Chehade v Mihailuk

Nature of case and background

1. The plaintiff, Mr Rabie Chehade, who in 2012 was an independent candidate for the election of councillors to Bankstown City Council, claims that on election day on 8 September 2012, he was defamed by utterances allegedly made outside a polling place by the defendant, Ms Tania Mihailuk, a member of the NSW Legislative Assembly.
2. The defendant's interest in the outcome of that council election was that she is the wife of Mr Alex Kuskoff, who was seeking re-election as an Australian Labor Party candidate.
3. The defendant denied that she had uttered the words complained of by the plaintiff. However, on her behalf it was conceded that if the words complained of are found to have been uttered by her, they were defamatory of the plaintiff. The proceedings are governed by the provisions of the Defamation Act 2005.
4. Following a 3 day trial in August 2014, and during the period whilst the final submissions of the parties were being considered, the defendant made an application to re-open the proceedings. The re-opened proceedings concluded on 15 May 2015.
5. This occurred after the defendant had obtained evidence that a witness had given perjured evidence in the case for the plaintiff.
6. That witness, who had approached the defendant in order to disclose his perjury, claimed that he had given perjured evidence under duress from the plaintiff, following earlier threats to his wellbeing, and to that of his family.
7. Those developments necessarily widened the array of disputed matters of fact that required determination in the proceedings.

Alleged defamatory utterances and related imputations

1. The first matter of which the plaintiff complains is set out in paragraphs 3, 4 and 5 of the plaintiff's amended statement of claim as follows: "3. On 8 September 2012 at the location, the defendant in the presence of numerous other persons pointed at a sign showing the plaintiff's name and photo, and said "Don't vote for this man, his first cousin is a murderer, he is in gaol for double life." One of the persons present said "You can't say that, that's not the truth", to which the defendant shouted in reply "Go and look it up on Wikipedia, what's wrong with telling the truth. What are you going to do, call your first cousins to come down and shoot me." (the first matter complained of). 4. The first matter complained of was published to numerous persons, including Mehmit (sic) Ali Kay and Mahmoud Chehade. 5. The first matter complained of conveyed of the plaintiff in its natural and ordinary meaning the following imputations which were defamatory of him: (a) that he is unfit for public office. (b) that he is contaminated by the serious criminality of his cousin. (c) that he is a person of dangerous violence." [Emphasis added]
2. The second matter of which the plaintiff complains is set out in paragraphs 6, 7 and 8 of the plaintiff's amended statement of claim as follows: "6. On 8 September 2012 at the location, the defendant in the presence of numerous other persons pointed at a flyer containing the plaintiff's name and photo and said "Don't vote for him, they are bad people, they are in trouble with the law, they are drug dealers and they have been in gaol." (the second matter complained of). 7. The second matter complained of was published to numerous persons, including Tania (sic) Schneider. 8. The second matter complained of conveyed of the plaintiff in its natural and ordinary meaning the following imputations which were defamatory of him: (a) he is a bad person (b) he is a criminal. (c) he is a dealer in illegal drugs." [Emphasis added]
3. The plaintiff claims that as a result of the utterances as alleged above, he has been damaged in his character and reputation, and that he has been subjected to hatred, ridicule and contempt, in respect of which he continues to suffer distress and damage, and for which he claims both general compensatory damages and aggravated damages.
4. On 12 December 2012, the solicitor then acting for the plaintiff sent a letter to the defendant seeking an apology in respect of those matters: Exhibit "D".
5. The defendant did not reply to that letter. In her evidence, the defendant said that she had ignored that letter because she considered it to have been based on falsehoods and because she thought that it amounted to "a media stunt": T98.5 - T98.11 (27 August 2014).

Procedural history

1. On 9 September 2013, the plaintiff initiated the present proceedings in the Supreme Court of NSW. On 3 February 2014, in the course of an interlocutory review of the proceedings in that court, an order was made pursuant to s 146(1) of the Civil Procedure Act 2005, for the hearing of the proceedings to be transferred to this court: Chehade v Mihailuk [2014] NSWSC 228.
2. A hearing took place in this court on 26, 27 and 28 August 2014, following which judgment was reserved. At that time it was indicated to the parties that judgment would be delivered following a period of pre-arranged leave.
3. During the period whilst judgment was reserved, the defendant retained different legal representation to the representation she had at the hearing.
4. On 2 October 2014, the defendant's new solicitors sent a communication to the court and to the plaintiff's solicitor to foreshadow an application by the defendant to re-open her case. The defendant sought to have Mr Mehmet Ali Kay, one of the witnesses who had been called in the plaintiff's case, recalled to give further evidence on matters concerning the facts in issue and on matters of credit. This occurred after Mr Kay had approached the defendant seeking to recant his former evidence.
5. Due to the cumbersome manner in which the transcript has been numbered, in respect of different hearing days, significant transcript references to pages in the evidence also include a reference to dates.

Application to re-open

1. The basis of the defendant's application to re-open the case was that, after the trial had concluded, further evidence in the form of a statutory declaration had been obtained from Mr Kay, relating to the plaintiff, and that such evidence, by its nature had not been available to the defendant beforehand.
2. In a dramatic turn of events, that evidence indicated on its face, that Mr Kay had perjured himself on 26 August 2014 when giving his evidence at the time he was called as a witness in the case for the plaintiff.
3. That further evidence also raised an issue concerning the credit of the plaintiff. This was in circumstances where the plaintiff's credit had not been the subject of previous challenge at the initial hearing in August 2014.
4. The application by the defendant for leave to re-open her case involved further listings on 16 October, 13 November and 19 December 2014. This was because the hearing of that application was complicated by the fact that Mr Kay, who was resident in Sydney at the time of the initial trial, had since then become resident in Ankara, in Turkey, and who at the time of the application to re-open, had expressed a reluctance to return to Australia because he said he was in fear for his personal safety.
5. The defendant's application to re-open was granted. The threshold for making such an order was much lower than if such an application were to have been made after judgment had been delivered: Smith v NSWBA [1992] HCA 35; (1992) 176 CLR 256, at pages 266 - 267.
6. Further evidence was then taken from Mr Kay by videolink from Turkey on 19 February and 2 March 2015. That evidence had to proceed in limited stages due to time zone differences and logistical difficulties.
7. In response to that further evidence, the plaintiff gave evidence in reply on 16, 17 April, and called a further witness on 15 May 2015. The parties made their final submissions on 15 May 2015.

Plaintiff's request for an apology

1. Before the proceedings were filed, by a letter from his then solicitors dated 12 December 2012, the plaintiff sought an apology from the defendant in respect of the words allegedly attributed to her, claiming they were defamatory of him. It is relevant to set out the terms of the letter requesting an apology.
2. This is because it not only identifies the terms of the request for an apology, but it also identifies a discrepancy in the detail between the plaintiff's complaint made to the defendant in that letter on 12 December 2012, which was repeated in the amended statement of claim, compared to the evidence of the plaintiff, who asserted that the alleged defamatory statements had been made at several polling locations, and not just at the place pleaded in the amended statement of claim and relied upon in Exhibit "D".
3. The plaintiff's request for an apology comprising Exhibit "D" was as follows: "We act for Mr. Rabie Chehade, who as you (sic) aware contested the Bankstown Local Government Council Election (North Ward) on 8 September 2012. This is a concerns notice for the purposes of the Defamation Act 2005 (NSW). Mr. Chehade has consulted us in relation to public communications made by you that day. In particular, we are instructed that ("The Matter Complained Of): 1. Whilst you were at Bankstown West Public School, you said in a voice loud enough for voters present to hear, words to the effect of, "Don't vote for this man", with a finger pointed at a corflute of Mr. Chehade. You also said, "Don't vote for this man, his first cousin is a murderer he is in gaol for double life". 2. When you were told by a witness, "You can't say that, that's not the truth", you yelled, "Go and look it up on Wikipedia, what's wrong with telling the truth". You then yelled out, "What are you going to do, call your first cousins to come down and shoot me". We are instructed that in The Matter Complained Of you made a number of serious charges against our client which gave rise to imputations to the following effect: 1. That our client was associated with criminals, namely murders (sic) or violent persons; 2. By virtue of his association with criminals, that our client was capable of organising for someone to be shot; and 3. That persons' were at risk of harm from our client and those associated with him. The imputations above are defamatory of our client and we are instructed that they are completely false and maliciously made with an intention to harm our client's reputation. We are instructed to request that, within 28 days of the date of this letter: 1. You submit to our firm a letter containing a clear and unqualified apology and retraction addressed to our client in relation to each imputation contained in the Matters Complained Of. When the wording of that apology is agreed to, we will agree on the manner in which it is to be made public; 2. Confirm in writing to (sic) no further representations in relation to the Matters Complained Of will be made; and 3. Pay our client's legal costs in the sum of $1000.00 (one thousand dollars), by way of bank cheque addressed to Mitry Lawyers Law Practice Trust A/C. Our client has instructed us that in the event of your agreeing to this course he does not wish to seek damages. In the event of your non-compliance to our requests above we are instructed to commence defamation proceedings in the Supreme Court of New South Wales without further notice. In any such proceedings damages will be claimed, as well as our client's costs. In the meantime our client reserves all of his rights." [Emphasis added]
4. Following the refusal of the defendant to reply to the above letter, and her refusal to apologise for the claimed utterances, the present proceedings were initiated. The defendant's refusal to apologise was based on her position that she had not uttered the words complained of by the plaintiff.
5. The discrepancy between the content of the allegations contained in the above letter and the evidence of the plaintiff is that whereas in the letter it was asserted that the events complained of had occurred at the Bankstown West Public School polling station, in the plaintiff's evidence it was asserted by the plaintiff that he knew of a witness who had also heard the alleged defamatory remarks made by the defendant at polling stations located at Chester Hill (T21.29) and at Yagoona (T21.41; T29.4).
6. That witness, who was identified by the plaintiff as Mr Mathew Mayora, was apparently present in the jurisdiction at the time of the initial hearing, but was not called to give evidence in the plaintiff's case at any stage of the hearing.

Issues

1. In view of the defendant's concessions to the effect that, if it is established the words complained of were in fact uttered by her, those words were capable of conveying a defamatory meaning and were defamatory of the plaintiff, and which would therefore call for an assessment of damages, the remaining liability issues calling for determination concern questions of the credibility and the reliability of the testimony of the respective witnesses, which in turn has a significant bearing on the determination of whether or not the defendant had in fact uttered the words of which the plaintiff complains.
2. The plaintiff's claim for aggravated damages is said to arise because the defendant knew of the falsity of the alleged statements said to have been uttered by her, and because she has failed to apologise to the plaintiff for the alleged utterances following a request that she do so.

Evidence overview

1. At the initial hearing in August 2014, in the case for the plaintiff, oral evidence was given by the plaintiff, his brother Mr Mahmoud Chehade, Mr Mehmet Ali Kay and Mrs Patricia Schneider.
2. At that initial hearing, in the case for the defendant, oral evidence was given by the defendant, Mr Charles Kavanagh and Mr Alex Cklamovski.
3. At the re-opened hearing, in the defendant's case, further evidence was given by Mr Mehmet Ali Kay and by Mr Mehmet Ali Uluc, the interpreter who had provided translation services during Mr Kay's evidence at the initial hearing on 26 August 2014.
4. At the re-opened hearing, the plaintiff then gave evidence in reply, and evidence in reply was also called from his former solicitor, Ms Lauren MacDougall, and from Ms Christina Alexopoulos, a solicitor and principal of the firm ZB Law which formerly employed Ms Zali Burrows, the plaintiff's present solicitor.
5. Numerous documentary exhibits were tendered. These will be referred to where it becomes relevant to do so.

Credit

1. The pivotal question of whether or not the defendant had in fact uttered the words complained of stands to be resolved on an evaluation of the credibility and the reliability of the evidence of the respective witnesses.
2. The initial impressions gained concerning the credibility of the testimony given during the first stage of the hearing in August 2014, necessarily required later reconsideration following the further evidence given at the re-opened hearing on 19 February, 2 March, 16, 17 April and 15 May 2015.
3. The paragraphs that immediately follow set out both my initial impressions gained from the first phase of the trial, and my ultimate conclusions concerning the credibility and the reliability of the respective witnesses following the consideration of the evidence as a whole, including a consideration of the further evidence given in the re-opened case.

Plaintiff

1. The plaintiff's evidence at the initial phase of the trial was given in a straightforward and moderately expressed manner that on its face did not raise any concerns as to his credit or as to his reliability as a witness.
2. The plaintiff's initial evidence had no bearing on the question of whether or not the defendant had uttered the words of which the plaintiff complained. This was because the plaintiff had not been present on the occasion when it was claimed that the words were allegedly uttered by the defendant. The plaintiff's case on that question was entirely reliant on the evidence of others who were present on that occasion and who claimed to have heard the defendant make those utterances.
3. However, following the further evidence adduced from Mr Mehmet Ali Kay on 19 February and 2 March 2015, and following the further evidence that the plaintiff gave on 16 and 17 April 2015, including when challenges were made to the credibility of his evidence on those latter occasions, the initial views as to the plaintiff's credit as summarised at paragraph [41] above necessarily required revision.
4. This was because of the nature and the content of the attack made on the plaintiff's credit, based upon the further evidence of Mr Kay, and the plaintiff's responses to those attacks.
5. In those events, as a consequence of the re-opened case, and following final submissions, I formed views that were in some respects adverse to the plaintiff's credit as follows.
6. A matter that arose in the course of the plaintiff's further evidence concerned the probity of an aspect of his conduct on 21 August 2014. This concerned the actions of the plaintiff in making a partial voice recording of a conversation between himself, Mr Mehmet Ali Kay, and others present, at the time when the plaintiff served a subpoena on Mr Kay requiring him to attend at the initial trial to give evidence.
7. That recording was made without Mr Kay's prior knowledge or consent. In the course of the resumed hearing, the plaintiff was issued with a certificate pursuant to s 128(7) of the Evidence Act 1995 in respect of that evidence as the recording in question was made in plain contravention of s 7 of the Surveillance Devices Act 2007.
8. The explanation proffered by the plaintiff for making that recording was to the effect that he made the recording innocently, and in ignorance of the legislative prohibition on doing so.
9. Given that the plaintiff had previously worked as a commercial agent and as a private investigator, a role which I infer would have required him to undergo some training and experience in tasks such as the service of legal process, I considered his claim of innocent ignorance of the requirements of or prohibitions within the Surveillance Devices Act 2007 to be improbable.
10. I do not accept his evidence that in his previous role as a commercial agent he had been trained and was required by his former employer to make unauthorised voice recordings as evidence of due service of legal process: T126.23 - T126.34 (16 April 2015); T133.40 - T134.9 (17 April 2015).
11. Resolution of the factual question of whether or not the plaintiff had procured the evidence of Mr Kay at the initial hearing as a result of duress and threats, as alleged by Mr Kay and denied by the plaintiff, stands to be determined in the context of a consideration of the credibility evidence of Mr Kay on the subject matter of those allegations when compared to the evidence of the plaintiff.
12. Also relevant to that analysis is a consideration of Mr Kay's motives in coming forward to admit to having perjured himself.

Mr Mahmoud Chehade

1. Mr Mahmoud Chehade is the plaintiff's younger brother. He was present at the Bankstown West polling place on 8 September 2012, where he claimed to have heard the words complained of allegedly uttered by the defendant. The initial impression I gained from his evidence was that he gave that evidence in a manner aimed at persuasion rather than simply recounting facts: T35 (26 August 2015).
2. In cross-examination on 26 August 2014, counsel who then appeared for the defendant put to Mahmoud Chehade that his account to the effect that words complained of were uttered by the defendant was untruthful: T43.50 - T44.12 (26 August 2015). Mahmoud Chehade forthrightly rejected that proposition. That challenge was sufficient to raise a credit issue to be determined regarding the reliability of the evidence of Mahmoud Chehade.
3. Mahmoud Chehade's denial of that proposition must now be further assessed and re-evaluated in light of Mr Mehmet Ali Kay having recanted his evidence on that matter.
4. There were textual discrepancies between the evidence given by Mahmoud Chehade concerning the words allegedly uttered by the defendant, and the matters pleaded and particularised by the plaintiff. This raised doubts as to the accuracy of his account because Mahmoud Chehade was the source of the plaintiff's knowledge of those matters.
5. Mahmoud Chehade was not called to give further evidence in the plaintiff's case in reply after Mr Kay had given his altered evidence, in which he admitted to having perjured himself in his previous evidence given on 26 August 2014. This was because Mr Kay's altered evidence did not affect the factual question of whether or not Mahmoud Chehade had heard the words complained of, as he claimed he had. In the defendant's final submissions, there was criticism that Mahmoud Chehade had not been called in the case in reply. I do not accept the force of that criticism as the content of the evidence of Mahmoud Chehade remained unaffected by the recantation of evidence by Mr Kay as Mahmoud Chehade's evidence was capable of being read and assessed on its own merits.

Mr Mehmet Ali Kay - initial evidence

1. At the initial hearing Mr Mehmet Ali Kay gave his evidence in a rapid, excitable, animated, and at times forced manner of speech, where he added some emphasis to certain parts of what he was saying.
2. Despite noting those observations, in arriving at my initial impressions as to Mr Kay's credibility and reliability as a witness, I considered that his evidence as to whether the alleged words were said by the defendant was capable of being believed in the sense that his evidence was not inherently improbable and had apparent plausibility, but it needed to be evaluated against the evidence as a whole.
3. In making that observation, it was also apparent that at times Mr Kay had given his initial evidence with what appeared to be some exaggerated emphasis in the course of some hostile responses he gave to questions asked of him in cross-examination on behalf of the defendant.
4. At the time of the initial hearing, some consideration was given to the possibility that cultural and personality factors could have affected Mr Kay's presentation and demeanour as a witness.
5. Counter weighted to that possibility was the further possibility that Mr Kay's demeanour when giving his evidence, as described above, was because he was stressed, and because key aspects of his evidence could simply have been untrue, which he later admitted to be the case.
6. A confounding factor to the analysis of Mr Kay's initial evidence was his variable resort to the assistance of the interpreter in court.
7. Those matters required a more mature reflection of his evidence as such matters could not be satisfactorily or readily resolved on the basis of initial impressions.
8. Accordingly, at the time of the defendant's application to re-open her case, no final conclusions had been reached concerning the truthfulness or the reliability of Mr Kay's initial evidence, when that evidence was compared to that given by the defendant.
9. Necessarily, any initial impressions of Mr Kay's evidence and his reliability as a witness required a complete reconsideration as a result of his subsequent admission of perjury.

Mr Mehmet Ali Kay - disclosure of perjury

1. On 24 September 2014 Mr Kay swore a statutory declaration in Istanbul, in which he disclosed that he had perjured himself in the evidence he gave in the case for the plaintiff on 26 August 2014. That disclosure was in the following terms: "…2. On 26 August 2014 I was called as a witness to give evidence to the District Court of New South Wales in the matter of Rabie Chehadie (sic) v Tania Mihailuk (Case No.:2013/272663). 3. I make this Statutory Declaration to recant the evidence I gave on 26 August 2014. Under duress I falsely claimed a number of conversations and events took place. These claims were untruthful. 4. Mr Rabie Chehade visited my house on a number of occasions to pressure me to sign a prepared statement. He then coached me to repeat these untruthful statements in Court under Oath. 5. I was put under duress by Mr Chehade and was in fear of my safety and that of my family. 6. On 8 September 2012 I confirm that I did not have a conversation directly with Ms Tania Mihailuk despite stating such on 26 August 2014. 7. On 8 September 2012 I did not hear Ms Tania Mihailuk say any of the words I attributed to her despite stating such on 26 August 2014. 8. I only now understand that I have committed perjury. At the time I did not see a solicitor to explain the ramifications to me. 9. I have since sought independent legal advice and make this Statutory Declaration to rectify the untruthful evidence given by me (sic) 26 August 2014 to the District Court of New South Wales. …"
2. On its face, the evidence cited in the preceding paragraph compelled the re-opening of the case before the delivery of a final judgment. However, the credibility of the testimony of Mr Kay as to the circumstances in which that statutory declaration came into existence also requires careful consideration.

Mr Mehmet Ali Kay - credit re-assessment following re-opened evidence

1. Mr Kay gave evidence in the re-opened case on 19 February and 2 March 2015. That evidence materially altered his earlier evidence given on 26 August 2014. Mr Kay was questioned vigorously and at length on that altered evidence.
2. At the outset of the consideration of the second phase of the evidence of Mr Kay, it is relevant to note that some issues arose concerning the accuracy or the adequacy of the interpretation of the evidence he gave by videolink from Ankara, in Turkey, on 19 February 2015. There was no such issue with the translation of the evidence he later gave from Ankara at the resumed hearing on 2 March 2015.
3. Following Mr Kay's further evidence via videolink from Ankara on 19 February 2015, the plaintiff's legal representation became dissatisfied with the translations proffered by the interpreter whose services had been utilised in Sydney on that occasion. The defendant's legal representatives ultimately shared that dissatisfaction.
4. As a result of that dissatisfaction, the representatives of the plaintiff took the unusual step of retaining a different translator to listen to the official court room recording made of Mr Kay's evidence on 19 February 2015 in order to compare it to the interpreter's simultaneous account of what was said.
5. The translator retained by the plaintiff then provided some additional translated text which was then incorporated into a 49 page version comprising a copy of the official transcript of that evidence where, the official transcript had previously comprised some 43 pages.
6. The defendant's legal representatives conceded that the additional text set out in the expanded 49 page version of that transcript was appropriately included. Accordingly, without objection, the expanded version of that transcript of the evidence of Mr Kay given on 19 February 2015, was tendered during the course of the re-opened hearing, and was marked as Exhibit "P".
7. In assessing the evidence of Mr Mehmet Ali Kay as a whole, it is relevant to note that at the initial hearing, whilst he stated that he had some proficiency in his use of English, at times he preferred to give his evidence through a Turkish interpreter: T46.45; T52.44, T53 (26 August 2015).
8. In that regard, absent it being shown that he did not need periodic resort to an interpreter, it was Mr Kay's right to have an interpreter. No adverse inference should arise from those circumstances: s 30, Evidence Act 1995. That said, it was informative that there were significant tracts of Mr Kay's evidence given without the assistance of the provided interpreter: T44 - T56 (26 August 2015).
9. On all of the occasions Mr Mehmet Ali Kay gave his evidence, he appeared to display a nervous demeanour. In a review of his evidence as a whole, that observation becomes understandable, given that his evidence on the first occasion was, on his own admission, perjured.
10. The fact of admitting to having given perjured evidence, irrespective of whether the alleged threats to the wellbeing of himself and his family had been made, would be an understandable explanation which could account for such nervousness.
11. In the second phase of Mr Kay's evidence, I considered him to be a more loquacious witness than was previously evident. At times, he was variously, non-responsive, argumentative and over-inclusive in his answers. Also at times, his answers were accompanied by melodramatic gestures and on occasion his evidence had to be interrupted in order to deal with such matters.
12. In the second phase of his evidence, Mr Kay made more frequent use of the interpreter, but there was no consistent pattern. I formed the view that his resort to the use of the interpreter in those circumstances was to allow himself some thinking time to formulate answers that best suited his position in the litigation: Exhibit "P", p 19.50 and p 36.23 (19 February 2015). This occurred where his credit was under attack, and where he gave some unresponsive answers which gave me the impression that he appeared to be trying to deflect the direction of cross-examination.
13. Due allowances had to be made for the fact that Mr Kay was giving some of his evidence in the Turkish language, and that he was under some considerable pressure or stress due to his earlier admitted perjury, together with the fact that when he gave his further evidence from Ankara, it was either late at night or in the early hours of the morning, and whilst he was tired, and at one point, he claimed to be unwell.
14. I nevertheless concluded that overall, Mr Kay's evidence on matters in contention must be viewed as being totally unreliable unless corroborated by objectively acceptable evidence.
15. The basis of that conclusion was Mr Kay's admission that he had previously given sworn evidence which he knew to be false, intending that the court receive, accept, and rely upon such evidence.
16. That conduct necessarily cast doubt about his veracity as a witness generally. The fact that he had knowingly perjured himself necessarily detracted from his credit as a witness. Although the fact that he later admitted his perjury was a positive matter that went to his credit, in my view, this was an insufficient factor to restore his credibility as a witness as there was little basis for confidence that his other evidence at the re-opened hearing was truthful.
17. Furthermore, Mr Kay had waited until he was outside the jurisdiction before he admitted his perjury, and was therefore not amenable to sanctions available in the jurisdiction aimed at discouraging the giving of false testimony. I considered that his evidence given by videolink should be given little weight except insofar as it involved an admission of perjury on his part.
18. Furthermore, there were significant variations and inconsistence in his evidence. These matters necessarily also cast doubt upon his veracity as a witness.
19. Those inconsistencies also indicated that significant caution was required before Mr Kay's evidence could be accepted. Those inconsistencies will be identified in the review and analysis of the evidence he gave via videolink from Turkey.
20. As a result of those considerations, I concluded that Mr Kay's evidence on critical matters of fact in dispute should be seen as being totally unreliable, absent the availability of acceptable objective corroboration.

Mrs Patricia Schneider

1. Mrs Schneider was a reluctant witness. This may have been so because there had been a recent bereavement in her family not long before she gave her evidence. That said, she also appeared to have given her evidence in a pressured manner with some added emphasis in particular places. In my view these matters raised a doubt as to the reliability of her evidence.
2. Mrs Schneider's evidence gave varying impressions concerning her observations as to having heard the words allegedly uttered by the defendant. At one point, at T60.13 (27 August 2015), she recounted a specific recollection of the words allegedly used by the defendant. This was later re-iterated at T65.2 and at T66.35 (27 August 2015).
3. Later, at T66.45 (27 August 2015), she stated that as a result of shock and disbelief at the time, she had blocked those matters out. In my view, her evidence on the disputed conversations contained exaggerated emphasis which in any view raised a doubt about the reliability of her account, and as to whether or not her account was an incorrect reconstruction.
4. In the result, I was left with doubts about the objectivity and reliability of Mrs Schneider's evidence because in parts she had loaded her description of the event in question with gratuitous editorial comment by which she expressed her disdain and disapproval of the defendant's alleged conduct: T60.2 (27 August 2015).
5. That disapproval was reiterated by her (at T60.8 on 27 August 2015) despite being cautioned against making such comments when recounting her evidence on factual matters: T60.4 - T60.6 (27 August 2015). In my assessment, this indicated that her evidence was influenced by an opinion she had formed and that this had interfered with her ability to relate unembellished factual evidence.
6. Furthermore and significantly, at T65.1 (27 August 2015), she claimed to have heard the defendant say "Don't vote for this man Rabie he's been in trouble with the law, their (sic) drug dealers, they've been in gaol". That specific statement seemed, at least in parts, to be referrable to the plaintiff rather than to his relatives. As such, it was inconsistent with the account provided by Mahmoud Chehade. It is pertinent to note that those details within the account provided by Mrs Schneider did not form part of the plaintiff's case against the defendant.
7. A further matter that caused me to doubt the reliability of the evidence of Mrs Schneider was the fact that she was first asked to consider her recollection long after the events had passed. I am not satisfied that her account of the alleged events was reliable.
8. For the foregoing reasons, I considered that Mrs Schneider's evidence as to what she said she had heard on the day in question should not be taken to be a reliable guide to determining whether or not the defendant had uttered the words of which the plaintiff complains.

Defendant

1. The defendant gave her evidence in a calm matter-of-fact manner that did not raise any obvious questions or doubts as to her credit as a witness. There was nothing in the defendant's evidence that was inherently improbable. Her evidence therefore stands to be evaluated according to its content alongside the other evidence that was given.

Mr Charles Kavanagh and Mr Alex Cklamovski

1. There were no credit issues arising from the testimony of either Mr Kavanagh or Mr Cklamovski. Their evidence to the effect that they had not heard the defendant utter the alleged defamatory utterances did not necessarily mean that those utterances did not in fact occur. Their evidence does not exclude the possibility that the defendant had made those utterances as claimed in the case for the plaintiff. I considered the evidence of these witnesses to be of neutral significance to the pivotal matter calling for decision.

Mr Mehmet Ali Uluc

1. At the initial hearing on 26 August 2014 there were no issues arising from the sworn interpreting services provided to the court by Mr Uluc concerning his interpretation of the evidence given by Mr Mehmet Ali Kay on that occasion.
2. At the re-opened hearing, on 16 April 2015, the evidence of Mr Uluc revealed a number of matters that would not normally have been exposed to analysis concerning the role of the court interpreter.
3. In that evidence it transpired that Mr Uluc was the interpreter who had been engaged to assist Mr Kay in a pre-hearing conference with the plaintiff's legal advisers as well as providing interpreting services at the initial hearing.
4. That is a matter of some significance because in accordance with the long established convention, those circumstances should have been disclosed to the court at the time he was sworn as the interpreter. That said, nothing would seem to turn on the probity of the in court translation services that were provided by Mr Uluc at the initial hearing.
5. Mr Uluc had met with the plaintiff and Mrs Rebecca Kay at an Auburn café on the afternoon of 25 August 2014, which was the day before Mr Kay gave his evidence at the initial hearing on 26 August 2014: T 91.97; T91.40; T95.31 (27 August 2015).
6. The stated purpose of that meeting was to go over a document that set out some questions that would be raised with Mr Kay in his evidence that was to be given on the following day: T91.50 - T93.5 (27 August 2015). That meeting took place over the course of between 30 and 60 minutes. Mr Uluc stated that Mr Kay conversed with Ms Rebecca Kay, someone associated with the plaintiff and who happened to have the same surname, for a significant portion of that time and Mr Kay required limited recourse to Mr Uluc's services as an interpreter on that occasion: T92.20 (27 August 2015).
7. The questions discussed on that occasion were set out on a sheet of paper that had come from the plaintiff and his solicitor: T90.5 - T90.17 (27 August 2015). Those questions, with subsequent answers, appear in Exhibit "J".
8. Mr Uluc stated that at about 8.00am on the morning of the hearing on 26 August 2014, the plaintiff and his brother had picked him up from his home, drove to Lidcombe Railway Station, and then travelled by train to the City. He said that Mr Kay was present in that group throughout that period: T93.40 (27 August 2015).
9. Mr Uluc was not asked questions about the journey home from the City after he had completed his interpreting services on that day. The relevance of that detail is that when the plaintiff gave evidence at the re-opened hearing he had described a conversation he had with Mr Kay whilst on a train. The effect of that conversation, as recounted by the plaintiff, was that Mr Kay had solicited a payment from him in the sum of $10,000: T129.39 - T130.45 (28 August 2015). This was said to have taken place whilst Mr Uluc was standing nearby. The plaintiff alleged that in those events, Mr Uluc had nudged the plaintiff by way of non-verbal communication when that conversation was taking place.
10. That matter was not explored by counsel for the plaintiff in his cross-examination of Mr Uluc. This raised a potential credit issue concerning the evidence of the plaintiff, namely whether that conversation in which Mr Kay was alleged to have solicited a payment from the plaintiff occurred as was claimed by the plaintiff. This is a matter to which I shall return in considering the evidence of the plaintiff and Ms Alexopoulos, the solicitor who instructed in the plaintiff's case at the initial hearing in August 2014.
11. It transpires from the evidence of Mr Uluc that there was some ambiguity surrounding the arrangements for securing payment for his interpreting services at the hearing on 26 August 2014. In his evidence he stated that he still remains unpaid in respect of those services.
12. Mr Uluc considered that the plaintiff or his solicitor should pay for the professional interpreting services he had provided on 26 August 2014. In contrast, the plaintiff said he was under the impression those interpreting services had been arranged at the behest of Mr Mehmet Ali Kay himself, for his own benefit. It is not necessary for me to resolve that question other than to say that on a superficial consideration, the plaintiff's contention seems to involve an unlikely proposition as the party calling such evidence would ordinarily assume responsibility for arranging for an interpreter if that was required.
13. However, that said, the ambiguity concerning who was liable for Mr Uluc's fees may have arisen because, by reasons of economy, and the absence of his usual solicitor Ms Burrows, who was overseas in Lebanon at the time, it appears that the plaintiff had been personally attending to some of the logistical matters of preparation for the hearing that would normally be undertaken by a solicitor, including witness arrangements and the service of subpoenas.
14. Notwithstanding that Mr Uluc remained unpaid for his interpreting services, I considered that he gave truthful evidence at the resumed hearing. I did not consider that there were any concerns as to the credibility or the reliability of his testimony. I do not consider him to have had a personal agenda for his evidence notwithstanding that his fees for his interpreting services remained unpaid.

Ms Lauren MacDougal

1. Ms MacDougal's evidence related to her role as a solicitor who was at the time in the employ of Mitry Lawyers, that firm was the plaintiff's initial legal advisor in the events leading to the filing of the proceedings. Her evidence related only to chronological and factual matters that preceded the litigation.
2. In 2012 - 2013, Ms MacDougal was a solicitor employed by Mr Richard Mitry, the solicitor whom the plaintiff had initially engaged in connection with this matter. Mr Mitry had asked her to carry out some delegated professional tasks in connection with the plaintiff's claim.
3. Ms MacDougal's initial involvement occurred about a week after the alleged incident on 8 December 2012: T100.4 (27 August 2015). In the course of her employment, Mr Mitry had asked her to contact a number of persons and to take their witness statements by telephone: T100.18 (27 August 2015).
4. On 14 September 2012, she spoke with a number of persons in that regard. One such person, who identified himself to her as Mr Mehmet Ali Kay (T108.12 on 27 August 2015), provided her with a statement which she compiled by telephone, typing it as she spoke to him: T100.10 - T103.26 (27 August 2015). The process of obtaining the statement of Mr Kay took some 5 - 10 minutes: T111.44; T112.24 (27 August 2015). She also had some involvement in drafting a letter of complaint about the events in question to the Electoral Commission: Exhibit: "E".
5. In those events, a statement was also obtained from Mr Mayora, who has already been identified at paragraph [30] above. Mr Mayora's statement was witnessed by the plaintiff, who had also witnessed the statement of Mr Kay: T106.43 (27 August 2015).
6. There were no adverse questions as to the credibility or the reliability of the evidence of Mrs MacDougal.

Ms Christina Alexopoulos

1. At the resumed hearing on 15 May 2015, just before final addresses, in the case in reply, the plaintiff called Ms Christina Alexopoulos, who in August 2014, was the principal of the firm ZB Law, the plaintiff's solicitors.
2. She did not have personal carriage of the matter and her role was that of supervising the plaintiff's solicitor, Ms Zali Burrows, who has continued in the matter as the plaintiff's present solicitor. Ms Alexopoulos was called as a witness in the re-opened hearing in the plaintiff's case in reply in order to recount a conversation she had with the plaintiff on the day after Mr Kay had given his initial evidence. The content of that conversation was to the effect that in conference, the plaintiff had told her Mr Kay had tried to "hit him up" for a payment of money following Mr Kay's evidence in the initial phase of the case for the plaintiff.
3. That evidence was called to bolster the plaintiff's credit concerning his account of Mr Kay having solicited money from him after giving evidence in the plaintiff's case.
4. Ms Alexopoulos gave her evidence about that conversation some 9 months after the event. She had been instructing counsel for the plaintiff in the initial phase of the trial as Ms Burrows was at that time in Lebanon attending to another matter.
5. Ms Alexopoulos could not recall, but she presumed that she had made a file note of the subject conversation with the plaintiff in which he disclosed Mr Kay's solicitation for money: T214.15 - T214.19 (15 May 2015). She gave evidence without consulting that file note to refresh her memory of the recounted conversation she had with the plaintiff: T214.21 - T214.23 (15 May 2015).
6. Ms Alexopoulos stated that she had raised the subject matter of that conversation with counsel for the plaintiff: T214.38 - T214.47 (15 May 2015). She also stated that although the subject matter of the recounted conversation raised serious questions, and a possible breach of the criminal law, she did not inform the police or seek ethical advice as to what should be done in the disclosed circumstances: T214.32 - T214.36, T217.34 - T217.36 (15 May 2015).
7. There were no submissions made about the credibility or reliability of the cited evidence of Ms Alexopoulos. The significance of that evidence will be determined after I have undertaken a survey of the various factual accounts within the evidence and before stating my findings on whether or not the words of which the plaintiff complains were in fact uttered by the defendant.

Survey of the various factual accounts

1. The plaintiff was not present on any of the occasions on which the words were allegedly spoken by the defendant. The determination of whether those words were spoken therefore requires a survey and evaluation of the evidence of the other witnesses who were present on the relevant occasions.
2. Central to that question was the evidence of Mr Mahmoud Chehade, Mr Mehmet Ali Kay, and Mrs Schneider, as opposed to the evidence of the defendant.
3. At the initial hearing, Mr Kay was adamant that the defendant had uttered the words of which the plaintiff has complained in these proceedings.
4. In contrast, at the re-opened hearing, and in his statutory declaration, Mr Kay alleged that the plaintiff had encouraged him by coaching, under duress and threats to the wellbeing of his family, to give false evidence on that earlier occasion. That further evidence has therefore raised a credit issue that also concerned the plaintiff, whereas at the initial phase of the hearing there were no such issues.
5. In the paragraphs that follow, I set out my review of the testimony of the respective witnesses as a preface to my findings on the question of whether the defendant had indeed uttered the words in contention.
6. That review proceeds from the premise that the initial evidence of Mr Mehmet Ali Kay, on his own admission, was perjured, and was therefore unreliable unless corroborated by other credible evidence for reasons identified in my analysis of his evidence, which chronologically follows the analysis of the evidence of Mahmoud Chehade and that of Mrs Schneider.
7. The fact of Mr Kay's admission of perjury cannot be ignored. I have concluded that his admitted perjury must be seen to cast doubt upon his credit as a witness generally.
8. Notwithstanding that conclusion, the plaintiff seeks a finding that Mr Kay's evidence admitting perjury should itself be disbelieved in favour of an acceptance of the initial evidence given by Mr Kay on 26 August 2014, where that evidence assisted the plaintiff's case.
9. In the paragraphs that follow, and before attempting a resolution of the conflicting testimony, the various factual accounts are surveyed.

Mr Mahmoud Chehade

1. On 18 December 2012, between 8.00am and 6.00pm, Mahmoud Chehade was present as a volunteer handing out how to vote leaflets for his brother, the plaintiff, outside the polling booth at Bankstown West Public School. During that time he said he had observed the defendant to be handing out how to vote leaflets for her husband.
2. At some time in the afternoon (T35, 26 August 2014), Mr Mahmoud Chehade claimed to have witnessed events which he recounted in his evidence as follows: "… And then out of nowhere I heard someone say, "You know that guy that just gave you that paper?" So when I heard that I was thinking to myself I'm that guy so I turned around and I seen Tania Mihailuk pointing to the A4 size paper saying, "Don't vote for that guy, his first cousin's a murderer and he's in gaol." Q. Where was the document you say she was pointing at? A. It was in the hands of the people, the group of people that I gave it to. Q. Yes, and was anything else said after that? A. It continued after that. I said, I approached her while in front of the people and said, "You can't say that, that's not true, that's a lie." And she said, "It is true, I'm telling the truth. If you don't believe me," and when she said that she looked to them and she said, "You can search on Wikipedia on Google if you type in their name you'll see they'll come up as murderers." I told her, "That's a lie, you can't be saying that to people." And then when like, I was there and we were having this conversation and we were talking and the people were there she changed the story and said, "No, his second cousin's a murderer and he's in gaol." So at some stage she said first cousin then she said second cousin. At that point, the people felt like really awkward and they just wanted to leave so they just sort of walked away, like, when they got a chance they just managed to walk away. At that point I said to her, "You can't be saying that to people, that's lies, you're not allowed to be saying that to voters when they come in." From there she raised her voice and she said, "What's wrong with telling the truth? I'm allowed to tell the truth." She then followed me. So I walked away, I turned around and walked away. She followed me and she said, "I'm allowed to tell the truth." I turned around to her and I said, "If that's the way you're going to act, at the end of the day I'll just speak to the polling people." Then she raised her voice and she said, "I'm allowed to say whatever I want." Then I turned around. At this point there was a gentleman for liberal, his name is Mehmet, he got involved."
3. Mahmoud Chehade said that he made a verbal challenge to the defendant on what she had said, and he told her that what she had said was a lie: T35.39 (26 August 2014). He said that the defendant later identified herself as "the State MP" and he said that she had told him to shut his mouth: T36.18 - T36.19 (26 August 2014).
4. Mahmoud Chehade stated that after the defendant had been challenged in the way he had described, she changed the tenor of her comment to "No, his second cousin's a murderer": T42.15 (26 August 2014). Mahmoud Chehade stated that following his challenge to her, the defendant said "Are you going to call your cousins to come and shoot me or murder me": T43.12 (26 August 2014).
5. I consider that last quoted statement, in which Mahmoud Chehade claims the defendant had addressed to him, seems to involve an unlikely proposition because at that time, there was no evidence that the defendant knew him to be a relative of the plaintiff. The challenge made by the defendant to the truthfulness of the evidence of Mahmoud Chehade must be evaluated in that light.
6. For the defendant to have uttered those words in that context where Mahmoud Chehade had not identified himself as either a brother or relative of the plaintiff, she would have had to have known of the relationship at that time. There was no evidence to support such a view. A possible alternative construction could be that the reference to "cousins" was meant figuratively rather than literally. However, on the evidence, that also seems to me to be an unlikely explanation.
7. Mahmoud Chehade said that after the alleged conversation, he then telephoned the plaintiff to report to him his account of the conversation he claimed he had with the defendant.
8. Mahmoud Chehade denied he had made up or fabricated the allegations outlined in the evidence cited above: T44.12 (26 August 2014). Those denials must be assessed for reliability when evaluated against the other evidence.
9. It is relevant to observe that all of the steps taken by the plaintiff in the pursuit of these proceedings have been based upon the reliability of the account given by his brother, Mahmoud Chehade.

Mr Mehmet Ali Kay - initial evidence

1. On 8 December 2012, Mr Mehmet Ali Kay was also present outside the Bankstown West Public School polling place. He was handing out how to vote leaflets for the Liberal Party candidate in the council elections.
2. Mr Kay gave his evidence on 26 August 2014 predominantly in English, and in part with the assistance of Mr Mehmet Ali Uluc, the Turkish interpreter. Mr Kay's initial account of the interchange he had with the defendant outside the polling place on the day in question, at T46.23 - T49.15 (26 August 2014), was as follows: "… Straight there she is talking to that people, "Don't take the paper from him. His cousin is murderer in the gaol and don't vote these people." I heard exactly what she said. Exactly I heard this I remember this now. Q. So what happened? You say she said that and what happened next? A. WITNESS: Then after if you see this boy is, looks very quiet boy all day, that's why I try to talk to him some to coffee time but he doesn't like to talk, you know. But that day is the when she talk like that, he just say something for no he is not my cousin is murderer. He is not gaol. Then after he's getting quiet. But after I get my responsibility is the how come she talk like that, because it's not different matter for the election and he is on goal or not. This is a different matter. This is a election area. I said, "Excuse me, ma'am. You can't talk like that. This is this is how do you know his cousin? Do you know him? Do you do you know him he is in the gaol or not? If the gaol's tell you can't this is not your business." She said, "Do you know who I am?" I said, I don't know who you are. She said, "I am State of MP here." I said, "All right, you can State MP but still you can't talk here like that because this not is the first thing is the rude. It's not election law." She said, "You don't know my power. I can whatever I like I can talk here." I said, "If you have a power, your use your power in the State Parliament, not here because here this is the Council election. You not A. INTERPRETER: Okay. You are not the person to be elected here. A. WITNESS: "Yeah, you just coming for help the whatever Labor. You just do this." And after when I talk, after one is the very big bodies guy is coming to behind me. I wasn't know to him too. I and I never ever see him before. He said, "Look, mate, you can't talk to MP like that." Otherwise, because when I talk, I just talk normally. I explain to her, "You can't talk like that you did like this." He said, "Don't open your hands up otherwise I break your fingers." I said, "I can't talk like that because I have to explain to her something because she do something wrong here." He said, "I'm gonna broke your mouth. Wait here after 6 o'clock, I'm gonna broke your leg. I'm gonna broke your mouth." I said, "You can't broke my mouth. You can't broke my face. If you want, come after 6 o'clock. You broke me now but I'm working now." Because I'm staying here all day because I know is my friend is telling me I can stay there 11 o'clock but then after after he is coming to me more, I get him calm down. I said, "Better Mehmet's quiet" because I'm scared because too many people is all the Labor is was more than six, seven, eight people there. Only me and I have one friend is the Liberal together, you know. I just say, I'm going to go better is going to I don't fight with them. I'm going to report the election commissioner is what's happening, what she said to him and what she tell me. I go straightly, I'm gonna go to election rule. I go see the election commissioner, this one is the manage (sic) there. I don't know his name now."
3. Later at T48.25 - T49.5 (26 August 2014), Mr Kay reiterated that evidence, as follows: "Q. What had you heard before you spoke to the lady? A. WITNESS: I heard when the group came she was talking with that group. She said, "Don't take the paper from him. Don't vote these people. His cousin is in the gaol for murdering." Q. Did she say something about a first cousin? A. WITNESS: She said cousin but I didn't hear first cousin. Maybe, maybe not. I don't remember but she's I heard the cousin but exactly. Q. Did she say that his cousin was a murderer once or twice? A. WITNESS: I think twice. Q. So what happened that she said it twice? A. WITNESS: She said exactly I heard "His his first cousin is in gaol and a murderer, don't vote these people." Q. So now you think she might have said it's the first cousin who was in gaol? A. WITNESS: I I'm not exactly remember but I heard the cousin exactly but. Q. You said that she said something about the cousin twice? A. WITNESS: Yes, it is. I said twice, yeah. Twice the her cousin is gaol, is murderer. Q. So she repeated what she said, is that what A. WITNESS: She didn't she didn't repeat. I just heard. Q. Just so I understand A. WITNESS: Yes. Q. You say that this woman said, "His cousin's a murder and in gaol." A. WITNESS: Yeah."
4. That evidence must be re-evaluated in light of Mr Kay's admission that his evidence given on 26 August 2014 was perjured.

Mrs Patricia Schneider

1. On the afternoon of 8 September 2012, Mrs Schneider attended the polling place at the Bankstown West Public School in order to cast her vote in the ballot for the elections. She stated that whilst she was standing in a line waiting to vote there were people handing out how to vote leaflets. She said that one of those persons was the defendant, whom she said she knew. Her evidence in chief on the critical matter at issue concerning the words allegedly uttered by the defendant, at T60.1 - T60.40 (26 August 2014), was as follows: "Q. Then did something come to your attention while you were in the line? A. An unfortunate event happened, quite disappointing actually. Q. For the purpose of this case what the Court really needs is your description of what actually happened. Imagine yourself not as a camera but as if you captured what happened. What you saw and what you heard. A. Okay, I was standing in line and people were giving out flyers and Tania started yelling out not nice things, I felt, inappropriate. Q. What we really need is what you heard? A. I heard her saying "Don't vote for this person, the family has been in gaol, they are in trouble with the law, they are drug dealers." Q. Who was she referring to? A. It was Rabie. I don't know Rabie from a bar of soap. Q. How did you know she was talking about Rabi? A. She was pointing at the flyer and she was saying his name. Q. What flyer? A. The election flyers that they always have. Q. Did you have a flyer yourself? A. Yes. Q. Was it one of his? A. No, it could have been two but then again you get hammered with so many and I just pick and chose which ones I want. Q. When you heard the words you have given evidence of, you said Tania, who is Tania? A. Tania Mihailuk, she's our member for council at Bankstown. I think she was mayor at the time, I can't be 100% sure. A lot of has happened in two years. Q. Had you seen her before that day? A. Yes I had. Q. Did you know what she looked like before that day? A. Yes."
2. In cross-examination, at T62.47 - T63.25 (26 August 2014), Mrs Schneider elaborated upon her description of those events, as follows: "Q. You say Tania made these comments, how did you know Tania? A. My children did play in the Bankstown area sport and Tania had been invited a couple of times to their Christmas parties which Tania did attend. Q. You knew her from that Christmas parties, is that right? A. Yes. Q. You say that she was pointing at a flyer, is that correct? A. Yes. Q. And she was saying these words, where was the flyer that she was pointing to? A. In her hand. Q. What was she doing with the flyer? A. Pointing to it. Q. How big was the flyer? A. Look I don't remember because there was all various sizes of flyers when you go to election booths. EXHIBIT B SHOWN TO WITNESS Q. Was that the oddment [sic for document] that she was pointing to? A. I can't be 100% sure because I had flyers in my hand and other people had flyers in their hand and everybody had flyers in their hand. I'm not going to make tell a lie; I'm under oath here. EXHIBIT A SHOWN TO WITNESS"
3. When pressed further about the events in question, at T64.49 - T65.13 (26 August 2014), Mrs Schneider stated: "Q. It may be my misunderstanding but to be clear, what did you say Tania said about Rabie; how did she use his name? A. She said, "Don't vote for this man Rabie he's been in trouble with the law, their drug dealers, they've been in gaol". Q. So you knew she was talking about Rabie because she mentioned his name "Don't vote for Rabie"? A. Yes. Q. Did she say Rabie Chehade, Rabie, what did she say? A. I cannot remember at this time, it has been quite some time since the event has passed. Q. But you're clear that she said, "Don't vote for Rabie"? A. Yes."
4. When her evidence on those matters was further explored, at T66.8 - T66.46 (26 August 2014), Mrs Schneider stated: "Q. After you heard those commends [sic for comments] did she say anything else? A. Not that I can recall. We just chatted among ourselves. There was other people in line chatting, and we just went and voted and wanted to get out of there. It was an embarrassing situation, put it like that. Q. Again, so I just understand your evidence, she says once "Don't vote for Rabie his family have been in gaol, they're drug dealers"? A. Yes. Q. She said that once? A. She probably said it several times. Q. I'm not asking what she probably did; what did you hear? A. I heard her say it and the shock of it all. Q. Did she say anything after she said that? A. I don't recall because I was talking to the people that I was with saying, "I can't believe". Q. You didn't hear her shout anything afterwards did you? A. Yes, she was keep on going on. Q. She kept continuing? A. She kept continuing. Q. What did she keep saying? A. She was just saying over and over again, "Don't vote for him because the family's in gaol. They're drug dealers". Q. She kept repeating that did she? A. Yes. Q. How loudly did she say that? A. Loudly enough to people could hear. Q. You say she said it I think over and over, how often did you hear her say this? A. I heard her probably say it at least two, three times and then because we were talking, we blocked it out and as I said, still shocked, disbelief of it."
5. Mrs Schneider denied that she had lied in providing her version of the above events: T69.27; T72.24 (27 August 2014). She rejected the proposition that the defendant had not said the plaintiff's family were in gaol, and that they were drug dealers. She also rejected the proposition that she had not heard the defendant asking others not to vote for the plaintiff: T69.25 - T69.35 (27 August 2014).
6. Mrs Schneider also denied the implied suggestion that she had been motivated to tailor the content of the evidence she had given because of an alleged upset or resentment she harboured towards the defendant which was said to arise because the defendant had not responded favourably to an earlier request for financial support for her daughter's hockey team in the defendant's electorate: T68.40; T69.5 - T69.13 (27 August 2014).

Defendant

1. The defendant had been a Bankstown City Councillor in the period between 2004 and 2011. She had also been the Mayor of Bankstown from 2006 to 2011. She had relinquished that office due to the demands of her parliamentary office.
2. In the previous council elections in 2008, the defendant's husband had been elected to Bankstown City Council. On 8 December 2012 her husband was standing for re-election to that council.
3. The defendant acknowledged that in order to assist her husband's campaign for re-election, amongst the various polling stations she had visited on the day in question, she had been at the Bankstown West polling place. She said she had been there for about an hour from about midday on that day.
4. The defendant denied having uttered any of the words of which the plaintiff complains. She also denied having uttered them in relation to any other candidate: T74.35 - T74.45; T77.36; T78.32; T87.44 (27 August 2014).
5. The defendant said she had not known, and had never met the plaintiff, until she saw him at court at the commencement of the hearing of the present proceedings.
6. The defendant stated that she was familiar with a person named Ms Rebecca Kay, who had authorised the plaintiff's how to vote leaflets (Exhibits "A" and "B") and whose photograph appears in conjunction with one of the plaintiff's real estate promotion signs: Exhibit "C".
7. The defendant acknowledged that she knew Ms Kay in the context of Ms Kay having previously visited the defendant's office, and because Ms Kay had previously unsuccessfully contested the seat of Bankstown at the 2011 State elections.
8. The defendant acknowledged that she had been aware of another candidate in "another area", which I interpret to mean another electoral ward, who had a family member serving a long prison sentence in respect of a serious criminal conviction. She emphatically denied having made a mistake in confusing that person for the plaintiff on the occasion in question: T94.20 - T94.30 (27 August 2014).
9. The defendant acknowledged that she had heard some raised voices whilst she was at the Bankstown West polling location on the day in question. She said she had heard raised voices whilst she was making phone calls on that occasion: T95.29 (27 August 2014). In her evidence in chief she recounted those events as follows: Q. Was your attention caught by anything while you were there? A. Well I remember the only thing I remember of any significance was as I was making phone calls and I remember some sort of yelling took place, it might have been in the centre of the courtyard there, and it seemed somebody or one or two people were very animated. One person in particular was very animated and Q. Do you know who that person was? A. Well I now know it to be Mr Mehmet Ali Kay. Q. Did you know him at the time? A. No I did not know who he was at the time. Q. You say you now know him to be, how did you find out who it was? A. Well I think, I'm trying to remember how we found who he was, but on the day when I spoke to Michael Tadros it became obvious that his name was Mehmet. Q. You say you spoke to Mr Tadros? A. Yes. Q. Why did you speak to Mr Tadros? A. Well as I was standing there and I was trying to make my phone calls I remember that this incident happening and somebody yelling out the words "Labor kills people" and I remember that because it's something that you would remember, and in my view I thought "Well this is just something silly, something absurd happening" in the courtyard and I remember another individual yelling out "they are murderers" and jeering on the other person and it just seemed like something very silly happening in the middle of the courtyard. I didn't initially react or anything to be honest but when I saw one or two of my Labor volunteers move towards the courtyard I Q. Who were they? A. Mr Kavanagh and Mr Hanna. Q. You saw them walk up to where? A. I saw them walking away from where they were positioned, which would have been the nearest spot to hand out to voters that you legally can, and moving towards the courtyard. And I could see that because I was standing in a way where they were virtually in front of me. Q. When this was happening was Mr Tadros present? A. No. No, he was not. Q. Did you have any contact with Mr Tadros? A. As that happened I was concerned about my Labor volunteers, I didn't want them to be involved in anything and I assured them that I would make contact with the liberal candidate Q. Who was? A. Who was Councillor Michael Tadros. Q. Did you make contact? A. I attempted to but I noticed that very soon after that I went to search for his number he had turned, in fact turned up. Q. Did you speak to him? A. He came up well I think he could see that I was indicating for him to come over. Q. Did he come over? A. He walked over to me. Q. Did you speak to him? A. Yes, I said to him that "your volunteers are behaving quite erratic could you calm them down please" he Q. Did he respond to that? A. Just straight out said, "Yep" and Q. Did he do anything as far as you could see? A. He immediately went to the middle part of the courtyard and calmed down the volunteers down, particularly Mr Ali Kay. Q. When you spoke to Mr Tadros did he speak to you about anything you might have done? A. No. Definitely not. Q. Did he raise any complaints about you or any of your Labor volunteers? A. No, definitely not. Q. After you had spoken to Mr Tadros what did you do? A. I just continued on to make my phone calls. I was very comfortable, we were we had a lot of volunteers there and apart from this sort of well I describe it as a silly incident because it was just absurd the comments that were made. After that I well I thought Michael Tadros covered it or handled it quite well. He was very firm in saying to him to go and have a break and have a smoke and Mr Ali Kay appeared to immediately do that."
10. In cross-examination the defendant was tested on her recollection of what she said she had heard outside the polling booth at Bankstown West. In that context, at T95.31 - T95.40 (27 August 2014) she added: "Q. You gave some evidence about what those voices were saying, some of what they were saying. You are relying on a fairly distance memory giving that evidence, aren't you? A. I remember those words. Q. Those exact words? A. I remember definitely those words. It takes a lot for me to be distracted off my phone calls, I wouldn't be ordinarily if it was a normal type of yelling, I am not particularly concerned then, but certainly I looked over when somebody yells out "Labor kills people." It is just silly behaviour to me."
11. In the course of the defendant's evidence, the parties placed some reliance on the interpretation to be placed on some printouts concerning the contents of the defendant's mobile telephone accounts, which provided some evidence of her movements on the day in question. I do not consider those records to be either important or probative on any matter in issue in the absence of explanatory factual evidence as to how the call locations described in those records are identified or determined.
12. The defendant acknowledged that in late 2012 she had been contacted by a journalist, Ms Natalie O'Brien, seeking a comment about the alleged defamatory statements relating to the plaintiff, and which had been attributed to her: T85 (27 August 2014). She said she had made it clear to that journalist that the allegation that she had made defamatory utterances concerning the plaintiff was false: T96.32 (27 August 2014).
13. The defendant acknowledged that she had not responded to the letter that had been sent to her from the plaintiff's solicitor demanding that she apologise to the plaintiff. At T96.17 - T99.40 (27 August 2014) the detail of her explanation for taking that course, which was at length, was as follows: "Q. Finally, at the end of 2012 you got a solicitor's letter that has been put before the Court, correct, and you have given evidence about that? A. Yes, I received it after I was notified by a journalist, yes. Q. You gave no reply to that letter? A. Yes, I didn't reply to that letter. Q. It would have been a fairly simple thing to reply, wouldn't it? It didn't require a lot of work? A. When somebody is blatantly false, I wouldn't even know how to begin responding to something like that. Q. You would say it in the sorts of words you have just used, wouldn't you? A. Well I made it very clear to the journalist on the several occasions she called me that they were false allegations. It was printed that I thought they were false allegations and I made it very clear that I would defend these allegations and they were false. Q. As you saw it were they allegations that were damaging to you if people believed them? A. It certainly anything that is derogatory in the papers is always, to some degree, damaging. Q. The first time you received any communication from anyone about this matter on behalf of Mr Chehade was the solicitor's letter, wasn't it? A. No, the first communication was the journalist calling me. HIS HONOUR Q. That was made on behalf of Mr Chehade? A. Yes it was, the letter. MOLOMBY Q. The journalist wasn't representing Mr Chehade? A. No. Q. He never thought that? A. You are right, the letter was the first. Q. The journalist, as you understood it, was making enquiries with the idea of writing an article for the paper. Is that how you understood the conversation you had with the journalist? A. Yes. Q. So the first communication you had with anybody formally on behalf of Mr Chehade was that letter you received, correct? A. Yes, about mid December. Q. And didn't you think that in relation to Mr Chehade directly it was important for you to put your position on record that what was being said on his behalf was not right? A. Well I thought I had done that quite clearly in the paper. I had made it very clear publicly that I had not disparaged Mr Chehade. Q. The solicitor's letter came to you after that had been said in the paper? A. It came to me a day or two before we shut the office, and I think left overseas and it had a return date expecting payment by 4 January or some date like that, when our office was shut. Q. When you say payment, you can refer to the letter? A. It was $1,000. Q. $1,000 for legal costs? A. I'm not sure if it was legal costs but certainly $1,000. Q. I show you that letter. I think you will find it is on the second page but you might want to put it in the context of the whole letter. Do you see that? A. Yes, client's legal costs. Q. The letter specifically said somewhere else that he wasn't seeking any money as damages. That might be on the foot of the first page, just before that reference? A. He was seeking for me to he wanted a letter containing a clear and forthright apology and retraction. Q. Correct? A. Which clearly I wasn't prepared to do given I hadn't defamed him. He further asked for "No further representation in relation to matters complained of? Q. You'd have had no problem on your position with the second part of that would you, that is, that you wouldn't say anything like that again? A. Well I hadn't said it in the first instance. Q. Quite, and that's a very good reason on that position that you wouldn't have had a problem saying you wouldn't do it again because you'd never done it anyway, correct? A. I never done it at all and it appeared to me that this was nothing short of just a media stunt. It was issued to me the same day as the journalist rang me about it, so it was very difficult to take it seriously in many respects; it seemed to me absurd, I couldn't believe what I was receiving. Q. Do you mean by that answer that you did not take it seriously? A. I took it seriously in the sense that I accepted that they were clearly wanting to portray something in the media, make an issue of it. I saw actually Rick Mitry later in the holidays at a function; we sat beside each other and he never raised the matter to me at all, that lawyer. And I heard shortly afterwards that he was no longer representing Rabie Chehade. Richard Mitry actually I was introduced to him as. EXHIBIT D SHOWN TO WITNESS Q. Didn't you consider that if you gave a reply to the letter it might be the end of the matter? A. I assumed that they would have effectively just handed it over to Natalie O'Brien, or a journalist, that's what I thought the purpose of it all was. Q. I'm sorry, I totally missed A. I thought the purpose of this letter was to just hand something over to the journalist. Q. You thought the letter was a media stunt did you? A. Well it appeared to be because I was notified by the journalist on the same day that I received the notification. Q. On the same day you received the letter you got a call from the journalist, is that what you're saying? A. Yes. That day or the day after, but it was roughly I think it was same day. Q. Whatever you said to the journalist, or however you dealt with the journalist, that didn't amount to an answer to the solicitor did it? A. Well I saw the solicitor, as I've said to you earlier, at a later function not too much later after this event to be honest, and I sat with him all night at the same table at the same function and on one occasion did he raise this letter to me. And in fact he I'd heard that they were at that no longer representing. [Reconcile] Q. When did you hear that he was no longer representing the plaintiff? A. It would have been about, I think, February. Q. Was that before the function you've referred to, or after? A. It would have been after the function. HIS HONOUR Q. Was this function within the 28 days stipulated by the letter? A. No. For most of the 28 days I was not here in Australia, so we were at least away for sorry, two of the weeks at least away overseas and another week, or a week and half away in Melbourne. MOLOMBY Q. Then what you've said about the solicitor, that's Mr Richard Mitry, you sat next to him all night and he didn't mention it, and you didn't mention it, is that correct? A. No. No, I didn't mention it. HIS HONOUR Q. It would have been an odd thing to raise on a private social occasion wouldn't it? A. It might have been, I just I actually didn't know who he was until he introduced himself to me. So there could have been the opportunity there, to be fair, quite a few people did speak to him about different matters. But I, to be honest, I always assumed this was part of some bigger media strategy in some respect. MOLOMBY Q. And you assumed that the solicitors were part of that did you? A. No I don't assume that at all with the solicitors, no. Q. You didn't? A. No. Q. Then whatever was happening in the media wasn't really a very good reason for not answering the solicitors was it? A. Well I don't I didn't have access to lawyer at that time, I wasn't in a position to have my own lawyer, I didn't want to contact their lawyers directly, so it was difficult to make a decision how best to handle this letter. But to me I couldn't believe I even received it; I knew that everything they alleged there was false. Q. In doing what you did you acted without any legal advice, correct? A. I didn't have any legal representation at that stage, no."

Mr Kavanagh

1. On the day in question, Mr Kavanagh was at the polling place at Bankstown West Public School. On that occasion, he had been there handing out how to vote leaflets for the Labor candidate from about 10.00am until about 4.00pm on that day. He was in the vicinity of the polling place until about 2.00pm, when he took a break.
2. Mr Kavanagh said that he had seen the defendant arrive at that polling place at about midday. He said at that time it was relatively quiet and there had been no queue of voters waiting to enter the polling booths. He stated that the defendant remained at that polling area for a bit, less than an hour, and during that time he had observed that the defendant had been using her telephone for much of that time.
3. Mr Kavanagh said that he had not heard the defendant utter anything along the lines of the words complained of by the plaintiff. He also said that he had not heard the defendant speak in a raised voice.
4. At T103.21 - T104.3 (27 August 2014) Mr Kavanagh gave evidence of the observations he had made at the time concerning Mr Mehmet Ali Kay, in the following terms: "Q. Did you notice anything else unusual that day on 8 September? A. Generally it was okay except at one stage a gentleman by the name of I believe Mr Mehmet Kay came towards us in that area where we were handing out the pamphlets, and arrived he'd previously from what I could see was up at the William Street end, came down and was in what I would call an agitated state, waving his hand around and speaking rather loudly, very loudly, as though wanting to get attention. Q. What happened when you made that observation? A. Well, first of all he came close to us and then he was joined by approached by one of the Labor Party volunteers. Q. Who was that? A. I think it was Jim Hanna, I think that's yes, Jim Hanna. Q. And after Mr Hanna approached him, what happened then? A. Well, they talked for a while, from what I could gather Jim was trying to calm him down and there was still a lot of loud talking so I went over myself to see if I could sort of settle things down a bit because I felt that I might being an older person, might be able to sort of ease things a bit. Q. After you had gone over, did you speak to Ms Mihailuk at all? A. After I went over, yes, we did talk about things but mainly to do with volunteers, whether she had enough volunteers or not. She was on the telephone as well at the time. Also that's all I can recollect to be honest. Q. At any stage did you hear the name Rabie Chehade mentioned by Ms Mihailuk? A. No. No. Q. Do you have any recollection of any argument involving Ms Mihailuk with any other person? A. No."
5. There was nothing in the evidence of Mr Kavanagh that supported the plaintiff's case against the defendant.

Mr Cklamovski

1. Mr Cklamovski had also been present at the polling place on the day in question. He was also handing out how to vote leaflets for the Labor candidate. He commenced that activity at about midday and had continued with it until about 2.00pm.
2. At about 1.30pm on that day Mr Cklamovski observed the defendant to be in the vicinity of the polling place and he thought that she had been present there for about 40 minutes. He stated that she had been in front of him, and that he had observed her talking on her telephone.
3. Mr Cklamovski stated that he had not noticed anything unusual on the occasion in question, and he had not seen the defendant to have been involved in any disturbance. He said he had not heard the defendant utter the words complained of by the plaintiff. At T109.4 - T109.36 (27 August 2014), his evidence on those matters was as follows: "Q. Can you recall for how long approximately she had been there? A. Maybe half an hour or 40 minutes, something like this. Q. Is there some reason why you say half an hour or 40 minutes? A. Well I'm not sure how long was there. Q. Is there some reason why you think it was half an hour or 40 minutes? A. Yes, because she was on the front of me. Q. What did you see her doing? A. She was talking on the telephone. Q. While you were present did you see Ms Mihailuk say words to this effect, that Rabie Chehade's family were drug dealers? A. No. Q. Did you hear her say words to this effect, that Rabie Chehade's cousin was a murderer and in gaol? A. No. Q. Did you see Ms Mihailuk involved in any disturbance while you were there? A. No. Q. Did you notice anything unusual about Ms Mihailuk whiles [sic] you were there? A. I don't know, I don't know. Q. Was there anything unusual you noticed on 8 September 2012? A. Yes, there was some people in front of me, about 10 metres. I listened because there was yelling, there was screaming or something but I don't know. I saw them. Q. Was Ms Mihailuk part of that? A. I don't know, I never see Ms Mihailuk close with them."
4. There was nothing in the evidence of Mr Cklamovski that supported the plaintiff's case against the defendant.

Further evidence given by Mr Kay at the re-opened hearing

1. After judgment had been reserved, on 24 September 2014, and whilst Mr Kay was in Istanbul, he swore the statutory declaration Exhibit "B" in which he recanted the evidence he gave at the initial hearing on 26 August 2014, stating that he had committed perjury when he gave that evidence. The terms of Mr Kay's statutory declaration to that effect has already been cited at paragraph [67] above.
2. At the re-opened hearing, Mr Kay was called by the defendant to give evidence of the fact that in his earlier evidence he had perjured himself.
3. At the re-opened hearing Mr Kay was cross-examined at length and in detail on the recantation of his earlier evidence. In that further evidence in chief, significantly, Mr Kay stated that the evidence he gave against the defendant on 26 August 2014 was "not reflecting the truth": Exhibit "P", p 7.4 (19 February 2015).
4. In that regard, Mr Kay reiterated that on the occasion he gave evidence on 26 August 2014, only his name and age was correct. He said the rest was a fabrication because of threats made to him concerning his safety: T75.21 (2 March 2015).
5. The following analysis of the evidence of Mr Kay incorporates my reasons for not accepting his evidence where it conflicts with that of the defendant without satisfactory corroboration other than to accept his candid admission of perjury.
6. There were a number of material inconsistences and improbabilities within Mr Kay's evidence when read as a whole. It is therefore necessary to set out at length a detailed appraisal of his evidence.
7. According to the plaintiff, Mr Kay recanted his evidence because of the plaintiff's refusal to have "fixed up" Mr Kay financially for giving his initial evidence in the case for the plaintiff.
8. In that regard, the plaintiff claimed that Mr Kay had solicited a $10,000 payment from him in return for his evidence after that evidence had been given. I accept the evidence of the plaintiff that such a request occurred. The plaintiff said, and I accept, that he had initially fobbed off such requests from Mr Kay, and had later rebuffed them in more expletive terms: T130.26 - T130.47 (16 April 2015). The evidence of Ms Alexopoulos tends to support the plaintiff's evidence that Mr Kay had solicited a payment as he described.
9. Evidence of those matters raised doubts about Mr Kay's motives and about his role as a witness in the proceedings. Mr Kay's evidence therefore required careful scrutiny before acceptance.
10. In Mr Kay's further evidence in chief given at the re-opened hearing, he said that the statutory declaration cited at paragraph [66] above, had been prepared for him in Australia: Exhibit "P", p 4.22 (19 February 2015).
11. Mr Kay said that he completed and signed the statutory declaration in Turkey on 23 September 2014: Exhibit "P", p 4.32 - 4.38 (19 February 2015). He said he did so on the day he arrived in Turkey and he then posted it to a friend in Australia: Exhibit "P", p 5.19 - 5.34 (19 February 2015).
12. That further evidence of Mr Kay at the re-opened hearing was tested by cross-examination at length and in detail: Exhibit "P", pages 8 - 49 (19 February 2015); T45 - T76 (2 March 2015), followed by re-examination: T76 - T80 (2 March 2015).
13. The further cross-examination covered the circumstances in which Exhibit "B", the statutory declaration admitting to perjury, came into existence. It also covered the reasons for this, as well as the content of Mr Kay's further evidence.
14. The process by which Mr Kay changed his evidence raises some doubts as that evidence contained some significant variations and inconsistencies. Those matters cast doubt upon the credibility of Mr Kay as a witness, and as to the basis of his claimed knowledge of the key underlying events in question.
15. Mr Kay said his changed evidence was assisted by some notes he had made in Turkey with the assistance of his wife: Exhibit "P", p 8.11 - 8.24; pages 8.48 - 9.3. It was through that process that the statutory declaration was prepared.
16. That evidence seemed to me to be inconsistent with Mr Kay's later testimony wherein he said the statutory declaration had been prepared in Sydney and sent to him in Turkey: Exhibit "P", p 22.17 - 22.31 (19 February 2015). His later evidence also gave further variations of that explanation: Exhibit "P", p 29.16; pages 32.45 - 33.26 (19 February 2015).
17. On 19 February 2015, at Exhibit "P", pages 10.18 - 10.44, Mr Kay gave some evidence that appeared to me to be over-inclusive, evasive, unresponsive, and self-serving, which also raised questions as to the reliability of his evidence. That evidence was as follows: "Q. Do you remember the date on which you gave evidence in the District Court last year? A. INTERPRETER: This is..(not transcribable)..a document, and he wanted - he asked whether this was important or not, and Mr Mihailuk said it wasn't very important and that he just needed to have it, and he said, "All right," and signed it, but before he did he did say that if this goes to court, I don't accept it. Yeah, I'll have to have an interpreter present, and I will have to sign it in front of the interpreter. He was told that it was - the document wasn't important, and it was just a procedure. TRANSLATOR: I didn't give evidence or statement to the District Court last year. There was a statement written by Mr Mihailuk (sic for Chehade) in 2012. He brought that statement to me. I asked him to get it read to me there by an Interpreter. He told me that there was no need and that there was nothing really important, other than a few incidents there, and wanted me to sign. I looked at it, and there was nothing much I could understand there. He said that it was an unimportant thing, and made me sign it. He said there would be no procedures at all and didn't tell me that he would go to court. So, somehow I signed it there. But I said to him "if you go to court, and show this in the court, I wouldn't accept that one I signed, because I should have signed it in front of an Interpreter". He accepted it and took it away. Q. My question, Mr Kay, was whether you remember the date on which you gave evidence in the District Court last year. Did you understand that question? A. INTERPRETER: I don't know. TRANSLATOR: I don't remember." [Emphasis as in Exhibit "P"]
18. Other parts of Mr Kay's evidence were characterised by loquaciousness and hyperbole or over-statement.
19. I considered it highly improbable that Mr Kay would have agreed to sign a statement, as he claimed, without understanding the content of the statement, and on the understanding that it was unimportant: Exhibit "P", p 10.33 (19 February 2015).
20. Mr Kay stated that the evidence he gave on 26 August 2014 was given after the plaintiff had served him with a subpoena, and was given in circumstances where he was fearful for the safety of his family. He sought to convey the impression that his evidence given on 26 August 2014 was given under duress. At Exhibit "P", p 11.3 - 11.33 (19 February 2015), his evidence on those matters was as follows: "… INTERPRETER: I had come to Australia, not to attend the Court, but I was here for personal business. I used to live at Auburn at Yillowra Street. I had an address, I had that - I had an address just for licence purposes, just to have an address on my licence, and to have an address. Mr Rabie came to my sister's place and said I have to be in court on that date, and I said, "How did the Court happen? I wasn't even here. I wasn't supposed to be here, but I'm just here on some personal business." And I asked them, "How did you know this address?" And they said to me, "We know. We know everything, mate." TRANSLATOR: I did not receive any subpoena from the District Court, as I had moved to Turkey. I used to live at 40 Yillowra Street Auburn. I had sold my house. I gave my elder sister's address, so that I would have a valid address in my licence. I came to Australia for personal business of mine; not to attend the court. I was not aware of either the day or the date of the court case. It was a huge surprise for me, when Mr Rabie came to my sister's place together with a friend of his. He said to me "We have a court hearing on 26th of August. You must make sure that you attend this hearing." I said to him "I did not come here because of the court case. I didn't receive any invitation or something from the court. I am not aware of those issues at all. Then he said to me "I tell you now… Your subpoena, you invitation to hearing, is here." Then, I asked him "How did you find out my elder sister's address?", and he said to me "We can find mate; we can find any address we want." He talked to me in a tough manner there. I didn't want to extend the conversation much, because I had a young niece and a nephew inside. I didn't want them to be scared and be affected. Then I said that I didn't want to attend that court hearing, as I forgot most of the incidents. Then he said 'If you forgot, here is the statement that you had signed to me. You must say everything written in this statement in the court. If you don't say, then you would get into trouble. If you still don't say, then we know what to do to you very well." When he said those things to me, I felt fearful for my family and my niece and nephew, who were there, rather than for me." [Emphasis as in Exhibit "P"]
21. At this point it is appropriate to note that the plaintiff denied the suggestion that he had forced Mr Kay to give evidence that was untrue: T150.14; T157.40; T158.24 - T158.37 (17 April 2015).
22. The plaintiff made the counter allegation that some of his own potential witnesses who had not been called, had been threatened. That evidence was not elaborated upon and there was no direct evidence as to which of the plaintiff's potential witnesses had been threatened: T156.21 (17 April 2015).
23. Mr Kay implied that an earlier statement that had been provided to him by the plaintiff had been signed by him, but that he did so under duress from the plaintiff, and that therefore, his evidence given on 26 August 2014 had followed that statement whilst he was still under the claimed duress: Exhibit "P", p 12.8 - 12.15 (19 February 2015).
24. Mr Kay claimed that on 26 August 2014 the plaintiff accompanied him from his sister's house to court under duress in the form of threats issued to him earlier to ensure he gave evidence along the lines required of him by the plaintiff. In that regard, his evidence at Exhibit "P", p 15.2 - 15.14 on 19 February 2015, was as follows: "Q. What do you mean I haven't got my telephone number there? A. WITNESS: When he call me, okay, when he call me I did my friend's number because I'm going to come ready to pick up tomorrow morning, don't move anywhere, okay. I was very scared, sir. Q. What did you just say he said about tomorrow morning? A. WITNESS: Because he knows I'm going to run away, I don't want to court because I don't want to get coming to court then before witness. He said, "Don't move anywhere, tomorrow we come at 8 o'clock, we going to come and pick you up. Don't move anywhere. If you move anywhere you don't know what we do." He always say something that threat me. He always threat me, and after he come and pick me up, he take me to court, and after he take me to court he's going to leave me to Auburn."
25. In his further evidence Mr Kay stated he had also travelled to court on 26 August 2014 in the company of the interpreter whose services he had requested, namely Mr Mehmet Ali Uluc, together with the plaintiff and the plaintiff's brother: Exhibit "P", p 16.7 - 16.45; pages 17.39 - 18.12 (19 February 2015). He said he had done so because the plaintiff had threatened him and his family if he did not comply with the plaintiff's request: Exhibit "P", p 19.37 (19 February 2015).
26. Mr Uluc's evidence provided no support or corroboration for Mr Kay's claim of duress. The plaintiff reiterated his denials of any such duress as was claimed by Mr Kay: T156.29 - T156.37; T157.40 - T157.42; T158.19 - T158.43 (17 April 2015).
27. Significantly, Mr Kay stated that after he had given evidence on 26 August 2014, he had travelled home from court separately from the plaintiff and his brother: Exhibit "P", p 16.49; p17.4 (19 February 2015). That evidence was in contrast with that of the plaintiff, who stated that he, his brother, Mr Kay and Mr Uluc had travelled to Lidcombe together by train following the court appearance on that day. No questions were asked of Mr Uluc concerning those events.
28. Mr Kay elaborated and said that he had given his evidence on 26 August 2014 in fear, and because he did not want trouble at the hearing, and that at the time he gave that false evidence, he had already made up his mind to later tell the truth about having given false evidence when he arrived in Turkey: Exhibit "P", p 17.10 - 17.25 (19 February 2015).
29. In cross-examination on his further evidence, it was suggested to Mr Kay that before he had given his evidence on 26 August 2014, he had been offered $20,000 and a free flight if he gave evidence for the defendant, a suggestion Mr Kay vehemently denied: Exhibit "P", p 13.32 (19 February 2015). Presumably, that suggestion was put on instructions. There was no evidence called to support that assertion.
30. In cross-examination on his further evidence, it was also suggested to Mr Kay that after he had given his evidence in the plaintiff's case on 26 August 2014, he had a number of conversations with the plaintiff in which he had asked the plaintiff to give him money for having given evidence as outlined at paragraph [183] above, a suggestion Mr Kay also vehemently denied: Exhibit "P", p 13.42 - 13.49 (19 February 2015).
31. Instead, at Exhibit "P", p 14.1 - 14.5; 19 February 2015, Mr Kay made the following dramatic counter-allegation of the plaintiff having made a death threat to him: "Q. Do you say you had no reason to speak to Mr Chehade at all after you gave your evidence? A. INTERPRETER: He called me a few times. TRANSLATOR: He called me ones (sic for once) or twice. He said that, if I opened my mouth, or if I applied somewhere, they would kill me." [Emphasis as in Exhibit "P"]
32. The first occasion of any mention of such an alleged death threat arose in that evidence. It had not appeared in Mr Kay's statutory declaration or in his affidavit.
33. When pressed on the topic as to whether post-evidence conversations had in fact transpired between himself and the plaintiff, Mr Kay gave vague and unsatisfactory evidence, at times stating the plaintiff had rung him, and then alternatively stating he did not remember, and then conceding maybe one or two such conversations had taken place: Exhibit "P", p 14.26 - 14.38 (19 February 2015).
34. Mr Kay agreed that his affidavit which attached his statutory declaration admitting to perjury had been sent to him in a typed form in Turkey by email from a solicitor in Sydney before he went to the Australian Embassy to sign it after he had spoken to the defendant by telephone, followed by a conversation he had with the solicitor for the defendant: Exhibit "P", p 22.17 - 22.31 (19 February 2015).
35. Mr Kay stated he made the affidavit himself with the assistance of his wife and his daughter, following which he took it to a friend's place where it was typed on a computer and printed before attending at the Australian Consul in Turkey to sign it: Exhibit "P", pages 23.41 - 25.11 (19 February 2015).
36. Mr Kay stated he did not write what was set out in the statutory declaration that admitted to perjury. He said that his "friends" wrote it: Exhibit "P", p 28.12 (19 February 2015). He elaborated on this by explaining that his friend wrote it for him in English, and he typed it up in his friend's office: Exhibit "P", p 29.5 (19 February 2015). He further explained that it was partly written in Australia (paragraphs 1 - 9) and the rest was written in Turkey: Exhibit "P", p 29.16; pages 32.45 - 33.26 (19 February 2015).
37. That evidence appeared at odds with the earlier version of events he described in Exhibit "P", at p 8.11 - 8.24 and pages 8.48 - 9.43 on 19 February 2015, in which he said he and his wife made notes for the statutory declaration in Turkey.
38. I was informed that the statutory declaration signed by Mr Kay had not been prepared by the defendant's solicitor: Exhibit "P", p 34.30 (19 February 2015). It was, according to Mr Kay, prepared and typed by someone he described as a Lebanese lawyer only identified as Steve, and who had an office in Auburn: Exhibit "P", p 35.15 - 35.48 (19 February 2015).
39. Mr Kay stated he could not recall the name of the firm or the street address for that lawyer. He said he had met that lawyer informally in a coffee shop and he had promised not to disclose his name: Exhibit "P", p 37.22 (19 February 2015). I formed the impression that evidence had been concocted by Mr Kay in an attempt to cloak his position in the litigation with a semblance of credibility.
40. Returning then to the events that were said to underlie these proceedings, Mr Kay said he was at the Bankstown West polling station between either 8.00am or 8.30am and 10.30pm on the polling day in question: Exhibit "P", pages 38.36 - 39.19 (19 February 2015). He said he was helping the Liberal Party candidate in that election by handing out how to vote flyers for that party during the day and was in attendance for the counting of the votes after the polls had closed.
41. Mr Kay described being present on that day when the plaintiff's brother complained to an electoral official about the claimed incident involving the defendant: Exhibit "P", pages 39.38 - 40 (19 February 2015). He said he himself had also spoken with that official: Exhibit "P", p 40.17; p 40.48 (19 February 2015).
42. It emerged from the further cross-examination of Mr Kay in the re-opened case that his understanding of what the defendant was alleged to have said about the plaintiff's family members being in gaol had come from Mr Mahmoud Chehade, and not from his own personal observation: Exhibit "P", p 40.25 - 40.42 (19 February 2015).
43. This was at fundamental odds with the earlier evidence given by Mr Kay on 26 August 2014, at T46.14 - T46.50; T48.20; T49.15. This is a matter to which I shall return when examining the issue of whether the words complained of by the plaintiff had in fact been uttered by the defendant as claimed by Mr Mahmoud Chehade.
44. Mr Kay stated that about 6 - 7 months after the alleged incident at the polling booth, and before he had left Australia to travel back to Turkey, the plaintiff brought him a typed statement for him to sign, presumably to form the basis of his evidence in chief in the case for the plaintiff. His evidence in that regard, at Exhibit "P", p 41.9 - 41.47 on 19 February 2015, was as follows: "Q. No, sorry, Mr Kay, let's be clear. I'm not talking about what happened on the day now. I'm talking a few days after the day. Do you understand? A. WITNESS: It's not - it wasn't a few days, sir. It was exactly possibly maybe six, seven months later he's bringing the statement. It wasn't few days, it was six, seven months later. Q. Six or seven months later, what happened? A. WITNESS: Yes, he bring the statement. Q. Who brought the statement? A. WITNESS: Rabie. Q. Where did he bring the statement? A. WITNESS: He just writing - he type it. He's going to bring it to me. I said, "Rabie, you bring this statement, but I don't understand what is in there, what - because I can't read it. Some words I don't understand." I said, "Better you bring the interpreter. Otherwise, I don't sign." He said, "No, it's nothing important. We just keep it there." A. INTERPRETER: I just to keep it on reference, and that it wasn't going to go to court. If I had known it was going to go to court, I would never have signed it. He was told that they were just going to be kept there in file. TRANSLATOR: They said "We are just doing this just to keep it on reference." If I had known it was going to go to court, I would never have signed it. A. WITNESS: And I said, "If you go - if you take this one to the Court, I don't accept it, because I didn't understand." He said, "No, we don't go to court." He's blame me. Q. Six or seven months later, you say Mr Chehade brought you the statement. Is that right? Did Mr Chehade bring you the statement six or seven months after the..(not transcribable).. A. INTERPRETER: He did. TRANSLATOR: He did. Q. And where were you then? A. INTERPRETER: I was still in Auburn, and I hadn't returned to Turkey at the time yet. TRANSLATOR: I was still living in Auburn. I was still living in Australia, and I hadn't returned to Turkey at the time yet." [Emphasis as in Exhibit "P"]
45. When questioned further about the statement he had signed at the request of the plaintiff, at Exhibit "P", pages 42.42 - 43.26 on 19 February 2015, Mr Kay gave evidence to the effect that he had signed the statement on his understanding that it was not important, and that it would not be used in court. His evidence in that regard, was as follows: "Q. Mr Kay, Mr Chehade came to see you about the statement at a kebab shop in Auburn, didn't he? A. INTERPRETER: Yes, he did bring the statement, which he had prepared himself. Wanted me to sign it. I had given him my number before, at the polling booth, so there was no problem there. We met at New Star, a restaurant called New Star, a kebab shop called New Star in Auburn. He said he had a little - he had a little child, a little kid with him. He told me to sign, but I didn't want to sign. I said, "I don't understand." I did understand a little bit of it, just about the - I told him, "Can you bring an interpreter, so I can understand what is said in the statement?" But he said, "Where are we going to find an interpreter at this hour now?" I was able to understand just a little bit, so I signed knowing that it wasn't - he told me it wasn't very important, and it's just something that they wanted to keep on file, and I told him that if this goes to court, I am not confirming this. TRANSLATOR: Yes, he said that he had prepared a statement, and that he wanted to bring and show it to me; because I had given him my number before, on the day of the election; so there was no problem then. He rang me on my number, and I said to him "There is a shop named 'New Star'; come there and we meet there". He came there and parked his car; he also had a little child with him. Then he said to me "Can you please sign this?"; and I said "I do not understand the things written here; how can I sign it? You better bring an interpreter, so that they explain to me and then I can sign it." Then he said "It is now evening time; where are we going to find an interpreter at this hour? You better sign; it is not something important anyway. We are just going to keep it as a reference, in case it is needed in the future." Then I said to him "Look, something that I do not understand… I did understand some of it, the bits about him/her being in jail… As far as I understand, it looks like it is not something important, and signed it." But I said "If you are going to use it in the court; I would definitely not accept it." Then he said "I would definitely not use it in the court." Then I said to him "In order for me to understand it fully; you need to bring an interpreter; so that they read and explain it to me, and then I would sign it if necessary". Then he said "Where are we going to find an interpreter at this time?" WITNESS: Accept it." [Emphasis as in Exhibit "P"]
46. I consider that evidence to be improbable. I consider that it was unlikely that Mr Kay, an astute business man who, on the evidence, had means and property, would have signed a formal document in such circumstances where he would have known he was committing his signature to a position he did not understand. I do not accept his explanation in that regard.
47. The cross-examiner sought to clarify the circumstances of Mr Kay signing the statement about the alleged incident outside the polling station. At Exhibit "P", pages 44.36 - 46.21 on 19 February 2015, Mr Kay sought to deflect that questioning, with some over-inclusive and obfuscatory evidence, as the following extract of his evidence shows: "Q. Mr Kay, I'm not talking about when Mr Chehade brought the statement to you. I'm suggesting to you that before he brought the statement to you, on an earlier day you received a phone call from a solicitor called Lauren MacDougall. That's right, isn't it? A. INTERPRETER: He wasn't a solicitor. Besides the fact that he got a call from Rebecca Kay, where they've actually joked about the surname being the same - she has the same surname as me - she was given the number by Rabie. Rabie had given her the number. She called to confirm the number. TRANSLATOR: He wasn't a solicitor. One person rang me… One person rang me about 1 to 2 months after the elections. It was a person, whose family name was 'Kay'- same as my family name - 'Rebecca Kay'. The name of the lady was 'Rebecca Kay'. As a joke, I even asked her "Do we have any kinship between each other?" That lady said to me "Such and such incident have taken place. We will be following up this incident. We just rang you to have a contact with you." I did not talk anything else with her. I never talked to her about this or that incident. She just rang me to contact me. My number was given to a lady named Rebecca Kay by Rabie. This lady is not a solicitor. Because her family name and my family name are both 'Kay', and I had a joke with her. I asked her why she rang me and she said "There is such and such incident. In order to confirm… I took your phone number from Rabie to confirm your phone number, and I just called you." She did not ask me about the incident. She got my number from Rabie. Because I gave my number to Rabie and her sibling; that is on the day of the incident … I gave my Australian phone number. As I understood, she gave my number to a lady named 'Rebecca Kay'. That lady contacted me and said to me that, she rang me just to confirm my phone number. Then, six months later a statement has arrived. I did not meet with anyone else after that. Q. Who called? A. INTERPRETER: Rebecca Kay. At six months later, this statement arrived, and before that I did not speak with - two months after the incident Rebecca Kay called me, and then afterwards, six months later, the statement came to me. But after that - besides this, I had not speak to anyone. This whole thing happened between the periods of six to seven months. Between a period of six to seven months. TRANSLATOR: Rebecca Kay. After six months, this statement came. Other than that, I never talked to Rabie or anyone else. Two months after the incident, Rebecca Kay called me, and then about 4 to 5 months later, the statement arrived. Other than that, I never talked to anyone else. All of those things happened within a time period of 6 to 7 months. Six to seven months later, the statement arrived. Q. Before I asked you the question just earlier, had you ever heard the name Lauren Macdougall? A. INTERPRETER: No, never. TRANSLATOR: I definitely did not hear it. Q. Do you remember speaking to a solicitor about what happened at the election on the phone? OBJECTION. FORM. QUESTION WITHDRAWN Q. Do you remember within a short time, just a few months at the very most, after the election, speaking to a solicitor on the phone about what happened at the election? A. INTERPRETER: I definitely did not speak to any solicitor. I remember distinctively asking, specifically asking, "Are you a solicitor?" And he said, "No, I'm just a friend of Rabie's, and I want to help." TRANSLATOR: I definitely did not speak to any solicitor. I even asked her "Are you a solicitor?"; and she said, "No, I am not a solicitor. I am just a friend of Rabie, and I just wanted to help. That is why I rang you… to confirm your phone number." I definitely did not speak to any solicitor. If they can prove, I accept everything. Q. Who are you talking about now? Who said that? A. INTERPRETER: The person that's named Rebecca Kay. Lauren Macdougall, never spoken to anyone by the name of Lauren. Definitely did not speak to anyone by the name of Lauren. TRANSLATOR: The person that is named Rebecca Kay… who rang me. I never talked to someone by the name of Lauren. I definitely did not talk to a person like that. Q. Did you say a little earlier that the only people you spoke to about it were Rebecca Kay and Mr Chehade? A. INTERPRETER: Definitely. And at the Court, they asked me questions - saw him at court, Rabie, and I saw the barrister, the honourable barrister, at the Court. About them, I have not spoken to any solicitor regarding this or them. TRANSLATOR: Definitely, definitely. And then, on the day of the court hearing, I met with the honourable barrister. And other than that, he/she asked me questions at the court. Apart from that, I did not meet anyone else at all. I saw Rabie at the court on that day. I saw Rabie on the day of the incident and then again about 2 months later he rang me. And then I saw the honourable barrister, at the Court. I definitely did not talk to any solicitor. I never talked to a solicitor about them." [Emphasis as in Exhibit "P"]
48. When Mr Kay was reminded to keep his answers directly responsive to questions asked of him without adding irrelevant material, he stated he had been feeling sick for several days, he was tired from lack of sleep, he was cold, and he stated that he was not understanding the questions clearly: Exhibit "P", p 47.3 - 47.46 (19 February 2015).
49. In those circumstances, the cross-examination was terminated, and it was then scheduled to resume on 2 March 2015.
50. On the resumed hearing, Mr Kay gave confusingly inconsistent evidence about having been served with a subpoena. At T45.34 (2 March 2015) he said he recalled Mr Chehade giving him a subpoena to attend court to give evidence.
51. In contrast, at T46.7 - T46.30 (2 March 2015) he denied receiving the subpoena and stated Mr Chehade had given him the statement he had signed on a previous occasion. Later, and contradictory to that evidence, he acknowledged having received the subpoena, which he still had with him in Turkey: T50.49 (2 March 2015).
52. That latter evidence was also in contrast to his earlier evidence in which he stated he had not kept the subpoena after it had been given to him: T46.4 (2 March 2015).
53. Mr Kay said that as soon as he arrived in Istanbul on 24 September 2014, he sent his statutory declaration by post to a friend in Australia, whom he named, with the purpose of having that friend pass the document on to the defendant: T46.43 - T48.31; T49.6 (2 March 2015).
54. Mr Kay said that when in Turkey, he did not discuss the statutory declaration with his wife as he did not want to alarm her: T52.7 (2 March 2015). This was in contrast to his earlier cited evidence at paragraphs [190], [210], and [212] above in which he said he had received the assistance of his wife with preparing his statutory declaration.
55. Mr Kay denied that on 14 September 2012, which was less than a week after the election in question, he had a telephone call from a solicitor named Ms Lauren MacDougal: T54.50 (2 March 2015). This was in contrast to the evidence of Ms MacDougal who stated that she had such a conversation with a person who had identified himself as Mr Kay.
56. Mr Kay later confirmed within 10 days of that date he had signed the statement prepared by Ms MacDougal which was dated 14 September 2012, but claimed that he did not understand or fully understand the document when he signed it: T55.10 - T55.15; T58.37 (2 March 2015). I find that explanation given by Mr Kay to be an unconvincing attempt to explain the inconsistencies in his position.
57. Mr Kay said that before he signed the statutory declaration comprising Exhibit "B" he went over the document in Istanbul with a person who was familiar with the English and Turkish languages to confirm its correctness before adding his signature to the document: T58.10 (2 March 2015).
58. Mr Kay was reluctant to admit he knew the interpreter, Mr Mehmet Ali Uluc. However, he eventually admitted that he had made a prior acquaintance with him in a previous court case: T60.40 - T60.48 (2 March 2015), as was confirmed by the evidence of Mr Uluc. That defensiveness on his part was difficult to understand and should be seen as an attempt by Mr Kay to seek to avoid potential criticism of his conduct.
59. At times, Mr Kay refused to provide a direct answer to the cross-examiner's question until he was directed to do so: T61.19 - T61.29 (2 March 2015).
60. Mr Kay sought to explain that he was tired when he gave evidence and needed a break and refreshment: T62.46 (2 March 2015). He also claimed to be "half asleep": T67.9 (2 March 2015). Given the time difference between Sydney and Ankara it could well have been the case that he was tired.
61. On the occasion Mr Kay was served with the subpoena by the plaintiff, he said the plaintiff was accompanied by a bearded man wearing a cap who gave him "really bad looks which were intimidating": T64.40 (2 March 2015). Mr Kay said that when he indicated to the plaintiff he would not be coming to court the plaintiff allegedly said to him: "If you don't come, there will be - it will not be good for you": T65.15 (2 March 2015).
62. It is convenient to here note that the plaintiff denied any such conduct on his part, or on the part of Mr Albert Darwiche, the person who had accompanied him when the subpoena had been served on Mr Kay: T157.40; T158.24 - T158.37 (17 April 2015).
63. When questioned about his variable resort to the use of the interpreter in his evidence given on 2 March 2015, at T67.38 - T67.43, Mr Kay gave the following explanation: "HIS HONOUR: Mr Kay, is there a reason why you are preferring to speak in English now rather than use the interpreter? A. INTERPRETER: The things I have trouble with, I prefer to use the interpreter but other things which I am confident in, I prefer to speak on my own."
64. Mr Kay refuted the suggestion put to him by counsel for the plaintiff to the effect that after he had given his evidence he had asked the plaintiff for money, $10,000, for having done so. He then made the counter-assertion that Mr Chehade had offered him money to give evidence and he had refused that offer: T68.10 - T68.21 (2 March 2015).
65. Mr Kay agreed that on 27 August 2014, which was the day after he first gave his evidence, he had called the plaintiff. This was a reluctant admission. The detail of that admission was in marked contrast with his earlier cited evidence at Exhibit "P", p 14.26 - 14.38 on 19 February 2015, when he had sought to deflect questions on that topic by giving a vague answer.
66. When the topic of telephone calls between Mr Kay and the plaintiff was developed in further cross-examination, at T68.23 - T69.3 (2 March 2015), Mr Kay's evidence was as follows: "Q. The day after you gave evidence, 27 August, you phoned Mr Chehade, didn't you? A. INTERPRETER: I did call. I don't recall why. I tried to, for want of a better term, curry favour with him because I wanted to look like I was friendly with him because I wanted to escape from that region without any dramas. And there was no one to protect me and my family which is why I had to behave in this manner and I did not fully - was not fully honest in Court but I did know that justice will eventually prevail and I did believe that when I reached Turkey that everything will come out and then justice will find its course because I want justice to find its correct path. Q. Now, on 29 August, three days after you had given your evidence, you tried to ring Mr Chehade three times, didn't you? A. INTERPRETER: Believe me, I do not recall. I do not recall but I will repeat the fact that I had to play the friendly guy, be in a good favour with them because until the point where I left the country because it was not safe for me otherwise. Q. You left messages for Mr Chehade, didn't you, asking him to ring you? A. INTERPRETER: What type of messages? Q. Phone messages. I'm sorry, on his phone. INTERPRETER: To call? Q. Yes. You called and left a message saying, "Please call me." A. INTERPRETER: My full faith in the Australian justice system because in the past, I had been in other litigation and as a result, I have this opinion of the Australian justice system and felt that when I was in Turkey, that I could actually raise this issue with the consulate and seek justice that way but I don't recall exactly but once again, I had to play the good guy role. I had to be friendly for our own safety."
67. Mr Kay claimed his reasons for making his telephone call to the plaintiff after the hearing was to sort out the unpaid interpreter's fees charged by Mr Uluc: T69.38 - T70.8 (2 March 2015). When pressed on the subject of his post-hearing call to the plaintiff, at T70.10 - T70.19 (2 March 2015), Mr Kay's evidence was as follows: "Q. On the morning of 30 August, Mr Kay, you told Mr Chehade on the phone that if he didn't pay you by 8 o'clock that night, $10,000, you'd change your evidence, didn't you? A. INTERPRETER: I deny this. INTERPRETER: He says A. INTERPRETER: Am I an idiot to do something - I am an honest man. I'm not a person to stoop down to asking for $10,000. If I was a person that was driven by this sort of inducement, I would have sought this prior to actually going to Court. Once again, this is just - phone call made for the debt recovery."
68. I considered Mr Kay's evidence as cited in the preceding paragraph above, to be an unconvincing attempt, involving hyperbole, to deflect criticism of his conduct.
69. Tellingly, Mr Kay gave conflicting and inconsistent reasons for wanting to give his evidence from Turkey in cross-examination on 2 March 2015 at T71.16. Significantly for the assessment of the credibility of his testimony, Mr Kay ultimately revealed that the "real reason", later described as his "primary reason" for not returning to Australia, was not that he was fearful of returning as he earlier claimed, but rather, his need to care for his mother who was seriously ill: T72.1 - T72.21 (2 March 2015).
70. That explanation was in marked contrast to his earlier evidence, although he still maintained that he was in fear for his safety: T71.20 - T72.29 (2 March 2015). His evidence appeared to have vacillated on that subject: T72.48 (2 March 2015). That vacillation undermined his credibility and his reliability as a witness.
71. Having regard to the foregoing analysis of Mr Kay's evidence, I consider that where the evidence of Mr Kay differed from that of the plaintiff and that of the defendant on critical matters in issue, Mr Kay's evidence should not be accepted without corroboration due to the adverse views I have formed concerning the credibility of his testimony. There was no such corroboration that served to render his evidence believable or reliable.

Issue 1 - Whether the words were uttered

1. In my view, the evidence of Mr Kavanagh and Mr Cklamovski can be put to one side and disregarded on the critical issue of whether or not the defendant had uttered the words complained of, as their evidence does not exclude the possibility that the defendant had uttered those words. I consider that the true significance of their evidence is that they simply did not hear the defendant make the alleged utterances.
2. For the reasons already identified, I find the fact that Mr Kay's initial evidence in which he claimed he had heard the defendant utter the words complained of, was perjured. This compels the conclusion that the initial evidence, given by him concerning those alleged utterances by the defendant, and which are in vigorous contention, is entirely unreliable, and should not be accepted.
3. Furthermore, to the extent that Mr Kay had any knowledge of the claimed underlying events, he said, and I accept, that knowledge was based on what he had been told by Mahmoud Chehade: Exhibit "P", p. 40.21 - 40.48 (19 February 2015).
4. Once it is recognised that the evidence of Mr Kay should be seen for what it is, namely, unreliable, the factual contest of whether the words in contention were uttered by the defendant stands to be resolved on an evaluation of the evidence of Mahmoud Chehade and Mrs Schneider on the one hand, and the defendant on the other.
5. Mrs Schneider was a reluctant witness who hesitated for some months before deciding to give a statement in the matter. This occurred in August or September 2013, which was 2 years after the events in question: T70.41 - T70.50 (27 August 2014). This was in circumstances where she said her memory of events over the previous 2 years had been affected by the emotional consequences of the loss of her father so that she "can't remember everything that has happened in the last 2 years": T65.38 (27 August 2014). This indicated that her evidence required careful evaluation before acceptance.
6. For the reasons that follow, I do not accept the evidence of Mrs Schneider to the effect that she had heard the defendant utter the words of which the plaintiff complains. I consider her evidence to be unconvincing and based on a reconstruction that vacillated in its content.
7. In one material respect, she claimed that she had heard the defendant say "Don't vote for this man Rabie …": T65.1 (27 August 2014). In contrast, in another portion of her evidence, she could not remember whether the defendant said "Rabie Chehade, Rabie". She said she could not remember because of the passage of time: T65.9 - T65.10 (27 August 2014). That vacillation suggested she was uncertain about a material part of her evidence. This raised doubts about the reliability of her evidence on matters of important disputed detail. This was a further indication of a need to exercise caution before accepting her evidence.
8. An indication of the unreliability of Mrs Schneider's reconstruction of events in her evidence was that she invoked the notion of probability in her description of the defendant having allegedly repeated the claimed utterances several times. This suggested her account was based on a reconstruction rather than being based on an actual and an accurate recollection: T66.18 (27 August 2014).
9. When Mrs Schneider was asked to restrict her evidence to what she had actually heard, rather than to recount what she thought had probably occurred, she referred to having been shocked, and said she couldn't recall anything after "the shock of it all": T65.20 (27 August 2014). However, and in my view somewhat inconsistently, she then went on to say she had heard the words complained of repeated several times: T66.20 - T66.38 (27 August 2014).
10. I find that shift in her evidence to have been unconvincing, contradictory and unreliable. My assessment of her evidence on those critical matters in dispute was that it was based on unreliable reconstruction rather than an actual recollection that was reliably and accurately recounted.
11. The fact that Mrs Schneider was shocked by what she perceived she had heard, and the fact that her reaction was that she had "blocked it out" (T66.46, 27 August 2014) indicated that her observations were influenced by her emotional reaction to what she thought she had witnessed. This indicated that her account was not just factual, but was inextricably coloured by her described emotional reaction, which has in turn played a part in her attempt at reconstruction.
12. Since it is not reasonably possible to separate the emotionally influenced content of her evidence from that part of her evidence which could otherwise be taken to be an unadorned factual account, I consider it would be unsafe and unsound to base pivotal findings of fact on her evidence on the key matters in dispute.
13. Furthermore, in cross-examination Mrs Schneider reacted defensively and sought to fence with cross-examining counsel to try and deflect attempts at testing her evidence: T64.29 (27 August 2014). Although that response may well have been influenced by her emotional state following her recent bereavement, it nevertheless raised doubts about the reliability of her evidence.
14. I therefore find that Mrs Schneider's evidence is not a reliable guide to deciding the question of whether or not the words complained of by the plaintiff were in fact uttered by the defendant on the occasion in question.
15. Mahmoud Chehade gave his account of the alleged events well before Mr Kay made his statement, which was in any event based on Mahmoud Chehade's account, as was confirmed by Mr Kay at Exhibit "P", p 40.21 - 40.48 (19 February 2015).
16. For the reasons that follow, I also find that the evidence of Mahmoud Chehade to be unconvincing on the pivotal factual question in dispute.
17. There were textual differences between the evidence of Mahmoud Chehade and what was pleaded in the statement of claim. This is a matter of some importance because he claimed to have been the one who had heard the defendant utter the words complained of, and he claimed he had allegedly intervened in order to verbally remonstrate with the defendant as a result of what he claimed she had said about his family.
18. It was Mahmoud Chehade's report to the plaintiff of the alleged events, and his statement made some 5 weeks after the events (T38.41, 26 August 2014) and, it appears, his several statements (T39.17, 26 August 2014), that later led to the institution of the proceedings.
19. Given the gravity of the allegations involved in this case, I considered that the textual differences in Mahmoud Chehade's accounts were matters of significance to an assessment of the credibility and reliability of Mahmoud Chehade's evidence.
20. In paragraph 3 of the plaintiff's statement of claim as cited at paragraph [8] above, it was alleged the defendant said the plaintiff's first cousin was a murderer in gaol for double life. Mahmoud Chehade was the obvious source of that claim. In his evidence, Mahmoud Chehade said the defendant had initially referred to the plaintiff's first cousin (T35.31, 26 August 2014) and had then changed that to second cousin: T35.45; T39.32; T42.15 (26 August 2014). He agreed his statement, signed some 4 weeks after the claimed events, made no reference to "second cousin": T39.32 (26 August 2014). This raised a doubt about the reliability of his evidence.
21. In paragraph 3 of the plaintiff's statement of claim as cited at paragraph [8] above, it was alleged that the defendant had made reference to a taunt involving the suggestion of the plaintiff's first cousin coming to shoot her. In Mahmoud Chehade's evidence there was only mention of cousins generally in that context not first cousins: T42.44; T43.12 (26 August 2014). Whilst this textual difference may appear to be a minor matter, in the context of grave allegations being made by Mahmoud Chehade it indicated his evidence was not given with due care, consideration and accuracy.
22. Mahmoud Chehade agreed that his assertion (at T36.4; T42.21, 26 August 2014) to the effect that the defendant had followed him whilst justifying her alleged comments about the plaintiff's relatives, was not in his statement: T39.44 (26 August 2014).
23. Those textual differences taken together with the timing of Mahmoud Chehade's statement, which was made a month after the alleged incident, indicate that his memory of the alleged events should not be taken to be accurate or reliable as to the detail of what, if anything, had been said by the defendant on the occasion in question.
24. Further indications raising doubt about the reliability of Mahmoud Chehade's evidence were the apparent discrepancies that were identified in the evidence he gave in answer to questions asked of him in cross-examination when a comparison was made between the content of his statement and the content of his evidence: T39.20 - T40.14 (26 August 2014).
25. Those differences concerned changes of emphasis in the recounted conversation he claimed to have had with the defendant, and some additional detail as to what the defendant was alleged to have said about a first and then a second cousin relationship between the plaintiff (and himself for that matter) and a murderer allegedly alluded to by the defendant; his inability to identify the time he had reported the alleged incident to the plaintiff who is his brother; and the addition of some extra detail that had not been included in his original statement. In that additional detail he suggested that the defendant had allegedly followed him whilst verbally rebuking him for intervening in the events that he claimed had occurred: T39.47 - T40.4; T41.40 (26 August 2014).
26. When Mahmoud Chehade was challenged as to the truthfulness of his evidence about the alleged utterances by the defendant, he denied that he was making up his evidence: T43.50 - T44.9 (26 August 2014). On a consideration of his evidence as a whole, I find his denial was unconvincing.
27. The cross-examiner, counsel appearing for the defendant at the initial hearing, did not suggest a motive for Mahmoud Chehade giving allegedly incorrect or fabricated evidence. Counsel representing the defendant at the re-opened hearing did not suggest a motive for Mahmoud Chehade to lie about his evidence, suggesting that inquiry was unnecessary.
28. I consider that such particularity in this instance is not necessary where the challenge has been put directly as has occurred in this case: T43.50 - T44.9 (26 August 2014). The fact that Mahmoud Chehade is the brother of the plaintiff, and could therefore be assumed to be aligned to his cause, is a sufficient reason to exercise caution before accepting his evidence. It is not necessary to entertain speculation as to any motive that Mahmoud Chehade might have had for giving evidence that was factually incorrect. It is sufficient to simply recognise that as brothers, Mahmoud Chehade and the plaintiff were in the same interest.
29. In contrast to the evidence of Mahmoud Chehade and Mrs Schneider, an evaluation of the defendant's evidence reveals it to have been given in a straightforward manner, measured, and devoid of any apparent attempts at persuasion. It contained no inconsistencies or glaringly improbable statements. On its face, the defendant's evidence was credible, and it was recounted in a credible manner.
30. To the extent that the defendant's evidence contained matters of opinion, namely her reasoning for not responding to a solicitor's letter of demand comprising Exhibit "D" which asked her for an apology and the payment of $1000 for legal costs, she was entitled to believe, based on previous approaches from the journalist concerned, that someone had an interest in seeking to play out a political issue in the media, for whatever reason. Those circumstances justified the defendant in holding the opinion she did and they also justified her taking the view that the matter complained of was a "media stunt": T98.5 (27 August 2014).
31. I accept that the defendant's stand in her refusal to make an apology was taken on principle because she believed she had neither uttered the words complained of, nor had she disparaged or defamed the plaintiff: T97.20; T97.44; T99.37 (27 August 2014).
32. The defendant was cross-examined at length on the content of her mobile telephone account call records and the timing of various calls made on the day in question. Given the lack of precision in the evidence in the plaintiff's case concerning the timing of the disputed event in question, I consider that nothing of significance turns on those records. This is particularly so given the lack of evidence interpreting how the calls listed in those records were logged at various locations: T91.7 (27 August 2014).
33. I accept the defendant's evidence that the allegations were, as she put, blatantly false: T86.30 (27 August 2014). I also accept the defendant's evidence that she had decided to defend the allegations made against her because they were false, and this influenced her decision not to reply to the solicitor's letter of demand comprising Exhibit "D" by which the plaintiff sought an apology: T86.26 - T86.31 (27 August 2014).
34. To the extent that there is a commonality in the evidence of the defendant and Mr Kay as to the occurrence of an incident outside the polling place on the day in question, the defendant had observed an incident in the courtyard outside the polling place. That incident involved Mr Kay yelling the words "Labor kills people" and another individual yelling and jeering "they are murderers": T82.35 - T82.44 (27 August 2014).
35. The defendant then described how some Labor polling place volunteers acted to calm the situation down, including particularly calming down Mr Kay: T83.35 (27 August 2014). I accept the defendant's evidence with regard to her observation of those events.
36. I do not regard the evidence of either Mahmoud Chehade or Patricia Schneider, taken individually or together, to be a reliable basis upon which to reject the evidence of the defendant.
37. For the above reasons, I conclude that the claimed defamatory words were not uttered by the defendant, as has been alleged by the plaintiff.
38. There remains an unresolved question as to whether as was submitted on behalf of the defendant, there should be adverse inferences drawn against the plaintiff's case because the plaintiff did not call evidence from Ms Rebecca Kay and her husband, Mr Albert Darwiche, in the plaintiff's case in reply: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
39. The defendant submitted the need for such evidence to be called from those witnesses arose in order to rebut some material suggestions that emerged in Mr Kay's evidence and from the evidence of the plaintiff. The first such suggestion was that Ms Rebecca Kay had somehow acted to coerce the content of Mr Kay's evidence (the commonality of the surnames being coincidental). The second such suggestion was that Mr Darwiche had allegedly acted in an intimidatory manner towards Mr Kay at the time of service of a subpoena on Mr Kay, this being part of the duress allegedly exerted over Mr Kay by the plaintiff and by Mr Darwiche on the plaintiff's behalf.
40. Those assertions came from Mr Kay's evidence, which I have found to be discredited generally. Given that the pivotal fact in issue has been resolved in the defendant's favour by a finding that the words complained of by the plaintiff had not been uttered by the defendant, the secondary allegations of the alleged intimidation of Mr Kay made against the plaintiff and the persons not called to give evidence become peripheral. It is therefore unnecessary to resolve those matters in the determination of the proceedings.

Issue 2 - Assessment of damages

1. Having found that the defamatory utterances were not made by the defendant as alleged, it is nevertheless necessary to briefly deal with the issue of assessment of damages, lest it be found on appeal that I have erred in arriving at my primary findings that the plaintiff has not been defamed as alleged.
2. On that premise, and contrary to my stated findings, a finding that the words complained of were said would involve a serious slander, including that of guilt by association, suggesting the plaintiff was unfit for election to local government.
3. Such a slander, if uttered, would also tend to have an adverse effect on the plaintiff's professional standing as a real estate agent in the area in which he worked, in circumstances where good character and reputation are important assets that can easily be damaged by such a slur and its concomitant imputations getting around in the local community as word spreads along the metaphorical grapevine.
4. In those circumstances, I consider that an award of general compensatory damages in the sum of $75,000 would have been an appropriate award to vindicate injury to reputation if the words complained of had in fact been uttered.
5. Having accepted that the words complained of were not uttered by the defendant, the question of aggravated damages does not arise. The defendant maintained her refusal to apologise on the basis she had not uttered the words attributed to her. That position has been sustained in the ultimate result.

Disposition

1. As the defendant has succeeded on the matters calling for decision, she is entitled to a verdict and judgment in her favour.

Costs

1. It follows that the defendant is entitled to have her costs paid by the plaintiff on the ordinary basis unless a party can show an entitlement to some other order.

Orders

1. I make the following orders: 1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further or other orders are required.

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