Coles Myer Limited v Webster; Coles Myer Limited v Thompson

Aitken v Bedwell [1827] M&M 68; 140 ER 1052 Commonwealth Life Assurance Society Ltd v Brain [1935] 53 CLR 343 Cubillo v Commonwealth [2001] 112 FCR 455 Davidson v Chief Constable of North Wales [1994] 2 All ER 597 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206 Martin v Watson [1996] 1 AC 74 CASES CITED: Moore v Gaurdner (1847) 16 M&W 595; 153 ER 1327 Myer Stores Ltd v Soo [1991] 2 VR 597 Roy v Prior [1971] AC 470; (1970) 2 All ER 729 Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 Scott v Shepherd (1773) 2 Wm Bl 892 Spautz v Butterworth [1996] 41 NSWLR 1 Warner v Riddiford (1858) 4 CBNS 180

Trindade, Cane & Lunney, The Law Torts of Australia 4th ed TEXTS CITED: Clerk & Lindsell on Torts (18th ed) paras 16 - 47 Halsbury, 4th ed, vol 46 paras 1326, 1327

Coles Myer Limited (Appellant) PARTIES: Karl Webster(Respondent) Coles Myer Limited (Applicant Stewart James Thompson (Respondent)

COUNSEL: D A Caspersonn (Appellant) D Campbell SC; R Weaver (Respondents)

SOLICITORS: McCulloch And Buggy Solicitors (Appellant) Konstan Lawyers (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC1842/06 DC2538/06

LOWER COURT JUDICIAL OFFICER: JC Gibson DCJ

LOWER COURT DATE OF DECISION: 28 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Webster v Coles Myer Limited; Thompson v Coles Myer Limited [2009] NSWDC 4

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40216/09 DC 1842/06

CA 40215/09 DC2538/06

HODGSON JA IPP JA HANDLEY AJA

8 October 2009 Coles Myer Ltd v Karl Webster Coles Myer Ltd v Stewart James Thompson Judgment 1 HODGSON JA: I agree with the orders proposed by Ipp JA and with his reasons. I would add the following comments. 2 It may seem improbable that Ms Hart would have deliberately concocted a false story that the plaintiffs had fraudulently attempted to obtain gift vouchers; but the difficulty for the appellant is that, as demonstrated by Ipp JA, there were clearly established facts that left little if any room for any other inference. 3 One matter particularly relied on by the appellant was Senior Constable Turnbull's evidence that he spoke to both Ms Hart and "the lady at the service desk", and the question and answer that then followed: Q. What did the lady at the service desk say to you? A. Well again at the time I'm just saying I had two people saying the same sort of thing that from what I can remember summarised there was - was they returned a Seinfeld DVD set where they had to sign either a refund or an exchange voucher. Whilst they were still there they've attempted to use a credit card to purchase an amount of gift vouchers. And the girl behind the desk from what I can remember has looked at the signature on the back of the card and compared it to the signature that was on the refund voucher and they did not compare, they weren't accurate which is when she's contacted her superior, her manager or something like that and it's gone from there. From what I remember. 4 Senior Constable Turnbull did not recall the name of the lady at the service desk, but remembered she was a young girl. He did not remember taking a statement from her, and she did not give evidence in the case. 5 The primary judge (at [134]) found Senior Constable Turnbull to be a credible, honest and independent witness, and accepted (at [136]) that the young woman he referred to was there. The primary judge also made the following finding: [369] …… However, I do not accept that this is what the evidence shows. The evidence of Senior Constable Turnbull is quite clear. He was told, both by Miss Hart and by the unnamed young lady shop assistant at the service counter about the return of the Seinfeld DVDs by Mr Thompson in circumstances where it was asserted that in addition to returning the Seinfeld DVDs, an attempt was made to purchase a $500 gift voucher using a credit card with a signature that did not match the signature of Mr Thompson on the credit voucher records. 6 The appellant relied on this finding to submit that the allegations against the plaintiffs did not come from Ms Hart alone, but also from the person with whom the Seinfeld DVD transaction was initiated; making it very unlikely that the allegation was a malicious fabrication by Ms Hart. That submission should not be accepted, for the following reasons. 7 The plaintiffs, who were accepted as truthful witnesses, gave evidence to the effect that the only transaction they undertook involving Ms Hart was the return of the Seinfeld DVD, and they were not cross-examined on that evidence; and Mr Caspersonn accepted that he could make no submission that the plaintiff did anything at K-Mart other than return the DVD and get into a bit of an altercation with Ms Hart about that. 8 It is thus clear that there was nothing about the incident between the plaintiffs and Ms Hart that could have suggested any kind of criminal activity by the plaintiffs, and yet it was this incident that led Ms Hart, shortly afterwards, to cause the police to be called. Any mistaken belief of Ms Hart to the effect that the plaintiffs had done something to justify calling the police would thus have to have arisen somehow in this quite short interval. In addition, the meeting between Senior Constable Turnbull and Ms Hart occurred no more than about one hour after the happening of the Seinfeld DVD transaction. 9 In those circumstances, and having regard to Ms Hart's denial that she made any mistake, the inference that she did not make a mistake but maliciously fabricated a story was well available to the primary judge, particularly when the primary judge had the advantage of observing Ms Hart in the witness box. 10 Senior Constable Turnbull's evidence about the lady at the service desk does not weigh significantly against that inference, for the following reasons: (1) Senior Constable Turnbull admitted his recollection was very sketchy other than what was written in a document he prepared at the time; (2) The document he prepared did not refer to the lady at the service desk, but only to the manager; (3) Senior Constable Turnbull's impression, when he gave evidence, that both persons asserted there was an attempt to purchase a gift voucher, could have been erroneous; and the primary judge's use of the passive "it was asserted" in her finding at [369] is consistent with this; (4) The young lady in question could have been influenced by the presence of her Store Manager not to dissent from what was being said by the Store Manager; (5) The possibility that two people were so egregiously mistaken about such a recent transaction they were both involved in is even smaller than the possibility that just one was so mistaken; and (6) The young lady was not called to give evidence, and no satisfactory explanation was given for this. 11 For those reasons, in addition to the reasons given by Ipp JA, I agree that the appeals should be dismissed with costs.

The plaintiffs are defamed and detained 13 Between 5:00 and 6:00 pm on 25 October 2004, the respondents, Mr Stewart James Thompson and Mr Karl Webster (to whom I shall collectively refer as "the plaintiffs"), were detained and searched in the Ashfield Shopping Mall by Constables Turnbull and Cozis of the New South Wales Police. 14 The two police officers suspected the plaintiffs of having attempted to obtain a gift voucher or vouchers worth $500 from the K-Mart store in the Mall by using a credit card that possibly had been stolen and, also, having at an earlier time attempted, fraudulently, to obtain a gift voucher or vouchers worth $1500 from the Target store in the Mall. 15 Ms Kellie Hart, who was then the store manager of K-Mart, gave the police officers the information that led them to suspect the plaintiffs of having committed the offences in question. She told Constable Turnbull that two men had tried to obtain gift vouchers from K-Mart by using "possible [sic] stolen" or "fraudulent" credit cards and had also attempted to obtain $1500 worth of gift vouchers from Target by similar means. She identified the plaintiffs to the police officers as the two men in question. 16 Some time after 6:00 pm on 25 October 2004, the police officers, after investigation, concluded that there was insufficient evidence to justify the continued detention of the plaintiffs and released them. It is now not in dispute that there was no ground whatever to suspect either of the plaintiffs of having committed the offences in question. They were undoubtedly innocent.

The plaintiffs' claims against Coles 17 The incident had a serious psychological effect on both men. Each, separately, brought proceedings against the appellant, Coles Myer Ltd ("Coles"), for damages for defamation and false imprisonment. 18 The plaintiffs alleged that the statements made by Ms Hart to the police officers were defamatory and relied on these statements in claiming damages from Coles for defamation. They alleged that Coles was vicariously liable for the defamatory remarks Ms Hart had published. 19 Coles pleaded, in answer to the claims for defamation, that the statements Ms Hart had made to the police officers were protected by qualified privilege. The plaintiffs filed replies denying that qualified privilege applied and alleging that, in any event, Ms Hart had acted with malice. 20 The plaintiffs' detention by the police officers that afternoon was the basis of their claims against Coles for damages for false imprisonment. The plaintiffs alleged that, by her conduct that afternoon, Ms Hart had procured and caused the police officers to detain them and that Coles was vicariously responsible for her actions. 21 J C Gibson DCJ upheld the plaintiffs' claims. Her Honour assessed Mr Webster's damages as being $80,267 and Mr Thompson's damages as being $253,949.16. She granted judgment against Coles in favour of Mr Webster and Mr Thompson, respectively, in these amounts. The plaintiffs' actions were heard concurrently and her Honour's reasons related to both claims.

The leave to appeal and the appeals 22 Coles appeals against the judgment in favour of Mr Thompson and seeks leave to appeal and appeals against the judgment in favour of Mr Webster. The appeal involving Mr Thompson, and the application for leave to appeal and appeal involving Mr Webster, were heard concurrently. These reasons relate to all these matters. 23 The hearing before this Court proceeded on the basis that, as the two matters were being heard concurrently, and as Coles had an appeal as of right in regard to Mr Thompson's action, there was little point in addressing the application for leave to appeal in Mr Webster's action. I accept that that approach was a sensible one and I would grant leave to appeal to Coles in regard to the judgment in the case brought by Mr Webster.

The defamation causes of action and the trial judge's findings 24 The plaintiffs' defamation causes of action were based on three matters of which complaint was made. 25 The first matter complained of concerned a telephone call made to the New South Wales Police at about 5:30 pm on 25 October 2004. The plaintiffs pleaded that, during that call, Ms Hart "and/or another employee of [Coles]" published to a police officer words of and concerning the plaintiffs to the following effect: "There are two males about 18 - 20 years old, Lebanese in appearance who have attempted to buy gift vouchers in K-Mart and Target with possible (sic) stolen credit cards. The men are currently in Coles. Please send police to investigate." 26 The plaintiffs alleged that the publication of the second matter complained of occurred at the Ashfield Shopping Mall. They alleged that, after the telephone call referred to in the previous paragraph, two police officers (Constables Turnbull and Cozis) went to the Mall and met with Ms Hart. Ms Hart then published to them words to the following effect: "There are two male people who tried to obtain gift vouchers using fraudulent credit cards. They are in the centre." 27 The plaintiffs alleged that the first and second matters complained of conveyed the following imputations which were defamatory: (a) The plaintiffs were dishonest persons; and (b) The plaintiffs had attempted to obtain gift vouchers from K-Mart by means of deception. 28 The plaintiffs pleaded that, after the publication of the second matter complained of, Ms Hart went with Constables Turnbull and Cozis and identified each of the plaintiffs to the police officers. In so doing she said words to the following effect: "These are the blokes who attempted to obtain $500 worth of gift vouchers from K-Mart and earlier attempted to obtain $1500 worth of gift vouchers from Target using fraudulent credit cards. They are definitely the men who attempted fraud at K-Mart." 29 The plaintiffs pleaded that the third matter complained of conveyed the following imputations each of which was defamatory: (a) The plaintiffs fraudulently attempted to obtain $500 worth of gift vouchers from K-Mart; (b) The plaintiffs fraudulently attempted to obtain $1500 worth of gift vouchers from Target; and (c) The plaintiffs were dishonestly in possession of a fraudulent credit card that they used with the intention of dishonestly attempting to obtain a financial advantage. 30 J C Gibson DCJ found (at [181]) that Ms Hart had published the three matters of which complaint was made, of and concerning each plaintiff. Her Honour found that, in so doing, Ms Hart was acting in the course of her employment with Coles and Coles was vicariously responsible for her conduct. Her Honour found, further, that the imputations alleged by the plaintiffs were established, were conveyed and were defamatory (see [184] and [185]). Finally, in this regard, her Honour found that, in each publication of the matters complained of, the two persons identified by Ms Hart to the police officers were the plaintiffs. None of these findings was challenged on appeal. 31 Coles pleaded defences of qualified privilege at common law and in terms of s 22 of the Defamation Act 1974. Her Honour found, however, that Ms Hart's allegations to the police officers concerning the plaintiffs were "made up" and that she did not believe that the plaintiffs were guilty of the acts that she informed the police officers they had committed. Her Honour said ([at 204]): "This is a very clear case of the imputations not being relevant to the occasion. This is not a case of mistake or inaccuracy. Ms Hart has carefully not told the police that these customers made her feel angry and threatened by their conduct over wanting to return a DVD. She has instead made up a story about a false credit card." 32 In effect, her Honour found that, as Ms Hart did not believe that the plaintiffs had committed the offences that she had reported to the police officers (and as she invented the story that she gave to the police officers), the occasions when the defamatory material were published were not privileged. Further, her Honour found that, if the occasions were privileged, as Ms Hart was conveying information to the police officers that she knew to be false, the imputations she published were not relevant or germane to those occasions. Thus, her Honour found, none of the publications was published on an occasion protected by qualified privilege. 33 In dealing with qualified privilege under s 22 of the Defamation Act, her Honour observed that Coles contended that Ms Hart's conduct was "reasonable" (see [222]). Her Honour said in this regard: "Not only did Ms Hart fail to make any enquiries, she protested when the police let the plaintiffs go, saying she was sure they were the offenders. In her evidence she could not say what belief she had, or indeed anything of assistance to establish reasonableness, because she could not remember. None of the elements of this defence … are made out and both the defences must fail." (at [223]). 34 Her Honour then went on to consider, if she had erred in so holding, whether Ms Hart was motivated by malice in publishing the matters complained of. On the basis of her finding that Ms Hart had invented her allegations against the plaintiffs, her Honour held that malice had been established.

The false imprisonment causes of action and the trial judge's findings 35 In dealing with the claims for false imprisonment, her Honour said at [244]: "The plaintiffs were not under arrest. However, there was constraint upon their will so great as to induce them to submit to the deprivation of liberty, including leaving the Food Court to go to a delivery bay area for a further strip search. Having regard to these facts, I am satisfied that each of the plaintiffs was imprisoned for the purposes of the tort of false imprisonment."

There was no challenge to this finding. 36 Her Honour found that Coles was vicariously liable for Ms Hart's conduct and there was no challenge to that finding. 37 Her Honour held that Ms Hart had effectively caused the plaintiffs to be "imprisoned" or detained. Coles contended that her Honour thereby erred.

The grounds of appeal 38 Coles relied on four grounds of appeal, namely: (a) Her Honour erred in determining that the defence of qualified privilege did not apply to the defamatory remarks that Ms Hart published;

(b) Her Honour erred in determining Ms Hart acted with malice; (c) Her Honour erred in determining that Ms Hart caused or procured the false imprisonment; and (d) Her Honour drew an inappropriate inference against Coles as to documents not produced pursuant to a subpoena. 39 Mr Caspersonn, of counsel, who appeared on the appeal for Coles, did not advance any oral submissions in support of the fourth ground and described it as a "subsidiary ground". Her Honour made it clear that she would find against Coles even without drawing the adverse inference in question. The adverse inference makes no difference to her Honour's findings and I do not propose to deal with it.

The attempt to purchase a $500 gift voucher before the plaintiffs arrived at the Ashfield Shopping Mall 40 In October 2004, in the Ashfield Shopping Mall, there were four stores in the Coles Group carrying on business. These were K-Mart, Target, Coles and Liquorland. Each liaised with the other when there was a suspicion of criminal activity being carried on in the Mall. A prevalent form of criminal activity involved purchasing gift vouchers with stolen credit cards. Fraudsters would use stolen credit cards to acquire gift vouchers at one store, which they would redeem at another store. For this reason, the policy of K-Mart (and presumably the other stores) was that no gift voucher over $50 would be sold without the approval of the store manager or without the customer producing proof of identity that corresponded with the signatory of the credit card tendered by the customer. 41 In the afternoon of 25 October 2004, while Ms Lesley McDonald was the checkout operator on cash register 9 in the K-Mart store, two male customers sought to purchase two $500 gift vouchers from her and to pay for them with a credit card. Ms McDonald called Ms Rina Patel, who was working as the "front end controller" at the time. According to Ms Patel, she went to register 9 and informed the two men that, without photographic identity, gift vouchers could not be issued. Ms McDonald informed the men that a driver's licence would be sufficient. One of the men said that his driver's licence was in the car. The men then left the store and did not return. 42 According to Ms Patel, she returned to her position in the store, called Ms Hart and told her what had occurred. Ms McDonald confirmed that Ms Patel then informed Ms Hart what had taken place. According to Ms McDonald, about half an hour after the incident occurred (by which time, on the evidence of Ms McDonald and Ms Patel, the men must have left the store), Ms Hart came to Ms McDonald and "discussed things". 43 On the evidence of Ms McDonald and Ms Patel, there was then nothing that Ms Hart could do about the matter. The men had left the store and nothing was known about their identities. Nevertheless, the incident must have been of some concern to Ms Hart, as at about that time she had received an email from her employer warning her to be on the alert for fraudulent activity concerning the purchase of gift vouchers. 44 Ms Hart testified that on 25 October 2004 she was "called to the front due to an incident with a customer wanting to purchase a gift card for $500". According to Ms Hart, the customer concerned did not have a driver's licence and had no proof of identity. During the conversation that Ms Hart had with this customer, he said that the card that he wished to use was not his card. 45 When Ms Hart was asked in evidence in chief why she believed that the customer was attempting a credit card fraud simply because he did not have proof of his identity, she replied: "Because he was trying to purchase $500 on a Coles Group card, that was the problem, that's why [he] flagged the girls to then contact me. He wanted to make a purchase on a credit card, a Coles [Group] Gift Card for $500, he had no proof of ID and we'd been having a lot of problems with the Coles Group Gift Cards". 46 She later repeated in evidence in chief that she thought that the customer was attempting to commit a credit card fraud because he was trying to make a purchase of a gift voucher for $500 without proof of identity, while admitting that the card was not his. 47 Ms Hart was cross-examined as to why she called the police. Her explanation can be seen from the following exchange: "Q. Did you call the police because you thought he was trying to defraud K-Mart or did you call the police because he was threatening you? A. Well he wouldn't offer proof. If he would've walked away and didn't become threatening, it wouldn't have bothered me. But he became threatening. Q. Are you saying it wouldn't have bothered you that he'd attempted to defraud - A Like if he - -

Q. - - K-Mart of $500? A. Well I can do anything and it's a waste of time. If he - like if the transaction hadn't gone through there's nothing I could do. [COUNSEL FOR THE PLAINTIFFS] Q. So you're telling the court Ms Hart that it was his demeanour and what you perceived as a threat on his part, that warranted the police being called? A. Well yeah I suppose you could say that because he wouldn't. … Q. It was because of the threatening nature as you saw it, of the conversation you had with him, that led you to point out that gentleman to the police when they arrived? A. Well yeah I suppose because that's what the - that was the end outcome because he started with the credit card in the beginning." 48 The only evidence adduced that there were two men on 25 October 2004 who attempted to purchase two $500 gift vouchers from K-Mart was that given by Ms McDonald and Ms Patel. On Ms Patel's evidence, that attempted purchase occurred before her late lunch hour that day. J C Gibson DCJ pointed out there was no suggestion that her lunch was taken "after 4:30 pm" (at [51]). There was no challenge to this observation. The plaintiffs arrived at the Mall after 4.30 pm. Thus, the incident involving the purchase of the $500 gift vouchers must have occurred before the plaintiffs arrived at the Mall.

The events leading to and involving the plaintiffs' detention 49 Both plaintiffs had previously worked in department stores, and were familiar with department store procedure. For the previous nine years, Mr Thompson had been a middle-management store employee at Myer stores, with about 60 persons in his department reporting to him. Mr Webster had been a "fragrance salesman" and had sold fragrances in the Grace Bros Sydney store. 50 Prior to 25 October 2004, Mr Thompson had purchased a set of Seinfeld DVDs from K-Mart that he wished to return. The plaintiffs had decided to do some shopping at the Ashfield Shopping Mall on the afternoon of 25 October 2004 and, in the course of that shopping, Mr Thompson would return the set of DVDs. 51 Accordingly, Mr Thompson took with him the receipt for his purchase of Seinfeld DVDs. The plaintiffs went by train to the Mall and arrived there at between about 4:30 and 4:35 pm and went first to K-Mart. 52 According to both plaintiffs, Mr Thompson went to the service counter with the DVDs that he wished to return. Mr Webster stood behind him. Mr Thompson told the young woman at the service counter that he wanted to return the DVDs. She said that she had to get authorisation from her manager because the price of the DVDs was above $100. She called her manager and Ms Hart arrived. 53 Mr Thompson explained to Ms Hart that he wanted to return the DVDs as he had bought them under the impression that they were the complete collection of the Seinfeld series but, on taking them home, he had discovered that what he had purchased was only the first two series. Ms Hart appeared to be unwilling to accept this explanation and told Mr Thompson that he should have known that what he had purchased was not the complete collection. According to Mr Webster, who was watching and listening to the exchange, the conversation "got hotter" and "abusive". Mr Webster regarded Ms Hart's behaviour as "derogatory and insulting" and said she acted "aggressively" towards Mr Thompson. Mr Thompson said that Ms Hart "was getting hostile" and he began to feel "real embarrassed". In the end, Ms Hart said to the young woman at the service desk "just return it" and she walked off. The young woman required Mr Thompson to provide proof of his identity and he showed her his learner driver's licence. She then gave him a return voucher for about $115. 54 As Mr Thompson was concerned with the attitude of the store manager with whom he had been speaking, he asked the young woman at the service desk to tell him the name of the manager and she said that it was Kellie Hart. 55 After the conversation with Ms Hart, the plaintiffs went towards the back of the store to look at the DVDs for sale, but they noticed that a security guard was looking at them in a way that made them feel uncomfortable. They decided to leave the store, which they did. 56 The plaintiffs then went to a store called Danoz Direct where Mr Thompson bought some gymnastic equipment for which he paid with his credit card, a Coles Myer Source Mastercard. The equipment was heavy so Mr Thompson left it behind in Danoz Direct with the intention of retrieving it when he had completed his shopping in the Mall. 57 The plaintiffs then went into the Food Court in the Mall. Mr Thompson mentioned to Mr Webster that he had to buy some groceries from Franklins. They agreed that Mr Webster would take a seat in the Food Court while Mr Thompson did his shopping in Franklins. 58 The first report to the police of suspected criminal activity at K-Mart was made at 5.35 pm. This was shortly after Mr Thompson had had his conversation with Ms Hart at the service desk.

The police are called 59 At 5.35 pm that afternoon, one Peter Meyer called the police. Mr Meyer was the administration manager of Coles. According to the COPS report prepared by Constable Turnbull at about 8.30 pm on 25 October 2004, Mr Meyer said words to the following effect: "The informant states that two males about … 18 - 20 years old, Leb in appearance have attempted to buy gift vouchers in K-Mart and Target with possible stolen credit cards. The POI/S are currently in Coles." 60 Although Mr Meyer was the person who telephoned the police, Constable Turnbull testified that the "informant" in the COPS report was Ms Hart. The acronym, "POI", in the COPS report is a "person of interest". The persons of interest referred to in the COPS report were the plaintiffs. 61 Constable Turnbull, accompanied by Constable Cozis, called on Mr Meyer at Coles and he referred them to Ms Hart at K-Mart. The police officers interviewed Ms Hart. The trial judge found that Ms Hart then adopted and authorised the statement Mr Meyer had made (at [81]), namely, that referred to in para [48] above. This statement comprises the first matter complained of. 62 This adoption and authorisation occurred when Constables Turnbull and Cozis called in at K-Mart. There the two police officers viewed a CCTV recording of the interaction between the plaintiffs, the young woman at the service desk and Ms Hart. While this was occurring, Ms Hart said there were two male people who had attempted to buy the gift vouchers with fraudulent credit cards. She also told the police officers that the plaintiffs were in the Mall. The publication of the second matter complained of took place on this occasion. 63 The police officers then went in to the Food Court, spoke to Mr Webster, and then accompanied Mr Thompson out of Franklins. After talking to the plaintiffs, the police officers took them down to a loading zone in the Mall and the plaintiffs were strip-searched. Ms Hart appeared and identified the plaintiffs as the men who had been involved in the attempted fraudulent $500 gift voucher transactions. She pointed out Mr Thompson as the man who had had the fraudulent credit card. She said that Mr Thompson was "the one who was abusing me". The publication of the third matter complained of took place on this occasion.

The critical issue in the appeal against the findings concerning the defamation causes of action 64 The trial judge said that Mr Webster had "a very clear recollection of the events of the day in question" (at [17]). She said (at [28]) that Mr Thompson also had "a good recollection of events". 65 Neither Mr Webster nor Mr Thompson was cross-examined on his evidence as to what occurred during the time that they were in K-Mart returning the DVDs. In particular, neither was cross-examined as to his evidence concerning what Mr Thompson and Ms Hart said to each other during their conversation at the service desk. It was not put to either plaintiff that Mr Thompson (or Mr Webster) had attempted to purchase a gift voucher, or that Mr Thompson (or Mr Webster) had produced a credit card. Furthermore, neither plaintiff was cross-examined about his evidence as to the attitude and behaviour of Ms Hart during that discussion. 66 The failure to cross-examine the plaintiffs on these issues means that it must be accepted that neither Mr Thompson nor Mr Webster made any attempt whatsoever to purchase a gift voucher for $500, or any amount, and, indeed, that not a word was said in Mr Thompson's discussion with Ms Hart about gift vouchers. On no basis could it be found that Ms Hart's evidence was an accurate account of what was said in that conversation. J C Gibson DCJ, quite correctly, rejected Ms Hart's version of this conversation. 67 During the course of argument, Hodgson JA asked Mr Caspersonn whether he was making any submission to the effect that the plaintiffs did anything at K-Mart on the afternoon of 25 October 2004 other than return DVDs and get into a bit of an altercation with Ms Hart about the return of the DVDs. Mr Caspersonn replied, understandably, that he could not make such a submission. It follows, that the case on appeal has to be approached on that basis. 68 Accordingly, in relation to the first two grounds of appeal, Coles can only succeed by showing that her Honour made a factual error (capable of being reversed on appeal) when finding that Ms Hart was not acting bona fide and had invented the story she gave the police officers. Mr Caspersonn correctly accepted that this was so. 69 Mr Caspersonn submitted that her Honour erred in holding that the accounts Ms Hart gave to the police officers of the plaintiffs' conduct at K-Mart were inventions. He submitted that the finding should have been that she made a mistake. This submission was the only arguable basis of the first two grounds of appeal, that is, the only grounds that challenge her Honour's findings on the defamation causes of action.

Was there one incident involving an attempt to purchase a $500 gift voucher, or were there two such incidents? 70 In assessing Coles' submission that Ms Hart made a bona fide mistake and did not deliberately invent her allegation that the plaintiffs had fraudulently attempted to acquire a $500 gift voucher, the first issue to be addressed is whether, on 25 October 2004, there was one incident involving the purchase of a $500 gift voucher, or whether there were two such incidents. 71 Ms Hart's evidence as to what occurred in relation to the incident concerning the attempted purchase of two $500 gift vouchers from Ms McDonald differs in significant respects to that of Ms McDonald and Ms Patel. Coles called both Ms McDonald and Ms Patel, as well as Ms Hart, as witnesses. 72 The significant differences are: (a) Ms McDonald and Ms Patel spoke of an incident involving two men while Ms Hart said that there was only one man. When asked whether there was anyone within proximity to the customer, Ms Hart replied "not really" and "not close"; (b) Neither Ms McDonald nor Ms Patel said that Ms Hart had spoken to the customers involved in the attempt, and on their evidence she could not have done so. Ms Hart, however, said that she had spoken to the one customer that she said had attempted to purchase a gift voucher for $500; and (c) Neither Ms McDonald nor Ms Patel said that the customers seeking to buy the gift vouchers were threatening or abusive. Ms Hart, however, was adamant that the customer to whom she spoke behaved in this way to such an extent that she called the police after he left. 73 Ms McDonald and Ms Patel testified that the conversation with the customers took place at Ms McDonald's cash register. Ms Hart said that she had been called to the "front". The "front" seems to be where the cash registers were situated. Ms Patel testified that Ms Hart was called in her office while she, Ms Patel, remained at the front end. 74 Nevertheless, Ms Hart testified that she had the conversation with the customer who wished to buy the gift vouchers at the service desk, where the man was standing "on his own". 75 These discrepancies suggest that there might have been two incidents on 25 October 2004 in which persons attempted to buy gift vouchers of $500. But when, in cross-examination, Ms Hart was asked whether there was more than one incident of attempted credit card fraud on 25 October, she replied, "not that I remember". Ms Hart later repeated that she could only remember one incident that day of attempted credit card fraud, and that involved the person who became abusive and threatening after she required him to provide proof of his identity. Moreover, on Ms Hart's evidence, the incident that she remembered involved a customer who, according to her, "flagged the girls to then contact me. He wanted to make a purchase on a credit card, a Coles Gift Card for $500, he had no proof of ID". This evidence coincides to a significant degree with that of Ms McDonald and Ms Patel. They contacted Ms Hart because the two customers wished to make a purchase on a credit card for $500. Coles did not call any witness who suggested that there might have been any other transaction involving a purchase on a credit card for $500. 76 At one point Mr Caspersonn submitted that there were two incidents on 25 October 2004 in which persons attempted to buy gift vouchers of $500. The trial judge, however, does not mention such a proposition and no attempt was made to ask questions of Ms McDonald and Ms Patel that might have elucidated this issue. Ms Hart was perfectly clear that she could recollect only one such incident. On my reading of the material, the case seems to have been conducted on the basis that Coles was contending that there was only one such incident and the evidence of Ms McDonald, Ms Patel and Ms Hart was intended to describe one and the same incident, not withstanding their differences in description. 77 Therefore, to the extent that Coles' case rests on the proposition that Ms Hart was bona fide but mistaken when she gave the police officers information as to what occurred when she was involved with a customer who wished to purchase a $500 gift voucher, that defence must be judged against Ms Hart's evidence that there was only one such incident. 78 Next, it is necessary to examine the evidence relating to Ms Hart's statement that the person who had attempted to buy a $500 gift voucher from K-Mart also had been involved in a fraudulent attempt to obtain gift vouchers amounting to $1500 from Target. 79 The first and third matters complained of include statements by Ms Hart that the two men (that is, the men identified by Ms Hart as the plaintiffs), who had tried to obtain gift vouchers from K-Mart by using possibly stolen or fraudulent credit cards, had also attempted to obtain $1500 worth of gift vouchers from Target by similar means. I repeat that the trial judge found that Ms Hart had published those matters complained of to the police. 80 Ms Hart gave no explanation why she told the police officers that the plaintiffs were the same people involved in the $1500 gift vouchers from Target. There was no evidence that supported the proposition that the plaintiffs were so involved and it was not put to either of them in cross-examination that they had anything to do with any attempt to obtain gift vouchers from Target. 81 The trial judge appeared to think that there was no evidence that any attempt to obtain $1500 in gift vouchers had been made from Target, but Constable Turnbull testified, "I remember speaking to someone from Target who said that it did happen". This error, if it is one, by her Honour, has no material significance. 82 The point of substance is that Ms Hart told the police officers that the plaintiffs had attempted to obtain $1500 worth of gift vouchers from Target by dishonest means when she had no ground whatever for making such an accusation. Moreover, no facts were adduced from which it could be inferred that she made that accusation as a result of a bona fide mistake. The compelling inference is that she simply invented the allegation she made accusing the plaintiffs of being implicated in dishonest conduct at Target. 83 If one assumes that Ms Hart spoke to a man at the service desk who attempted to buy a $500 gift voucher and who was threatening and abusive to her, there is no room for inferring that Ms Hart mistook either plaintiff for him. Ms Hart described the man who was abusive to her as "a fair skinned, so white Australian, … young". She was asked what she meant by "young". She replied "younger than me. In my mind I think I put somewhere around twenty, mid twenties, somewhere around there". This description of the man is to be compared with the description of the plaintiffs given by the trial judge. Her Honour described the plaintiffs as "middle-aged men with a cultivated appearance and manner" (at [15]). Her Honour said that their demeanour and presentation was that of "sensible, responsible members of the community". 84 There is also no room for inferring that Ms Hart mistook the plaintiffs for the two men "about 18-20 years old, Lebanese in appearance" who were the men described in the first matter complained of. 85 Significantly, Ms Hart omitted to tell Constable Turnbull about Ms McDonald. Ms Patel had called Ms Hart and told her about their problem that afternoon with an attempted purchase of gift vouchers. Ms McDonald had also spoken to Ms Hart about that problem. An inference is open that Ms Hart wished to implicate the plaintiffs and, for that reason, did not wish the police officers to interview Ms McDonald and Ms Patel. 86 Ms Hart was asked whether she identified the wrong person in the Food Court. The following exchange is relevant in this respect: "Q. Is it possible Ms Hart that when you identified the person in the Food Court, you identified the wrong person. Not the person you'd had the discussion with before? A. I don't think so, I don't.

Q. Can I suggest to you that you may have had a heated discussion with a gentleman and then a subsequent discussion with another gentleman in relation to the return of DVD videos, and had become confused as to which was the correct one? A. I don't - yeah I don't think so. Q. You don't think so or you're not sure? A. I'm not sure. It would be better to say for - because you wouldn't do that. Q. Why not? A. Because that's just wrong, it's not right, yeah and I wouldn't do that.

Q. But you could've done it mistakenly couldn't you? A. I don't think so. 87 This evidence virtually removes any ground for arguing that Ms Hart was mistaken. 88 I would add that when regard is had to the fact that Ms Hart had a heated, face to face conversation with Mr Thompson, with Mr Webster in close proximity, within a short time of Ms Hart communicating with Mr Meyer in a way which led him to make the statement to the police which forms the basis of the first matter complained of, and which she later adopted, the notion that she had persons other than the plaintiffs in mind is hard to comprehend. Moreover, having regard to the fact that shortly thereafter she personally identified the plaintiffs as the persons who had attempted dishonestly to purchase a $500 gift voucher, the notion that she made a mistake is virtually incredible. 89 Mr Caspersonn attempted to seek some comfort from Constable Turnbull's evidence that the young woman at the service desk (where Mr Thompson returned his DVDs) looked at the signature on the back of a credit card and compared it to the signature that was on the refund voucher and there was a problem with that. The relevant evidence of Constable Turnbull appears from the following exchange: "Q. What did the lady at the service desk say to you? A. Well again at the time I'm just saying I had two people saying the same sort of thing [but] from what I can remember summarised there was - was they returned a Seinfeld DVD set where they had to sign either a refund or an exchange voucher. Whilst they were still there they've attempted to use a credit card to purchase an amount of gift vouchers. And the girl behind the desk from what I can remember has looked at the signature on the back of the card and compared it to the signature that was on the refund voucher and they did not compare, they weren't accurate which is when she's contacted her superior, her manager or something like that and it's gone from there. From what I remember." 90 In my view little can be derived from Constable Turnbull's reply. On the plaintiffs' evidence no credit card was handed over at the service desk when Mr Thompson returned the DVDs. The notion that the young woman at the service desk would compare the signature on the back of a card with a signature on a "refund voucher" is nonsensical. Mr Thompson had his own credit card with him at the time and there was no suggestion that it was anything other than genuine. 91 J C Gibson DCJ at [369] found: "[Constable Turnbull] was told, both by Ms Hart and by the unnamed young lady shop assistant at the service counter about the return of the Seinfeld DVDs by Mr Thompson in circumstances where it was asserted that in addition to returning the Seinfeld DVDs, an attempt was made to purchase a $500 gift voucher using a credit card with a signature that did not match the signature of Mr Thompson on the credit voucher records." 92 Even if this finding is correct, which I doubt, it cannot detract from the unchallenged evidence of the plaintiffs, which her Honour accepted, that they did not attempt to purchase a $500 gift voucher using a credit card. Ms Hart did not testify that the young woman at the service desk misled her. The young woman concerned was not called to testify. Constable Turnbull's evidence about her is hearsay. Ms Hart testified that she did not mistake the plaintiffs for persons who had attempted to purchase gift vouchers on some other occasions. 93 In my opinion, there were very strong grounds for J C Gibson DCJ to find, as she did, that Ms Hart had invented and made up her version that Mr Thompson (with the connivance in some way of Mr Webster) had attempted to purchase a $500 gift voucher and had done so fraudulently by attempting to use a credit card which was not his. The finding that this occurred is irresistible. Her Honour made no error. I would dismiss the appeal in regard to the first two grounds.

Malice 94 Her Honour observed: "[220] Evidence of the defendant's conduct and motivation may include evidence of hostility between the defendant and the plaintiff, further repetition by the defendant, and whether the statements were gratuitously volunteered. The fact than an allegation is volunteered and not solicited may be considered with other evidence in supporting an inference that a defendant is motivated by malice. [221] All of these factors are present here. As I have accepted the version of events given by the plaintiffs and Senior Constable Turnbull, and do not accept Ms Hart as a witness of credit, I accept the submission that she made a false allegation of criminal conduct out of ill-will. This is clear evidence of malice." 95 In my view, her Honour's reasoning is unexceptionable and she correctly found that malice had been proved.

The appeal against the findings of false imprisonment 96 The trial judge found in regard to the false imprisonment claim: "[255] The information provided to the police, which I have found comes from Ms Hart, was of a serious and alarming nature. This was a report of a serious and systematic fraud. There could be no question of the police doing anything other than investigate. The fact that a complaint of this nature was made by not one, but two large retail outlets, and that when police arrived one of the alleged offenders was in a third large retail outlet in the same shopping mall, meant that the police had to act quickly. … [257] The active role played by Ms Hart throughout the whole of this transaction, including her insistence upon the plaintiffs' guilt, amounts to conduct going well beyond providing information to the police to obtain a judicial determination. [258] Looking at the timing of events, her active role throughout and her insistence upon the plaintiff's guilt, she must be seen as the motivating force behind the police enquiries. Accordingly, on the unusual facts of the case, Ms Hart was the person responsible for the plaintiffs being falsely imprisoned. The fact that the police were doing their duty in searching the plaintiffs and in temporarily depriving them of their liberty does not absolve the defendant from liability. The behaviour of the police in these circumstances was reasonable; Ms Hart's behaviour was not." 97 Mr Caspersonn submitted that, in detaining the plaintiffs, the police officers were acting independently, in the exercise of their own discretion. He submitted that Ms Hart had merely given the police officers information relating to the plaintiffs' conduct and had identified them. 98 Mr Caspersonn pointed out that Ms Hart was only at the loading dock identifying the plaintiffs for three to four minutes. After Ms Hart had identified the plaintiffs, according to Mr Caspersonn, it was the independent decision of the police officers to continue to detain them. 99 Mr Caspersonn also drew attention to Mr Webster's evidence that Constable Cozis told him that she had seen the plaintiffs at Coles and Target on a video. He submitted that this was a further factor that motivated the police officers to detain the plaintiffs (and this decision was made quite independently of Ms Hart). 100 Constable Cozis did not testify and the veracity of what she told Mr Webster is doubtful. The video shown to the police officers showed the events at the service desk in K-Mart, and did not show anything that occurred at Coles and Target. Moreover, the unchallenged evidence of the plaintiffs was that they had not been to Coles or Target. It is possible that Constable Cozis was attempting to persuade Mr Webster to make some admission, but this is mere speculation. Whatever the position may be in this regard, on the evidence before this Court I do not think that Constable Cozis's statement to Mr Webster that the video showed the plaintiffs to have been at Coles and Target is indicative of any factor, beyond the information that Ms Hart gave to the police officers, that influenced the police officers to detain the plaintiffs. 101 Mr Caspersonn also relied on the information given to Constable Turnbull by the young woman at the service desk and I have commented on this above. On the evidence that was adduced, I do not think that anything the young woman said to Constable Turnbull would have influenced him to any material extent. 102 The issue so raised concerns the circumstances under which a person, who gives information to police that leads to wrongful detention, will be liable to the person wrongfully or falsely detained. 103 Spigelman CJ (with whose reasons I agreed) considered this issue in Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269. The High Court (in [2005] HCA 48; (2005) 222 CLR 612) overturned this Court's decision but the majority did not refer to this Court's reasoning in regard to the issue now under discussion. 104 Spigelman CJ observed at [29]: "In Myer Stores Ltd v Soo [1991] 2 VR 597 (at 629), referred to with approval in Spautz v Butterworth [1996] 41 NSWLR 1 (at 26) and Cubillo v Commonwealth [2001] 112 FCR 455 (at 519, [250]), McDonald J said: "To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment; Aitken v Bedwell (1827) Mood & M 68; 173 ER 1084; Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 and Halsbury , 4 th ed, vol 46, paras 1326, 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing the imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet." 105 In Myer Stores Ltd v Soo [1991] 2 VR 597 a store detective was held liable for false imprisonment even though the plaintiff was arrested by police officers alone. The store detective had told the police officers that the plaintiff was guilty of a shoplifting incident that had occurred a number of days earlier. The store detective led the police officers to where the plaintiff was in the store and directed them towards him. The store detective knew that the result of what he was doing would be that the police officers would speak to the plaintiff and request him to accompany them to the security offices in the store and that he might be arrested if he refused (see O'Bryan J at 615). 106 O'Bryan J (at 617) said: "In my opinion, [the store detective] was active in promoting and causing the detention of the [plaintiff]. His was not the passive role of a bystander who makes a complaint to the police."

Murphy J found that the store detective "actively promoted" the plaintiff's imprisonment. Murphy, O'Bryan and McDonald JJ each held, in effect, that, the police officers and the store detective had participated in a common action and acted in concert together. 107 The facts in the present case, as found by J C Gibson DCJ, are not dissimilar to those in Myer Stores Ltd v Soo. 108 Spigelman CJ explained in Ruddock v Taylor at [33]: "It is not the case that an act indicating a wish or expectation that another should be imprisoned establishes liability for the tort. There will be such liability if the person who ultimately confines the plaintiff would not have acted at all but for the urging on the part of another … It is otherwise if the ultimate actor exercises an independent discretion." 109 Spigelman CJ's reference to the exercise of "an independent discretion" must be understood in the context of his Honour having expressed the view in the previous sentence that the informant will be liable if the person who ultimately arrests or detains the plaintiff would not have so acted but for the urging on the part of the informant. 110 Davidson v Chief Constable of North Wales [1994] 2 All ER 597 is an example of the differentiation that is required to be made between a person who simply gives information to police officers that leads to a wrongful arrest, on the one hand, and a person who, in the phraseology of McDonald J in Myer Stores Limited v Soo (at 629), is active in promoting and causing that imprisonment. In Davidson the plaintiff was suspected of stealing a cassette at a store. The store detective, in the incorrect belief that the plaintiff had taken the cassette without paying for it, telephoned the police and told them that the plaintiff had taken the cassette without paying and, later, pointed the plaintiff out to the police officers. The police officers arrested the plaintiff on suspicion of shoplifting. 111 Sir Thomas Bingham MR, with whom Waite LJ agreed, after examining a number of authorities said (at 603) that the essential test to be applied is: "[W]hether the defendant gave the information to a prosecuting authority so that what followed was the result of that prosecuting authority or whether the defendants themselves were responsible for the acts that followed."

And observed (at 604): "Accordingly, as it would seem to me, the question which arose for the decision of the learned judge in this case was whether there was information properly to be considered by the jury as to whether what [the store detective] did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting these defendants."

The trial judge in Davidson decided that there was no evidence that suggested the store detective went beyond the mere giving of information and the English Court of Appeal upheld this decision. 112 In Ruddock v Taylor, Spigelman CJ (at [35]) observed that in those cases where persons who instigate the sequence of events culminating in an imprisonment have been held liable for false imprisonment, those persons "generally actively sought that result". In that way, his Honour said, those persons "manifested an intention that there be an imprisonment". In my opinion, Ms Hart's conduct unequivocally manifested an intention that the plaintiffs be detained. 113 Spigelman CJ (at [39]) referred to Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525 where the leading judgment attached importance to a "mischievous faculty" on the part of the defendant. The Chief Justice observed at [40] that there was a "mischievous quality" involved in the conduct of each Minister (in Ruddock v Taylor) that led to the trespass for which the plaintiff in that case was suing. 114 There is undoubtedly such a quality present in the instant case. That quality is the fact that Ms Hart deliberately and falsely invented the accusations which she communicated to the police officers and which led directly to the arrest of the plaintiffs. This element of a dishonest, invented, accusation was not present in Davidson. 115 Trindade, Cane and Lunney, The Law of Torts Australia (4th ed), in the context of liability for false imprisonment, regard the deliberate giving of wrong information to the arresting officers as being of fundamental importance. The authors state (at 63): "Whatever view one takes when the wrong information is given innocently, the deliberate giving of wrong information, it is suggested, should be treated differently. Where the deliberate false information concerns facts relating to an alleged offence that can be within the knowledge only of the complainant and it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and as a result of a prosecution initiated by the police officer there is a deprivation of the plaintiff's liberty, the total restraint of the plaintiff should be regarded as being brought about directly by the complainant, and an action in false imprisonment would lie against the complainant who deliberately supplied the false information (see Martin v Watson [1996] 1 AC 74, 86 - 87 (a malicious prosecution case))." 116 The basic proposition enunciated by Trindade, Cane and Lunney derives support from the remarks of Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] 53 CLR 343. His Honour was there dealing with a case of malicious prosecution. Nevertheless, in my view, the principle expressed is of general application to cases of false imprisonment. His Honour said (at 379): "It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of independent discretion on the part of that authority … But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible … … The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously without reasonable and probable cause, those who aid and abet him in doing so are joint wrong doers with him." 117 This is confirmed by the decision in Roy v Prior [1971] AC 470; [1970] 2 All ER 729, where the plaintiff was arrested pursuant to a warrant and imprisoned for some hours. He claimed that the evidence led in support of the application for the warrant was false. Lord Morris (with whom Lord Reid, Viscount Dilhorne, Lord Wilberforce and Lord Diplock agreed) said at 477: "What the plaintiff alleges is that the defendant acting both maliciously and without reasonable cause procured and brought about his arrest … The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (although if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause."

118 The House of Lords held that a cause of action for malicious arrest was disclosed, even though the magistrate who issued the warrant had exercised an independent discretion, the persons arresting the plaintiff had acted lawfully pursuant to the warrant, and the defendant had not personally arrested the plaintiff. 119 In my view, Ms Hart's conduct was such that she caused and procured the wrongful detention of the plaintiffs and J C Gibson DCJ did not err in so finding.

Conclusion 120 I would dismiss both appeals with costs.

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