 1976. Her evidence went only to the date on which the plaintiff's business moved to the Hay Street premises. I do not think it had any impact on the reliability of Westlake's testimony. I have no hesitation in accepting Westlake's evidence. I do not accept the plaintiff's evidence on this point.

122 In relation to the alleged assault, this is one instance where I have to decide as between the plaintiff and the defendant because there is little, if any, independent evidence to go on. The alleged assault is closely connected to the difference of opinion between the parties as to who should have custody of the documents associated with the plan to convert the building to strata titles. I have found that the plaintiff did remove the documents from the defendant's office and that he had no authority to do so. From this I can draw an inference that the plaintiff was determined to obtain them. This provides some, albeit flimsy, support for the defendant's version of this incident. The plaintiff could not be held responsible for any threat made by his associate. The "assault" committed by the plaintiff was a minor one. It was described by the defendant as a push and it did not excite the attention of the police despite the fact that it was reported. I find, therefore, that the plaintiff assaulted the defendant in the foyer of the building but that it was not a violent incident.

123 The defendant said, and I accept, that after this incident things were tense between them. They seldom saw or spoke to one another. About 12 months later the plaintiff and Brajkovich left the building. After that he only saw the plaintiff a few times and when he did he "kept his distance". From time to time he heard about the plaintiff's business activities on the grapevine.

124 The first allegation in par 4.2(g) of the defence is that the plaintiff complained to the Real Estate Institute of Western Australia (Inc) and the Land Agents Supervisory Board about the conduct of Richard Adams, an estate agent, in relation to the sale of the block of flats in South Perth to the defendant when there were no grounds for the complaint.

125 The defendant testified that in 1975 he saw a newspaper advertisement placed by Richard Adam and Associates for the sale of the flats. In fact the advertisement is dated 11 November 1976. He telephoned Adams and obtained details. Later that morning he telephoned Adams and said that he was prepared to purchase the flats at the advertised price. He went to Adams' office and they prepared an offer and acceptance document. The purchaser was a company controlled by the defendant. Adams later telephoned the defendant and told him the vendor had accepted the offer. He also told the defendant that details of the flats had been given to the plaintiff and Brajkovich and that they wanted to acquire the property. However, he (Adams) had told the plaintiff the property had been sold. Later, the plaintiff telephoned him and said "we want the bloody flats". The defendant replied that his offer had been accepted and he would not be pulling out. The plaintiff had said: "We are going to make things tough for Adams if you don't pull out". I should add that in his evidence the plaintiff denied that he had telephoned the defendant as alleged.

126 I have seen the newspaper advertisement. The asking price is $110,000. I have also seen a copy of the transfer of land document. It shows the consideration as $102,500. The defendant was cross-examined on the basis that he had not offered the full asking price. His explanation was that the full consideration was $110,000 and that $7,500 had been allocated to chattels. Adams gave the same explanation. I accept that explanation.

127 It is common ground that the plaintiff lodged a complaint with the authorities about Adams' conduct. The defendant said that he was not aware of the nature of the complaint, although he thought the plaintiff "was suggesting that Richard Adams and myself had got together and done some sort of a deal behind his back, which was simply not the case".

128 During cross-examination Adams said that he was at home at about 7.30am when he received a call from the defendant expressing interest. At about 8.30am, after he arrived at his office, he received a telephone call from the plaintiff also expressing interest. During the morning the defendant attended at his office and they wrote up an offer for the full price. Later in the morning the plaintiff came to his office and also made an offer for the full price. At about 11.30am that morning Adams presented both offers to the vendor.

129 This evidence is in marked contrast to his evidence-in-chief. He had made no mention of the times of the telephone calls and nor did he mention having written up an offer for the plaintiff. In fact, he said that when he presented the defendant's offer he told the vendor there was another group interested. He told the vendor that the defendant was looking for a long term investment but the other group would probably convert the flats to strata title and sell them off. In his evidence-in-chief he also said that the plaintiff telephoned again later in the day and said he wanted to put in an offer. Adams told him it had been sold for the full price. The plaintiff said he would offer more and asked who the purchaser was. When Adams mentioned the defendant's name the plaintiff became quite aggressive. Adams, the plaintiff and Brajkovich went to the vendor's home and the media attended "for a story". The evidence that the plaintiff telephoned Adams expressing a wish to put in an offer after the vendor had accepted the defendant's offer simply does not accord with the cross-examination.

130 Adams said that the next day he went to the plaintiff's office to try and resolve the matter. The plaintiff said to him "that's what you get for crossing us". Later on the plaintiff lodged a complaint with the authorities. The Land Agents Supervisory Committee wrote to Adams seeking an explanation. Adams said that he provided an explanation and heard no more about the matter.

131 It is apparent from the cross-examination of the defendant and Adams and from the plaintiff's evidence that the essence of the plaintiff's complaint to the Board was that his offer had not been presented to the vendors. In their evidence Adams and the defendant agreed that it would be professional misconduct if an agent, having received two offers at the full asking price, presented only one of the offers to the vendor for decision.

132 I am worried about the state of the evidence on this issue. It must be borne in mind that Adams was recalling an incident that occurred almost a quarter of a century before trial. It is therefore not surprising that there should be discrepancies. But the differences to which I have referred go to a critical issue on this particular aspect of the litigation. The allegation is that the plaintiff made a complaint to a regulatory authority which was unfounded. It is common ground that if Adams had failed to present the plaintiff's offer, the complaint would have been justified. Twenty five years later, the plaintiff could not locate a copy of the complaint, Adams could not locate a copy of his response to the Board, the vendors were not called and the Board did not have records prior to 1 December 1979.

133 When pressed Adams was very firm in his evidence that he had presented both offers. But he conceded that his statement of evidence, which he signed on 3 April 1999, had been presented to him by the defendant . He had discussed it with the defendant on a couple of occasions before the statement was signed. The defendant "might have prompted [his] memory". When he was asked about the discrepancies, this exchange occurred:

"That's something that has come to you in the last, when, day, is it?---I have sort of given less thought of my business and I have given full consideration on this.

It's something you have just remembered you discussed with them, the merits of a written offer by Mr Brown?---I have given this absolute - a lot of consideration the last few days, reading through it, and the last 2 or 3 nights it has all started to come back to me."

134 It is not my role to decide whether Adams was guilty of some form of professional misconduct. But the defendant bears the onus of establishing, on the balance of probabilities, that the plaintiff lodged a complaint that was groundless. I have no doubt that Adams gave his evidence in a conscientious fashion and to the best of his recollection and ability. However, in the absence of other supporting evidence and given the discrepancies between his statement of evidence and what he said in cross-examination, I am left in some doubt as to the reliability of his recollection.

135 In saying this I am not casting any aspersions on Adams' character or professional integrity. Nothing I have said should be taken as an indication that I have found, or even think, that Adams acted unprofessionally or unethically. It is an unfortunate fact that in litigation of this nature innocent third parties can be hurt by being dragged in to a dispute that does not really concern them.

136 I find against the defendant on this particular issue.

137 The other allegation in par 4.2(g) of the defence is that the plaintiff acted improperly in approaching a vendor of a property knowing that the vendor was a client of another agent, John Martin. There are two men with the surname Martin who gave evidence. Accordingly, I will refer to this man by his full name.

138 I can dispose of this matter quickly. In his evidence in chief (he was called by the defendant), John Martin said:

"Can you tell us about a particular matter that arose between you?---Yes. I think it's probably trivial but in those days we were all chasing listings. We listed a property, and I think it was Doonan Road. We put a sign on it. Michael then somehow took somebody through the property. I rang him.

How do you know he did that?---Somehow it got back to us. I rang Michael and said, "That's not what should happen from a lecturer." He said, "Hold on a minute. I'll come down." He came down. We had a discussion. He brought three Coca- Colas. We sat down - my partner, myself and Michael. We discussed the subject. We were happy with his explanation and I think that was the end of it.

What was his explanation?---I don't think I remember at this stage. Our query to him was there was a sign on the property. In those days things were a lot more regimented. They aren't like that today but that's - I think it was just why he went behind the sign.

Did you tell him what you thought he should have done?---Probably. I was that - attitude. I probably did, yes, but I can't remember what it was.

And did he deny that he had done anything wrong or did he acknowledge that he had done something wrong. What did he say to you in response to your complaint to him?---I think we just came to a mutual agreement that there was - you know, there's lots of grey areas in real estate and in this case we left quite amicably. He left quite amicably."

139 This incident would not justify a finding either that the plaintiff was rude and arrogant or that he acted unethically as a real estate agent.

140 I could not find any reference in the pleadings to an incident between the plaintiff and John Malloch but evidence was led about it and it is convenient to deal with it here.

141 Malloch was an estate agent. He testified that he had a listing to sell a unit in Shenton Road, Claremont. The plaintiff approached him asking if they could do a conjunctional sale. The agency period expired before the property was sold. Later on he received some information that caused him to contact the plaintiff. The plaintiff told him that a week after the agency had expired the property had been advertised privately. Malloch told the plaintiff he considered that he was entitled to a commission. The plaintiff said that he was under no obligation to pay Malloch any fees. Malloch said that he made a report about the plaintiff's conduct to the Real Estate Institute and the Ministry of Fair Trading.

142 The evidence reveals that on 6 March 1993 Malloch's firm advertised the unit for sale at $103,000 and that on 20 March 1993 it was advertised privately for sale at $97,000. Brown conceded that he had approached Malloch about a conjunctional deal and that Malloch had agreed . He also said that he and his son had been shown through the property by the salesperson from Malloch's office during the period of the agency. However, he said he and his son decided not to buy the unit. Later, he saw the advertisement for a private sale. The price had been reduced by $6,000 and his son bought it. He denied that there was anything untoward in that transaction.

143 Evidence was given by officers of the Real Estate Institute and the Land Agents Supervisory Board. Their records did go back as far as 1993. Neither of them had a record of a complaint by Malloch against the plaintiff or indeed of any complaint against the plaintiff. An officer of the Ministry of Fair Trading gave evidence but it was more in relation to the pyramid selling scheme. In any event, there was no evidence of a real estate related complaint on this or any other matter to the Ministry against the plaintiff.

144 I would need to know considerably more about the circumstances in which the transaction occurred before I could conclude that the purchase of the Shenton Road unit involved unethical conduct or conduct that was rude and arrogant. Again, I find against the defendant on this point.

145 The last matter pleaded in support of the defence of justification that the plaintiff was rude and arrogant is an incident involving Paul Summers. It is pleaded that in 1996, at Coco's Restaurant in South Perth the plaintiff, without notice or any need to do so, told Summers that the plaintiff had caused his wife to go into partnership with Summers' former wife in a fashion agency business with the purpose of bringing down a business owned by Summers' mother. Apparently, the plaintiff's wife had been employed by Summers' mother and the plaintiff felt she had been underpaid. It is pleaded that, at the time, the plaintiff knew that Summers' mother had cancer and he made the statement to get revenge.

146 Summers is a practising lawyer. In his evidence-in-chief he said that Mrs Brown had worked for his mother for about five years. He understood that she left to have a child and that she had departed on good terms. In 1996 he was at Coco's having lunch with a client. The plaintiff came, uninvited, and sat next to him. The plaintiff told Summers that Mrs Brown and his (Summers') former wife (who had also been employed in Mrs Summers' business) had commenced a fashion agency business (which I will call "the new business"). The sole purpose for getting his wife involved in the new business was to bring down Mrs Summers. He said that his wife had offered to acquire Mrs Summers' business but because of her illness she had refused. The plaintiff said that Mrs Summers was finished in business and that the new business was "going after all her labels". He also said that Mrs Summers had not been a fair employer and had not remunerated her adequately. He concluded by saying that even though it was his intention to bring Mrs Summers down, "at the end of the day it was only business". Summers said that the plaintiff did not appear to be affected by alcohol at the time. He (Summers) was very upset by the incident. Apart from one occasion (to which I will come shortly) he has not spoken to the plaintiff since that time.

147 In his evidence the plaintiff denied that he was aware that Mrs Summers had cancer. He said he received reports that Summers had been making allegations about the new business. He saw Summers at the restaurant and went over to the table. He said, "I just want a word with you". He then said something along these lines. "Listen, I know you've been badmouthing the girls and it's not on". Summers said he did not recall that having been said. "If you want to say something say it to me. I don't want to hear any more rubbish out of you". Summers denied that had been said. "Rose gave Nina a lot of years. There are always promises which never happen, for example, the bonus issue and bringing Rose into the business. Nina's biggest mistake was letting Steph and Rose go". Summers agreed that all of that had been said. "Nina" is Mrs Summers, "Rose" is the plaintiff's wife and "Steph" is Summers' former wife. The plaintiff described it as a "short, cordial and brief conversation at the end of lunch" and said that Summers had not appeared to have been upset by it.

148 Evidence was given of a second incident between the plaintiff and Summers at Coco's Restaurant. It occurred in July 1998. The plaintiff and his wife arrived at the restaurant with friends at about 1.30pm and stayed for lunch and for dinner, leaving at about 11.00pm. [It seems that the habits of the 1980's are not entirely dead and buried!]. It is clear from the evidence that Summers approached the plaintiff, either at his table or on a balcony. A physical altercation occurred between Summers and the plaintiff. Both men were restrained. I heard differing accounts from Summers and the plaintiff as to what precipitated the problem. It may be that Mrs Brown had spoken to Summers earlier in the day but there is no evidence that the plaintiff had done so.

149 I heard evidence from John Farrell. He said that he had gone to the restaurant to have lunch with Summers. During lunch Summers had been complaining to him about the plaintiff. It involved the business affairs of the plaintiff's wife and Summers' mother. Farrell believed that Summers was affected by alcohol at the time. At around 7.00pm Farrell was on a verandah talking to the plaintiff and his wife. Summers approached them. He was intoxicated and aggressive. He yelled at the plaintiff. The plaintiff told him to go away and they would discuss it at another time. Summers threw a punch at the plaintiff and the plaintiff retaliated. The two men were restrained and Summers left. Farrell conceded that he had been consuming alcohol over "a 5 hour lunch" but said that he had a "moderately good recollection" of the incident.

150 I have no reason not to accept Farrell's version of this incident. It shows that Summers had a depth of ill-feeling towards the plaintiff. However, it does not cause me to disbelieve Summers' account of the first incident. If anything it tends to indicate just how seriously Summers viewed the plaintiff's conduct in raising the matter with him in the way that he did.

151 I have found that, in relation to the Daniel King, a regulatory authority found that the plaintiff acted in a way that was discriminatory on sexual grounds. I have also found that the plaintiff conducted himself towards King in a way that was abrupt. He did not want to listen to reason and made accusations that were unwarranted.

152 On the North Fremantle incident, the plaintiff's conduct appears to me to have been lacking in tact and without demonstrating a proper appreciation for the rights of others.

153 I have found the assault allegation to have been established. Even though it was not a violent incident it is evidence that might be described as going some way towards indicating rudeness and arrogance. The removal of documents from the defendant's office without his authority and a refusal to return them has also been established.

154 In this section I do not take into account any conduct of the plaintiff in relation to the South Perth flats, going behind John Martin's sign or his contretemps with John Malloch.

155 I find that the first incident between the plaintiff and Summers occurred in the way that Summers described it. It was, to my mind, an unnecessary and provocative act and it upset Summers. I have not taken the second restaurant incident into account in any way that is adverse to the plaintiff.

156 What, then, am I to make of all of this? I am required to look at a series of incidents, not particularly large in number, that occurred from time to time between about 1975 and about 1996 and say that they justify the statement that the plaintiff's manner is "rude and arrogant". It is, to resort to the vernacular, a tough call to label a person in that way. I have taken into account what could loosely be termed evidence of good character and business reputation led on behalf of the plaintiff, particularly from Peter Webb and Kevin Judge. However, the way that the plaintiff dealt with the King incident, his handling of the North Fremantle residents, the demolition of the fence (especially the second time), the minor assault, the removal of the documents and his approach to Summers could reasonably be described as "rude and arrogant".

157 In this limited sense, I find that the defendant has justified the imputation that the plaintiff was a rude and arrogant person.

Justification - An Unethical Real Estate Agent

158 At the end of his cross-examination I asked the defendant to specify the incidents on which he relied for the statement that the plaintiff operated in an unethical manner in relation to real estate dealings. He said there were five: the South Perth flats, the assault and the removal of the documents, the John Martin incident, the John Malloch incident and the North Fremantle incident. This, it seems to me, extends the argument beyond what is pleaded in par 4.3 of the defence. Nonetheless, I will approach it on this basis.

159 It will be apparent from what I have already said that the defendant cannot succeed in relation to the South Perth flats, the John Martin incident or the John Malloch incident. It will also be apparent from what I have said that I take a dim view of the plaintiff's conduct in relation to the North Fremantle incident. However, there is no evidence that the plaintiff was acting in any way as a real estate agent in that regard. It was a property development undertaken by his son and an acquaintance in which he was involved. The work that he undertook was real estate related but I think this is different to activities as an agent. I think a similar comment applies to the unauthorised removal of the documents from the defendant's office.

160 I should deal at this stage with the statement in the Objection Letter that "most in the industry were cautious about dealing with [the plaintiff] because of the unethical manner in which he operated". There is a long cross-examination on this issue between pages 273 and 289 of the transcript and I will not set it out or describe it in detail. It is sufficient for me to say that the gravamen of it was this. The defendant was aware of the John Martin incident and he was involved in the South Perth flats incident. He attended Real Estate Institute meetings and sundowners. The South Perth flats incident was notorious because of the media coverage at the time. He could recall it being the topic of discussion at a sundowner or sundowners at which a group or groups of real estate agents had been present. There was a "general feeling" that the plaintiff had acted unethically in the South Perth incident. At one stage in his cross-examination he said that four agents had told him they were cautious about dealing with the plaintiff. As the cross-examination wound its laborious way on, he resiled from that number and said he could not give a specific number and nor could he recall names. He was able to say that at about the time when the plaintiff applied for membership of the Club two Club members who were real estate agents mentioned the South Perth flats incident. I am not sure that is particularly helpful.

161 I realise that it is particularly difficult for anyone to transport themselves back two or three decades and recall specific conversations. However, it is a serious allegation to make about a person that he or she is unethical. Somewhat strangely I thought, the defendant was reluctant to concede that the allegation was serious (see T 289). He was adamant that he believed it to be true but was not prepared to comment on the level of seriousness of the claim. The facts, if they be the case, that the South Perth flats incident was notorious and that people knew of the John Martin incident would not be a sufficient basis for me to conclude there was a "general feeling" that the plaintiff acted unethically. Nor is there a sufficient basis on which to conclude that during the 1970's most in the industry were cautious about dealing with the plaintiff.

162 The imputation that the plaintiff was an unethical real estate agent has not been justified.

Brown v Marron & Anor [2001] WASC 100

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (482 paragraphs)

Brown v Marron & Anor [2001] WASC 100 (20 April 2001)

The South Perth Flats Incident and Subsequent Contact

Comments to Clifford About the Plaintiff's Application

Parties

Legislation Cited (5)

Cases Cited (34)